It was the late 1860s, and the city of New Orleans had a gruesome problem: Animal intestines clogged the city’s water pipes.
The drinking water was tainted: It contained bits of meat and offal from slaughterhouses a mile and a half upstream, where butchers gutted 300,000 livestock every year. Because of its proximity to Texas, New Orleans sold huge quantities of beef—and now the byproducts haunted the city. One doctor called New Orleans “a great Golgotha,” referring to the biblical site of Jesus’ crucifixion (from Matthew 27:33-35: “They were come unto a place called Golgatha, that is to say, a place of a skull…”).
The Civil War had ended and the Gilded Age had not quite begun. There was a restlessness in the air. New people flooded into New Orleans, mostly men looking to build fortunes in the wake of war. New technology was being developed across the country, but much of it still existed only on paper. Refrigeration hadn’t made it to the Bayou yet. The first American patent for an icemaker was issued in 1851; the first for a refrigerated train car came in 1867. The country was in the early stages of building a better, cleaner life.
But for now, the summers were inescapably hot—and there was blood in New Orleans’ water.
It was a serious public health concern. The health officer for the Third District reported that “[b]arrels filled with entrails, livers, blood, urine, dung, and other refuse in an advanced state of decomposition are being constantly thrown into the river[.]” The contaminated water spread cholera and yellow fever throughout the city, killing thousands.
Something needed to be done. The slaughterhouses upstream of the city’s water supply would have to be relocated.
But what the State of Louisiana chose to do instead—after being lobbied and bribed by a motley group of crony capitalists—was set up a state-enforced monopoly that swallowed the entire butcher industry whole.
The 17 men who hatched the scheme weren’t even butchers.
One was the London-born owner of a New Orleans hat shop. Another was a cotton broker who later became implicated in an unrelated bribery scheme involving Audubon Park. Several of the men had already pushed their way into exclusive government contracts for a variety of odd jobs around the country related to canals, debris removal, and supplying city gas.
“The organizers appear to have been a devious lot,” authors Ronald M. Labbé and Jonathan Lurie note in their book, The Slaughterhouse Cases.
The hat salesman, William Durbridge, owned land south of New Orleans. It would make a perfect site for a new slaughterhouse, Durbridge and his compatriots decided—the only New Orleans slaughterhouse.
All they had to do was convince the state to incorporate their 17-man group as a company with exclusive rights to operate a slaughterhouse in New Orleans.
It wouldn’t be that hard. This was 19th-century Louisiana, after all. Political corruption was “a way of life, inherited, and made quasi-respectable and legal by the French freebooters, who founded, operated, and left us as the governmental blueprint that is still Louisiana’s constitutional and civil law,” former Louisiana Lieutenant Governor William J. Dodd writes in his book, Peapatch Politics.
Several of the 17 men were friendly with Louisiana’s youthful new governor, Henry Clay Warmoth, who had just taken office in 1868 at the age of 26. The men began to visit Governor Warmoth at his home to discuss the possibility of a new state law granting them a slaughterhouse monopoly.
By March 1869, the Louisiana State Legislature was considering a bill that would charter “Crescent City Company” and give it exclusive rights for 25 years to operate a “Grand Slaughterhouse” in New Orleans. Every butcher in the city would have to pay the company a fee to rent space at their slaughterhouse. If a butcher slaughtered livestock anywhere but Crescent City, he’d be fined. Crescent City would also retain the right to collect scraps from their tenant butchers to turn into feed they could sell for a profit. The state would appoint a beef inspector to inspect all meat on premises. (Unsurprisingly, the inspector eventually appointed was a good friend of Governor Warmoth.)
Some of the 17 Crescent City incorporators were actually in the room with legislators for the debate about the bill. William Durbridge later admitted that he and his compatriots paid for “fires, committee rooms, sandwiches, whiskey, [and] brandy” for the legislators. Another one of the schemers later said—under oath in an 1871 lawsuit involving Durbridge’s company shares—that “there was some considerable money advanced” to legislators. It was long rumored that some legislators held stock in the company through an arrangement that kept their names off the official stock book.
Not all of Louisiana’s legislators were on board with the scheme.
“No objection can be made to the removal of the slaughterhouses below the city,” one reasoned, “but it does not follow that there should be a monopoly of the slaughterhouse business.”
“Who are the men composing this company?” another legislator demanded. “Who are they? They are not butchers. They are not cattle dealers… We do object that these men should come along to rob our people, to steal away their property, to disturb our firesides.”
Despite these objections, the bill passed. Governor Warmoth signed it on March 8, 1869.
After it was signed, one of the bill’s main opponents, former Union Army General William L. McMillen, was so disgusted with the entire affair that he suggested the bill not be read aloud in the statehouse, as was customary, “in order that gentlemen not be troubled with qualms of conscience.”
The legislators’ willingness to go along with the Crescent City proposition reveals two things about Louisiana state government in 1869.
First, of course, is the ordinary, self-serving avarice of the legislators who accepted bribes. The judge in William Durbridge’s eventual lawsuit against other Crescent City incorporators even noted in his ruling that “members of the House of Representatives were bribed for their votes and members of the Senate were also bribed for their votes… and I think the evidence is irresistible that the Governor’s signature to that bill was obtained by the same soft solder.”
But there’s also something more sinister at play in the government’s action.
By imposing a monopoly instead of simply relocating the offending slaughterhouses, the state revealed its reckless appetite for subsuming spheres of private activity under centralized control, an act that is inevitably infected with cronyism.
Rather than narrowly tailor a solution to the problem of New Orleans’ tainted water, the state readily accepted the Crescent City schemers’ argument that the government could reorganize the entire New Orleans butcher industry under the central command of a few favored state cronies.
With its slaughterhouse bill, the state absorbed the decision-making power of thousands of individual butchers, expanding the reach of government—and eating away at the freedom of New Orleans butchers.
New Orleans did not react well to the Crescent City company’s new state-enforced monopoly.
The Daily Picayune complained that the state had put “the whole community” of New Orleans “under embargo to a few rich men.”
The New Orleans Republican asked why the monopoly was necessary for public health, which surely “will not suffer from three or four small slaughterhouses at proper points.”
New Orleans butchers were furious. Many of them were French-born immigrants who didn’t speak English; they didn’t have the political connections that the Crescent City incorporators did. Suddenly, the state was forcing them all to rent workspace from Crescent City’s “Grand Slaughterhouse” or abandon their livelihoods.
At a meeting of the Butchers Benevolent Association, organizers declared that every man had the right “to accumulate property by his labor… without the control, domination, or direction of any other person or persons in the community for their own emolument.”
The butchers’ first lawsuit against the Crescent City company was filed in May.
“The butchers are not only fighting their own battle,” The New Orleans Bee mused, “they are fighting the battle of the community.”
Six separate lawsuits over the New Orleans slaughterhouse monopoly were eventually consolidated at the Supreme Court in 1872 as the Slaughterhouse Cases.
John Campbell, attorney for the butchers, argued that Louisiana’s slaughterhouse bill violated America’s new Fourteenth Amendment, adopted in 1868, which says (among other things) that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
There’s vast evidence that the Clause was intended to prohibit states from violating the Bill of Rights or infringing other natural rights, and to enshrine in the Constitution those rights guaranteed by the Civil Rights Act of 1866. Chief among those rights contemplated by the Civil Rights Act were economic rights, which would ensure freed blacks would be able to thrive in the aftermath of the Civil War.
“[A]s man has a right to labor for himself, and not at the will, or under the constraint of another, he should have the profits of his own industry,” Campbell argued.
Campbell was a brilliant orator and a deeply flawed man. He was a former child prodigy, a former slaveholder, and a former Supreme Court Justice: He’d served on the Court from 1853 to 1861 before leaving to become assistant secretary of war for the Confederacy. Now Campbell was using the Fourteenth Amendment—adopted after the Civil War to protect the rights of freed slaves—to argue the butchers’ case before his former colleagues on the Court.
He described the Crescent City company as a “corporation [that] stalked and strutted through the land as a seigneurial power.” The Fourteenth Amendment, he said, “guaranteed its protection against sordid interests, selfish aims and ambitious usurpations, or greedy appetites.”
But in a 5-4 decision announced on April 14, 1873, the Court sided with the Crescent City crony capitalists and the State of Louisiana.
Justice Samuel Miller, the former Kentucky doctor who wrote the majority opinion, argued that the Fourteenth Amendment’s “privileges or immunities” clause only protected certain federal rights, like habeas corpus, access to navigable waters, and movement between states.
It didn’t protect “the citizen of a state against the legislative power of his own state,” according to Miller. States were free to violate the Bill of Rights and unenumerated rights, like economic liberty.
The decision effectively nullified the “privileges or immunities” clause, imbuing it with so little power that not only did it fail to protect the New Orleans butchers—it would also fail to protect black Americans from racist state laws for the many fraught decades to come.
Justice Miller’s opinion “turns, as it were, what was meant for bread into stone,” Justice Noah Haynes Swayne’s dissent lamented.
In a separate dissent, Supreme Court Associate Justice Stephen Field wrote that the majority turned the Privileges or Immunities Clause into “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”
Despite Crescent City’s victory at the Court, the state-enforced monopoly didn’t last long.
In 1879 Louisiana adopted a new state constitution that expressly forbade the legislature from granting “special or exclusive” rights to any corporation. The constitution also abolished “the monopoly features” in existing Louisiana corporate charters—including Crescent City’s. Other companies could now apply to operate slaughterhouses in New Orleans.
But Justice Miller’s Slaughterhouse decision had already left a permanent mark on the whole country.
The decision discouraged federal courts from interfering with state laws that violated individual rights—especially economic liberty.
It encouraged states to prop up monopolies and licensing regimes that asserted centralized control over industries—expanding the role of the government in private spaces.
“Gluttony is about not knowing when to stop,” Claremont McKenna College Professor John J. Pitney tells OZY media, “and that applies to lots of areas of political life.”
The Slaughterhouse Cases reveal a government unwilling to check itself, even as it consumed the economic liberty of people it was meant to represent. Pacific Legal Foundation now fights for entrepreneurs whose livelihoods are stifled by heavy-handed government. These entrepreneurs’ fight, like the butchers’ fight, is not theirs alone. Any battle to defend economic liberty should be a battle of the American community.
This article first appeared in the fall 2022 edition of Sword&Scales.