November 19, 2009

McDonald v. Chicago: revolution or restoration? (part 3)

By McDonald v. Chicago: revolution or restoration? (part 3)

Author: Timothy Sandefur

(Part 1 is here; Part 2 is here)

The Fourteenth Amendment, as we’ve seen, was intended to constitutionalize the doctrine of “paramount national citizenship” that was formulated by antislavery thinkers in the years prior to the Civil War. But in 1868, the same year that the Amendment was added to the Constitution, the state of Louisiana passed a law that started a historic controversy. That bill was known as the Slaughterhouse Act, or Bill No. 118.

The beef industry was, of course, huge business in New Orleans in the 19th century. Cattle would be brought in from Texas and other states to be butchered and shipped out on the Gulf of Mexico or up the Mississippi River. And much of this slaughtering was done by small, family owned butcher shops. The business was certainly unsanitary and cruel by our standards, and no doubt extremely unpleasant to smell or hear. But the Slaughterhouse Act wasn’t just a health regulation that ensured the safety of food. It went further and required that all cattle slaughtering in the parish must be done at a single, privately owned business called the Crescent City Livestock & Landing Company.

This was economic disaster for many small scale butchers. Imagine if a state law required all drivers in Los Angeles County to get their cars serviced at Aamco and no place else! Hundreds if not thousands of auto mechanics would be out of jobs overnight. Likewise, hundreds of butchers found their livelihoods seriously impaired by this new state-imposed monopoly.

Many of these butchers sued, challenging the constitutionality of the Slaughterhouse Act under the new Fourteenth Amendment. There were more than 100 such lawsuits when they were finally combined under the single name The Slaughter-House Cases and were heard by the Supreme Court in December, 1872.

The butchers argued, among other things, that the law deprived them of the privileges or immunities of citizenship, in violation of the new Amendment. The term “privileges or immunities,” they argued, referred to a broad array of individual rights, including not only the natural rights articulated in the Declaration of Independence, but also to common law rights, such as the right to earn an honest living without unreasonable government interference.

Now, the right to earn a living has a long and honorable history in common law. In 1602, the Court of King’s Bench in England issued a decision in the Case of the Monopolies, striking down a monopoly on the making and selling of playing cards. In the years that followed, English courts repeatedly invalidated laws that created monopolies or restricted the freedom of working people to earn a living at a common occupation. So by 1872, this was a widely recognized common law right. Moreover, it was clearly central to the “right to pursue happiness” recognized in the Declaration of Independence.

But when the Supreme Court issued its decision in April, 1873, it rejected the butchers’ argument. We’ll see why in the next installment.

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