One Hundred and Twenty-Five Years after Slaughterhouse: Where’s the Beef?

Abstract

One Hundred and Twenty-Five Years after Slaughterhouse: Where’s the Beef? JONATHAN LURIE* You never know. Historical events intended for one purpose sometimes result in the unin­ tended, and American history is far from immune to this tendency. Thus the Civil War—first considered by Lincoln as nothing more than an attempt to prevent Southern secession—ulti­ mately went far beyond an effort to preserve the Union, far beyond ending African-American slavery, far beyond even ensuring continued western expansion. By 1866, the war had wrought changes in the relationship between the federal government and the states, the federal govern­ ment and its people, as well as the states and their citizenry. Although they may well have been unintended and their extent unclear, these transformations doomed continuance ofthe Union as it had been—producing instead a new connection between the American people and their legal order that is still evolving.1 One manifestation of such change was the Fourteenth Amendment adopted by Congress in 1866. Ratified by the states as part of the Constitution in 1868, five years later the Supreme Court first considered its meaning and scope; and thereby hangs a story rich in irony. I Intended to facilitate a changed relation­ ship between the former slave and white America, the new amendment was first pre­ sented to the Court on behalf of some white butchers arguing with otherwhite butchers over a Louisiana statute enacted in 1869. Moreover, their lawyer—a former Supreme Court Justice who had resigned his seat when his state (Ala­ bama) seceded—now called for a new level of federal supremacy and state subordination dia­ metrically opposed both to his own long-held views and past American history. Finally, the High Court, whose function was, and remains, the reconciliation oflaw with ongoing change, could not agree on the extent of constitutional alteration mandated by the amendment. 270 JOURNAL OF SUPREME COURT HISTORY In this they were not alone. Uncertainty as to what the new provision meant, its applica­ tion and scope, characterized both congres­ sional debates and contemporarycommentary. In April 1873, by a 5-4 vote, the Court first interpreted the Fourteenth Amendment, and offered its own assessment—one that remains a “landmark” in American legal history. The majority opinion by Justice Samuel F. Miller sustained the Louisiana statute regulating slaughterhouses, and held that with the excep­ tion of the former slave, the new addition to the Constitution had not altered in any signifi­ cant fashion the traditional pattern of federal­ ism. Although at least two later members of his Court endorsed his analysis (as will be seen), more frequently his opinion has been rebutted, denounced, and condemned, almost (it would seem) from its announcement. Indeed, a cacophony of criticism has en­ veloped his decision for more than a century. A recent comment by Yale Law Professor Charles Black is typical. Miller’s opinion, he wrote, is “probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court.”2 An impressive number of similar sentiments from a wide spectrum of scholars could be cited, and yet Miller’s deci­ sion has not been overruled. Moreover, it did not prevent his Court, sometimes with his con­ currence, from finding awesome breadth and depth in the Amendment—a process that ac­ celerated during the Warren Court era. Given such criticism for so long, why has the Court retained Slaughterhouse? Why this veneration for “stare decisis” in the face of sustained denunciation? We know that when it so desires, the Court can overrule itself, some­ times within a brief span of years. The Legal Tender Cases, Betts v. Brady, or Brown v. BoardofEducation come immediatelyto mind, and more recent examples could readily be cited. Perhaps one answer may simply be that the Justices, for whatever reason, do not wish to overrule the 1873 holding. And here again, we may ask why. A possible answer may be found in areexaminationofexactlywhatMiller’s majority believed it had decided. In trying to explain what the litigation meant to the Court in 1872-1873, some legal scholars have focused on several alleged flaws in Miller’s opinion. Writing in the context ofthe FourteenthAmendment that they now know...