Good Article. There are other issues that were addressed in dicta within the Slaughterhouse Cases that I think are important, but in general, a good discussion. I would have liked to have attended this, and I am familiar with the Professor at George Mason who conducts this seminar.
Thanks for sharing Michael! On Fri, Feb 22, 2013 at 6:30 PM, MJ <[email protected]> wrote: > > *The Slaughterhouse Cases > *by Jacob G. Hornberger <http://fff.org/author/jacob-hornberger-2/>February > 19, 2013 > > At my informal law and economics seminar last evening, we discussed the > Slaughterhouse Cases, which were decided by the U.S. Supreme Court in 1873. > The seminar is conducted in conjunction with the George Mason University > Economics Society, a great student-run libertarian group that is interested > in free-market, Austrian economics. > > The *Slaughterhouse Cases* planted the seeds of economic liberty and > substantive due process, concepts that would ultimately form the basis for > a tremendous legal battle that would culminate during the New Deal era of > President Franklin Roosevelt. > > To set the background to the case, we began with a discussion of the > Constitution, the document which called the federal government into > existence. It provided for a government of limited, enumerated powers. If > the power wasn’t enumerated, then it couldn’t be exercised. > > It was the other way around for the states. The Constitution didn’t > enumerate the powers of the states. That’s because the states were > authorized to exercise whatever powers they wanted, unless such powers were > expressly prohibited by the Constitution (or limited or prohibited by the > state’s own constitution). For example, the states were expressly > prohibited by the Constitution from making anything but gold and silver > coins a medium of exchange. > > So, then why was it necessary to amend the Constitution with the first ten > amendments, which expressly restricted the federal government’s > infringement on fundamental rights and guaranteed important procedural > protections? The answer is because the American people weren’t convinced > that the enumerated-powers concept would work to constrain the type of > people that would be attracted to work for the federal government. They > wanted express protections, which was what the Bill of Rights was all about. > > After the Civil War, the Constitution was amended with the Thirteenth > Amendment (slavery), the Fourteenth Amendment (due process and privileges > and immunities), and the Fifteenth Amendment (voting rights). > > The *Slaughterhouse Cases* involved the grant of a monopoly by the > Louisiana legislature to a private corporation in New Orleans to operate > the only slaughterhouse in the city. All other slaughterhouses were > required to close down. Anyone who wished to butcher would be permitted to > do so by using space within the monopoly slaughterhouse. > > The state justified the law under the “police powers” of the state. Those > were powers that historically had fallen within the sovereign powers of > government. The police-powers concept, which stretched back into English > and European history, of course didn’t apply to the federal government > because the federal government had no sovereign powers its powers were > limited to those enumerated within the Constitution. But the concept still > applied to the states. > > Prior to the enactment of the law, there were slaughterhouses located > north of New Orleans. It was a nasty business. When the cows were > butchered, the entrails would be thrown into the Mississippi River, which > would then carry them through New Orleans. Thus, the law was justified > under the state’s police powers to preserve the “health, safety, and > welfare” of the citizenry. > > Another factor, however, was one involving public-choice theory. It turns > out that the owners of the monopoly corporation had bribed members of the > legislature to provide them with the monopoly, a point the Court might not > have been aware of. > > What is a monopoly? It is a legal privilege granted by the government to > an entity that enables the entity to be the sole provider of a good or > service. The law prohibits any competitors. Shielded from competition, the > grant enables the monopolist to charge higher prices than would otherwise > be the case, increasing its profits. The Court pointed out the long history > of revulsion among the English people against monopolies, especially > because they always come with abusive treatment and shoddy products and > services. > > What’s a modern-day example of a monopoly? Not Apple or Google or IBM or > any other big company. As long as the law doesn’t prohibit competition, > there is no monopoly, no matter how big and successful a firm might become. > The Postal Service is an example of a monopoly. The law outlaws any > competition in the delivery of first-class mail. If someone tries to > compete against the Postal Service, the federal courts will immediately > grant a request by the Justice Department to shut it down. > > The lawyer representing the plaintiffs in the *Slaughterhouse Cases* was > a brilliant attorney named John A. Campbell, who had been serving on the > U.S. Supreme Court at the outbreak of the Civil War. Believing that he > needed to fight on the side of his country, he resigned his lifetime > appointment on the Court and returned to the South to become Assistant > Secretary of War in the Confederacy. At the end of the war, he was arrested > and imprisoned for six months. Starting all over again in New Orleans, he > took on the case of the Louisiana butchers. > > Campbell obviously had an uphill battle in the *Slaughterhouse Cases.*After > all, the states were empowered to enact laws to protect the “health, > safety, morals, and welfare” of the citizenry. Clearly, this law related to > protecting the people of New Orleans from polluted water. > > What did Campbell do? He took the language of the Fourteenth Amendment and > created an ingenious argument. He argued that under the Constitution states > could no longer deprive people of their life, liberty, and property without > due process of law. Within that context, he argued that there were certain > rights that were so fundamental that the government could not take them > away even if the correct procedures were followed. > > In other words, even though the legislature had openly debated and > discussed the law and then duly enacted it, that still wasn’t sufficient to > extinguish fundamental rights. Campbell’s argument became known as > “substantive due process,” which would provide the due process clause with > two dimensions procedural and substantive. > > What was the fundamental right that the Louisiana legislature was > infringing upon? That right was economic liberty the right of a person to > pursue any occupation he desires. That fundamental right, Campbell argued, > trumped the police powers of the state. > > The case was decided by a 5-4 vote, in favor of the monopoly. The majority > held that the three post-Civil War amendments were enacted to protect the > rights of the former slaves. The majority refused to interpret the > Fourteenth Amendment in the way that Campbell suggested. The Court held > that under the state’s police powers, the state had the authority to grant > the monopoly. > > But the real significance of the *Slaughterhouse Cases* lay with the > dissenting opinions, especially the one by Justice Stephen J. Field, who > himself had had a colorful legal career. He had begun practicing law on the > east coast, but then set out for a life of adventure by taking a ship > around South America to California during the Gold Rush. After a successful > legal career out west, he was appointed to the U.S. Supreme Court, which > caused him to move to Washington, D.C. > > Field, along with his fellow dissenting justice, Joseph P. Bradley, agreed > with Campbell’s argument. He said that the Louisiana law was a clearly > unconstitutional infringement on the fundamental right of people to engage > in an occupation. He even quoted Adam Smith’s famous 1776 treatise *The > Wealth of Nations: > > *The property which every man has in his own labour, as it is the > original foundation of all other property, so it is the most sacred and > inviolable. The patrimony of a poor man lies in the strength and dexterity > of his hands; but to hinder him from employing this strength and dexterity > in what manner he thinks proper without injury to his neighbour, is a plain > violation of this most sacred property. It is a manifest encroachment upon > the just liberty both of the workman, and of those who might be disposed to > employ him. As it hinders the one from working at what he thinks proper, so > it hinders the others from employing whom they think proper. To judge > whether he is fit to be employed, may surely be trusted to the discretion > of the employers whose interest it so much concerns. > > Field pointed out that the state could have addressed the pollution > problems with regulations that didn’t involve the grant of a monopoly, such > as requiring slaughterhouses to operate south of New Orleans. > > Even though Field was in the dissent, his opinion would be read by lawyers > and judges across the land, many of whom would find it to be persuasive. > > At the same time, the Progressive movement was beginning, which called for > socialistic economic programs and interventionism in economic activity. > > Thus, in late 1800s America, the battle was being set, a battle that would > rage at all levels of American life the battle between economic liberty > and economic statism. It would constitute the biggest battle in the history > of the U.S. Supreme Court, one that would culminate in 1937 in the case of > *West Coast Hotel vs. Parrish. > > http://fff.org/2013/02/19/the-slaughterhouse-cases/* > > -- > -- > Thanks for being part of "PoliticalForum" at Google Groups. > For options & help see http://groups.google.com/group/PoliticalForum > > * Visit our other community at http://www.PoliticalForum.com/ > * It's active and moderated. Register and vote in our polls. > * Read the latest breaking news, and more. > > --- > You received this message because you are subscribed to the Google Groups > "PoliticalForum" group. > To unsubscribe from this group and stop receiving emails from it, send an > email to [email protected]. > For more options, visit https://groups.google.com/groups/opt_out. > > > -- -- Thanks for being part of "PoliticalForum" at Google Groups. 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