P.S.: I am almost finished reading Professor D.T. Armentano's "*Anti-Trust Policy, The Case For Repeal*". As I surmised, Dr. Armentano is very persuasive, and brings forth facts and data that I wasn't aware of.
On Sat, Feb 23, 2013 at 1:44 PM, Keith In Tampa <[email protected]>wrote: > 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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