President Ulysses S. Grant won reelection in 1872, but it was getting increasingly difficult to protect freed slaves, blacks and loyal union men in the South: “home rule” had returned to most Southern states and, increasingly, ruling majorities hostile to Republican policies formed in these states. These states were “redeemed,” the Southerners would say. Minor civil conflicts between white mobs and Republican sympathizers erupted over the South; Southern governments were very little interested in suppressing white violence. Grant swung between moments of conciliation with the former rebels and moments of firmness toward their unwillingness to protect civil rights for all citizens. Grant’s firmness was supported by Enforcement Acts passed during his first term. Every act of enforcement could be appealed through the national judiciary, so the Enforcement Acts required both executive firmness and judicial support.
Yet, as public support for Reconstruction waned in the North during the mid-1870s, it also waned in the national judiciary. The first sign of the judiciary’s lack of support came in a closely divided case that was technically unrelated to Reconstruction. Louisiana granted a monopoly to a corporation for the purposes of butchering in New Orleans. Butchers left out of that monopoly were deprived of a chance to earn a living and they sued in federal court, arguing that the monopoly violated their right to pursue a livelihood. That right, they contended, was guaranteed under the 14th amendment, which precluded states from depriving citizens of the privileges and immunities of citizenship. All noted that this was a crucial case, because if these rights could not be secured through national enforcement, many of the rights promised under the civil rights bills could also not to be secured. The Supreme Court justices considering the case also understood the significance of their decision. The Slaughterhouse Cases became the controlling case for defining national citizenship under the 14th amendment to the United States Constitution, though later courts would provide a broader definition under different constitutional provisions.
Source: The Slaughterhouse Cases, 83 U.S. 36 (1872). Available online from Legal Information Institute, Cornell Law School, https://goo.gl/maHDEQ.
Mr. Justice MILLER . . . delivered the opinion of the court.
. . . .This statute is denounced [by the plaintiffs] not only as creating a monopoly and conferring . . . exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens – the whole of the butchers of the city – of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families. . . .
The power here exercised by the legislature of Louisiana is . . . one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details. . . .
The proposition is therefore reduced to these terms: can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State? . . .
The plaintiffs . . . allege that the statute is a violation of the Constitution of the United States in these several particulars:
That it creates an involuntary servitude forbidden by the thirteenth article of amendment;
That it abridges the privileges and immunities of citizens of the United States;
That it denies to the plaintiffs the equal protection of the laws; and,
That it deprives them of their property without due process of law, contrary to the provisions of the first section of the fourteenth article of amendment.
This court is thus called upon for the first time to give construction to [the most recent amendments to the Constitution: the 13th, 14th and 15th Amendments].
We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, of the several States to each other, and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. . . .
. . . No one can fail to be impressed with the one pervading purpose found in [the 13th, 14th, and 15th Amendments] lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. . . .
We do not say that no one else but the Negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. . . . What we do say, and what we wish to be understood, is that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all. . .
The first section of the fourteenth article . . . opens with a definition of citizenship – not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. . . It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. . . .
To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. . . . That its main purpose was to establish the citizenship of the Negro can admit of no doubt. . . .
The next observation is . . . . that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs . . . , speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument . . . in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.
The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.
Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment. . . .
Fortunately, we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823.
“The inquiry,” he says, “is what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.”
. . .Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
All this and more must follow if the proposition of the plaintiffs . . . be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.
The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge until some case involving those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its national character, its Constitution, or its laws.[Among] these is . . . the right of the citizen to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. . . . the right of free access to its seaports . . . . [the right] to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. . . . the right to peaceably assemble and petition for redress of grievances . . . . the right to use the navigable waters of the United States . . . .
In the light of the history of these amendments, and the pervading purpose of them, . . . it is not difficult to give a meaning to this clause [the clause protecting the privileges and immunities of U.S. citizenship]. The existence of laws in the States where the newly emancipated Negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.
If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment. . . .
Mr. Justice FIELD, dissenting.
. . . The question presented is . . . one of the gravest importance not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment, the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it. . . .
The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.
What, then, are the privileges and immunities which are secured against abridgment by State legislation? . . .
. . . The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. . . .
This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but, when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest, and, unless adhered to in the legislation of the country, our government will be a republic only in name. . . .
A. What, according to the Court, were the purposes of the Civil War Amendments (See the 13th Amendment, the Congressional Debates on the 14th Amendment, and the 15th Amendment? What are the “privileges and immunities” of United States citizenship? What rights come with U.S. citizenship? What argument does the Court make for this understanding of U.S. citizenship? Would you characterize it as a broad or a narrow understanding of U.S. citizenship? How does Justice Field’s dissenting opinion differ from the Court’s opinion? What rights does Justice Field think come with U.S. citizenship? What is his reading of these amendments?
B. Would the Supreme Court’s reasoning in the Slaughterhouse Cases support the Civil Rights Bill of 1866? Do the deliberations on the 14th Amendment support the Court’s reading of the 14th Amendment or that of Justice Field?
- Samuel Freeman Miller (1816–1890) served as an Associate Justice of the Supreme Court from 1862 to 1890.
- See Document 4.
- Bushrod Washington (1762–1829) was an Associate justice of the Supreme Court (1798–1829). At that time, Associate Justices presided over Circuit Courts.
- Senator Jacob Howard (R-MI) refers to this opinion in the debates concerning the 14th Amendment, Document 14.
- Associate Justice Stephen Johnson Field (1816–1899) served on the Supreme Court from 1863 to 1897.