Overruled Read online

  That tremendous fact of self-ownership, and the shattering repercussions that followed from it, would transform American law during the course of the nineteenth century, first by undermining the legal and moral foundations of the slave system, and then by inspiring a new constitutional order to replace it. The centerpiece of that new order was the Fourteenth Amendment to the U.S. Constitution. Drafted by the Radical Republicans of the thirty-ninth Congress in 1866 and ratified by the states in 1868, it declares: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” According to the author of those words, antislavery Republican Congressman John Bingham of Ohio, among the liberties now under protection from state abuse was “the right to work in an honest calling and contribute by your toil in some sort to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”4 In other words, Bingham had sought to enshrine the free labor philosophy of Frederick Douglass within the text of the Constitution. As a corollary, the federal courts would now be empowered to protect such rights from the grasp of predatory state officials.

  Yet in 1873, just five years after the Fourteenth Amendment went into effect, a bare majority of the U.S. Supreme Court voted to strip it of that meaning in one of the most consequential rulings in American history, a decision known as The Slaughter-House Cases. At issue was an act of the Louisiana legislature granting a private corporation the lucrative authority to operate an exclusive central slaughterhouse for the city of New Orleans for a period of twenty-five years. Although framed as a public health measure, the monopoly law had every appearance of corruption and special-interest favoritism, particularly in the eyes of the hundreds of local butchers whose economic livelihoods were suddenly at risk. It was “an odious and burdensome monopoly . . . against common right and the common interest,”5 argued the lawyers for the Butchers Benevolent Association, the group whose legal challenge helped spark the case. They had good reason to suspect foul play. As the historian Charles Lofgren would later observe, “legislative bribery had greased passage of the law, with its most immediate beneficiaries—the seventeen participants in the corporation it established—adroitly distributing shares of stock and cash.”6

  The Supreme Court, however, adopted a posture of judicial deference toward the state legislature and its corporate beneficiaries, holding that the new Fourteenth Amendment offered virtually no protection for individual rights against state authority. Government officials remained free to control economic affairs as they saw fit. “The power here exercised” by the state of Louisiana, observed the majority opinion of Justice Samuel F. Miller, “has been, up to the present period in the constitutional history of this country, always conceded to belong to the States.”7 To rule otherwise, Miller asserted, would “fetter and degrade the State governments” by denying them their traditional powers. Furthermore, Miller wrote, the Supreme Court had no business acting as “a perpetual censor upon all legislation of the States.”8 (Twentieth-century conservatives would later employ a similar argument when condemning the Court’s rulings against state restrictions on abortion.)

  Among the minority of justices who took a dissenting view in Slaughter-House was Lincoln appointee Stephen Field. As Justice Field saw it, the protection of free labor principles from the rapacious actions of state lawmakers was the central issue in The Slaughter-House Cases. The majority opinion of the Court, he believed, had turned the Fourteenth Amendment completely on its head. If a constitutional right was under attack by a state legislature, Field maintained, then the Supreme Court was duty-bound by the new amendment to strike down the offending statute. Judicial restraint was no excuse for judicial surrender. As for the slaughterhouse monopoly before him, Field had little doubt that it deserved a fatal blow from the bench. “It is to me a matter of profound regret that [the monopoly’s] validity is recognized by a majority of this court,” he wrote in his Slaughter-House dissent, “for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.”9 According to Field, “the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the states which adopted it.”10

  More than 140 years have now passed since the Supreme Court issued its Slaughter-House ruling, yet the central issues of the case remain as hotly disputed as ever. Should the courts defer to legislative majorities and allow contested regulations to stand? Or does the Constitution require judicial action in defense of individual liberty, forcing the courts to overrule democratically enacted laws? Those questions have cropped up in almost every major Fourteenth Amendment case since 1873, from the conflict over state regulation of business to the showdown over state controls on abortion. Indeed, it’s no exaggeration to say that Slaughter-House lies at the very heart of America’s long-running dispute over the scope of the Fourteenth Amendment and the reach of state power, perhaps the most litigated area in all of constitutional law.

  To understand today’s debate over judicial restraint and the role of the courts, we must first understand the origins of that debate in the bloody age of slavery, the Civil War, and Reconstruction.

  “Liberty and Free Competition”

  The idea of free labor has deep roots in Anglo-American history. In 1614, Britain’s highest judicial officer, Sir Edward Coke, laid out the basic formulation in the case of Allen v. Tooley. At issue was a lawsuit filed against an upholsterer who failed to complete an apprenticeship with the local guild before going into business on his own. In mercantilist England, such guilds typically enjoyed broad control over their respective fields. Yet according to Coke, under both the Magna Carta and the common law, “it was lawful for any man to use any trade thereby to maintain himself and his family.”11 The upholsterer won. Later that year, in The Case of the Tailors of Ipswich, Coke deployed the same free labor principles against a royally chartered guild that sought to prevent non-members from working as tailors. “At the Common Law,” he declared, “no man could be prohibited from working in any lawful Trade, for the Law doth abhor idleness, the mother of all evil.”12

  Adam Smith would make the same basic point a century and a half later in The Wealth of Nations, one of the most influential economic treatises of its day in both Britain and America. “The patrimony of the poor man lies in the strength and dexterity of his own hands,” Smith wrote. “To hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property.”13

  James Madison, the primary architect of the U.S. Constitution, agreed with Coke and Smith. “That is not a just government, nor is property secure under it,” Madison wrote, “where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”14 President Thomas Jefferson made a similar claim in his first inaugural address, describing “the sum of good government” as a legal order that “shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”15 Of course, Madison and Jefferson were not themselves entirely scrupulous on this point, as the many slaves forced to labor on their respective Virginia plantations might have told you. It would fall to the antislavery activists of the nineteenth century to correct these and other shortcomings of the founding generation.

  Those activists had their work cut out for them. By the middle of the nineteenth century, the peculiar institution was deeply embedded in American political and economic life. But despite the daunting task before it, t
he antislavery movement proceeded to make its case, arguing not only against the evils of human bondage, but in favor of a superior system to replace it: the system of free labor. Those arguments would build directly on the intellectual foundation first established by thinkers such as Coke, Smith, and Madison. The “ever-present motive power” of slavery, announced Massachusetts Senator Charles Sumner, one of the slave system’s most persistent foes, was “simply to compel the labor of fellow-men without wages,” by “excluding them from that property in their own earnings, which the law of nature allow, and civilization secures. . . . It is robbery and petty larceny, under the garb of law.”16 The abolitionist William Goodell struck a similar note. “Honest labor is despised at the south,” he wrote. “The idlers of the south, live upon the unrequited toil of the laborer.”17 “All these distinctions may be resolved into this fundamental difference,” declared the National Era, a leading abolitionist publication. “The free working man owns himself; the slave is owned by another.”18 As the legal scholar William E. Forbath later observed, “It was the abolitionists who first lent moral sanction and rhetorical energy to the notion that the northern worker’s freedom rested simply in self-ownership and the right to sell his own labor.”19

  Slavery’s defenders also recognized the potency of these free labor principles and correctly saw them as a threat to their way of life. To the pro-slavery politician John C. Calhoun of South Carolina, for instance, the idea of a universal right to life, liberty, and property was both dangerous and preposterous, a point of view that led Calhoun not only to denounce the abolitionists, but also to attack the celebrated words of the Declaration of Independence. Jefferson’s notion that all men are created equal and endowed at birth with certain unalienable rights was “the most dangerous of all political errors,”20 Calhoun claimed. “For a long time it lay dormant; but in the process of time it began to germinate, and produce its poisonous fruits.”21 Those “poisonous fruits” included the existence of an organized abolitionist movement that had the nerve to take the Declaration of Independence at its word.

  The pro-slavery writer George Fitzhugh went even further than Calhoun, arguing that slavery was superior to “liberty and free competition”22 in all respects. The condition of free labor in an unfettered market, Fitzhugh maintained, was “worse than slavery”23 because the forces of capitalism routinely exploited the poor and the working class, and left them struggling to make ends meet. “Slavery relieves our slaves of these cares altogether,” he bragged in his 1854 bestseller Sociology for the South, or The Failure of Free Society. “Slavery is a form, and the very best form, of socialism.”24 As for the notion that “individuals and peoples prosper most when governed least,”25 Fitzhugh proclaimed it to be a lie: “It has been justly observed that under this system the rich are continually growing richer and the poor poorer.”26 In fact, he declared, far from making the world a better place, “the love of personal liberty and freedom from all restraint, are distinguishing traits of wild men and wild beasts.”27 As the historian Eugene Genovese later explained, “Fitzhugh understood that the South was the battleground for two irreconcilable forces,”28 slavery and free labor.

  George Fitzhugh and Frederick Douglass disagreed about many things, but on this point they were in rare harmony. The slave system was incompatible with the disruptive and individualizing forces unleashed by the principles of free labor, and both men knew it. But where Fitzhugh’s defense of slavery led him to praise socialism and assail the free-market ideas of John Locke and Adam Smith, which he denounced as amounting to “every man for himself, and Devil take the hindmost,”29 Douglass’s writings and speeches were steeped in the classical liberal tradition Fitzhugh spurned. Evoking Locke’s famous description of private property emerging from man mixing his labor with the natural world, for instance, Douglass pointed to black Americans “plowing, planting and reaping, using all kinds of mechanical tools, erecting houses . . . engaged in all manner of enterprises common to other men,”30 as proof that they too deserved the full range of natural rights. “Would you have me argue that man is entitled to liberty? That he is the rightful owner of his own body?” Douglass asked. “There is not a man beneath the canopy of heaven that does not know that slavery is wrong for him.”31 As for the alleged shortcomings of capitalism, Douglass was prepared to test his luck in the free market. “Give the Negro fair play,” he declared, “and let him alone.”32

  “An Abolition War”

  Those free labor principles found a temporary political home with the formation of the new Republican Party, founded by antislavery activists in 1854. As one leading party member declared in a speech on behalf of Abraham Lincoln’s 1860 presidential campaign, “The Republicans stand before the country, not only as the anti-slavery party, but emphatically as the party of free labor.”33

  The Grand Old Party arrived on the scene at a precipitous moment in American history. By 1854 the controversy over slavery had become the single greatest issue in American life—and the disagreements it provoked did not always involve mere words alone. Eleven years before Frederick Douglass wrote to his old master, a pro-slavery mob in Alton, Illinois, had murdered Elijah Lovejoy, publisher of the antislavery Observer, killing him while he defended his printing press from destruction. On a moonlit night in May 1856, the radical abolitionist John Brown, along with seven other men, including four of his sons, dragged five pro-slavery settlers from their homes near Pottawatomie Creek, Kansas, and executed them by blade and bullet. “Death for death,”34 John Brown Jr. later explained. At the same time in many northern cities, abolitionist vigilance committees were forming to harass and oppose the slave catchers—“man stealers” they called them—unleashed by the Fugitive Slave Act of 1850, which stripped suspected runaways (which is to say any black person who fell under any suspicion at any time) of virtually all legal protections, including the right to testify on their own behalf and the right to invoke the writ of habeas corpus. To stack the deck even further in favor of slavery, when a suspected fugitive was brought before a government commissioner under the fugitive slave law, the commissioner earned $10 for every individual “returned” to bondage and $5 for every suspect that was set free. The Supreme Court, meanwhile, in its notorious 1857 ruling against the slave Dred Scott, had set off a national firestorm by declaring that blacks could never be citizens of the United States and that under the principles of the American founding the black man “had no rights which the white man was bound to respect.”35 In sum, the nation was tottering on the brink of civil war. Shortly after Lincoln’s election in 1860 and the resulting secession of seven slaveholding states, that war finally came.

  For the abolitionists, there was little doubt about what the war’s outbreak meant for their cause: The destruction of slavery must become an explicit aim of the U.S. government. As Frederick Douglass put it, “no war but an Abolition war; no peace but an Abolition peace.”36 With the surrender of Confederate General Robert E. Lee at Appomattox Courthouse on April 9, 1865, and the ratification of the Thirteenth Amendment abolishing slavery later that same year, Douglass and his allies appeared to have succeeded on both counts. Unfortunately, that appearance would prove tragically deceptive.

  “They Do Not Know Whether They Are Free or Not”

  In the aftermath of the Civil War, the governments of the former Confederate states quickly moved to restore slavery in practice, if not in name, by systematically eliminating or curtailing every possible avenue the freedmen might pursue in the hopes of improving their lives or securing their rights. Known as the “Black Codes,” these laws and regulations targeted everything from the freedmen’s right to self-defense to their ability to seek paying work outside of the plantation system. Mississippi set the pace in the spring of 1865 when a state convention instructed the legislature to enact new laws to guard “against any evils that may arise from their sudden emancipation.”37 Alabama and Georgia soon passed similar resolutions. With the arrival of the Black Co
des, it became clear what sort of “evils” those lawmakers intended to guard against.

  “Every freedman, free negro, and mulatto,” declared the Mississippi Black Code, was required to provide written evidence every January of a “lawful home or employment,”38 or else face the charge of vagrancy, which in turn allowed the state to sentence them to long terms of forced labor, often on the plantations of their former masters. Florida’s law “in relation to Contracts of Persons of Color” placed similar controls on black economic mobility, including by criminalizing “willful disobedience of orders, wanton impudence, or disrespect to his employer or his authorized agent, failure to perform the work assigned to him, idleness, or abandonment of the premises,”39 also punishable by forced labor. Unlike the free labor system of the North, where an absent or impudent worker risked getting fired and having to find a new job, the Black Codes basically re-shackled the former slaves to their former masters, using criminal punishment enforced by state officials to keep the plantation system running as before.

  Freedmen seeking economic independence faced no shortage of government-sponsored treacheries. Under South Carolina’s Black Code, for example, blacks intending to work as artisans or mechanics had to pay an annual licensing fee of $10, a sum that did not come easily to most former slaves; those who wanted to work as shopkeepers or peddlers had to pay $100 annually and also persuade a white district judge of their “skill and fitness.”40 In North Carolina, if at least one party to the sale of an animal or good worth more than $10 happened to be black, a white person was legally required to witness the sale, making economic transactions impossible for the freedmen in certain locales.