The dissent everyone knows was right

In Dissent is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Ursula Newell-Davis desperately needed the Supreme Court to take her case. For two decades, she’d worked as a social worker in Louisiana. But when she tried to open a small respite care business – giving parents of special needs children a few hours of relief – state officials told her she wasn’t “needed.” Under Louisiana law, if four bureaucrats think there are enough respite providers, they can turn down an application no matter how qualified the would-be entrepreneur. Ursula was more than qualified; she was a mother of a special needs child herself. But officials decided New Orleans already had enough caregivers and refused to let her even apply for a license.

Ursula sued, arguing that Louisiana was violating the privilege or immunities clause of the 14th Amendment, which declares that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The right to pursue a lawful occupation free of arbitrary government barriers, she said, was one of those privileges. But about 150 years earlier, a different group of Louisianans had made a similar claim – and the Supreme Court effectively wrote the clause out of the Constitution.

In The Slaughter-House Cases, the majority ruled that this clause prohibits states from infringing only a narrow set of “federal” rights, like access to seaports, instead of basic freedoms like those protected by the Bill of Rights or at common law. The case birthed one of the great dissents: a powerful protest by Justice Stephen Field, who bellowed that the court had turned the amendment’s important promise of liberty into “a vain and idle enactment, which accomplished nothing.” Nearly every scholar to have studied the question now agrees.

I. The smell of monopoly

In the years after the Civil War, New Orleans smelled like death. Dozens of slaughterhouses lined the Mississippi River, and the butchers used local streams and ponds as a dumping ground for carcasses and entrails. Just downstream, intake pipes took the contaminated waters to city residents to drink. The Big Easy soon became the center of yellow fever and cholera epidemics – a “Necropolis,” as some called it – and officials began to contemplate reform.

In 1869, the Louisiana Legislature took action. But rather than passing health or safety regulations that applied to everyone, it created a corporation – the Crescent City Live-Stock Landing and Slaughter-House Company – and gave it a 25-year monopoly over all slaughtering in greater New Orleans. This meant that every butcher in the area now had to use Crescent City’s facilities and pay for the privilege.

To the hundreds of independent butchers whose livelihoods had just been handed over to a state-sponsored monopoly, the move reeked of insider dealing and corruption. The owners of the Crescent City monopoly weren’t butchers themselves, but politically connected businessmen who by some accounts had bribed the Louisiana Legislature. So the butchers sued, bringing more than 200 lawsuits aimed at restoring their freedom to earn a living. The cases were ultimately consolidated under the name The Slaughter-House Cases.

One group of butchers was represented by John Campbell, a former U.S. Supreme Court justice who resigned during the Civil War to join the Confederacy. After the war, he was briefly arrested on suspicion of playing a role in President Abraham Lincoln’s assassination. And he later made his career undoing Reconstruction as a lawyer in New Orleans. But in representing the butchers, he found himself defending the very Reconstruction Amendments he had opposed.

Campbell argued that the rights of his clients were protected under the privileges or immunities clause of the 14th Amendment. And what were their “privileges or immunities”? Campbell pointed to the famous case of Corfield v. Coryell, decided in 1823, which interpreted a similar “privileges and immunities” clause in another part of the Constitution.

Corfield said that the phrase included “the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” That right had been protected by English courts as far back as 1602 and played a central role in the American Revolution. And it had again been highlighted in the Civil Rights Act of 1866, and, two years later, in the 14th Amendment. John Bingham, the principal drafter of Section 1 of the Amendment, explicitly said during the ratification debates that it protected the right “to work and enjoy the product of [one’s] toil.”

The Louisiana Supreme Court ruled against the butchers, however. So Campbell appealed to the Supreme Court, where he would argue in front of some of the same justices who used to be his colleagues.

II. The majority

Sitting on the bench was Campbell’s nemesis, Justice Samuel Miller. A physician turned lawyer, Miller had married into a slave-owning family in Kentucky, but he eventually freed his slaves, moved out of the state, and became an avid Republican. He never forgave Campbell for abandoning the Supreme Court for the Confederacy. And he never forgot his roots in medicine. He had been among the first to recognize a connection between cholera and water, but left the profession when he became tired of seeing so many patients die.

On April 14, 1873, Miller announced the majority opinion ruling against Campbell and his clients and upholding the monopoly. He argued that the privileges or immunities clause protected only a small set of rights of national citizenship – things like access to the seat of government, the right to protection when traveling abroad, and the right to use navigable waters. It did not, he said, cover broader, unstated rights like the right to earn a living.

Otherwise, he wrote, the amendment would have “radically change[d] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.” And it would have forced federal courts to become “a perpetual censor upon all legislation of the States … with authority to nullify such [laws] as it did not approve.” He considered that outcome unimaginable.

Field, Chief Justice Salmon P. Chase, and Justices Joseph Bradley and Noah Swayne saw things differently. As constitutional scholar Akhil Amar has observed, so does almost everyone else. Even if they don’t agree on exactly what rights the privileges or immunities clause protects, “[v]irtually no serious modern scholar—left, right, or center—thinks [Slaughter-House] is a plausible reading” of it.

III. The dissent

Four justices dissented, writing three separate opinions (Chase was too ill to write one of his own). But Field’s opinion especially stands out. It’s as colorful as his biography.

When Field joined the bench, he brought the gold dust of California and the grudges of a lifetime with him. Born in Connecticut in 1816, he was the brother of Cyrus Field, the businessman who laid the transatlantic telegraph cable; David Dudley Field, the influential legal reformer (who even argued before Field at the Supreme Court); and Henry Martyn Field, a prominent clergyman and travel author.

Stephen and David practiced law together in New York until Stephen left for San Francisco during the Gold Rush in 1849. His first job in California was as an “alcade” – a combination of mayor and judge under Mexican law, which California still followed at the time. As alcade, he administered his own brand of frontier justice. There were no jails, so he would sentence offenders to public whippings, which he said both saved them from lynchings and scared them out of town. He pioneered the local justice system, setting up a system for recording deeds and impaneling juries. And he was said to have commissioned a custom coat with big enough pockets to conceal pistols for shooting his enemies.

In 1850, a rival judge, William Turner, disbarred Field for contempt (Field’s account of the episode is characteristically colorful), forcing him to argue at the California Supreme Court that he had a right to earn a living in a lawful profession. He won and eventually rose to state legislator. Field said he was motivated to enter politics, in part, to reform the judiciary – that is, to get rid of Turner – and he almost did, but the impeachment vote was postponed indefinitely in the House. In 1857, he was elected to the California Supreme Court, of which he became chief justice in 1859. Four years later, President Abraham Lincoln appointed Field to the United States Supreme Court – the first justice from the far West.

Field survived an ostensible assassination attempt in 1889, when he was attacked on circuit duty in California by yet another a judge with a grudge. His bodyguard, a U.S. Marshal, shot the assailant dead after believing him to reach for a knife (resulting in a lawsuit that would eventually become Supreme Court precedent). Field would go on to serve another eight years after surviving the attempt, resisting his colleague’s pleas to retire based on his declining mental state. He stayed until he surpassed former Chief Justice John Marshall’s record of 34 years and is the second-longest-serving justice after William O. Douglas.

Although Field wrote 544 opinions for the court – more than anyone before him other than his colleague, Samuel Miller – he left his deepest mark in dissent. In Slaughter-House, he thundered that the majority got the 14th Amendment exactly backward.

Field agreed with the majority that states can pass health and safety regulations, but they cannot, he argued, use public health as a “pretence” to “encroach upon any of the just rights of the citizen.” Here, the government’s safety rationale was a mask for economic favoritism, and if permitted to establish this quarter-century monopoly for slaughterhouses, it could equally grant a monopoly over any kind of business to a single individual in perpetuity, thereby eviscerating economic freedom.

Miller had considered it unacceptably radical to say that the privileges or immunities clause had altered the federal-state balance. But Field thought that was exactly what the amendment was intended to do. It upended the status quo by making clear that a state citizen is “a citizen of the United States residing in [a particular] State,” and the “fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State.” These rights obviously included the right to “pursue a lawful employment in a lawful manner,” which dated back to common law.

If the majority’s reading were correct, he continued, then “no new constitutional provision was required,” since the supremacy clause already preempted states from interfering with basic federal rights. “But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.” And, indeed, that was exactly the point. There is only a free government, “in the American sense of the term,” he said, when “the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.”

Given his brothers’ entrepreneurial endeavors, his pioneering experience in the West, and his fight to restore his own right to earn a living in court, it’s unsurprising that Field was deeply concerned with property rights and economic liberty. And his long tenure gave him ample opportunity to rail against government encroachments, even apart from his dissent in Slaughter-House. He was a frontier lawyer turned Reconstruction Supreme Court justice, armed with a revolver and a pen, convinced that the 14th Amendment should have changed everything – and angry that, at least in Slaughter-House, it didn’t.

IV. The aftermath

The court eventually did find a way to recognize certain unstated rights and incorporate the Bill of Rights and other constitutional liberties against the states: through the 14th Amendment’s due process clause. That might have been an adequate substitute had not the court invented “tiers of scrutiny,” which effectively means that different rights get different levels of judicial protection. Economic freedom and property rights have been relegated to the lowest level of judicial protection. Thus, when Ursula Newell-Davis alleged that Louisiana had deprived her of the right to start a care business without adequate reason, the lower courts looked the other way.

Ursula is one of many Americans who have asked the Supreme Court to follow Field and reverse Slaughter-House. In 2010 in McDonald v. City of Chicago, for example, the challengers argued that the right to possess a firearm under the Second Amendment should be viewed as a privilege or immunity that the 14th Amendment protects. As attorney Alan Gura argued before the justices, “The Civil War was not fought because States were attacking people on the high seas or blocking access to the Bureau of Engraving and Printing,” but instead to protect fundamental rights. Yet the court chose to use the due process clause instead.

Eight years later, the challenger in Timbs v. Indiana, argued that the excessive fines clause of the Eighth amendment should similarly be applied to the states via the privileges or immunities clause. But the court again chose to use the due process clause instead.

And when Ursula asked the justices to intervene in 2023, they refused to hear her case at all. 

At least some justices have signaled their willingness to revisit Slaughter-House. Justice Clarence Thomas wrote concurring opinions in both McDonald and Timbs, and Justice Neil Gorsuch also wrote a concurring opinion in the latter, suggesting that the court ought to undo its 150-year error. According to Justice Thomas, returning to the original meaning of the privileges or immunities clause “would allow [the Supreme] Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than” under the due process clause.

Field never abandoned his effort to get his colleagues to rethink The Slaughter-House Cases and to protect the right to earn a living. In the 1889 case of Dent v. West Virginia, he described “the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose” as “a distinguishing feature of our republican institutions. Here, all vocations are open to everyone on like conditions.” But The Slaughter-House Cases set the stage for 150 years (and counting) of doctrinal wreckage in which one of the 14th Amendment’s most promising phrases was left all but dead. Perhaps as the growing body of scholarship continues to prove Field right, the court will eventually choose to correct its mistake.

Disclosure: Please note that the author represented Ursula Newell-Davis pro bono in her constitutional challenge to Louisiana’s respite-care laws.