Skip to main content

tv   Supreme Court Landmark Case Slaughterhouse Cases  CSPAN  August 4, 2017 3:27am-5:02am EDT

3:27 am
cobb, law school professor. >> it requires raising your sight so you are not just picking off the vulnerable, the low-hanging fruit but going up against the most powerful wrong doers in society and not be worried that you can't take them on or that you might be lose the case. >> and at 11:00 p.m., bloomberg business week senior national correspondent joshua green reports on the 2016 political partnership between the president and his chief strategist in his book "devil's bargain" steve bannon, donald trump and the storming of the presidency. >> i'm sure bannon is frustrated that he has the president he want, republicans have unified control of congress and they seem unable to get anything done at all. the one guy in the administration getting something gun for trump, attorney general sessions, he claims he wants and
3:28 am
bannon i know wants, looks like he is about to be firedoday our landmark cases looks at the series slaughterhouse cases which helped define our leading understanding of the 14th amendment. >> all persons having business before the honorable the supreme court of the united states are admonished to draw near and give their attention. >> landmark cases, c-span's special history series produced in cooperation with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> number 759, earnest petitioner versus arizona. >> row against wade. >> quite often in many of our most famous decisions are ones that the court took that were quite unpopular.
3:29 am
>> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they believe in a rule of law. >> good evening and welcome to c-span and the national constitution center's landmark cases. our 12-part seize that looks at some of the supreme dort's most interesting and impactful historic decisions over the course of our country's history. tonight we are going to be talking about a case you might not know much about but hopeful by the send you'll know why it was on our list. it's called the slaughterhouse cases and it was the first time the supreme court looked at the newly enskaktd -- two tisk guests tonight who are mere to tell you more about the history and importance hf these cases. paul clement who served as slis tore general during the bush 43
3:30 am
administration and he has argued more than 75 cases before the supreme court. paul, welcome. >> thanks. great to be here. >> ross is a legal historian and he is the author of a biography of a justice you'll be hearing about today. it's called juflt of shattered dreams. his home base is at the university of maryland. thank you for coming. >> well, i'm just going to have you make the case to the audience. why do the slaughterhouse cases matter. >> well, this case definitely belongs on any list of great landmark supreme court cases, and the reason that it is, as you suggested, the first opportunity of the supreme court has to interpret the 14th amendment. the and the reason that's so important is that the 14th amendment is what essentially takes the guarantees of the bill of rights eventually and con strains the actions of state governance. and if you think about the bill of rights, first ten amendments to the constitution, all of them by their terms were really designed to restrict the federal
3:31 am
government and what it did to the people and the citizens of the united states. and it's really only at the point that we go through a civil war where people finally realize that it's not just the federal government they have to be concerned about, but the state governments that they have to be concerned about that there is a process of adding the 13th, 14th and 15th amendments. they restrict the states. they're tremendously important and the slaughterhouse case is the very first time the supreme court interprets the 14th amendment. >> mike ross, in your book you said that this decision influenced the course of race relations for a sent century and it continues to shape constitutional law today. make the case. >> well, in the slaughterhouse cases, the key clause or the debate amongst historians and law professors, legal sclorls ever since is the privileges or the immunities clause and that question as to what that meant and whether or not it actually applied the bill of rights to
3:32 am
the states. in the slaughterhouse cases the supreme court goes down the road of saying the privileges -- or immunities clause doesn't do that. and it becomes a long entangled story how your bill of rights rights individually, eventually get incorporated against your state government. this is also an extraordinarily important case because the civil war doesn't end in a peace treaty. there's no signing on a deck of a battle ship like at the end of world war ii. and it takes a long time before congress decides what their terms are going to be to the defeated south for them to regain their place in the union. and many people see the 14th amendment as that peace treaty. agree to these terms and we'll allow you to have a restored place in the union. >> the slaughterhouse cases really are about slaughterhouse and butchers and we're going to learn more. but first we're going to back up and learn more about the 14th amendment itself.
3:33 am
now, if you watched last week we did the dread scott decision and we learned at the end of that program that the 13, 14 and 15 amendments were really a remedy for the decision, the really terrible decision made of the dread scott case. but let's listen to senator patrick leahy of vermont, who is the senior democrat on the senate judiciary committee talking about the 14th amendment and why that was such an important thing for the united states of america. let's listen. >> it's interesting the 14th amendment, it's 150 years now since -- so the second founding, part of the second founding. >> why do you call it that? >> well, with because i think that we had the founding father's in the original congress, but then those series of amendments came threw. it's like the united states became more aware of what they are and more aware of the fact
3:34 am
slavery ending and so on that we had to treat all, all people the same. now, you know and i know, having said that at that time, it took a long, long time, and some places in this country it is still going on. but it was the second founding. it was the second coming of the united states. >> senator lay lee talking about why these three amendments are the real second founding of our country. well, let's look at the text of section one of the 14th amendment just so you understand the legal framework for our discussion tonight. it says all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states and of the state wherein they reside. 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, libt or property
3:35 am
wout due process of law nor deny any -- to any person within its jurisdiction the equal protection of the laws. and you heard our two guests talk about the privileges and immunities clause which is really the heart of the legal challenge in this case. but i'm going to ask you, mike, please to set the stage for the passage of the 14th amendment. objectingousel after dread scott the country fights the civil war. this amendment was passed in 1868 just after the war ended. so tell us how it came to be. >> well, again, when the civil war sends there's no peace treaty. and there's a long debate about what abraham lincoln would have done with reconstruction had he lived, but unfortunately he doesn't and the man that's put in charge is andrew johnson. and andrew johnson allows legislature's to be elected throughout the south immediately after the civil war without giving african-american men the right to vote that fill up with ex-con fed rats and they immediately begin passing laws know as black codes. and the black codes were laws
3:36 am
that applied only to black people and said things like black people can't be after 6 in sun down. it also had even more onerous laws attached to it like each january african americans had to produce a document showing where they were going to work for the coming year, and if they couldn't produce that document as to what plantation they were going to work on, they would be find for vague raens and sentenced to work on a plantation to pay off the fine for the coming year. and the core of the black codes was to restore slavery in form if not in law. and the black codes shocked a lot of people in the north because it seemed like after over 700,000 american dead that the war meant more than that. and when congress finally came back into session the following december, a long struggle goes on with president johnson as to what his vision of reconstruction would be and what
3:37 am
congress's would be. and eventually out of the joint committee of reconstruction comes the 14th amendment, which will be congress's terms to the south. and included in the language you just read are lots of phrases like the equal protection clause that are aimed directly at the black codes. if you're going to have a law that says people can't be in groups after six after sundown, grit, but it has to apply to r with you. you can't have laws that apply specifically to one race. >> what can you tell our audience about the view of reconstruction and these amendments on southerners, the van kwishd southerners who felt as though they were in an occupied land at this point. >> well, sure. you certainly have in the wake of the civil war this situation where you have some annualy freed slaifs, the freed men. you have some people coming down from the north to take advantage of kind of the reopening of the south. but then you also have a number of people who are in the south.
3:38 am
they participated in the civil war on the side of the con fed raes and the last thing they want to see is federal authority being imposed on them from washington, in part because federal authority is designed to protect the annualy freed slaifs. and in part because they've just fought a war where they were trying to vindicate states' rights, and although they lost the war, i don't think their hearts and minds were changed in the process. and so part of what becomes so controversial in the south about 13th, 14th and 15th amendment is it really is this idea of asserting the federal government's will on all sorts of issues that had traditionally been left to the state governments and to the states. >> so mike ross, our story takes place in the reconstructed south of specifically louisiana and the city of new orleans. was new orleans typical of the
3:39 am
south or were there special conditions down there. >> yes. new orleans is a very complex place, but it's the place that everyone is looking to see whether reconstruction can succeed because it has the after cokree ollie community, which is this class of very well educated former free persons of color who had came out of the french and spanish culture. and they are people who can put the lie to con fed rats claims that african americans are too uneducated and too ignorant to serve in office. and in new orleans there is all kinds of item ultimate during this period with various ma lish as in every direction and all kinds of white people who are extraordinarily angry that by 1869, 1870 you have african americans serving on juries, on the police force,
3:40 am
african-american detectives solving high profile kriemts. integrating the new orleans public schools and there are a lot of people that even with the presence of afro kree oels, there are a lot of white people who are extraordinarily unhappy. >> now, we're going to get into our setting the stage for the actual case, and the past couple weeks there were some very big characters. there are two important characters in this particular story tonight, but there are also institutions and groups of people who are part of this scenario. one of those is the butchers benevolent association and various other groups that represent the butchers interest interest. can you tell us a little bit about what they were in new orleans at that time. >> at that time just to sort of the set the stage a little bit, you do have a dynamic where the slaughterhouses at this point are in new orleans proper and there are a number of, you know, butchers who are there, a number of them are from gas can any and
3:41 am
they have this sort of tradition of being involved in this trade. it's part of their identity. and, again, what i think sort of sets the stage for this is the idea that you have the slaughterhouses that are, you know, very near the large population centers in new orleans, and i think, you know, anybody who has read, you know, the jungle knows that slaughterhouses even 50, 60 years later were no picnic. but at the time that we're talking about here, late 1860s, early 1870s, these are an incredible source of pet u reince and are really part of the reason that new orleans has a reputation, not only being as a place that programs reconstruction can really succeed, but also as a reputation where you don't want to be there in the summer because you might not -- you might leave in a pine box. >> the necessity crop house of america some called it. >> well, when they get to court,
3:42 am
when they file suit they higher and i would just like to have a brief biography of him, but they higher as their attorney this person by the name of john campbell, who is john campbell, very briefly? >> john campbell, i often call the evil genius of the 14th amendment. john campbell is a former united states supreme court justice who was in the majority in the dread scott decision, but he's from alabama, and when the civil war breaks out, he resigns to join the con fed raes where he becomes jefferson dave's assistant secretary of war. in that role he says a number of things that do not hoeltd up well in the 2nd 1 century and he's apoe plek particular at the end of the war when robert e. lee are proposing that the ferd's kbr blacks troops. he's completely against it. he is arrested after the lincoln
3:43 am
assassination because they think that he has a part in and he's held in jail for a number of months and he comes out very i am bitter and will make his legal clooefrp in nornls after radical reconstruction begins fighting the reconstruction government, virtually everything he's doing, every case he's litigating is being done to twhart the buy racial rrl reconstruction government of louisiana. and he says things like we have after cans in a place all around us and every day they are bart erg away their duties and positions, and he says anything, even violent insurrection is better than the insanity that seems to prevail. >> we will also be hearing about justice miller. you wrote the book about him. you said in the book that historians have long considered miller one of the court's most important jufts. can you briefly it tell us why. >> one of them is because of the slaughterhouse cases.
3:44 am
has such a tremendous impact on the 14th amendment that anyone who issued that opinion is going to get credit as an important justice. but he's also a force. miller is this kind of big burrly john good man like figure who is the first justice from the transmississippi west who prieds himself on cutting through the bs when lawyers go on and on in the sis otherian or agsz. cam it, get to the point. and one case said what pointed? he said any point, some point. and he -- everyone who dealt with him on the court throughout the guilded age was just a force of nature when he entered the room. >> so because you've been in front of these jufts, i just would like to have you think about this dynamic because here we have by the time it gets to the supreme court, later on in our story we have a former supreme court justice who resigns to fight for the con fed raes to represent the con fed raes arguing before his former
3:45 am
colleagues and here is another dynamic. justice miller who will write the opinion loathes john campbell. >> right. i mean, you know, this is squ that, you know, we haven't seen in the moderner ra but for somebody who leave the are court and then appear in front of the court. obviously the jufts are going to decide these cases and they're going to decide them based on their view of the laws, but you can't help but imagine that the personalities have something to do with it. and i think that when you have somebody arguing the case that one of the jufts has an intense not just personal dislike but political dislike, i think the view of leaving the court to join the con fed raes is something that i think justice miller can't really forgive. so to be hearing this argument from that particular advocate has to change the dynamic as the way that that justice and some of the other jufts are processing the case that they're hearing and the argue ults that they're hearing. >> okay. so time to learn more about what
3:46 am
got this case into litigation. so we're going to visit new orleans and a piece of video and so you think about new orleans in that time period, all the cattle being raised in the midwest and being brought down through the mississippi for slaughter in new orleans. lots of independent butchers who were working there without regulation, and you're going to learn more about the conditions that people were protesting in new orleans that led to the creation of this communal important, the slaughterhouse landing company that the butchers were protesting. let's watch. >> you know, with all the refuse use, all the human waist, all the animal waist, all the dung, the lives, the hearts, with all of that being dumped in the river, it's no wonder that this city was famous as a neck rop list, a city of the dead. by 1860 there would have been at least 84 slaughterhouses, butcher shops and af atars in
3:47 am
this general area. the whole place was just one royal stench, and it was where most of the meat industry that supplied the booming city of new orleans had been centralized and concentrated. over this direction is where the towns's main livestock landing was, and that's where all the livestock were off loaded. they were coming from texas or from are the prayer i didn't see of louisiana, central louisiana. and an estimated 300,000 heads of cattle and pork were dropped off or delivered at those landing at that wharf every year. and there would be a separate group of bull drivers, they were called, and they would stam speed them through town past schools and hospitals to all these butcher shops. and then in this direction one block away was what was called the nuisance wharf. and that's where all the awful,
3:48 am
the end trails, the dung, the lives, the heart were taken and then dumped into the middle of the river. now, the problem was less than two miles down river, and the currents carries everything down river, of course, were the intake pipes for the town's major water works system. and not surprising a lot of those end trails, a lot of that filt, endless filt had collected around those pipes. and of course, the people who lived near here are in the garden district for that matter, which is not that far away were pretty much up in arms and they had been trying -- they were trying for many, many years prior to the enactment of the slaughterhouse case to have these meat industries centralized in one location, preferably down river, either on the west bank or the east bank. and that was the basically the impetus for the enactment of the
3:49 am
slaughterhouse case. >> so before we hear more about it, i'd like to tell you about how you get involved and we hope you will tonight. you can call us with your comments or questions about this case. we'll have our lines divided geographically and we'll go to calls in about ten minutes. if you live in the eastern half of the united states. if you live in the western half of the united states. or you can send us a tweet. that's an easy way to get into the conversation. use the hashtag landmark cases as you're tweeting, and i've got a twitter feed here t.ic follow your comments or questions as they come in. finally, there's a conversation already started on our facebook page, and you can be part of that as well. and some of those questions will make it into our discussion. so we just heard about the did he ploshl conditions. how did it come to be that the citizens sought redress from their legislature for the problem? >> and let me just add one quick thing. when you pumped water in the new orleans water supply you got the glass, there will be all kinds of stuff floating in it, pieces
3:50 am
of entrail. >> lovely. so they really wanted redress from this. >> and they wanted wanted redress since the spanish colonial period. there had been repeated efforts to move the butchers either across the river or down below the city. and it happened again and again. but the butchers are a large group that managed to kind of wees eltheir way back into the city every time, and the gas skin butchers are very tight-knit. they protect their monopoly. they keep other people out of the butchering business and they fight back. and the regulations always failed. and for that reason the butchers for most of new orleans history are not a very well liked group. people want the meat, but they see the butchers as people who often are putting their health in jeopardy. and what happens is is the legislature during reconstruction decides that their strategy to lure people to
3:51 am
the republican party so that the republican party could survive after the removal of federal troops is that they would get done a number of things that new orleans yans had always wanted done, including moving the slaughterhouse out of the city and fixing the levies and doing all of these things and that in the process they might lure particularly moderately minded business men to the republican party who were willing to put racial animosity aside for economic progress. and they really think a lot of people at the slaughterhouse is actually going to be something that the community will rally around and say, hey, you know what? i didn't like this legislature, but they're actually getting good things done. of course, that's not the way it's going to turn out. >> so we're going to next take you to the legislature where this piece of legislation was brought, and it's really an interesting one because it is a legislature in the reconstruction south and particularly louisiana. and there are, of course, racial
3:52 am
politics attached to it. let's watch. >> we're in ran area of the louisiana state museum that exploration radical reconstruction in louisiana. we're looking here at a ballot box from about 1875, and the pox is important not only because it's a unique object, but also balls of what it represents. voting rights in louisiana in reconstruction. after the civil war a new group of people was able to vote for the first time, mainly african americans who changed the composition of the state legislature. what you're looking at here is a poster that shows some of the african americans who were elected into the state legislature during radical reconstruction. the louisiana state legislature that passed the slaughterhouse acted consisted of about one-third annualry ebb acted african americans. one of the interesting things in this picture is oscar dunn. he was the first one of african descent who was elected lut napt
3:53 am
governor as of of a state. he was eventually replaced by pbs pifrmg back who also serchld as lieutenant governor but went on to serve for 35 days as the governor of the louisiana, the first african-american to serve as governor of a state. he served from late december of 18712 until january 1873, about three months later, of course, the supreme court handed down the slaughterhouse verdict. in addition to the fact that the racial composition of the louisiana state legislature changed during reconstruction, reconstruction was also a period when thousands of northerners moved to the south looking for business opportunities. in fact, many of the business men who wanted to establish the slaughterhouse were in fact from the north. what you're looking the here is a carpet bag and the carpet bag is typical of the kind of willing gaj that northerners would have brought with them. the term carpetbagger which referred to covered bags like this was used by many southerners in a prerogative way because they saw norners coming
3:54 am
to the south and exploiting the natural resources and taking advantage of the economic devastation brought on by the civil war. >> so there you have it. the louisiana legislature with african-american members passes the slaughterhouse law, which will require the creation of the slaughterhouse company and the butchers would be required to move and do their work there. that becomes the heart of our case. i'm going to take a caller who is wait lg for us named roblt oh here in washington, d.c. >> caller: one thing i wanted to commend c-span for this wonderful series. i really find it very educational. i have a very simple question to your panel there and that is historically as you know in the 1800s white women were considered citizens of the united states, but they were not allowed to vote. so my question is is the right to vote a privilege of national citizenship? thank you. >> thanks very much. paul clement? >> well, i think that -- gets us a little bit ahead in our story, but the 15th amendment is passed
3:55 am
specifically to deal with the issue of voting. and so voting rights are not conferred by the 14th amendment and they're not conferred to certainly to women just because they're citizens of the united states under the privileges of remun tiz clause and the right to vote is ensliend in the 15th amendment and of course it doesn't extend to women by its terms, and we have to wait until the 19th amendment to the constitution before that's protected. but there is an interesting aspect of the rights of women that's affected by the privileges or immunities clause because one of the cases that follows immediately after the slaughterhouse cases and the supreme court of the united states involves an effort by a woman lawyer in the state of noil illinois to get admitted to the state bar of illinois and her argument was that the ability to be an attorney and practice before the bar was a privilege or immunity of citizen
3:56 am
shim. and the supreme court applying some of the same reengs that it would adopt in the slaughterhouse cases rejected that argument and said that a female attorney did not have the privilege to practice law in this country. >> kay is our next caller. you're on, kay. >> caller: i would like to ask mike ross why so many hf these 14th amendment cases originally in louisiana. >> and my answer would be that, again, new orleans and louisiana are central to the reconstruction story. and you not only have the afro kree oels which are going to make the chance of reconstruction working the best chances in new orleans, but you have 10,000 former slaifs that move into the city of new orleans. and then you have all of these ex-con fed rats because most of the south is destroyed and they
3:57 am
all move to new orleans too, john bell wood, and james long street and they all end up in new orleans and you have this incredibly nult wous place where they have this very proud class of african americans who are going to be in court all the time litigating their new rights, and that's going to lead to the pleksy decision and you have other people just as forcefully trying to deny them. and louisiana is going to have the nooits of the white camellia para military r arm of the democratic party and the crescent city white league and it admits to all of this numt over what's going to happen with reconstruction. the three of the greatest of the 19th century 14th amendment cases emerge. >> next carry is barry in dothan, alabama. you're on. >> caller: this question is for mr. clement. outstanding supreme court lawyer. you said earlier that justice campbell argued in the
3:58 am
slaughterhouse cases, and i may have misunderstood you about how many jufts did that. my recollection is is that four of us argued a case before the supreme court after he stepped down from the court. he represented puerto rico in a case before the supreme court and he may have died right before the decision was handed down. am i correct or wrong? >> you know, i think you may well be correct and i think justice forth tugs is really kind of the last example of somebody stepping down from the court and then not serving as a sort of senior justice, which a number of the jufts, for example, you know, justice oh corner, justice souter, though no longer serve on the supreme court, but they still are article three jurists and they still actually sit from time to time on the courts of appeals. it's been a while since we've
3:59 am
had a justice who not only steps down but actually sort of retires from article three entirely and is even in a position to argue the cases. but i think justice for tus would be the most recent example of that happening. >> if you're new to the c-span call-in sperps and we know a number of you are watching for the first time tonight, here is how you do it. you call in and we don't answer your call until just about time to put you on the air. so keep ringing, and we'll get to your calls in queue as the program nz it. we've got another hour ahead of us with lots to tell you in the slaughterhouse cases. interesting period of time, post civil warrer ra, the reconstruction age in the united states and what life was like in the south, which is where our case centers. in fact, next we're going to return by video to the city of new orleans, because the legal case centers, as we learned, on the creation of the crescent city livestock landing and slaughterhouse company. we're going to learn more about that. >> this is the general area in saint bernard parish where the
4:00 am
crescent city livestock landing and slaughterhouse operations were located. it would go from the lef e. we're standing on the lefee and are the river is behind me. and it would go back it looks like at least a quarter of a mile. two very long city blocks. and there was on this side, on the other side of the man-made lefee that we're standing on, and this side of the lefee is called the ba chur. and you can still see it down here probably some remains of the cattle landing. there was a big cattle landing here where cattle and hogs that were brought down river were unloaded and then were hearded into the slaulgts house. and there were also a rail line too that would bring cattle in or bring the processed skpl pangd meat out. and this is the area where all of the butchers in the city of
4:01 am
new orleans would have had to operate. they would rent stalls, lease stalls. a lot of them were gas consequence. these were french bupers from gas cap any or had ethnic roots in the gas can any area of france. they didn't want to be pushed out. they didn't want to be taken over and centralized. even though the understanding was in the law is that they would have to be offered a stall, a butcher stall at market rates. you couldn't play favorites. but they decided to carry that case fwafrd forward and of course the rest is constitutional history. >> michael mross, when they took the case to the louisiana courts, what was the heart of their case? >> well, the heart of their case initially is working even under the louisiana state constitution to claim that they're being denied equal protection.
4:02 am
but where the case really gets interesting is when john campbell and the other lawyers who were teamed up with campbell get involved, because they see an opportunity in the 14th amendment, an amendment that the ex-con fed rat press of new orleans had held their nose about and said this is an amendment that's going to force federal power upon us. and suddenly they saw an opportunity in the broad language of that amendment, which didn't say anything about the race of who it would apply to, to use an amendment that most people initially hated on the side of the butchers, arguing that they were being denied equal protection, that they were being denied their property without due process. and that they were being denied the privilege for immunity to practice their vocation free from government intrusion by the louisiana legislature. campbell even went as far to
4:03 am
argue that it violated the 13th amendment, that requiring butchers to slaughter in someone else slaughterhouse constituted slavery. it was involuntary serve tud. and you can see campbell kind of laughing his evil laugh as he used this amendment that most people had seen, as most ex-con fed rats had seen this foised upon them now to fight the hated biracial legislature. and even though a lot of people weren't fond of the butchers, now that was all being packaged as a way to @ governor war mot the butchers become local celebrities and all of the people are cheering along as the slaughterhouse lejs laying are going forward and are following day to day like they follow the baseball scores in the columns of the paper. >> here is the irony. the people of new orleans were suffering, had koler aepidemics
4:04 am
because of the work of these butchers and yet they were able to cast them aside because of the legal chal helping. >> it is an irony. but not everybody fit that description. and i do think that this was seen overtime as less about the butchers and more about the fact that you had this passed by thely racial legislature and there was also a sense that the people that were going to benefit from this were african americans and also carpet baggers who were coming down, and they were going to provide some of the financing for the new slaughterhouse across the river. so there was a real point here to turn something that the people of new orleans had been clamoring for for decades and turn it into something that they could be whipped up into actually opposing. >> what happened in the louisiana courts? >> in the louisiana courts, it's a very complex situation.
4:05 am
ae lower level in new orleans, you had seven district courts, four of which held civil cases, and there there were two judges who had grown to be sympathetic to cam bem. one of them judge collins, for example, had attempted early on to be kind of a conservative republican, but he had grown disaffected when african americans demanded that the schools be integrated and that the louisiana constitution include equal access to public accommodations. and he turns and now sides with campbell and the people who are fighting the biracial legislature. so at the lower level you'll have two judges who are going to constantly issue injunction on the side of campbell. stop being the slaughterhouse -- people from having to go to the slaughterhouse, et cetera. but the louisiana supreme court were all died in the wool proopponents of reconstruction, and they would reverse it is injunction. and this goes on and on. and it's not just in the slaughterhouse legislation. it's in the ability to tax, it's
4:06 am
in the projects where they want to build a canal from the mississippi to the gulf of mks co. it's in the lefee repair and it's a rule or ruin strategy where campbell and his allies are trying to discredit this government, claiming that everything is the result of corruption and slow the whole process down, and it works very effectively. ties things up for a number of years. they can't get anything done. finally, what the legislature does is says we can't take this any more and they create a new district court that says this is the only district court that can issue injunction and they put a died in the wool republican judge dibl in that court and from there on in it shuts out the lower level courts. and at that point campbell doesn't care any more because he's moved his whole chain of argument now to the federal courts, using the 14th amendment. and now he can make the same claims in federal court that he had done successfully in state
4:07 am
court until he's twlartdly the creation of the new 8 aert district court. >> let's at that i a call from joe. you're on the air. >> caller: yes. good evening. i would like to thank you all first off for doing a series. it's incredibly wonderful. my question is how did the 14th amendment actually get passed when there were 23 senators excluded from the voting, 22 from the lesson states and one from new jersey when they were back in the part of being the union? >> paul clement, can you take that? you'll defer to mike ross. >> what happens is that the congress makes it a requirement that the state legislature's have to ratify the 14th amendment in order to be readmitted to the union in their -- in order to once again be allowed to have federal representatives in congress. so there is the question could
4:08 am
-- there's always the controversy that the congress that passed the amendments wasn't a fully staffed congress, but i think that's solved by the fact that it is -- you needed a three-quarters vote of the congress, and it didn't specify that all of the states had to be in place for that to happen. >> can you tell us, paul clement, how -- why the supreme court decided to take this case on? how was it -- how did it have standing? it was decided by the louisiana supreme court, so there wasn't a conflict between states. how did it get to the supreme court? >> well, you still had the federal issue in this case and that's how it gets to the supreme court of the united states. and that in a sense is, you know, part of campbell's strategy here, which is frustrated in the louisiana courts where he knows that he's really not going to get the relief that he wants, he understands and if he can provide a federal issue into the case, then he can get to the supreme court of the united states.
4:09 am
and that's where the 13th and 14th amendments come in as, you know, really not just something that works in the sense of this tremendous hoots pa of taking these provisions that were clearly designed to foster reconstruction and to protect african americans and using them as a weapon. you know, these amendments that are designed to be a shield for after cans and americans in the reinstructed south and sus using them as a sword to try to cut down their annually enacted legislation. that's somewhere where he exercises both the hoots pa to do that and also has the insight, and he'd know it, after all, being a former u.s. supreme court justice that these federal cases, these federal claims are his ticket to the supreme court review. >> well, we're going to have to tell people about the supreme court that this case landed in. who was the chief justice at the time? >> the chief justice is more son white. is that correct? >> no. simon -- >> you're right. it's simon chase. i'm sorry. i'm having a meltdown here on live tv.
4:10 am
>> it's okay. we're here to tell help you. >> he doesn't have long to live. and then it's a court that is made up of lincoln and grant appoint tease largely. there's a couple of people left over, nathan clifford from the buchanan administration, but this is a court made up of jufts appointed by lincoln and grant. and you would think that a court made up of jufts appointed by lincoln and grant would all be people sympathetic to reconstruction, and it doesn't turn out to be that way. there's steven j. field and joseph bradley and others had soured on reconstruction and will be a very divided court for that reason. >> i read, and this is a bit of a sidebar, but i read when lincoln made these appointments to the supreme court, he had essentially one litmus test and that was whether or not they were going to support the union, but didn't delve into their positions on other issues. is that correct. >> it's absolutely correct. he's in the midst of a civil war. he's done all kinds of
4:11 am
controversial things from suspended habeas corpus to the block aid, et cetera, and he wants judges that he is convinced will uphold his war powers. and that is the litmus test, and there are issues on economic issues and everything else are secondary. and he appoints mostly republicans, although some republicans had been former democrats, but he even appoints steven j. field who is a unionist democrat because all of the things field had been saying i'm going to be a staunch supporter of your war powers. and he gets what he asks for, the court is add least during the war going to uphold lincoln's positions. and then after the war, as in peace time, some of them are going to turn and declare some of the things that were done, like the legal tender act and the arrest of some people by military tri bun alice as illegal. >> and we have the names of the jufts on the screen, but one of the books i have describes it as a rather undistinguished court.
4:12 am
would you agree with that assessment? >> i would not agree with that. i think when you read the papers of these gentlemen, there's a few below hards, noah swan is a below hard. >> no relation. we have to establish. >> yes. is a sleepy experience, but with miller and field and bradley, you're dealing with jufts of great intellect. i don't always agree with them, but these are serious individuals. >> harold is watching us in omaha. you're on the air. go ahead, please. >> caller: thank you. i don't mean to denigrate the importance of the case, but weren't there also other cities across the country that had the awful problem and time took care of them?
4:13 am
omaha, nebraska, we had awful from slaughterhouses flowing into the united states as recently as 1940, but time that. >> i don't know about the time addressing these problems, but i do know that what they were doing in new orleans was modeled on what other cities had done, most notably, new york, many cities in europe, of having a centralized slaughterhouse. now, some of these were municipal and not put together by private investment, but new orleans didn't have any money during reconstruction, and having private investors build a needed slaughterhouse and giving them a 25-year franchise to charge rents in that slaughterhouse was not enreasonable given the economic situation at the time. but they were modeling it on that, but i don't know what happened if you just had a laz a fair approach where eventually something gives.
4:14 am
i think with many people dying from koler aand yellow fever, not the slaughterhouses were the causes of either of those, but they didn't know that, it was time to act. >> well, and i think, you know, the point i would make is if you just look at this as being a case about the slaughterhouses and the legislative efforts to deal with them, then you might not think that this is that big a deal. but on the other hand, i think with the number of the cases that will be discussed in this series, i mean, you know, you could look at the miranda case just being about a criminal arrest, and there are criminal arrests that happen every day. but what makes these cases so significant is that they go all the way to the supreme court and then the supreme court in the case addresses something that really has profound and lastly significance. and one of the things that i wanted to just share is that this is not lost on the jufts that are deciding this case. so this is not a case that strikes them as a sleeper or just another case about how you deal with awful or some other
4:15 am
sanitation problem. and so justice miller in his own opinion says this, quote, no question so far reaching and pervading in their consequence, so profoundly interesting to the people of this country and so important on their bearing upon the relations of the united states and of the several states to each other and to the citizens of the states and of the united states have been before this court here in the official life of any of its present members. so he's essentially starting out by saying this is the single most important case any of us have heard, any of us have decided. >> marry an is watching in corporation christy, texas. hi. >> caller: how are you doing? >> 80. your question for you. >> caller: my question is directed to professor ross. who is attributed to the well educated african kree ollie community and also to the education of oscar dunn and
4:16 am
pinch back? >> what had happened in new orleans is there weren't -- there were a few public schools in new orleans before the civil war, but the afro kree oels didn't go there. they were educated by catholic private schools. some even sent their children to schools in the north and in paris. but it was all done from a frank oh phone perspective. and i just wanted to get one other point in to the caller two times ago that in omaha perhaps things get solved overtime because it's an efficient place. in new orleans if somebody with power doesn't act, nothing gets done. no phones to new orleans. i lived there ten years. i love you. i've got your back. but if a legislature didn't act, there would still be butchers putting official in the river by the water intake pipes. >> tim is watching in green view, illinois and you're up next, tim. go ahead.
4:17 am
>> caller: yeah. my question is didn't the north have enough -- didn't they have enough butchers or what was the reason for the butchers from the north to go down to arkansas or louisiana? >> to louisiana. money to be made, yes? >> yeah. these were not -- not everyone involved in the crescent city slaughterhouse was a northerner. some were. paul, did you want to -- >> no, no. >> what they were, the folks from the north were investors. they were people with capital. there wasn't any capital in the south after the civil war. the banks were destroyed. the economy was in ruins. and in order to get anything built you needed to bring in northern capital. when they go to rebuild the railroads, they bring in in hen mcown, from delaware. but you needed outside money. the federalists of course will
4:18 am
portray this, and this will get lodged in american memory these were all scoundrels down there. they would use their position to ripoff the south for their own benefit. and when you read the letters of carped baggers, plane of them had an evangelical sense of what they were doing. to take back a backbirds place of slavery and re-create the north and the south images. for doing that, they are called carpet baggers and seen as scoundrels. and there's a couple of scoundrels in the group. this is the guilded age, of course, and corruption is everywhere. but there's many of them who really think they're doing something important and resent
4:19 am
the notion they're just there to get rich. >> joseph in wisconsin, you're on the air. >> what happened to judge campbell? >> well, you're getting ahead of our story. we'll tell you if you continue watching, what happened to judge campbell. let me introduce you to judge campbell's nemesis. he is one of the most distinguished members of the court, as we've established. he also was important to this because he was assigned to write the majority opinion in this case. >> samuel miller moved here about 1850, and built this house for about $13,000 as a wedding present for his wife. samuel miller left kentucky because he did not believe in slavery. iowa was not. in the library files we have an article that references this
4:20 am
when mr. miller was a young man his family owned slaves, and his friend was a slave. and his father actually beat the young child and mr. miller did not like that. so he came here with his family, and he freed his slaves. he actually had some of them working here for them, and he paid them. the historical society believes this is the dining room where samuel miller would have entertained many guests. he took a great interest in state politics. his views helped shape the republican party. here's a copy of an article stating that he went to the republican state convention. they were electing officers, and he was representing the first district. samuel miller had a very successful law firm here. he attracted national attention. and after 12 years of living
4:21 am
here, he was appointed u.s. supreme court justice by abraham-lengthen. he was also the very first apointed justice this side of the mississippi river. >> mike ross, what's important to know about his background and the temperament he brought to the court? >> again, this is a man who married into a slave owning family, owned slaves. in kentucky he was briefly a doctor and wrote his medical school dissertation on cholera and the treatments were bar bear s. but he was the first to recognize it had a connection to water. he hated being a doctor because all his patients died. and then he moves. when kentucky saddles slavery ever more on the state, he says it's time to get out.
4:22 am
and he becomes one of the founders of the republican party. and throughout his career he's going to be a radical republican. not a moderate, but a staunch supporter of lincoln and eventual a staunch supporter of reconstruction. and again he's someone who doesn't like lawyers puffing up a case with a lot of ancient precedents. and campbell's precedence is exactly the type of thing he doesn't like. we all know why those amendments were passed, to protect the freed men. and it was not to protect white butchers in new orleans from a needed health rig laegz. and he's the first justice from western mississippi, that kind of today what we'd call practical midwestern thinking, he prides himself on.
4:23 am
and really at the heart of the case is dismissing what he sees as puffery. >> can you tell us about the state of the supreme court and when this case was heard. when did they meet, for example? >> they met in the old supreme court chamber in the senate. so this is long before they have their own marble palace across the street. so the circumstances of this are a lot more modest than that. but at this point the supreme court arguments are often very well-attended. in this day and age typically the most important supreme court argument is still going to get 30 minutes aside. and when the slaughterhouse cases are argued for the second time, it's a three-day affair. so february 3rd, 4th, and 5th of 1873. so this is something where the justices allowed the lawyers a
4:24 am
lot of airtime to make their cases. he is drawing the court back to long established british precedence. and one of the things i think for a modern lawyer it's a little hard to sort of understand why this complaint about the butchers losing their ability to practice their trade and this company being given a monopoly is even sort of a plausible claim. but campbell to give him credit does go back to these common law british cases. and there's a famous british case that involved the crown giving somebody in britain -- darcy is given a monopoly over the distribution of playing cards in the entirety of england and the only person who can do this. and there's a celebrated legal case. that is monopoly that is
4:25 am
unlawful. he's running right into miller's prejudices because he's relying on these old cases. but he's making the argument that the common law made clear you couldn't have these kind of monopolies. and our privileges and immunities clause of the constitution am. it must incorporate the idea that i have a privilege to practice my trade, and the government can't give that privilege exclusively to someone else. >> so the questions before the legal court, the legal questions -- and again we have to explain the great irony of this this amendment of the constitution was one to address the civil rights of black citizens in the united states after dredd scott and after the civil war. but it was the case of white butchers that was brought. and here's the questions in this case.
4:26 am
first of all, does the louisiana law create an involuntary servitude? does it deny equal protection of the law? does it deprive individuals of their property without due process of law? again, the language of the 14th amendment. and finally, does the law violate the 14th amendment's privileges and immunities clause? those were the questions the courts were asked to consider. this was the slaughterhouse cases because there were a number of them all consolidated into one. who was arguing on the other side? >> well, one of the lead attorneys on the other side was an interesting guy named thomas durant. he was once a slaver owner but then he becomes influenced bayoutopian -- he was in new orleans and had become kind of a radical republican in favor of
4:27 am
black rights. but he is there at the time of the 1866 riot. and this is when they're surrounded by the new orleans police force before reconstruction which is made up of henry's brigade and they break into the hall and start killing everyone in sight. and dure want flees. and he becomes one of the lawyers that argue in the supreme court. and he's one of the key lawyers arguing on behalf -- >> on the state of louisiana, right? >> it's on behalf of the crescent city live stock company. >> and there were also lawyers -- because there were two defendants in the case. injure mia black and matthew carpenter. anything to know about that the. >> matthew carpenter is
4:28 am
knee-deep in the 14th amendment. and he's someone who knows the meaning of the 14th amendment. carpenter would have been there as the sausage was being made. >> you're on with our two guests. >> yes, my question is for either one of the scholars or both of the scholars. and my question is is the plan involve in any way during this case? >> well, in louisiana it wouldn't be the ku klux klan but the knights of the white cumelia, but there's a paramilitary group known as the louisiana legion. and the way they're involved in this case is that this is a full front assault on reconstruction lodged by the democratic party politically, lodged by knights
4:29 am
of the white cumelia and other parts of the clan. they're killing other political leaders. but then there are leaders like campbell and a number of other lawyers who go to court, and combined it is a full-blown massive resistance to reconstruction. >> so you said that the case had to be argued twice. why is that? how does that happen? >> the first time it's argued, one of the justice is effectively indisposed. so you have nine justices but one of them is unavailable. so the court is not in a position to decide this case. and i think they understand -- as i read before, they all had this understanding this was a momentous decision. they only have one chance to
4:30 am
interpret the 14th amendment of the constitution. they slated it for reargument and had this remarkable argument. just to under score what you said, you think about the four issues before the court, it's really the heart of the reconstruction amendment. you have the 13th amendment, and then you have the three principle provisions in section one. you have the due process clause, the equal protection clause, and then you have the privileges or immunities clause. certainly to present-day lawyers you think of the slaughterhouse case as the great case about the privileges and immunities clause, and sort of the way they decided the last case functionally about the privileges and immunities clause. but campbell had it all on the table. he didn't leave anything to chance. it's one of the interesting sort of products of history that justice miller and his decision
4:31 am
really focuses on the privileges or immunities clause, sort of says that the other two haven't been sort of two terribly hardly pressed before the court. and says very little about those clauses. and part of the legacy of the slaughterhouse case it's not just important what it decided about the privileges and immunities clause, it's almost more important for the sort of impetus it gave for subsequent litigants and subsequent justice to breathe greater life in the equal protection clause than the framers of the 14th amendment may have intended. >> david in minnesota, what's your question for us? >> equal protection is based in large part on a classification of people, be it race or something else, is the only argument the butchers were making that their classification were based on being butchers? >> well, i think their equal
4:32 am
protection argument was principly based on the fact that the opportunity to be a butcher should have been open to all. and so it was a classification in a sense, there were certain people that were in, certain people who were out. and i think in that sense it is a classic nonsuspect class, what we call nonsuspect class equal protection clause argument. and that was coupled with a due process argument, which is again what current lawyers would call a substantive due process argument. they weren't arguing somehow you could have this exclusive monopoly of butchers across the river if only you gave a notice and a hearing. they happen basically saying this was not the kind of statute the state could pass at all, that it violated sort of a broader concept of due process. something that i think viewers should stay tuned for in the
4:33 am
lockner case. so all of these arguments are made, but as i say ultimately campbell focuses and certainly justice miller focuses on the privileges and immunities clause. >> you have something you wanted to add. >> no, i was thinking about the privileges and immunities claim. suddenly they've got to go slaughter somewhere else. what that would be the model you -- >> i think that would certainly be consistent with the model, but i think the critical thing and this feeds into his clause at the time they were writing the slourgt house cases. the one thing they weren't arguing was this was only the
4:34 am
black codes. it certainly wasn't something where this was being secured only to whites. i think justice miller, and this is not entirely consistent with the way the supreme court subsequently interprets the equal protection clause, but i think he has in made very much the purpose of the equal protection laws. and it was designed not just to make everybody equal in classification but to suggest you couldn't have things like the black code. >> and he says that's the one pervading purpose of the equal protection clause. >> next is a call from chuck in washington. hi, chuck. >> hello. my question kind of been brought up obliquely in the issue around the carpet baggers. during that period in the american history the civil claims act i believe 20-18 of the u.s. code, came to pass of
4:35 am
the southerners, did that play into the dilemma that was faced in cultural terms and also in terms of the law down there, and did any of it come into play during the supreme court during that time the. >> i'm not sure i understand the question. >> certainly to the extent the question is alluding to the fact that you had not just the carpet baggers coming down there, but you had efforts at the same time to project federal power to protect everyone but particularly the recently freed slaves to being subjected to violence, by others down in the south. i mean that is a part of this period of constitutional history. there's a crook shank case that hopefully we'll get a chance to mention in passing that was involved in application of one of those civil rights statutes, to a situation coming out of louisiana. so those cases also came to the
4:36 am
supreme court at the same time. and if you want to put a slightly broader kind of historical context here, what the supreme court is bresling with during this period is not just this particular case and what to do with the reconstruction amendment. i think they're also dealing with the reality that during the civil war there was an opportunity to extend federal power in ways that the union had never seen before. ask i think reconstruction was an effort to use in the absence of a war a similar scope of power in the united states. and what you start to see in this period is a reaction by the court that the pendulum has to swing back to the states. and there can't be quite this aggressive assertion of federal power. if i can just give you one statistic. in between the beginning of the
4:37 am
constitution in 1789 and 1869 there were a total of four acts of congress that were struck down as unconstitutional. yet between 1870 and 1875 there are six acts of congress down a unconstitutional. so this slaughterhouse case, the crook shank case, all of this can be argued as the supreme court sort of saying the pendulum really has to be swinging back, and we can't have quite this aggressive assertion of federal power. certainly criticerize saying the supreme court has lot their nerve. but i think both sides in a sense can point to the facts of what the court was confronting and how they resolved those cases and support their argument. >> and to tie all our cases together, if marbury, madison hasn't been decided, the courts
4:38 am
wouldn't have called it unconstitutional. >> and i think it's great you brought marbury up. i think a lot of people understand the genius of the marbury decision is chief justice marshall wrote an important decision. if you come out the other way, it's not entirely sure if it would have been enforced. if justice miller puts his vote and there's five votes the other way and they start saying all sorts of common law privileges are enforced by the 14th amendment against the states, then that sets up the federal supreme court as reviewing all sorts of state laws without really any text in the constitution to strike them down. and i think, you know, no one would know what would have happened if the courts decides the slaughterhouse case the other way.
4:39 am
but it would have been a very aggressive assertion of judicial authority for sure. >> and miller says that. he says this will make the supreme court and the federal judiciary the centure for sure. and he loves that. a lot of this is what frightens miller. he's just like what we see what's coming here, and it's coming from campbell. we see he's up to something nefarious. and then they're like this is pandoras box we're not going to open. another lincoln appointee, but a democrat and is aimic for the democratic presidential nomination. but also someone really
4:40 am
throughout his jury prudence an advocate of using natural law principles. >> greg is in washington. hi, greg. >> good evening, thank you very much. this is an interesting program. you had the justice on recently talking about the u.s. supreme court looking at foreign rulings, and since louisiana follows a napoleonic code, i was wondering if that was all impicated in thim implicated in this decision, and how do they in general deal with the code? >> thank you. can you interpret that for the rest of us who aren't lawyers? >> sure. one of the great things about having louisiana in the union is it not only gives us a chance to go to new orleans without a passport, but a also means we have one of the 50 states that is really operating under a
4:41 am
different rule of law, a base rule of law than the other 49 states. the other 49 states in the union are really based on the common law. and there are two great traditions in the law. there's a common law that you trace to england, and then there are the civil code based law that are the norm in most of continental europe and they trace themselves to france and napoleonic codes. and with wouldn't you know it, louisiana is actually a code state and traces its legal tradition back to a completely different tradition. now, that may have made a difference when these cases were being litigated in lauz state courts. but by the time they get to the supreme court, that's really not going to come into play. and what really comes into play if you look at the majority opinion and the dissenting opinion is something that continue tuesday be one of the major themes of judicial review today, which is how much they
4:42 am
look into the what the framers of the 14th amendment were trying to do, and what was their intent. and how much do you look at the plain language that they passed. what campbell arguments and the discepters are saying, equal protection, privileges and immunities, they don't say anything about recently freed slaves. they seem like their generally applicable to all. miller on the other hand is looking at all this and saying these amendments were passed five years ago. these were around then, and i know what they're all about. i know these are about protecting african-americans and not protecting white butchers in new orleans. >> here's just a little bit that we picked out from his majority opinion. it is quite clear then, that
4:43 am
there is a citizenship of the united states and the citizenship of a state which are distinct from another and depend upon different characteristics for circumstances in the individual. well, we have only 15 minutes left, and we need to get onto the next part of our story. so let me ask you what happened to the butchers who lost the case? when was their history after this? >> even the unimty of the butchers are breaking down. they cut a deal with the crescent city livestock where they kind of merj and move down to another city house. and some other butchers are like we didn't agree. and they keep this up, and that's why it's reaching the supreme court. after the case, the battle over slaughterhouses and where the slaughtering should be go on and
4:44 am
on. even after reconstruction collapses and we're back into a legislator controlled largely by white democrats, the slaughterhouse situation continues to be a deeply contested one. >> robert in springfield, new jersey you're on. >> yes. i have two questions. the first one concerns with how when the 14th amendment was originally written, the privileges protecting rights while the equal protection clause was seen as protecting -- rights. so the question has to do why was the equal protection clause being seen just for procedural rights? and my second question has to do with how the supreme court has ruled in protecting rights under the privileges and immunities clause twice and only in 1999
4:45 am
has that one remained on the books. so my next question is can our two guests here perceive any legal issues in the future that could be guaranteed under the privileges or immunities clause? >> that's a semesters worth of answers, and i'm going to let paul handle this. >> so i guess there's a couple of points to be made about this. and one is that i think the privileges and immunities clause were principly designed to protect some substantive rights as you say. i think the due process clause, certainly if it was going to be interpreted with the due process clause of the 5th amendment probably was envisioned as protecting civil rights. and the equal protection rights was involved in classification of deferential treatment. of course deferential treatment is something we're still fighting today.
4:46 am
i think what justice miller does is he says you're misunderstanding this campbell and dissenters. this is not about privileges and immunities, broadly understood all the privileges and immunities that might exist in a common law. if you want those protected, you have to look to your state governments. the only thing that the privileges and immunities clause protects are privileges that are uniquely privileges of u.s. citizenship, national citizenship. and miller does his best. he actually feels like he knows what he's doing, and he knows he's just interpreted the privileges or immunities clause down to nearly nothingness. so he has this pass of opinion where he's a little ashamed of this. they're typically things that are probably already protected
4:47 am
by the provisions of the bill of rights. you have the national privilege to go into congress and have your agreements heard, and that's what the petition probably says. so it's really difficult to identify things that he has preserved. and that's why i think most legal scholars when they look at this decision, you just read the privileges or immunities clause out-of-the constitution of the united states. >> so since this miller decision or the miller -- sorry, lost the word -- miller's argument essentially silenced the 14th amendment and the privilege of immunities clause of it, there are signs today the high court may be ready to reinvigorate the clause. here is a clip of retired justice stevens on the
4:48 am
privileges and immunities clause. we're going to listen and wrap up our discussion here. >> the right of newly arrived citizens to the same privileges and immunities identified by other citizens is plainly identified to the privileges or immunities clause. it expressly equates citizenship with residents and does not tolerate a hirecollecty erarchy subclasses. dprsz passed a statute approving durational requirements -- this court has consistently held the state may not authorize to violate the 14th amendment. citizens of the united states, whether rich or poor, have the right to choose of the state they reside. >> and that was john paul
4:49 am
stevens. when we talk about the legal legacy of this decision, there are a number of legal cases of which it was cited. here are some of them. u.s. v. cruikshank. ples plesy v. ferguson, brown v. board of education. what should we know about the legacy, the long tail of this? you want to start michael ross about its importance and where the debate is about its importance? >> well, i think paul is perfectly situated to answer that question because in mcdonald there were people advocating the slaughterhouse be overturned and there were people that did it. >> i'm happy to turn it over to
4:50 am
you. i think that's an impressive list, but in some ways it's the dog that didn't bark. many scholars really believe its the privileges or immunities clause developed by the framers to incorporate all the bill of rights directly against the state governments. so your first amendment right to free speech, which the supreme court didn't get around to protecting state government action until decades and decades later, that was designed to be extended to state governments by the privileges or immunities clause. that's the argument many, many people have made. so instead of having a citation of only a handful of cases, if the court had gone that route, there would be literally hundreds of cases and 20, 30 cases every year where the court would be applying the privileges or immunities clause of the 14th amendment and not what ultimately happened, which is those same privileges were incorporated against the united
4:51 am
states but they were done through the due process clause. which i think a lot of historians and legal scholars say really september -- to the u.s. constitution. and just foogive you an illustration why that make a difference, one of the thing's that's different from the equal protection clause and the due process clause is the privileges or immunities clause give its privileges to citizens. the equal protection clause and the due process clause protect people. since the first amendment has been incorporated against state governments, then the people protected by that has long been interpreted in a lot of context to include corporations. citizens, on the other hand, was interpreted by the supreme court a long time ago not to include corporation. so these distinctions that legal scholars could actually have legal consequences as to whether
4:52 am
the first amendment to the constitution applies not just to individual speech but to corporate speech when it's being regulated by the states. >> i i think we would be remisin our closing minutes and i would get lots of e-mails tomorrow if we didn't mention there were some radical republicans who helped frame the 14th amendment said some things they meant to suggest they meant for the privileges and immunities clause to include the bill of rights, some people like jacob howard. at the same time, there's evidence that suggests not everyone wanted it to be like that. and had the framers wanted that to be the case, they could have just changed the wording in the 14th amendment and said the first eight amendments now apply to the states. and it would be solved. but instead of them say things about the amendment being protected and some don't.
4:53 am
and law reviews thousands and thousands of page people parsing what the framers of the 14th amendment intended. but there's a lot of people and law professors i think had they read the amendment more clearly. but i want to make sure everyone who's watching written articles on this topic knows we take that debate very seriouslych. >> quick question from you. >> i read mr. ross's book, and justice miller was a pretty mead ocher character. he himself said he was reported to be a pretty reliable republican and he was. we had justice that were appointed that were not legal geniuses. are we making a mistake in judging the supreme court justice of today as if they were all legal geniuses with finely
4:54 am
broad or should we take a look at them as just as a broad result of the political process. >> let me answer the question this way in that there's a lot that can be be said about the slaughterhouse cases. with the 14th amendment you really have a funld ltal shift where the constitution is now protecting individuals against state governments and not just the federal governments. it takes a while because of the slaughterhouse case to get the promise of the 14th amendment. but it really is an essential case to interpreting that. the one thing that couldn't be said about the decision at least at the time was that it was just a product of politics. because it was a 5-4 decision, but you actually had three
4:55 am
republican appointees on both sides. and so i think that actually cautions against interpreting supreme court justices old and new, as just sort of political actors or people who are appointed for a particular purpose and not distinguished scholars. i make my living arguing in front of the justices and i really feel like certainly the current group of justices are real scholars are really looking to decide the legal issues in the cases. and i think that's pointed out in the slaughterhouse case as well. i'll let the professor give a full rebuttal to defend justice miller. but it is a scholarly and well-written opinion. it has been criticized bitterly by scholars. but i also think that it's a decision that really applied the traditional tools of at least looking at the intent behind the
4:56 am
led legislator, which is something we're still look at today. >> in 1884 he was even hopeful if the presidency. jow write he's been long considered by historians as one of the key figures. does he deserve that legacy. >> he doesn't deserve it, but buzz the slaughterhouse cases does not apply the bill of rights against the states when it collapses and white supremacy is restored, african-americans could have turned to the privileges or immunities clause and their bill of rights rights to fight jim crow legislation. and where you look at where that doesn't happen, it's a slaughterhouse case. but when you read it and full of brimming language of the need to protect african-american rights, you know that was not what was intended. >> we have a lot of callers
4:57 am
asked about what happened to john campbell. >> john campbell suffers a serious accident in new orleans that makes it very hard for him to travel, but he wants to continue arguing before the court so he moves to baltimore. and there continues his legal practice. and after arguing a few more cases in front of the court that are anti-reconstruction, he passes. >> we have a viewer on twitter that asked us please tell us again where to purchase the book on landmark cases. i'm looking but can't find it. we have a small book that cost $8.95 on our website. if you go to c-span.org/landmarkcases, we'll get it out to you. he did a summery of each of the 12 cases, and it will help if you're going to follow along with us on the background of our series.
4:58 am
gentleman, we are just about out of time. just as a quick summery, why should someone care about the landmark case? >> the same reason they should care about reconstruction. one of the areas americans have a blank spot, but an area that really defines the meaning of the civil war. >> and you would say? >> i would say that i counted six of the cases that are left in the series that are major constitutional cases that involve not action by the federal government but by action of the state governments. the reason those are constitutional questions, the reason that when the state government does something to you that you don't like you can take it all the way to the united states supreme court is the 14th amendment. and it's the very fact that
4:59 am
cruikshank was one of those. >> we'll see you next week.
5:00 am
cruikshank. landmark cases returns live next february on c-span. join us to hear more stories of the people who sparked groundbreaking cases and the justices and lawyers who were key to the supreme court's review. tomorrow night, another episode of our landmark cases original series. we'll common the 1905 supreme court case lockner v. new york which permitted labor and economic regulations. it's part of a special friday night edition of american history tv beginning at 8:00 eastern here on c-span 3. c-span's washington journal live every day with news and policy issues that impact you. coming up friday morning an author talks about his new book, the big lie, exposing the nazi
5:01 am
roots of the american left. and then the executive director of the racial justice organization, color of change, joins us to discuss the trump administration's approach to civil rights issues. and its recent announcement it will challenge affirmative action in college admission. and the announcement by attorney general jeff sessions regarding stepped up efforts on leaked investigations. be sure to watch c-span's washington journal friday morning. join the discussion. you're watching american history tv. 48 hours of programming on american history every on c-span 3. follow us on twitter @cspan history for latest on our schedule to keep up with history news. next on american history tv author and legal professor talks
5:02 am
about the supreme court clother house cases. the supreme court up held a monopoly of slaughterhouses in new orleans in order to protect health. they were the first cases in which they commented on the meaning of the 14th amendment. the supreme court historical society hosted this hourlong program. >> good evening, everyone. my name is jim o'hara, and i'm chairman of the supreme court historical society's library committee and a member of the society's board of trusties. it is my pleasant task to welcome all of you here this evening. this is the fourth and final lecture of the

37 Views

info Stream Only

Uploaded by TV Archive on