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tv   Supreme Court Landmark Case Slaughterhouse Cases  CSPAN  October 19, 2015 9:00pm-10:31pm EDT

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then the discussion on how to counter threats of violent extremism against military personnel. later, developing a framework between the u.s. and mexico on security. all persons having business before the honorable, the supreme court of the united states, admonish 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 between 12 historic supreme court decisions. >> number 759. ernest miranda, petitioner versus arizona. >> arguments, number 18. >> quite often, in many of our
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most famous decisions, are ones the court took that were quite unpopular. >> this decision changed our lives. >> let's go through a few cases that illustrate dramatically and visually what it means to live in a society of 310 million different people who help 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 series that looks at the supreme court's most interesting and impactful, historic decisions over the course of our country's history. tonight, we're going to be talking about a case you might not know much about. it's called the slaughterhouse cases. it was the first time that the supreme court reviewed the newly enacted 14th amendment to the constitution. let me introduce you to our terrific guests tonight, here to tell you more about the history and importance of this case.
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paul clement, a law authority who served during the bush 43 administration. he has argued more than 75 cases before the supreme court. paul, welcome. >> thanks. great to be here. >> michael ross is a legal h histori historian, and the author of a biography of a justice you'll hear about tonight. "justice of shattered dreams." thank you for coming. >> thank you. >> i'll have you make the case to the audience. why is this on the list? why do the slaughterhouse cases matter? >> this belongs on any list of historic, great supreme court cases. it is the first opportunity the supreme court has to interpret the 14th amendment. the reason that's so important is that the 14th amendment is what essentially takes a guarantee of the bill of rights eventually and constrains the
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actions of state government. if you think about the bill of rights, first ten amendments to the constitution, all by their terms were really designed to restrict the federal government and what it did to people and the citizens of the united states. 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 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. the slaughterhouse case is the very first time the supreme court purposed the 14th amendment. >> mike ross, in your book, you said this decision influenced the course of race relations for a century. it continues to shape constitutional law today. make the case. >> well, in the slaughterhouse cases, the key flaws were the debate among historians and law
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professors ever since, are privileges are immunitimmunitie the question as to what that meant and whether or not it actually applied the bill of rights. in the slaughterhouse cases, the supreme court says the privileges or immunities clause doesn't do that. 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 the deck of a battleship, like at the end of world war ii. 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. many people see the 14th amendment as that peace treaty. agree to these terms and we'll allow you to have a place in the union. >> the slaughterhouse cases are about slaughterhouses and
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butchers. we'll learn mb at tore. first, we'll learn about the 14th amendment itself. if you watched last week, we did the dred scott decision. we learned at the end of the program that the 13th, 14th and 15th amendments were a remedy for the decision. the terrible decision made of the dred scott case. 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, 150 years now since it was hard of the second founding. >> why do you call it that? >> i think we had the founding fathers, the original congress, but then when those series of amendments came through, it's
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like the united states became more aware of what they are and more aware of the fact, slavery ending and so on, that we had to treat all people the same. now, you know and i know, having been there at that time, it took a long, long time. in some places of the country, it's still going on. it was the second founding. it was a second coming of the united states. >> senator leahy talking about why these three amendments are the real souecond founding of o country. let's look at the text of section one of the 14th amendment so you understand the legal framework for the discussion. 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
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citizens of the united states, nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny any person -- to any person within its jurisdiction the equal protection of the laws. you heard our two guests talk about the privileges and immunities clause, which is the heart of the legal challenge in this case. i'm going to ask you, mike, please, to set the stage for the passage of the 14th amendment. obviously, after dred scott, the country fights the civil war. this amendment was passed in 1868, just after the war ended. tell us how it came to be. >> well, again, when the civil war ends, there's no peace treaty. there's a long debate about what abraham lincoln would have done with the reconstruction, had he lived. unfortunately, he doesn't. the man put in charge is andrew johnson. andrew johnson allows legislatures to be elected throughout the south immediately after the civil war, without giving african-american men the right to vote.
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it fills up with ex-confederates and they pass a series of laws known as the black codes. the black codes were laws that applied only to black people. said things like, black people can't meet in groups of six after sundown. it also had even more onerous laws, like each january, african-americans had to produce a document showing where they were going to work for the coming year. if they couldn't produce the document as to what plantation they were going to work on, they'd be fined and sentenced to work on a plantation to pay off the fine for the coming year. the core of the black codes was to restore slavery in form, if not in law. the black codes shocked a lot of people in the north because it seemed like, after over 700,000 americans dead, the war meant more than that. when congress finally came back into session the following december, a long struggle goes
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on with president johnson, as to what his vision of reconstruction would be and what congress' would be. eventually, out of the joint committee of reconstruction comes the 14th amendment, which will be congress's terms to the south. included in the language you just read are lots of phrases like the equal protection clause, aimed directly at the black codes. if you have a law for people not meeting in groups of six after sundown, great, but it has to apply to everyone. it can't apply specifically to one run. >> paul clement, what can you tell our audience about the reconstruction and the amendments with the southerns who felt they were in an occupied land? >> in the wake of the civil war, we have this situation where you have some newly freed slaves. the freed men. you have some people coming down
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from the north to take advantage of kind of the re-opening of the south. then you also have a number of people who are in the south. they participated in the civil war on the side of the confederacy. you know, 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 newly freed slaves. in part, because they've just fought a war where they were trying to vindicate state's rights. although they lost the war, i don't think their hearts and minds were changed in the process. so part of what becomes so controversial in the south about the 13th, 14th and 15th amendments, 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 michael ross, our story
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takes place in the reconstructed south, specifically, louisiana and the city of new orleans. what was new orleans typical of the south or were there special conditions? >> new orleans is the place that everyone is looking to see whether reconstruction can succeed. because it has the community which is this class of very well-educated, former free persons of color, who came out of the french and spanish culture. they are people who can put the lie to confederates' claims that african-americans are too uneducated and ignorant to serve in office. in new orleans, there's all kinds of tumalt.
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by 1869, 1870, you have african-americans serving on juries, african-americans on the police force, african-americans serving as detectives, solving high-profile crimes. they're a lot of people, even with the presence of these people, there are a lot of white people that are not happy. >> we're going to get into our setting the stage for the case. the past couple weeks, there were big characters. two important characters in this particular story tonight. 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' interests. can you tell us about who they were at that time in new orleans? >> to set the stage a little bit, you do have a dynamic where the slaughterhouses at this point are in new orleans proper,
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and there are a number of butchers who are -- a number have sort of this tradition of being involved in this trade. it's part of their identity. again, what i think sort of sets the stage for this is the idea that you have the slaughterhouses that are very near the large population centers in new orleans. i think anybody who has read "the jungle" knows that slaughterhouses, even 50, 60 years later, were no picnic. at the time we're talking about here, late 1860s, early 1870s, these are an incredible source of pestulance and part of reason why new orleans has a reputation of, you don't want to be there in the summer. you might leave in a pine box.
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>> acropolis of america, some people called it. >> when they get to court and file suit, they hire -- i'd like a brief biography on them -- but they hire as their attorney this person by the name of john campbell. who is john campbell, 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 dred scott decision. he's from alabama. when the civil war breaks out, he resigns to join the confederacy, where he becomes jefferson davis' assistant secretary of war. in that role, he says a number of things that do not hold up well in the 21st century. at the end of the war, when robert e. lee and others in the desperate moments are proposing the confederacy employ black
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troops, campbell is against it. it defies everything on which the confederacy is based. he's arrested after the lincoln assassination because they think he's a part of it. he comes out of jail em biter - enbittered and will make his career fighting the government. everything he's doing, every case he's litigating is being done to thwart the reconstruction, the biracial reconstruction government of louisiana. he says things like, we have africans in a place all around us, and every day, they are bardering away their duties and positions. 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 historians have long considered miller one
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of the court's most justices. can you tell us why? >> one is because of the slaughterhouse cases. it has a tremendous impact on the 14th amendment, that anyone who issued that opinion is going to get credit as an important justice. he's also a force. miller is this big, burly, john go goodman like figure, who prides himself on cutting through the bs. when lawyers go on and on, miller says, get to the point! in the one case, the guy says, what point? he says, any point. some point. everything who dealt wi everyone who dealt with him on the court throughout the age, he was a force of nature when he entered the room. >> so paul clement, because you've been in front of these justices, i would like to have you think about this dynamic. here, we have, by the time it gets to the supreme court, later on in our story, we have a
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former supreme court justice who resigns to fight for the confederacy, arguing before his former colleagues. here's another dynamic. justice miller, who will write the opinion, loathes john campbell. >> right. this is something that we haven't seen in the modern era, but somebody to leave the court, then appear in front of the court. obviously, the justices 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. i think that when you have somebody arguing the case that one of the justices has an intense, not just personal dislike, but political dislike, i think the view of leaving the court to join the confederacy is something that, i think, justice miller can't really forgive. to be hearing this argument from that particular advocate has to change the dynamic, as the way
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that justice and some of the other justices are processing the case that they're hearing, the arguments they're hearing. >> time to learn more about what got this case into litigation. so we're going to visit new orleans in a piece of video. 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 working there without regulation. you're going to learn more about the conditions that people were protesting in new orleans that led to the creation of this communal property, the slaughterhouse landing company, that the butchers were protesting. let's watch. >> with all the refuge, human waste, animal waste, all the dung, the livers, the hearts, with all of that being dumped in the water, it's no wonder this city was known as the acropolis,
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the city of the dead. by 1860, there would have been at least 84 slaughterhouses, butchers, shops and avatars in this general area. the whole place was just one royal stench. it was where most of the meat industry that supplied the booming city of new orleans had been centralized and concentrated. in this direction is where the town's main livestock landing was. that's where all the livestock were off loaded. coming from texas or from the prairies of central louisiana. an estimated 300,000 heads of cattle and pork were dropped off or delivered at those landings, that wharf, every year. there would be a separate group of drivers, and they would stampede them through town, passed schools and hospitals, to
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the butcher shops. in this direction, one block away, was what was called the nuisance wharf. that was the end trails, the dung, the livers, the heart, were taken and then dumped into the middle of the river. now, the problem was, less than two miles down river, the current carries everything down river, of course, were the intake pipes for the town's major waterworks system. not surprising, a lot of those e entrails, the endle lesles lesl collected around the pipes. a lot of the people who lived here were pretty much up in arms. they were trying for many, many years, prior to the enactment of the slaughterhouse case, to have these meat industries centralized in one location.
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preferably down river, on the east or west bank. that was the impetus for the enactment of the slaughterhouse case. >> i'd like to tell you how you get involved. we hope you will tonight. call us with your comments or questions about this case. we'll have the lines divided gee democratically and go to calls in ten minutes. 202-748-8400 in the eastern half. 202-748-8901 if you live in the western half of the united states. or send us a tweet. that's an easy way to get into the conversation. use #landmark cases as you're tweeting. i've got a twitter feed and i can follow your comments or questions. there's already a conversation on our facebook page which you can be a part of, as well. some of the questions will make it into our discussion. we heard about the deplorable conditions. how did it come to be that the
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citizens sought redress from the legislatu legislature? >> when you pumped water through the new orleans supply, there'd be all kinds of pieces of entrail, et cetera. >> they wanted redress from this. >> there had been repeated efforts to move the butchers either across the river or down below the city. it had happened again and again, but the butchers are kind of a large group that managed to kind of weiasel their way back to th city every time. the butchers are tight knit. they protect their monopoly and keep others out of the butchering business and fight back. the regulations always fail. 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.
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what happens is, the legislature, during reconstruction, decides that their strategy to lure people to the republican party sorks t, s republican party could survive after the removal of federal troops, is they'd get done a number of things that new orr le -- orleans residents always wanted, including moving the slaughterhouse out of the city and fixing the levies all these things. they might lure moderately minded businessmen to the republican party who want economic progress. they really think, a lot of people, that the slaughterhouse act will be something the community will rally around and say, i didn't like this legislature, but they're getting good things done. of course, that's not the way it's going to turn out. >> we're going to next take you to the legislature where this piece of legislation was brought in. it's an interesting one.
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it is the legislature in the reconstruction south, in particularly, louisiana. there are, of course, racial politics attached to it. let's watch. >> we're in an area of the louisiana state museum that explores radical reconstruction in louisiana. we're looking at a ballot box from about 1875. the box is important not only because it's a unique object, but because 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. here is a poster showing some of the african-americans who were elected into the state legislature during radical reconstruction. the louisiana state legislature that passed the slaughterhouse act consistented of 1/3 newly elected african-americans. one of the most interesting figures in this picture is oscar
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dunn. dunn was the first man of african decent elected lieutenant governor of a state. he served for several years and was eventually replaced by pinchback, who also served as lieutenant governor and served 35 days as the governor of louisiana. the first african-american to serve as governor of a state. he served from late december of 1872 to january 1873. three months later, the supreme court handed down the slaughterhouse verdict. in addition to the fact the racial composition of louisiana state legislature changed during reconstruction, it was also a period when thousands of northerns moved to the south looking for business opportunities. in fact, many of the businessmen who wanted to establish the slaughterhouse were, in fact, from the north. what you're looking at here is a carpet bag. the carpet bag is typical of the kind of luggage northerns would have brought with them when they moved to the south.
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the term carpet bagger, which referred to carpet bags like this, was used by southerners. they saw northerns coming 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 state 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. gentlemen, i'll take a caller waiting for us named roberto here in washington, d.c. hi. you're on the air. >> caller: good evening. i want to commend c-span and the national constitution center for this wonderful series. a simple question to your panel there. historically, as you know, in the 1800s, white women were citizens of the united states. but they were not allowed to vote. my question is, is the right to vote a privilege of national citizenship? thank you. >> thanks very much.
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paul clement? >> i think that -- it gets a little ahead in our story, but the 15th amendment is passed specifically to deal with the issue of voting. so voting rights are not conferred by the 14th amendment, and they're not conferred to certainly women just because they're citizens of the united states under the privileges or immunities clause. the right to vote is enshrined in the 15th amendment and, of course, it doesn't extend to women by its terms. 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. one of the cases that follows immediately after the slaughterhouse cases in the supreme court of the united states involves an effort by a woman lawyer in the state of illinois to get admitted to the state bar of illinois. her argument was that the
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ability to be an attorney and practice before the bar was a privilege or immunity of citizenship. the supreme court, applying some of the same reasoning it would adopt in the slaughterhouse cases, rejected that argument. said a female attorney did not have the privilege to practice law in this country. >> kay is our next caller from the state of louisiana. you're on. >> caller: i would like to ask mike ross why so many of these 14th amendment cases originated in louisiana. plessy versus ferguson, in addition to slaughterhouse. >> my answer would be that, again, new orleans and louisiana are central to the reconstruction story. you not only have the after ro afro-crioles, which make it is reconstruction work, the best chances in new orleans, but you have 10,000 former slaves that
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move to the city of new orleans. then you have these exconfederates. much of the south was destroyed. simon buckner and james longstreet. they all end up in new orleans. you have this tumultuous place. where you have this very proud class of african-americans who are going to be in court all the time, litigating their new rights. that's going to lead to the plessy decision. and you have other people forcefully trying to deny them. louisiana had the military arm of the democratic party and the crescent city white league. amidst all of this over what's going to happen with reconstruction, three of the greatest -- of the 19th century 14th amendment cases emerge. >> next caller is barry from alabama. you're on. >> caller: this question is for mr. clement.
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outstanding supreme court lawyer. you said earlier that justice campbell argued in the slaughterhouse cases -- and i may have misunderstood you -- about how many justices did that. my recollection is that they argued after he stepped down from the court. he represented puerto rico in a case before the supreme court. 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 fortus is the last example of somebody stepping down from the court and not serving as a senior justice, which a number of the justices, for example, justice o'connor, they no longer serve on the supreme court. but they still are article iii
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jurists and still sit from time to time on the courts of appeals. so it's been a while since we've had a justice who not only steps down but actually sort of retires from article iii entirely, and isn't even in a position to argue the cases. i think he would be the most recent example of this happening. >> if you're new to the call-in experience, we know a number of you are watching for the first time tonight, you call in and we don't answer your call until just about time to put on the air. keep ringing and we'll get to your calls as the program continues. we have another hour ahead with lots more to tell you in the story of the slaughterhouse cases. this interesting period of time. the reconstruction age in the united states. what life was like in the south, which is where our case centers. 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 livestock landing and
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slaughter house company. we'll learn more about that. >> this is a general area in st. bernard parish where the crescent city livestock landing and slaughterhouse operations were located. it would go from the levy, we're standing on the levy and the river is behind me, and it would go back, looks like, at least a quarter mile, two very long city blocks. on this side, on the other side of the man made levy we're standing on, and this side of the levy. 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 herded into the slaughterhouse. there were also a rail line, too, that would bring cattle in, or bring the process and
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packaged meat out, packed meat out. this is the area where all of the butchers in the city of new orleans would have had to operate. they would rent stalls. lease stalls. a lot were gas guns. these were french butchers from g gascaney or had ethnic roots from that 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 that they would have to be offered a stall, a butcher stall, at market race. you couldn't play favorites. they decided to carry that case forward and, of course t rest is constitutional history. >> michael ross, when they took the case to the louisiana courts, what was the heart of the case? >> well, the heart of their case, initially, is working even
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under the louisiana state constitution to claim the wrong being denied equal protection. where the case gets interesting is when john campbell and the other lawyers, who are teamed up with campbell, get involved. they see an opportunity in the 14th amendment, an amendment that the ex-confederate press of new orleans, ex-confederates held their nose about. said, this is a amendment that's going to force federal power upon us. suddenly, they saw an opportunity in the broad language of the 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 the -- they were being denied equal protection. they were being denied their property without due process. and that they were being denied the privilege or immunity to practice their vocation free
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from government intrusion by the louisiana legislature. campbell even went as far to argue that it violated the 13th amendment. that requiring butchers to slaughter in someone else's slaughterhouse was constituted slavery. involuntary servitude. you can see campbell kind of laughing his evil laugh. wahaha. as he used this amendment that most people had seen, ex-confederates had seen this hoisted upon them, to fight the hated bi-racial rlegislature. people weren't fond of the butchers, but this was a package to thwart the governor, the butchers are local celebrities. all the papers are cheering along, as the slaughterhouse litigation goes forward. they're following day to day like they follow the baseball scores in the columns of the
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paper. >> here's the irony. the people of new orleans was suffering because of the work of the butchers and, yet, they were willing to cast this aside and cheer them on in their legal challenge. >> that is an irony, and the good professor made a reference to the people of new orleans that can put race to the side. not everybody fit that destr descripti description. i think this was seen over time less about the butchers and more about the fact that you had this passed by the biracial legislature and there was also a sense that the people that were going to pen fbenefit from this african-americans and carpet baggers. they'd provide the financing for the slaughterhouse across the river. there was an opportunity here to turn something that the people of new orleans had been clambering for for decades, and turn it up into something to
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oppose it. >> what happened in the louisiana courts in. >> in the louisiana courts, it's a complex situation. at the lower level in new orleans, you had seven tridistr courts, four of which held district cases. judges grew sympathetic of campbell. judge collins had attempted early on to be a conservative republican, but he'ddi disaffected when the african-american s demanded equl education. he turns and now sides with campbell and the people who are fighting the biracial legislature. at the lower level, you have two judges who are going to constantly issue injunctions on the side of campbell. stop the lauslaughterhouse peop. but the louisiana supreme court were all dyed in the wool proponents of reconstruction.
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they would reverse the injunction. this goes on and on. it's not just in the slaughterhouse litigation. it's in the ability of the legislature to tax. in the project where they want to build a canal from the mississippi to the gulf of mexico. it's in the levy repair. 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 process down. 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 anymore, and they create a new district court. they say, this is the only district court that can issue injunctions. they put a dye and wool republican judge in that court. from then or in, it shuts out the lower level courts. at that point, campbell doesn't care because he's moved his chain of argument now to the federal courts. using the 14th amendment.
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now, he can make the same claims in federal court that he had done successfully in state court, until he was thwarted by the creation of the new district court. >> let's take a call from joe in minnesota. you're on the air. >> caller: yes. good evening. i would like to thank you all, f first off, for doing this series. it's incredibly wonder. . my question is, how did the 14th amendment get passed, when there were 23 senators excluded from the voting. 22 from the other 11 states and one from new jersey, when they were back in the part of being the union? >> paul clement, can you take that? defer to mike ross. >> what happens is that the congress makes it a requirement that the state legislatures have to ratify the 14th amendment in order to be readmitted to the
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union in their -- in order to, once again, be allowed to have federal representatives in congress. so there is the question, could -- 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. it didn't specify that all the states had to be in place for that to happen. >> can you tell us, paul clement, why the supreme court decided to take this case on? how was it with -- how did it have standing? was it decided by the louisiana supreme court, so there wasn't a conflict between states. how did it get to the supreme court? >> you still had the federal issue in the case, and that's how it gets to the supreme court of the united states. that, in a sense, is part of campbell's strategy here, which is frustrated in the louisiana courts, where he knows he's not
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going to get the relief he wants. he understands if he can provide the federal issue to the case, then he can get to the supreme court of the united states. that's where the 13th and 14th amendments come in. really not just something that works in the sense of this tremendous situation of taking the provisions that were designed to foster reconstruction and to protect african-americans. and using them as a weapon. these amendments designed to be a shield for african-americans in the reconstructed south, using them as a sword to try to cut down their newly enacted legislation. that's something where, i think, in the exercises, it does that and would have the insight. he'd know it, being a former supreme court justice, that these federal cases, the federal claims, are his ticket to the supreme court of appeal. >> 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 morrison
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white. is that right? >> simon chase. >> sorry. i'm having a meltdown on live tv. >> we're here to help. >> the chief justice doesn't have long to live. then it's a court made up of lincoln and grant appointees, largely. there's a couple people leftover. clifford from the buchanan administration. this is a court made up of justices appointed by lincoln and grant. you would think that a court made up of justices of -- appointed by lincoln and grant would be people sympathetic to reconstruction. it doesn't turn out to be that way. there's field and joseph bradley and others, who soured on reconstruction. it will be a divided court for that reason. >> i read, and this is a side bar, but i read when lincoln made these appointments to the supreme court, he had essentially one litmus test. that was whether or not they were going to support the union,
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but didn't delve into their positions on other issues. >> that's correct. lincoln is in the midst of a civil war. he's done all kinds of controversial things, from suspecting habeas corpus to the blo blockade. he wants judges that will uphold his war powers. there are issues on the economic issues and everything else are secondary. he appoints mostly republicans, though some had been former democrats. even appoints field, who is a unionist democrat, because all the things field had been saying were, i'm going to be a staunch supporter of your war powers. he gets what he asks for. the court is at least during the war, going to uphold lincoln's positions. then after the war, in peacetime, 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
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military tribunals, as illegal. >> we have the names of the justices on the screen. one book describes it as an undistinguished court. would you agree? >> i would not agree. when you read the papers of these gentlemen, there's a few blow hards. noah swain. >> no relation. we have to establish. >> sleepy experience. with field and bradley, you're dealing with justices 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
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awful problem, and time took care of them? in omaha, nebraska, we had slaughterhouses flowing into the united states as recently as 1940. but the time resulted that. >> thank you very much. >> i don't know the story about the time addressing these problems, but i do know that what they were doing in new orleans was modelled on what other cities had done. most notably, new york, many cities in europe. of having a centralized slaughterhouse. some were municipal and not put together by private investment, but new orleans didn't have any money during reconstruction. having private investors build a needed slaughterhouse and giving them a 25 yoear franchise to charge rents was not out of it
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at the time. if you had a lazy approach, it was time to act. >> i think, you know, the point i would make is if you just look at this as being a case about the slaughterhouses is, you might not think this is a big deal. on the other hand, i think with a number of the cases that will be discussed in this series, you can look at the miranda case about being about a criminal arrest. there are criminal arrests that happen every day. 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 lasting significance. one of the things that i wanted to share is that this is not lost on the justices that are deciding this case.
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this is not a case that strikes them as a sleeper or just another case about how you deal with awful or some other sanitation problem. so justice miller in his own opinion says this, quote, no questions so far reach skpg pervape and pervading, 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 of the united states have been before this court during 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. >> mary ann is watching in corpus christi, texas. >> caller: how are you doing? >> great. your question for us? >> caller: my question is directed to professor ross. who is attributed to the
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well-educated, aftrican community, and also to the education of oscar dunn and pinchback? >> 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-crioles didn't go there. they were educated by catholic schools. some sent their children to schools in the north. it was all done from a franco phone perspective. i wanted to get one other point in to the caller two times ago. in omaha, perhaps things are solved over time because it's an efficient place. in new orleans, if someone with power doesn't act, nothing happens. no offense to new orleans. i lived there ten years, got your back. if someone didn't act, there
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would still be butchers putting entrails in the pipes. >> tim is on. go ahead. >> 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? >> money to be made, yes? >> these were not -- not everyone involved with the crescent city slaughterhouse was a northerner. some were. did you want to -- >> no. >> what they were, the folks in the north were, were investors, people with capital. there wasn't any capital in the south after the civil war. the banks were destroyed. the economy was in ruins. in order to get anything built, you needed to bring in northern capital. for the railroads, they bring in a capitalist from delaware who
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promises to reconstruct the railroads. you needed outside money. the ex-confederates, of course, will portray this, and this will get lodged in the american memory, that these memory that these are all skound drals on there to get elected and then yusz their position to rip off the south for their own benefit. and when you read the letters of carpet baggers, many of them had an evangelical sense that they were going god's work and coming down to show them how it was done, to fill it with factories and railroads and recreate the south in the north's view. and for doing that they are called carpet baggers and seen as scoundrels. there's a couple of scoundrels in the group. corruption is everywhere. but there's many of them that
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think they're doing something important. and resent the notions that they're just there to get rich. >> your next question as we talk about the slaughter howse cases, joseph, in la point, wisconsin, you're on the air. >> caller: what happened to judge campbell? >> well, we're getting ahead of our story. we'll tell you if you continue watching what happened to judge campbell. thank you for the question. let me introduce sam yell miller who was serving on the supreme court. he's important to this because he was assigned to write the majority opinion in the case. we're going to learn more about his background in our next piece of video. >> sam yell miller moved here about 1850 and built this house for about $13,000 as a wedding meant for his wife. he left kentucky because he
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didn't believe slavery. in the public library files we have an article that references 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 in which he paid them. and the lee county historical society believes this would have been the dining room where sam yell freeman miller would have entertained many guests, political guests wi, lawyers, o judges. his views helped shape the republican party. here's copy of the article from the newspaper stating that he went to the republican state convention. they were electing officers and he was representing the first
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district. sammy miller had a very successful law firm here. he attracted national attention. and after 12 years of living here, he was appointed u.s. supreme court justice by abraham lincoln. was also the very first appointed justice this side of the mississippi river. >> mike roz, what's important to know about his background and the temperament that he brought to the court? >> again, this is a man who married into a slave owning family, owned slaves. in kentucky becomes -- he was briefly a doctor and wrote his medical school dissertation on kol ra and its treatment. the treatments were barbaric but he was if first to recognize that it had a connection with water bourn because kol ra had affected the qume berland river. but he hates being a doctor because all of his patients dies. and then in kentucky he followed the emancipationist leader. and in kentucky in its 1949
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constitution saddles slavery ever more firmly on the state, he says it's time to get out. he moves to iowa and becomes kwun of the founders of the republican party and throughout his career is going to be a moderate republican, not a radical republican that is going to affect the slaughterhouse decision but a staunch supporter of lincoln and reconstruction. and again he's someone that doesn't like lawyers puffing up a case with lots of ancient press kens. and campbell's argument in slaughterhouse is exactly the kind of thing miller doesn't like going back to the battles between parliament and the king. and he says, we all know why these amendments were pass. the 14th amendment was passed to protect the freeman, not to protect white butchers in new orleans. and that's what he thinks is -- he's the first justice from the
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west of the mississippi, that kind f what we could call practical miswestern thinking he prides himself on. that's really at the heart of the case, is his dismissing all what he sees as puffery. >> can you tell us about the state of the supreme court and where this case was heard? where did they meet, for example? >> they met in the old supreme court chamber in the senate. so this the long before they had their own marble palace across the streets. the circumstances of this is a lot more modest than that. at this point supreme court arguments are often well attended. these are also multi-day affairs. in this day and age typically the most important supreme court argument is still going to get 30 minutes a side. and when the zauther howse cases are argued for a second time, it's a three-day affair, february 3rd, 4th and 5th of 1873. this is something where the
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justices allowed the lawyers a lot of air time, as lawyers might refer to it today, to make their cases. campbell not only is relying on the 13th and 14th amendment and this audacious way but he is drawing the court back to long established british precedence. and one of things, i think for a modern lawyer it's a little hard to 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 the british common law cases. there's a famous british law case that involved them giving a crown in the case. darcy is given a monopoly over the distribution of playing cards in the entirety of
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england. the only person that can do this. there's a celebrated legal case that says no, that is a monopoly that is unlawful. so essentially the argument campbell is crafting, running into miller's prejudices because he's relying on the old cases. but he's making the argument that the common law made clear that you couldn't have this kind of monopolies. and the privileges and immunities clause of the constitution, it must incorporate cthe idea that i hae a privilege to practice my trade and the government can't give that privilege to somebody else, just like darcy and the playing cards. >> the questions before the court -- we have toex plain that the great irony of this is that this amendment to the constitution was one of three written to address the civil rights of black citizens in the united states of dread zot and after the civil war. but it was a case with white
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butchers that came to the supreme court that was the first challenge of the 14th amendment. here are the questions before the court in this case. first of all, does the louisiana law create an involuntary servitude? does it deny equal protection of the law? that refers back to the 14th amendment language. 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 east amendment privileges and immunities. we heard that job campbell argued the case on behalf of the butchers. and this is the zauther howse cases because there were a number of them consolidated into one. who was arguing on the other size. >> one of the other leaders on the other side is an interesting fellow named thomas durant. once a slave owner but then he becomes influenced and has all
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kinds of exotic views. you can google it. he was in new orleans and had become a radical republican in favor of black rights. but he's there at the time of the new orleans riot which is a moment when they're surrounded by the new orleans police force before reconstruction, which is made up of the men of henry hayes' brigade. and they break into the hall and start killing everyone in sight. and durant flees, has death threats for his right, most to d.c. and becomes a lawyer that argues in front of the supreme court. he's one of the key lawyers arguing on behalf of -- >> the state of louisiana, right? >> it's on behalf of the crescent city watchdog company. >> there were two defendants in the case of state of louisiana and also the crescent city livestock, two lawyers were jeremiah black and matthew
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carpenter. >> matthew carpenter is knee deep in the ratification debates in congress of the 14th amendment and he's someone who knows the meaning of the 14th amendment. if you wanted someone who knows the original intent, carpenter would have been there as the sausage was being made. >> next call, richard, locust, grove, virginia. you're on with our two guests. >> caller: my question is for either one of the scholars are both of them. my question is the clan involved in any way? >> it would be the nights of the white camille ya and in the city of new orleans, the crescent city white league. there's a group known as the louisiana lie john. and the way they're involved in this case, this is a few front
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assault on reconstruction lodged by the democratic party politically, lodged by the knights of the white camille ya and clan with violence where they're killing republican officials, killing white people that cooperate with the republican party and the freed men and their political leaders. but then there's campbell who picks up his legal briefs and it's campbell and a number of other lawyers and they go to court and combined it is a full-blown rule or ruin massive resistance to reconstruction. >> so you said the case had to be argued twice. why is that in how does that happen? >> the first time it's argued that one of the justices is effectively indisposed. so you have nine justices but one of them is unavailable. and so the court is not in a position to decide this case. and i think they understand, as i read before, you dmoe, they all had this understanding that
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this was a mo men us to decision. you only have one chance to have the first chance to interpret the 14th amendment to the constitution. so they need to get a full court in order to decide this case. so they slate it for reargument and have this remarkable argument. just to underscore what you said, if you think about the four issues that are before the court, that's really the heart of the reconstruction amendments. the 13th amendment and then you have the three principle provisions in section where you know of the 14th amendment. the due process clause, you have the equal protection clause and then you have the privileges and immunities clause. and i think certainly to lawyers and present day lawyers, you think of the slaughterhouse case as the great cases about the privileges and immunities clause and because of the way they decided the last case functionally about the privileges or immunity clause. but campbell had it all on the table. he didn't leave anything to
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chance. he had the due process clause and the equal protection clause also available. it's within of the interesting products of history that justice miller in his decision really focuses on the privileges or immunities clause, sort of says that the other two haven't been sort of two terribly, wholy 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 because of what it decided about the privileges or immunities clause, it's more important for the impetus that it gave for subsequent litigants and subsequent justices to breathe even greater life into the due process clause and the equal protection clause than the framers of the 14th amendment may have intended. >> david in minnesota, what's your question for us? >> caller: if equal protection is based in large part on a classification of people, be it
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race or something else, is the only argument that the butchers were making is that their classification is based on being butchers? >> i think their argument was based on the opportunity to be a butcher should have been open to all. it was a classification in a sense, there were certain people who were in, certain people who were out. and i think in that sense it's a classic nonsuspect class oak equal protection argument. and then that was coupled with a due process argument which is what current lawyers would call a substantive due process argument. they weren't arguing that somehow you could have a exclusive monopoly for butchers across the river. they were basically saying that this was not the kind of statute that the state could pass at all, that it violated sort of a
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broader concept of due process, something that i think, you know, viewers should stay tuned for in the loch ner case when that's discussed because that's adopted by a majority of the court for the court's history. all of the arguments are made, but ultimately campbell focuses and certainly justice miller focuses on the privileges or immunities clause. >> you have something you wanted to add? >> no. i was thinking about the equal protection claim. i always thought that perhaps the butchers were also arguing that they weren't being allowed to use their property as other people were because they had been slaughters property in uptown new orleans and suddenly they've got to slaughter somewhere else. would that fit the model? >> that would be consistent with the model. the critical thing, and this fits in with justice miller's
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understanding. it wasn't just like african americans and not whites could get involved in this monopoly butcher trade across the river, and it certainly wasn't something where this was being secured only to whites. justice miller -- this is not entirely consistent with the way that the supreme court subsequently interprets the equal protection clause, but he has in mind the purposes behind the equal protections clause and the fact it was designed not to make everybody equal in every classification but to suggest that 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. >> caller: hello. my question is -- kind of a factor has been brought up obliquely in the issue around the carpet baggers. during that period in american history, the false civil claims
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act, title 18 or 28 of the u.s. code came to pass. the scoundrels weren't just southerners that prayed upon the south in the reconstruction spear idea and did a lot of fraudulent things. did that play into the dilemma that was faced in cultural ternls and also in terms of the law down there and did any of it come before the u.s. supreme court in that time? >> i'm not sure i understand the question. >> well, i mean certainly i think to the extent that the question is alludeding to the fact that you had not just the idea of the carpet baggers coming down there, but there were also efforts at the same time to project federal power to protect everyone, but particularly the recently freed slaves from being subjected to violence by others down in the south. i mean that is a part of this period of constitutional history. there's the crook shank case that hopefully we'll get to mention at least in passing that was involved in an application
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of one of those civil rights statutes to a situation also coming out of louisiana. so those cases also came to the 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 wrestling 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. and i think that reconstruction was an effort to use in the absence of a war, a similarly broad scope of the federal power against the 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
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power. if i can give you one statistic that really brings this hole. in the entire period f our constitutional history between the beginning of the 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 with six acts of congress that are struck down as unconstitutional. so this slaughterhouse case, the crook shank case, all of these can be understood as part of 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 critics are saying that the supreme court lost their nerve. but i think both sides in a sense can point to just the facts of what the court was confronting and how they resolved those cases and support their argument. >> and to tie all of our kays
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together, if mar berry modson hasn't been decided the way it was, the court wouldn't be declaring the acts as unconstitutional. >> there are aspects of the slaughterhouse case that are a little like marl berry. the general use of that decision is that chief justice marshal wrote a very important decision. it's not entirely clear that the decision would have been enforced and h would have picked a major fight. and there's a similar sense here with the slaughterhouse cases. if justice miller flips his vote and there's five votes the other way and they sart to say 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
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will know what would have happened if the court decides the slaughterhouse case the other way. but it would have been a very aggressive assertion of judicial authority to be sure. >> and miller says that, saying this will make the supreme court and the federal you dish rare the perpetual sense of the legislation of the united states. and chomping at the bit for that to happen is stephen field. he loves the idea of a court that can use natural law principle to overturn, in particular, regulatory legislation. and you read in his dissent. and a lot of this is what frightens miller. he's just like, now we see what's coming here and it's coming from campbell. we know he's up to something nefarious. and then they see his decent. >> stephen field was another lincoln appointee. >> but a democrat opposed to
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that. but he's someone who has really throughout his juris prudence is often a natural law -- an advocate of using natural law principles. >> hi, greg. >> caller: thank you very much. this is a very interesting program. you had justice mcbrar on recently talking about the u.s. supreme court looking at foreign rulings. since louisiana follows the that pole onic code, i was wondering if that was at all implicated in this decision and how do federal courts in general deal with the napoleonic code. >> 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 not only that it gives us a
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chance to go to new orleans without a passport, but it also means that we have one of the 50 states that is really operating under a different rule of law as it's just 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 the 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 the napoleonic codes. an louisiana is actually is codes state and traces its legal tradition back to a completely different tradition. that may have made a difference when the cases were being litigated in the louisiana state courts but by the time they get to the state court, that's really not going to come into play. and what really comes into play, if you look at the majority fn and the dissenting opinion, is something that continues to be
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one of the major themes of you dish review today, which is how much do you look into 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 of what they passed. and that's really the debate here. because what campbell and his argument and the dissenters are saying is look, these words, due process, equal protection, privileges or immunities, they don't say anything about recently freed slafs. they seem like they're generally impolice carable to all and enpower us to do a that. miller is looking at this saying, this isn't ancient history. these reconstruction amendments were passed five years ago. i was around then and these were about protecting african americans, they weren't about protecting white butchers in new
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orleans. >> we heard it was a 5-4 decision with miller writing the opinion. it is quite clear then that is a citizenship of the united states and a citizenship of a state which are distinct from each other and which depend upon different characteristics or circumstances in the individual. we have only 15 minutes left and we need to get to the next part of our story. what happened to the butchers who lost the case? what was their history after this? >> well, even the unanimity amongst the butchers is breaking down during the case because at one point the butchers benevolent association cuts a deal with the crescent city livestock where they merge and move to a new slaughterhouse that they're moving and some of the butchers are like, we didn't agree to slaughtering from one monopoly to another and they
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keep the lawsuit up. that's why it's reaching the supreme court. after the case the battles over slaughterhouses and where the slaughters should be go on and on, r, even after reconstruction collapses and we're back into a legislature controlled largely by white democrats, the slaughterhouse situation continues to be a deeply contested one. >> robert in springfield, new jersey, you're on. >> caller: yes, i have two questions. the first one concerned with how the 14th amendment was originally written, the privileges in the clause were seen as protecting the rights while the equal protections clause was seen protecting procedural rights. the question is why was the equal protections clause as seen just for procedural rights. and my second question has to do with how the supreme court,
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since the slaughterhouse cases has ruled in protecting rights under the privileges and immunities clause twice and only in 1999 has that one remained on the books. my second question is, can oush two guests here perceive any legal issues in the future that could be guaranteed under the privileges or immunities clause. >> that's a semester's worth of answers and i'm going to let paul handle this rnls we. >> well, i guess there's a couple of points to be made. one is i think that the privileges or immunity clause was designed to protect the substantive rights, as you say. the due process clause certainly as it was going to be interpreted was probably envisioned as protecting procedural rights. and then the equal protection clause was clearly envisioned in avoiding classifications and
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differential treatment, exactly which differential treatment is something we're still fighting about today. but i think what justice miller does, and it really is very close to the passage that was just read, he says, you're misunderstanding this campbell and dissenters. this is not about privilege or immunities broadly understood all of the various privileges and immunities that might have exist sds. if you want to be protected against those or you want those protected, you have to look to your state governments. the only things that the privileges or immunities clause protects are privileges that are uniquely privileges of u.s. citizenship, national citizenship. miller does his best. he knows what he's doing and he knows that he's just interpreted the privileges or immunities clause down to nearly nothingness. he has a passage of his opinion where he sort of is a little bit shamed about this saying there are these things, there are some
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privileges and immunities of national citizenship. but they typically are things that were probably already protected by the privilege of the bill of rights. you have the national privilege to go into congress and have your grievances heard but that's what the right to petition clause already says. it's really difficult to identify things that he has preserved. and i that's why i think most legal scholars when they look at this decision -- this is something that the decenters were saying, you just read the privileges or immunities clause out of the constitution of the united states. >> since the miller decision or the miller -- sorry, i've lost the word, miller's argument essentially silenced the 14th amendment and the privileges immunities clause of it, there are signs today that the high court may be ready to
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reinvigorate the clause. here is a clip on the 14th amendment privileges and immunities clause in the sans v. roe decision for the court. we're going to listen and then wrap up our discussion here. >> the right enjoyed by other citizens is plainly identified in the 14th amendment privileges or immunities clause. of greater importance, the 14th amendment citizenship clause expressly e quits citizenship with residents based on the location of their prior residence. that congress passed a statute approving the residency requirements does not alter or analysis. this court consistently held that congress may not authorize the states to violate the 14th amendment. citizens of the united states, whether rich or poor, have the right to choose to be citizens
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of a state wherein they reside. >> and that was john paul stevens on the 14th east amendment privileges and immunities clause. when we talking about this slaughterhouse cases, there are a number of major cases where it is cited. here are some of them. u.s. v crook shank, plessy v. ferguson, civil rights case 1886, brown versus board of education, loving versus virginia and a case that paul clement knows well, mcdonald v. chicago argued in 2010 and he argued that case before the court. 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? >> i think paul is actually perfectly swated to answer that question because in mcdonald there were people advocating
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that slaughterhouse be overturned and the court had an opportunity to do that and didn't it. >> i'm happy to kick it off and then turn it over to you. that's an impressive list but in some ways it's the dog that didn't bark. many scholars believe that it's the privileges or immunities clause that was designed by the framers of that provision to incorporate all of the bill of rights directly against state governments. so your first amendment right to free speech which the supreme court didn't get around protecting against state government action until decades later, that was designed to be extended to state government gis privileges or immunities clause. that's the argument that many people have made. 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 kays every year where the court would be applying the privileges or immunities clause of the 14th
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amendment and not what ultimately happened, which is the same provisions were incorporated against the states, but they were done through the due process clause which i think a lot of his storyians and a lot of legal scholars say isn't faithful to the original interpretation of the constitution. just to give you one illustration of why that might make a difference is one of the things that's different about the privileges or immunities clause from the equal protection clause and the due process clause is the privileges or immunities clause gives its protection to citizens. the equal protection clause and the due process clause protect people. now since the first amendment has been incorporated against state governments, then the people that are protected by that has long be interpreted in a lot of contexts to include corporations. citizens, on the other hand, was interpreted by the supreme court a long time ago not to include options.
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and so these distinctions that, you know, legal scholars debate fairly well, could actually have real world consequences as to whether the first amendment to the constitution applies not just to individual speech but applies to corporate speech when it's being regulated by the states. >> and i think we would be remiss in our closing minutes and would get lots of e-mail tomorrow if we didn't mention that there is some evidence that some of the radical republicans who helped frame the 14th amendment said some things that they meant for the privileges and immunities clause to include the bill of rights. at the same time there's lots of evidence out there as well that not everyone who voted for 14th amendment or the people who voted for ratification in the states 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 aimts of the
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constitution now apply to the states and it would be solved. but instead some of them say things about amendments being protected and some don't. law reviews thousands and thousands of pages of people parsing what the framer of the 14th amendment intended have now been written. there would be a lot fewer law professors had they read the amendment more clearly. i wanted to make sure everyone out there watching who's written articles on this tappic we date that debate seriously. >> roger in decatur, georgia, a question quick from you. >> caller: i read mr. ross's book and justice miller was a mediocre character. he himself said he was appointed to be a reliable republican and that he was. and we've had justices that were appointed that were not legal jean suss like charles whitaker, crew know. are we making a mistake in
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judging the supreme court justices of today as if they were all legal jean uses with finally raw juris prudences or should we really take a look at them as maybe just a lot of the result of the political process. >> i'm going to let paul answer that. but i disagree with justice miller. he was very intelligent but definitely a political justice. >> let me answer the question this way, which is, there's a lot that could be said about the slaughterhouse cases and i hope we've conveyed some sense of how important these cases are. because with the 14th amendment you really have a fundamental shift where the constitution is now protecting individuals against state governments and not just the federal governments. it takes a while because of the slaughter howse case to get the full promises tof 14th amendment. but it really is a central case to interpreting that amendment. a lot can be said about the decision proor con.
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the one thing that could not be stayed about the decision at the time was that it was just a product of politics. because it was a 5-4 decision. but you actually had three 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 are not 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 and are looking to decide the legal issues in the cases. and i think that's borne out in the slaughterhouse cases as well. i'll let the professor give a full rebuttal to defend justice miller. it has been criticized bitterly by scholars. but i also think that it's a
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decision that really applied the traditional tools of at least looking at the intent behind the legislature which is a debate we're still having. >> on justice miller you tell nus your book that he has aspirations unfulfilled for chief justice and was hopeful for the presidency and you write that he's long been considered by historians as one of the key figures in the unraveling of reconstruction. does he deserve it? >> he doesn't deserve it. he didn't intend it. but because the slaughterhouse cases does not apply the bill of right against the states, when reconstruction collapses and white supremecy is restored, african americans could have turned to the privileges and immunities clause and their bill of rights to fight the legislation. and when you look for where that doesn't happen, it's the slaughterhouse cases. if you read the opinion itself which is full of ringing language of the need to protect
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african american rights, you know that is not what was intended. >> and we had a caller who asked us whatever happened to john campbell. what happened to him? >> john campbell suffers a serious accident in new orleans that makes it very difficult for him to travel. but he want to continue arguing before the court so he moves to baltimore and there continues his legal practice. after arguing a few more cases in front of the court that are anti-reconstruction, he passes. >> we have a caller on twitter -- or a viewer on twitter that asked us, please tell us where to purchase the book for landmark cases. i'm looking but can't find it. we have a small book, we're selling it at cost $8.95. that's available on our website. written by on the any morrow who has been covering the court for 30 years now and he did a summary of each of the 12 cases
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and it will help if you're going to follow along with us to learn more about the background as we proceed throughout our series. we're just about out of time. as we close here, just the quick summary, why should somebody care about the landmark case as being one of them, slaughterhouse cases? >> for the same reason they should care about reconstruction. one of the areas that americans have a blank spot in their historical memory. but the area that defines the meaning of the war. >> and you would say, paul clement in. >> i would say that i counted six of the cases that are left in the series that are major constitutional cases that involved action not by the federal government but by the state government. the reason those are constitution, questions. the reason is why 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 14thnd


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