This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
The famous Slaughter House Cases,3 decided in 1873, grew out of the following facts: The State of Louisiana in the exercise of its "police powers," had passed an act chartering a company, and giving to it the exclusive right to establish and maintain stock-yards and landing places and slaughter houses for the City of New Orleans, and providing that all animals intended for food should be slaughtered there. The plaintiffs in the cases that have since come to be known as the "Slaughter House Cases" alleged that this act was unconstitutional as tested by the federal Constitution on the several grounds that it was in violation of the Thirteenth Amendment in that it created an involuntary servitude upon the part of those who were compelled to resort to this privileged company; and that it was in violation of the Fourteenth Amendment in that it deprived persons of liberty and property without due process of law, denied to them the equal protection of the laws, and abridged the privileges and immunities of citizens in the United States. It is only with this last claim that we are now concerned.
As we shall later see, the Fourteenth Amendment has been construed to give to the federal courts the power of examining whether, in the exercise of their ordinary police and other powers, the States have denied to anyone due process of law or the equality of the laws, but the claim that the rights and immunities which were alleged to have been violated by the Louisiana statute were ones coming within the scope of the phrase "privileges or immunities of citizens of the United States" as used in the Fourteenth Amendment, raised the fundamental question whether or not, by that Amendment, the entire so-called "police powers" of the States had been placed within the direct legislative definition and control of Congress. This would have resulted from the fact that by the Amendment Congress is given authority to enforce its provisions by appropriate legislation. If, therefore, such a right as was here alleged to have been violated could be held to be a federal right it would be within the power of Congress to define it, and all other similar rights, and to impose penalties upon their violation, and thus to deprive the States of their entire police powers. These police powers, it is scarcely necessary to observe, cover almost the entire field of private rights, personal and proprietary, including, as they do, the general authority of the State to legislate regarding the social, economic, and moral welfare of its citizens. To have granted the contention of the plaintiffs would thus have made Congress, instead of the state legislatures, the possible source of the great body of private laws by which the citizen is governed. It is, therefore, not surprising that the court in its majority opinion should have said: "We do not conceal from ourselves the great responsibility which . . . devolves upon us.!No questions so far reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States 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 during the official life of any of its present members."
2 In the following pages there is not attempted a general examination of the Fourteenth Amendment, but only a consideration of the extent to which this addition to the Constitution may he said to have altered the general character of our constitutional system, especially with reference to the extent to which either Congress has been granted an increased legislative power, or the Federal Government endowed with a general supervisory jurisdiction over state legislation.
3 1G Wall. 36; 21 L. ed. 394.
The argument of the plaintiffs which found acceptance in the opinions rendered by the minority of the court was that the individual as a free man and citizen of a State, had, before the adoption of the Amendment, certain fundamental rights, privileges, and immunities, whichi were determined by state statutes and the general principles of the common law, and that by that Amendment the citizen became primarily a citizen of the United States, and only secondarily, by residence, a citizen of a particular State of the Union, and that, therefore, these fundamental rights, privileges, and immunities which formerly belonged to him as a citizen of the State in which he lived now became his as a citizen of the United States, and, as such, no longer subject to abridgement by the States. Only by this interpretation, it was argued, could the clause of the Amendment which we are considering, be given any force whatever. Thus Justice Field, in his dissenting opinion, argued: "The Amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by state legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers ... to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any state legislation of that character. But if the Amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence." 4
4 As illustrative of, and as a partial enumeration of these federal privileges and immunities, Justice Bradley quoted the language used by Justice Washington in Corfield v. Coryell (4 Wash. C. C. 380) in interpreting the article of the Constitution which provides that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. "The inquiry is," said the Justice in that case, "what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent and sovereign. What these fundamental privileges are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or reside in, any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental."