Transcripts For CSPAN3 Justice Joseph Bradley The Fourteenth Amendment 20240713

Sanitation conditions at slaughter houses. They tried to block the sanitation rules saying it violated the 14th amendment. Up next on American History tv, a university of michigan professor explaining how the ca case. Thank you for being here and being prompt. P i currently serve as president at the Supreme Court Historical Society. Im pleased to welcome you to the third of four lectures that comprise our silverman lecture series. Before we begin the evenings program, im commanded, not asked, im commanded to ask you to turn off your electronics, cell phones, tablets, apple watches, even in silent mode they can interfere with the sound system here in the courtroom. Thank you for doing that. I would like to express the societys gratitude to our host this evening, Justice Sonia s o sotomayor. I want to thank her for taking time off at a very busy time in the life of the court. She was born in the bronx, new york. She earned a b. A. In 1976 from princeton, a j. D. From Yale Law School where she was editor of the yale law journal. From 1979 to 1984. Then she litigated. She handled universal matters where she served as associate and partner from 1984 through 1992. She was then nominated for the Supreme Court after service in the District Court and the second District Court of appeals. See this is also the author of books aimed at adults and children alike. Her most recent volume a Childrens Book is entitled just ask, be different, be brave, be you. It was published just last month. Im honored and grateful to introduce you to the host for the evening, Justice Sonia sotomayor. Welcome, everyone. Good evening, im always pleased to have you come to the Supreme Court. Im so delighted that many of you are joining us this evening for the third of this societys four part 2019 leon silverman l l lecture series. I have been part of the society to engage members in the greater world in the history of in institution. Lectures like this one are just one example. I along with my colleagues am so grateful for the work that the society does to educate the nation in the ways of the Supreme Court, the constitution, and the judiciary function. From teacher training programs, for middle school and high school, civic teachers, to publications like the journal of Supreme Court history, the societys efforts deeply enrich americans in their search for civic education. Tonights lecture is on precient dissents. As you may or may not know, i have been given a lot of opportunity to think about dissents. I hope that one day some of my dissents, too, will be viewed as pre prescient. Currently a professor in the Political Science department at the university of michigan, she received her b. A. From the university of michigan and her m. A. And phd in sociology. She has amassed a remarkable number of Teaching Awards, a testament to her devotion, not only to scholarship but also to education. Professor brandweins research bridges open conversations in law, Political Science, history and sociology. She has published two books rethinking the judicial settlement of reconstruction and reconstructing reconstruction the Supreme Court and the production of historical truth. Currently she is working on a book project that reexamines the relationship between antislavery politics and capitalist development in the United States. Professor brandwein previously delivered the leon silverman lecture for the Supreme Court Historical Society in 2015. Speaking on the courts role after the reconstruction. That the Historical Society has invited her back a second time is a powerful endorsement of how influential her scholarship has been, and how much we have enjoyed her presence. I expect that at the end of our talk, we will understand why her Teaching Awards are testaments to her power to enlighten and engage. Please welcome me in joining professor brandwein. [ applause ] thank you, justice sotomayor. Its an honor to be here i would like to thank the society for inviting me back. Its an honor, and to be asked back is just truly a privilege. My focus tonight is a dissenting opinion in an infamous case. That infamous case is the slaught slaughterhouse decision, and by Justice Joseph bradley. The majority opinion, of course, has been the target of massive criticism. The majority essentially gutted the privileges or immunities clause of the 14th amendment which reads no state shall abridge immunities of the United States. The court gutted it narrowly and by putting fundamental rights under the heading of state citizenship. Whats also familiar is the case involved white butchers. These white butchers were challenging 1869 law passed by the Louisiana Legislature and it was the Reconstruction Legislature of louisiana, and it was biracial. Blacks held 42 out of a total of 131 seats, and that biracial legislature faced an enormous amount of racial hostility. It was in between passing a pair of laws, one that barred race discrimination in public accommodations and the other that integrated Public Schools that the Legislature Pass this had 1869 law. Now, what the law said, and this is also familiar, is that it granted an exclusive franchise to a company, the Crescent City, to build a slaughterhouse. It was required to be open to all butchers, black and white alike, and all butchers had to do their slaughtering there. This was compulsory. Health inspections of livestock were required. Fees were set by the legislature and a portion of the fees went to an education fund. Now, the butchers in new orleans resisted and obstructed regulation for years. And this was typical in both american and european cities, with the rise of the Sanitation Movement in both the United States and in europe, the big cities began regulating. New york and San Francisco removed slaughtering from the city. They basically zone it out of the city. And this was upheld by state courts in 1866 and 1867. Chicago and milwaukee also passed public and compulsory slaughterhouse laws, and these were set up in both cities. The milwaukee one was upheld by a state court, and the one in chicago was struck down on what appeared to be technicalities. And the butchers fought all of this just tooth and nail. And in new orleans, we know from the work of michael ross, the conditions, the Health Conditions were absolutely awful. The butchers slaughtered animals in their front yards. This was in public. They dumped animal waste into the streets and into the mississippi river, which was the source of the water supply. And the descriptions of this are just ghastly. Of course, there were cholera outbreaks. The decisions were unpopular, and they were unpopular for years. When this 1869 law got passed, this time they got the support of white new orleans. And they got the support of white new orleans because of hostility to that biracial legislature. And on top of that, the butchers fight attracted the attention of john campbell, who represented them. Now, campbell was the Supreme Court justice who resigned his seat in order to join the confederacy. This is familiar. And campbell was deeply hostile to reconstruction. And campbell pressed hard an argument about the 14th amendment. He pressed hard an argument about the privileges or immunities clause in particular, and he argued that the butchers had a right to pursue an occupation and that that right to pursue an occupation was a right of National Citizenship. And he argued that the exclusive franchise was a monopoly that violated the butchers right in the 14th amendment. The court minority, as we know, rejected those claims. Campbell lost and the court upheld the law. Now, the court could have rejected the butchers claims and ruled that the laws with a valid Health Regulation and left the privileges or immunities clause intact. This is important to recognize, because upholding the health law did not require the gutting of the privileges or immunities clause, but the majority rejected the butchers claims by gutting the clause, defining the rights of National Citizenship narrowly and putting fundamental rights under state citizenship. The majority clearly recognized that the law was valid, but the legal basis for the ruling was the construction of the privileges or immunities clause, and that construction, the gutting of the clause, worked to block all future efforts by individuals and by corporations to challenge state regulations of property under the privileges or immunities clause. Now, to justify this very narrow definition of National Citizenship, to justify its construction of the privileges or immunities clause, Justice Miller, writing for the majority, provided an historical account. This was an historical account of the antislavery struggle. He called it, quote, a recapitulation of events almost too recent to be called history. Republicans had dual objectives coming out of the civil war. They had dual objectives for reconstruction. In general, they wanted to establish quality under law and race equality under law in particular. They also wanted to establish National Citizenship, making it primary over state citizenship. With regard to that second objective, theres an increasing scholarly consensus that republicans saw National Citizenship as including bill of rights guarantees. They saw the privileges or immunities clause as a vehicle for applying the bill of rights to the states. Millers historical account of antislavery, which he used to justify the immunities clause erased the second objective. He identified antislavery with the first objective only, race equality. The language here is familiar. He said the one perfevading purpose was the freedom of the slave race. He added, we do not say that no one else can share in this protection, but black freedom must have its, quote, fair and just weight in any question of construction. And then he add ed squarely, although he was only talking about the equal protection clause. He said we doubt very much whether anything beyond black freedom will ever come within its purview. Now bradley, who is writing a dissent, joined justice fields dissent, but wrote one of his own. Bradley agreed with the butchers, saying the infranchise was invalid. And he actually identified both republican objectives. He identified both republican objectives for reconstruction, and he connected antislavery to the invigoration of National Citizenship. On the issue of the purpose of the 14th amendment, on the issue of the beneficiaries of the 14th amendment, bradley responded directly to miller. He said, quote, it is futile to argue that none of the persons of the african race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens. And this has been regarded as prescient, as bradley correctly predicting the wide r use of th 14th amendment. Now its well known that corporations were the first major beneficiaries of the 14th amendment and the due process clause in particular, and in this respect they got a major assist from the doctrine of corporate. The court ruled that Insurance Companies had what was called a liberty of contract to do business across state lines, free from arbitrary restriction, but later, of course, the due process clause was read to protect a right to privacy. That included access to cont contracepti contraception, right to marry. Naacp won a very important case when they won the right to say no to the state of alabama when the state of alabama wanted its membership list. And the equal protection clause has had many, many beneficiaries. Even as for blacks the promise of equality under law has been both partial and long delayed. And so bradleys dissent, in saying that it was futile to limit the beneficiaries of the 14th amendment to blacks has been regarded as seeing into the future. Now, prescient means having foreknowledge, having knowledge of events before they take place. It means divine theres kind of a divining of the future. And this is a special predictive insight thats attached to that word. And in one respect, yes, bradley calls it, but i want to suggest that bradleys dissent is less a feat of predicting the future than making the future. Its less about divining whats to come than creating whats to come. I want to frame bradleys dissent as world making, not world predicting, because what we see in that dissent is the creation of a new and modern logic of liberty and governance. Its this new logic of liberty and governance that enables many beneficiaries as time unfolds. And by creating this new logic of liberty and governance, i mean something very specific. Im not talking about a flat and inaccurate notion of bradley as the father of substantive due process or laisez faire. Justice field was far more hostile than bradley to state regulations of corporations. When i frame bradleys dissent as world making and not world predicting, what i mean is that his dissent reconceptualizes the logic of liberty and governance. In his dissent, he conceives as liberty as self interested private right in option to public power. He conceives of liberty as existing in opposition to state governance, opposition to state governance of social life. And with this, he constructs a discernible discernibly modern rights bearing individual. Its man against the state. And tied to that is a new conception of the judicial role. The judicial role, henceforth, will be protecting private, presocial rights against legislative invasion. Now this is actually new. Bradley is doing transformative work. But we have trouble seeing the newness. We have trouble seeing the transformative work. Thats a vital dimension of his slaughterhouse dissent and it hasnt been seen before. And so bradleys dissent needs a new look. Because what hes doing is nothing less than reorganizing the logic of public law. Hes reconceptualizing liberty and governance. Now there are two types of obstacles to seeing this transformative work, to seeing bradleys world making. Myths about the 19th century. Theres the myth of liberalism, the idea that the United States from the founding, that liberty was always conceived as private, presocial rights in opposition to governance. Theres also the myth of the weak antebellum state, antebellum laisez faire. Now the lockner case struck down a maximum hour law. Lockner was seen as its individual policy preferences. What it does is retraces whats called Police Powers Juris Prudence. It traces that whole public purpose, that whole Police Powers Juris Prudence goss the 19th century. Its no longer about individual policy preventions. Now what the myth of liberal individualism and lockner revisionism have in common is that they deposit continuity across the 19th century. We get continuity in the conception of liberty as private, selfinterested rights against governance. We get continuity in the Police Powers framework. And so its hard to see that bradleys dissent is actually doing anything new, especially because its in a dissent. Now when it comes to addressing the first obstacle to seeing bradleys dissent as world making, these myths of the 19th century, the myth of antebellum statelessness. Its in that book that novak looks at antebellum era, and novak explodes both of these myths. He traces the antebellum world view, distinct knowledge of public law. According to the old logic, liberty was conceived as depending on governance. And the judicial role was not to protect private rights against governance, it was to protect what was called the rights of the community. Now, of course, at the founding there was a concern that the National Government might deprive people of rights. There was the idea that people had rights against the National Government. But the National Government was very far away and the National Government did not organize the governance of peoples social lives. And with regard to the rights of property and contract, those fabled natural rights, these were governed at the state level, under something called the police power. And the police power referred not to police officers, but it referred to the power of state governance to regulate property rights, contract rights to serve the public good, to serve the general welfare. And its precisely here, in tracing the state and local regulations of property and contract that we see novaks evidence, that we see this old world view about liberty and governance. And so to see bradleys transformative work, to see his creation of the modern rights bearing individual, whose liberty existed against governance, we need to briefly revisit that old vision of liberty and governance. We need to revisit what novak calls the wellregulated society. This is what he borrows from court cases at the time. Okay. So, this is the antebellum logic of public law. James wilson, the founder, chancellor kent, Nathaniel Chipman, law of nations is associated with this. And for all of these thinkers and for the antebellum courts there were two great axioms. The first axiom is that the peoples welfare is the supreme law. Private interest must be made subservient to the public good. The second axiom was use your own property so as not to injure others. Weve got two great axioms, and this antebellum logic was made up of several interrelated components. At its core was the idea that man was a relational and social being, and its not just man in the human sense of man. Its men, and the gendered subject here matters. Men were seen as social and relational beings. And this was a strand of natural law thinking, and it was preoccupied with the common good. As Nathaniel Chipman put it, the laws of nature were the laws of social nature. And tied to this was a relational theory of rights. There was a sharp projection of blackstones notion of private, presocial absolute rights. Individuals had title to property, yes. Title to property. But the use of property and rights generally were viewed as social or conventional in nature in the sense that rights were realized in society. And so liberty is viewed as impossible without society and dependent on society. And so, in turn, public power, state governance, is viewed as the necessary predicate for liberty. Government was seen as having a duty to act for the common good and acting for the common good was the way in which liberty was promoted. And the essence of law, the judicial role, was to make sure government acted for the general welfare. And this protected the rights of the community, which in turn protected liberty. And then, finally, governance was viewed as pragmatic, as dynamic. Laws changed as conditions changed, and those changing conditions had to do with market expansion, the growth in cities, changes in technology and the like. So, thats the antebellum legal world view. Its important to note that the antebellum legal logic, it was an inversion of the modern logic of liberty and governance. According to the modern logic of liberty and governance, men are viewed as individualistic in nature, man men individual in nature. Liberty is seen as private and self interested. Theres a dichotomy between private right and public power and liberty is seen as existing against governance and the judicial role is protecting private, presocial right against state invasion. According to the antebellum legal world view, men are social in nature, rights are relational, liberty is dependent on governance. The essence of law is to enable the rights of the community. And its that world view that fostered and legitimated the we wellordered society. And there was a ton of regulation. Novak reprints pages upon pages of this to make the point, how extensive these regulations were. And these regulations pertained to public space, public economy, public health, public morality. And nuisance law was one of the most important regulatory rules. To summarize this antebellum logic, man is social in nature, rights are relational, liberty is realized in society, liberty is dependent upon public power. Public power is instituted for the common good and the role of courts is to enable the rights of the community. Now, to see how bradley transforms this, we need to fold in attention to Police Powers Juris Prudence. Police powers Juris Prudence, as i indicated, has gotten a lot of attention from lockner and embedding it in these Police Powers framework. Continuity and Police Powers across the 19th century. The key point here is that bradley reorganizes Police Powers Juris Prudence. He reorganizes public purpose Juris Prudence. And its in that reorganization that he reconceptualizes man as individualistic, that he reconceptualizes liberty as private and presocial, that he introduces that dichotomy. And its in that Police Powers Juris Prudence that he basically introduces the modern rights bearing individual whose liberty exists against governance. Now, to see this, we need to say a bit about how Police Powers Juris Prudence worked, how it worked before. And this is where some of the work of the lockner revisionists, i want to fold some of that work in. In the wellregulated society of the antebellum era, we see how liberty is conceived as dependent on public power, dependent on governance. It was the duty of government to act for the community. In the Police Powers tradition, courts worked with two categories. They worked with general welfare legislation, one category. This was legislation for the community. The other category was class legislation, also called partial legislation. Courts invalidated this. This was legislation for favorites. And the rule was that the state could have no favorites. And this was how liberty was protected. Remember, liberty was seen as depending on governance for the public good. And so to require legislation for the public good was to protect liberty. This was the old judicial approach to the protection of rights. Now as i said, bradley transforms public purpose Juris Prudence. He does use both of those familiar categories. He does use that general welfare category and the favored few categories. And so at first blush, it looks like hes working within that old tradition. He rehearses valid general welfare legislation. But hes actually reorganizing those categories. Hes reorganizing the public law. Hes introducing liberalism into public law. Its now man against the state. Now, of course, the civil war had just happened, and slavery was implicated in the war. And we have new amendments. Slavery was a state institution. Slavery had been abolished. There was now a fundamental right to self ownership, but its important to remember that that right was not absolute. The 13th amendment still permitted slavery if you were duly convicted of a crime. And part of the context, too, for bradley was that republicans wanted to make National Citizenship mean something, and what they had in mind, the republicans, they had in mind rights that slave states had denied to supporters of antislavery, the right to free speech, free assembly, jury trial rights, the bill of rights guarantees. Now also part of the context was that the butchers in new orleans were making a claim for National Citizenship rights. Into Police Powers Juris Prudence. Police powers Juris Prudence, its going to be altered. Youll see National Citizenship show up. Now what he could have said, favoring the butchers, still going to go to the butchers, emphasizing National Citizenship, because thats crucial for him, but using the logic of the wellregulated society. He could have said that that 1869 law was at the expense of the community in the sense that it abrinled the rights of National Citizenship. Man is a social being, he could have said, who has a yearning for national community. Citizens of the United States have a liberty to pursue a lawful and necessary occupation. And that liberty is realized in communities governed by state regulations for the common good. And he could have concluded that that louisiana law, that exclusive grant was at odds with the governments duty to act for the common good. Now if they were right that the Police Powers framework was continuous across the 19th century, thats what we should have seen from bradley. And in framing that alternative, i have utilized what we know from novaks work. The right to pursue an occupation is a right of National Citizenship. Yes. Not changing that. Bradley is still for the butchers, still going to emphasize National Citizenship. In my alternative framing, the right to pursue an occupation bradley said, quote, there are certain fundamental rights that the right to regulate cannot infringe. And he said, quote, the write to choose ones calling is an essential right to liberty, which is the object of government to protect. An invasion of personal liberty. He repeats that many times. Quote, it is the business of the National Courts to protect that personal liberty. Which it is the job of government to protect. Here we have the newly minted rights bearing individual. The dichotomy between public right and power, in opposition to state governance. The judicial role as limiting public power, as protecting liberty against state invasion. And bradley does all of this into all four clauses of section one of the 14th amendment. And he integrates attention to all four clauses. And this actually is part of the reason that the due process clause can do all of the analytic work all by itself because its been theorized in relationship to these other clauses and within this new logic of rights and governance. Bradley cites to blackstone about private absolute rights. In the grip of individualism, theyre going to draw a Straight Line from bradley back to blackstone. And this is a mistake. Its also notable that bradley draws on concepts and political languages from outside the court and he brings them in to law. He reorganizes them. One of the preexisting concepts he draws on is substantive due process. Antislavery activists since the 1830s and even prior to that used due process of law. They called on the natural right to self ownership. And that right existed in all of the natural law traditions at the time. And that supplied the substantive content to due process of law. It supplied the substantive content to the republicans argument, antislavery argument that due process protected the right to freedom in the western territories. He actually displaces the natural tradition of the wellregulated society. Field gives us none, which is another indicator that bradley is doing all of this transformative work. Bradley tells us its due process is irrelevant to this case but again its one of those clauses that bradley is weaving into this new theorization. He also draws on the free labor language of the republican part party. They argued and they give this language over and over that slavery degraded labor. When bradley announces that the white butchers had, quote, a sacred right to labor, sacred is the key word here. Whats crucial is that bradley, he renders the right to labor in absolute terms, fuses it with blackstone. Its going to be rejected in the favor of balancing of rights. We have in bradleys dissent a modern rights bearing individual. That dichotomy between private right and public power. Shielding private right from state legislate iive invasion a bradley succeeds in this work, in institutionalizing this new logic of rights. And even Justice Miller in his majority opinion gets dragged along. Now when he says at the sense of the community in the sense of being a curtailment of fundamental rights, hes conceding bradleys judicial role as protecting private rights against legislative curtailment. Bradleys reformulation is elbowing its way into millers own formulation of the question. Now, scholars have been so focused on miller putting fundamental rights in the state citizenship category, and so focused on bradley saying that fundamental rights were in the National Citizenship category that they have entirely missed how bradley is reworking the logic of liberty and governance. Now bradley is certainly relocating basic liberty from state citizenship to National Citizenship, but that is not what ive been calling world making. Remember, bradley loses on National Citizenship, on the immunities clause. And they get those benefits without the privileges or immunities clause, without his construction of National Citizenship. Bradleys dissent is world making because he succeeds at reconceptualizing liberty as private, presocial rights existing in opposition to governance. Henceforth, judicial role is going to be framed and understood and taken for granted as protecting private right against state legislative incursion. The hallmark, that modern hallmark is there, private right versus state power. And we see the success of this in the 1877 case mann versus illinois. The state upheld granger legislation. This was farmerfriendly legislation that fixed the maximum rate that Grain Elevators could charge in chicago. Now, the court in munn did use the notion of public purpose. And so on the surface, it again looks like the traditional two categories of Police Powers are organizing this decision, but the court actually upheld that state regulation, using bradleys new logic. And the key language in munn is that the court refers to, quote, rights which are purely and exclusively private, and those rights, which are purely and exclusively private, were beyond the reach of state regulation according to the court in munn. Again, here is this hallmark of the new logic. Purely and exclusively private rights in opposition to public power. Now, in munn, the court says theres no legislative invasion here. Theres no legislative invasion against rights that are purely private. And thats because the court said we have private property thats devoted to a public use. And here we get the court introducing this new category, businesses affected with the public interest. And the court says, states can regulate them. States can regulate businesses affected with the public interest. And the court says its following antebellum Police Powers cases. Its calling on these cases as precedent, as support. And this is actually fooled scholars into thinking munn is continuous with the old Police Powers framework but its not. The court is applying the new logic of liberty and governance. It take force granted the dichotomy between private, presocial rights, exclusively private rights in opposition to public power. It takes for granted that the judicial role is protecting purely and exclusively private rights against legislative invasion. Yes, we have this new category, business affected with the public interest, but that is simply about line drawing within the new logic. Justice field dissents, and he says, yeah, those maximum hour rates, those maximum rates, theyre an invasion of private property. Theyre an invasion of those private and exclusive rights. And in justice fields dissent, its very clear that hes working within the new logic. But the key point, actually, is that both sides are working within the new logic. The majority is working within the new logic as well. And what we have between the majority and the dissent is a disagreement about where that line is between private right and public power. And that line is going to move. And fields line drawing is later going to get the upper hand. And it gets the upper hand in 1890, in the case chicago, milwaukee, st. Paul railroad in minnesota. In this case, the Court Decides substantive rates put on railroads that are set by the state are subject to judicial review. So substantive rates on the railroad set by the state are subject to judicial review. In this case, field is in the majority. He wins. Bradley is now in dissent. And whats happening in this case is that private right is expanding. Private right is expanding because the court is deciding on rates in favor of the railroad. Both the majority and the dissent. With the new deal constitutional revolution, well see man versus the state. And i mentioned that earlier. Well see the balancing of rights. And theres going to be the new thing called tears of scrutiny. Bradleys work is premised on a new kind of suspicion of state legislatures. Its not only class legislation or partial legislation thats the problem anymore. Theres a turn in the story and thats because bradleys reconceptualization of liberty and governance, his reorganization of the logic of public law is premised on a series of dubious legal moves and in that series of moves, all of them problematic. Bradley frames the exclusive franchise as an obviously illegal monopoly, and he portrays the Reconstruction Legislature as utterly incompetent and oppressive. His world making, modern rights bearing individual whose liberty exists in opposition to governance, that world making is premised on a series of dubious, legal and factual moves and premised on a portrait of the Reconstruction Legislature of louisiana and Reconstruction Legislatures generally as oppressive. Okay. I want to walk through these moves and i want to show the basis for his new vision, his reconceptualized vision of liberty and governance. Scholars havent identified these moves, or framed their juris prudential suhr significan significance. All of this is new, too, with regard to bradleys dissent. Okay, first, bradley calls butchering an ordinary trade. Its not. Its a nuisance trade. And slaughtering in what were called builtup areas were already treated as a per se nuisance. This was already the law of the land. And the new orleans area was a builtup area. It was densely populated. We saw this in the new york case, in the San Francisco case that removed slaughtering from the cities. These cases had already been decided, 18661867. Bradley uses the designation of slaughtering as an ordinary trade to declare it a monopoly. Monopolies in ordinary trade runs lawful. Well, yes, as a general axiom, that is absolutely true, but slaughtering in the new orleans area is a per se nuisance. Its not an ordinary trade. Now theres an implicit recognition by bradley that slaughtering in the new orleans area is a nuisance trade, because he concedes that removing slaughtering from the city is a valid police regulation. But ordinary trades are not subject to removal. And so this is an internal contradiction in practicedleys dissent and he never resolves it. The next problem is that bradley asserts that butchering is a trade means keeping your own slaughterhouse. The keeping of the slaughterhouse is part of the trade of being a butcher. And that assertion is the basis for his claim that the exclusive franchise deprived the butchers of their occupation. Now, remember, in general, hes re bradley, in general, is reconceptualizing liberty as private right and opposition to legislative invasion, opposition to public power and specifically hes arguing that the butchers private right to pursue an occupation was being assaulted by the Louisiana Legislature. To do that, he frames butchering in the new orleans area as an ordinary trade, even though its not. But he needs that for claiming that the exclusive franchise is a monopoly. He also claims that butchering is a trade means keeping your own slaughterhouse and he adds that no englishspeaking people would ever endure the deprivation of such a trade. Well, whats happening in the United States and in the world at this time . Weve got the Sanitation Movement of the 1850s, as i mentioned earlier. Butchering, as a trade, was already undergoing modernization. The livestock trades were undergoing consolidation for health and Public Safety reasons. Butchering as a trade was already being redefined. This started in paris as early as 1810. In 1810 there were compulsory slaughterhouses set up around the city. In 1867, one grand slaughterhouse was built in paris. And this was the model for the 1869 louisiana law. Now, louisiana, of course, was a french colony. So, theyre keeping their eye on whats going on in paris. But it extends far beyond paris. In the 1840s and 1850s, all of these major european cities are setting up public and compulsory slaughterhouses, frankfurt, milan, brussels, vienna, the list goes on. And in these cases, butchering is being redefined, doing your own slaughtering in a public central facility and dressing and selling the meat on your own property. As for whether englishspeaking people would ever accept this, glasgow did this in the 1850s, edinboro did this in 1850s, even in england. And in the United States before 1869, there were three precursors when it comes to public and compulsory slaughterhouses. New york did this in the colonial era, in 1676. Then there was the milwaukee case and chicago case, which i had already mentioned. Many big cities start to do it in the 1870s, boston, new york, philadelphia start doing it in the 1870s. Thats afterward. The Louisiana Legislature was basically in the vanguard of this. Now, closer to home, Jefferson City did this in 1862. Now, Jefferson City was the municipality right next to new orleans, separate municipality. They passed their own laws. And Jefferson City was where the butchers were actually concentrated. Jefferson city in 1862 passed its own law that tracked almost exactly the 1869 law passed by the Louisiana Legislature, the state legislature. There was an exclusive franchise given to a private company, Health Inspections were required. It was compulsory. It tracked the state law in almost every respect. Now, it never got built because of the war. In 1868, Jefferson City revived it, because this continued to be a major problem. Theyre signing up to the Jefferson City law. More importantly, we can infer that bradley knew about the Jefferson City laws. We can infer this because randall hunt argued the case for the Crescent City company at the state level, the Crescent City company that got the exclusive franchise. Randall hunt is arguing for the company at the state level and he wins at the state level. Hunt also argued the case before bradley, when bradley heard this case on circuit. And so we have his brief at the state level. So if we can assume hes using the same arguments before bradley, than we know that bradley knew about the Jefferson City 1862 law. Now, randall hunt treats campbells claims that there was an absolute right to property in the occupation. An absolute right to property in occupation. Hunt treats this claim by campbell as just off the wall. And it was off the wall under the old framework of the wellregulated society. And hunts brief gives all the arguments that one would make who is operating in the terms of the wellregulated society. He cites the new orleans grand juries on the awful conditions. He identifies the Jefferson City law and he analogizinyizes it t public theres a need for capital investment. You need to keep up with machinati machination. It was known at this point that hygienic processing depended upon access to Running Water and that depended on huge, huge water pumps that required an enormous capital investment. In this regard, i want to mention the work of her better hovencamp. He emphasizes the invention, recent invention of refrigerated railroad cars, which you would need to ship livestock all across the country. And new orleans was dependent on the livestock industry for its economic recovery after the civil war. Now, its also circulating at the time, on the ground at the time is that after the war, folks in new orleans became aware of this big mass of texas cattle that now could be brought to new orleans by a new railroad thats getting built and in order to take advantage of this big herd of texas cattle, you actually need a massive landing. So its not just about keeping the slaughterhouses clean. Its about making sure theres a big, massive, centralized landing to take advantage of this big herd of texas cattle. And all of this fits into the logic of the dynamic, wellregulated society. It fits it perfectly. But bradley says the exclusive franchise, quote, has not the faintest semblance of a police regulation. And he goes further than that. He invokes the Reconstruction Legislatures as Reconstruction Legislatures and he says, referencing the 1869 law, quote, it is one of those arbitrary sband unjust laws made by few scheming individuals that some of the Southern States have, within the past few years, been so deplorably oppressed and impoverished. And he said something very similar on circuit. He said, quote, the injustice perpetrated under acts of irresponsible legislation have become a crying evil in our country. This is a portrait of Reconstruction Legislatures as oppressive. And theres one more vital move that i want to identify. And it works to present the Reconstruction Legislature as just patently unreasonable. Now, bradley opens his dissent and field actually does the same thing. With a description of the 1869 law as covering three parishs, orleans parish, st. Bernard. 1,154 square miles and they give the breakdown by parish and say it affects between 200,000 and 300,000 people. Now, if you think about it, one facility for nearly 1,200 square miles and 300,000 people, that seems a little drastic. And bradley presents these numbers. He repeats the nearly 1,200 square miles multiple times to make the point about how unreasonable this legislature is. The thing is, that number, 1,200 square miles, introduces a massive distortion. I went back to sources available at the time. So im going back to these sources. Theyre the u. S. Centennial gazettes, state sources. They actually all say the same thing, which is theyre very similar. One of the things they say, first of all, is that the total population is 219,000, not 300,000. Thats the small point. More importantly, st. Bernard parish, this is the parish thats below new orleans and it fans out into the gulf of mexico. St. Bernard parish was listed by bradley as covering 620 square miles. Thats over half the area covered by the law. St. Bernard parish, in all of these sources, is described as almost completely uninhabitable. Theres nobody there. Its described as swamps. Je jefferson parish, 384 square miles. Thats a third of the area covered by the law. And its also described, consistently across these sources, as having vast tracts of undeveloped land. They talk about much of the soil being untillable except in the north and all the swamps and lakes that cover the rest of the parish. Even in orleans parish, 150 square miles, its described as having its whole upper portion covered by water. And then when you add to that the value of farm production, the cash value of farms, the value of manufacturers, because this information is also given in these sources, theres almost nothing going on in st. Bernard parish except for some sugar plantations and theres not much going on in jefferson parish, and its all concentrated in the north. This picture is reinforced by population per parish, per parish. St. Bernard parish, 620 square miles has 3,500 people. Orleans parish, 150 square miles has 191,400 people. So almost 90 of that 219,000 people are all concentrated in the lower half of new orleans. And so the population covered by this 1869 law is very concentrated, its all in a builtup area and now were back to slaughtering as a per se nuisance, not an ordinary trade. And so that nearly 1,200 square miles that bradley repeats over and over again, its just a very significant distortion. And so we have all of these dubious moves. Butchering is an ordinary trade in the new orleans area. The definition of butchering is keeping a slaughterhouse. The explicit hostility to the Reconstruction Legislatures, the 1,200 square miles. All dubious, as a matter of law, as a matter of fact, as a matter of logic. All of it, though, is the basis for bradleys reconceptualization of liberty of private rights against public power. Man against the state. Its all premised on the series of dubious moves. The biracial legislature, i want to briefly turn to the issue in the recent slaughterhouse scholarship. Its been suggested in the recent slaughterhouse scholarship that theres racism on both sides and so it washes out as an issue in this case. Weve got the racist butchers in campbell on one side and on the other side this figure, jar merh black, who is a lawyer for the Crescent City company. We know he was the Crescent City company. He was antilincoln and antireconstruction. Its been claimed that jerimiah black swallowed distaste for the carpetbaggers coming in and getting the benefit of the exclusive franchise and that black had had a litigation strategy to gut the privileges clause for racial reasons. The source of this is a 1930 dissertation and it was published as a 1934 book on jerimiah blacks speeches. The book is in the tradition of the dunning school. More importantly than that, he has not a shred of evidence about jerimiah blacks words in the slaughter house cases. There is absolutely no evidence whatsoever. And, in fact, we know from the work of charles on reconstruction that it wasnt jerimiah black that gave oral argument before the court. It was matthew carpenter. We dont have his brief, unfortunately. That was not preserved in the record. We know from private correspondents it was carpenter that argued the case, not black. Black is listed as a lawyer for the Crescent City company. He is listed in the decision. You can go search his name and youll find it. Black is cited for the motion to dismiss w regard to that motion to dismiss, there is one final twist in the story. That twist pertains to two both scholarly claims about jerimiah black and this racism on both sides argument and one of bradleys dubious moves. Now in 1871, this is after the butchers had lost the state level but won at the circuit level. They held the case over for reargument and theres with a 44 tie. So in 1871, before reargument, those white racist butchers represented by campbell, fighting the Crescent City company, in 1871, those butchers bought the company. They bout tght the crescent cit company. They are the new owners of the slaughter house company. Theyre the new board of directors. They bring the motion to dismiss. They say its no longer a controversy. They pay campbell. They say buy campbell. We have all of the affidavits. Its in the motion to dismiss. Its in the landmark briefs. And so jerimiah black is representing them. Hes representing those original butchers. Remember, he has no evidence anyway. No evidence about black. Now campbell at this point may or may not be working pro bono for the very few butchers who were not included in the buyout. Because a couple of names were on the original cases and they were basically left out. So theyre mad. They want to keep going. And the Supreme Court denied the motion to dismiss because some of the names were actually on the cases. But paul estaban and fagan are still on the cases. You cant take them off at this point. This is full scholars and to continuing to frame the case in 1873 as still involving the original white butchers in the 17 investors when thats not the case at all. Bradley keeps talking about the poor white butchers even though now theyre the monopolists. And so as a matter of law, what still in question is the exclusive franchise. As a matter of law, the court still has to rule on. That bradleys rhetoric works to paint the original butchers as still there. Theyre still the victims. They are still being deprived of a trade even though they now own the Crescent City company. Okay. Where does this leave us . We have bradleys transformtive work. He rethinks liberty and governance. He reconceptualizes liberty against governance. He introduces the rights bearing individual. He introduces the hallmark of modern liberal constitutionalism that dichotomy between private right and public power. He gives us man against the state. Women too, eventually. And all of that transformtive work, all of that reworking of the logic of public law is built on a series of dubious legal moves, factual distortions and a new kind of suspicion of legislatures as legislatures. Now that new logic of rights and governance gets solidified as the suspicion of legislatures as legislatures shifts to farmer led legislatures. And this happens later on. Its a new group of justices now that are part of the granger legislatures. At the same time, that new logic, bradleys new logic does not mat neatly on to pro or antireconstruction positions. Its going to live on in modified form. Its going to be used in different contexts and its going to have many different beneficiaries. But attending to bradleys distortions matters. It matters under which the modern rights bearing individual appears in constitutional law. Now in closing, i want to make two points. The first of those is that bradley is a complex figure. His hostility to that biracial legislature does not mean he was hostile to all of reconstruction. As i traced out the last time that i was standing here, in 1874, bradley wrote a circuit opinion in the decision which let klansmen walk free throughout indictments against clanzme klansmen. In that decision, he gives us a coordinated theory of all reconstruction amendments. Hit wide authority at the time, klan lawyers hated it. Thats a big signal. If the klan lawyers hate what your writing, you notice that. That theory brought a future indictment against klansmen for violence, infractions against violence and voting. Theres only one aspect of this theory that i want to recall. I want to recall bradleys Voting Rights theory. Its built from the distinction that is gone today and that makes it hard to see. That Voting Rights theory was the basis for the voting right productions in the south in the 1880s. Will that reboot of Voting Rights protections, which is not generally part of the story of the reconstruction that produced a unanimous decision in 1884 which sent klansmen to jail under in part the 15th amendment. That would be impossible to explain if the conventional story about the court band onning blacks in 1876 were true. The reboot are also impossible to explain if bradley were hostile to reconstruction across the board. The key thing about yarborough and the Voting Rights reboot is that that theory thats used traces to bradleys 1874 opinion. This is bradleys work. Its been lost to modern observers. I trace it in my 2011 book and i relaid it to bradleys hostility to what at the time was called social equality. Bradley would have rejected this. He thought that these kinds of laws oppressed whites. But its the mix, its the mix thats difficult to see that he can both be very supportive of Voting Rights and go out of his way to create a Voting Rights theory and be very supportive of the Civil Rights Act and yet have this very deep hostility on the social equality dimension. So that mix is difficult for modern observers to see. And bradleys reorganization of liberty and governance in the slaughter house cases, his world making and the slaughter house cases is also difficult for modern observers to see. But that reworking of public law in the slaughter house cases was much more successful. It got institutionalized. It got institutionalized right off the bat. And so between bradleys transformtive work in the slaughter house cases and his coordinated theory in 1874 which produced that fruit of the 1880s among other things, between both of those things, bradley now appears as the major their for the reconstruction court. Scholars missed these things for so long. The recounts are now rejected, the legal languages of the 19th century, those legal languages of the 19th century have continued to be obscured by anachronism and myth. And then finally, for years he presents as protecting the rights of National Citizenship, of applying the bill of rights to the states. Thats where i started to night. But there is a gap between bradleys conceptualization of National Citizenship, the con acce conce conce this does not equal the privileges or immunities clause. Those are different things. Original incorporation in 1868 might easily have been conceived in the terms of the well regulated society. And this is a point about history. Its not pint about originalism. For the scholars arguing for a corporation of the bill of rights under the privileges or immunity clause and if think that a corporation under privileges or immunities advance their own commitmentes, there is a deeper agreement among them that i want to end on. Because even though they have different brands of individualism, they all take for granted the modern logic of private right and opposition to public power. That agreement marks them as living not in the world that bradley inherited in 1873, but in the legal world bradley did so much to create. Thank you very much. Youre watching a special edition of American History tv airing now during the week while members of congress are working in their districts because of the pandemic. Tonight at 8 00 eastern, the Virginia Museum of history and the university of of course oak center for study of American Indian law cohost a symposium on chief Justice John Marshal and the Supreme Courts decisions and cases involving the forced relocation of the cherokee nation. Every saturday night, American History tv takes you to College Classrooms around the country for lectures in history. Why do you all know who lizzy borden is . Raise your hand if you ever heard of of this murder, the gene harris murder trial before this class. A deepest cause where well find the true meaning of the revolution was in this tran transformation that took place in the minds of the american people. Were going to talk about both of these sides of the story here, right . The tools, the techniques of slave owner power. Well also talk about the tools and techniques of power that were practiced by enslaved people. Watch history professors talk about the American Revolution to september 11th, lectures in history on cspan3 every saturday at 8 00 p. M. Eastern on American History tv and lectures in history is available as a podcast. Find it where you listen to podcasts. And now a conversation on the