Pox_ An American History - Michael Willrich [174]
That included federal courts. Prior to the Civil War, state and local police measures were virtually unreviewable by the federal courts, unless a measure invaded an area of exclusive congressional control (such as the power to regulate interstate commerce) or violated some specific state-restraining provision of the U.S. Constitution, like the Contract Clause. Even those limitations were controversial. And as Chief Justice John Marshall himself had reminded the American people in Barron v. Baltimore (1833), the U.S. Constitution’s Bill of Rights restrained only the federal government. If a state subjected prisoners to cruel and unusual punishments, forbade newspapers to speak ill of the legislature, or seized private property for public use without compensation, the citizens had no remedy in federal court. They had to seek relief in their state courts under their state constitutions.46
And then the war came. The Civil War transformed the nation, remade the Constitution, and attached individual rights more closely than ever before to the federal government. Still, the sweeping nation-building events of the Reconstruction period—including the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments—had remarkably little immediate impact on the theory and practice of the police power. The U.S. Supreme Court ensured that this was so.
The Court’s first opportunity to consider the Fourteenth Amendment involved a public health law. In 1873, delivering the majority opinion in the Slaughter-House Cases, Justice Samuel F. Miller announced that the police power had survived the war intact. The decision affirmed a Louisiana statute that had incorporated a massive slaughterhouse, located downriver from New Orleans, and forbade the slaughtering of animals elsewhere in the city. The law aimed to protect the public health by containing a noxious trade. But the law’s monopoly provision proved controversial. The plaintiffs, a group of white butchers, charged that the law violated their new rights under the first two Reconstruction amendments. Justice Miller made quick work of the butchers’ Thirteenth Amendment claim; the law, he said, did not create a system of involuntary servitude.47
The Fourteenth Amendment claims could not be so easily dismissed. The butchers grounded their claims in the amendment’s crucial first section, which had established a framework of new constitutional restraints on state power. The passage forbade any state to “abridge the privileges or immunities of citizens of the United States”; to “deprive any person of life, liberty, or property, without due process of law”; or to deny to any person the “equal protection of the laws.”48
But Justice Miller cautioned the American people that the Fourteenth Amendment had not turned the Court into “a perpetual censor” upon the states. The equal protection clause targeted only state action that discriminated against African Americans; Miller said the Court “doubt[ed] very much” whether any action not directed against “Negroes as a class . . . would ever be held to come within the purview of this provision.” The due process clause gave the federal government power to prevent the states from violating the procedural rights already protected from federal intrusion by the Fifth Amendment. Miller’s opinion read the “privileges or immunities” clause narrowly. That phrase, he said, referred to a limited array of long-standing rights, already protected by federal law, such as the right of all citizens to come to the seat of the national government; it did not apply the Bill of Rights to the states. To uphold the butchers’ claims, Miller concluded, would effect a great “departure from the structure and spirit of our institutions.” It would “fetter and degrade the State governments” by subjecting them to federal oversight “in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.”49
If the majority’s astonishingly narrow reading of the Fourteenth