Liberty vs. Equality

What’s the Debate?

There are no two ideals more sacred to the American political tradition than liberty and equality. The Declaration of Independence asserts both: that “all men are created equal”; and that they are endowed by their Creator with certain inalienable rights, namely “life, liberty, and the pursuit of happiness.” Patrick Henry famously exclaimed, “Give me liberty or give me death!” while John C. Calhoun asserted states’ rights by declaring, with a trace of irony, “The Union—next to our liberty, the most dear.” Likewise, Jacksonian democracy and abolitionism were movements both passionately committed to different, even contradictory, kinds of equality: for all white male citizens or for all persons, including women and African-Americans. Despite widespread admiration for these ideals, the challenge throughout our history has been which should take priority when they come into conflict? To take one example, the goal of economic equality that the New Deal pursued conflicted with the economic liberty of the wealthy classes who paid much higher taxes, an argument mirrored today as progressive demands to remedy income inequality run up against the libertarian case for tax cuts and less regulation.

An Example of the Debate

No amendment to the Constitution better encapsulates the tensions in the application of these ideals than the Fourteenth Amendment. This amendment was ratified by the states in 1870 as a means to protect the basic liberties of newly emancipated slaves and to provide them “equal protection of the laws.” (Read the 14th Amendment language.) As with much of the language in the Constitution, however, the Fourteenth Amendment contains ambiguities that allow space for courts to construe its meaning when applied to specific situations. In The Slaughterhouse Cases, a landmark 5-4 decision handed down soon after ratification, the Supreme Court took the first step in the legal construction of the Fourteenth Amendment. The stark divergence of interpretations among the justices is a striking example of when the meanings of liberty and equality are not easily resolved.

The Historical Setting, Explained

The Slaughterhouse Cases originated as a matter of public health. The city of New Orleans, which at the time had one of the highest rates of contagious diseases in the country, wanted to consolidate all animal butchering done in the city at one location outside the city and downriver. For decades, citizens had complained about local butchers disposing of the remnants and offal of their trade in empty lots, street gutters, and the Mississippi River itself, much to the discomfort and hazard of local residents in a hot, humid climate. Using its “police power,” one of the most inviolable powers reserved to local authorities, the legislature of Louisiana granted a monopoly in 1869 to the Crescent City Slaughter House Company to manage a single facility that all butchers in the city were mandated to use for a reasonable fee. What might seem like a common-sense solution that mirrored public-health practices across the U.S. and Europe instead provoked a strong backlash from local butchers and cattle owners, who decried the law as corrupt favoritism and sued to prevent it from taking effect. Perhaps not coincidentally, the state legislature who passed the bill was the first racially integrated legislature in the state’s history, with 42 black members elected through the support of Reconstruction electoral protections.

How Did the Debate Play Out?

The butchers’ associations had no luck challenging the law during the trial or upon appeal until one of their lawyers came up with an ingenious reading of the Fourteenth Amendment. That lawyer, John A. Campbell, had been a member of the U.S. Supreme Court during the 1850s until resigning when the Southern states seceded in 1861. Working in private practice in New Orleans, Campbell still had the respect of many of his former colleagues in Washington, D.C. and agreed to take the case to the Supreme Court. Campbell based his argument on three phrases in the Amendment’s first clause: “privileges or immunities,” “due process of law,” and “equal protection”. These three phrases echoed language in the original Constitution, and have proven to be the most important phrases in Fourteenth Amendment jurisprudence. At the time of the appeal, only a few years after ratification, the phrases were generally understood to extend protections to freed slaves from discriminatory laws, called the Black Codes, which Southern state governments had passed after the Civil War to keep former slaves in a condition of legal servitude. Campbell noticed, however, that the Amendment’s language was universal, speaking of the privileges or immunities of all “citizens of the United States.” On this basis, he argued that the property rights of the butchers—their “right to labor”—had been abridged by the New Orleans slaughterhouse law. Justice Joseph Bradley found Campbell’s argument persuasive and issued an injunction against the law, setting up a hearing before the full Supreme Court.

So What Happened?

The case proved to be controversial among the nine justices, resulting in a 5-4 decision that affirmed the Louisiana legislature’s right to pass the law. (Read more about the case.) The closely divided court reflected the different emphases that justices put on liberty and equality in their decisions. Writing for the majority, Justice Samuel Miller emphasized the historical context of the Amendment, which had been written to protect the equality of African-Americans as a special class subject to manifest discrimination. Miller argued that extending the Amendment’s protections to all citizens, including for property rights, would dramatically increase federal power at the expense of the states, not to mention diluting the primary purpose of protecting the rights of former slaves. Because the case only dealt with butchers, Miller and the majority ruled narrowly, choosing to exercise judicial restraint until a case of clear racial discrimination came before them.

The dissenting justices, on the other hand, were far more expansive and elaborated Campbell’s focus on property rights, creating what became known as the doctrine of “substantive due process.” In essence, Justices Bradley and Stephen Field argued that the state did not have the right to regulate the property or free labor of the New Orleans butchers, even in the interest of public health. They saw the monopoly created by the law as arbitrary and unjust to those rights, depriving the butchers of “life, liberty, or property without due process of the law.”

As with many Supreme Court cases, the circumstances of the Slaughterhouse Cases were specific and local, but the questions of interpretation that it raised have resonated within legal and public policy ever since. Miller’s laudable exercise of restraint left the question of racial equality for later justices. Yet following the end of Reconstruction, the Supreme Court allowed Jim Crow governments in the South to curtail the rights of African-Americans based on narrow distinctions, such as the “separate but equal” doctrine in Plessy v. Ferguson (1896). Conversely, Bradley’s dissent became the basis for using the Fourteenth Amendment to defend the property rights of not only individuals but also corporations from state regulation. It was not until the 1930s that the Court shifted its priorities back to Miller’s position – focusing on racial discrimination at the state level. The battle over the Fourteenth Amendment showed that definitions of liberty and equality always involve the question of whose liberty and whose equality, and how to resolve the question when these come into conflict.

Further Reading:

Hall, Kermit L., ed. Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992. 789-91.

Labbé, Ronald M., and Jonathan Lurie. The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment. Lawrence, KS: University of Kansas Press, 2003.

McCloskey, Robert G. The American Supreme Court. 4th ed. Revised by Sanford Levinson. Chicago: University of Chicago Press, 2005 [1960]. 76-81.