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The Slaughterhouse Cases, the Key to Controlling Illegal Immigration?
US Supreme Court ^ | 1872 | MILLER, J., Opinion of the Court

Posted on 04/29/2003 6:32:00 PM PDT by Carry_Okie

This is the first interpretation of the 14th Amendment on record.
The following text is from the majority opinion (about 3/4 of the way down the page):

http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/historic/query=[group+f_slavery!3A]/doc/{@6621}/hit_headings/words=4

Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC+)
Opinions
MILLER, J., Opinion of the Court

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.

The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

Enjoy!


TOPICS: Constitution/Conservatism; Culture/Society
KEYWORDS: carryokie; corruption; illegalimmigration; stupidlawyers
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I'm leaving for dinner and will be back to discuss this tomorrow.
1 posted on 04/29/2003 6:32:00 PM PDT by Carry_Okie
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To: JackelopeBreeder; DoughtyOne; madfly; Dog Gone
Um, I think you'll find this definition of citizenship rather interesting.

If somebody has findlaw, could you please bring up Bridges v. Wixon, 326 US 35 (1945)? There I believe is a clarification that legal aliens are under US jurisdiction (which frankly contradicts the first ruling).

Clearly illegal aliens are not.

2 posted on 04/29/2003 6:36:08 PM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie
What a good find, too bad it will be politically ignored.
3 posted on 04/29/2003 6:37:36 PM PDT by MissAmericanPie
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To: Carry_Okie
I am curious as to why the founding fathers, jefferson, washington, franklin, etc. are legal immigrants and people whom you don't like are not. Basically, these guys got in a boat and just showed up and presto, they were legal, while after 1920 or so, you could not do that.
4 posted on 04/29/2003 6:54:33 PM PDT by staytrue
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To: Carry_Okie
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=326&page=135
5 posted on 04/29/2003 6:59:19 PM PDT by Ready4Freddy
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To: Carry_Okie
Here's the case, but I don't think it really helps that much in where you're headed. Legal aliens are entitled to some of the protections of the Constitution. That's the clear holding.

But it would be legally wrong to conclude the opposite based on that case.

6 posted on 04/29/2003 7:05:33 PM PDT by Dog Gone
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To: Carry_Okie
After the Slaughterhouse Cases, the Court changed its position on the Amendment, thus giving us incorporation. It is highly unlikely that the Court would rule the same way today, or use it as a precedent.
7 posted on 04/29/2003 7:26:43 PM PDT by NovemberCharlie
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To: NovemberCharlie; Dog Gone
After the Slaughterhouse Cases, the Court changed its position on the Amendment, thus giving us incorporation.

No kidding. Have you read the full opinion? I haven't yet, but the history therein promises to be most interesting reading. The rise of corporations funded by European money just after the Civil War was the reason I had developed an interest in the 14th Amendment. The owners of the "charitable" foundations that came out of that period have played a key role in the global institutional corruption that has its nexxus at the UN. What that trend portends is probably well understood from the predative history of the Dutch East India corporation cited therein. I am intent upon studying the foundation of what I suspect is a legal house of cards.

It is highly unlikely that the Court would rule the same way today, or use it as a precedent.

Excuse me, but that sounds just like the "living Constitution" crap we get from liberals, who only use precedents that are convenient to fit their agenda. Are you asserting that the current court, or that which is likely to be appointed by President Bush will continue to pay obeiscance to habitual flaunting of the Constitution by the Executive Branch? I agree that it might.

The interesting thing about the ruling is that the Court had access to the intent of the drafters of the 14th Amendment. A constructionist court would therefore interpret the Amendment per its intent and meaning when ratified. If the people want something different, they can pass a new amendment offering citizenship to whoever they wish.

Such an Amendment wouldn't pass either, would it?

So we get the ideological ilk of Bridges v. Wixon, 326 US 35 (1945) the work of a fully packed Roosevelt court. It is a case that carries far less weight interpreting the 14th Amendment (at least in the objective sense) than does the Slaughterhouse Cases however well habituated those corporations have become to the destruction of our national sovereignty.

Further, should those who advocate reasserting the sovereignty of the United States and demand that it control its borders find out that Constitutional law, as written and interpreted by the SCOTUS, has been TOTALLY contradicted by the government, the anger that fact will generate might well weaken the political will to continue with the current policy. Don't you think Mr. Tancredo would like this little paragraph in his hands? I do.

Finally, the States have borne the cost of maintaining social services for the children of aliens based upon the fraudulent premise that those services were being dispensed to American citizens. The States would thus have stronger cause to demand compensation from the Federal government for those costs.

I agree with you that the Slaughterhouse cases have not oft been cited, but the reason for that may well be more confirmation of its import than it is reason to ignore it.

8 posted on 04/29/2003 11:29:43 PM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: staytrue
I am curious as to why the founding fathers, jefferson, washington, franklin, etc. are legal immigrants and people whom you don't like are not.

Race baiting already? No dice. The problem isn't race; it's rate.

Basically, these guys got in a boat and just showed up and presto, they were legal, while after 1920 or so, you could not do that.

All the people you listed were born the thirteen colonies. None were immigrants. They placed restrictions in the Constitution that no foreign born person could be President too.

9 posted on 04/29/2003 11:35:24 PM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie
Yesterday's Supreme Court ruling in Demore v. Kim was an important step in the right direction.

Once again, the 5-4 decision emphasizes how important it is to maintain a conservative majority on the Court.

10 posted on 04/30/2003 6:11:14 AM PDT by Dog Gone
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To: Grampa Dave; farmfriend; Ernest_at_the_Beach
Good morning ping.
11 posted on 04/30/2003 6:39:55 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: Dog Gone
Once again, the 5-4 decision emphasizes how important it is to get Frist to force Slave Party Senators to sustain a real filibuster.
12 posted on 04/30/2003 6:42:20 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie
Ping me when you get time to really discuss this.
13 posted on 04/30/2003 7:01:28 AM PDT by Grampa Dave (Being a Monthly Donor to Free Republic is the Right Thing to do!)
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To: Dog Gone
You posted this critical observation:

"Yesterday's Supreme Court ruling in Demore v. Kim was an important step in the right direction.

"Once again, the 5-4 decision emphasizes how important it is to maintain a conservative majority on the Court."

This is why in 2004, we must re elect GW with at least 60 Republican Senators. Then when our conservative Supremes retire, GW can appoint conservative judges. Let the 40 rat senators whine and moan with the NY Slimes/ABCNNBCBS, it will not do them any good.

14 posted on 04/30/2003 7:04:27 AM PDT by Grampa Dave (Being a Monthly Donor to Free Republic is the Right Thing to do!)
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To: boris; Free the USA; B4Ranch; FITZ; Reaganwuzthebest; hsmomx3; Tancredo Fan; Joe Hadenuf
The 14th Amendment originally INTENDED that children of immigrants (legal or illegal) are NOT US citizens.
15 posted on 04/30/2003 7:06:07 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: Grampa Dave
Hi. I'm ready to discuss this. :-)

This is why in 2004, we must re elect GW with at least 60 Republican Senators.

I don't want to wait that long, much less depend upon Bush's reelection and getting a supermawhority in the Senate to finally get some decent judges. Frist had better get off his tusch or the Bush Presidency could turn out to be a puff of hot air. Imagine Hillary appointing judges to the SCOTUS.

16 posted on 04/30/2003 7:12:32 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: staytrue
I am curious as to why the founding fathers, jefferson, washington, franklin, etc. are legal immigrants and people whom you don't like are not.

A little weak on US history, eh?

Only one of the first tier founding fathers was foreign-born - Alexander Hamilton, who was born in the Caribbean. The rest were quite native.

17 posted on 04/30/2003 7:21:51 AM PDT by skeeter (Fac ut vivas)
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To: Carry_Okie
Well, my friend if Hillary is elected, we are wasting our time discussing this or anything!
18 posted on 04/30/2003 7:27:48 AM PDT by Grampa Dave (Being a Monthly Donor to Free Republic is the Right Thing to do!)
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To: staytrue
"I am curious as to why the founding fathers, jefferson, washington, franklin, etc. are legal immigrants and people whom you don't like are not. Basically, these guys got in a boat and just showed up..."

So, uh, Jefferson, Washington and Franklin, got in a boat and just showed up, hmmm. Might I suggest you revisit your junior high school American history book. These men were all born and bred in the original colonies you historically challenged dolt!

19 posted on 04/30/2003 7:29:25 AM PDT by slouper
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To: Grampa Dave
Well, my friend if Hillary is elected, we are wasting our time discussing this or anything!

Not at all. If Bush can get a younger and more constructionist court in this term, it would make a world of difference toward reining in a Hillary. This filibuster MUST be broken. It's that critical.

20 posted on 04/30/2003 7:30:30 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: staytrue
I believe that you will find that most of the founding fathers were born in America. I could be wrong, but it really doesn't matter as they were the founding fathers and the US did not exist when they were born.
21 posted on 04/30/2003 7:35:20 AM PDT by Eva
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To: skeeter
Only one of the first tier founding fathers was foreign-born - Alexander Hamilton, who was born in the Caribbean.

He was also a bastard (literally) and a supporter of monarchy. Because of his background he did everything possible to ingratiate himself with the rich and powerful, and the "royal". The "Whiskey Rebellion" was largely his fault.

Not a nice man.

22 posted on 04/30/2003 7:37:31 AM PDT by jimt (Is your church BATF approved?)
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To: Carry_Okie
The 14th Amendment's "subject to its jurisdiction" clearly gives Congress the right to regulate its application to people from foreign countries. One example is how Indians and their offspring, considered independent of US jurisdiction were in 1924 under the "Indian Citizenship Act" given full US citizen status.

It is in Congress' right through legislation to stop the practice of awarding automatic citizenship to children of illegals, but for the sake of political correctness and votes cowardly politicians will never do such a thing.

23 posted on 04/30/2003 7:44:26 AM PDT by Reaganwuzthebest
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To: Carry_Okie; skeeter; slouper; Eva
The 14th Amendment originally INTENDED that children of immigrants (legal or illegal) are NOT US citizens.

Ok, I did not check the birth status of Washington, Jefferson, etc. But the fact remains, for the first 100 years or so of this country, all you had to do is to be not a black or yellow, get in a boat and show up and presto, you were a citizen. Finally, if children of immigrants are not US citizens, that would make it pretty hard for anyone to be a citizen as even the indians are descendent from immigrants and they were here even before the main body of european immigrants came.

24 posted on 04/30/2003 7:49:27 AM PDT by staytrue
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To: Reaganwuzthebest
It is in Congress' right through legislation to stop the practice of awarding automatic citizenship to children of illegals, but for the sake of political correctness and votes cowardly politicians will never do such a thing.

PC certainly has something to do with this, but so does hypocrisy as I suspect most of congress is not more than 3 generations from being children of immigrants themselves.

One final question, would you be so eager to stop immigration, if the immigrants were from england or ireland, instead of from mexico ? In the secrecy of your own thoughts, I think you know the answer and should at least admit it to yourself.

25 posted on 04/30/2003 7:53:23 AM PDT by staytrue
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To: staytrue
Finally, if children of immigrants are not US citizens, that would make it pretty hard for anyone to be a citizen as even the indians are descendent from immigrants and they were here even before the main body of european immigrants came.

How do you feel about the "pregnancy holidays" many asian women take in the US in order to have an anchor baby? Do you not think this is an abuse of the 14th amendment?

26 posted on 04/30/2003 7:55:37 AM PDT by skeeter (Fac ut vivas)
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To: staytrue
We're talking about children of illegal immigrants, not legal. The Supreme Court has already ruled offspring of legal immigrants through the 14th Amendment are full citizens. The parents have sworn an allegiance to the country and are under US jurisdiction. Illegal aliens have done no such thing.
27 posted on 04/30/2003 8:00:15 AM PDT by Reaganwuzthebest
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To: slouper
LOL!
28 posted on 04/30/2003 8:02:58 AM PDT by Joe Hadenuf (i)
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To: staytrue
First of all, no one could have been a citizen of the US before 1776. Second, I believe that immigration records were kept from all ships entering the country and that you are correct in assuming that European immigrants were allowed citizenship. Blacks and Chinese were brought here, not as immigrants but as slaves.

It is true that the founders of this country were a little behind the times on slavery, but only slightly. I believe that it was only Spain that had laws that more fairly dealt with slavery and Africans at that time. Africa and the Middle East still has slavery, so I don't think that one can rightly fault the US for not dealing with this problem at its conception. Blacks and leftists should be more concerned with present day slavery and crimes that are being perpetrated against other Blacks in Africa, today, instead trying to win financial remuneration for themselves for alleged wrongs that happened to people over 140 years ago.
29 posted on 04/30/2003 8:05:27 AM PDT by Eva
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To: Reaganwuzthebest
It is in Congress' right through legislation to stop the practice of awarding automatic citizenship to children of illegals, but for the sake of political correctness and votes cowardly politicians will never do such a thing.

Neither the Congress nor the Executive have the power of law to confer citizenship outside the powers enumerated in the Constitution. If the 14th Amendment specifically states that children of resident and illegal aliens are not US citizens, and there is a Supreme Court decision immediately after its ratification that articulates its intent, then the Executive branch is acting without authority when it issues credentials of citizenship to those legal classes not specifically included in the language of the 14th Amendment.

Further, even though Bridges v. Wixon supposedly overturned the interpretation in the Slaughterhouse Cases with regard to legal residents, the latter is clearly NOT based in Constitutional law, given that the earlier court had direct knowledge of the legislative intent of the language of the 14th Amendment.

Finally, I would like to add that there is a VERY fundamental difference between awarding citizenship to the children of legally resident aliens versus illegals. The latter is an act hostile to the sovereignty of the United States and clearly NOT acting in a manner that is "subject to the jurisdiction thereof" because it is a violation of that jurisdiction for those people to even be here. It is so far from the intent of the language of the 14th Amendment that for the Executive branch to confer citizenship to those children is an act hostile to the Constitution that empowers it. The States can and should bring suit for compensation under this premise, and IMO any citizen could bring suit to demand that such citizenship be declared null and void having been granted under the illegal exercise of authority, else the action of the Congress and the Executive branch is diluting that citizenship to the point of meaninglessness.

30 posted on 04/30/2003 8:06:58 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: staytrue
I am curious as to why the founding fathers, jefferson, washington, franklin, etc. are legal immigrants and people whom you don't like are not. Basically, these guys got in a boat and just showed up and presto, they were legal

Oh man.....So Washington and Jefferson were boat people? Illegal aliens? Some are so quick to use the race card, that they become blinded in the process....

31 posted on 04/30/2003 8:07:22 AM PDT by Joe Hadenuf (i)
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To: Eva
Blacks and Chinese were brought here, not as immigrants but as slaves.

One minor point; the Chinese came here voluntarily, blacks did not.

32 posted on 04/30/2003 8:08:08 AM PDT by skeeter (Fac ut vivas)
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To: staytrue
Cut with the race baiting or you will get no further response from me.

But the fact remains, for the first 100 years or so of this country, all you had to do is to be not a black or yellow, get in a boat and show up and presto, you were a citizen.

No, it's not a fact. People were turned back at the dock for disease, criminality, or other cause. You know no more of that history than you do about the place of birth of the founding fathers. Yours is a self-renforcing fantasy.

Finally, if children of immigrants are not US citizens, that would make it pretty hard for anyone to be a citizen as even the indians are descendent from immigrants and they were here even before the main body of european immigrants came.

The children of immigrants can be NATURALIZED as can be their parents, a process that makes them citizens under the jurisdiction of the United States. Get a grip.

33 posted on 04/30/2003 8:13:50 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: skeeter
Some of the Chinese came here voluntarily, some more as indentured servants, I believe.
34 posted on 04/30/2003 8:18:28 AM PDT by Eva
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To: Carry_Okie
At this point what's being done at the Executive level by awarding automatic citizenship is the result of precedent through decades of doing it.

Congress must address this issue in more modern terms legislatively and let the Supreme Court sort it out. If they don't do that and soon, we might as well hand over the country to Mexico or whoever now because they're literally taking over the country through the bedroom.

35 posted on 04/30/2003 8:20:23 AM PDT by Reaganwuzthebest
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To: Eva
Some of the Chinese came here voluntarily, some more as indentured servants, I believe.

Yep, as did many Irish.

36 posted on 04/30/2003 8:20:51 AM PDT by skeeter (Fac ut vivas)
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To: skeeter
I believe that I admitted that Europeans were allowed favored status, and that this country was behind the times in treatment of Blacks and Chinese. What I said was that it is time for the Blacks and the left to worry more about what is happening in the world, today, rather than what happened to people that they never knew. Like I said before, slavery was prevalent around the world at the time that the US was created. Spain is the only country that was beginning to change. Quit worrying about past injustices and do something about present day injustice and crimes against humanity.
37 posted on 04/30/2003 8:25:50 AM PDT by Eva
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To: Carry_Okie; staytrue
No, it's not a fact. People were turned back at the dock for disease, criminality, or other cause.

Staytrue might also be surprised to learn that the support systems in place for today's immigrant, the advance SSI payments, taxpayer subsidized housing & health care, and other of today's cash transfers and social services, weren't always available. All those 19th century European immigrants, once they passed through screening & delousing, were on their own.

38 posted on 04/30/2003 8:27:40 AM PDT by skeeter (Fac ut vivas)
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To: Eva
Some of the Chinese came here voluntarily, some more as indentured servants, I believe.

How many know I wonder that thousands of Irish and English women and men were forcibly brought over here as slaves and servants in the 17th and 18th century before the practice was passed off to blacks.

39 posted on 04/30/2003 8:37:47 AM PDT by Reaganwuzthebest
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To: Reaganwuzthebest
I think that was covered pretty well in the history books, when I was in school. Who knows how today's politically correct texts cover the subject.
40 posted on 04/30/2003 8:40:23 AM PDT by Eva
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To: Reaganwuzthebest
At this point what's being done at the Executive level by awarding automatic citizenship is the result of precedent through decades of doing it.

Kindly tell me where the Constitution says that the government can usurp powers as long as it can get away with it for a long time.

41 posted on 04/30/2003 8:43:24 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: staytrue
agree.

this country has always been a magnet for immigrants. the issue of legality didn't arise until the racial complexion of the country began to darken.

the issue of illegal immigration will be solved about 18-20 years after americans start having more children.

illegals weren't tolerated until the feminists decided not to have children and the american birthrate dropped below replacement in the late 70's. it was then in the 80's that illegals showed up in droves, and the government did nothing. communist insurgencies in latin american countries also provided an incentive to leave the homelands.

why did neither dem nor pub parties react? because there was a vacuum at the entry jobs level; illegals filled this need. american children did not want to hoe beets and beans, flip burgers, clean motel rooms, do landscaping, etc. james flanigan of the los angeles times last sunday had an interesting article in the business section, stating that the policy makers of california (democrats) who don't understand economics, want to eliminate the garment jobs in los angeles. but, as he points out, these are excellent entry level jobs for immigrants, paying about $100.00 per day.

rest assured that the recliner racists on this forum are not going to drop their ice cream and leave their tv's to go do work that illegals do.

immigration is healthy. look at europe and japan and their declining populations. fearful of the expanding birth rates of their moslem populations, europeans restrict legal immigration. and yet, they refuse to have more children themselves. the result will be imploding cultures.

america is doing what america does best.
42 posted on 04/30/2003 8:51:47 AM PDT by liberalnot
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To: Carry_Okie
Kindly tell me where the Constitution says that the government can usurp powers as long as it can get away with it for a long time.

It doesn't, and there are legal groups, including ProjectUSA and others who are attempting to get this issue addressed in the Supreme Court. But Congress still needs to weigh in now, the process could take years before it's resolved.

43 posted on 04/30/2003 8:55:01 AM PDT by Reaganwuzthebest
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To: liberalnot
...because there was a vacuum at the entry jobs level; illegals filled this need. american children did not want to hoe beets and beans, flip burgers, clean motel rooms, do landscaping, etc.

Gee that's funny, where I live there's not too many illegals and Americans are flipping burgers, cleaning motel rooms, landscaping, even working the orchard fields. But then I must be seeing things ha, only illegals want to do that.

44 posted on 04/30/2003 9:01:24 AM PDT by Reaganwuzthebest
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To: liberalnot
rest assured that the recliner racists on this forum are not going to drop their ice cream and leave their tv's to go do work that illegals do.

Kindly point out where anyone has said anything remotely racist on this thread.

Otherwise, stuff your racebaiting.

Oh, welcome to FR.

45 posted on 04/30/2003 9:02:50 AM PDT by skeeter (Fac ut vivas)
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To: Spiff
You might find this interesting too.
46 posted on 04/30/2003 9:17:27 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: liberalnot
I agree with most of which you said. But I do think that most people have at least a tiny bit of racism in them, including myself. And while racism may be coloring/distorting people's thinking on the immigration issue, it should be pointed out. that however racist conservatives are, the liberals are much more so with their PC policies, Jesse Jackson/Al Sharpton kowtowing, etc.
47 posted on 04/30/2003 9:35:29 AM PDT by staytrue
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To: Dog Gone
You might find this interesting.

Economic Liberty and the Constitution, Part 4
by Jacob G. Hornberger, September 2002

Part 3 Part 5 Table of Contents

After the end of the Civil War, the “carpetbag” legislature in Louisiana granted a monopoly to a group of butchers that gave them the exclusive privilege of operating the only slaughterhouse in the city of New Orleans. The law prohibited any other slaughterhouses from competing, and all butchers in the city were relegated to using the monopoly slaughterhouse.

Complaining butchers filed suit and the case ultimately reached the Supreme Court of the United States. The case, which became known as the Slaughterhouse Cases, is one of the most famous legal cases in the history of the Supreme Court.

The monopolists defended the law by claiming that under our system of government the state of Louisiana had the power to grant the monopoly under its “police powers,” that is, the traditional powers of state sovereignty that the state used to promote the “health, safety, and welfare” of the citizenry. The slaughterhouse law, the monopolists argued, was intended to produce more sanitary butchering facilities. (The truth was that the monopoly had been granted as a result of bribes that had been paid to the corrupt Louisiana legislators.)

The monopoly law actually hearkened back to the old mercantilist economic system that had held Europe, including France, in its grip prior to the Industrial Revolution. That was the system whereby the state would regulate the minute aspects of people’s lives. France had of course deeply influenced Louisiana culture and tradition. In enacting the monopoly law, the state of Louisiana was simply doing what France and other European countries had done for centuries — using the power of the state to give special privileges to some at the expense of others.

The plaintiffs contended that the economic system of the United States was freedom and free enterprise, not mercantilism. By enacting an economic regulation that deprived people of their right to pursue a livelihood and to compete against others, the state was violating the principles of liberty and free markets on which the nation had been founded.

Would such an argument be sufficient to persuade the Supreme Court to declare the law invalid? No, because the Court would not be concerned with the wisdom or lack of wisdom of a particular law. Its sole inquiry would be: Was the law constitutional or not? If it was constitutional, then the Court would permit it to stand, whether it was wise or not. If it wasn’t constitutional, the Court would not permit it to stand, no matter how wise or beneficial it was.

Was the Louisiana monopoly law constitutional? Recall that under the original Constitution, the Founders brought into existence a government whose powers were limited to those that were enumerated in the document. Moreover, the Bill of Rights expressly prohibited the federal government from interfering with specified rights of the people.

The state governments, on the other hand, were empowered to exercise any power they wanted as long as there was no express restriction against it in the Constitution (such as impairing contracts, emitting bills of credit, or making anything but gold and silver coin legal tender). Was there an express restriction in the original Constitution against a state’s regulating economic activity, including granting monopolies? No, unless one stretched the restriction on impairing contracts to cover such a law.

The plaintiffs retained an attorney named John A. Campbell, one of the most fascinating lawyers in American history, to represent them. As described in the book Lawyers and the Constitution (1942) by Benjamin R. Twiss, Campbell was one of the premier lawyers responsible for integrating free-enterprise ideas into the Constitution. Twiss described Campbell as “the ablest attorney in the South.”

Campbell had graduated from the University of Georgia at the age of 11 and was admitted to practice law in his home state of Alabama at the minimum age allowed. At the age of 42, he was appointed an associate justice of the U.S. Supreme Court (a lifetime appointment), resigning in 1861 because of his allegiance to his home state of Alabama and because he felt he “must follow the fortunes of her people.” At the end of the Civil War, he was 55 and penniless but immediately established a very successful law practice.

Campbell was facing Matthew Hale Carpenter, who was considered the leading attorney in the Midwest, and Jeremiah S. Black, who had argued the government’s side in the Supreme Court in what were known as the Prize Cases.

Campbell locked himself in his office for days, steeping himself in the history of mercantilism, feudalism, monopolies, and regulations. He also studied extensively the free-market ideas of Adam Smith and John Stuart Mill.

Campbell’s primary job, however, was not to show that free enterprise was better than mercantilism, because that’s more an argument for the populace or the legislature. As an attorney seeking a judicial declaration that the monopoly law was invalid, his job was to show that the law violated the U.S. Constitution.

For that, he turned to the new amendments that had been adopted after the end of the Civil War — the Thirteenth and Fourteenth Amendments. The former abolished slavery and the latter prohibited the states from denying any person the “privileges and immunities” of citizenship and equal protection of the laws and prohibited the states from depriving any person of life, liberty, or property without due proc ess of law.

Campbell’s written brief and oral argument before the Supreme Court have gone down in legal history as among the best ever. Justice Samuel F. Miller, who authored the majority opinion, wrote, “The eminent and learned counsel who twice argued the negative of this question has displayed a research into the history of monopolies in England and the European Continent, equaled only by the eloquence by which they are denounced.”

Quoting the laissez-faire statements of the Frenchman Benjamin Constant, Campbell said,

“Society, having for its object the prevention of individuals from injuring each other, has no control over industry until it becomes harmful. The nature of industry is to struggle against a rival industry by a perfectly free competition, with efforts to obtain an intrinsic superiority ... . Of the rights, that society certainly possesses, it results that it does not possess a right to employ against the industry of one, in favor of another, the power and the means that were given it for the benefit of all.”

He quoted from a report of 1858 of the French Commissioner of Agriculture, Commerce, and Public Works, stating, “It is admitted everywhere, it is a matter of universal experience, that if a profession be free, competition will establish a proper market.”

Quoting from Macalay’s History of England, he pointed out that the English people “cursed monopolies and exclaimed that the prerogative should not be allowed to touch the old liberties of England.”

Campbell read a section from Sir Edward Coke’s report of the English Case of Monopolies, which pointed out that monopolies produce high prices and poor quality and damage both sellers and consumers.

Campbell then integrated his economic arguments with legal ones by citing a book entitled Constitutional Limitations by Thomas M. Cooley, one of the most famous legal scholars of the time. Cooley had been a professor and dean of Michigan Law School, a judge on the Michigan Supreme Court, and a lecturer at Johns Hopkins University. According to Life Sketches of Eminent Lawyers (1895) by G.J. Clark, Cooley was “the most frequently quoted authority on American constitutional law.”

What was the significance of Cooley’s treatise? Here’s the way Twiss put it:

“Eighteen sixty-eight marks a turning point in American constitutional law. In that year laissez-faire capitalism was supplied with a legal ideology in Thomas M. Cooley’s Constitutional Limitations almost in a direct counter to the appearance a year earlier of Karl Marx’s Das Kapital.

Campbell first argued that Louisiana’s monopoly law violated the Thirteenth Amendment’s prohibition against slavery. Comparing the law to the servitudes in feudalism, he wrote, “The privilege granted to these seventeen [butchers] is identical with the banalitiés in France and the thirlage in Scotland.”

But his strongest argument lay with the 14th Amendment — that the law violated the privileges and immunities of his clients, the equal protection of the laws, and the Due Process Clause. “The Amendment,” he wrote, “was designed to secure individual liberty, individual property, and individual security and honor from arbitrary, partial, proscriptive and unjust legislation of state governments.”

Quoting from the recent Supreme Court case of Ward v. Maryland (1871), Campbell said that the “privileges and immunities” of citizenship included the right to travel, enter into trades, purchase goods and services, engage in free industry, own property.

He described liberty thus:

“The power of determining, by his own choice, his own conduct; to have no master, no overseer put over him; to be able to employ himself without constraint of law or owner; to use his faculties of body and mind, at places and with persons chosen by himself, and on contracts made by himself.”

And the individual, Campbell argued, had “a social right to combine his faculties with those of others, to profit by the combination.”

Drawing on the ideas and philosophy of Adam Smith, John Stuart Mill, and Herbert Spencer, Campbell concluded,

“The most complete freedom in the exercise of all the faculties, and the most ample employment compatible with the exercise of the same faculties and rights by others, will alone meet the standard established by these fundamental laws.... What did the colonists and their posterity seek for and obtain by their settlement of this continent; their long contest with physical evils that attend their colonial condition; their long and wasting struggle for independence; by their efforts, exertions, and sacrifices since? Freedom. Free action, free enterprise — free competition. It was in freedom they expected to find the best auspices for every kind of human success. They believed that equal justice, the impartial reward which encouraged to effort in this land, would produce great and glorious results. They made no provision for ... monopolies.... What they did provide for was that there should be no oppression; no pitiful exaction by petty tyranny; no spoliation of private rights by public authority; no yokes fixed upon the neck for work, to gorge the cupidity and avarice of unprincipled officials; no sale of justice or of right, and that there should be a fair, honest, and faithful government to maintain what were the chartered free rights of every individual man, and are now the constitutional inviolable rights of an American citizen.”

In a 5-4 decision, the Supreme Court upheld the constitutionality of the Louisiana slaughterhouse monopoly. What was significant about the decision, however, was the opinions of two dissenting justices, Joseph P. Bradley and Stephen J. Field. Not only did those opinions embrace the arguments that Campbell had made, they amplified them. More important, those dissenting opinions had a powerful influence on succeeding generations of lawyers, setting the stage for the biggest constitutional battle in American history, a battle between the advocates of economic liberty and the supporters of the socialistic welfare state. It was a battle that would not be settled until 1937, at the height of Franklin Roosevelt’s New Deal for America, in a case entitled West Coast Hotel v. Parrish.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation

48 posted on 04/30/2003 9:52:04 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie
Outstanding article.
49 posted on 04/30/2003 10:03:26 AM PDT by Dog Gone
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To: Carry_Okie
Supreme Court Justices

John Campbell (1811-1889)

John Campbell was born in Georgia on June 24, 1811. He was admitted to the bar in Georgia at 17 years of age, in 1828. Two years later, he moved to Alabama to practice law, where he was lauded an an excellent advocate. A seat on the Court opened after the death in 1852 of John McKinley, also from Alabama. That was a presidential election year, and Millard Fillmore, a lame duck, was unable to gain Senate approval of any his three nominees to the seat. After the inauguration of Martin Van Buren, the Supreme Court urged him to nominate Campbell, who had argued before the Court on many occasions. Campbell was just 41 year old, although he had been practicing law for over 20 years. As a southerner, Campbell supported the institution of slavery, and wrote a strong opinion in Dred Scott confirming the idea that the Constitution was a compact among the states. When Alabama seceded from the Union in April 1861, Campbell resigned from the Court and returned to the state. He served in the Confederate executive branch, and after the war was imprisoned for several months. After Campbell was released from prison, he moved to New Orleans, Louisiana and practiced law. He was the lawyer for the butchers in 1873 in the Slaughterhouse Cases. Although his clients lost, the Court would borrow his arguments in the late 1890s when it began to strike down state laws on substantive due process grounds.

Further reading: Tony Freyer, "John Archibald Campbell," in The Oxford Companion to the Supreme Court of the United States (1992).   


50 posted on 04/30/2003 10:08:26 AM PDT by Carry_Okie (There are people in power who are truly evil.)
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