PLF Liberty Blog

Jeremiah Black and the Slaughterhouse Cases

Author: Timothy Sandefur

You’ll be hearing a lot in coming months about the Slaughterhouse Cases, given that the Supreme Court is poised to reconsider that decision in McDonald v. Chicago. Slaughterhouse, you’ll recall, is the 1872 decision in which the Supreme Court essentially erased the Fourteenth Amendment’s privileges or immunities clause—the provision that the its authors intended to be the primary protection for individual rights under the Amendment.

Although legal scholars now generally agree that Slaughterhouse was wrongly decided, and although many historians have regarded it as the first of the disastrous series of cases in which the Supreme Court backed away from Reconstruction efforts to protect the rights of former slaves in the post-Civil War south, there’s been surprisingly little serious attention devoted to Slaughterhouse by historians. In fact, there’s only one book on the case—Jonathan Lurie and Ronald Labbé’s 2003 book The Slaughterhouse Cases, which I reviewed (very negatively) for the Claremont Review of Books.

Among other things, Labbé and Laure argue that John Campbell, the attorney representing the butchers in the Slaughterhouse Cases, saw the case as an opportunity to attack Reconstruction by publicizing the corruption of the integrated Louisiana legislature. His defense of the butchers was really a sophisticated plan to destroy reconstruction. “His short-range target was, of course, a specific statute. But his long-range objectives, again, were the conditions and circumstances that enabled a Louisiana legislature to convene and enact such offensive legislation in the first place.” It’s certainly plausible that Campbell took the case for this reason, and used it as an vehicle for attacking what he (with much plausibility) saw as a corrupt state legislature.

But on the other hand, Campbell was arguing in favor of enforcing the strong limits on state autonomy created by the Fourteenth Amendment’s privileges or immunities clause: he was arguing in favor of strong federal power to protect civil rights and limit state autocracy! It was the other side—the state of Louisiana—that successfully argued against federal power to protect individual rights in the Reconstruction south. And to make that argument, the state of Louisiana relied on the talents of one of America’s most outspoken enemies of reconstruction: Jeremiah Sullivan Black.

"The Battle for Equality"

Author: Joshua Thompson

That's the title of a new article in California Lawyer, a magazine sent to me for free as an active member of the California bar.  But this is not just an article in a magazine.  California lawyers who read the article, can answer a few questions about it, send in a check for $29, and receive credit towards their "Continuing Legal Education"  (CLE) requirement.  What really bothers me here is not that the California Bar has a CLE requirement, but that reading a 3-page, completely biased account of the state of the law, entitles someone to CLE credit.

The article begins by stating an uncontested fact: racism exists in America.  (While that is undoubtedly true, the example given by authors, that of Harvard Professor Henry Louis Gates, is hardly the example that proves the point.)  From here, the authors attempt to educate California lawyers on the state of the law with respect to race and sex preferences and discrimination.  They fail miserably.

The authors  tell us that "most fair-thinking Americans agree that [numerical disparities] are antithetical to our expectation of equality."  Really?  Most fair-thinking Americans think that? Equality before the law is a right protected by the Fourteenth Amendment.  When the government determines the rules of the game based on skin-color (you get contract X because you are black/white) most ___ -thinking Americans know that their rightto equality under the law has been violated.  Conversely, the existence of numerical disparities (more white people received contract X even though the law did not allow the government to consider race) can result under a million different scenarios, only some of which are offensive to ___ - thinking Americans.  The people who think that the consequences of neutral government policies must result in neat and even percentages of whites, blacks, Hispanics, Asians, Lithuanians, sub-continent Asians, etc., are not "fair-thinking" Americans but rather quite thoughtless Americans.

Reality check needed for Endangered Species Act

Author: Brandon Middleton

The story here in California is sad but easy to understand: the Endangered Species Act is being used to fundamentally alter California's water delivery systems. State and federal projects that were designed to transfer water to the San Joaquin Valley are subject to myriad environmental restrictions. More water for fish hasn't necessarily benefitted threatened and endangered species in the Sacramento-San Joaquin Delta, but it has unquestionably threatened the livelihoods of thousands of farmers and residents of the Valley.

Clearly, the Endangered Species Act is harming a vital part of the American economy.

The Interior and Commerce Departments, charged with enforcing this draconian law, haven't exactly owned up to the true costs of the Endangered Species Act. As we have noted several times (here, here, and here), Interior Secretary Salazar has been less than forthright in acknowledging that giving more water to endangered and threatened fish is not a cost-free scenario. Faced with criticism concerning the overzealous enforcement of the ESA, Interior issued this "Reality Check" press release, attempting to provide "accurate responses to questions about the state's water crisis so that Californians can make informed decisions about water use and help build a sustainable water future for themselves and their communities."

Without admitting that the Endangered Species Act is harming the San Joaquin Valley, this "Reality Check" isn't worth the paper it's printed on.  Consider this reaction from William D. Harrison. As the General Manager for the Del Puerto Water District, Harrison knows first hand just how devastating the ESA has been for the Valley. That is why, according to him, Interior's "Reality Check" "was, quite frankly, insulting. To maintain that our dire water supply circumstance is solely the result of recent below average hydrology and is in no way a exacerbated by environmental restrictions imposed under the Endangered Species Act is misleading at best."

Given the stranglehold the ESA has on the Valley, Harrison provided clarity about what really is at stake:

Since the CVP was built and District growers committed themselves to fulfilling congressional intent, we have never asked for much help from anyone. Provided with an adequate, reliable water supply and a fair plice for our product, we are some of the best in the world at doing the difficult but important work of providing the nation with a safe, reliable and affordable food supply in an environmentally responsible manner.

We are, after all, real people. We have built and continue to live in small agriculturally-based communities on the west side of the San Joaquin valley. We are stewards of the land and care about the environment, the survival of endangered species, clean water, our children's health and education and the safety and well-being of our nation. We are proud, tax-paying American farm families and we have been required to give of our life-blood, our water, until we can give no more and still survive.

The Endangered Species Act is woefully inadequate when it comes to consideration of these human concerns.  That is why Pacific Legal Foundation, along with the City of Coalinga and several San Joaquin Valley farmers, recently filed an amicus curiae brief (available here) concerning the human aspects of the regulatory drought.  Our brief will hopefully convince the federal district court that the National Marine Fisheries Service illegally failed to consider the human environmental costs of its salmon biological opinion.

The true reality check here is that the Endangered Species Act is not a cost-free law.  While federal officials may be reluctant to acknowledge this, Pacific Legal Foundation will continue to advocate for a proper accounting of this draconian law.

Pfizer pulls out of New London

Author: Timothy Sandefur

It's been four years since the Supreme Court's infamous decision in Kelo v. New London. That case upheld the power of local bureaucrats to seize private homes and businesses and give it away to private developers to advance government-controlled plans for economic improvement. Such plans, of course, do not and cannot work: when government manipulates the economy, it responds not to the desires of producers and consumers, but to political imperatives (as the Cato Institute's David Boaz very effectively pointed out just the other day).

And guess what? Pfizer, the pharmaceutical giant whom New London bureaucrats were trying to appease by sacrificing the individual rights of the city's homeowners, has decided to close up shop and move.

Thus, half a decade later, the torn and ruined neighborhoods of New London still remain as reminders--as vacant reminders--of what happens when the coercion of the government, rather than the dollars of private property owners, dictates the use of resources.

Our friend Gideon Kanner has more here.

Court should prevent use of Prop. 9 to take beach

PLF attorney J. David Breemer has an article in the Houston Chronicle about the attempt by state officials to devise a clever legal stratagem to take property from people without just compensation:

At issue is state officials' strange embrace of a rolling beach — a concept that has no basis in Texas law.

Under the rolling beach theory, state officials claim the public beach includes any private property that loses its natural grass, for whatever reason. It makes no difference to officials if such property was lawfully developed decades ago and has never before been used by the public. If the plants die due to tides or sudden storm events, officials assert all the land has become part of the public beach. When this happens, any existing homes on the denuded area become illegal in the state's eyes.... State lawyers contrived the rolling beach theory when they discovered that it is difficult and expensive to actually prove prior public use of all those private areas that come to be seaward of the vegetation line. To solve the problem, they decided that location of the vegetation line by itself determines if a private parcel is a public beach. Armed with this theory, they now claim that existing public beaches automatically move inland to swallow private land every time beach grass disappears. This theory turns every storm into an opportunity for the state to snatch up wide swaths of private land.

Read the rest here.