Ratified in 1868.
Gutted in 1873.
A working man, told he cannot work.
By Jeff Bayard | Does the Constitution Really Say? — Part 3
This is Part 3 of Does the Constitution Really Say? — a multi-part series by Jeff Bayard running through the end of June 2026. Each piece asks the question the series is named for: does the Constitution really say what the courts now say it says? Read Part 1 here and Part 2 here.
In 1869, Louisiana gave one company — the Crescent City Live-Stock Landing and Slaughter-House Company — a monopoly on all butchering in New Orleans. Every other butcher was ordered to shut down his own facility and lease space from the monopoly, paying its fees and operating on its terms.
Paul Esteben was one of the named butcher plaintiffs. So were hundreds of other working men — fathers, husbands, immigrants, freed slaves, native Louisianans — who had spent their lives learning a trade. Overnight, they could pay the connected company or close.
They sued, with reason to hope. Five years earlier the country had ratified the Fourteenth Amendment, written to protect citizens from state-imposed deprivation of fundamental rights. Its Privileges or Immunities Clause appeared to do exactly what the butchers needed: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
They lost.
So this is the question worth asking, plainly. Does the Constitution really say a butcher cannot work in his own trade?
What the Words Meant
The Fourteenth Amendment, ratified in 1868, was the constitutional capstone of the Civil War. Section 1 begins with three protections: Privileges or Immunities, Due Process, and Equal Protection.
Privileges or immunities was not new language. The phrase appears in the original Constitution’s Article IV. By 1868 leading jurists and legislators were using it to mean the basic civil rights of American citizenship. To own property. To make contracts. To use the courts. To earn a living through honest labor.
That last right had been recognized in Corfield v. Coryell (1823) as among the privileges of citizenship, and Justice Stephen Field’s dissent in Slaughter-House would anchor it specifically in the right to pursue a lawful calling. The Reconstruction Congress wrote against that backdrop, with the verdict of a war fresh in mind: states could not be trusted to protect the basic civil rights of their citizens. The Privileges or Immunities Clause was their answer.
What the Words Now Mean
In The Slaughter-House Cases, 83 U.S. 36, the Supreme Court told Paul Esteben and his fellow butchers the clause did not protect them.
Justice Samuel Miller, writing for a 5-4 majority, split American citizenship in two. There were rights of state citizenship — most of what people thought the Fourteenth Amendment was about — and rights of United States citizenship, a narrow list Miller drew tightly: access to seaports, use of federal courts, travel to the seat of government, and a handful of others. The clause, Miller ruled, protected only the second list. The right to earn a living was a state matter — and the Fourteenth Amendment did not reach it.
Notice the swap. The Constitution says no state shall abridge “the privileges or immunities of citizens of the United States.” The Court said only a narrow list of federal-citizenship rights count, and the rights people actually depend on are not on it. The amendment that was supposed to be the Reconstruction Congress’s strongest weapon against state injustice was emptied of nearly all its content within five years of its ratification.
Justice Field warned in dissent that the majority’s reading made the clause “a vain and idle enactment, which accomplished nothing.” He was right. With one narrow exception — Saenz v. Roe (1999), protecting the right to travel between states — the Privileges or Immunities Clause has been functionally dormant for 150 years.
Dormant means this: the words are still on the page. But when a citizen brings a fundamental-rights claim against a state government, the courts do not reach for the clause the Framers wrote. They reach for something else.
What Happened Next
Because the Privileges or Immunities Clause was gutted, every subsequent attempt to protect fundamental rights against state interference has had to be smuggled in through the Due Process Clause or the Equal Protection Clause — neither of which was designed for that work.
Today the consequences are most visible in occupational licensing — the modern equivalent of the New Orleans monopoly. Hair-braiders, florists, eyebrow threaders, casket makers — all facing state-imposed credential walls that protect connected incumbents and shut out working-class entrepreneurs.
Isis Brantley, an African-American hair-braider in Texas, was arrested in 1997 for braiding hair without a cosmetology license. Texas demanded 1,500 hours of cosmetology school — most of it unrelated to braiding — and thousands in fees. She fought for nearly two decades, winning a federal ruling in 2015 that struck down the scheme as applied to her trade.
But she had to win on Due Process and Equal Protection grounds. The clause written to protect basic civil rights like hers — the right of a free citizen to earn an honest living without state interference — had been dormant since 1873.
The Strongest Argument the Other Way
The strongest argument for the Slaughter-House reading is honest enough to admit. Miller’s majority feared that a broad reading would transfer enormous power from states to the federal courts, letting federal judges second-guess every state economic regulation — a real concern in 1873, and a real concern today. But the Framers had built into the Constitution itself the mechanism for legitimate adaptation: Article V, the amendment process. If the federalism worry called for a narrower clause, Article V was the way to narrow it. The improper answer was to leave the words on the page unchanged and read them to mean almost nothing.
Did God Really Say?
Isaiah saw the pattern long before there was a Louisiana legislature:
“Woe to those who decree unrighteous decrees, who write misfortune which they have prescribed, to rob the needy of justice, and to take what is right from the poor of My people.” — Isaiah 10:1–2
That is Louisiana in 1869. That is Texas in 1997. That is every state credential cartel that takes work away from a person who knows how to do it and hands it to a connected company that already holds the license. The prophet does not name the king alone. He names those who decree and those who write — lawmakers, regulators, and courts that refuse to strike the decrees down.
This series has returned more than once to Proverbs 22:28 — “Do not move the ancient landmark which your fathers have set.” The Reconstruction Congress drove a landmark deep into the constitutional ground in 1868. Five years later, the Court moved it. The poor of the people have been paying for the move ever since.
What the Citizen Does
Read the document. Know what the words meant when they were ratified. When a state regulator tells you that your honest work cannot be done without a credential the regulator alone controls, ask the question this series is named for. Does the Constitution really say that?
There is no better place to start than Constitution 101 and other Hillsdale College free online courses. Hillsdale accepts no state or federal taxpayer funding — not even student aid — which keeps its instruction independent of the political pressures that shape so many other schools. Dozens of courses, no cost, self-paced, taught by their own faculty. Start with Constitution 101.
The next piece looks at Trop v. Dulles (1958), in which the Supreme Court untethered the Eighth Amendment’s prohibition on “cruel and unusual punishments” from any fixed meaning. With one phrase — that the clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” — the bar reset to whatever five justices decide society now permits or forbids. The pattern this series has tracked through eminent domain, commerce, and citizenship was about to reach the criminal law.
