Justice John Campbell - Last of the Jacksonians

Christine Jordan

(Continuing the series of studies of lesser-known members of the Supreme Court–initiated with the article, "In Search of Justice Woods" in YEARBOOK 1978–the author of the present article deals with the career and philosophy of an Alabama lawyer whose work in the Supreme Court was both before the bench and on it. A free enterprise apostle who nevertheless endorsed the reasonable limitation of corporate powers and privileges, a Confederate advocate of reconciliation, a natural law philosopher in a pragmatic economy, Campbell's half-century career at the bar and on the Bench uncovers some subtle dimensions of constitutional jurisprudence in the main years of the nineteenth century.– ED.)

Justice John Archibald Campbell was preeminently a man of the nineteenth century: his life spanned all but its first and last decades, and his personal philosophy of economic individualism reflected an age when industrialization and development of vast natural resources seemed to present the opportunity for every individual to elevate himself. The driving force of Campbell's life was the belief, stemming from his experiences in Alabama politics, in the individual right to equality of economic opportunity. His career, as a lawyer and Supreme Court Justice, is best understood as a quest to reduce this political precept to constitutional principles capable of uniform judicial application.

I

Campbell was born in 1811 in Washington, Georgia, the scion of North Carolina and Georgia families with strong Democratic connections.[1] He enjoyed a cultured upbringing in prosperous surroundings–but hardly the "big plantation" childhood which has been ascribed to him.[2] After graduating from the University of Georgia at the age of fourteen, he was appointed to West Point by John C. Calhoun, an old friend of his father's.[3] Upon the death of his father in 1828, he resigned from West Point and returned home to find his family estate heavily encumbered with debt. After teaching school in Florida for a year to pay off the debt he returned to Georgia to study law, and was admitted to the bar at the early age of eighteen. In 1830 he moved to Alabama, and quickly built a reputation as a brilliant lawyer. Through painstaking study he mastered the intricacies of Spanish land grant titles. In the 1840's he argued before the United States Supreme Court what were in monetary terms the decade's most important cases, "The Mobile Riverfront Litigation." Twice he was offered, and twice he refused, a seat on the Alabama Supreme Court.

Campbell was affiliated politically with the mercantile wing of the Democratic Party in Alabama. This group opposed rechartering of the Second Bank of the United States, favored liquidation of the state bank in 1840, were moderate states' rightists in 1850 and were cooperationists in 1860. As a member of the state legislature in 1842 Campbell chaired the committee which oversaw the reorganization of the state bank.

On the whole Campbell found participation in politics distasteful and preferred the practice of law. In 1838 he moved to Mobile, which provided a larger arena for his talents, especially in commercial law. He was eminently successful, handling most important civil cases from Mobile between 1838 and 1853.[4]

In 1853 President Pierce nominated Campbell to the Supreme Court at the request of the other Justices, the only man ever to be so honored.[5] During his tenure on the Court from 1853 to 1861 he and Justice Nelson were considered Chief Justice Taney's closest associates. He is said to have been Taney's personal choice as the next Chief Justice.[6] He was reputed to have the most extensive law library of his day and to be the intellectual equal of Justice Story, the acknowledged giant of the Marshall Court.[7]

Campbell's knowledge of civil law was unparalleled among his contemporaries

on the Court. As a result he wrote most of the Louisiana and California land-title opinions, which involved unprecedented amounts of money but little substantive law. Campbell became most famous for his constant vigilance against corporate special privileges. He authored a number of brilliant dissents in contract clause and diversity cases. He was also the spokesman for protection of state sovereignty from federal encroachment.

In 1861 Campbell resigned from the Court after indefatigable efforts to prevent secession and war. Vilified by his fellow Alabamians for not supporting secession, he was forced to move to New Orleans. There he practiced law until October, 1862, when he became Assistant Secretary of War for the Confederacy. Of this position he later said: "I found the means to do a great deal of good. I diminished the weight of the heaviest calamity that ever befell a country, to many. . . One motive for accepting this office was that I might have some influence in promoting peace."[8] As early as 1864 he made several personal overtures in the cause of peace through his old friend, Justice Nelson, and participated in the Hampton Roads Conference. As the highest ranking Confederate official left in Richmond at the end of the war, he handled the early negotiations with Lincoln.[9]

After Lincoln's assassination, Campbell was imprisoned for several months. Although the official reason was possible involvement in the assassination, the general belief was that he was being punished for having been a Confederate official."[10] He was released after the intervention of his old friends, Justice Nelson and former Justice Curtis. He returned to Mobile to find his property destroyed and a family of five women in need of support. Although prospects of beginning a new life at age fifty-five seemed rather dim, Campbell opened a law office in New Orleans with his son, Duncan Campbell, and former state Supreme Court Judge Henry Spofford. Applying himself with the same diligence he had shown in Alabama thirty-five years earlier, he soon became a leader of the New Orleans Bar, and argued numerous cases before the United States Supreme Court. "Leave it to God and Mr. Campbell" became an often heard exclamation. Although the originator was a former slave whom Campbell had helped buy freedom, it soon came to be applied to his phenomenal success as a lawyer.[11]

Campbell participated in some of the most important litigation of the second half of the nineteenth century. His most famous argument, the Slaughterhouse Cases, was the first interpretation of the Fourteenth Amendment.[12] In New Orleans Gas Light Co. v. Louisiana Light Co. he redefined contract clause protection of corporate monopolies in accordance with the concept of public utilities.[13] In the Railroad Commission Cases he attempted to protect private property from the state police power by emphasizing the due process clause of the 5 and 14th Amendments.[14] And, he reaffirmed his belief in state sovereignty and the 11th Amendment in New York and New Hamshire v. Louisiana.[15] When he died in 1889 at the age of 78, Campbell was one of the Nation's leading lawyers.

II

Campbell believed in a political philosophy which predated Andrew Jackson but which came to adopt him as its hero. Its fundamental principle was that the liberty to acquire, own and enjoy property served as the foundation of all other liberties. This principle's most important corollary was that no man could legitimately be denied the equal chance to exercise his talents to acquire property and to elevate himself economically. To deny a man the right to pursue a lawful calling of his choice was to strike at the heart of the liberty and property rights inherent in the concept of individual liberty. The Jacksonians considered corporations to be the greatest threat to individual liberty and attempted to limit their growth. The Jacksonians of Alabama feared corporations because by permitting individual plantation owners to join together, they threatened the balance of power within Alabama's agrarian society.

Campbell's political beliefs were similar to those of his fellow Alabama Democrats. On national issues he supported Andrew Jackson. Although he personally opposed the tariff, he backed Jackson against the Nullifiers, criticizing them as weak and narrow minded.[16] He also opposed federally financed internal improvements and supported Jackson's Maysville veto. Alabama Democrats opposed federal internal improvements because they feared that they threatened individual liberty and state sovereignty, and because some projects–such as the proposed Tennessee River-Mobile Canal system–were seen as largely benefiting Whig planters who marketed their cotton abroad. Campbell also passed the number one test of Jacksonian loyalty by opposing rechartering of the Second Bank of the United States.

As a lawyer in Mobile he represented businessmen, planters, and banks with local economic interests, rather than the Whig planter-capitalists with Northern ties. Although Campbell shared his fellow Democrats' concern over the corrupting influences of aggregations of wealth, he did not oppose all corporate development. He realized that the future of Alabama and the South was in commercial development and that if Alabamians did not develop commercial enterprises for themselves, Northern capital would do it for them. Campbell wanted the profits from commercial development to stay in Alabama where they would aid the development of Southern society as a whole. He, therefore, favored careful locally controlled commercial development through state chartering of local corporations.

When Alabama embarked on a period of dynamic growth in the late 1840's, Campbell supported the chartering of private corporations. He even helped organize–and invested in–the Mobile and Ohio Railroad, part of a plan by Mobile businessmen to compete with New Orleans as the port for the midwestern grain belt. Campbell's legal practice reflected his mercantile Democratic politics. Over half of his three hundred cases before the Alabama Supreme Court involved commercial law, contracts, negotiable paper, bankruptcy and foreclosure. Over fifty were bank cases. Most of the time he represented the debtor against the bank. On a few occasions in the 1840's he represented private banks. In all Campbell argued for strict construction of corporate charters.[17]

III

Campbell brought with him to the Supreme Court the aversion to special privileges for corporations, which typified the Southern mercantile Democrats. He had long believed the South's future lay in commerce. But he hoped the South's commercial economy could develop according to its own timetable, rather than having the pace accelerated through infiltration by the large multi-state corporations already prevalent in the North. Campbell had never believed that "Cotton was King" and had predicted long before the war that "Slavery was doomed."[18]

As corporate enterprise grew throughout the nation, Campbell sought primarily to limit the resulting deprivation of individual rights rather than–like the agrarian Jacksonians–fighting the corporate form itself. When he joined the Court he opposed the two great protections previously won by corporations: the protection of corporate property under the contract clause from the exercise of the states' eminent domain, tax, and police powers and corporate citizenship under diversity jurisdiction, which made it easier for corporations to sue in federal court. Campbell considered the legal fiction of corporate citizenship to be a travesty of justice which allowed corporations to escape state control. States naturally wished to maintain their courts' control over the corporation, the most dynamic form of business organization. Whigs and corporations themselves, desiring national economic development, preferred to litigate in federal courts, which they expected to be more sympathetic to their national aspirations.[19] After the Panic of 1837 and ensuing litigation, corporations were especially anxious to get into federal court. They had little desire to be left to the mercies of the radical state Democrats who emerged from the anti-bank movements.

The main problem for the Whigs was the creation of a mechanism through which an "artificial being" could get into federal court. The jurisdiction of federal courts was limited primarily to suits involving diversity of citizenship between the parties. Common sense indicated that a corporation was not a citizen. Justice Marshall first resolved the difficulty in Bank of the United States v. Deveaux (1809) by looking to the citizenship of the persons who made up the corporation.[20] If all the stockholders of a corporation were citizens of a state different from that of the adverse party then suit could be brought in federal court. The growth of corporations and increasing stockholder investment soon led to overlapping citizenship in most cases. Under the Deveaux reasoning federal courts were losing jurisdiction over most corporations cases.

The Taney Court had little intention of leaving such important vehicles of economic development unprotected. In Louisville, Cincinnati & Charleston R.R. v. Letson, the Court unanimously held that a corporation could be treated as a citizen of its state of incorporation just as a natural person was a citizen of his state of birth." Campbell attacked the Letson definition of corporate citizenship because it raised the spectre of corporations enjoying privileges and immunities of citizenship under Article IV, section 2 of the Constitution.

In the face of rising Whig agitation for privileges and immunities of citizenship for corporations, a majority of the Court retreated from the Letson doctrine in Marshall v. Baltimore & Ohio RR (1845).[22] They held as in Deveaux that corporate citizenship was derived from the shareholders. But by a curious legal fiction they found the state of incorporation to be the residence of all the corporators and therefore the source of corporate citizenship. This enabled the Court to give the same protection as Letson without raising the spectre of privileges and immunities. The Court was willing to provide corporations with the necessary protection to foster national economic growth, but at the same time it did not wish to impinge upon state sovereignty. With the growing slavery crisis an extension of corporate citizenship could have led to agitation in favor of citizenship rights for blacks.

Campbell's dissent reiterated Marshall's reasoning in Deveaux that a corporation could not be a citizen. According to Campbell, the Federalist Papers clearly indicated that diversity jurisdiction had been created only to protect privileges and immunities of citizenship granted in Article IV, section 2. He was convinced that diversity jurisdiction had never been intended as a mechanism for extending citizenship.[23] Campbell clearly wished to avoid the "Pandora's Box" of extending citizenship rights, but it was economic development in the South rather than slavery which he sought to protect. He was particularly concerned by the corrupt nature of the large corporations which demanded special privileges from the legislatures. The increasing numbers and size of corporations, he felt, forebode ill for less developed states:

. . . no offering could be made to the wealthy, powerful and ambitious corporations of the populous and commercial states of the Union so valuable and none which would so serve to enlarge the influence of those states as adoption of the conclusion "that (corporations). . . are capable of being treated as a citizen as much as a natural person.[24]

IV

During Campbell's tenure the Court took an increasing number of corporation cases. Unlike his colleague Justice Daniel, who dissented until the end, Campbell eventually realized the futility of his position. With the continued growth of corporations, especially in Alabama, Campbell became more inclined toward a positive role for the Supreme Court in guiding corporate responsibility toward its shareholders and the public.

Campbell came to accept corporate citizenship for purposes of diversity jurisdiction as the Court increasingly demanded more corporate responsibility. But he remained opposed to contract clause protection for corporate charters. In a series of Ohio cases involving the taxation of corporations, Campbell wrote his most brilliant and well-known opinions. His major concern was to protect the states' sovereign powers– taxation, eminent domain and police power–in dealing with corporations. To Campbell, contract clause protection was inherently unequal because it resulted in better protection of corporate property rights than individual property rights.

The Ohio General Banking Act of 1845 had allowed any five persons to incorporate as a bank and become a branch of the state bank. By one of its provisions, six per cent of the profits every six months went to the state in lieu of taxes. In 1851 the State enacted a law taxing bank profits. The 1851 statute was the precursor of a new constitution in 1852 which required the taxation of bank property at a rate equal to that imposed upon individuals. In 1852 the legislature enacted a statute effectuating the new constitution. Both tax statutes eventually came before the Supreme Court and both times the Court declared them void as impairing the contract created by the 1845 act. Campbell dissented on both occasions.

In Piqua State Bank v. Knoop (1854), the Court found that the State had made an explicit tax-exemption contract in the 1845 Banking Act which could not be revoked by future legislation.[25] Campbell dissented emphasizing that perpetual tax exemptions must be explicit. Nowhere in the Banking Act did Ohio impose any limit on its taxing power or explicitly bind itself for the future. Campbell concluded that even if the Banking Act was considered to represent a corporate charter, a perpetual tax exemption was only implied. He was convinced that the tax power was an aspect of state sovereignty which was essential to the state in order for it to provide "full and unshackled self-government."

In Deshler v. Dodge (1845) the banks organized under the Banking Act successfully gained access to federal court by transferring their claims for refund of the state taxes to a New York resident.[26] Four Justices, including Campbell dissented. It was not enough, however, for the banks to get their refund claims transferred to federal court. They wished to bring a suit in federal court which would prevent the initial collection of taxes. To accomplish this the bank directors induced John Woolsey, a Connecticut citizen and stockholder, to bring a suit against the bank and the county treasurer. Even though there was evident collusion on the part of the bank and Woolsey, who acquired the stock only five days before filing suit, the Court took the case and again upheld the tax exemption of the Banking Act–this time in the face of the attempted revocation in the new constitution.

Campbell's dissent in Dodge v. Woolsey was the high point of his career on the Court.[27] He restated his belief that corporations threatened both state sovereignty and individual liberty and distinguished the rights of individuals from the rights of corporations. In true natural rights fashion, he said:

A material distinction has always been acknowledged to exist as to the degrees of authority that a people could legitimately exert over persons and corporations. Individuals are not the creatures of the state, but constitute it. They come into society with rights, which cannot be invaded without in-justice. But corporations derive their existence from the society, and are offspring of transitory conditions; and with faculties for good in such conditions, combine durable dispositions for evil. They display a love of power, a preference for corporate interests to moral or political principles or public duties, and an antagonism to individual freedom which have marked them as objectives of jealousy in every epoch of their history.[28]

Campbell considered the state sovereignty question in Dodge v. Woolsey as the most important and elemental principle ever submitted to the Court.[29] The contract clause was not a strong enough textual link in the Constitution, he felt, to justify interference with the State's sovereign power:

If the court is to have an office so transcendant as to decide finally the powers of the people over persons and things within the state, a much closer connection and a much more direct responsibility of its members to the people is a necessary condition for the safety of popular rights.[30]

In 1860 Campbell won something of an ironic victory over the contract clause. In Christs Church Hospital v. Philadelphia he wrote for a unanimous Court that a Pennsylvania law revoking a tax exemption previously granted to a corporation or association did not violate the contract clause.[31] He made no reference to the sovereign tax power, but rather redefined the contract clause on a narrower basis. Following the concept of "consideration" in private law of contracts, he found no contract in the State's earlier grant of a tax exemption to the hospital because the State had not received anything in return for the tax exemption.

V

As Campbell was winning the battle for the sovereign power of taxation, he was about to face the greater issue of the sovereign rights of the states within the Union. Less than a month after the Court decided Christs Church Hospital, Campbell's fellow Alabamians voted to secede. Although Campbell opposed secession, he believed it was legal. During the 1830's and 40's he helped develop its theoretical foundation, that the states retained all sovereign power not explicitly surrendered in the Constitution–including the right to secede. In 1838, Campbell was retained by several landowners whose claims of riparian rights in land between the high and low marks of the Mobile River were under attack in ejectment suits brought by the City of Mobile and the heirs of William Pollard, a grantee from the Spanish crown. The City claimed exclusive rights to some of the land under one act of Congress which purported to grant that portion to the City, and Pollard's heirs claimed exclusive rights in the rest under another act which purported to confirm Pollard's grant.

In the first case litigated, Mayor of Mobile v. Eslava (1849), Campbell enunciated a state sovereignty doctrine which both the Alabama and United States Supreme Court later recognized as original with him.[32] He started with the accepted premises that each of the original states held exclusive sovereign rights to the navigable waters within its borders by royal grants which antedated the Union, and that the navigable waters extended to the high water mark. He then noted the Constitutional guarantee that each new state was to enter the Union on equal footing with the original states. Thus, he reasoned, Alabama also exercised exclusive sovereignty over the navigable waters–up to the high water mark–within its borders. And that meant that the acts of Congress relied upon by the City of Mobile and Pollard's heirs were null and void, because Congress could not legislate with respect to land over which it had no sovereignty.

Campbell's argument prevailed in the Alabama courts in Eslava and several other cases. Two of the cases were reversed by the United States Supreme Court on narrow grounds. Finally, in 1845, a case titled Pollard v. Hagan squarely presented to the Supreme Court the constitutional issue of whether the guarantee of equality among the states included a new state's right to sovereignty over the navigable waters within its borders to the same extent as that possessed by the original states. Campbell did not argue Pollard personally, but rather retained a member of the Supreme Court Bar, John Sergeant. Sergeant's arguments and Justice McKinley's majority opinion, however, were drawn from Campbell's arguments to the Alabama courts in Eslava and Pollard.

The state sovereignty doctrine of Pollard was too valuable to be used only to justify a new state's sovereignty over navigable waters. Justice Catron, dissenting in Pollard, had realized the implications of Campbell's argument when he said:

this is deemed the most important controversy ever brought before the court, either as it respects the amount of property involved, or the principles on which the present judgment proceeds–principles in my judgment, as applicable to the high lands of the United States as to the low lands and shores.[34]

In the following decade several important slavery cases were decided in favor of the slaveowners on the basis of the state sovereignty argument in Pollard that each new state was entitled to the same degree of sovereignty as that possessed by the original states. In Strader v. Graham (1850) the Court held that a slave sojourning in a free state remained a slave.[35] Applying the principles of extraterritoriality, rather than the precedents of comity, the majority reasoned that slave property designated under a state's police power was just as entitled as any other property to protection from the laws of another state. Finally, in Dred Scott v. Sanford (1857) the Supreme Court held that slavery was protected in the territories despite federal laws to the contrary. The majority reasoned that the territories had to be considered as being held in trust equally for all the states in order to fulfull the constitutional requirement that all states entered the Union on an equal footing. Thus a police power designation of slave property had to receive the same protection as any other property designation.

VI

Campbell was a moderate on slavery. Between 1847 and 1851 he had written several unsigned articles on slavery in the Southern Quarterly Review advocating amelioration of slave living conditions and gradual emancipation. He did not consider himself as a pro-slavery advocate and was even considered an abolitionist by some of his fellow Southerners.[36]

The failure of the states' rights movement to gain from Congress legislation protecting slavery in the territories had greatly disappointed Campbell. He had hoped that such an enactment would end the slavery controversy so that the country and the South in particular could get on with commercial development. He had recognized long before that the territories were unsuited for slavery, and that it would eventually disappear there. In Dred Scott Campbell felt compelled to keep the South from seceding.

Campbell's concurrence in Dred Scott was somewhat inconsistent. He argued for strict construction of federal power and a broad implied construction of state power. Although it was his most political and legislative opinion, it was not the pro-slavery exposition of which he has been accused. Campbell concurred in the judgment of the Court declaring Scott still a slave but he did not agree with the reasoning of the leading opinion by Chief Justice Taney. He did not believe that the Court could discuss whether or not Scott should be a citizen and refused to address that issue. He did agree that under Missouri law Scott was still a slave and could not sue in federal court. He also agreed that the Missouri Compromise was unconstitutional because Congress had no power to legislate in the territories.

Campbell attempted to ground his opinion in strict construction of the Constitution by arguing that the power to make rules and regulations for the territories did not explicitly give Congress legislative power. In so doing he reversed the stand he had taken in 1848 when he wrote John C. Calhoun that slavery depended upon positive law and that Congress could legislate in the territories.[37] He ignored the precedents he had cited then, including the Missouri Compromise and returned to the history of the Constitution. He could find no assertion of a:

supreme sovereignty for Congress over the territory then belonging to the United States, or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject comprehended an empire and which had no restriction but the discretion of Congress.[38]

He distinguished between the power to dispose of the public domain or organize a government and the authority to determine police regulations. If the sovereign power over the territories had not been delegated to the federal government, he reasoned, then it must have been retained by the states. And if the Constitution had spoken of a Union of equal states then the sovereign power over the territories resided equally in each state. Thus to maintain this equality between the states, a police power designation of one state–such as slavery–could not be barred without invading a state's residual sovereignty.

Despite Campbell's attempt to treat Dred Scott solely as a state sovereignty case, his internal conflict over slavery showed through. His opinion is best known for its "overelaborate scholarship" which could not disguise the fact that Campbell made a weak argument. He knew that slave property was not the same as any other property, and he could not deny to himself that a slave was also a person entitled to individual rights. In his proposals for just compensation to slave owners for freeing their slaves, he had hoped for a resolution of the dilemma. In a conflict between property rights and individual rights, in which he perceived the economic growth of the South was at stake, Campbell joined with the side which he believed best protected Southern economic development.

Three years after Dred Scott the Southern states seceded, believing that the election of Lincoln threatened their sovereign rights in the territories. Campbell tried to convince them that Dred Scott protected slavery, and that no matter what Lincoln said he was bound by a Constitution which protected slavery in the territories. He defended the federal government's affirmation that it had no power over slavery and that it had never acted to liberate a slave.[39]' In May, 1861 after several efforts to save the Union, Campbell resigned to go with his native state.

Although Campbell was a high-ranking Confederate official, he was one of the first Southerners to accept the peace terms. After President Johnson issued a general pardon, he petitioned for amnesty and took an oath of loyalty to the Union. He endorsed the Emancipation Proclamation and counseled patience and reconciliation.[40] His major concern was for the creation of a climate of peace and stability which would foster economic recovery. He believed that the welfare of all Southerners, black and white, depended on their own hard work. He had recognized years before, in the unwillingness of the North to fund a program of compensation for freeing slaves, a lack of commitment in the North to federal spending which did not directly benefit the North.[41]

Campbell's most immediate concern was to provide for his family. In 1866 he moved to New Orleans and opened a law office with his son and former State Judge Henry Spofford. New Orleans offered the best economic opportunities for him, but even these were severely limited by his inability to practice in federal courts. Even before the war had ended, Congress had passed a test oath act barring from practice in federal courts lawyers who would not take an oath that they had not participated in the rebellion. Until Ex Parte Garland declared the oath unconstitutional in January, 1867, Campbell was only able to practice in state courts; but because of the chaotic conditions and the presence of military tribunals, the state courts opened only intermittently.[42] During this period he is believed to have authored a pamphlet attacking the constitutionality of the test oath act as a bill of attainder and ex post facto law. He was so concerned about the outcome of Garland that in December, 1866 he wrote the clerk of the Supreme Court asking to be informed by telegram of the Court's decision.[43] Once readmitted to the federal bar, he turned his energies toward earning enough money to provide for his family's security.

VII

In keeping with his mercantile Democratic background, Campbell agreed with many of the Whigs and Republicans that the key to renewed prosperity depended upon the railroad. One of the lessons of the war had been the supremacy of railroad transportation. It had enabled the North to outmaneuver the South on all fronts. In particular, New Orleans looked to the railroad as the means for tapping the riches of Texas and the Southwest.[44] Although the transcontinental railroad was nearing completion, it would pass far to the North. New Orleans businessmen had good reason to believe that if they could get to Texas first, they would be well on the way to economic leadership of the country's heartland. The great wealth of Texas was its millions of beef cattle. Cut off from their natural Southern market by the capture of New Orleans in 1862, Texas cattle herds had multiplied enormously. The war had also greatly impoverished herds elsewhere in the country. New Orleans had only to provide transportation and slaughterhouse facilities in order to overtake Chicago as the heartland's economic center.

In 1869, in order to take full advantage of the cattle which would come by railroad from Texas, the Louisiana legislature enacted the "slaughterhouse monopoly." Several thousand butchers were forced to cease plying their trade except at the new Crescent City Slaughterhouse, and were forced to pay a fee to use the new facility. The act was justified by the legislature as a health measure, which would end pollution of the Mississippi River by removing the slaughtering business to the new facility south of the city. At the same time it also created a monopoly for twenty-five years for the benefit of the seventeen slaughterhouse corporators, most of whom were Northerners.

The butchers joined together to fight the monopoly and hired Campbell to plead their case. A fight against a corporate monopoly on behalf of the butchers' right to pursue a lawful calling was tailor-made to appeal to Campbell's Jacksonian instincts. In addition, the case involved bribery of the legislature by Northern economic interests. In the Slaughterhouse Cases (1874) therefore, Campbell had the opportunity to fight for both individual equality of economic opportunity and for a South free from Northern exploitation.[45]

If defeated Southerners were looking for a case to overturn the Reconstruction legislation, they had picked an unpromising one. Campbell had to fight the combined weight of the state's police power and the Constitution's contract clause. He was squarely faced with the inadequacy of his pre-war argument that the inviolability of the state's sovereign powers protected individual rights–such as the right to pursue a lawful calling. But a great change had occurred in the Constitution as a result of the Civil War Amendments. It had been changed to protect personal rights as adequately as it had protected property rights. As a member of the Dred Scott majority, Campbell had voted to accord property rights the higher protection. He had based his interpretation on a strict construction of the text of a constitution which explicitly recognized slavery. The textual link of national citizenship and protection of individual rights for which he had looked in vain in the corporations and slavery cases before the war, had been embodied in the Constitution through the Thirteenth and Fourteenth Amendments.

It has never ceased to surprise later generations that the first interpretation of the Fourteenth Amendment involved the right of butchers to pursue a lawful calling. That it was the first case was in great part due to the unique abilities of Campbell. That such a principle found protection under the Constitution should not be surprising. The economic equality fight of the individual to pursue a lawful calling had been the first principle of Jacksonian Democracy. One of the earliest defenses of this right was in the Alabama case, In Re Dorsey (1837), an opinion with which Campbell was very familiar and in 1884 termed "among the finest specimens of judicial exposition."[46] For a time the slavery crisis had obscured the right to pursue a lawful calling. Jacksonian individual rights idealism had foundered on the shoals of property rights. Once the war had settled that a man could not make another man his property, Jacksonians such as Campbell, recovered their sense of purpose.

Campbell had a legal mind and breadth of vision unequaled by most of his contemporaries. These qualities enabled him to quickly grasp the potential of the Fourteenth Amendment. His Slaughterhouse argument was his interpretation of the Civil War peace settlement. He saw the Civil War not just as a political controversy within the United States, but also as part of the great revolutionary uprising for individual liberty which included the English, American and French Revolutions.[47] Before the war he had warned that a revolution in public opinion was taking place. He had counseled the South to take heed of the winds of change and seek immediate amelioration and gradual abolition of slavery. Campbell saw an emerging Western civilization based on a philosophy of individual liberty and equality and the progress of man. He had encouraged the South to participate on its own initiative and warned against attempts on the part of the South to take itself out of the mainstream of Western civilization to protect the relic of slavery.

In Slaughterhouse Campbell argued that the anti-slavery movement which culminated in the Thirteenth and Fourteenth Amendments was much more than just a movement against Negro slavery. He believed that it was part of a worldwide movement for individual freedom based upon the natural law philosophy which declared all men to be equal, with inalienable rights to life, liberty, property, and the pursuit of happiness. The right to labor for oneself and to enjoy the fruits of one's labor, he reasoned, was a fundamental corollary. In abolishing slavery and involuntary servitude, he argued, the Constitution implied that labor, which had once been an obligation or duty, had become a right and a privilege and the distinguishing factor between slave and freeman. He was convinced that the Thirteenth Amendment was meant to embody the right of a man "to labor for himself, and not at the will, or under the constraint of another, and that he should have the profit of his own industry."[48]

Campbell's discussion of slavery in Slaughterhouse reflected the resolution of his earlier internal conflict. Once slavery had been abolished Campbell was freed from the convoluted reasoning of his Dred Scott opinion. In a sense he too was liberated by the Thirteenth Amendment and was free to return to a natural rights belief in individual liberty and equality. He did so wholeheartedly in his exposition of the Fourteenth Amendment.

Campbell was convinced that the Fourteenth Amendment granted legal protection to the natural law fundamental rights–such as the right to pursue a lawful calling–embodied in the Thirteenth Amendment. He argued that the Fourteenth Amendment promised "that UNION and LIBERTY . . . should be ONE and INSEPARABLE."[49] The liberty was the natural law fundamental rights of man as embodied in the privileges and immunities, due process and equal protection clauses. The Union was the national citizenship given to all native born persons, independent of state citizenship. He believed that the amendment had been designed to secure the individual liberty, property, honor and security from arbitrary, partial proscriptive and unjust legislation of state governments.[50]

At its broadest, Campbell's interpretation was an open-ended guardianship of individual rights by the federal judiciary. The Bill of Rights would apply to the states as well:

Conscience, speech, publication, security, occupation, freedom, and whatever else is essential to the liberty, or is proper as an attribute of citizenship, are now held under the guarantee of the United States.. . . The most important of the sections of the Magna Carta form only a clause of this article. The first article of the French Charters of 1814 and 1830–the most efficient of all–is added, and does not exhaust it. The entire body of personal rights of men that state governments ought not to destroy or impair, have been placed under the guardianship of the government of the United States.[51]

As much as a resolution of the problems of the present, Campbell saw the Fourteenth Amendment as the pressure valve of the future, ensuring that never again would the country be torn by civil strife. Never again could some state governments deny fundamental rights which the majority of the Nation deemed vitally important:

The Fourteenth Amendment embodies all that the statesmanship of the country has ordained for accommodating the Constitution and the institutions of the country to the vast additions of territory in-crease of the population, multiplication of the states and territorial government, the influx of aliens, and the mighty changes produced by revolutionary events, and by social, industrial, and commercial developments.[52]

Although Campbell offered the Court an open-ended natural rights interpretation, he grounded his argument in the premise that the privileges and immunities, due process and equal protection clauses protected the butchers' right to pursue a lawful calling. He emphasized the privileges and immunities clause as his textual link because its concepts had been more developed in constitutional law before the war than had due process and equal protection. Having been a Supreme Court justice, he believed the Supreme Court was best able to provide an impartial guardianship of fundamental rights. Therefore he interpreted the legislative power of Congress as limited to that of enforcement against state action.

The Supreme Court did not accept Campbell's argument at first. Justice Miller's majority opinion held that privileges and immunities of national citizenship meant essentially what it had before the war. He denied that there was a substantive content to the due process clause or that it incorporated the Bill of Rights, and he applied equal protection of the laws only to racial discrimination against blacks. Campbell was able to persuade four Justices of the rightness of the butchers' cause. In dissent, Justices Field and Bradley declared that there was a natural law right to pursue a lawful calling and that it was protected by not only the privileges and immunities clause but also the liberty and property rights of due process and equal protection. Through the Slaughterhouse dissent a fundamental rights interpretation of the Fourteenth Amendment was to be incorporated into constitutional law.

Campbell never gave up his belief that the first section of the Fourteenth Amendment was intended to have a broad natural rights meaning. In an 1884 address he reiterated his belief that its purpose was apparently fair, although he felt it had raised more questions than it had answered. It was not until the late 1880's after new life had been read into section one through the due process and equal protection clauses that he would look back and say that perhaps the Slaughterhouse decision had been for the best.[53]

Endnotes

1. The standard biography of Campbell is Henry G. Connor's John Archibald Campbell (Cambridge, 1920).
2. Most historians have supposed that Campbell was in favor of slavery. For a good discussion of this misconception see Justine Mann, "the Political Thought of John Archibald Campbell: The Formative Years 1847-1851," Ala. L. Rev., 22 (1969-70).
3. The University of Georgia was the mecca for students from Georgia, Florida, Alabama, and Mississippi, who did not go North to Princeton, James e. Saunders, Early Settlers of Alabama (New Orleans, 1899). At West Point, Campbell met Robert E. Lee, Jefferson Davis, and Joe Johnston, with whom he would share a common destiny.
4. "Obituary of John A. Campbell," New Orleans Picayune, 1889, Groner Papers in Southern Historical Collection, (University of North Carolina, Chapel Hill). The Best work on the antebellum period in Alabama is J. Mills Thornton, "Power & Politics in a Slave Society: Alabama, 1820-1860," (unpublished PhD. Thesis, Yale University, 1974).
5. Of the United States Supreme Court Bench and Bar: Memorium to John Archibald Campbell (Washington, 1889).
6. George W. Duncan, "John A. Campbell," Transactions of the Alabama Historical Society, 5 (1905) 113.
7. R. Schmidhauser, "Jeremy Bentham, the Contract Clause, and John Archibald Campbell," Vand. L. Rev., 11 (June 1958), 811.
8. Connor, John A. Campbell, 159-60.
9. See John A. Campbell, Recollections of Evacuation of Richmond (Baltimore 1880); and John A. Campbell, Reminiscences and Documents Relation to the Civil War during 1865 (Baltimore, 1887).
10. Richard Leach, "John Archibald Campbell and the Alston Letter," The Alabama Review, 11 (1958) 64.
11. Obituary of John A. Campbell," New Orleans Picayune, 1889, Groner Papers in Southern Historical Collection, (University of North Carolina at Chapel Hill).
12. 16 Wall. 36 (1873).
13. 115 U.S. 650 (1885).
14. 116 U.S. 307 (1886).
15. 108 U.S. 76 (1882).
16. Campbell to Henry Goldthwaite, Nov. 29, 1836, Groner Papers in Southern Historical Collection, (University of North Carolina, Chapel Hill).
17. Of some 300 cases Campbell handled before the Alabama Supreme Court over half (166) involved commercial law, contracts, negotiable paper, bankruptcy and foreclosure; 32 civil procedure; 40 real property; 8 corporate charters; 7 constitutional law, 8 torts, 2 taxation; 7 criminal law.
18. Campbell to Benjamin R. Curtis, July 20, 1865, Century Magazine (1889), 950; and, Edwin Craigshead, Mobile Fact and Fiction (1930).
19. See generally, James Willard Hurts, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, 1956); also, R. Kent Newmeyer, The Supreme Court under Marshall and Taney, (New York, 1968); and E. M. Dodd, American Business Corporations Until 1860 (Cambridge, Mass., 1954).
20. 5 Cranch 497 (1809).
21. 2 How. 497 (1844).
22. 16 How. 314 (1954).
23. Ibid., at 351.
24. 16 How. 314 at 353 (1854).
25. 16 How. 369 (1854).
26. 16 How. 622 (1954).
27. 18 How. 331 (1956).
28. Ibid., at 375.
29. Ibid., at 369.
30. Ibid., at 373.
31. 24 How. 300 (1860).
32. 9 Port. 577 (Ala. 1839).
33. Pollard v. Hagan, 3 How. 212 (1844). See also 14 Pet. 353, 9 Port. 712, 16 Pet. 234, 9 Port. 577, 2 How. 591, and 3 Ala. 47. See also, Edward W. Faith, "The Great Lawsuits Affecting Mobile," The Alabama Lawyer, 37 (July 1976) 339; and Carl w. Swisher, The Oliver Wendell Holmes Devise History of the United States Supreme Court, Vol. V.: The Taney Period, 1836-64, Chapter 30.
34. 3 How. 212 (1844) at 235.
35. 10 How. 82 (1850).
36. See "Slavery in the U.S." Southern Quarterly Review (SQR), 12 (July 1847) 91: "Slavery Among the Romans," SQR 14 (Oct., 1848). (1851), 205 new series; "British West India Islands," SQR, 16 (Jan. 1850), 342; "The Rights of the Slave States," SQR, 3 (Jan., 1851), 101, new series; "Slavery Throughout the World," SQR (April 1851), 305, new series; and, Campbell to B. R. Curtis, July 20, 1865; Century Magazine (1899), 953.
37. Campbell to John C. Calhoun, March 1, 1848, E. J. McCormac, "Mr. Justice Campbell and Dred Scott," Mississippi Valley Historical Review, 19 (1933), 568-70.
38. 19 How. 393 (1857) at 505.
39. John A. Campbell, "Address to the Alabama Bar," op. cit. 87. See also, Campbell to Daniel Chandler, No. 26, 1860, Duncan, op cit., 149.
40. Johnj A. Campbell to B. R. Curtis, July 20, 1865, Century Magazine (1889) 953, See also, Colston Papers in Southern Historical Collection, (University of North Carolina, Chapel Hill).
41. See generally, C. Van Woodward, "Seeds of Failure in Radical Race Policy," American Counterpoint, (1964); also, Everette Swinney, "Enforcing the Fifteenth Amendments, 1970-1877," The Journal of Southern History, Vol. XXVIII, No. 2, (May 1962) 202.
42. 4. Wall. 33 (1867).
43. Charles Fairman, The Oliver Wendall Holmes Devisee History of the Supreme Court, Vol. VI: Reconstruction and Reunion, 1864-88 (New York, 1971), 241.
44. See Mitchell Franklin, "The Foundation and Meanings of the Slaughterhouse Cases," Tul. L. Rev., 18 (Oct. 1943), 20-88.
45. 16 Wall. 36 (1873).
46. 7 Port. 284 (Ala. 1837).
47. John A. Campbell, "Brief for the Plaintiffs in Error," The State of Louisiana ex. rel. Attorney General v. the Livestock Dealers and Butchers' Association of New Orleans, et al. (1871), 5.
48. Ibid., at 13.
49. Ibid., at 26.
50. John A. Campbell, "Brief for the Plaintiffs in Error," William Fagan et al. v. State of Louisiana, ex rel. (1872), at 25.
51. Livestock Dealers and Butchers Assoc., op cit. at 17 and 37.
52. William Fagan, et al., op. cit., at 28.
53. Connor, "John A. Campbell," op. cit., p. 273.