Abstract
The famed Slaughterhouse Cases were the first cases to interpret the Fourteenth Amendment. Those cases arose from a Louisiana controversy. This essay suggests that Fourteenth Amendment jurisprudence, including Substantive Due Process, is rooted in the civilian private law tradition as received in Louisiana and as argued by the butchers in the Slaughterhouse Cases. The essay explores the civil law roots of the Privileges and Immunities Clause, beginning with the Twelve Tables and the Code of Justinian. The essay explores how those early codes were appreciated by subsequent Louisiana jurists, and how the civil law approach became an integral part of subsequent Supreme Court rulings involving the Fourteenth Amendment. Throughout this process, both the factual matters at issue in the Slaughterhouse Cases, and also the philosophical underpinnings that created the framework for the butchers’ complaint will be examined. The essay uses French and Roman legal texts, as well as Louisiana’s own legal history, to show that the Act that established the centralized slaughterhouse and stock yards was an affront to the ius commune and ius cogens of the era, but that the dissents that agree with that interpretation, and not the majority opinion, served as precedent in many subsequent Fourteenth Amendment cases. Finally, the essay shows that while the civilian approach reached its zenith with the Lochner era, it remains relevant, and indeed central, to an understanding of modern Substantive Due Process case-law.
Repository Citation
Jared Bianchi,
Anything But Common: The Role of Louisiana’s Civilian Tradition in the Development of Federal Civil Rights Jurisprudence under the Fourteenth Amendment,
6 J. Civ. L. Stud.
(2013)
Available at: https://digitalcommons.law.lsu.edu/jcls/vol6/iss1/6