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Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights—the rights of person and property—was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation. —The Slaughter-House Cases
Every solution creates another problem. The bloodshed of the Civil War paved the way for a set of constitutional amendments that settled forever the issue of whether Americans could hold slaves or whether those former slaves were citizens of the United States. At the same time, the amendments raised a new set of questions about the allocation of authority between the federal government and the states. To see how William Jennings Bryan's defeat transformed the law during the 1890s, we need to examine the doctrinal debate that followed Reconstruction. Accordingly, I focus here on three issues related to the meaning of the Fourteenth Amendment: (1) whether the states faced additional limits on their authority to regulate property and contract rights; (2) whether the Bill of Rights now applied to the states; and (3) to what extent the states were barred from making distinctions based on race. Until the backlash against the Populist coalition, there was no consensus on these three topics. After that backlash, the ambiguities in the Fourteenth Amendment were resolved in line with the views of Bryan's foes.
Slaughter-House and the Interpretive Debate
A natural starting point for any discussion of the Fourteenth Amendment is the Slaughter-House Cases, which marked the Supreme Court's first interpretation of the new constitutional language. Some white butchers in New Orleans argued that a state statute granting a butchering monopoly to a corporation that excluded them violated the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. The Justices, by a five-to-four vote, rejected that claim in an opinion that touched on most of the basic issues that preoccupied lawyers for the next three decades.
Slaughter-House held that the freedom to work in a trade was not a constitutional right, because the Fourteenth Amendment left the regulation of common-law contract and property rights to the states. The Court reasoned that there was a distinction between national and state citizenship in the Constitution and that only national citizenship rights were protected from state action. Not only did nothing of national importance inhere in the right to work as a butcher, but, as the Court concluded from some cases predating the Fourteenth Amendment, state citizenship "embraces nearly every civil right for the establishment and protection of which organized government is established." To hold otherwise and declare that the common law was absorbed into the Constitution "would constitute this court a perpetual censor upon all legislation of the States" and radically change "the whole theory of the relations of the State and Federal governments to each other and of both governments to the people."
There were three dissenting opinions in Slaughter-House, but the most powerful one was by Justice Stephen J. Field, who said that the case presented "nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislatures." Field observed that the Civil Rights Act of 1866, the antecedent of the Fourteenth Amendment, secured the right "to make and enforce contracts" and the right "to inherit, purchase, lease, sell, hold, or convey real and personal property." He contended that in securing those rights, the act undermined the Court's view that they were not of national significance and supported his position that common-law privileges, including the "right to pursue a lawful employment," did "belong to the citizens of all free governments." If the Fourteenth Amendment did not protect these rights, then "our government will be a republic only in name."
Slaughter-House did "venture to suggest some" of the rights that were protected by the Fourteenth Amendment "lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded." In defining the liberties that "owe their existence to the Federal government, its National character, its Constitution, or its laws," the Court wrote that each citizen had the right:
to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports ... to the subtreasuries, land offices, and courts of justice in the several States.
A citizen also possessed the right:
to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government ... The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus ... The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations ... One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bonâ fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteen articles of amendment.
This list of federal privileges or immunities is the only guidance in the opinion about whether the Fourteenth Amendment incorporated (in other words, extended) the Bill of Rights to the states, which was an important question because the Court held in the 1830s that the Bill applied only to the federal government.
The incorporation issue was not raised by the butchers' claim about a right to work, but most scholars believe that the analysis in Slaughter-House foreclosed the argument that the states were bound by the first eight amendments. After all, the Court omitted those fundamental liberties, with the exception of the Petition Clause, from its discussion of federal privileges or immunities. The omission seems critical because the Justices did see fit to include such trivial items as seaport access and the right to travel. Moreover, Justice Joseph P. Bradley's dissent did mention parts of the Bill of Rights in his definition of national privileges or immunities, which could be construed as implying that the Court's exclusion of them was telling. As a result, one view of Slaughter-House is that either the Fourteenth Amendment was declaratory of rights that already existed or it guaranteed nontextual rights inherent in the federal structure.
The other interpretation of the opinion is that its litany of national rights was illustrative rather than exhaustive, and thus the Court did not reject incorporation. The Court's statement that it was suggesting "some" of the privileges or immunities encompassed by the Fourteenth Amendment supports this reading. In fact, some commentators go further and say that the inclusion of the Petition Clause in the key passage should be taken as evidence that the Bill of Rights was incorporated. This conclusion builds on the observation that Slaughter-House counted rights specified in the Thirteenth and Fifteenth Amendments (banning slavery and providing for African American suffrage) as national rights, which indicates that privileges in the text—not just structural rights or ones that existed before the ratification of the Fourteenth Amendment—were included.
Nineteenth-century courts did not address these competing interpretations of Slaughter-House. Indeed, in no federal case prior to 1900 was the opinion cited as either supporting or rejecting the extension of the Bill of Rights. Slaughter-House was cited for the point that state and national citizenship rights were distinct in cases holding that a given part of the Bill of Rights did not apply to the states, but that was not the same as saying that Slaughter-House spoke directly to the issue. Given the lack of authority for the proposition that the Court rejected incorporation in 1873, why are so many modern lawyers convinced that this repudiation happened then?
The answer is that nearly thirty years after Slaughter-House the Justices declared that the opinion was hostile to incorporation. In Maxwell v. Dow, a 1900 case that rejected a claim that the Fourteenth Amendment applied the Sixth Amendment jury trial right to the states, the defendant argued that "all of the provisions in the first ten amendments, so far as they secure and recognize the fundamental rights of the individual as against the exercise of Federal power, are ... to be regarded as privileges or immunities of a citizen of the United States." In response, the Court quoted Slaughter-House at length and concluded that in the section of that opinion on national privileges or immunities, "a right, such as is claimed here, was not mentioned, and we suppose it was regarded as pertaining to the state, and not covered by the amendment." With that statement, Maxwell explicitly endorsed the "exhaustive" reading of Slaughter-House on incorporation. The critical point is that this endorsement happened after Bryan's 1896 defeat. As we see in chapter 6, that political earthquake turned the meaning of Slaughter-House upside down.
Finally, Slaughter-House addressed what the Fourteenth Amendment (and Reconstruction more generally) meant for African Americans. The Court said that the new amendments were supposed to guarantee "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him." Extraordinary action was necessary because "it was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced." Furthermore, "they were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage." As for the Equal Protection Clause, the Justices said that "the existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden."
Of course, the Court gave none of these statements any content, because the butchers in Slaughter-House were white. But the flood of litigation that followed forced the Justices into a more searching inquiry on all three of the issues raised by that first Fourteenth Amendment case: property and contract rights, incorporation, and racial equality.
Stalemate in the Courts
Using the basic outline sketched out in Slaughter-House, lawyers pressed forward with a series of claims that attempted to put some meat on its bones. While some patterns emerged over the next two decades, there was no resolution of the main interpretive questions. Indeed, there were many inconsistent trends in the Fourteenth Amendment cases prior to the mid-1890s.
On the subject of Slaughter-House's holding—whether the Fourteenth Amendment placed limits on state regulation of property and contracts—the Justices were steadfast in saying no. For example, the Court rejected a constitutional challenge to state grain-elevator rate ceilings in the 1870s, saying: "It was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law." A suit in the 1880s claiming that a state prohibition on liquor sales was unconstitutional was rejected on similar grounds, since "society has the power to protect itself, by legislation, from the injurious consequences of that business." And when railroads attacked state rate regulations using the same Fourteenth Amendment theory, those challenges also failed. Although the Court did hold out the prospect that a state law affecting economic rights could violate the Fourteenth Amendment under extreme conditions, it never invalidated a state statute for a substantive defect until 1894.
At the same time, however, a countercurrent inside and outside the Court supported the nationalist reading of property and contract rights that was rejected in Slaughter-House. First, the dissenters in that case continued to criticize their brethren for leaving property rights at the mercy of grasping state legislatures, with Justice Bradley stating in one case that "the liberty of pursuit—the right to follow any of the ordinary callings of life—is one of the privileges of a citizen of the United States." Next, some state courts adopted his logic when construing provisions in their state constitutions similar to the Fourteenth Amendment. Finally, scholars such as Thomas M. Cooley provided intellectual support for protecting property and contract rights through constitutional law by drawing on antebellum suspicions of class legislation. Thus, the debate over this aspect of Slaughter-House was not settled by the 1890s, even though critics of constitutional interference in state economic policy still narrowly held the upper hand.
On incorporation, the Court took a more nuanced approach: it rejected applying the procedures of the Bill of Rights (for example, grand jury, civil jury, and trial jury) to the states but expressed qualified support for extending its substantive provisions. This distinction rested on the idea that procedures were only a means to achieving substantive justice and were subject to improvement, so fixing them in state law would retard progress. For instance, when the Justices held in 1884 that the grand jury indictment rule of the Fifth Amendment did not apply to the states, they explained that fundamental rights were best "preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government." Thus, the Constitution "must be held to guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property."
When those substantive claims came to the Court in an incorporation context, they received more favorable treatment. For example, in O'Neil v. Vermont a defendant was convicted of selling liquor without a license and sentenced to fifty-four years in prison under a state statute that mandated extra jail time if a defendant could not pay the fines imposed. The Court held that it could not consider whether this long sentence violated the Cruel and Unusual Punishments Clause of the Eighth Amendment, because the issue was not raised in O'Neil's brief. But three Justices rejected this holding and, reaching the merits, held that the sentence was invalid. Justice Field again led the charge, reasoning that the Fourteenth Amendment meant that when the Bill of Rights declares or recognizes "the rights of persons they are rights belonging to them as citizens of the United States under the constitution ... [and] no state shall make or enforce any law which shall abridge them." From this principle, he deduced that "the state cannot apply ... any more than the United States, the torture, the rack, or thumb-screw, or any cruel and unusual punishment, or any more than it deny ... security in his house, papers, and effects against unreasonable searches and seizures." Justice John Marshall Harlan, joined by Justice David Brewer, also dissented and explained that "since the adoption of the fourteenth amendment, no one of the fundamental rights of life, liberty, or property, recognized and guarantied by the constitution of the United States, can be denied or abridged by a state in respect to any person within its jurisdiction."
As a result, the picture of incorporation at the start of the Populist period was less certain than is generally thought, in large part owing to the erroneous, though common, view that Slaughter-House resolved the issue. The idea that the entire Bill of Rights applied to the states was clearly rejected by the cases about jury rights. But this position was not tantamount to a conclusion that all of the parts of the first eight amendments were unincorporated. In fact, the opposite is true. The Justices supported extending the bill's substantive freedoms against state action when the issue was squarely presented to them. The problem, at least from the perspective of those in favor of that result, was that almost all of the cases following Slaughter-House concerned procedural rights rather than substantive ones.
Excerpted from The Tragedy of William Jennings Bryan by Gerard N. Magliocca Copyright © 2011 by Yale University. Excerpted by permission of YALE UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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