After the Civil War, a series of congressional acts and constitutional amendments secured the legal abolition of slavery, as well as the citizenship, civil and political rights of black Americans. Unlike the Bill of Rights, which defined the rights of the people with respect to the national government, the Civil War Amendments imposed obligations on the states. This new reality would force the federal judiciary to reconsider the extent to which state actions could be reviewed for constitutionality.
The crisis of federalism which had resulted from the issue of slavery was now resolved by the northern states proposing the Thirteenth, Fourteenth and Fifteenth Amendments and the defeated South accepting them. For the purpose of ratification, the former Confederate states were counted as states, though they were not fully restored to the Union. Indeed, the Reconstruction Acts of 1867-68 would make acceptance of the Thirteenth and Fourteenth Amendments a condition of readmission. The Thirteenth Amendment was accepted by most Southern states with little resistance, but the Fourteenth and Fifteenth faced strong opposition, and it is unlikely they would have been ratified had it not been for Reconstruction era restrictions on former Confederates holding office. As these amendments were imposed on the South under duress, Southern whites sought to undermine them by any means at their disposal.
States could not be fully trusted to guarantee rights to their own citizens and residents, contrary to what had hitherto been assumed under federalism. The Freedmen’s Bureau, established by Congress in 1865, assumed jurisdiction over the affairs of free blacks, to prevent malfeasance by local courts. This state of affairs placed the federal courts in a difficult position. If they judged according to traditional legal principles, they must give due deference to state sovereignty and presume good intentions, but this would empower Jim Crow legislation and undermine federally guaranteed rights. If they took a sterner stance against state action, however, they must define fair and practicable principles for finding when a state has acted in a racially discriminatory manner, though the text and history of the amendments may give no clear guidance.
The defeat of the Confederacy was understood by most to imply the abolition of slavery, as slaveholders fled and blacks assumed freedom wherever the Union army advanced. The Emancipation Proclamation had declared the liberation of slaves in rebel territory, and the conquest of the South made this proclamation enforceable. The Proclamation did not apply to Union states, but Maryland and Missouri abolished slavery during the war, so slavery remained legal only in Kentucky, and even there it was difficult to enforce. The full abolition of slavery was completed by the ratification of the Thirteenth Amendment in December 1865.
The Thirteenth Amendment, prohibiting slavery and involuntary servitude, is arguably the first constitutional provision that expressly limited actions not only by governments, but by private citizens. It is certainly the first to interfere explicitly with private contracts. The right of private contract was considered foundational to republican liberty, so one might appreciate why previous federal efforts to limit slavery were considered a step toward tyranny, notwithstanding the irony of slaveholders complaining of infringements on their liberty. Naturally, Congress could always limit private contracts indirectly by general legislation under one of its enumerated powers, but until now it had no recognized direct power over intrastate commerce. This new power to prohibit involuntary labor was a first step toward establishing federal interest in regulating intrastate labor and property contracts.hou
Fear of federal overreach in economic matters was not limited to Southern apologists. Indeed, a jealous defense of states’ rights against the national government was a mainstay of American political discourse since the founding, most notably during the nullification crisis and national bank controversy. The Marshall Court had taken a strong view of federal authority over commerce, but even this was modest by twentieth century standards. If Chief Justice Taney had been of a mind to impose federal jurisdiction on the slavery question, the Court’s authority would surely have been denied by the Southern states, and not without reason. In 1854, Franklin Pierce vetoed the Dix land act to grant public lands for insane asylums, on the ground that social welfare was a responsibility of the states. President Lincoln refused to support Charles Sumner in his anti-monopoly Raritan Railroad Bill, characterizing it thus: He hopes to succeed in beating the President so as to change this government from its original form, and making it a strong centralized power.
Although the reality of the abolition of slavery was accepted by Southerners in fact as well as in law, several Southern states soon passed laws designed to restrict the economic freedom of black people. In Mississippi, black workers were required to have annual labor contracts, and would forfeit all wages and be subject to arrest if they left prematurely. In South Carolina, black artisans were required to pay a tax for holding an occupation other than farmer or servant. Exploiting the Thirteenth Amendment’s provision saying, except as punishment for crime,
blacks were penalized for vagrancy with forced plantation labor.
In response to these so-called Black Codes,
Congress would pass the Civil Rights Act of 1866, which was the first time Congress directly legislated on civil rights. While the Black Codes would thereby be legally abolished, it remained unclear to what extent Congress had the authority to impose civil rights legislation on the states. This led to development of the Fourteenth Amendment.
The Civil Rights Act of 1866 sought to abolish race-based distinctions in civil rights, so that the Southern states might not oppress blacks by making them second-rate citizens. The previous distinctions in rights between white and black citizens that had been countenanced before the Civil War were no longer permitted. The opening section of the Act repudiates the Dred Scott schema, establishing national citizenship for all races, and defining the rights of such citizenship:
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. [Emphasis added]
The emphasized phrase would later be developed into two distinct provisions of the Fourteenth Amendment, the due process
and equal protection
clauses. Here we can see, in context, that the intent is to abolish race-based distinctions in law and judicial procedure, insofar as they apply to the security of person and property. An earlier draft of the Act had included the provision: There shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of servitude.
It was feared that discrimination in civil rights might be too broadly construed by the courts, so this was deleted. Even advocates of the bill understood that civil rights did not include political rights such as voting or serving on juries, nor did they deny social distinctions such as segregated schooling.
The remainder of the act prescribes penalties and mode of enforcement of the Act. Violations of the civil rights of national citizens fall under federal jurisdiction, so there is no question of concurrence with a state power.
It was far from clear, however, whether Congress had the constitutional authority to change the definition and rights of national citizenship from the racial inequality permitted at the Founding. It is true that the Thirteenth Amendment empowered Congress to enforce the abolition of slavery, and the Black Codes effectively undermined the emancipation of blacks, so the Civil Rights Act might be construed as valid means of exercising a constitutionally prescribed power. Nonetheless, to guarantee the constitutionality of the Act, Congress would propose the Fourteenth Amendment in 1866, and this would be ratified in 1868. Congress then re-enacted the Civil Rights Act, so there would be no question of its legal validity.
The principles of the Civil Rights Act are expressed in Section 1 of the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
All persons born in the United States hold both national and state citizenship. Now that blacks born in the U.S. have national citizenship, it is necessary to prevent states from having laws that abridge the privileges or immunities of national citizens. More broadly, a State shall not deprive any person, whether citizen or resident alien, of life, liberty or property without due process of law. This prohibited extrajudicial oppression of blacks. If they were to be penalized in any way, it would have to be by the exact same judicial processes, with all attendant procedural rights, as were available to whites. Moreover, no person (again, citizen or alien) could be denied equal protection of the laws. Here the primary intent was to abolish racial lines in legislation. The same laws must apply to blacks and whites.
Arguably the two most important or at least the most frequently litigated provisions of the Civil War Amendments are the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We shall consider them briefly in their probable original meaning, before turning to the various interpretations and applications that arose in post-Civil War jurisprudence.
The Fourteenth Amendment’s Due Process Clause imitates the language of the Fifth Amendment: nor shall [any person] be deprived of life, liberty, or property, without due process of law….
This clause is listed among other procedural guarantees for those accused of federal offenses, such as the rights against double jeopardy and against self-incrimination. The Supreme Court has consistently held that the meaning of due process in the Fifth and Fourteenth Amendments must be the same, though only in the latter is it applied to the states.
We shall find that, although the general concept of due process has a well-defined meaning, its specific content of procedural guarantees may vary by jurisdiction. The application of the Due Process Clause to the states must allow for some variation in the definition of due process in each state. What it prohibits is different definitions of due process for different races of citizens in the same state. Although due process has come to be defined much more expansively, and perhaps was even understood by some of the ratifiers of the Fourteenth Amendment in an expansive sense, due process is a long-standing legal term of narrow technical meaning. We have seen in the Fifth Amendment that due process need not, of itself, include rights against double jeopardy or self-incrimination, which needed to be specified separately.
The concept of due process was a mainstay of English common law, going back to the Magna Carta, which specified: No free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him, nor send upon him, except by the lawful judgment of his peers or by the law of the land.
A 1354 statute under Edward III implemented the principle in these terms: No man of what state or condition he be, shall be put out of his lands or tenements taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.
Evidently due process of law
was equivalent to part or all of the lawful judgment of his peers or by the law of the land.
Lord Coke likewise explained the Magna Carta’s law of the land
(lex terrae) as the common law, statute law, or custom of England,
thus the Charter required the due course, and process of law.
In Regina v. Paty, Justice Powys of the Queen’s Bench noted that the Edwardian statute used due process of law
to explain lex terrae: By the 29 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by legal authority.
These interpretations are consistent with the probable eleventh century meaning of lex terrae as referring to the modes of trial in common use. The term lex was often used to mean a form of procedure. This provision in the Magna Carta directly addressed King John’s practice of attacking his barons without any judicial process whatsoever, thus violating his 1213 oath not to proceed in arms without any judgement. Thus due process of law,
as a new term for lex terrae, guarantees against extra-judicial punishments. It does not guarantee trial by jury or any specific procedure, as these are defined in other provisions.
There was no agreement among English jurists on what were the specific requirements of due process. These could vary by time or place. The general sense is that no one could be jailed or deprived of his property, much less killed, unless this were by some legal process, such as indictment, presentment, arrest, or trial. All such processes were understood to be implementing some law or custom, thus they could be called due process of law.
In America, the terms law of the land
and due process of law
were often used equivalently, following English legal tradition. The 1776 constitutions of Maryland and Virginia used the Magna Carta’s phrases:
That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land. (Maryland Declaration of Rights, XXI)
That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself;that no man be deprived of his liberty, except by the law of the land or the judgment of his peers. (Virginia Const., § 8)
In the case of Virginia, property is covered by a separate provision: That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.
(§ 11)
The Massachusetts constitution used the phrase, according to standing laws,
in apparent equivalence with the law of the land.
Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. (Part I, Art. X)
And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate; but by the judgment of his peers, or the law of the land. And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury. (Part I, Art. XII)
Deprivation according to the law of the land
does not entail trial by jury, which is an alternative condition, the judgment of his peers.
This is further proved by requiring trial by jury only for serious non-military crimes. Most importantly, the due process requirement need not limit what laws a legislature may pass, so an extra provision was needed to restrict the legislature. Even with these protections, one might still be subjected to minor punishments, such as whipping, small fines, and short-term imprisonment, without trial by jury.
The New York constitution is perhaps the most relevant, for it was the New York delegation that proposed the Fifth Amendment’s Due Process Clause. The state’s constitution used the traditional Magna Carta language:
…that no member of this State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land, or the judgment of his peers. (§ XIII)
For the U.S. Bill of Rights, the New York delegation proposed using this due process
phrasing instead: no person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.
James Madison drafted the final Due Process Clause, replacing the phrase but by
with without.
New York’s phrase followed the Magna Carta tradition, while Madison’s followed the Edwardian statute. Madison preferred to say without due process,
for the phrase but by due process
would suggest that due process is sufficient, when it is just a minimum requirement. Other rights not guaranteed by the Magna Carta were no less jealously guarded by Americans. Madison named trial by jury, freedom of the press, or liberty of conscience
as examples, showing that he understood these not to be encompassed by due process. This interpretation is supported by some state constitutions, which made trial by jury a separate provision, applicable only to certain kinds of cases. The federal Bill of Rights likewise made trial by jury and other procedural rights in criminal and common law trials something distinct from the bare due process guarantee. Nonetheless, these specific rights further define what constitutes due process in the federal justice system, though not due process
per se.
In a February 1787 address to the New York Assembly, Alexander Hamilton expounded his understanding of the term due process
in the recently enacted (January 26) state bill of rights. He compares this with the language of the state constitution:
In one article of it, it is said no man shall be disfranchised or deprived of any right he enjoys under the constitution, but by the law of the land, or the judgment of his peers. Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke, that great luminary of the law, in his comment upon a similar clause, in Magna Charta, interprets the law of the land to mean presentment and indictment, and process of outlawry, as contradistinguished from trial by jury. But if there were any doubt upon the constitution, the bill of rights enacted in this very session removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The wordsdue processhave a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature. [A. Hamilton. Papers 4:35, Feb. 6, 1787. To New York Assembly.
The bill of rights
referred to is An Act concerning the rights of the citizens of this state
(January 26, 1787), which says:
Second
That no citizen of this State shall be taken or imprisoned or be disseised of his or her freehold or liberties of free customs or outlawed or exiled or condemned or otherwise destroyed, but by lawful judgment of his or her peers or by due process of law.
Third
That no citizen of this State shall be taken or imprisoned for any offence upon petition or suggestion unless it be by indictment or presentment of good and lawful men of the same neighbourhood where such deeds be done, in due manner or by due process of law.
Clearly, due process was understood to refer to judicial processes, not legislative acts. Specifically, these processes were presentment, indictment and outlawry. The last was a public accusation in court, followed by an order for the accused to appear in court, enforceable by arrest if refused. These processes are distinct from trials. A trial is not necessary for someone to be deprived of liberty or property with due process, for refusing to appear in court is itself grounds for arrest and seizure of property. Due process restrains judicial and police proceedings to conform with the law of the land. These proceedings must be legally proper, not arbitrary. Due process was a meaningful guarantee of rights only because good procedural protections were already in existence and did not need to be established anew.
The Supreme Court has consistently held that Fifth Amendment and Fourteenth Amendment due process
mean the same thing. We have noted, however, that the specifics of due process can be defined differently in each jurisdiction, as various states and nations may have their own judicial procedural guarantees. In other words, even if the conceptual meaning of due process is the same in both the Fifth and Fourteenth Amendments, the specific content of due process may vary by jurisdiction and as laws and customs change, just as was the case in England. A question arises as to whether and to what extent the Fourteenth Amendment is supposed to impose the procedural guarantees of the federal system onto the states, or whether it intends merely to require that the states impose their own procedural guarantees consistently for all persons in their jurisdiction.
In contrast with due process, equal protection of the laws
is a vague concept without much legal history before the Fourteenth Amendment. To be sure, equality under the law had been upheld as a republican ideal, yet it is a practical necessity that the function of law should often be to establish differing benefits and penalties for different categories of people. Almost any commercial regulation, for example, will necessarily affect persons of different occupations differently. Nonetheless, a sense of fair play requires that the law should have no regard for persons, so the law is the same for Peter as for Paul. The idea that the law should be the same for all citizens was upheld as a democratic ideal in Athens, but most of Europe, following Roman law, prescribed different laws and penalties according to social class, and even granted exceptions to particular nobles according to perceived merit or by sovereign favor. The term privilege
means private law, and it was the work of the republican revolutions to abolish all privileges on the basis of noble birth. Yet states still granted commercial privileges to particular companies, often invoking the public good as justification. Although most republican thinkers followed Locke in holding that men were equal in their natural state, they at the same time countenanced inequalities imposed by positive law.
The most notorious of these inequalities was slavery, and this was a bridge too far for many. Abolitionists argued that the rights of personal liberty and ownership of one’s labor were inalienable. One could no more contract these away then one could cease to be a person. Charles Sumner, recognizing that the abolition of slavery could be guaranteed only by making blacks equal under the law, so that they are no longer regarded as a lower caste, proposed this form for the Thirteenth Amendment: All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have the power to make all laws necessary and proper to carry this declaration into effect everywhere in the U.S.
Although this language was not adopted, a similar concern for racial equality would be codified in the Civil Rights Act of 1866, which guaranteed to citizens of every race and color: full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other…
The act did not guarantee the equality of citizens under all laws whatsoever, which is a practical impossibility, but only those pertaining to the security of person and property. Arguably, the subsequent Equal Protection Clause of the Fourteenth Amendment should be understood to have the same limitation in scope, so protection
refers to security of person and property.
The apparently overly broad language of the equal protection clause invites two possible classes of interpretive restraints. The first is to limit the subjects of equality to the various races and colors of persons in each state. This would be consistent with the evident intent of Congress and the ratifying states to permit legal inequalities with respect to age and sex, as well as occupation and various modes of behavior. Another approach would be to limit the kinds of laws in which equality is expected, namely those related to the protection of persons and property. It would have been considered reasonable, even in the mid-nineteenth century, to extend legal equality to all persons, not just citizens, with respect to those protections.
Although the Fourteenth Amendment enjoins equal protection of state laws no less than federal, this right to equal treatment is enforceable by federal statute because it is a right of national citizens. The Civil Rights Act of 1866 prescribed misdemeanor penalties for anyone who, acting under some state law, should deny someone their rights respecting property or judicial process or administer unequal penalties on account of their race, color, or former state of servitude. Congress prescribed no penalty for denial of equal rights under state law. The enforcement clause was directed against individuals denying anyone their rights as national citizens. It was not directed against state actions, though it applied to individuals, including state officials, acting under color of some state law. Thus the penalty was not injunctive, but a remedy for the denial of individual rights. Congress acted not by suppressing state actions or sitting in judgment of them, but by providing, through the federal or military courts, an alternative recourse for the enforcement of a citizen’s rights, if the state should fail to do so. The penalties were criminal, rather than civil, so a person should not have to take on the expense of a federal civil suit to defend his rights, and so that state officials were not immune. Through this mechanism, nonetheless, Congress effectively compelled the states to perform the federal duty of enforcing federal rights, under pain of criminal penalty.
The Fourteenth Amendment, unlike the Civil Rights Act of 1866, expressly limits state action with its phrase, No State shall…
. Until then, it was commonly accepted legal doctrine that Congress could not directly enforce rights against the states. Congressman John Bingham drafted and proposed what would become the Fourteenth Amendment with the stated purpose of giving Congress the authority to enforce the Bill of Rights. Since all Americans were now guaranteed certain rights as national citizens, Congress could enforce these rights against any state or individual that would deprive them. Nonetheless, the only enforcement legislation remained the Civil Rights Act of 1866, which restrained states only indirectly by threat of criminal prosecution to any state official or judge who violated a person’s rights as a natural citizen to due process and equal protection of the laws. The Supreme Court’s interpretation of Congress’s power to enforce the Fourteenth Amendment, we shall see, evolved over several decades.
The establishment of federal jurisdiction over civil rights reopens fundamental questions about dual sovereignty. Until this time, it was widely accepted that states could not be compelled to perform federal duties, and that state officials had sovereign immunity in their actions. Moreover, the possibility of federal prosecution for civil rights violations can make some persons susceptible to a sort of double prosecution for the same act, as when someone is prosecuted in state court for assaulting a person and in federal court for violating that person’s civil rights by virtue of assaulting him, with both sentences compounded. Prosecution of the same offense by two different laws was historically considered a violation of the rights of the accused, as Justice Washington noted in Houston v. Moore, 18 U.S. 1 (1820):
If in a specified case the people have thought proper to bestow certain powers on Congress as the safest depositary of them, and Congress has legislated within the scope of them, the people have reason to complain that the same powers should be exercised at the same time by the state legislatures. To subject them to the operation of two laws upon the same subject, dictated by distinct wills, particularly in a case inflicting pains and penalties, is, to my apprehension, something very much like oppression, if not worse. In short, I am altogether incapable of comprehending how two distinct wills can at the same time be exercised in relation to the same subject to be effectual and at the same time compatible with each other. If they correspond in every respect, then the latter is idle and inoperative; if they differ, they must, in the nature of things, oppose each other so far as they do differ. If the one imposes a certain punishment for a certain offense, the presumption is that this was deemed sufficient and under all circumstances the only proper one. If the other legislature impose a different punishment in kind or degree, I am at a loss to conceive how they can both consist harmoniously together.
Two pre-Civil War cases thought to contradict this rule actually held that the federal and state governments punished different offenses. In Fox v. State of Ohio, 46 U.S. 410 (1847), the state could protect its citizens by punishing private fraud that resulted from passing false coin, separately from the federal government’s prosecution of counterfeiting. On the hypothetical that the federal government might also punish private fraud related to counterfeit coin, the Court majority opinion held that this still would not prevent the state from prosecuting said fraud, for the Fifth Amendment only restrains the federal government. It is almost certain that, in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essentially the same, unless indeed this might occur in instances of peculiar enormity or where the public safety demanded extraordinary rigor.
The good faith of the governments to abstain from such double prosecution is assumed in this hypothetical.
Moore v. People, 55 U.S. 13, 14 How. 13 (1852) likewise made a distinction between offenses, except here the federal fugitive slave law enforced the private right of the slaveowner to reclaim his property, as distinct from the state law punishing the harboring of fugitive slaves. A single act may consist of two offenses, one against the rights of a private citizen, and the other against the rights of the state, which wishes to discourage the immigration of fugitive slaves. Similarly, someone who assaults a federal marshal might be guilty of two offenses, assaulting a federal officer and simple assault under state law. No actual double prosecution was approved in this case, but the opinion’s reasoning allowed for the possibility of double prosecution of the same act.
Justice McLean dissented in both cases, saying in Fox:
And to punish the same act by the two governments would violate not only the common principles of humanity, but would be repugnant to the nature of both governments. If there were a concurrent power in both governments to punish the same act, a conviction under the laws of either could be pleaded in bar to a prosecution by the other.
…
There is no principle better established by the common law—none more fully recognized in the federal and state constitutions—than that an individual shall not be put in jeopardy twice for the same offense. This, it is true, applies to the respective governments, but its spirit applies with equal force against a double punishment for the same act by a state and the federal government.
Again in Moore he rejects the idea that two different offenses found in the same act can be prosecuted:
It is believed that no government, regulated by laws, punishes twice criminally the same act. And I deeply regret that our government should be an exception to a great principle of action; sanctioned by humanity and justice.
McLean appeals to natural law, which is the basis of the ancient injunction against double jeopardy, found in English common law, Roman and Athenian law. His reading of the common law is supported by the historical analysis found in the dissents of Justices Ginsburg and Gorsuch in Gamble v. United States 587 U.S. __ (2019). Gorsuch in particular notes that a crime prosecuted in Wales would not be tried again in England.
Although one might argue that injustice is avoided because federal prosecution pertains to federal civil rights, which in principle can be different from state rights, in substance these federal rights are often the same as those that are supposed to be guaranteed by state law. Double prosecution is avoided only on the supposition that the state is too corrupt to render justice in its courts. A federal constitution that includes such an assumption is ill-suited to maintain a clear, coherent doctrine of dual sovereignty.
The Fifteenth Amendment, ratified in 1870, constitutionally enshrined the universal male suffrage requirement imposed by the Reconstruction Acts of 1867. Under these acts, the South was under military governors until new state constitutions were drafted by constitutional conventions and approved by Congress. To be readmitted to the Union, each Southern State was required to ratify the Fourteenth Amendment and to provide in its constitution the elective franchise to all persons qualified to participate in the convention, namely: the male citizens of said State, twenty-one years old and upward, of whatever race, color or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law.
[39th Congress, Sess. II, Ch. 153, §5. 1867]
The Fifteenth Amendment codifies this succinctly: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Once more, we have a restriction on state action. Unlike the Fourteenth Amendment, the text of the present amendment explicitly states its intention to abolish distinctions on account of race, color or past servitude, without any implications for other kinds of discrimination. Thus it has much more limited potential legal implications than the Fourteenth Amendment.
The Fourteenth Amendment had only granted equality with respect to civil rights, not political rights. This was made explicit in its second section, which reduced the congressional and electoral college representation of any state that denied suffrage to some of its male citizens aged at least twenty-one years (save those who participated in rebellion or committed crimes). Political rights were understood to include voting, serving on juries, and holding public office. The grant of the franchise was understood to confer all political rights, as it is the foundation of all the others.
Despite the unambiguous requirement of the Fifteenth Amendment, the political rights of blacks were adeptly suppressed throughout much of the South, especially after the end of Reconstruction. The suppression of black votes was achieved, if not always by outright physical intimidation, then by ostensibly race-neutral voting requirements targeted against blacks. The most common such requirements were poll taxes and literacy tests. As the more blatant forms of voter suppression were eventually ruled unconstitutional, ever more subtle means were sought, to the point that it is a matter of genuine controversy as to what should be considered voter suppression. Due to the long-standing legacy of skillful and nefarious means of discouraging blacks from voting, even seemingly innocuous and reasonable requirements, such as voter IDs, uncontroversial in most countries, are viewed with mistrust and become a bone of political contention in the United States. The issue of racism is confounded with partisan politics as blacks have voted monolithically at certain times, first for Republicans (1860s-1920s), then later for Democrats (1960s-present).
The Civil War Amendments ushered in an era of federal civil rights litigation that was unprecedented in scope and volume. The Supreme Court was faced with the challenge of applying traditional principles of jurisprudence to the reformed Constitution, which had dramatically altered the balance of power between the federal government and the states.
Strikingly, the vast majority of new constitutional claims were made by businesses claiming deprivation of their liberty or property without due process under state regulatory action. These claims had nothing to do with the racial discrimination that the Fourteenth Amendment intended to address, though there were also genuine racial discrimination controversies brought about the Jim Crow laws. For the first several decades after the Civil War, the Supreme Court would adopt a fairly restrictive interpretation of the Fourteenth Amendment, limiting its scope so it could not be exploited as a means of rendering states powerless to exercise their police power in economic matters.
When examining this period, it would be perilous to evaluate the relative activism
of the Court in terms of the frequency with which state legislation was judged unconstitutional. After all, the Constitution had been recently amended in a way to restrict state actions, so it would be understandable if there were now many more legitimate findings of unconstitutionality. Judicial self-restraint does not mean ignoring one’s constitutional duty to strike down unconstitutional legislation. Rather it means that the courts must confine their activity to what the Constitution and the laws enjoin. With the new, broadly worded amendments, the Court would have a difficult task in ascertaining what exactly the Constitution demanded.
In short order, a plethora of litigants recognized the potentially far-reaching scope of the Civil War Amendments as a basis for claims against state action toward private enterprise. The Supreme Court attempted to put a halt to such claims by construing the amendments narrowly, especially in the famous Slaughter-House Cases, 84 U.S. 36 (1872, decided 1873). In 1869, the Louisiana legislature passed an act that prohibited the keeping of slaughterhouses in certain parishes and the city of New Orleans, and established a corporation with the exclusive right of maintaining slaughterhouses and yards for cattle intended for sale in that district. The butchers of New Orleans complained that they were being deprived of their livelihood, and that the state was creating an illicit monopoly. They claimed specific constitutional violations, namely: (1) creating involuntary servitude, contrary to the Thirteenth Amendment; (2) abridging the privileges or immunities of citizens of the United States; (3) denying equal protection of the laws; and (4) depriving them of property without due process of law. Thus the scope of all three provisions of the first section of the Fourteenth Amendment limiting state action would be put to a test.
There were actually three cases before the Supreme Court, after others had been dismissed. The first was that of the butchers against the assertion and enforcement of privileges by The Crescent City Live-Stock Landing and Slaughter-House Company. The second was an appeal by the butchers and stock dealers against a complaint by the attorney general of Louisiana protecting the slaughterhouse company and preventing stock dealers from acquiring a tract of land in the same district as that company in order to build new slaughterhouses. The third was an appeal by the butchers against a complaint by the company seeking to restrain them from conducting business in violation of its privileges. All cases dealt with the same legal questions as to whether the granting of such privileges violated the civil rights of the butchers.
Arguably, the case might have been disposed without examination of difficult constitutional questions as to the rights pertaining to national versus state citizenship, and whether only the former or the latter are subject to enforcement by the national government. After all, it had long been established that states could restrict private property rights by exercise of its police power. Indeed, the interdiction of slaughterhouses in densely populated areas is a textbook example of common law police power, mentioned by Chancellor Kent. [2 Commentaries 340] A majority of the Court found that the butchers were not prohibited from exercising their trade, as the same legislation required that they be granted access to the municipal slaughterhouse, and that the fees should be kept moderate by law. No one would dispute the right for the state to own such an enterprise outright, from which it follows that it should also have the right to create a corporation to own and operate that enterprise, in execution of a valid state objective. Even if it were conceded that the right to enter contracts and to have a profession were rights of national citizens and therefore subject to national jurisdiction, these would be among the private rights that a state may abridge through its police power.
The majority allowed that a government could create monopolies under its police power, and did not find that this monopoly deprived butchers of their right to labor or seriously interfere with their business. Not only the inspection and slaughter of animals, but also their storage in large collections could validly fall under the domain of public health. Although there were some English cases against monopolies, all such references are to monopolies established by the monarch in derogation of the rights of his subjects,
but there was no prohibition of Parliament, representing the people granting exclusive privileges to persons and corporations, and the power to do this has never been questioned or denied. Nor can it be truthfully denied that some of the most useful and beneficial enterprises set on foot for the general good have been made successful by means of these exclusive rights, and could only have been conducted to success in that way.
The police power
was a relatively new term for state regulatory power, used by Massachusetts Chief Justice Lemuel Shaw to distinguish regulatory restrictions on property from outright takings under eminent domain, with only the latter requiring just compensation. The right of private property was understood not to be absolute, but to be subject to restriction by state regulations promoting the common good.
The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.
It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise. [Commonwealth v. Alger (1851), 61 Mass. (7 Cushing) 84]
Thus Louisiana likewise would have ample discretion in use of its police power to restrict private property and contracts, unless restrained by its own constitution or that of the United States. The Court majority would find that the Thirteenth and Fourteenth Amendments impose no relevant restraint on the exercise of the police power. After all, if their primary purpose was to guarantee to blacks the same rights as had been enjoyed by whites, they should not be construed as changing the definition of those rights or their limitations. The right of contract could be restricted by the police power no less than before the passage of those amendments. Privileges granted for the sake of the common good did not constitute seizures without due process, nor denial of privileges or immunities, nor unequal protection of the laws. We shall see, however, that the Court constructed the Fourteenth Amendment even more narrowly than was necessary to arrive at this finding, especially when defining the privileges and immunities of national citizenship.
In constructing the true meaning
of the new amendments, a glance at which discloses a unity of purpose,
the Court turns to the history of the times
in which they were drafted. This jurisprudence might today be called originalist,
as it both supposes that there is an objective true meaning to be gleaned, and that this can be discovered by studying the history in which the amendments arose. As the justices had all lived this history themselves, there could be no doubt among them about the historical facts.
All three amendments were designed to ensure the permanent and complete freedom of the African race in the wake of the Civil War. That war had arisen out of contests over African slavery which culminated in rebellion by the slave states against federal authority. In that struggle, slavery, as a legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery, they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel.
By the time of the Emancipation Proclamation, slavery had already been abolished in fact in much of the South. But the war being over, those who had succeeded in reestablishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles.
The Thirteenth Amendment expresses its purpose so briefly and forcefully, it seems hardly to admit of construction.
It is designed to establish the freedom of four million slaves. The injunction against involuntary servitude
in addition to slavery was designed to forbid all shades and conditions of African slavery,
such as serfdom and long-term apprenticeships, as were attempted in territories where slavery was abolished. That a personal servitude was meant is proved by the use of the word
involuntary,
which can only apply to human beings. The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant.
The Fourteenth Amendment, though more difficult to construct, has the same underlying purpose as the Thirteenth. Without adequate legal protections and no longer under the protection of their owners, the liberated slaves might be in a condition almost as bad as it was before.
The Court refers to the Black Codes, which imposed upon the colored race onerous disabilities and burdens and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value….
As examples of such restrictions:
They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. 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.
Whether these perceptions were factually accurate or not, they motivated the Congress to provide further Constitutional protection in the form of the Fourteenth Amendment, which all former rebel States were required to ratify in order to be fully restored to the Union.
The Fifteenth Amendment was motivated by the finding that the last two amendments and acts of Congress passed under them were inadequate for the protection of life, liberty and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone.
The right of suffrage came to be seen as indispensable to fully securing the persons and property of black Americans against domination by another race. Only the Fifteenth Amendment explicitly mentions race and color, but all three amendments shared one pervading purpose,
namely: 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.
The slave race
meant those of African descent, but all slavery and involuntary servitude was to be eradicated.
We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican of Chinese race within our territory, this amendment may safely be trusted to make it void. And so, if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood, is that, in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished as far as constitutional law can accomplish it.
The Court is willing to consider claims affecting any kind of slavery or involuntary servitude, regardless of race. Nonetheless, as the intentions of Congress toward the formerly enslaved African race informed the crafting of these amendments, we must look to those intentions to determine the purpose of the amendments and the types of activities they prohibit.
Before the Fourteenth Amendment was passed, the rights of citizenship were defined primarily by the states. Indeed, it was a common legal opinion (never decided judicially) that one was a citizen of the United States only insofar as he is a citizen of one of the several states, even though this implied that native residents of the District of Columbia or federal territories might not be citizens. The Constitution only requires that each state receive the free inhabitants of other states and grant them the privileges of citizens in that state. In other words, the free inhabitants of other states are not to be treated as aliens, and this is the basis of national union. This dependence of national citizenship on state citizenship was a strong consideration in the Dred Scott ruling, for Dred Scott could not possibly have any national citizenship rights unless he was first granted citizenship by some state. The Dred Scott majority found that no states at the Founding regarded blacks as citizens, so the Slaughter-House majority describes the case as ruling that a man of African descent, whether a slave or not, was not and could not be a citizen of a State [sic] or of the United States.
(In fact, Chief Justice Taney allowed that states might subsequently grant state citizenship to blacks, but this would not thereby confer national citizenship.)
The Fourteenth Amendment reversed this situation, defining national citizenship prior to state citizenship, and basing it on birth or naturalization anywhere within the jurisdiction of the United States. National citizens automatically became citizens of whichever state in which they resided. Thus state citizenship now depended on national citizenship, which made no distinction of race among those born in the United States, and Dred Scott was finally overruled.
None of the Dred Scott justices remained on the Supreme Court, but the current majority strangely chose to restrict the rights pertaining to national citizenship, leaving the bulk of rights, including the right to enter contracts and perform a trade, with state citizenship. When citing Justice Bushrod Washington’s famous litany of rights given in Corfield v. Coryell, the current Court chooses to regard these as applicable only to state citizenship. A problem with this interpretation is that Justice Washington wrote at a time when national citizenship was derived from state citizenship, but now the reverse is the case, so it hardly seems fitting that national citizenship should be inferior in rights to state citizenship. Moreover, it would defeat the primary purpose of the Fourteenth Amendment if the national government could guarantee none but a few rights to national citizens against Southern state oppression, and we would again have those residing in territories or the Federal District lacking most of the rights of citizens. After all, as Justice Washington himself wrote, the rights he partially enumerated were in their nature, fundamental; which belong, of right to the citizens of all free governments.
This natural law concept obligated all free governments to grant these rights to their citizens. By this logic, the national government, no less than the governments of the states, must recognize the full range of rights due to free citizens, unless we should deny that the national government is a free government.
The Court majority avoided this conclusion because it would carry the sweeping implication that all civil rights protections would fall under the domain of the federal government, and neither Congress nor the ratifying state legislatures could have intended this result. Instead, the rights of national citizenship were limited to those things that fell under the particular powers of the federal government. Some of these had been enumerated in Crandall v. Nevada 73 U.S. 35 (1867):
…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, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.
Other privileges a national citizen might hold, the Slaughter-House majority wrote, are 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.
Other rights may be found implied by other constitutional clauses enumerating federal powers.
No state could prevent a national citizen from suing in federal court, so the Fourteenth Amendment’s Privileges or Immunities Clause would not be useless, but it may be questioned whether this captures the intent of Congress. After all, the Civil Rights Act of 1866, re-enacted after the passage of the amendment, enumerated several rights of national citizens, including the rights to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property,
which seem relevant to the current case. Instead, the Court found that states were obligated to recognize these fuller rights only insofar as they were fundamental and common to other states. In other words, the Fourteenth Amendment notwithstanding, the states remained under the same civil rights regime of the original Constitution’s Privileges and Immunities Clause, which was now given a positive law interpretation rather than the natural law basis favored by Justice Washington. This interpretation of Article IV privileges and immunities
had been given by this Court in Ward v. Maryland, 79 U.S. 418 (1870):
Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state; and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens.
These enumerated rights are a paraphrastic rendering of Corfield v. Coryell. As handled by the Slaughter-House majority, they remain applicable only to state citizenship, not national citizenship, the Fourteenth Amendment notwithstanding.
Still, the Court majority did find that the Due Process and Equal Protection clauses apply to state citizenship rights, and thus there is some expansion of federal authority into the domain of civil right claims by citizens against their state. These clauses, nonetheless, were construed narrowly.
The Court found that the plaintiffs had no valid claim under the Due Process Clause, for the definition of due process
remains the same under the Fourteenth Amendment as in the Fifth, the only difference being that the Fifth Amendment applies to the federal government. Some form of due process is found in most state constitutions, and these procedural guarantees are all that are required by the clause. The only novel thing is not the content of due process, but that the federal government may now restrain the states in this matter, i.e., compel them to provide due process to all their citizens, as their own constitutions should guarantee. Due process at the state or national level had never been construed to make regulatory restraints on property into deprivation of property without due process.
The Equal Protection Clause had less legal history, so the Court found it necessary to discern its meaning from the pervading purpose
of the Civil War Amendments to secure the liberty of emancipated black people.
We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands.
Congress had not yet attempted to pass any equal protection legislation besides that related to race. If that time should come, the Court would review such legislation and any state law that it might affect. Until then, the Court would only review claims that equal justice was denied in state courts. The only state legislation it would review was racially discriminatory legislation, as that would fall afoul of the Civil Rights Act of 1866.
Justice Stephen Johnson Field wrote a lengthy dissent, with the concurrence of three other justices (Chief Justice Chase, Justice Swayne, and Justice Bradley). Although Justice Field would later place great emphasis on the Due Process clause as the basis for federal enforcement of civil rights, here he focused on the privileges and immunities
of national citizenship. Justice Field’s arguments were strongest when treating this matter, but somewhat weaker when holding that monopolies are forbidden by common law.
Justice Field agreed with the majority that states enjoy a broad police power. But under the pretence of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.
Only two provisions of the questioned law are properly police power, concerned with public health: landing and slaughtering of animals below city of New Orleans, and inspection of animals before slaughter. In all other particulars, the act is a mere grant to a corporation created by it of special and exclusive privileges by which the health of the city is in no way promoted.
If this corporation can safely carry on the business of landing, keeping, slaughtering cattle, it would not endanger public health to permit others to do some. Sanitary regulations are just a pretence for granting a monopoly of cattle slaughter over multiple parishes summing to 1154 square miles.
Such a privilege is not the same as exclusive grants for ferries, bridges, or turnpikes, for those are public franchises pertaining to government, usually requiring the exercise of eminent domain. It is the public duty of the government to provide roads, bridges, and ferries. Nor is it the same as an exclusive grant to the inventor of a new and useful improvement.
The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions.
If exclusive privileges of this character can be granted to a corporation of seventeen persons, they may, in the discretion of the legislature, be equally granted to single individual.
If this is allowed, any state-established monopoly might be upheld.
Justice Field is hesitant to give a broad interpretation of the Thirteenth Amendment. Nonetheless:
A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another…
The Civil Rights Act, in giving equal rights to blacks with whites, presupposes an equality in these rights already among white citizens:
…shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizen…
The Fourteenth Amendment, which is properly a supplement to the thirteenth,
covers the case. Prior to this amendment, national citizenship was dependent on state citizenship, and Justice Curtis’s dissenting opinion in Dred Scott gave the soundest view, showing that citizenship meant the rights of a free man. Everything changed with the Fourteenth Amendment, as citizenship now depends on place of birth, not the laws of any state, nor one’s descent from the white ratifiers of the Constitution. A state citizen is now just a national citizen combined with residence. Thus the privileges and immunities of a free man now belong to him as a citizen of the United States, and do not depend on state citizenship.
If the Fourteenth Amendment only protected rights that were under federal jurisdiction, this would have been an idle exercise, Justice Field argues, since the states could not interfere in those rights anyway. The Privileges or Immunities Clause is only effective if it pertains to all rights of free men. Indeed, Congress declared some of these rights in the Civil Rights Act: to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold….
It was held in Paul v. Virginia, 75 U.S. 168 (1869) that corporations are not citizens
within the meaning of the Article IV Privileges and Immunities Clause. Thus citizens do not carry corporate privileges from one state to another. Nonetheless, their rights as individual citizens are transferable and must be recognized everywhere on equal terms with other citizens. Thus in Ward v. Maryland, the Court prohibited state discrimination against non-resident traders.
Justice Field proceeds to argue that all state monopolies infringe on the privilege of citizens to participate in a trade. Indeed monopolies are void at English common law, being defined:
to be an institution or allowance from the sovereign power of the State by grant, commission, or otherwise, to any person or corporation, for the sole buying, selling, making, working, or using of anything, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.
Monopolies were also abolished by Louis XVI in 1776, in case one appeals to civil law instead of common law for Louisiana.
The exclusive privilege of supplying yards and buildings for cattle slaughter is as much a monopoly as though the act had granted to the company the exclusive privilege of buying and selling the animals themselves.
The grant of exclusive privileges is opposed to whole theory of free government. It does not specification in the Bill of Rights to make them void. That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.
Here we find a perennial problem in American jurisprudence, namely the confounding of a particular theory of political economy with the basic rights of free men. It is certainly the case that the Framers considered freedom of contract to be foundational to a free, liberal republic. Nonetheless, attitudes toward monopolies and commercial privileges were mixed and inconsistent, both in Britain and America, and changes in common law and statutory law reflected this conflict. A closer study of this history does not support the reading given by Justice Field. [William L. Letwin. The English Common Law Concerning Monopolies.
U. Chicago Law Rev. (1954) 21:355-385.]
Justice Joseph P. Bradley, in his dissent, likewise found that national citizenship, which is now prior to state citizenship, included the full complement of privileges.
It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and enjoying property; the privilege of engaging in any lawful employment for a livelihood; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not.
Justice Bradley considered that keeping a slaughterhouse is part of a butcher’s trade, so compelling the butchers to use someone else’s slaughterhouse and to pay for its use materially interferes with the practice of their trade in a way that is onerous, unreasonable, arbitrary, and unjust.
Restrictions on the practice of a trade are within the state’s police power, and the requirement for all slaughterhouses to be below the city is a valid police regulation. Allowing no one but favored company to do so has not the faintest semblance of one.
Confining the Fourteenth Amendment to a limited set of rights, excluding those that are fundamental, is contrary to the intention of its adopters. In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen.
Moreover,
any law which establishes a sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens.
Here the majority might have agreed in principle that a deprivation of the right to practice one’s trade is a violation of one’s rights, but they considered this to be a right of state citizenship only, and that monopoly per se did not always entail violation of that right, and that the law in question still permitted the butcher’s to practice their trade.
Justice Bradley went further and found that the plaintiffs had a valid claim under the Due Process Clause.
In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property.
Here we have an early precursor of substantive due process,
the idea that a restriction of property or liberty can be considered a denial of due process even if this done by judicially proper means of enforcing legislation. The idea that due process is a restriction on legislative action was novel. It seems unnecessary for Justice Bradley to have resorted to a Due Process argument when the Privileges or Immunities Clause sufficed, but the Due Process Clause was admitted even by the majority to be applicable to the rights of state citizenship, not merely the limited rights of national citizenship. Thus we might say one error was countered with another.
The use of the Due Process Clause as a means of reviewing the reasonableness or justice of all state legislation that limits the liberty or property of citizens would seem to invite a boundless expansion of federal authority into internal state affairs. Justice Bradley did not think this would result in undue federal interference in state affairs. Little if any legislation is needed by Congress. If the issue comes up in federal court, it will only pertain to fundamental rights due to all citizens. Even if this did increase the number of federal cases, Congress could increase the number of federal courts. The argument from inconvenience should not affect the question of what does the amendment mean. Justice Bradley was originalist in his approach, as he sought to discern the meaning of the Fourteenth Amendment from its text and its adopters’ intentions, not from any practical consequences.
Justice Noah H. Swayne, in his dissent, noted that the first eleven amendments were checks on the national government, while the thirteenth to fifteenth are checks on the states. Fairly construed, these amendments may be said to rise to the dignity of a new Magna Charta.
By the unqualified language of the Fourteenth Amendment, citizens of the United States
and any person,
there is no limitation on race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it.
Protection was intended to embrace equally all races, classes, and conditions of men.
The novelty of this power was known to drafters, and deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such as should exist in every well-ordered system of polity.
Justice Swayne exercises judicial self-restraint by not interpolating any limitation not present in the text. The novelty of exercising federal judicial review of state civil rights is justified by the deliberate intentions of the amendment’s adopters to confer such power.
By the Constitution as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the States. That want was intended to be supplied by this amendment.
It should be more liberally construed than the narrow ruling of majority if the Court is to carry out the intentions of its proposers.
The dissenters were not really introducing novel principles of judicial interpretation. They agreed with the majority on the necessity of a broad police power, but disagreed on whether the law in question was wholly an exercise of that power. Their novel notion of national citizenship was based on an actual change in the Constitution, with a deliberate shift toward enforcement of civil rights by the national government. Their favor for a liberal rather than narrow construction of the Fourteenth Amendment was grounded in the breadth of the actual language. Their opposition to monopoly was grounded not in laissez-faire ideology, but in their reading of common law jurisprudence and the rights of citizens in a free state. Grants of property, tax exemptions, or exclusive licenses resembled feudal privileges, the abolition of which was a primary purpose of republican governments based on free and equal citizenship. As Madison said:
That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations… [James Madison,Property, Papers (1792) 14:266-68.]
The narrow construction of the Due Process Clause in the Slaughter-House Cases did not prevent repeated attempts to invoke it against state action. In Davidson v. New Orleans, 96 U.S. 97 (1878), the Court lamented:
But while it has been a part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this Court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this Court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.
Nonetheless, even in Davidson, the Court declined to define precisely what constituted due process, as this varied by circumstance. A state could impose unequal regulatory burdens or taxation on its constituents, but as long as it provided some legal process of notice or hearing, the burden did not violate the Due Process Clause. It was not for the Court to evaluate the propriety or rectitude of every taking, lest it should be forced to review every challenge to state regulation.
The Civil Rights Act of 1875 prohibited racial discrimination in public transportation and places such inns, theaters and parks (education was deliberately omitted), and prescribed penalties for any individual who should deny someone the full enjoyment of such facilities without reason in law. Anyone could sue in federal court for such a violation of their civil rights, but in so doing forfeited their right to proceed in another jurisdiction, and this provision would not apply to criminal proceedings. This was the first attempt to enforce federal civil rights against private individuals not acting under state authority, though it was constructed in a way to avoid double prosecution.
A handful of cases reached the Supreme Court, contesting the constitutionality of the Act, on the grounds that the Fourteenth Amendment’s Equal Protection Clause is prohibitory only on the states, not private persons. These were decided collectively as the Civil Rights Cases, 109 U.S. 3 (1883). The Court ruled 8-1 that the Civil Rights Act of 1875 was unconstitutional. The Thirteenth Amendment did give Congress the power to act against private individuals, but only for incidents of slavery and involuntary servitude. The Fourteenth Amendment, by contrast, applies only to states, by its express language.
Justice John Marshall Harlan, the lone dissenter, argued that the Court was making an overly-literal construction of the amendment that deprived Congress of its implied power under the Thirteenth Amendment to enforce the civil freedom that was granted to all races by abolishing slavery. He notes that the Civil Rights Act of 1866 was enacted under the Thirteenth Amendment alone, which mandated a freedom from bondage on the basis of supposed racial inferiority, with the implication that all racial discrimination in the civil rights due to freemen was likewise prohibited.
Congress, therefore, under its express power to enforce that amendment by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same State, and such legislation may be of a direct and primary character, operating upon States, their officers and agents, and also upon at least such individuals and corporations as exercise public functions and wield power and authority under the State.
Justice Harlan then considers hypothetically if a state, prior to the Fourteenth Amendment, had passed legislation limiting the right of freemen of African descent to acquire property, while exempting white men from such limits. Surely this would have been incompatible with the Thirteenth Amendment, and Congress would need no further constitutional mandate to prohibit such state action. Would any court have hesitated to declare that such legislation imposed badges of servitude in conflict with the civil freedom ordained by that amendment?
Moreover, those who are in charge of public conveyances and accommodations are performing a kind of public work, for public use and benefit. Private owners of such facilities have duties to the public interest, long established in English law, The innkeeper is not to select his guest,
and most recently confirmed by this same Supreme Court in Munn v. Illinois, 94 U.S. 113 (1876). In that case, the Court upheld an Illinois statute regulating the maximum charge of grain storage by private companies.
The Munn case exemplifies that the Court did not follow a laissez-faire ideology, but expressly upheld that public interests could create a right in regulating property. The Court in that case also declared: Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional unless it is clearly so.
After confirming the state’s power to regulate private property with a public interest in a virtual monopoly
no less than that of a ferryman or innkeeper, the Court added: We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by legislatures, the people must resort to the polls, not to the courts.
If the Court majority differed from Justice Harlan in the Civil Rights Cases, it was not due to anti-regulatory bias or to overzealous judicial review. They, like Harlan, believed in judicial restraint, but could disagree in its application. Following the strict letter of the law, the majority was in the right, though it carried the questionable implication that the Civil Rights Act of 1866 was not constitutional until it was re-enacted in 1870, after the passage of the Fourteenth Amendment. This should remind us that judicial philosophy alone does not determine cases, nor is a bad
ruling necessarily the result of activism or faulty methodology.
As the United States entered its Gilded Age, many of the nation’s best lawyers worked for corporations, so it is unsurprising that corporate interests should figure prominently in the jurisprudence of the time. This was also the age of philosophical pragmatism and scientism, so it is unsurprising that some scholars took up the formidable project of systematizing law as a science, as though one could derive doctrines or principles from leading cases. The most prominent exponent of this endeavor was Christopher Columbus Langdell, whose reform of Harvard Law School had a lasting influence on the study of law throughout the country. This more systematic, rigorous approach to law, which a later generation would deride as formalism,
was in some ways a divergence from the humbler common law tradition, which as Oliver Wendell Holmes put it, decides the case first and determines the principle afterward,
i.e., the principle that harmonizes cases can be ascertained only after the fact. In this milieu, legal analysis was akin to implementing a logical program, and the law had a reason of its own, with its own core concepts and principles prior to any statute. Taken too far, this endeavor would divorce law from its concrete foundations in the histories and ethics of actual communities.
Formalism and its critics are of special interest to us because they address the central question of whether it is possible to have an objective methodology of legal analysis. If this is not possible, it would seem that the unabashed judicial activists are correct in making everything a matter of subjective personal judgment. The reality may lie somewhere in between, with some unequivocal principles making it possible to clearly decide some cases, but other cases requiring some judgment of weighing and prioritizing principles. The recognition of the impossibility or non-existence of perfectly correct judgment is what informs the practice of a rule of precedent. If it is not possible to have an ideally correct
jurisprudence, let us at least make it as clear and consistent as possible, so that the law is predictable, and if correction is necessary, this can be made legislatively.
We have seen that the post-Civil War Court, like the earlier Court, favored judicial self-restraint, being reluctant to overturn legislation unless it was clearly unconstitutional, and declining to second-guess the propriety or wisdom of legislation. In judicial review, the Court only had to decide whether a legislature had the constitutional power to pass a certain law, not whether it ought to have passed that law. Construing the Constitution, however, was not a cut-and-dried matter, and the question of when to construct the text literally or according to probable intent was not easy to resolve. If the Court got the Constitution wrong, that would not be easy to correct, as the amendment process was arduous. The stakes were even higher when the Court tried to define or apply basic concepts of law, such as persons and corporations, to constitutional principles, as it was the established province of courts to define legal concepts.
It is all the more striking, then, that the following dictum by Chief Justice Waite should be inserted as a headnote preceding the decision in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886):
The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.
Though merely a dictum, the expressed unanimous opinion of the justices had lasting influence in future jurisprudence, establishing that corporations are persons within the meaning of the Equal Protection Clause. While this has been misrepresented as espousing a blanket proposition that corporations are persons,
the actual statement has genuinely sweeping implications. The impropriety of inserting this statement is magnified by the fact that the case was disposed of on much narrower grounds, i.e., that tax was assessed on the fences surrounding the railways, contrary to California law. The railroad’s equal protection plea, even if valid, is unlikely to have succeeded in this case, as it was based on the unequal treatment of railroads in a single county compared to those in multiple counties, as only the former had property value assessed at actual rather than estimated rates. Yet it was already acknowledged by the Court that a state could tax different classes of business unequally under its police power, without violating the Fourteenth Amendment. This regulatory power was especially justified when a clear public interest was involved, as in railway corporations, which were established by acts of Congress and state legislatures.
Setting aside the impropriety of inserting an opinion not required to dispose of the case, we may ask why the Court considered this a question too obvious to merit argument. First, we should briefly review what was understood by a corporation. Blackstone’s definition of a corporation is:
a franchise for a number of persons to be incorporated and exist as a body politic, with a power to maintain perpetual succession, and to do corporate acts, and each individual of such corporation is also said to have a franchise, or freedom. [2 Bl. Com. 37]
In England all corporations were established by royal charter, so ultimately the king was the founder of all corporations. The charter or grant is a kind of contract, as the Marshall Court confirmed in Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), upholding the inviolability of contracts under the Contracts Clause. In this decision, three eminent justices gave their Blackstone-influenced definitions of corporations. First, Justice Marshall, in the ruling opinion:
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality—properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being. But this being does not share in the civil government of the country, unless that be the purpose for which it was created.
Next, Justice Washington, concurring, describes the rights gained by corporate charter or grant:
The rights acquired by the other contracting party are those of having perpetual succession, of suing and being sued, of purchasing lands for the benefit of themselves and their successors, and of having a common seal and of making by-laws.
Lastly, Justice Joseph Story:
An aggregate corporation, at common law, is a collection of individuals, united into one collective body under a special name and possessing certain immunities, privileges and capacities in its collective character which do not belong to the natural persons composing it. Among other things, it possesses the capacity of perpetual succession, and of acting by the collected vote or will of its component members, and of suing and being sued in all things touching its corporate rights and duties. It is, in short, an artificial person, existing in contemplation of law and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the corporation itself as distinctly as if it were a real personage. Hence, such a corporation may sue and be sued by its own members, and may contract with them in the same manner as with any strangers.
Corporate personhood was no recent invention, though it had long been understood to be an artifice of law. Nonetheless, it was a real rights-bearing entity, with at least the rights defined by its charter and those rights intrinsic in the nature of a contract, as guaranteed against legislative nullification by the Contracts Clause.
A corporation is essentially a legal mechanism whereby a group of individuals can act as a single entity. By its nature, its rights would be limited to those that might apply to people acting as a group. Does the Equal Protection Clause apply to groups of persons no less than individuals? Certainly, its original intention was for the protection of a group, namely black Americans, to ensure that they were treated equally with white Americans. If a state discriminated against blacks as a collective group, but not as individuals, it would be no less a violation of the Equal Protection Clause. More generally, it would be contrary to fundamental principles of republican government to give protection of the laws only to favored companies. Indeed, much of the Founders’ hostility toward English corporations was not toward incorporation as such, but toward the privileges and legal exemptions they received from the Crown.
Nonetheless, we have seen that the Court had little patience with specious arguments that Equal Protection or Due Process was a basis for second-guessing state regulations in the public interest. Equality under the law did not mean that all types of companies must be taxed equally or given the same degree of regulatory burden. It was possible to uphold the sanctity of contracts, including the rights of corporations, without thereby denying the broad police power of the state to regulate private enterprise with a view to public interest.
Still, the opinion in the Santa Clara headnote envisioned a significant expansion in the applicability of the Equal Protection Clause, beyond the narrow construction in the Slaughter-House Cases, which confined it to racial discrimination against blacks. Only Justice Miller remained from the Slaughter-House majority. Justice Woods had actually found the slaughterhouse act unconstitutional in a Circuit Court ruling overturned by the Supreme Court. Justice Matthews had represented railroad companies in private practice. Though the composition of the Court had changed, its exercise of judicial review remained restrained. Nonetheless, the door had been opened for a more overtly pro-business Court to introduce a novel mode of jurisprudence in the decade to come.
Part IV Coming Soon
© 2023 Daniel J. Castellano. All rights reserved. http://www.arcaneknowledge.org
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