Brandeis University
Politics 14b
Lectures Professor Peter Woll
Politics 14b
Lectures Professor Peter Woll
Constitutional Background of the Bill of Rights
The Constitutional Background of the The Bill of Rights Today we begin our discussion of the Bill of Rights. You must read carefully and familiarize yourselves with each and every amendment of the Bill of Rights and the subsections of each amendment. Then read the 14th Amendment ratified in 1868 through which most of the Bill of Rights was nationalized by 1968 but not until then!
The substantive parts of the Bill of Rights are the first eight amendments. The ninth amendment is there to answer the criticisms and concerns of Hamilton and others that the enumeration of certain rights and liberties in a Bill of Rights would imply the government's power to suppress other rights and liberties not listed.
Another Hamiltonian criticism in Federalist 84 was that enumerating rights and liberties would in many cases lead to the false assumption that their definitions were clear. What does "liberty" of the press mean? No one really knew, and certainly in the 18th century common law jurisprudence was more a legacy of suppression of the press than a liberating force. Common law defined libel and seditious libel very broadly to cast a chilling effect on even relatively innocuous criticism of government and public officials. In the private sphere libel was easily proven against anyone who made virtually any statement that could damage the reputation of another.
So once again in the Bill of Rights the Constitution is one of enumeration and not definition. But, unlike Article I enumerated powers common law jurisprudence and the common law itself addressed and contained precedents that at least could provide the courts with a basis for defining parts of the Bill of Rights. To refine Marshall's Marbury v. Madison 's obiter dictum on the appropriate role of the courts one might say it is particularly the province and duty of the courts to say what the law is in the area of civil liberties and even more appropriately civil rights.
Nevertheless Jefferson spoke for many outside of Independence Hall when he said said that the absence of a Bill of Rights was one of two great constitutional defects, the other being interestingly the lack of a limit on the number of terms a president could serve.
Madison and other delegates promised the addition of a Bill of Rights which some states' rights advocates made a condition of ratification.
The sources for the provisions were common law rights, colonial and English experience, and the Bills of Rights in the states which had constitutions that either separately or in their main bodies listed all sorts of rights and liberties including in at least one constitution the right of revolution. Liberty of the press was a common state constitutional provision.
Chief Justice John Marshall settled the question that was really speciously raised of the application of the Bill of Rights only to the national government in Barron v. Baltimore (1833).
There was absolutely no debate before or after ratification of the Bill of Rights over whether or not it could be applied in state jurisdictions. The text was clear, as the first amendment states, that only Congress shall make no law abridging freedoms of speech and press and by inference only Congress shall make no law abridging the other liberties and rights listed in the Bill of Rights. Moreover, the clear intent of the congressional drafters of the Bill of Rights and of those who ratified it was that it would only apply to the national government. It would have been unthinkable and it makes no sense whatsoever that the states would ratify a new national Bill of Rights that would limit their sovereignty in an area where their constitutions already had spoken, often granting state citizens more liberties and rights than the Bill of Rights enumerated.
Freedom of religion consists of two parts: the Establishment Clause and the Free Exercise Clause. The former requires separation of church and state and the latter guarantees freedom of religious expression. Note that these clauses were originally put into the Bill of Rights to prevent the national government from establishing a national religion as had been done in England. States were free to establish religions and several states had established state religions. Ironically in light of Supreme Court decisions in 1941, Cantwell v. Connecticut, and 1947, Everson v. Board of Education, which nationalized the free exercise and establishment clauses respectively, First Amendment religious clauses were designed to prevent Congress from disestablishing state religions and interfering with religious practices in the states.
Note that the 2nd Amendment guaranteeing the right to bear arms was to prevent Congress from disbanding state militias, and in no way supports any right of individuals in an urban setting to carry any kind of arms.
The 3rd Amendment was the direct result of British quartering of soldiers during the revolutionary war.
The 4th Amendment that bans unreasonable searches and seizures also derived from the British use of writs of assistance to search for contraband.
The remainder of the Bill of Rights mostly incorporates common law due process but also goes beyond the strict requirements of the common law in the 18th century. Highlights include the 5th Amendment's protection in criminal cases against self- incrimination, the 6th Amendment's guarantees in criminal cases of a speedy and public trial, trial by jury , and the 8th Amendment's protection against cruel and unusual punishments.
The Supreme Court interpreted the 14th Amendment for the first time in the Slaughterhouse Cases (1873). Justice Miller used textual and original intent analysis as his method of judicial review. He concluded that the privileges and immunities clause, at least as intended by those who ratified it if not by the congressional sponsors themselves, should not be interpreted to incorporate the Bill of Rights. Moreover, he concluded that the clause did nothing to change the balance of national and state authority that Barron v. Baltimore (1833) supported. In effect he nullified any substance the clause was intended to have.
This left the 14th Amendment's due process clause and equal protection clause intact but as yet without interpretation.
Miller held that courts interpret due process and that the butchers due process rights had not been denied by the slaughterhouse monopoly they had challenged. This is a very important point to remember especially in light of the Court's virtual deletion of the privileges and immunities clause from the Amendment by draining it of substance. The due process clause remained as a vehicle to challenge state action that violated civil liberties and civil rights.
The due process clause contains two parts. First, life, liberty, or property must be involved to challenge state action denying it. Once the Court makes a determination that a person's life or liberty, for example, is at stake it must then decide if the state has denied it without due process of law.
Two "substantive" determinations then must be made as the court must define whether or not state action affects life, liberty, or property; second the court has to define whether or not the state action has denied due process. The initial substantive determination is clear of course in criminal cases where life or liberty is always involved. That is states must follow due process in criminal cases and the only question that remains for the court is what constitutes due process?
But where for example a state such as Texas in Roe v. Wade (1973) has criminalized abortion the court must determine at the theshold not whether Texas trial procedures follow due process but whether the Texas legislature's criminalization of abortion impacts individual liberty and if so whether that statute does so in violation of due process procedural requirements. By defining the "liberty" of the 14th Amendment's due process clause to include a right to privacy, Griswold v. Connecticut (1965), state action cannot invade that right without "due process."
The history of Supreme Court interpretation of the due process clause of the 14th Amendment is one of substantive definition, both with regard to what is liberty and what is due process. The final nationalization of most of the Bill of Rights that the Court completed by 1968 in a series of cases that began with Gitlow v. New York in 1925 is a perfect example of the use of substantive due process interpretation. Once the Court began redefine what fundamental and historical rights were it had embarked on a new journey of substantive definition of due process.
Why so much emphasis on substantive due process? Because this is a term students should have in their vocabulary and understand. The bottom line is that courts have always substantively defined due process as they build upon precedents to expand its meaning. The law is not rigid and static. Judges make law and properly so in the area of due process for their unique job is to define and protect individual rights and liberties against the intrusion of political majorities.
Substantive due process is inevitable and appropriate, but substantive commerce clause interpretation to prevent Congress from, for example, regulating guns in school zones, is not the role courts should perform. Defining the enumerated powers of Congess is determining public policy. Defining the Bill of Rights and due process is applying the Higher Law, the law that gives us our natural rights and liberties that no legislature can or should invade.
Justice Miller held in the Slaughterhouse Cases (1873) that the equal protection clause did not apply to economic groups such as the independent butchers in New Orleans. Neither the framers nor ratifiers of the 14th Amendment intended for the clause to protect any group outside of the former "slave class."
Justice Miller wrote in Slaughterhouse that, taking the Civil War Amendments together, that is the 13th, 14th, and 15th Amendments, "no one can fail to be impressed with the one pervading purpose found in them all [which is] the freedom of the slave race."
Then Miller said something remarkable: "We do not say that no one else but the Negro can share in this protection. Both the language and spirit of these [amendments] are to have their fair and just weight in any question of construction [of the meaning of the Amendments]. Undoubtedly, while Negro slavery alone was in the mind of the Congress which proposed the 13th [Amendment], 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 or 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 [amendments], that protection will apply though the party interested may not be of African descent."
The Court, stated Miller in Slaughterhouse, should not narrowly construe the meaning of the Civil War Amendments. In the future it must look to their purpose, their "pervading spirit," 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."
Does this mean that Justice Miller more flexibly interpreted the equal protection clause than the privileges and immunities and due process clauses of the 14th Amendment? Would he have supported Brown v. Board of Education (1954)? Would he have advocated expanding equal protection to classifications based upon gender, Alienage, and "illegitimate" children as the Supreme Court eventually did?
Read Robert Bork's analysis of the Slaughterhouse Cases. What points does he make? Where does he fit the case into the broader constitutional law picture?
Judicial Activism in the Service of Property and Free Enterprise
After the Civil War the nation entered upon a long period of growth and industrialization. The judicial devotion to private property and limited government, which had been evident from the beginning of the Republic, now began to face the challenge of new kinds of legislation, some of it designed to further economic development through public expenditures, some of it designed to curb what were thought to be the abuses of a free enterprise system. The Constitution did not easily lend itself to all that the judges' philosophy of the proper role of government and the limits of democratic choice might suggest.
In a great burst of constitution making prompted by the Civil War, the nation from 1865 to 1870 adopted three major constitutional amendments designed, primarily, to provide the recently freed slaves with the same civil and political rights as all free citizens. The thirteenth amendment prohibited slavery and "involuntary servitude"; the fifteenth guaranteed the right to vote regardless of "race, color, or previous condition of servitude." But the fourteenth amendment, adopted in 1868, became and has remained the great engine of judicial power. The critical language of that amendment, for our purposes, is contained in three clauses: "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."
The privileges and immunities clause, whose intended meaning remains largely unknown, was given a limited construction by the Supreme Court and has since remained dormant. The due process clause, now made applicable to the states, was, of course, copied from the fifth amendment, which applied only against the federal government. Unlike the other two clauses, it quickly displayed the same capacity to accommodate judicial constitution making which Taney had found in the fifth amendment's version. The creative use of the equal protection clause for the same purpose had to await the Warren Court of the mid twentieth century.
In 1869, Louisiana chartered a corporation and gave it a monopoly of slaughterhouses, landings for cattle, and stockyards in a large area that included New Orleans. Butchers precluded from practicing their trade, except on the corporation's land and terms, challenged the law under the thirteenth and fourteenth amendments.
The Supreme Court, splitting five to four, sustained the law in the SlaughterHouse Cases . Justice Samuel Miller's opinion for the Court said that the text and history of the three post Civil War amendments disclosed a unity of purpose, "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." He interpreted privileges and immunities as referring to rights already protected elsewhere in the Constitution and thus, in effect, adding nothing.
Of the due process clause, according to Miller, "it is sufficient to say that under no construction of that provision [as already contained in the fifth amendment] that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."
Moreover, "[w]e 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 the equal protection clause.
The fourteenth amendment thus had little reach beyond the protection of those who had been slaves. Though some have complained bitterly about this, Miller was following a sound judicial instinct: to reject a construction of the new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members.
He said of the argument by the complaining butchers, "[S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights. . . ." In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race.
What is striking about the Slaughter House Cases is not the caution displayed by the majority but rather the radical position of the four dissenters. Justice Stephen Field wrote for them all , stating that the first clause designated "those [privileges and immunities] which of right belong to the citizens of all free governments. These were "natural and inalienable rights" and included "the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons."
Field actually supported his constitutional position with a quotation from Adam Smith to the effect that hindering a working man from employing his skills as he thinks proper is "a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him." One may be an unyielding admirer of Adam Smith, and of that moral principle in particular, without supposing that Smith wrote the fourteenth amendment or that judges are entitled to enforce The Wealth of Nations because its principles should have been in the Constitution.
Justice Joseph Bradley, in an additional dissent, agreed that the Louisiana law abridged the privileges of citizens and also deprived the butchers of liberty and property without due process of law. "Their right of choice is a portion of their liberty; their occupation is their property.
Bradley, like the Taney of Dred Scott, thus converted a constitutional requirement of just procedures into a prohibition of legislation whose substance he disliked. The difference is that Bradley's principles are admirable and Taney's despicable, but that is not a constitutional difference where nothing in the document authorizes judges to apply either principle.
Bradley also found the statute in violation of the guarantee of the equal protection of the laws. The presence of three distinct clauses was apparently, in Bradley's view, an embarrassment of riches; any one of them was adequate as a vehicle for his political views. Indeed, he apparently did not even need the fourteenth amendment, for, in a passage reminiscent of Chase in Calder v. Bull, Bradley said, "even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words. . Speaking of the dissents in the Slaughter House Cases, David Currie said, "The fundamental rights notion reflects once again the incessant quest for the judicial holy grail; perhaps at long last we have discovered a clause that lets us strike down any law we do not like."
Bradley also protested the limitation of the amendment almost entirely to blacks. "They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed."" This, too, as we shall see, can be read as an almost illimitable discretionary power in the courts.
The Slaughter House Cases pose the interesting question of the appropriate judicial response to a constitutional provision whose meaning is largely unknown, as was, and is, the meaning of the privileges and immunities clause. It is quite possible that the words meant very little to those who adopted them and that, as Charles Fairman said, the clause came from Representative Bingham of Ohio. "Its euphony and indefiniteness of meaning were a charm to him."'O Whether that is the case or not, that the ratifiers of the amendment presumably meant something is no reason for a judge, who does not have any idea what that something is, to make up and enforce a meaning that is something else.
The Slaughter House Cases were a narrow victory for judicial moderation and, in the event, proved only a temporary one. The idea that there are rights that are not in the Constitution and yet are enforceable by courts had been gaining ground in some state courts.