Revolutions are never easy. The people who inhabit the new regime are the same as those who dominated the old detested order. They cannot be expected to change quickly. The judges who interpret the new law are basically the same as those who interpreted the old law. Even if the law changes, even if there is a nominally new constitution, the process of reading the new document will gravitate toward the old. The regime changes, but the people are, after all, the same.
The ancient Israelites would spend forty years wandering in the desert before the passing of time would generate a new people, unaffected by the mentality of the “fleshpots of Egypt.” Modern political conditions rarely offer this luxury. The Soviets dreamed of creating a “new man” who would regard the communist system as the natural backdrop for cooperation. History never gave them the chance. But Germans could engineer a radical transformation after the fall of the Berlin Wall and the unification of the country. The West Germans absorbed the former German Democratic Republic and then restaffed the courts and the law faculties with new personnel, drawn overwhelmingly from Western ranks.
For Americans in the postbellum period, the obstacles to revolutionary change were daunting. Emancipating the slaves was one thing, changing attitudes toward blacks was quite another. Americans of the 1860s were essentially the same people who had tolerated the institution of slavery; their judges were of the same background and schooling as those who had declared in the Dred Scott decision that persons of African descent, whether born free or born in bondage, could never become citizens of the United States.
As part of its reconstructing the former Confederacy, the victorious North tried to cleanse the formerly rebellious governments of their “treasonous” followers. The Fourteenth Amendment, which the rebellious states were expected to ratify as the price for reinstating their right to representation in Congress, included a clause disqualifying from public office, in either the states or the federal government, anyone who had taken an oath to uphold the Constitution and thereafter “engaged in insurrection or rebellion against the same.”2 This provision could conceivably have rid the South of those who supported the war for Southern independence, but it could not liberate the North from its judges and politicians who were ambivalent about the equality of all citizens. The membership of the Supreme Court changed entirely between the time of the Dred Scott decision in 1857 and the first major constitutional decision of the postbellum period in 1872. Yet, the judges who came onto the court still carried with them the values and confusions of their antebellum youth. They could not easily imbibe an entirely new spirit of nationhood and a strong commitment to equality. Their justice did not express the vision of the victor but rather the reluctant judgment from within that the vanquished, too, had arguments on their side.
Securing a nominal legal change in the form of the black-letter rules of constitutional revisions was not so difficult. The Thirteenth Amendment was ratified as soon as the war was over, and the Fourteenth and Fifteenth followed within five years. By 1870, the language of revolutionary change was in place. The only question was whether the words on paper would bring about a fundamental change in American self-government.
The three promises of Gettysburg—nationhood, equality, and democracy—should have become the guiding values for interpreting the amendments that would govern postbellum America. These amendments had the form of a new constitution. They set forth the basic principles of government and each of them granted authority to Congress to realize the amendment with appropriate legislation. The amendments needed only the backdrop of the three branches of government then in operation. It would not have overtaxed the legal imagination simply to incorporate the existing structure of the federal government into the new constitutional order.
Had the United States been able to begin anew, with judges educated in the values and vision of Gettysburg, with a new generation unaffected by old habits of thought, Lincoln’s prophecy at Gettysburg might have prevailed. The commitment to “a single nation” of black and white would have provided the foundation for a jurisprudence of equality in the courts. The federal government would have become the watchdog of private relationships that approached too close to the forbidden line, defined in the Thirteenth Amendment as “slavery” or “previous condition of servitude.” The “self-evident truths” of the Declaration of Independence—the inalienable rights to life, liberty, and the pursuit of happiness—could have generated the foundation of a new constitutional order. Yet, this was not to be the fate of postbellum America.
Part of the problem is the way we came to think of the great sacrifice that occurred on the battlefields of Gettysburg, Antietam, Vicksburg—all the places where Americans rushed to give their lives for the sake of vague principles. If we did not have the great articulation of the war’s aim that Lincoln gave us at Gettysburg, the entire enterprise would have reeked of the absurd. “I am fighting for my rights,” a Confederate soldier might have said—not too sure what those “rights” were. On the other side, in blue rather than gray, he might have said, “I am fighting for the Union” with the nagging sense that dying for a governmental structure was slightly ridiculous.
The Gettysburg Address was pregnant with the sentiment that the war expressed the fraternity of Americans. The bond was expressed not only toward the slaves who were liberated but also toward the two hundred thousand black men who fought side by side, though in separate battalions, with white men to liberate those still under domination.3 The national tie—the “bonds of affection”4 —is expressed as well toward the Confederate men in arms who, in Lincoln’s view, never ceased to be part of the American nation. This was a war between brothers. It was necessary to settle the inevitable family quarrel about the kind of nation the United States would become.
As American history took its course in the decades that followed the “war for the nation,” we managed to betray the inner meaning of the great sacrifice that Lincoln sought to consecrate at Gettysburg. We absorbed the war into the preexisting political and legal vocabulary. We could have celebrated a new vocabulary of politics—a vocabulary we shared with Europeans who were then moving toward nation-states of internal solidarity. And, yet, we ignored the appeal of the new for the sake of the old. We drove the solidarity of Gettysburg underground. We converted the ideas that should have become our new activist national charter into our passive Secret Constitution.
The issues that concerned postbellum America were not the ideas of solidarity and reconciliation that Lincoln managed to articulate both at Gettysburg and in his second inaugural address. With the assassination in April 1865 of the man who had preached a new order of ideas, the United States became a country obsessed with power. The great issues of the postbellum period breathed the tensions of institutional conflict.
The party of Lincoln became the radicals in Congress, and Lincoln’s successor, Andrew Johnson, himself from Tennessee with roots in the yeomanry of the former Confederacy, was less eager than Congress to effectuate a cleansing of the governments that had supported the rebellion. He was opposed to the Fourteenth Amendment, which would have subjected the states to continuing federal scrutiny, and he was at odds with Lincoln’s secretary of war, Edwin Stanton, who concurred in the effort to seek radical reconstruction of the South. Fearing that Johnson would fire Stanton, Congress passed a statute requiring congressional approval to remove a member of the presidential cabinet. Johnson resisted; he fired his secretary of war. In retaliation, the House began impeachment proceedings. After a fierce trial that Johnson himself did not attend, the president survived, by one senatorial vote short of the required two-thirds majority. Johnson was humbled and offered less resistance thereafter to congressional policies, including the enactment of the Fourteenth Amendment.
Behind the Sturm und Drang of the nation’s first impeachment trial was a struggle for power between the Congress and the presidency. Would the constitutional structure that emerged from the war more closely resemble the European style of parliamentary democracy, with the executive cabined by congressional directives? Or would the presidency remain an independent third force of government? Wars have a way of throwing open basic questions of this sort, and by unleashing aggression within a society, a Civil War inevitably invites a redefinition of governmental power. Thus, a whole new set of issues came onto the agenda of constitutional discussion.
Among the most important of these was the proper relationship between the federal government and the states. This is the question of “federalism” that still preoccupies American constitutional lawyers. There is no doubt that the federal government came out of the war more powerful than ever. It had experimented with an income tax and, therefore, could look forward to more effective funding. It had coordinated the armies of the states and now it would undertake to guide the redevelopment and integration of the South in a society governed by a new set of values. The question now was whether under a new governmental structure with Washington at its head, the individual states could nourish the principle that they were the residual source of governmental power as set forth in the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In 1791, when the Bill of Rights was ratified, it made sense for the Tenth Amendment to affirm that all federal power derived from the states and from the people. The Constitution represented a pact among preexisting states. But the states that entered the Union between the founding of the nation and the end of the Civil War, all twenty-three of them, could hardly be thought of as enjoying the same history of a prior state of independence as the original thirteen.5 The new states, with the exception perhaps of Texas, came into being by federal fiat. They were born, in almost all cases, of territories already possessed by the United States. They were created as administrative units and then recognized as states. To think of them as being the residual source of powers delegated to the governments that created them is the kind of self-deception that only lawyers can devise.
The new states admitted by 1865 should have enjoyed only the autonomy that the federal government allowed them to have. Yet, the great myth of American constitutional theory—that the new states were just like the original thirteen—prevailed. Perhaps this sleight-of-hand was necessary to maintain equality among the states. It would not do to regard the original thirteen as constituting one country superior to a second country constituted by states thereafter recognized. Yet, it would have made sense, after the Civil War, to recognize that the Tenth Amendment had lost its relevance to a United States that embodied a nation of equal Americans.
This is not to say that for the purpose of administrative efficiency, it would not make sense to divide functions between the federal and state governments. This kind of efficient allocation of functions would make sense against a conception of the nation as the foundation of governmental power. Perhaps this concern for efficiency is all that lawyers mean when they talk about the problems of states’ rights and a limited federal government. Yet, the discussion remains haunted by the myth that the states admitted after the founding retroactively granted authority to the federal government that created them.
An institution emerged to articulate and preserve this myth of autonomous states enjoying residual powers under the Tenth Amendment, and that institution was the Supreme Court. The Court had assumed the power to declare federal and state laws unconstitutional ever since Chief Justice John Marshall so interpreted our basic charter in 1803.6 In the fifty-five years leading up to the Civil War, the Court used this power sparingly.7 In the postbellum institutional shakeup, however, the Court would become more aggressive in exercising its power to overrule decisions by other agencies of government. It would articulate the ideas—it would, as we now say, give the “spin” to our basic concepts—that would define the fate of nationhood, equality, and democracy in postslavery America.
How the Court accomplished these acts of reinterpretation constitutes a major chapter in the intellectual history of the United States. It is the history of the way in which we took the words of the postbellum legal order, betrayed their inner sense, and assimilated the new legal order into the original Constitution of 1787. Blending the new language into our old habits nullified the vision of a new legal order. The principles that should have inspired postbellum America became our Secret Constitution, remaining latent for decades before they would reappear to shape the contours of American law. The story may be disheartening but it must be told. To explore the process of reinterpretation, I will focus on two leading Supreme Court decisions of the time, the first Slaughterhouse decision, and the Civil Rights Cases.
The Plight of the
New Orleans Butchers
In 1869, four years after the war was over, the Louisiana legislature passed a statute that brought home the persistence of a dispute about economic freedom that reached back to the earliest stages of modern European and English legal history. The great virtue of the case was to remind the legal community that many issues of freedom had nothing at all to do with the war of solidarity to preserve the nation and emancipate the slaves.
At the time, about one thousand people in New Orleans were engaged in the business of receiving shipments of livestock from boats coming down the Mississippi, slaughtering the animals and packing the meat for distribution. The 1869 Act claimed to concentrate the management of the livestock and meat packing trade into selected areas. It provided that animals could be unloaded and slaughtered exclusively on the properties owned by two of the many enterprises engaged in the trade. All the butchers in the area had the right to use these facilities, but they had to pay a prescribed fee to the patented monopoly. The ostensible reason for consolidating these activities was “to protect the health of the city of New Orleans.”8 The Act was entitled: “An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the Crescent City Live-Stock Landing and Slaughter-House Company.” The Act named seventeen people who were entitled to exercise the privileges of the incorporated company, and, further, it imposed fines for every violation of the patent. The excluded local butchers were enraged. They thought as landowners they were entitled to use their land to house and slaughter animals as the market required. They wanted nothing more complicated than to pursue their trade as they saw fit on their own land.
On the assumption that the legislature had acted in good faith, that there was no graft involved in vesting this authority in the Crescent City Slaughter-House Company, the controversy seemed to be an easy one—at least by contemporary standards of public regulation. This was a reasonable exercise of the state’s “police power,” its general authority to promote the common good. The single slaughterhouse was in the nature of a public utility—much like a telephone or electric company that has received a franchise from the government to provide service to a particular area. In describing the case, Charles Black dismissed the controversy as trivial.9 The complaint by the butchers should not even have generated a serious constitutional question.
At the time, however, the dispute claimed attention as posing fundamental issues. The dispute reached the Supreme Court within seven years of Appomattox. The passage of the Reconstruction Amendments was still fresh in the minds of everyone. The age overflowed with vision—but not in the Supreme Court.
The argument was close, but in the end the advocates of state power won in the Supreme Court the battle they could not win on the killing fields. Five justices voted to uphold the 1869 Act granting a monopoly to the Crescent City Company. All three of the articulated dissents empathized with the independent butchers’ economic freedom to carry on their trade without paying tolls to those favored by the Louisiana legislature. Justice Stephen Field honestly expressed the intuition that motivated the search for legal arguments for the dissent: “No one will deny the abstract justice which lies in the position of the [independent butchers].”
The reader will forgive me, I hope, for dwelling on these 1872 opinions of justices whose names we barely remember. The confrontation was so deep and so wrenching for the history of the Constitution that these conflicts have taken on epic proportions. Speaking for the majority favoring the autonomy of state power there was Justice Samuel Miller, appointed to the Court by Lincoln in 1862, and on the other side, we encounter three passionate opinions expressing sympathy for the plight of the independent butchers. I shall focus here on the conflict between Justices Miller and Field.
The “abstract justice” mentioned by the dissenting Justice Field derives from the weight of history. In the early stages of capitalism, independent entrepreneurs found themselves embedded in a feudal system of overlords and toll collectors. The lawyers for the butchers eloquently expressed the historical associations in prerevolutionary France:
The peasant could not cross a river without paying to some nobleman a toll, nor take the produce which he raised to market until he had bought leave to do so; nor consume what remained of his grain till he had sent it to the lord’s mill to be ground, nor full his cloths on his own works, nor sharpen his tools at his own grindstone, nor make wine, oil, or cider at his own press.10
The plight of the craftsman is expressed equally poignantly: “the prying eye of the government followed the butcher to the shambles and the baker to the oven.”11
Reading this passionate language today, we can grasp the way so many people felt about the principles of “abstract justice” favoring the butchers. The struggle for the right to work and to retain the fruits of one’s labor was one of the passions of the nineteenth century. The same sense of justice that inspired Marx worked its way, in the same middle decades of the century, into the disputes of the butchers against the City of New Orleans.
The problem was to capture in concrete legal terms the abstract wrong committed against the butchers. The lexicon of American jurisprudence was freshly stocked with high-sounding language in the Thirteenth and Fourteenth Amendments. Were these restrictions on the butchering trade an “involuntary servitude” as prohibited by the Thirteenth Amendment, or were they a violation of the “privileges and immunities” of citizenship, either state or federal, or an infringement against the state’s duty to accord all persons subject to its power both due process of law and the equal protection of the laws?
Before they reached this rich stock of possible constitutional arguments, the lawyers for the butchers tried a simple tack: The Louisiana statute infringed the common law of England, the basic principles of which had become the bedrock of American law. One of these principles was that monopolies were per se invalid. The leading jurist of the seventeenth century, Sir Edward Coke, articulated this principle in a case in which the Crown had granted an exclusive franchise to a London merchant to buy and sell playing cards of a certain type. When a competitor was sued, he claimed that he was free to engage in his chosen trade; celebrating the principles of free enterprise, the court declared the monopoly invalid.12
This case would have been persuasive precedent for the butchers but for two hurdles that counsel had to negotiate. The first was to brand the New Orleans slaughtering franchise a “monopoly.” That proved to be problematic. The dissenting judges had no trouble concluding that requiring the butchers to use, for a fee, a single slaughterhouse was as “much a monopoly as though the act had granted to the company the exclusive privilege of buying and selling the animals themselves.”13 But the majority, led by Justice Miller, balked. The Court was willing to accept the label of “monopoly” but denied “the assertion that the butchers are [thereby] deprived of the right to labor in their occupation.”14
If the analogy with common law monopolies had held, the second problem would then have consisted of transplanting the English practice of invalidating statutes simply because they violated, as Edward Coke said in another leading case, “common right or reason.”15 There was no evidence that courts in the United States would or could invalidate statutes simply because they violated the “common law.” The Supreme Court never took this attack on the Louisiana statute seriously. It interpreted Coke’s decision in the Case of Monopolies to be about whether the king could grant a monopoly. Coke supposedly took the side of the Commons against the king, but left open the question whether parliament could grant monopolies. The impermissibility of the statute is dismissed with the rhetorical question: “Whoever doubted the authority of Parliament to change or modify the common law?”16 The notion of legislative power to regulate the economy prevailed. The elected representatives of the people enjoyed wide-ranging discretion in the legislature to enact measures that had at least the nominal purpose of promoting the public good.
To find a way of striking down the Louisiana statute, the New Orleans butchers would have to invoke a constitutional prohibition that would override the presumed competence of the legislature. The specific clause would have to capture the sense of “abstract justice” favoring the butchers, the sentiment of right and wrong that, in the opinion of Justice Field, no one could deny.
In exploring the lawyers’ and the Court’s arguments, our primary concern should be the fate of the ideas proposed at Gettysburg as the foundation of the postbellum legal order. Our task is to ponder the fate of the ideals of nationhood, equality, and democracy, to understand how the second founding of the United States imploded and merged, at least nominally, with the first Constitution and the Bill of Rights.
Nationhood and Citizenship
As much as Lincoln sought to evoke a consciousness of American nationhood, this idea did not readily resonate in the minds of lawyers. The word “nation” was not used in the postbellum amendments. I doubt if it even occurred to counsel for the butchers to come into court and argue that independent tradesmen had a right, granted to them by the American nation, to practice their trade without the duty to pay tolls and use specific facilities. Their rights derived, if from anyplace, from universal principles governing the free market and dignity of working people. Yet, this very argument—that the nation was the source of rights acquired under the Thirteenth and Fourteenth Amendments—would show itself, remarkably, in a majestic dissenting opinion in 1883.17
The idea of the American nation may have been in the air in the 1870s, but it was not part of the stock of concepts that the Court would draw on directly to domesticate its abstract sense of justice. The concept of an American nation was part of the American creed, but it had yet to become a fixed feature of American law. It enjoyed a fate comparable to the inalienable right to the “pursuit of happiness” as articulated in the Declaration of Independence. The latter is sometimes mentioned in legal opinions,18 but it never became the rationale for decision making in the courts. It remains an article of faith, as does the commitment to think of the American people as a single nation.
The faith in the American nation, along with the inalienable right to happiness, constitute affirmations of the American civic religion. They belong side by side with the frequent invocations, on the currency of the affirmation of faith: “IN GOD WE TRUST.” These are the background assumptions by which we live. The same is true of the sense of nationhood. In 1892, the secular prayer to the flag and the nation—the Pledge of Allegiance—would spontaneously sweep the country.19 It stood for the idea that the United States was “one nation indivisible”—a residue of “the war between brothers” that occurred thirty years before. However important these ideas may be in American civic religion, however much they dominate the thinking of Americans in the civil society that exists side by side with government, they might not be suitable as legal doctrines for deciding court cases.
Nationhood rings of romance. It appeals not to the analytic mind but to the sentimental heart. As between thought and emotion, lawyers have a bias for the linear creations of mind. The appeals of nationhood are left to poets. Lawyers opt for its analytic counterpart: citizenship. As used in the Fourteenth Amendment, citizenship is a purely formal idea, dependent solely on one’s place of birth. In the debates about the rights of New Orleans butchers before the Supreme Court, the notion of citizenship and its privileges became the stakeholder for any residual yearnings to express the rights of the nation.
Perhaps, as Charles Black and other scholars have argued, the privileges and immunities of national citizens capture whatever relevance the nation has to constitutional law. The position is defensible, though in my view, there remain important differences between the romantic extralegal idea of nationhood and the formal legal concept of citizenship. But let us leave these differences aside and imagine that if nationhood is to play a role in constitutional law, it must become domesticated under the rubric of citizenship.
The original Constitution recognized both state and U.S. citizenship. Only citizens—not merely residents—of different states could bring their cases to the federal courts.20 More important, the 1787 pact sought to equalize the legal status of citizens across the country by guaranteeing that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”21 National citizenship, either for a specified period of time or by birth, was necessary to run for national office.22 Yet, the charter of 1787 said nothing about how one becomes a citizen either of a state or of the national polity. The matter was left entirely to state law, as it is today in the European Union. In antebellum America as in the European Union today, citizenship in the larger entity requires that you first pass the local hurdles set for local citizenship. Leaving the matter of citizenship to the states meant that slave states could deny citizenship to blacks or to anyone they chose. This proved to be disastrous in the Dred Scott decision, where first Missouri and then the Supreme Court held that the bloodline of Africans forever excluded them from citizenship.23
The first item of business in the Fourteenth Amendment was to establish who, as a formal matter, belonged to the American polity. To find a simple definition, the Constitution adapted the traditional English rule that it is not blood but place of birth that matters: “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.” Applying the traditional rule of jus soli to everyone born on American soil—except for the children of diplomats and other people “not subject to the jurisdiction” of the country—had the radical effect of eliminating family and racial history from the definition of the bond between citizen and government in the United States.
This part is simple and direct. Complications begin to arise as soon as we note the difference between U.S. and state citizenship. It would have been much simpler to have a single conception of national citizenship, the same idea that one finds in virtually every other country in the world. If the Reconstruction Amendments had really been an entirely new constitution, the courts could have ignored the concept of state citizenship altogether. Alas, the Fourteenth Amendment itself mentions it: Every national citizen becomes a citizen of the state in which he resides. And to make things more complicated, each form of citizenship carries its own privileges and immunities. The original body of the Constitution prescribes that every state must respect the privileges and immunities of citizens of other states;24 the Fourteenth Amendment extends the same duty of recognition to the privileges and immunities of national citizenship.
The problem that confronted the Supreme Court in the Slaughterhouse case, therefore, was twofold: first, how to interpret the relationship between two kinds of citizenship and second, how to fit the “abstract justice” favoring the butchers’ claim into the confines of the privileges and immunities of either form of citizenship.
Dissenting Justice Field constructed an ingenious interpretation of the Fourteenth Amendment that had the effect of promoting the butchers’ cause. The first step in the argument was to find a principle of equality embedded in the 1787 clause prohibiting discrimination against citizens of sister states. Although the original Constitution does not mention the word “equality,” the “privileges and immunities” clause can be read as a mandate of equal treatment regardless of the state of origin—at least as to citizens. Now, let us suppose that Louisiana enacted a statute prohibiting out-of-state butchers from using the Crescent City Slaughter-House Company. This kind of preference for one set of butchers over another would have been clearly unconstitutional, as the case law in this area readily reveals.25 It follows that if Louisiana cannot arbitrarily disfavor citizens of other states, it would seem odd that they could do the same thing to a group of their own butchers. Prior to the postbellum constitutional amendments, there were a limited number of clauses that made the states accountable for wrongs committed against their own citizens. The most notable were the prohibitions against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts.26 But these provisions hardly provided a foothold for attacking the special privileges accorded to the butchers of the Crescent City Company.
At this point in the reasoning process, Justice Field made his striking claim: the very purpose of U.S. citizenship was to fill this gap left by the other clauses in the Constitution. It made no sense for the federal courts to guarantee better protection for butchers out of state than for those within the state. To bring about parity between these two classes—the protected citizens of other states and the unprotected citizens of one’s own state—the concept of U.S. citizenship should protect people against the actions of their own states.
The intellectual problem was similar to the situation that occurred in international law after World War II. The legal order among the nations protected citizens of foreign states against atrocities committed by the Germans, but it did not protect Jews living in Germany against their own government. This was a remarkable omission in the structure of international law. To correct it, the architects of the Nuremberg tribunal generated the idea of crimes against humanity. Today, in disputes from Rwanda to Kosovo, we take it for granted that states have duties, under international law, toward their own citizens. The Slaughterhouse Cases struggled to achieve the same breakthrough in the relationship between individual states and their own citizens.
The conceptual hurdle in 1872 was the same as in 1945. In order for a state to have duties toward its own citizens, the citizens must be considered as members of some entity higher than the state to be held accountable. In other words, the citizen and the state must both be considered as subjects of a higher legal order. Nuremberg located German Jews within the higher legal order called humanity. The victims of German terror were to be protected simply because they were human beings. Justice Field thought, correctly in my view, that the notion of United States citizenship was akin to being the member of a legal order higher than the states, a legal order to which the states themselves owed a duty to treat citizens of their own state no worse than the citizens of other states in the United States.
There is little doubt that Justice Field’s analysis, though rejected in the Slaughterhouse decision, eventually became the guiding principle for interpreting the Fourteenth Amendment. The proper home for this analysis turned out not to be the dual concepts of the citizenship clauses but rather the due process and equal protection provisions in the neighboring clauses of the same amendment. Both of these latter provisions, it will be remembered, are directed to the protection of “any persons” (due process) or “any persons within the jurisdiction” (equal protection). The drafting of the Fourteenth Amendment thus anticipated the theory underlying the Nuremberg principle of a crime against humanity. Under the Nuremberg standard, the international order imposed a duty on nation-states to treat their own citizens decently. In the postbellum legal order, the same result derived from federal constitutional principles.
But this gets us slightly ahead of the story. The question remains why and how the majority of the court rejected Justice Field’s ingenious construction of harmony between the two levels of citizenship. Keep in mind what the stakes were. There was no question that the states were subject to a higher legal order. The only question was whether that higher order would be the order established by the federal government or the order implicit in the idea of humanity. Would the controlling feature of the butchers living in Louisiana be their membership in the polity called the United States or their status as “persons” entitled to due process and the equal protection of the laws?
Field’s argument carried four votes. The other five members of the court recoiled at the thought that the states owed duties to a higher legal order called the United States. U.S. citizenship did not have the effect of leveling the distinction between local citizenship and being the citizen of another state. To read the Reconstruction Amendments in this way would “fetter and degrade the State governments by subjecting them to the control of Congress.”27 The primary issue, as understood by the majority, was whether the states would retain their own special authority over their own citizens, an authority that was expressed in the “police power” to legislate for the common good. The implication was that states could readjust private rights and obligations among their own citizens if doing so served the overall advantage of the state’s residents. Granting a special franchise to the Crescent City Slaughter-House Company was simply an illustration of a general authority to help some citizens and hurt others—all within the state. What no state could do, however, was to seek to promote the interests of its citizens over the citizens of other states.
This, we should note, carried forth the struggle of the Civil War by other means. The special solicitude shown to “the relations of the State and Federal governments to each other and of both these governments to the people” harks back to the rhetoric of the 1830s about the asserted autonomy of the new states to decide whether they would go one way or the other on the issue of slavery. It is almost as though the Civil War had accomplished only one objective, namely settling the issue of secession, while doing nothing to define the nation of the United States or to establish a principle of equality among all its citizens.
Nonetheless, writing for the majority, Justice Miller constructed a plausible theory of what it should mean to be a citizen of the United States. The picture presented is something like the posture of a supplicant toward a distant protector. The citizen should be able to address representatives of the U.S. government in person, make claims against the higher power, and receive its protection as a citizen abroad or on the high seas. None of this is particularly radical, and it fails, to be sure, to incorporate the commitments to nationhood and equality bequeathed by the Civil War.
On these larger issues, the opinion of the Court proves to be a great historical disappointment. The Miller opinion’s perception of our unity as a nation comes across in this remarkable sentence:
And quoting from the language of Chief Justice Taney in another case, it is said “that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States. . . .”28
The date of this other opinion is not mentioned, but Chief Justice Taney, it will be recalled, was the author of the Dred Scott opinion, which did indeed affirm that we were one [white] people and that persons descended from slaves could never become a part of it. To cite Taney on the issue of American nationhood is a bit like invoking Al Capone on the rule of law.
Equality
And equality—that glaring omission from our original Constitution? How did the Fourteenth Amendment’s attempt to rectify the sins of 1787 fare in the grip of the antebellum intuitions that drove the Miller court? The five majority justices could have applied the “equal protection” clause and achieved the same result that Justice Field had engineered under his construction of the dual tracks of citizenship: the butchers rendered dependent on the Crescent City Company were subject, they could easily have concluded, to impermissible discrimination. That would not have been a particularly radical result, and it would have established an enduring commitment to equality under the postbellum constitution. But no, the Court turned away from the larger issue of principle for the sake of overcoming a narrow historical injustice. The “evil to be remedied by this [equal protection] clause,” the Court writes, was “the existence of laws in the States where the newly emancipated Negroes resided, which discriminated with gross injustice and hardship against them as a class.”29 In other words, the only point of the new commitment to equality should be simply to eliminate the institution of slavery and its concomitant legal institutions. But if that was the only purpose of the Reconstruction Amendments, the Thirteenth had already done the job. There was no need for the Fourteenth Amendment and its commitment to the larger principle of equality among all “persons in the jurisdiction.”
Susan B. Anthony had already begun her campaign for women’s suffrage, but as of the date of the Slaughterhouse opinion there was little sympathy for moving the spectrum of equality up one notch to include women as a class worthy of protection. Immediately after resolving the Slaughterhouse dispute, the Court turned to the petition of Myra Bradwell to be admitted to practice law in Illinois.30 There was no dispute about whether she was qualified. She was a citizen of the United States and of Illinois, and she had the training and character to make a fine lawyer, but there was one problem: She was a woman. This was sufficient for the state to bar her admission, and the Supreme Court, with only one justice dissenting, thought this was an acceptable exercise of state power. After the Slaughterhouse decision, it was a minor stretch for Justice Miller to conclude that practicing law did not fall within the ambit of “privileges and immunities” of citizens. The amazing feature of the Court’s decision in this case is that it did not even occur to the judges to justify the discrimination against women as compatible with “equal protection of the laws.” The opinion is totally silent on the issue of equality. This was the temper of the times. In 1874, another woman, Virginia Minor, argued to the Supreme Court that Missouri’s denying her the right to vote violated the Fourteenth Amendment. The Court resolved the matter by unanimous vote.31 It did not even mention the possibility that the discrimination violated equal protection of the laws.
Apparently, it lay beyond the imagination of the justices in the 1870s that someday equal protection would be extended to protect all those created in God’s image. It would protect not only racial minorities but also women, children born out of wedlock, aliens, and all groups that suffered the stigma of arbitrary social and legal exclusion. They ignored the “abstract justice” that screamed at them from the bold language of the new constitutional structure. Rather, they read the language to narrow it, to confine it to historical circumstances, in effect, to defeat the vision of a new, more just society. Supreme Court justices are an inherently conservative lot, but they are rarely as reactionary as these justices of the postbellum era. The Reconstruction Court did as much as possible to convert the vision of a new order into our Secret Constitution.
Yet, the values of nationhood and equality would not remain forever hidden, camouflaged in the deep structure of constitutional thought. They would begin to reassert themselves both in the political arena and in the courts. The debate in the Slaughterhouse case had failed to take seriously the issues either of nationhood or of equality. The dissent never got to the question of equality because they were satisfied that the Louisiana statute violated the “privileges and immunities” of United States citizenship. The majority never reached that point because, as far as they were concerned, the Fourteenth Amendment had the limited function of eliminating statutory discrimination against African Americans. The Court’s view that the purpose of “equal protection of the laws” was solely to protect blacks from apartheid-like legislation was so clearly narrow-minded that it could not hold for long. Fourteen years later, the Court would extend the principle of equal protection to Chinese launderers in San Francisco subject to discriminatory enforcement of zoning regulations.32 This was the first step toward a sensible jurisprudence of equality.
The historical associations of the Slaughterhouse dispute lend themselves to multiple perspectives. For the advocates of the butchers’ economic rights, the critical perspective was the long history of emancipating craftsmen and laborers from the feudal bondage that subjected them to a network of service and financial obligations. For the dissenting judges, the challenge posed by the case was the creation of a single national polity in which the states were obligated to treat insiders as well as they treated outsiders. And for the majority, the issue was the one that should have been resolved by the Civil War: the struggle for power between the states and the federal government. Unfortunately, that struggle would continue to haunt the court for decades of contentious litigation.
Apartheid in the Theater
It is tempting to read the Slaughterhouse case as a decision by the Court to turn its back on the struggle for racial equality in the United States. In fact, as we should keep in mind, the case had nothing to do directly with discrimination against former slaves. The decision does, however, signal a great concern for the autonomy of the states, for the revival of states’ rights against the federal government. This could have generated a jurisprudence of deference to the states in their exercise of police power, even if executive and legislative decisions had the effect of discriminating against former slaves. In subsequent decisions, however, the Court established the basic principle that in the field of criminal justice at least, the states could not treat blacks as an inferior class. In one 1880 decision, the Court upheld a federal penalty against a Virginia state officer who disqualified blacks from jury service.33 And another decision in the same year reversed a state court conviction of an African American tried by a West Virginia jury on which blacks were not permitted to serve.34 With respect to African Americans’ exercising the basic rights of citizenship, particularly in the field of criminal justice, the Court would be vigilant.
The more contentious issues arose in defining the way the emancipated slaves could move and function as supposedly free citizens in American society. The most fundamental rights of former slaves could not be taken for granted. The first Civil Rights Act, enacted in 1866 on the basis of the Thirteenth Amendment’s commitment to suppress slavery and involuntary servitude, established elementary civil rights for former slaves: the right to sue in the courts, to be witnesses, to have the same legal remedies, and to be subject to the same penal and tax obligations as other citizens. The act provided criminal penalties against any official who subjected any person to one of these basic legal inequalities on grounds of race, color, or status as an alien.35
The difficult question was whether Congress could properly legislate under the Thirteenth Amendment to protect former slaves against informal but rigid forms of customary discrimination, for example, the denial of service in restaurants, the refusal to rent rooms in hotels, and the segregation of theaters. The Civil Rights Act of 1875, Section 1, provided that all persons should enjoy equal access to “inns, public conveyances on land or water, theaters, and other places of public amusement” regardless of race, color, or previous condition of servitude.36 Section 2 attached a fine and a prison term of up to thirty days for committing the misdemeanor of denying someone access to these facilities for the prohibited reasons. On the basis of these provisions, the federal government indicted various suspected violators around the country—New York, San Francisco, Tennessee—for having denied access to theaters and other public facilities. Significantly, all of these prosecutions were brought in areas that had been loyal to the Union in the war. The defendants appealed their jury convictions on the ground that the Civil Rights Act exceeded the authority of Congress. Their appeals were consolidated on appeal to the Supreme Court.37
Eight justices decided that the Congress’s effort to prevent segregation and apartheid in public life overstepped their authority under both the Thirteenth and Fourteenth Amendments. Accordingly, the Court reversed the convictions and set free the defendants who enforced the color line in public accommodations. The Court reasoned about the Reconstruction Amendments in the same sterile and truncated way we have already witnessed in the Slaughterhouse Case. This discrimination in access to public transportation, inns, and theaters did not constitute an “involuntary servitude,” for, as the Court had the temerity to suggest, these interactions in public were in the realm of “social rights of men and races in the community.”38 The purpose of the Thirteenth Amendment was merely “to declare and vindicate those fundamental rights which appertain to the essence of citizenship.”39 Of course, this was obvious discrimination on the basis of race. Why should it not qualify as the denial of “equal protection of the laws” under the Fourteenth Amendment? The Court focused on the wording of the amendment: No state shall deny to any person within its jurisdiction the equal protection of the laws. Only the states could violate the amendment. And the particular persons who enforced the color bar at trains, inns, and theaters were not agents of the state. Their actions did not constitute legislation by any government or executive action by any official wearing a badge of state authority. And, therefore, the state was not responsible for these private persons denying “social rights” to black citizens. The conclusion: If the wrongdoing was purely social or private, then the federal government could not punish it under legislation designed to enforce the Fourteenth Amendment.
This cramped and faithless reading of the Constitution has become obvious to us over time, but it was apparent in 1883 as well. The lone dissent by Justice John Marshall Harlan records, with allusion and insight, the betrayal of what should have been the postbellum constitutional order. Harlan pinpoints the intellectual moves that led the court astray. On the issue of state action, Harlan recognizes the spectrum of possible positions ranging from purely private actions to the actions taken as the policy of the state. To grasp the subtleties of the problem, think of the following points on a spectrum of actions ranging from purely private action at home to the purely public functions of state officials:
1. Actions taken at home, in the family, with friends.
2. Actions taken in public by employees of private companies that serve the public, for example, a store clerk refuses to sell goods to a black person.
3. Actions taken in public by employees of an organization entrusted with a public function, for example, ushers at the opera or conductors in railroad cars refuse to seat blacks.
4. Actions by a privately owned utility that has a state franchise to provide service in a particular area, for example, Bell Telephone refuses to sell service to former slaves.
5. Actions taken by local officials on their own, in defiance of governmental policy, for example, a local judge refuses to include blacks on the jury list.
6. Official policies of the government, discriminatory legislation, executive decisions not to hire blacks.
Except for purely private actions at home and official policies at the other extreme, the other points on this spectrum represent a mix of private decision making and government policies. In fitting the Fourteenth Amendment to the reality of these diverse combinations, the Court could have insisted on stage six as the threshold of behavior included within the scope of the amendment, thus limiting the supervisory power of the federal courts to the official action of state officials. But it was clear from the outset that this would make little sense. Discriminatory application of sound laws could not escape federal scrutiny simply because state officials acted beyond the scope of their authority. Limiting “state action” and official policies of the state would encourage officials to act beyond their legal competence. Thus, stage five came to be included within the ambit of state responsibility.
The fatal mistake in 1883 was concluding that everything below stage five could properly be classified as private or “social.” Justice Harlan’s dissent stresses that stages two, three, and four are also actions in the public domain that implicate the state in various ways—as enforcer, as beneficiary of the surrogate private enterprise, or by direct or indirect funding (e.g., tax incentives). Reading the Fourteenth Amendment with a view to what it was intended to accomplish would have yielded a more generous understanding of “state action.” The range of constitutionally relevant action would have included at least actions fulfilling the public functions of providing transportation, accommodations for travelers, education, and culture. And if the Court had so interpreted the notion of state action, it would have had no difficulty sustaining both the Civil Rights Act of 1875 and the convictions brought against the violators of the provision requiring equal access to theaters and other facilities open to the public.
Furthermore, as Justice Harlan pointed out, the Court had read the new rights established by the Reconstruction Amendments as though they were just like other restrictions imposed on state governments, for example, the prohibitions against the states enacting bills of attainder, impairing the obligations of contract, or granting titles of nobility.40 Therefore, the Court could engage in close analysis of the specific prohibition against state authority and assess whether it was really the “state” that was responsible for the wrong committed against those who were shut out of facilities supposedly open to the public.
The Court ignored, in Harlan’s clearheaded view of the case, the critical feature of the Reconstruction Amendments, namely that each of them grants Congress authority to effectuate the amendment with “appropriate legislation.” This was the first time in our history that constitutional amendments carried with them an expansion of Congressional authority.41 Accordingly, it was up to Congress to decide how best to implement the general commitments explicit in the Thirteenth and Fourteenth Amendments. Congress had acquired a general police power in this area comparable to the state legislative power upheld in the Slaughterhouse Case.
Harlan’s most devastating argument was that the courts had long assumed that Congress enjoyed a general legislative power to regulate the conditions of slavery. The constitutional text of 1787 had stipulated a right of slave owners to recover slaves who had escaped into free territory.42 On that basis, Congress enacted the Fugitive Slave Law of 1793, which in a manner similar to the Civil Rights Act under attack had imposed a federal penalty on those who refused to cooperate in the return of runaway slaves.43 If Congress could elaborate on a constitutional clause securing slavery, surely they enjoyed an analogous power, reasoned Justice Harlan, under an express grant of legislative authority in the Reconstruction Amendments to eliminate slavery and secure equal protection of the laws.
Justice Harlan’s position eventually triumphed—but not until our own time. After a long process of litigation, addressed primarily to the constitutionality of New Deal welfare legislation, the courts expanded the authority of Congress to legislate on all matters affecting “interstate commerce.”44 This became the basis for the Civil Rights Act of 1964, which finally enacted the broad-gauged protection against discrimination that the Court had declared beyond the competence of Congress in 1883. Grounding congressional competence to counteract discrimination in its power to regulate interstate commerce smacked of legal convolution. The better ground would have been precisely the original claim of authority asserted by Congress in the Civil Rights Act of 1875.
Justice Harlan’s fidelity to Lincoln’s vision of the postbellum constitutional order becomes clear in his appeal to the concept of nationhood. Of all the opinions surveyed in leading cases decided in the aftermath of the Civil War, Harlan’s is the only one that comes close to conceptualizing the United States as a nation acting as a single unit. When the term appears in the other opinions, it is always as the adjective “national.” Yet, Harlan’s opinion is studded with references that replicate the usage that we heard in the Gettysburg Address and then found in selected poetry and philosophy written at the time. The nation is not just a government. It is an organic entity, a source of authority. As Harlan repeats nearly thirty times in the course of his opinion, the “nation has liberated”45 the slaves, “the nation has established universal freedom in this country,”46 and blacks, denied citizenship in the Dred Scott decision, acquired their equal citizenship “in virtue of an affirmative grant from the nation.”47
Reasoning like Orestes Brownson or Frances Lieber, Justice Harlan distinguished clearly between the nation and the federal or national government. The nation is not a constituted government. It is rather the source of authority that legitimates government. This conception of nationhood, synonymous with the spirit of Gettysburg, is evident in expressions stressing the logical priority of the nation’s will. For example, Harland writes that to insure that “the purposes of the nation might not be doubted or defeated . . . the Fourteenth Amendment was proposed for adoption.”48 Equally poignant are passages that treat the rights and privileges of the Constitution as “derived from the nation”49 or that stress “what the nation through Congress has sought to accomplish.”50
John Marshall Harlan’s entire philosophy, expressing the heart of the Secret Constitution in dissent, is summed up in this sentence:
Exemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new right, created by the nation, with express power in Congress, by legislation, to enforce the constitutional provision from which it is derived.51
It is clear in this passage that the nation, as distinct from government, creates rights, grants citizenship; it has objectives that it seeks to accomplish, but it must act through the prescribed processes of the law. The nation acts initially in the process of constitutional amendment, and then, by means of delegated authority, through the Congress. The nation has expressed its will by precisely these means in the Reconstruction Amendments, which delegated Congress authority to engage in the kind of legislation under attack in the Civil Rights Cases. The logic of the argument traces the genesis of the nation-state. First the nation comes into being as a prelegal organic unity, and then the nation expresses itself in a governmental structure.
One might properly inquire how the idea of the nation’s expressing its will differs from “We the People” acting in concert for the sake of a better government. The differences are admittedly subtle. Perhaps the accent in Justice Harlan’s mind was on the historical bond implied in the war that held the nation together. Yet, it is no accident that the expression “We the People” is absent in the rhetoric of his dissenting opinion. The problem he addressed was not one that the people could decide for themselves. The question “Who constitutes the nation?” does not lend itself to democratic resolution. The question of nationhood logically precedes both government and the popular will. For the nation to express itself as “government of the people,” it must first come into being.
The nation does not constitute itself by popular vote or by a decision of government. The nation comes alive, as Lincoln viewed our history, as a bond forged in an historical struggle. The bond was first cast in 1774 with the first stirring of independence or, at the latest, in July 1776. The inclusion of emancipated slaves within the nation came as the only consequence of the Brothers’ War that could make sense of the national search for redemption.
Remarkably, the eight justices who signed the Court’s opinion invalidating the Civil Rights Act of 1875 used the vocabulary neither of peoplehood nor of nationhood. They had no conception of the American nation—or at least not one relevant to their legal analysis. Of course, they refer to the national government, a phrase in which “national” is synonymous with “federal” or “central.” Yet, they use the term “nation” in reference to France!52 I suppose that in the minds of the majority of justices, the United States constituted not a nation but a people still living under the Constitution they had designed and ratified in the 1780s.
No one chose to create an American nation consisting of North and South, white and black, native and immigrant, and there were undoubtedly many people displeased by the idea. Yet, this was the situation in which we found ourselves in 1863. Lincoln had conceived of rooting our history in the identity generated by the struggle for independence. History had forged a unique nation of people of diverse origins. Justice Harlan understood what the nation had become and what it could do to further its own internal harmony. His magisterial dissent leaves us with a historical record of what constitutional thought in the postbellum period could have been.
Instead of integrating our nationhood and the commitment to equality into constitutional discourse, the Civil Rights Cases completed the process of driving Lincoln’s vision into the deep structure of our constitutional thought. The Court generated a surface discourse to camouflage the Secret Constitution. It bequeathed to us a narrow conception of state action that we are still struggling to overcome. And, more to the point, by undermining federal authority to remove the incidents and marks of slavery, the Court facilitated segregation in American society. It would be a mere dozen or so years until the Supreme Court upheld the idea that public facilities, including schools, might be “separate but equal”—thus institutionalizing apartheid for generations.53 At the same time that the courts drove the postbellum legal order underground, concerted action by the children of slave owners organized to frustrate the purposes of the Fifteenth Amendment. Various measures, including poll taxes, literacy tests, and organized violence, were used to prevent African Americans from realizing their right to vote. The Democratic Party gained the loyalty of white Southern voters and remained in power for more than half a century, largely on the basis of segregationist principles.54
Yet, there is an important difference between the courts’ betraying the Thirteenth and Fourteenth Amendments and the people’s frustrating the purposes of the Fifteenth Amendment. With regard to the first two of the Reconstruction Amendments, the courts gutted the great aspirations of the new constitutional order and led many professorial observers to teach that our Constitution really was what the segregationist courts said it was. This tendency to take the Courts at face value derived largely from academic skepticism about the possibility of a higher law prevailing over the uses of judicial power in our understanding of what the Constitution really required.
The Constitution became what the courts do in fact. Legalism prevailed. The legal philosophy of the Confederacy triumphed, both in substance and in style.55 The ideals of Gettysburg became, for the lawyers in the second half of the nineteenth century, a matter of history. For the nation as a whole, however, the values of Gettysburg—nationhood, equality, and democracy—retained their promise, and these principles would eventually return to the field of litigated law.
At least the commitment to democracy had begun to make inroads in the official documents of the lawyers. The language of the Fifteenth Amendment, the first federal measure directly securing a right to vote, betokened the beginnings of popular democracy. No state could deprive African-American men of the right to vote—at least in theory. Missing was not the constitutional language but the will to enforce it. The campaign to overcome impediments to black voting would take several generations, including additional amendments and legislation abolishing poll taxes and literacy tests. As the Secret Constitution would again reassert itself in American politics, we would also take the promise of the Fifteenth Amendment seriously.
As a sequel to World War II, when black and white had again fought side by side, although still in segregated units, the will would again arise to fight for equality in a single nation. It would take a campaign of restaurant sit-ins and bus boycotts finally to correct the great error of the Civil Rights Cases. In 1964, four-score-years-and-one after the initial defeat in the Supreme Court, the country could once again say that equal access to theaters and public accommodations was the law of the land.
If we look at the legacy of the Slaughterhouse Case and the Civil Rights Cases together, we should note two additional casualties to the vision of a new postbellum legal order. In the first case, counsel raised the issue of economic discrimination, which had never received due attention from the Supreme Court. We turn in the next chapter to the legacy of that failure in ongoing economic discrimination in education. As race came center stage in the truncated arena of “equal protection,” the Supreme Court would ignore the tragedies of the states’ toleration of wealth and class discrimination. As we shall see, other countries have confronted the problem of wealth discrimination as an aspect of their commitment to equality. It will eventually be incumbent on the Supreme Court to do the same.
The second major casualty was the concept of “involuntary servitude” as invoked in the Thirteenth Amendment. Counsel tried, but they could not persuade the Supreme Court to think of the burdens imposed on the New Orleans butchers and on African Americans subject to public segregation as variations of the servitudes prohibited by the Thirteenth Amendment. That concept had the potential of inducing a new role for government in the relationships between private parties. If servitudes should be understood as relationships of domination, then an open-ended approach to the concept would have generated a watchdog role for the federal government in inspecting and supervising private relationships of potential exploitation and domination. The Crescent City Company’s domination of the independent butchers, who had to pay tribute to practice the slaughtering trade, should have been a paradigm of impermissible domination. And the other paradigm of coerced servitude would have been the domination of blacks by whites in a segregated society.
Had these two decisions gone the other way, a triadic relationship with government would have emerged. The triangle would have consisted in the potentially dominant private party, the potentially subservient private party, and the government as the guarantor of relationships of equality and nondomination. It is not clear which branch of the federal government would have benefited most from a triadic relationship with private parties. Congress would have exercised its authority to legislate under the Thirteenth Amendment. The executive would have established commissions to keep tabs on relationships that came to public attention. Although the judiciary probably would have prospered as well, the Supreme Court of the 1870s and 1880s did not want to see the federal government become the watchdog of economic and semipublic racial relationships. Our history took a different course, one that required us to confront, in ways that we hardly expected, the moral difficulties of understanding equality under law.
