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The Fourteenth Amendment
State Power
Personal Rights
Property Rights

The Union had been preserved. Indeed, in Texas v. White a majority of the Supreme Court endorsed the legal fiction that it never had been disrupted. As the war issues faded from the docket, the Court set about restoring the state-federal balance of power. Concern for the states as effective functioning units of the federal system was paramount in the minds of the justices, so to enhance state power, the Court began to curtail federal authority. The Court′s power of judicial review concerning acts of Congress was wielded with new vigor. Between Marbury in 1803 and the Slaughterhouse Cases in 1873, the Court held unconstitutional ten acts of Congress. Six of the ten were struck down between 1870 and 1873. Another sign of the Court′s sensitivity to the claims of states was its decision in 1871 that even as the salaries of federal officials were not subject to state taxes, so state officials′ salaries were immune from federal taxes. [126]

The Fourteenth Amendment

No better example of the Court′s view of the proper balance between state and federal power can be found than its rulings interpreting the Civil War amendments, in particular the Fourteenth Amendment. In 1865 the Thirteenth Amendment formally abolished slavery. In 1868 the Fourteenth Amendment gave added protection to the rights and liberties of persons threatened by state action. In 1870 the Fifteenth Amendment guaranteed blacks the right to vote. Intended as instruments of radical change in the nation′s social fabric, these amendments were so narrowly construed by the Court in the decades immediately after their adoption that they lay virtually useless for most of the century. The effect of these rulings was to preserve state power over the rights of individuals by denying any expansion of federal authority in that area.

The Court in 1876. From left: Justices Joseph P. Bradley, Stephen J. Field, Samuel F. Miller, Nathan Clifford, Chief Justice Morrison R. Waite, Justices Noah H. Swayne, David Davis, William Strong, Ward Hunt. (Source: Collection of the Supreme Court of the United States.)

The Court′s first ruling on the scope of the Fourteenth Amendment came in the Slaughterhouse Cases (1873). It was indicative of the direction in which Fourteenth Amendment protections would eventually be extended that these cases were brought by butchers seeking to protect their businesses rather than by African Americans seeking to assert their newly granted civil rights. Louisiana had granted one company a monopoly on the slaughtering business in New Orleans. That grant was challenged by other butchers as denying them the right to practice their trade. They argued that this right was protected by the Fourteenth Amendment′s guarantee of the privileges and immunities of U.S. citizenship, of equal protection of the laws, and of due process.

The Slaughterhouse Cases were first argued in January 1872, just before the Court′s opinions in the second Legal Tender case were read. The Slaughterhouse arguments were before an eight-man Court, because Justice Nelson, eighty years old, was absent. The Court apparently was evenly divided and ordered the cases reargued the following term. Before the December 1872 term began, Nelson resigned after twenty-seven years of service. President Grant named Ward Hunt, a New York judge—as Nelson had been—to the seat.

The reargument took place over a three-day period in February 1873. The attorney for the butchers was former justice John Campbell. The Court announced its decision April 14. By a 5–4 vote, the Court held that Louisiana had not violated the Fourteenth Amendment by its grant of a monopoly. [127] Writing for the Court, Justice Miller stated that the amendment did not increase the number of rights an individual possessed, but only extended new protection to those few rights, privileges, and immunities that had their source in one′s federal, rather than state, citizenship. The right to do business did not derive from one′s U.S. citizenship, held the majority. Any other decision, wrote Miller, would convert the Court into “a perpetual censor upon all legislation of the States on the civil rights of their own citizens.” [128] Chief Justice Chase dissented, as did Justices Swayne, Field, and Bradley. The next day, over Chase′s lone dissent, the Court held that a state did not deny a woman the privileges or immunities of U.S. citizenship when it refused, because of her sex, to license her to practice law in its courts. [129]

Within the month, Chief Justice Chase was dead of a sudden stroke. His seat remained vacant for most of the following year. President Grant tried unsuccessfully to place two of his personal friends in the seat, first naming George H. Williams, attorney general of Oregon, and then Caleb Cushing, a former attorney general of Massachusetts. Finally, he chose a little-known Ohio attorney, Morrison R. Waite. The nominee, who had never argued a case before the Supreme Court and who had no judicial experience, was unanimously confirmed, 63–0, and took his seat in March 1874. The term in which Waite began his fourteen years as chief justice was the first to begin in October. Early in 1873 Congress had provided that the Court′s term would begin the second Monday in October rather than in December as it had since 1844.

Unlike Chief Justice Chase, Waite agreed fully with the Court′s narrow view of the privileges and immunities of federal citizenship. In 1875 he wrote the Court′s opinion reinforcing its decision in the Slaughterhouse Cases, holding that the right to vote was not a privilege of U.S. citizenship. [130] The Court remained reluctant to acknowledge either that the Civil War amendments had expanded federal power to enforce individual rights or that the amendments had expanded the list of federally protected rights. Illustrating that view, the Court in 1876 voided portions of laws that Congress had passed to ensure the Fifteenth Amendment′s guarantee of the right to vote and the Thirteenth Amendment′s abolition of slavery. Again, Waite spoke for the Court to declare that Congress had overreached in enacting a broad statute penalizing persons who used violence to deny black citizens the right to vote. That right, the Court reiterated, came from the states; only the right to be free of racial discrimination in voting came from the U.S. Constitution. These rulings left Congress powerless to protect the newly enfranchised African Americans. [131]

The disputed presidential election of 1876 drew the Court directly into political controversy when five of its members—Justices Bradley, Clifford, Field, Miller, and Strong—served on the commission that resolved the dispute over electoral votes and paved the way for Republican Rutherford B. Hayes′s election. Hayes subsequently placed Stanley Matthews—the man who had helped negotiate the compromise that elected him—on the Supreme Court.

State Power

Not surprisingly, the Court of the 1870s that refused to acknowledge a broadening of federal power to enforce the rights of individuals was quite hospitable to state claims of a far-reaching police power operating in ever-widening fields. As large manufacturing and transportation companies grew rapidly after the Civil War, their customers organized to use state regulation to curtail the power of those businesses over individual consumers. Among the most successful were farm groups, including the Grange, which in some states obtained the passage of “Granger laws” limiting how much railroads and grain elevator companies could charge for hauling or storing farm products. Despite the failure of the butchers to win Fourteenth Amendment protection of their right to do business in the Slaughterhouse Cases, the railroad and grain storage operators mounted a similar challenge to these Granger laws. They argued that the state, in passing these laws, deprived them of their liberty and property without due process of law.

In the best-known of the Granger Cases, Munn v. Illinois (1877), the Court rejected this challenge to state regulatory laws. [132] In upholding the laws, Chief Justice Waite explained that some private property, by virtue of its use, was so invested with a public interest that states could properly exercise their police power to regulate it. Justices Field and Strong dissented. The majority also rejected the idea that federal courts should review such laws to determine if they were reasonable. Waite acknowledged that the state might abuse this power, but found that possibility insufficient argument “against its existence. For protection against abuses by Legislatures the people must resort to the polls,” he concluded, “not to the courts.” [133] Three years later, the Court found in the state police power a substantial qualification of the Constitution′s ban on state impairment of contract obligations. In Stone v. Mississippi (1880) the Court held that a legislature could never by contract place a subject outside the reach of this power. It upheld a decision of the Mississippi legislature to ban lotteries, even though this decision nullified the charter of a lottery corporation granted by a previous legislature. [134]

The Court in 1882. Seated from left: Justices Joseph P. Bradley, Samuel F. Miller, Chief Justice Morrison R. Waite, Justices Stephen J. Field, Stanley Matthews. Standing from left: Justices William B. Woods, Horace Gray, John Marshall Harlan, Samuel Blatchford. (Source: Collection of the Supreme Court of the United States.)

A week after Munn v. Illinois, Justice Davis resigned to take a Senate seat. As his replacement President Hayes chose John Marshall Harlan, a forty-four-year-old lawyer and a namesake of the fourth chief justice. Harlan′s thirty-four-year tenure was characterized by a long line of opinions dissenting from the Court′s narrow view of the Fourteenth Amendment. At the turn of the decade, the Court′s personnel underwent further change. By 1880 the Court was operating with three members who were no longer able to fill their proper roles. Hunt had suffered a stroke in 1879 and never returned to the bench. Clifford had been disabled for some time but refused to resign until a Democratic president could choose his successor. Swayne, at seventy-five, had been in failing mental health for three years. [135]

The first departure from the Court of the 1880s, however, was Justice Strong, who retired although still at the peak of his abilities in his seventies. President Hayes chose William Burnham Woods of Georgia as Strong′s successor. Woods, a federal circuit judge, was the first southerner named to the Court since Justice Campbell was selected in 1853. In January 1881, shortly after Woods was confirmed by a 39–8 vote, Swayne resigned. To succeed him, Hayes selected Sen. Stanley Matthews, also of Ohio. Matthews had been instrumental in the compromise that placed Hayes in the White House in 1877. Nominated first by Hayes and then by incoming President James J. Garfield, Matthews was confirmed by one vote, 24–23.

Justice Clifford died in July 1881. To replace him, President Chester A. Arthur selected Horace Gray, chief justice of the Massachusetts Supreme Court. In 1882, after a three-year absence from the bench, Justice Hunt resigned. After Arthur′s first choice, Roscoe Conkling, declined, Arthur chose federal judge Samuel Blatchford of New York to fill the seat.

Personal Rights

The Fourteenth Amendment, ratified in 1868, eventually became a mother lode of litigation. In the fifteen years between the Slaughterhouse Cases, the Court′s first Fourteenth Amendment decision, and the end of Chief Justice Waite′s term in 1888, the Court decided about seventy cases on the basis of that amendment. In the ensuing thirty years there would be ten times as many— 725 cases. [136]

In general, individuals who sought to invoke the protection of the Fourteenth Amendment had little success. The Court was generally unresponsive to “social” legislation or to claims of individual rights. In 1878 the Court struck down a state law that required equal access for black and white passengers to railroads operating in the state. The law was impermissible state interference with interstate commerce, held the Court in Hall v. De Cuir. [137] In 1880 the Court used the Fourteenth Amendment to deny states the freedom to restrict jury service to white persons, but three years later, in the Civil Rights Cases, the Court made clear that it would condone use of the amendment only to reach clearly discriminatory state action.

In the Civil Rights Cases, a selection of cases representative of alleged civil rights violations under the Civil Rights Act of 1875, the Court declared Congress powerless to legislate acts of private discrimination against black persons. [138] With Justice Bradley writing the majority opinion, the Court struck down the far-reaching Civil Rights Act, enacted to implement the guarantees of the Civil War amendments. The Fourteenth Amendment, the Court declared, did not give Congress the power to regulate matters that traditionally had been left to state control. Congress could act only to correct—not to prevent—discrimination by the state.

In 1884, however, the Court upheld the power of Congress to provide for the punishment of persons who beat a black man to keep him from voting in a federal election. [139] The same day, the Court reaffirmed the view, first set out by Chief Justice John Marshall in Barron v. Baltimore (1833), that the Bill of Rights did not apply against state action (even though there was clear evidence that the authors of the Fourteenth Amendment intended it to override Barron). Joseph Hurtado was convicted of murder under California law, which did not require a grand jury indictment in serious crimes. Citing the Fifth Amendment guarantee of charge by indictment for serious federal crimes, Hurtado challenged his conviction as a violation of the Fourteenth Amendment′s due process guarantee. That guarantee, he argued, applied the indictment provision to the states. The Court rejected Hurtado′s argument. The Fifth Amendment, it reiterated, applies only against federal, not state, action. The Fourteenth Amendment, the Court held, did not extend the right to an indictment to persons charged with state crimes. Justice Harlan dissented. [140]

Two year later, in the first major ruling interpreting the guarantees of the Fourth and Fifth Amendments against federal authority, however, the Court read those provisions to give broad protection to the individual. The decision in Boyd v. United States (1886) was a ringing defense of individual privacy against the threat of government invasion. [141] Justice Bradley, for the Court, declared that “constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right.” [142] Later that year, in one of the first successful equal protection cases brought by an individual, the Court held that the equal protection guarantee extended to all persons, not just citizens, and meant that city officials could not deny Chinese applicants the right to operate laundries. [143]

Property Rights

In the 1870s—most notably in the Slaughterhouse and Granger cases—the Court had steadfastly rejected the efforts of businessmen to use the Fourteenth Amendment as a shield against government regulation, but in the 1880s that stance began to weaken. In 1869 the Court had held that corporations were not citizens and so could not invoke the amendment′s privileges and immunities clause. [144] Seventeen years later, in 1886, Chief Justice Waite simply announced—before the Court heard arguments in Santa Clara County v. Southern Pacific Railway—that there was no need for the arguing attorneys to discuss whether corporations were persons under the protection of the amendment′s equal protection clause: the Court had decided they were. [145]

Also in 1886 the Court limited state power over railroad rates. In Wabash, St. Louis and Pacific Railway Co. v. Illinois, the Court held that states could not set rates for railroads that were part of an interstate network without infringing federal power over interstate commerce. [146] This ruling acutely curtailed the power the Court had granted the states just nine years earlier in Munn v. Illinois. Yet in other areas the Court continued to support the exercise of state police power. It upheld state laws regulating intoxicating liquors and colored oleomargarine, refusing to find them in violation of due process or the Commerce Clause. [147]

In 1887 Justice Woods died. President Grover Cleveland filled this “southern seat” with Lucius Quintus Cincinnatus Lamar of Mississippi. Lamar, who was the secretary of the interior when nominated, had also served in the House and in the Senate. He was the first Democrat appointed to the Court in twenty-five years. Although the Republican-dominated Senate Judiciary Committee opposed him, he was confirmed, 32–28.

In March 1888 Chief Justice Waite, died of pneumonia at the age of seventy-two. President Cleveland selected Melville Weston Fuller as the new chief justice. Fuller was a successful Chicago attorney whose clients included several major railroads. He had argued a number of cases before the Court. Nominated in May 1888, he was confirmed in July by a 41–20 vote.

The Court in 1888. Seated from left: Justices Joseph P. Bradley, Samuel F. Miller, Chief Justice Melville W. Fuller, Justices Stephen J. Field, Lucius Q. C. Lamar. Standing from left: Justices Stanley Matthews, Horace Gray, John Marshall Harlan, Samuel Blatchford. (Source: Library of Congress.)

The Supreme Court, by the end of its first century, had become more institutional and less personal in its operations. No longer did the justices live, as well as work, together. That practice had ended soon after the Civil War. After Wallace left the post of reporter in 1875, the volumes of the Court′s decisions were no longer cited by the name of the reporter but by the impersonal “U.S.”


Document Citation
1 David G. Savage, Restoring the States, 1873–1888, in Guide to the U.S. Supreme Court 27-31 (5th ed., 2011),
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