Setting incorporationism straight: A reinterpretation of the slaughter-house cases

Yale Law Journal

Volumn 109, Issue 4, 2000, Pages 643-743

  Newsom, Kevin Christopher ^a  

^a Department of International Practice   (United States)

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[No Author keywords available]

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EID: 0042493053     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797502     Document Type: Article

References (514)

1. Stephen J. Wermiel, Rights in the Modern Era: Applying the Bill of Rights to the States, 1 WM. & MARY BILL RTS. J. 121, 124 (1992).
2. 119 S. Ct. 1518 (1999).
3. This is certainly not to say that the outcome in Saenz was foreordained. As Laurence Tribe recently pointed out, even the result in Saenz is "something of a mystery" in the following sense: In Shapiro v. Thompson, 394 U.S. 618 (1969), it took a "far more liberal Court" two rounds of argument to decide ultimately to invalidate a far more extreme California law - one that outright denied new residents access to welfare benefits during their first year in the state - and, even then, it struck down the statute only by a 6-3 margin. Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future - or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 113 (1999). In Saenz, by contrast, a relatively conservative Court invalidated a less burdensome California program by a comfortable 7-2 vote. See id. at 119.
4. U.S. CONST. amend. XIV, § 1.
5. 296 U.S. 404 (1935).
6. 309 U.S. 83 (1940).
7. Tribe, supra note 3.
8. Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting).
9. Id.
10. Id.
11. 83 U.S. (16 Wall.) 36 (1873).
12. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
13. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
14. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
15. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
16. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
17. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
18. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
19. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
20. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) [hereinafter Amar, The Bill of Rights and the Fourteenth Amendment]; Akhil R. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) [hereinafter Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993). Of course, the giants upon whose shoulders Amar, Curtis, and Aynes stood should not be overlooked. For earlier scholarship suggesting an enhanced role for the Privileges or Immunities Clause, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22-30 (1980); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 7-2 to 7-4, at 415-26, and § 11-2, at 567-69 (1st ed. 1978); William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954); and Philip B. Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 WASH. U. L.Q. 405. Justice Hugo Black's considerable contribution to the cause of incorporation should also be noted. See, e.g., Adamson v. California, 332 U.S. 46, 69-92 & app. (1947) (Black, J., dissenting).
21. See CURTIS, supra note 12, at 91 ("John Bingham, the author of the amendment, and Senator Howard, who managed it for the Joint Committee in the Senate, clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them. . . . Today, the idea that the states should obey the Bill of Rights is controversial. It was not controversial for Republicans in the Thirty-ninth Congress."); Amar, The Bill of Rights and the Fourteenth Amendment, supra note 12, at 1236 ("[James Wilson and John Bingham] understood that the plain meaning of Section One was that henceforth, the federal government would have explicit power to compel state compliance with all the 'privileges' and 'immunities' of 'citizens' set out in the Bill."); Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, supra note 12, at 447 ("John Bingham, who authored Section 1 of the Fourteenth Amendment . . . made it clear that the Amendment would apply the Bill of Rights against the States. . . . All the leading figures in the House and Senate -Jacob Howard, James Wilson, and Thaddeus Stevens, for example - shared similar concerns."); Aynes, supra note 12, at 103 ("[A] fair examination of the evidence reveals that Bingham held a cogent theory and clearly expressed his intent that the Privileges or Immunities Clause of the Fourteenth Amendment include the Bill of Rights.").
22. See DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY, AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 7-6, at 1320-31 (3d ed. 1999); Aynes, supra note 12, at 103; Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996). Recognizing that the Supreme Court has "uniformly deferred for over a century to the interpretation given to the [Privileges or Immunities] Clause in the Slaughter-House Cases" and that, therefore, "the most serious objection to any attempt to restore to the Privileges or Immunities Clause its intended role in protecting individual rights would be advanced under the doctrine of stare decisis," Laurence Tribe has mounted an impressive argument why considerations of stare decisis do not require continued allegiance to Slaughter-House and why the decision therefore ought to be forthrightly overruled. TRIBE, supra, § 7-6, at 1320.
23. See DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY, AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 7-6, at 1320-31 (3d ed. 1999); Aynes, supra note 12, at 103; Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996). Recognizing that the Supreme Court has "uniformly deferred for over a century to the interpretation given to the [Privileges or Immunities] Clause in the Slaughter-House Cases" and that, therefore, "the most serious objection to any attempt to restore to the Privileges or Immunities Clause its intended role in protecting individual rights would be advanced under the doctrine of stare decisis," Laurence Tribe has mounted an impressive argument why considerations of stare decisis do not require continued allegiance to Slaughter-House and why the decision therefore ought to be forthrightly overruled. TRIBE, supra, § 7-6, at 1320.
24. See DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY, AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 7-6, at 1320-31 (3d ed. 1999); Aynes, supra note 12, at 103; Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996). Recognizing that the Supreme Court has "uniformly deferred for over a century to the interpretation given to the [Privileges or Immunities] Clause in the Slaughter-House Cases" and that, therefore, "the most serious objection to any attempt to restore to the Privileges or Immunities Clause its intended role in protecting individual rights would be advanced under the doctrine of stare decisis," Laurence Tribe has mounted an impressive argument why considerations of stare decisis do not require continued allegiance to Slaughter-House and why the decision therefore ought to be forthrightly overruled. TRIBE, supra, § 7-6, at 1320.
25. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
26. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
27. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
28. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
29. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
30. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
31. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
32. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
33. See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) ("The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning."); AMAR, supra note 12, at 176 ("Miller's argument . . . seemed to resist, if not reject, total incorporation of the first eight amendments."); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) ("[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases."); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) ("[T]he privileges and immunities clause [was] . . . rendered a 'practical nullity' by a single decision of the Supreme Court rendered within five years after its ratification."); CURTIS, supra note 12, at 175 ("[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states."); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled "The Undoing of Reconstruction"); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's "opinion in the Slaughter House Cases of 1873 . . . set the pattern of narrow interpretation of the Fourteenth Amendment for a long time"); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) ("Through judicial interpretation, the Court has rendered the Privileges or Immunities Clause a nullity."); Curtis, supra note 14, at 76 ("[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them."); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OF THE UNITED STATES: 1940-1950, at 425, 458 (1953) ("Justice Miller, for a bare majority of the Court, construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution."); Morton J. Horwitz, The Supreme Court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) ("Justice Miller's opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . ."); Kurland, supra note 12, at 408 ("The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end." (citation omitted)); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court "read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy"); J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) ("Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873." (citation omitted)).
34. It is not my purpose in this Article to delineate the precise boundaries of the theory of incorporation contemplated by the Court's opinion in Slaughter-House. Rather, my objective is simply to demonstrate that there is nothing in Slaughter-House that forecloses incorporation of Bill of Rights freedoms through the Privileges or Immunities Clause and that, in fact, Justice Miller's opinion actually provides support for some not insubstantial theory of incorporation. As to scope, for reasons that will become clear in the remainder of the Article, Miller's opinion probably calls for some version of what Akhil Amar has called "refined incorporation" - that is, a theory of incorporation that means both less and more than a jot-for-jot absorption of the first eight amendments. See AMAR, supra note 12, at 218.
35. See ELY, supra note 12, at 196 n.59; TRIBE, supra note 14, § 7-3, at 1307; Amar, The Bill of Rights and the Fourteenth Amendment, supra note 12, at 1258; Robert C. Palmer, The Parameters of Constitutional Reconstruction: Slaughter-House, Cruikshank, and the Fourteenth Amendment, 1984 U. ILL. L. REV. 739, 744-48.
36. Thomas B. McAffee, Constitutional Interpretation - The Uses and Limitations of Original Intent, 12 U. DAYTON L. REV. 275, 282 (1986); see also Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 CHI.-KENT L. REV. 627, 627 (1994) ("'[E]veryone' agrees [that] the Court [in Slaughter-House] incorrectly interpreted the Privileges or Immunities Clause . . . .").
37. Thomas B. McAffee, Constitutional Interpretation - The Uses and Limitations of Original Intent, 12 U. DAYTON L. REV. 275, 282 (1986); see also Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 CHI.-KENT L. REV. 627, 627 (1994) ("'[E]veryone' agrees [that] the Court [in Slaughter-House] incorrectly interpreted the Privileges or Immunities Clause . . . .").
38. Act of Mar. 8, 1869, No. 117, 1869 La. Acts 170.
39. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 59-60 (1873).
40. Slaughter-House Cases, 21 L. Ed. 395, 395 (1873) (argument of John A. Campbell on behalf of plaintiffs).
41. See id. at 396-99. The butchers also argued that the monopoly created an involuntary servitude in violation of the Thirteenth Amendment and infringed their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See id. at 396-97. The Court's analysis, however, focused almost exclusively on the interpretation of the Privileges or Immunities Clause. See infra note 27.
42. Slaughter-House, 83 U.S. (16 Wall.) at 68.
43. In addition to the Fourteenth Amendment, ratified in 1868, were the Thirteenth Amendment, ratified in 1865, see U.S. CONST, amend. XIII ("Neither slavery nor involuntary servitude, except as a punishment for a crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."), and the Fifteenth Amendment, ratified in 1870, see U.S. CONST. amend. XV ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.").
44. Slaughter-House, 83 U.S. (16 Wall.) at 71; see also id. at 67 ("The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning.").
45. See id. at 72 ("We do not say that no one else but the negro can share in [the] protection [of the Reconstruction Amendments].").
46. Miller dismissed both the due process and the equal protection arguments with little more than a wave of the hand. He observed that "[t]he argument ha[d] not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law." Id. at 80. As to the Due Process Clause, he simply stated, without elaboration, that under no construction of that provision 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. Id. at 81. Turning to the Equal Protection Clause - seemingly the most natural provision under which to attack a state statute that explicitly, and perhaps arbitrarily, discriminated between state citizens - Justice Miller held that "[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 this provision." Id. 28. U.S. CONST, amend. XIV, § 1.
47. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (holding, inter alia, that blacks were not, and could not constitutionally become, citizens of the United States).
48. Slaughter-House, 83 U.S. (16 Wall.) at 73.
49. Id. at 74.
50. Id. at 75 (quoting U.S. CONST, art. IV, § 2, cl. 1). It is important to note that there are two clauses in the Constitution that purport to protect "privileges" and "immunities." The first, found in Article IV, Section 2 and directly at issue in Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230), is the Privileges and Immunities Clause; and the second, found in Section 1 of the Fourteenth Amendment and more directly at issue in this Article, is the Privileges or Immunities Clause. The confusion is compounded by the fact that many commentators refer inaccurately to the Fourteenth Amendment provision as the "Privileges and Immunities Clause."
51. 6 F. Cas. 546.
52. Slaughter-House, 83 U.S. (16 Wall.) at 76 (quoting Corfield, 6 F. Cas. at 551-52).
53. Id. 36. Id. (emphasis added).
54. See, e.g., Aynes, supra note 12, at 98 n.265. Interestingly, there exists persuasive evidence that a number of influential Republican members of the Thirty-Ninth Congress involved in framing the Fourteenth Amendment subscribed to this national-rights reading of the original Privileges and Immunities Clause of Article IV. See id. at 69-70 (arguing that John Bingham subscribed to this view); see also CURTIS, supra note 12, at 42-48, 60-68 (indicating that
55. See Slaughter-House, 83 U.S. (16 Wall.) at 117 (Bradley, J., dissenting) ("It is pertinent to observe that both the clause of the Constitution referred to, and Justice Washington in his comment on it, speak of the privileges and immunities of citizens in a State; not of citizens of a state.").
56. LOUIS LUSKY, BY WHAT RIGHT? A COMMENTARY ON THE SUPREME COURT'S POWER TO REVISE THE CONSTITUTION 194 (1975); see also Aynes, supra note 18, at 644 ("Miller's textual argument, distinguishing between the rights of national citizens and the rights of state citizens, was based upon his deliberate misquotation of Article IV and of the Corfield case.").
57. Slaughter-House, 83 U.S. (16 Wall.) at 76.
58. Id. at 77.
59. Id. at 78.
60. Id. at 78-79.
61. Id. at 79.
62. Id. (quoting Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 44 (1868) (internal quotation marks omitted)).
63. Id. at 79-80.
64. Id. at 80.
65. See Live-Stock Dealers' & Butchers' Ass'n v. Crescent City Live-Stock Landing & Slaughter-House Co., 15 F. Cas. 649, 652 (C.C.D. La. 1870) (No. 8408) ("But so far as relates to the question in hand, we may safely say it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit - not injurious to the community - as he may see fit . . . .").
66. Slaughter-House, 83 U.S. (16 Wall.) at 118 (Bradley, J., dissenting).
67. Id. at 118-19.
68. See id. at 101-08 (Field, J., dissenting). Justice Field penned the principal Slaughter-House dissent, in which Justices Bradley and Swayne, and Chief Justice Chase concurred.
69. Id. at 93.
70. Id. at 96.
71. See, e.g., David S. Bogen, The Transformation of the Fourteenth Amendment: Reflections from the Admission of Maryland's First Black Lawyers, 44 MD. L. REV. 939, 1025 (1985); Thomas K. Landry, Unenumerated Federal Rights: Avenues for Application Against the States, 44 FLA. L. REV. 219, 223 n.12 (1992); Walter F. Murphy, Slaughter-House, Civil Rights, and Limits on Constitutional Change, 32 AM. J. JURIS. 1, 8 (1987).
72. See, e.g., David S. Bogen, The Transformation of the Fourteenth Amendment: Reflections from the Admission of Maryland's First Black Lawyers, 44 MD. L. REV. 939, 1025 (1985); Thomas K. Landry, Unenumerated Federal Rights: Avenues for Application Against the States, 44 FLA. L. REV. 219, 223 n.12 (1992); Walter F. Murphy, Slaughter-House, Civil Rights, and Limits on Constitutional Change, 32 AM. J. JURIS. 1, 8 (1987).
73. See, e.g., David S. Bogen, The Transformation of the Fourteenth Amendment: Reflections from the Admission of Maryland's First Black Lawyers, 44 MD. L. REV. 939, 1025 (1985); Thomas K. Landry, Unenumerated Federal Rights: Avenues for Application Against the States, 44 FLA. L. REV. 219, 223 n.12 (1992); Walter F. Murphy, Slaughter-House, Civil Rights, and Limits on Constitutional Change, 32 AM. J. JURIS. 1, 8 (1987).
74. Slaughter-House, 83 U.S. (16 Wall.) at 129 (Swayne, J., dissenting).
75. Id. at 76.
76. 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1119 (1953).
77. ELY, supra note 12, at 18 ("Familiarity breeds inattention, and we apparently need periodic reminding that 'substantive due process' is a contradiction in terms - sort of like 'green pastel redness.'").
78. GERALD GUNTHER, CONSTITUTIONAL LAW 410 (12th ed. 1991).
79. Campbell had resigned from the Court when his home state of Alabama seceded from the Union. See William Gillette, John A. Campbell, in 2 THE JUSTICES OF THE UNITED STATES SUPREME COURT, 1789-1969: THEIR LIVES AND MAJOR OPINIONS 927, 936 (Leon Friedman & Fred L. Israel eds., 1969).
80. Brief for Plaintiffs, Slaughter-House (Nos. 475-480), reprinted in 6 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 535, 537-38 (Philip B. Kurland & Gerhard Casper eds., 1975) [hereinafter LANDMARK BRIEFS].
81. Id. at 559.
82. Interestingly, there were attempts to include an anti-monopoly provision in the Bill of Rights; however, those efforts failed. See WILLIAM LETWIN, LAW AND ECONOMIC POLICY IN AMERICA: THE EVOLUTION OF THE SHERMAN ANTITRUST ACT 59-60 (1965) (describing the unsuccessful efforts of the New York, Massachusetts, New Hampshire, and Rhode Island representatives).
83. Plaintiffs' Oral Argument, Slaughter-House (Nos. 475-480) (Feb. 3-4, 1873), in 6 LANDMARK BRIEFS, supra note 61, at 733, 757.
84. Id. 66. Id. at 758.
85. Brief for Plaintiffs, supra note 61, at 546-47, 557, 575; Plaintiffs' Brief upon the Reargument, Slaughter-House (Nos. 475-480), reprinted in 6 LANDMARK BRIEFS, supra note 61, at 639, 649, 661.
86. BLACK'S LAW DICTIONARY 226 (2d ed. 1910) (emphasis added).
87. Spring Valley Water Works v. Schottler, 62 Cal. 69, 107 (1882) (citing SIR EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 142a (1628)).
88. Plaintiffs' Brief upon the Re-argument, supra note 67, at 660 (emphasis added).
89. 77 Eng. Rep. 1260 (Q.B. 1602).
90. Plaintiffs' Brief upon the Re-argument, supra note 67, at 661.
91. Brief for Plaintiffs, supra note 61, at 560.
92. Id. at 541.
93. Id. at 547 (emphasis omitted).
94. Id. at 571.
95. Plaintiffs' Brief upon the Re-argument, supra note 67, at 659.
96. Id. at 665 (emphasis added).
97. Id. at 683.
98. Brief for Plaintiffs, supra note 61, at 552 (emphasis added).
99. Charles Fairman, Samuel F. Miller. Justice of the Supreme Court, 1862-1890, 10 VAND. L. REV. 193, 198 (1957).
100. CHARLES FAIRMAN, RECONSTRUCTION AND REUNION, 1864-88, at 1345 (Vol. VI of Oliver Wendell Holmes Devise History of the Supreme Court (Paul A. Freund ed.)).
101. CHARLES FAIRMAN, MR. JUSTICE MILLER AND THE SUPREME COURT, 1862-1890, at 181 (1939); see also FAIRMAN, supra note 82, at 1319 ("[Campbell's] effort made the Amendment seem from the start to face toward economic liberty, 'laissez faire.'").
102. See Brief for Defendants, Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) (Nos. 475-480), reprinted in 6 LANDMARK BRIEFS, supra note 61, at 731.
103. Id. at 722.
104. Id.
105. Id. at 723 (emphasis added).
106. Id. at 731.
107. Slaughter-House, 83 U.S. (16 Wall.) at 111 (Field, J., dissenting).
108. Id. at 96 (quoting Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27).
109. The Civil Rights Act provided that all United States citizens "shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by while citizens." Civil Rights Act of 1866 § 1 (emphasis added).
110. Slaughter-House, 83 U.S. (16 Wall.) at 89, 93, 97, 105 (Field, J., dissenting).
111. See id. at 106-09 (citing Norwich Gaslight Co. v. Norwich City Gas Co., 25 Conn. 19 (1856); City of Chicago v. Rumpff, 45 Ill. 90 (1867); Mayor of Hudson v. Thome, 7 Paige Ch. 261 (N.Y. Ch. 1838)).
112. Id. at 101-02.
113. Id. at 105-06.
114. Cf. FAIRMAN, supra note 82, at 1387 ("The 'liberty' and 'property' secured by the Fourteenth Amendment, as the Court came to give them content, were self-regarding rights, serving the individual's material prosperity. Bradley's conception of the privileges of citizenship embraced rights of a more humane order, according to the citizen an effective participation as a member of the national community.").
115. Slaughter-House, 83 U.S. (16 Wall.) at 118-19 (Bradley, J., dissenting) (emphasis omitted).
116. Id. at 119.
117. Id.
118. Wilkinson, supra note 15, at 46.
119. THE OXFORD COMPANION TO THE SUPREME COURT 686 (Kermit L. Hall ed., 1992) [hereinafter OXFORD COMPANION].
120. 198 U.S. 45 (1905).
121. Kurland, supra note 12, at 414; see also Wilkinson, supra note 15, at 49 ("What could not be accomplished through the Privileges or Immunities Clause was soon achieved through the Due Process Clauses of the Fifth and Fourteenth Amendments in the line of cases exemplified by Lochner.").
122. 165 U.S. 578 (1897).
123. Id. at 589.
124. Both Lochner and the brand of constitutional thinking it has come to represent were repudiated by the Supreme Court in 1937. See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For more on the relevance of Lochner, see infra text accompanying notes 478-481.
125. LUSKY, supra note 39, at 199.
126. FAIRMAN, supra note 82, at 1354.
127. Wermiel, supra note 1, at 124 (emphasis added).
128. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 61 (1873).
129. The first part of Justice Miller's opinion spans roughly pages 67-72.
130. Slaughter-House, 83 U.S. (16 Wall.) at 68.
131. Id. at 71.
132. The second part spans pages 72-79.
133. The third part spans pages 79-80.
134. Slaughter-House, 83 U.S. (16 Wall.) at 73.
135. Id. at 74.
136. Id.
137. Id. 120. Id. at 75.
138. Id.
139. Id.
140. U.S. CONST. art. IV, § 2.
141. 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230); see also supra text accompanying notes 33-37 (discussing the emphasis placed by Miller on Corfield). 125. Slaughter-House, 83 U.S. at 75-76 (quoting Corfield, 6 F. Cas. at 551-52).
142. Id. at 76.
143. Id. (emphasis added).
144. Id. at 77.
145. Id.
146. BLACK'S LAW DICTIONARY 246 (6th ed. 1990); see also TRIBE, supra note 14, § 7-2, at 1299-1300 (counting among "civil rights" those rights "enumerated in the federal Bill of Rights").
147. HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA 109 (1978).
148. Id. 136. Id.; see also id. (reporting that civil rights were "largely economic in character").
149. HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW, 1836-1937, at 94 (1991) (footnote omitted).
150. Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 STAN. L. REV. 379, 395 (1988) (footnote omitted).
151. FAIRMAN, supra note 82, at 1352-53.
152. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27.
153. Earl Maltz, Reconstruction Without Revolution: Republican Civil Rights Theory in the Era of the Fourteenth Amendment. 24 HOUS. L. REV. 221, 250 (1987).
154. Id. (footnote omitted). For a detailed historical explanation of the right to government protection, see Earl A. Maltz, The Concept of Equal Protection of the Laws - A Historical Inquiry, 22 SAN DlEGO L. REV. 499, 507-10 (1985), and Maltz, supra note 141, at 250 (suggesting that the right to government protection was included in the Civil Rights Act of 1866).
155. Maltz, supra note 141, at 250.
156. Id.
157. CONG. GLOBE, 39th Cong., 1st Sess. 477 (1866) (emphasis added).
158. Id. at 476.
159. BELZ, supra note 134, at 109.
160. NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 234 (Chauncey A. Goodrich & Noah Porter eds., Springfield, Mass., G. & C. Merriam, 1870) (emphasis on "city or state" added); see also WILLIAM C. COCHRAN, THE STUDENTS' LAW LEXICON 58 (Cincinnati, Robert Clarke & Co., 1888) (defining "civil" to mean "pertaining to a city or state"); JOHN OGILVIE, THE IMPERIAL DICTIONARY OF THE ENGLISH LANGUAGE 480 (Charles Annandale ed., London, Century Co. 1883) (defining "civil" as "[r]elating to the community, or to the policy and government of the citizens and subjects of a state . . .; as in the phrase[] civil rights"); CHARLES RICHARDSON, A NEW DICTIONARY OF THE ENGLISH LANGUAGE 321 (London, William Pickering 1836) (defining "civil" to mean "[o]f, or belonging, or pertaining to a city, or state; to the policy or government of a city or state"). Justice Miller was assuredly aware of this ordinary meaning when he used the term "civil rights." He was fond of invoking dictionary definitions in support of his opinions. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884); United States v. Germaine, 99 U.S. 508, 510 (1878); Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 664 (1874). He used language precisely and urged others to do likewise. In an address he delivered in 1879 to the Iowa State Bar Association, Justice Miller said that "[n]o lawyer's office should be without an unabridged Webster or Worcester dictionary, as well as a good law lexicon." Justice Samuel Miller, Address Before the Iowa State Bar Association (May 13, 1879), in 20 ALB. L.J. 25, 28 (1879).
161. NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 234 (Chauncey A. Goodrich & Noah Porter eds., Springfield, Mass., G. & C. Merriam, 1870) (emphasis on "city or state" added); see also WILLIAM C. COCHRAN, THE STUDENTS' LAW LEXICON 58 (Cincinnati, Robert Clarke & Co., 1888) (defining "civil" to mean "pertaining to a city or state"); JOHN OGILVIE, THE IMPERIAL DICTIONARY OF THE ENGLISH LANGUAGE 480 (Charles Annandale ed., London, Century Co. 1883) (defining "civil" as "[r]elating to the community, or to the policy and government of the citizens and subjects of a state . . .; as in the phrase[] civil rights"); CHARLES RICHARDSON, A NEW DICTIONARY OF THE ENGLISH LANGUAGE 321 (London, William Pickering 1836) (defining "civil" to mean "[o]f, or belonging, or pertaining to a city, or state; to the policy or government of a city or state"). Justice Miller was assuredly aware of this ordinary meaning when he used the term "civil rights." He was fond of invoking dictionary definitions in support of his opinions. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884); United States v. Germaine, 99 U.S. 508, 510 (1878); Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 664 (1874). He used language precisely and urged others to do likewise. In an address he delivered in 1879 to the Iowa State Bar Association, Justice Miller said that "[n]o lawyer's office should be without an unabridged Webster or Worcester dictionary, as well as a good law lexicon." Justice Samuel Miller, Address Before the Iowa State Bar Association (May 13, 1879), in 20 ALB. L.J. 25, 28 (1879).
162. NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 234 (Chauncey A. Goodrich & Noah Porter eds., Springfield, Mass., G. & C. Merriam, 1870) (emphasis on "city or state" added); see also WILLIAM C. COCHRAN, THE STUDENTS' LAW LEXICON 58 (Cincinnati, Robert Clarke & Co., 1888) (defining "civil" to mean "pertaining to a city or state"); JOHN OGILVIE, THE IMPERIAL DICTIONARY OF THE ENGLISH LANGUAGE 480 (Charles Annandale ed., London, Century Co. 1883) (defining "civil" as "[r]elating to the community, or to the policy and government of the citizens and subjects of a state . . .; as in the phrase[] civil rights"); CHARLES RICHARDSON, A NEW DICTIONARY OF THE ENGLISH LANGUAGE 321 (London, William Pickering 1836) (defining "civil" to mean "[o]f, or belonging, or pertaining to a city, or state; to the policy or government of a city or state"). Justice Miller was assuredly aware of this ordinary meaning when he used the term "civil rights." He was fond of invoking dictionary definitions in support of his opinions. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884); United States v. Germaine, 99 U.S. 508, 510 (1878); Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 664 (1874). He used language precisely and urged others to do likewise. In an address he delivered in 1879 to the Iowa State Bar Association, Justice Miller said that "[n]o lawyer's office should be without an unabridged Webster or Worcester dictionary, as well as a good law lexicon." Justice Samuel Miller, Address Before the Iowa State Bar Association (May 13, 1879), in 20 ALB. L.J. 25, 28 (1879).
163. NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 234 (Chauncey A. Goodrich & Noah Porter eds., Springfield, Mass., G. & C. Merriam, 1870) (emphasis on "city or state" added); see also WILLIAM C. COCHRAN, THE STUDENTS' LAW LEXICON 58 (Cincinnati, Robert Clarke & Co., 1888) (defining "civil" to mean "pertaining to a city or state"); JOHN OGILVIE, THE IMPERIAL DICTIONARY OF THE ENGLISH LANGUAGE 480 (Charles Annandale ed., London, Century Co. 1883) (defining "civil" as "[r]elating to the community, or to the policy and government of the citizens and subjects of a state . . .; as in the phrase[] civil rights"); CHARLES RICHARDSON, A NEW DICTIONARY OF THE ENGLISH LANGUAGE 321 (London, William Pickering 1836) (defining "civil" to mean "[o]f, or belonging, or pertaining to a city, or state; to the policy or government of a city or state"). Justice Miller was assuredly aware of this ordinary meaning when he used the term "civil rights." He was fond of invoking dictionary definitions in support of his opinions. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884); United States v. Germaine, 99 U.S. 508, 510 (1878); Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 664 (1874). He used language precisely and urged others to do likewise. In an address he delivered in 1879 to the Iowa State Bar Association, Justice Miller said that "[n]o lawyer's office should be without an unabridged Webster or Worcester dictionary, as well as a good law lexicon." Justice Samuel Miller, Address Before the Iowa State Bar Association (May 13, 1879), in 20 ALB. L.J. 25, 28 (1879).
164. NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 234 (Chauncey A. Goodrich & Noah Porter eds., Springfield, Mass., G. & C. Merriam, 1870) (emphasis on "city or state" added); see also WILLIAM C. COCHRAN, THE STUDENTS' LAW LEXICON 58 (Cincinnati, Robert Clarke & Co., 1888) (defining "civil" to mean "pertaining to a city or state"); JOHN OGILVIE, THE IMPERIAL DICTIONARY OF THE ENGLISH LANGUAGE 480 (Charles Annandale ed., London, Century Co. 1883) (defining "civil" as "[r]elating to the community, or to the policy and government of the citizens and subjects of a state . . .; as in the phrase[] civil rights"); CHARLES RICHARDSON, A NEW DICTIONARY OF THE ENGLISH LANGUAGE 321 (London, William Pickering 1836) (defining "civil" to mean "[o]f, or belonging, or pertaining to a city, or state; to the policy or government of a city or state"). Justice Miller was assuredly aware of this ordinary meaning when he used the term "civil rights." He was fond of invoking dictionary definitions in support of his opinions. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884); United States v. Germaine, 99 U.S. 508, 510 (1878); Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 664 (1874). He used language precisely and urged others to do likewise. In an address he delivered in 1879 to the Iowa State Bar Association, Justice Miller said that "[n]o lawyer's office should be without an unabridged Webster or Worcester dictionary, as well as a good law lexicon." Justice Samuel Miller, Address Before the Iowa State Bar Association (May 13, 1879), in 20 ALB. L.J. 25, 28 (1879).
165. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 76 (1873) (emphasis added).
166. Id. at 77 (emphasis added).
167. Id. at 76 (quoting Corfield v. Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823) (No. 3230)).
168. Id. at 76 (quoting Corfield, 6 F. Cas. at 551-52).
169. Corfield, 6 P. Cas. at 551.
170. See supra notes 133-150 and accompanying text.
171. Slaughter-House, 83 U.S. (16 Wall.) at 77 (emphasis added).
172. Id. at 78-79.
173. Id. at 78.
174. Id. at 79.
175. Id. Justice Miller proposed a similar definition in his famous, posthumously published Lectures on the Constitution of the United States: The privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the States, are, indeed, protected by this amendment; but those are privileges and immunities arising out of the nature and essential character of the National Government, and granted or secured by the Constitution of the United States. SAMUEL FREEMAN MILLER, LECTURHS ON THE CONSTITUTION OF THE UNITED STATES 663 (New York, Banks & Bros. 1891).
176. Black's, for instance, defines "constitutional freedom" as a "[g]eneric term to describe the basic freedoms guaranteed by the Constitution such as the First Amendment freedoms of religion, speech, press and assembly together with protection under due process clause of the 14th Amendment." The definition of "constitutional freedom" also cross-references the definition of "Bill of Rights." BLACK'S LAW DICTTONARY, supra note 133, at 311.
177. Slaughter-House, 83 U.S. (16 Wall.) at 67 (emphasis added); see also id. at 82 (referring to "the first eleven amendments to the Constitution" as being adopted "so soon after the original instrument was accepted").
178. Id. at 80.
179. MILLER, supra note 159, at 72.
180. Id. (emphasis added).
181. Id. at 91-92 (emphasis added) (footnotes omitted).
182. Justice Samuel F. Miller, The Formation of the Constitution, Address at the Ceremonies of "Memorial Day" in Independence Square, Philadelphia (Sept. 17, 1887), in CHARLES NOBLE GREGORY, SAMUEL FREEMAN MILLER app. a at 98 (1907) (emphasis added).
183. Slaughter-House, 83 U.S. (16 Wall.) at 79.
184. Id. at 79-80 (quoting Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 44 (1868)).
185. Id. at 79.
186. Id. at 80.
187. Id. at 79.
188. Id.
189. Id. at 67; see also id. at 82 (referring to "the first eleven amendments to the Constitution" as being adopted "so soon after the original instrument was accepted").
190. Id. at 79.
191. Id.
192. U.S. CONST, amend. I. Richard Aynes has suggested that when Justice Miller referred to the right of assembly and petition, he was invoking a "structural" right of assembly, not the First Amendment right. Aynes, supra note 18, at 654. Miller's explicit insistence that the right to which he referred was "guaranteed by the Federal Constitution," however, undermines Aynes's argument. Remember, Miller laid out three distinct categories of federal privileges and immunities: those that arose from the federal government's "national character," those that arose from its "Constitution," and those that arose from its "laws." In no uncertain terms, Justice Miller placed the rights of assembly and petition among those that arose from the "Constitution," which, as I have shown, Miller understood to include the Bill of Rights.
193. Slaughter-house, 83 U.S. (16 Wall.) at 79.
194. AMAR, supra note 12, at 175. On the "incorporation" of the privilege of the writ of habeas corpus more generally, see Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners.?, 92 MICH. L. REV. 862 (1994).
195. Aynes, supra note 18, at 654.
196. See Slaughter-House, 83 U.S. (16 Wall.) at 118-19 (Bradley, J., dissenting); see also supra text accompanying notes 96-99.
197. Slaughter-House, 83 U.S. (16 Wall.) at 118 (Bradley, J., dissenting) (emphases added and omitted). Interestingly, although it mentions only six of the more than 25 rights catalogued in the first eight amendments, no one criticizes Justice Bradley's list as being too incomplete to support the inference that he was referring generally to the Bill of Rights.
198. Id. at 79.
199. Id. at 80.
200. Letter from Samuel F. Miller (July 1, 1874), in FAIRMAN, supra note 83, at 415.
201. 85 U.S. (18 Wall.) 129 (1874).
202. Id. at 134 (emphasis added).
203. Horace Stern, Samuel Freeman Miller, in 6 GREAT AMERICAN LAWYERS 539, 560-61 (William Draper Lewis ed., 1909) (emphasis added).
204. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873).
205. Stern, supra note 188, at 561.
206. Charles R. Pence, The Construction of the Fourteenth Amendment, 25 AM. L. REV. 536, 548 (1891).
207. Slaughter-House, 83 U.S. (16 Wall.) at 79.
208. Id. at 71. See generally TRIBE, supra note 14, § 7-3, at 1309 (puzzling over the relationship between Justice Miller's construction of the Privileges or Immunities Clause and "his understanding of the function of the Fourteenth Amendment, the protection of the newly freed slaves").
209. Slaughter-House, 83 U.S. (16 Wall.) at 72.
210. Id. 196. See discussion supra Subsection III.B.2.b.
211. Slaughter-House, 83 U.S. (16 Wall.) at 79.
212. Id. at 96 (Field, J., dissenting) (quoting Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27).
213. Justice Bradley had suggested a similar interpretation in his opinion for the butchers in the circuit court. See Live-Stock Dealers' & Butchers' Ass'n v. Crescent City Live-Stock Landing & Slaughter-House Co., 15 F. Cas. 649, 655 (C.C.D. La. 1870) (No. 8408) ("[T]he first section of the [Civil Rights Act] covers the same ground as the fourteenth amendment." ).
214. Civil Rights Act of 1866, § 1.
215. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 1151-55 (1866) (statement of Rep. Thayer); id. at 1293-94 (statement of Rep. Shellabarger); id. at 1837 (statement of Rep. Lawrence). See generally WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 114-17 (1988) (cataloguing statements of legislators).
216. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 1151-55 (1866) (statement of Rep. Thayer); id. at 1293-94 (statement of Rep. Shellabarger); id. at 1837 (statement of Rep. Lawrence). See generally WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 114-17 (1988) (cataloguing statements of legislators).
217. 100 U.S. 339 (1879).
218. Id. at 344-45 (emphasis added); see also The Civil Rights Cases, 109 U.S. 3, 48 (1883) (Harlan, J., dissenting) ("Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State.").
219. In addition to what I believe are its other virtues, my reading of Justice Miller's opinion serves to bridge a gap of sorts between Fourteenth Amendment scholars. One group, led by Raoul Berger, argues that the primary purpose of the Privileges or Immunities Clause was to "constitutionalize" the Civil Rights Act of 1866. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 20-51 (1977). Another group, led by Akhil Amar and Michael Kent Curtis, argues that the primary purpose of the Clause was to incorporate the Bill of Rights. See, e.g., CURTIS, supra note 12; Amar, The Bill of Rights and the Fourteenth Amendment, supra note 12. In fact, according to Justice Miller, the Fourteenth Amendment accomplished both purposes. It clothed Bill of Rights freedoms with absolute protection against state interference and guaranteed equality in "civil rights" between whites and blacks, as had the Civil Rights Act.
220. Slaughter-House, 83 U.S. (16 Wall.) at 71.
221. Id. at 76.
222. Id. at 79.
223. AMAR, supra note 12, at 305.
224. Slaughter-House, 83 U.S. (16 Wall.) at 82.
225. FAIRMAN, supra note 83, at 185.
226. HOWARD JAY GRAHAM, EVERYMAN'S CONSTITUTION 134 (1968); see also Charles Fairman, Justice Samuel F. Miller, 50 POL. SCI. Q. 15, 22 (1935) ("No one upheld the authority of the nation more . . . than [Miller].").
227. HOWARD JAY GRAHAM, EVERYMAN'S CONSTITUTION 134 (1968); see also Charles Fairman, Justice Samuel F. Miller, 50 POL. SCI. Q. 15, 22 (1935) ("No one upheld the authority of the nation more . . . than [Miller].").
228. GREGORY, supra note 166, at 20.
229. Id. at 28; see also id. at 29 ("Justice Miller. . . held the field against all comers for the doctrine that the Federal government should be maintained in vigor and efficiency, but that the State government should neither perish nor sink into insignificance.").
230. Id at 29.
231. PROCEEDINGS OF THE BENCH AND BAR OF THE SUPREME COURT OF THE UNITED STATES, IN MEMORIAM SAMUEL F. MILLER 34 (Washington, D.C., Government Printing Office 1891) (remarks of Attorney General Miller).
232. MILLER, supra note 159, at 93.
233. Miller, supra note 166, at 111.
234. Id.; see also TRIBE, supra note 14, §§ 7-3 to 7-4, at 1309-12 (describing Justice Miller's desire to "safeguard the autonomy of the federal and state governments within their respective spheres of power"). In walking this fine line between "nationalism" and "federalism," Justice Miller was simply following in the footsteps of the Framers of the Fourteenth Amendment (of which more is said in the next Part). See generally Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 SUP. CT. REV. 39, 47 ("Even as they set precedents for modern nationalism . . . Republicans could not shake off their commitment to older notions of federalism."). Although Congressman John Bingham, the principal draftsman of Section 1 of the Fourteenth Amendment, clearly envisioned that the Privileges or Immunities Clause would incorporate Bill of Rights freedoms against state governments, see infra text accompanying notes 259-271, he certainly was no radical. Michael Kent Curtis has classified Bingham as "centrist" and even "conservative." CURTIS, supra note 12, at 59 (referring to
235. MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE 350, 354 (1974)). In fact, immediately following his declaration on the floor of Congress that "the privileges and immunities of citizens of the United States . . . are chiefly defined in the first eight amendments to the Constitution of the United States," Bingham emphasized that "our dual system of government" - that is, our federalist system of government-is "essential to our national existence."
236. CONG. GLOBE, 42d Cong., 1st Sess. 84 app. (1871) (remarks of Rep. Bingham).
237. 87 U.S. (20 Wall.) 590 (1875).
238. Judiciary Act of 1867, ch. 28, § 2, 14 Stat. 385, 386 (enumeration added) (current version at 28 U.S.C. § 1257 (1994)).
239. Murdock, 87 U.S. (20 Wall.) at 615 (argument of John A. Campbell on behalf of plaintiffs).
240. See id. at 638-42.
241. Id. at 626.
242. Id.
243. Id. at 630 (emphasis added).
244. Interestingly, Slaughter-House and Murdoch were related temporally as well as conceptually. As Charles Fairman observed: Slaughter House and Murdock . . . kept company on the [Supreme Court's] docket. The latter had been filed a year after the former, and the first arguments had maintained that separation. But then the reargument of Slaughter House came on February 3 to 5, 1873, and that of Murdock only two months later. The decision in Slaughter House was announced on April 14, just when the long cogitation over Murdock began. CHARLES FAIRMAN, RECONSTRUCTION AND REUNION: 1864-88, at 410 (Vol. VII of Oliver Wendell Holmes Devise History of the Supreme Court (Paul A. Freund & Stanley N. Katz eds.)).
245. GREGORY, supra note 166, at 28.
246. 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 547 (rev. ed. 1926) (emphasis added).
247. MILLER, supra note 159, at 100.
248. GRAHAM, supra note 211, at 296.
249. See Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment, 70 CHI.-KENT L. REV. 1197, 1201 (1995) (noting that Miller's "opinions may have been among those upon which Thayer built his theory of judicial restraint"); G. Edward White, Revisiting James Bradley Thayer, 88 Nw. U. L. REV. 48, 54 (1993) ($Thayer's 'rule of administration' had been articulated by Justice Samuel Miller . . . .").
250. See Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment, 70 CHI.-KENT L. REV. 1197, 1201 (1995) (noting that Miller's "opinions may have been among those upon which Thayer built his theory of judicial restraint"); G. Edward White, Revisiting James Bradley Thayer, 88 Nw. U. L. REV. 48, 54 (1993) ($Thayer's 'rule of administration' had been articulated by Justice Samuel Miller . . . .").
251. See Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment, 70 CHI.-KENT L. REV. 1197, 1201 (1995) (noting that Miller's "opinions may have been among those upon which Thayer built his theory of judicial restraint"); G. Edward White, Revisiting James Bradley Thayer, 88 Nw. U. L. REV. 48, 54 (1993) ($Thayer's 'rule of administration' had been articulated by Justice Samuel Miller . . . .").
252. FAIRMAN, supra note 83, at 209.
253. Fairman, supra note 81, at 201.
254. FAIRMAN, supra note 83, at 67-68.
255. Ex parte Garland, 71 U.S. (4 Wall.) 333, 399 (1866) (Miller, J., dissenting) (emphasis added).
256. 96 U.S. 97 (1877).
257. Id. at 104.
258. 75 U.S. (8 Wall.) 603 (1869).
259. Id. at 637 (Miller, J., dissenting).
260. Id. at 638.
261. 17 U.S. (4 Wheat.) 316 (1819).
262. Hepburn, 75 U.S. (8 Wall.) at 639 (quoting McCulloch, 17 U.S. (4 Wheat.) at 423) (internal quotation marks omitted). To be sure, Miller on occasion departed from his typical "positivist[ic]" approach to judicial review. See Charles Fairman, Justice Samuel F. Miller, 50 POL. SCI. Q. 15, 28 (1935). Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655 (1875), is the most often cited example of such a departure. See id. at 663 (invalidating a Kansas law levying taxes on individuals for non-public purposes and observing that "[t]here are limitations on [government] power which grow out of the essential nature of all free governments"). In Miller's case, however, Loan Ass'n is truly the exception that proves the rule.
263. PROCEEDINGS OF THE BENCH AND BAR OF THE SUPREME COURT OF THE UNITED STATES, IN MEMORIAM SAMUEL F. MILLER, supra note 215, at 82 (written comments of William A. Maury).
264. Id. at 35 (remarks of Attorney General Miller).
265. D.O. McGovney, Privileges or Immunities Clause - Fourteenth Amendment, 4 IOWA L. BULL. 219, 223 (1918) (emphasis added).
266. Brief for Plaintiffs, supra note 61, at 571.
267. PAUL KENS, JUSTICE STEPHEN FIELD: SHAPING LIBERTY FROM THE GOLD RUSH TO THE GlLDED AGE 125 (1997).
268. GRAHAM, supra note 211, at 134.
269. 121 U.S. 1 (1887).
270. Id. at 12. Interestingly, Justice Hugo Black approvingly quoted this very language in his dissenting opinion in Adamson v. California, 332 U.S. 46, 72 (1947) (Black, J., dissenting), in which he conducted a thorough investigation of the events surrounding the adoption of the Fourteenth Amendment and concluded that "one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights[] applicable to the states." Id. at 71-72.
271. MILLER, supra note 159, at 100 (emphasis added); see also id. at 82 ("A very useful key to the construction of a statute or a constitution is to inquire what was the evil to be removed, and what remedy did the new instrument propose; so that when any question arises requiring a judicial construction of any of its clauses, it is important to go back and ascertain the evil that was intended to be remedied.").
272. See, e.g., TRIBE, supra note 14, §§ 7-1 to 7-2, at 1293-1302.
273. See, e.g., AMAR, supra note 12; Amar, The Bill of Rights and the Fourteenth Amendment, supra note 12; Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, supra note 12.
274. See, e.g., CURTIS, supra note 12.
275. 255: See, e.g., Aynes, supra note 12.
276. CONG. GLOBE, 39th Cong., 1st Sess. 2459 (1866).
277. Id. at 2765.
278. See id. 259. 32 U.S. (7 Pet.) 243 (1833).
279. 32 U.S. (7 Pet.) 469 (1833).
280. CONG. GLOBE, 39th Cong., 1st Sess. 1089 (1866).
281. Id. at 1090 (quoting Barron, 32 U.S. (7 Pet.) at 247).
282. Id. (quoting Livingston. 32 U.S. (7 Pet.) at 551).
283. Id. at 1088.
284. See AMAR, supra note 12, at 182.
285. CONG. GLOBE, 42d Cong., 1st Sess. 84 app. (1871).
286. Id. (emphasis added).
287. Id.
288. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5, 26 (1949).
289. Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, supra note 12, at 447; see also CURTIS, supra note 12, at 112 ("I have found over thirty examples of statements by Republicans during the Thirty-eighth and Thirty-ninth Congresses indicating that they believed that at least some Bill of Rights liberties limited the states.").
290. CURTIS, supra note 12, at 91; see also AMAR, supra note 12, at 187 ("[N]ot a single person in either house spoke up to deny [Bingham and Howard's] interpretation of section I. Surely, if the words of section I meant something different, this was the time to stand up and say so."
291. See HORACE FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 69-70 (1908).
292. BENJAMIN KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION 83 (1914) (emphasis added).
293. Earl M. Maltz, The Fourteenth Amendment as Political Compromise - Section One in the Joint Committee on Reconstruction, 45 OHIO ST. L.J. 933, 964 (1984).
294. Id. at 965.
295. It is also significant in this regard that although John Bingham clearly believed that the Privileges or Immunities Clause made at least some Bill of Rights guarantees applicable to the states, he vehemently opposed the passage of the Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27, which provided that blacks should have the same rights as whites with respect to contracting, holding and conveying real property, and participating in the judicial process. See CONG. GLOBE, 39th Cong., 1st Sess. 1291-92 (1866). In addition to believing that Congress lacked the constitutional authority to pass the act, Bingham also objected that the act went too far - well beyond his objective of incorporating Bill of Rights freedoms - and "would actually strip the states of power to govern, centralizing all power in the Federal Government." Adamson v. California, 332 U.S. 46 app. at 100 (1947) (Black, J., dissenting) (citing an exchange between Bingham and James Wilson). Bingham's simultaneous endorsement of Bill of Rights incorporation and opposition to the Civil Rights Act is merely one example of his simultaneous commitment - shared by Justice Miller - to principles of both nationalism and federalism. See supra note 218.
296. GRAHAM, supra note 211, at 134 n.90.
297. PHARISEE AMONG PHILISTINES: THE DIARY OF JUDGE MATTHEW P. DEADY, 1871-1892, at 28 (Malcolm Clark, Jr. ed., 1975) (entry of July 18, 1871) (footnote omitted).
298. Our Visitors, MORNING OREGONIAN, July 19, 1871, at 3.
299. Aynes, supra note 18, at 660.
300. XXXIXth Congress - First Session, EVENING STAR (Washington, D.C.), Feb. 28, 1866, at 2.
301. Thirty-Ninth Congress - First Session, DAILY NAT'L INTELLIGENCER (Washington, D.C.), May 24, 1866, at 3.
302. Id.
303. See. e.g., Thirty-Ninth Congress - First Session, DAILY NAT'L INTELLIGENCER (Washington, D.C.), Mar. 1, 1866, at 2 (noting Bingham's comment that "the proposed amendment simply armed Congress, with the consent of the people, to enforce the Bill of Rights, as now found in the Constitution"): Thirty-Ninth Congress - First Session, DAILY NAT'L INTELLIGENCER (Washington, D.C.), Feb. 27, 1866, at 2 (noting Bingham's comment that "[t]he House and the civilized world knew that all the judicial officers of the South for the last five years have acted in utter disregard of the Constitution" and that the Fourteenth Amendment was "essential to the preservation of unity of the Government and people").
304. See. e.g., Thirty-Ninth Congress - First Session, DAILY NAT'L INTELLIGENCER (Washington, D.C.), Mar. 1, 1866, at 2 (noting Bingham's comment that "the proposed amendment simply armed Congress, with the consent of the people, to enforce the Bill of Rights, as now found in the Constitution"): Thirty-Ninth Congress - First Session, DAILY NAT'L INTELLIGENCER (Washington, D.C.), Feb. 27, 1866, at 2 (noting Bingham's comment that "[t]he House and the civilized world knew that all the judicial officers of the South for the last five years have acted in utter disregard of the Constitution" and that the Fourteenth Amendment was "essential to the preservation of unity of the Government and people").
305. See AMAR, supra note 12, at 187 (describing news coverage of incorporationist speeches by John Bingham, Thaddeus Stevens, and Jacob Howard).
306. GRAHAM, supra note 211, at 134 n.90.
307. NELSON, supra note 201, at 163.
308. Aynes, supra note 18, at 686 ("Miller was hostile to the Fourteenth Amendment and the Congress which proposed it. He had the personality to purposely negate an amendment he felt was unwise.").
309. Ex parte Bain, 121 U.S. 1, 12 (1887).
310. FAIRMAN, supra note 226, at 420.
311. Samuel F. Miller, Judicial Reforms, 2 U.S. JURIST 1, 1 (1872).
312. Id. at 3.
313. Id. at 4.
314. See Letter from Samuel F. Miller to William P. Ballinger (Mar. 9, 1872), in FAIRMAN, supra note 226, at 423.
315. See Miller, supra note 291, at 8.
316. See id. at 5-7.
317. See Letter from Samuel F. Miller to William P. Ballinger, supra note 294, at 423.
318. Some modest reforms along the lines Miller had proposed were achieved in the Act of Feb. 16, 1875, ch. 77, § 3, 18 Stat. 315, 316, and, much later, in the Circuit Court of Appeals Act of 1891, ch. 517, 26 Stat. 826.
319. See William Wiecek, Murdock v. Memphis: Section 25 of the 1789 Judiciary Act and Judicial Federalism, in ORIGINS OF THE FEDERAL JUDICIARY: ESSAYS ON THE JUDICIARY ACT OF 1789, at 223, 232-33 (Maeva Marcus ed., 1992) (listing numerous jurisdiction-creating and jurisdiction-extending statutes of the Reconstruction era); see also FAIRMAN, supra note 226, at 366-99 (detailing the expansion of federal-court jurisdiction in the post-Civil War era).
320. Fairman, supra note 81, at 202.
321. 92 U.S. 575 (1876).
322. See id. at 612-18.
323. 104 U.S. 450 (1882).
324. 104 U.S. 482 (1882).
325. Hawes, 104 U.S. at 453.
326. 87 U.S. (20 Wall.) 590 (1874).
327. Id. at 629. Miller recognized that if the argument of the plaintiffs in Murdock were accepted, "the Court . . . would take on a staggering work load of issues normally disposed of at the state court level, cases that might involve no important problems of construing the federal Constitution and laws or the protection of federally derived rights." Wiecek, supra note 299, at 235.
328. Henry Ware, Student Notes: Constitutional Law I, Prof. James Bradley Thayer, 1895-1896, Box 1 (on file with the Houghton Library, Harvard University); see also Clarence Bunker, Student Notes: Constitutional Law, Prof. James Bradley Thayer, 1891-1892, Box 2, at 44 (on file with the Houghton Library, Harvard University) ("One grave reason wh. influenced ct. prob. was the immense no. of cases wh. wld come into U.S. cts if these privil. were to come under protect of U.S.").
329. G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 89 (expanded ed. 1988).
330. FAIRMAN, supra note 83, at 300.
331. Letter from Samuel F. Miller to William P. Ballinger (Apr. 28, 1878), quoted in FAIRMAN, supra note 83, at 67.
332. KENS, supra note 247, at 124.
333. Horwitz, supra note 15, at 84.
334. FAIRMAN, supra note 83, at 425.
335. Some have argued, for instance, that Miller's opinion in Murdock actually contravened, rather than followed, the best evidence of Congress's intent with respect to the amended Judiciary Act. See Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 920-21 & nn.180-181 (1986); Richard A. Matasar & Gregory S. Bruch, Procedural Common Law, Federal Jurisdictional Policy, and Abandonment of the Adequate and Independent State Grounds Doctrine, 86 COLUM. L. REV. 1291, 1317-20 (1986). Even assuming that this view of Murdock is correct (and it is far from clear that it is), Miller's opinion for the Court in Murdock is appropriately understood as a function of his commitment to preserving an appropriate state-federal balance of power, see supra text accompanying notes 219-225, and his desire to resist the
336. Some have argued, for instance, that Miller's opinion in Murdock actually contravened, rather than followed, the best evidence of Congress's intent with respect to the amended Judiciary Act. See Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 920-21 & nn.180-181 (1986); Richard A. Matasar & Gregory S. Bruch, Procedural Common Law, Federal Jurisdictional Policy, and Abandonment of the Adequate and Independent State Grounds Doctrine, 86 COLUM. L. REV. 1291, 1317-20 (1986). Even assuming that this view of Murdock is correct (and it is far from clear that it is), Miller's opinion for the Court in Murdock is appropriately understood as a function of his commitment to preserving an appropriate state-federal balance of power, see supra text accompanying notes 219-225, and his desire to resist the flooding of the federal court system with ordinary state-law claims, see supra notes 306-307 and accompanying text. Most of the arguments claiming that, in Murdock, Miller ignored congressional intent in favor of some other policy ultimately rest upon Charles Warren's (with all due respect) conclusory observation that, given "the whole trend of the legislation of the period" it is "highly probable" that Miller misread Congress's intent. 2 WARREN, supra note 228, at 682; see also Field, supra, at 920 n.180 (citing 2 WARREN, supra note 228, at 682); Matasar &Bruch, supra, at 1319 n.111 (citing Field, supra, at 920 & n.180). The most exhaustive study of the 1867 amendment to the Judiciary Act draws altogether different conclusions. See Wiecek, supra note 299, at 223. Wiecek observes that (1) William Lawrence, the House sponsor of the amendment, never gave any indication that he envisioned plenary Supreme Court review of state-law questions; (2) the House and Senate debates were "unenlightening" and "murk[y]" on the question of legislative intent; (3) the evidence suggests that "none of the bill's Senate sponsors thought they were enacting any major change" in the Judiciary Act that would have allowed plenary Supreme Court review; and (4) President Johnson was "oblivious" to the fact that the amended Judiciary Act might be read to confer such broad Supreme Court authority. Wiecek ultimately concludes that Congress "might well" have approved the 1867 Judiciary Act amendment "without knowing what it was doing." Id. at 230-31. Given this ambiguity, I would think it difficult to say that Miller's opinion in Murdock was clearly contrary to Congress's intention. And there is certainly nothing in Murdock itself to suggest that Miller had forsaken congressional intent in favor of some other guiding principle. On the contrary, Miller's opinion makes it clear that he did view congressional intent as controlling but that he found "no sufficient reason for holding that Congress . . . intended" to authorize Supreme Court review of state-court decisions on matters of state law. Murdock, 87 U.S. (20 Wall.) 590, 619 (1874). Miller used what we today might call a "clear-statement rule": Had "Congress, or the framers of the bill, had a clear purpose" to sanction such broad Supreme Court review, "it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention." Id. Such reliance on clear-statement rules is in no way inconsistent with a commitment to original intent. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (employing a clear-statement rule in flushing out Congress's true intention). It is of course also not insignificant that Congress never saw fit to amend the Judiciary Act to overturn the Murdock Court's construction.
337. AMAR, supra note 12, at 305.
338. CURTIS, supra note 12, at 175.
339. See Aynes, supra note 18, at 654-55.
340. 92 U.S. 542 (1876).
341. 110 U.S. 516 (1884).
342. 123 U.S. 131 (1887).
343. Id. at 150 (oral argument of J. Randolph Tucker).
344. 32 U.S. (7 Pet.) 243 (1833).
345. Spies, 123 U.S. at 150 (oral argument of J. Randolph Tucker). Tucker's reference to the "common law" does not suggest the sort of freewheeling, no-holds-barred argument that John Campbell had made on behalf of the butchers in Slaughter-House. Whereas Campbell had asserted that the mere fact that a right was protected at common law was alone a sufficient basis for clothing that right with federal constitutional protection, Tucker simply contended that insofar as common-law privileges were enumerated in and safeguarded by the Constitution, they warranted Fourteenth Amendment protection against state interference.
346. Id. at 151 (emphasis omitted).
347. Id. 327. Id. (emphasis added).
348. AMAR, supra note 12, at 213.
349. CURTIS, supra note 12, at 185.
350. See, e.g., Spies, 123 U.S. at 150, 151, 152.
351. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873).
352. See id. at 118.
353. Spies, 123 U.S. at 152. Significantly, alongside Slaughter-House, Tucker also cited Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129 (1874), another Miller opinion, and United States v. Cruikshank, 92 U.S. 542 (1875). For an in-depth discussion of Cruikshank, see infra notes 338-380.
354. See AMAR, supra note 12, at 227-28 ("[In Spies) for the first time an attorney before the Court clearly argued for incorporation on the basis of the privileges-or-immunities clause."); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 STAN. L. REV. 140, 147 (1949) ("Finally in 1887 we reach the first case in which the incorporation argument seems squarely to have been presented to the Supreme Court. This was Spies v. Illinois.").
355. 88 U.S. (21 Wall.) 532 (1874).
356. 92 U.S. 90 (1876).
357. Morrison, supra note 334, at 147.
358. 92 U.S. 542 (1876).
359. Ch. 114, 16 Stat. 140.
360. Id § 6, 16 Stat. at 141 (emphasis added).
361. See, e.g., CURTIS, supra note 12, at 170 ("[T]he [Cruikshank] Court held that the right of peaceable assembly and the right to bear arms were not privileges secured by the Fourteenth Amendment.").
362. Cruikshank, 92 U.S. at 551.
363. Id. at 551, 548.
364. Id. at 551-52.
365. Id. at 552.
366. 32 U.S. (7 Pet.) 243 (1833).
367. Cruikshank, 92 U.S. at 552.
368. Id.
369. Id. at 551 (internal quotation marks omitted).
370. U.S. CONST, amend. I.
371. Cruikshank, 92 U.S. at 551.
372. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873) (emphasis added).
373. Cruikshank, 92 U.S. at 552-53.
374. U.S. CONST, amend. I ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.").
375. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833).
376. See, e.g., Morrison, supra note 334, at 145-46 ("[I]t does not seem to have been argued that the Fourteenth Amendment made the Bill of Rights applicable to the states.").
377. Cruikshank, 92 U.S. at 552 (emphasis added).
378. Id. 359. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873).
379. 109 U.S. 3 (1883).
380. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 18-1, at 1688 (2d ed. 1988).
381. Civil Rights Cases, 109 U.S. at 11-12 (emphasis added and citation omitted).
382. United States v. Cruikshank, 25 F. Cas. 707, 710 (C.C.D. La. 1874) (No. 14,897).
383. Id. at 714.
384. Id. at 710 (emphasis added).
385. United States v. Cruikshank, 92 U.S. 542, 553 (1875).
386. Cruikshank, 25 F. Cas. at 714 (emphasis added).
387. Cruikshank, 92 U.S. at 554.
388. See BELZ, supra note 134, at 132 (1978) ("Declaring the government's indictment of the Colfax assailants invalid, Chief Justice Morrison R. Waite invoked the state action theory of the Fourteenth Amendment."); FAIRMAN, supra note 82, at 1371 ("[T]he Fourteenth Amendment . . . proved to be a more profound disappointment to Negroes than it had to butchers. Its protection to the Negro was only that no State could deny his rights; it did not 'add anything to the rights which one citizen has under the Constitution against another,' said Chief Justice Waite").
389. See, e.g., CURTIS, supra note 12, at 170; Tribe, supra note 3, at 182 n.326.
390. William L. Royall, The Fourteenth Amendment: The Slaughter-House Cases, 4 S. L. REV. 558, 581-82 (1878).
391. Pence, supra note 191, at 544.
392. Id.
393. Id.
394. CHARLES WALLACE COLLINS, THE FOURTEENTH AMENDMENT AND THE STATES 22 (1912).
395. 2 FLEMING, supra note 15, at 424. Then-student Zechariah Chafee's class notes indicate that turn-of-the-century Harvard professor Eugene Wambaugh also understood (and taught) Cruikshank as a state-action case, not as a case that cast doubt on the incorporation of the Bill of Rights: "U.S. v. Cruikshank . . . 'No State.' Dft. was individual; not State. Can't attack a Ku. klux Conspiracy under 14th Am. . . . This statute does not apply to State at all or State officials." Zechariah Chafee, Student Notes: Constitutional Law, Prof. Eugene Wambaugh, 1912-1913, at 207 (on file with the Houghton Library, Harvard University).
396. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 118-19 (1873) (Bradley, J., dissenting).
397. See United States v. Cruikshank, 25 F. Cas. 707, 710 (C.C.D. La. 1874) (No. 14, 897).
398. Id. at 714.
399. Slaughter-House, 83 U.S. (16 Wall.) at 79-80.
400. 74 U.S. (7 Wall.) 321 (1869).
401. 134 U.S. 31 (1890).
402. 110 U.S. 516 (1884).
403. Twitchell, 74 U.S. (7 Wall.) at 325.
404. U.S. CONST, amend. VI.
405. 32 U.S. (7 Pet.) 243 (1833).
406. See Eilenbecker, 134 U.S. at 32.
407. See U.S. CONST. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .").
408. See id. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and . . . to be confronted with the witnesses against him . . . .").
409. See id. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.").
410. Eilenbecker, 134 U.S. at 34.
411. The Eilenbecker defendants did contend in a separate assignment of error that their Fourteenth Amendment due process rights had been violated. See id. at 35-36. However, their Bill of Rights and due process arguments were wholly distinct.
412. Pence, supra note 191, at 542.
413. Id.
414. 176 U.S. 581, 612 (1900) (Harlan, J., dissenting) ("[I]f prior to the adoption of the Fourteenth Amendment it was one of the privileges or immunities of citizens of the United States that they should not be tried for crime . . . except by a jury composed of twelve persons, how can it be that a citizen of the United States may be now tried in a state court for crime . . . by eight jurors, when that amendment expressly declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States'?").
415. Hurtado v. California, 110 U.S. 516, 521 (1884).
416. See id. at 521-28.
417. See id. at 534-35.
418. Id. 400. Justice Field did not take part in Hurtado. See id. at 558.
419. Aynes, supra note 18, at 655.
420. Pence, supra note 191, at 545.
421. See Hurtado, 110 U.S. at 538 (Harlan, J., dissenting).
422. See Maxwell v. Dow, 176 U.S. 581, 612 (1900) (Harlan, J., dissenting); see also supra note 395.
423. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).
424. See, e.g., CONG. GLOBE, 42nd Cong., 1st Sess. 84 app. (1871) (statement of Rep. Bingham) (declaring that "the privileges and immunities of citizens of the United States . . . are chiefly defined by the first eight amendments to the Constitution of the United States"); CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866) (statement of Sen. Howard) (elaborating upon the meaning of the Privileges or Immunities Clause and affirming that "the personal rights guaranteed and secured by the first eight amendments of the Constitution" were among the privileges and immunities of United States citizens, and only later noting that "[t]he last two clauses of the first section of the Amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State"). See generally AMAR, supra note 12, at 181-214 (discussing the framing of the Fourteenth Amendment); CURTIS, supra note 12, at 57-91 (same); TRIBE, supra note 14, § 8-1, at 1334 ("Reconstruction Republicans intended the Privileges or Immunities Clause, not the Due Process Clause, to be the centerpiece of their civil rights revolution."); supra notes 256-271.
425. United States v. Hall, 26 F. Cas. 79, 82 (S.D. Ala. 1871) (No. 15, 282).
426. Letter from Samuel F. Miller, supra note 184, at 415.
427. Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129 (1874).
428. To the inevitable objection of the modern reader that Miller's decision to abstain from addressing a constitutional issue that neither party had raised or argued is wooden and legalistic, there are two responses. First, it is worth noting that Miller was operating in an altogether different era - the era of common-law pleading, the forms of action, the (in)famous Field Code, and, in the Supreme Court, the writ of error. See generally JOHN J. COUND ET AL., CIVIL PROCEDURE: CASES AND MATERIALS 315-49 (2d ed. 1974); OXFORD COMPANION, supra note 101, at 260. Nineteenth-century pleading was "rigid and rarefied," Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 917 (1987), and "littered with arcana," and "often . . . produce[d] decisions entirely unrelated to the merits," Richard Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1753 (1998).
429. To the inevitable objection of the modern reader that Miller's decision to abstain from addressing a constitutional issue that neither party had raised or argued is wooden and legalistic, there are two responses. First, it is worth noting that Miller was operating in an altogether different era - the era of common-law pleading, the forms of action, the (in)famous Field Code, and, in the Supreme Court, the writ of error. See generally JOHN J. COUND ET AL., CIVIL PROCEDURE: CASES AND MATERIALS 315-49 (2d ed. 1974); OXFORD COMPANION, supra note 101, at 260. Nineteenth-century pleading was "rigid and rarefied," Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 917 (1987), and "littered with arcana," and "often . . . produce[d] decisions entirely unrelated to the merits," Richard Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1753 (1998).
430. To the inevitable objection of the modern reader that Miller's decision to abstain from addressing a constitutional issue that neither party had raised or argued is wooden and legalistic, there are two responses. First, it is worth noting that Miller was operating in an altogether different era - the era of common-law pleading, the forms of action, the (in)famous Field Code, and, in the Supreme Court, the writ of error. See generally JOHN J. COUND ET AL., CIVIL PROCEDURE: CASES AND MATERIALS 315-49 (2d ed. 1974); OXFORD COMPANION, supra note 101, at 260. Nineteenth-century pleading was "rigid and rarefied," Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 917 (1987), and "littered with arcana," and "often . . . produce[d] decisions entirely unrelated to the merits," Richard Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1753 (1998).
431. Second, it is important to recognize that, in refusing to speculate about answers to questions that had not been raised, Miller was, in fact, following established Supreme Court practice. From Miller's day to present, the Court has consistently adhered to a policy of refusing to consider issues that have not been specifically briefed or argued - even if such issues clearly arise on the face of the record. See, e.g., Phillips v. Washington Legal Found., 118 S. Ct. 1925, 1930 n.4 (1998) (noting that "it would be improper for us sua sponte to raise and address [a] question" not raised by the parties); Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 168 (1934); Southeastern Express Co. v. Robertson, 264 U.S. 541, 542 (1924); Home Benefit Ass'n v. Sargent, 142 U.S. 691, 694-95 (1892); Tally v. Freedman's Sav. & Trust, 93 U.S. 321, 326 (1876). The Court's tendency not to "reach out" is particularly pronounced when important constitutional questions are potentially at issue, as they were in Twitchell, Eilenbecker, and Hurtado. See Mazer v. Stein, 347 U.S. 201, 206 n.5 (1954) ("We do not reach for constitutional questions not raised by the parties."). Even today-when courts are, if anything, too eager to reach out to decide questions not squarely presented - Justice Miller's prudent approach to engaging and deciding constitutional questions finds ample support in Supreme Court practice. Take Yee v. City of Escondido, 503 U.S. 519 (1992), for instance. There, the Supreme Court rejected the claims of a group of California mobile-home-park owners that local housing laws effected a "physical taking" of property in violation of the Fifth and Fourteenth Amendments. See id. at 523-32. The Court candidly acknowledged that the park owners' contention that the laws violated the Takings Clause because they deprived the owners of the "ability to choose their incoming tenants" might well "be relevant to a regulatory taking argument." Id. at 530-31 (emphasis added). Nonetheless, the Court declined to consider the park owners' "regulatory taking" argument because it was not "fairly included" in the question the park owners had presented in their petition for certiorari. See id. at 537-38 (applying SUP. CT. R. 14.1(a)). The Court in Yee observed that the park owners' "physical taking" and "regulatory taking" arguments were not separate claims, but rather separate arguments in support of a single Takings Clause claim. See id. at 534-35. The park owners, the Court noted, "could have formulated any argument they liked in support of [their Takings Clause] claim" because, on Supreme Court review, "it is the petitioner . . . who controls the scope of the question presented." Id. at 535. The park owners' failure to include their regulatory taking argument in the "question presented" was fatal, the Court held, because the Court "ordinarily will not consider questions outside those presented in the petition for certiorari." Id. The Yee Court's explanation for refusing to consider the regulatory taking argument precisely parallels Justice Miller's decision to abstain in Twitchell, Eilenbecker, and Hurtado. Just as the park owners in Yee could have raised a regulatory taking argument in support of their effort to invalidate the rent-control provisions, Twitchell, Eilenbecker, and Hurtado could have made incorporation arguments under the Privileges or Immunities Clause. And just as the Yee Court upheld the challenged ordinance notwithstanding the fact that the park owners had a colorable regulatory-taking argument, Justice Miller concurred in or wrote Twitchell, Eilenbecker, and Hurtado notwithstanding the availability of a potentially valid argument under the Privileges or Immunities Clause. The Supreme Court was not in the late 1800s and is not now in the business of making parties' legal arguments for them. See generally Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.) ("The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them."), cited in Turner Broad. Sys. v. FCC, 520 U.S. 180, 224 (1997).
432. 88 U.S. (21 Wall.) 532 (1874).
433. 92 U.S. 90 (1876).
434. Edwards, 88 U.S. (21 Wall.) at 548 (argument of A.Q. Keasbey).
435. Id. at 557-58.
436. Id. at 557.
437. Sauvinet, 92 U.S. at 92.
438. Morrison, supra note 334, at 145.
439. AMAR, supra note 12, at 89.
440. Id. at 276.
441. Id. at 92.
442. Id. at 276.
443. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard).
444. See id. (specifically mentioning the rights to free speech, free press, assembly and petition, the right to bear arms, the right against the quartering of soldiers, the freedom from unreasonable searches and seizures, the right of an accused to be informed of the nature of the accusation against him and to a criminal jury trial, and the freedom from excessive bail and cruel and unusual punishment).
445. See Fairman, supra note 269, at 81-132. There is, in fairness, some indication that at least one Republican congressman, William Lawrence, thought that the Fourteenth Amendment did incorporate the Seventh Amendment-although Lawrence seemed to rely on the Due Process Clause, not the Privileges or Immunities Clause, for that conclusion. See CONG. GLOBE, 41st Cong., 3d Sess. 1245 (1871) (statement of Rep. Lawrence).
446. Justice Samuel F. Miller, The System of Trial by Jury, 21 AM. L. REV. 859 (1887).
447. Justice Samuel F. Miller, Address to the Annual Meeting of the Bar Association of the State of New York (Nov. 1878), in 18 ALB. L.J. 405, 409 (1878).
448. Miller, supra note 425, at 861.
449. Id. at 862.
450. Miller, supra note 426, at 409.
451. Miller, supra note 425, at 864.
452. Id. at 862.
453. Id.
454. Campbell v. State, 11 Ga. 353, 368 (1852).
455. See id. at 366-67.
456. As further evidence that the Supreme Court was not, in Edwards and Sauvinet, pursuing anything approaching a coherent, generally applicable anti-incorporation agenda, it is noteworthy that Justice Clifford, one of only two Justices to dissent in Sauvinet, authored the unanimous opinion for the Court in Edwards. 436. Letter from Samuel F. Miller (May 1, 1871), quoted in FAIRMAN, supra note 83, at 61.
457. 119 S. Ct. 1518 (1999).
458. CURTIS, supra note 12, at 175.
459. Washington v. Glucksburg, 521 U.S. 702, 759 n.6 (1997) (Souter, J., concurring) (citation omitted).
460. See TRIBE, supra note 14, § 7-5, at 1316 ("Ironically, in his opinion in Slaughter-House, Justice Miller may have unwittingly taken the first step toward the recognition- and subsequent perpetuation - of the doctrine of substantive due process." ). In the post-Slaughter-House years, the shift in emphasis in the "incorporation" cases from the Privileges or Immunities Clause to the Due Process Clause was, in many respects, self-perpetuating. As courts rejected Privileges-orImmunities-Clause-based incorporation arguments, litigants began more and more to assert their claims under the Due Process Clause; and when courts slowly but surely began to credit due-process-based arguments, parties lost the incentive to pursue the privileges-or-immunities issue. See LOREN P. BETH, JOHN MARSHALL HARLAN: THE LAST WHIG JUSTICE 209 (1992) ("This idea [that the Privileges or Immunities Clause limited legislative power] received such rough handling by the majority in the Slaughterhouse Cases . . . that lawyers in general dropped it, only to return to court with the argument that the limits [on the police power] resided in the due process clause instead.").
461. TRIBE, supra note 14, § 8-8, at 1363; John Harrison, Substantive Due Process and the Constitutional Text, 83 VA. L. REV. 493, 499 (1997) ("One [subcategory of substantive due process] is the rule that certain nonprocedural aspects of the first eight amendments apply to the states as well as the federal government.").
462. See Harrison, supra note 442, at 500-01 (calling this "pure substantive due process" and recognizing that "the most important fundamental right is the right to privacy, and [that] the most important application of that right involves abortion").
463. TRIBE, supra note 14, § 7-6, at 1329.
464. Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) (quoting Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).
465. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873).
466. Id. at 79-80.
467. Saenz. 119 S. Ct. at 1524.
468. Id. at 1526 (quoting Slaughter-House, 83 U.S. (16 Wall.) at 80). In Shapiro v. Thompson, 394 U.S. 618 (1969) - a forebear of sorts to Saenz - the Court had observed that the right to travel proceeded, among other sources, from "the nature of our Federal Union." Id. at 629.
469. Given that this Article is addressed only to a single aspect of the Supreme Court's substantive due process jurisprudence - the incorporation of Bill of Rights freedoms against state governments - I leave for another day the question whether the Court's privacy decisions (including, most infamously, Roe v. Wade, 410 U.S. 113 (1973), and its progeny) might find support in a resurrected Privileges or Immunities Clause.
470. 274 U.S. 357 (1927).
471. Id. at 373 (Brandeis, J., concurring).
472. 478 U.S. 186 (1986).
473. Id. at 191.
474. 505 U.S. 833 (1992).
475. Id. at 846.
476. ELY, supra note 12, at 18.
477. CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM 106 (1997).
478. TRIBE, supra note 14, § 7-5, at 1317.
479. See. e.g., Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1196 (1987) ("More commonly, arguments from the text achieve the . . . result of excluding one or more positions that might be argued for on nontextual grounds."); Frederick Shauer, An Essay on Constitutional Language, 29 UCLA L. REV. 797, 828 (1982) ("Constitutional language can tell us when we have gone too far without telling us anything else."). Professor Fallon points out, for instance, that "although the text of the eighth amendment may not tell us precisely what 'cruel and unusual punishments' are, the language does require that the amendment's prohibition apply only to actions that can plausibly be described as 'punishments.'" Fallon, supra, at 1196. (footnotes omitted). Likewise, whereas we may not learn from the text of the Fourteenth Amendment what, if anything, the term "due process" really means, the text does teach that it may only apply to government action that can plausibly be described as "process."
480. See. e.g., Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1196 (1987) ("More commonly, arguments from the text achieve the . . . result of excluding one or more positions that might be argued for on nontextual grounds."); Frederick Shauer, An Essay on Constitutional Language, 29 UCLA L. REV. 797, 828 (1982) ("Constitutional language can tell us when we have gone too far without telling us anything else."). Professor Fallon points out, for instance, that "although the text of the eighth amendment may not tell us precisely what 'cruel and unusual punishments' are, the language does require that the amendment's prohibition apply only to actions that can plausibly be described as 'punishments.'" Fallon, supra, at 1196. (footnotes omitted). Likewise, whereas we may not learn from the text of the Fourteenth Amendment what, if anything, the term "due process" really means, the text does teach that it may only apply to government action that can plausibly be described as "process."
481. 268 U.S. 652 (1925) (incorporating the First Amendment's free speech guarantee).
482. 283 U.S. 697 (1931) (incorporating the First Amendment's free press guarantee).
483. 299 U.S. 353 (1937) (incorporating the First Amendment's freedom-of-assembly guarantee).
484. 310 U.S. 296 (1940) (incorporating the First Amendment's free exercise guarantee).
485. 338 U.S. 25 (1949) (incorporating the Fourth Amendment's prohibition of unreasonable searches and seizures).
486. 166 U.S. 226 (1897) (incorporating the Fifth Amendment's just compensation guarantee).
487. 370 U.S. 660 (1962) (incorporating the Eighth Amendment's prohibition of cruel and unusual punishments).
488. CONG. GLOBE, 39th Cong., 1st Sess. 1089 (1866).
489. 59 U.S. (18 How.) 272 (1856).
490. Id. at 276-77. In a 1995 article, Laurence Tribe argued that, by 1868, "any state legislature voting to ratify a constitutional rule banning government deprivations of 'life, liberty, or property, without due process of law' would have understood that ban as having substantive as well as procedural content." Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1297-98 n.247 (1995). Interestingly, Tribe pointed to Murray's Lessee for support. In the Court's observation that due process "is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will," Murray's Lessee, 59 U.S. (18 How.) at 276, Tribe found support for the proposition that legal thinkers of the mid-1850s would have viewed the concept of "due process" as entailing a substantive component. Tribe's argument (from which, in fairness, he has since backed away somewhat, see infra) seems to me to make too much of too little. The issue before the Court in Murray's Lessee was not whether Congress could - as a matter of substantive law-provide for the return of property lawfully belonging to the United States; rather, the question was whether or not the method - the process - Congress had chosen to accomplish that end comported with the Constitution. Not surprisingly, therefore, the Court's opinion is replete with language (including, notably, the language quoted by Tribe) addressed to the procedural fairness of Congress's action. See, e.g., id. at 275-77 (testing the "proceedings" authorized by Congress against the "processes" permitted by the Constitution and the "modes of proceeding" existing at common law). Murray's Lessee was, in short, the quintessential procedural due process case. See generally Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 293-94 (1990) (Scalia, J., concurring) (contrasting Murray's Lessee, as a procedural due process case, with Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), as a substantive due process case); AMAR, supra note 12, at 173 (describing Murray's Lessee as a "procedural due process" case); Harrison, supra note 442, at 554 (same). While continuing to cite the above-quoted language from Murray's Lessee as evidence of a "reasonable historical argument" that the term "due process" might entail substantive limitations. Professor Tribe has backed off his more strident claim that legal actors in the Reconstruction era would necessarily have understood it that way. In fact, Tribe has acknowledged that such a construction "may not have been widely enough accepted in the late 1860s to render it the most natural reading of the phrase for those who included it in the Fourteenth Amendment." TRIBE, supra note 14, § 8-1, at 1334.
491. Aynes, supra note 18, at 687.
492. RICHARDS, supra note 14, at 199.
493. Id. at 201. While I am somewhat uncomfortable with Richards's framing of the issue as the nationalization of "human rights," I believe that his basic interpretive point remains valid.
494. Id.
495. Id. at 203.
496. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). See generally BORK, supra note 15, at 31 ("[Dred Scott] was the first appearance in American constitutional law of the concept of 'substantive due process,' and that concept has been used countless times since . . . ."); DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789-1888, at 271 (1985) ("[Dred Scott] was at least very possibly the first application of substantive due process in the Supreme Court."); Harrison, supra note 442, at 499 (describing Dred Scott as the "most fateful substantive due process decision of all").
497. Dred Scott, 60 U.S. at 450.
498. 198 U.S. 45 (1905).
499. 410 U.S. 113 (1973).
500. Lochner, 198 U.S. at 53.
501. Id.
502. Roe, 410 U.S. at 153.
503. See id. at 167-71 (Stewart, J., concurring).
504. See id. at 171-74 (Rehnquist, J., dissenting).
505. Id. at 172-73.
506. BORK, supra note 15, at 32.
507. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 939 (1973).
508. TRIBE, supra note 14, § 7-5, at 1318.
509. Id. § 7-5, at 1312.
510. 176 U.S. 581 (1900).
511. Id. at 591.
512. 211 U.S. 78 (1908).
513. Id. at 96.
514. Id. at 98 (citations omitted).