Why did the incorporation of the bill of rights fail in the late nineteenth century?

Minnesota Law Review

Volumn 94, Issue 1, 2010, Pages 102-139

  Magliocca, Gerard N ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 79551661433     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (296)

1. 182 U.S. 244, 282-83 (1901).
2. 158 U.S. 564, 598-99 (1895).
3. The modern term for this doctrine, "incorporation," was not used in the nineteenth century cases discussed throughout this Article.
4. District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008).
5. Compare Natl Rifle Ass'n v. Chicago, 567 P.3d 856, 857 (7th Cir. 2009), cert, granted sub nom. McDonald v. Chicago, 78 U.S.L.W. 3137 (U.S. Sept. 30, 2009) (No. 08-1521), and Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir. 2009) (per curiam) (declining to apply the Second Amendment to the states), petition for cert, filed sub nom. Maloney v. Rice, 77 U.S.L.W. 1473 (U.S. Jun. 26, 2009) (No. 08-1592), with Nordyke v. King, 563 F.3d 439, 457 (9th Cir. 2009) ("We are . . . persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.").
6. See Heller, 128 S. Ct. at 2813 n.23 (citing Miller v. Texas, 153 U.S. 535 (1894), Presser v. Illinois, 116 U.S. 252 (1886), and United States v. Cruik-shank, 92 U.S. 542 (1875), but declining to reach the incorporation issue); Natl Rifle Ass'n, 567 F.3d at 857 ("Cruikshank, Presser, and Miller rejected arguments that depended on the privileges [or] immunities clause of the fourteenth amendment.")
7. Maloney, 554 F.3d at 58-59 (concluding that Presser was binding authority on a court of appeals)
8. cf. Nordyke, 563 F.3d at 446-49 (discussing some of these cases but distinguishing them from the case at bar).
9. 332 U.S. 46, 68-92 (1947).
10. See id. at 71-72 (Black, J., dissenting) ("My study of the historical events that culminated in the Fourteenth Amendment . . . persuades me 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.").
11. See, e.g., Twining v. New Jersey, 211 U.S. 78, 98 (1908) ("It is ⋯ not profitable to examine the weighty arguments in [incorporation's] favor, for the question is no longer open in this court.").
12. Maxwell v. Dow, 176 U.S. 581, 602 (1900) (rejecting incorporation with the exception of the Takings Clause), abrogated by Williams v. Florida, 399 U.S. 78 (1900).
13. Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 STAN. L. KEV. 140, 143-57 (1949) (examining the cases on incorporation from Beconstruction until Twining)
14. Bryan H. Wildenthal, The Road to Twining; Reassessing the Disincorporation of the Bill of Rights, 61 OHIO ST. L.J. 1457, 1494 (2000) (exploring the case law from 1880 until Twining).
15. See Adamson, 332 U.S. at 62 (Frankfurter, J., concurring) (observing that of the forty-three judges who had the opportunity to review the scope of the Fourteenth Amendment in the seventy years since the Amendment's ratification, only one, "who may be respectfully called an eccentric exception," believed that the Amendment "was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States")
16. Morrison, supra note 9, at 143 ("If it was one of the chief objects of the Fourteenth Amendment to incorporate the Bill of Bights, it is certainly surprising that it should have taken so long to find this out. Whatever obscurity may clothe the question today, the major purposes of a major constitutional amendment should not have been obscure to its contemporaries. From this point of view the early decisions of the Supreme Court assume particular importance.").
17. 83 U.S. (16 Wall.) 36 (1873).
18. See, e.g., AKHIL REED AMAE, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 213 (1998) ("By strangling the privileges or immunities clause in its crib, Slaughter-House forced contrarian-minded litigants to argue that the original Bill applied against states either directly of its force or via the Fourteenth Amendment's due process clause.")
19. MICHAEL KENT CURTIS, No STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 175 (1986) ("[BJy its construction of the Fourteenth Amendment [in Slaughter-House,} the Court effectively nullified the intent to apply the Bill of Rights to the states.")
20. see also Nat'l Rifle Ass'n v. Chicago, 567 F.3d 856, 857 (7th Cir. 2009) (stating that Slaughter-House "holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states"), cert, granted sub nam. McDonald v. Chicago, 78 U.S.L.W. 3137 (U.S. Sept. 30, 2009) (No. 08-1521).
21. 60 U.S. (19 How.) 393, 393 (1857) (declaring, inter alia, that African Americans could not be citizens of the United States).
22. 274 U.S. 200, 200 (1927) (upholding the sterilization of the mentally challenged).
23. See, e.g., CHARLES L. BLACK, A NEW BIRTH OF FREEDOM 55 (1999) (calling Slaughter-House "probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court")
24. Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in JUDGMENTS: ESSAYS ON AMERICAN
25. See GERARD N. MAGLIOCCA, THE TRAGEDY OF WILLIAM JENNINGS BRYAN: CONSTITUTIONAL LAW AND THE POLITICS OF BACKLASH (forthcoming 2010) (arguing that the defeat of the Populist Party transformed constitutional law). My analysis does not distinguish between incorporation claims based on the Due Process Clause and those relying on the Privileges or Immunities Clause of the Fourteenth Amendment.
26. See U.S. CONST, amend XIV, § 1. While there is merit in separating these claims if the question is about the meaning of each clause, this distinction is not very helpful with respect to the broader incorporation issue.
27. See Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643, 648-49 (2000) ("I argue, contrary to the almost crushing weight of conventional wisdom, that Justice Miller's majority opinion in Slaughter-House did not foreclose the possibility of incorporating provisions of the Bill of Rights ⋯ .")
28. Charles R. Pence, The Construction of the Fourteenth Amendment, 25 AM. L. REV. 536, 548 (1891) (noting that the privilege of the writ of habeas corpus, which Slaughter-House listed among those citizens' rights protected from state infringement by the Fourteenth Amendment, "is granted in the same way and by the same instrument as the immunity from cruel and unusual punishments: [t]he former is conferred by the original Constitution and the latter by one of the amendments")
29. Horace Stern, Samuel Freeman Miller, in 6 GREAT AMERICAN LAWYERS 539, 560-61 (William Draper Lewis ed., 1909) (stating that "the rights of personal liberty guaranteed by the 'Bill of Rights' or original constitutional amendments" were included in Justice Miller's category of national rights protected by the Fourteenth Amendment).
30. 176 U.S. 581, 591 (1900) (treating the federal privileges listed in Slaughter-House as exhaustive and concluding that a jury trial "right, such as is claimed here, was not mentioned, and we may suppose it was regarded as pertaining to the state and not covered by the [Fourteenth] amendment"), abrogated by Williams v. Florida, 399 U.S. 78 (1970).
31. Three types of cases from this period involved incorporation but did not squarely raise the issue. First, there were suits where someone cited the relevant portion of the Bill of Rights directly instead of relying on the Fourteenth Amendment. In these cases, the Court dismissed the claim because of that pleading error.
32. See Twitchell v. Pennsylvania, 74 U.S. (7 Wall.) 321, 325-26 (1868) (rejecting Kfth and Sixth Amendment claims against a state court conviction)
33. Newsom, supra note 17, at 721-22 (examining the Twitchell decision). Second, there were cases where incorporation was not raised in the lower court which resulted in procedural default.
34. See Miller v. Texas, 153 U.S. 535, 538 (1894) (rejecting a claim that the Second Amendment applied to the states because "if the fourteenth amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court")
35. Edwards v. Elliott, 88 U.S. (21 Wall.) 532, 557-58 (1874) (dismissing an incorporation question because "no such error was assigned in the [state court], and that the question was not presented to, nor was it decided by, the [state court]"). Finally, there were cases where incorporation was arguably before the Court, but its decision rested on other grounds.
36. See, e.g., Davidson v. New Orleans, 96 U.S. 97, 100-05 (1878) (stating that the Takings Clause did not bind the states, but rejecting the asserted claim on general due process grounds)
37. United States v. Cruikshank, 92 U.S. 542, 551-54 (1875) (discussing the application of the Petition Clause and the Second Amendment to the states but relying on the lack of state action for its holding). This Article only addresses the last of these three categories, as the cases in that set must be analyzed before they can be distinguished. See infra text accompanying notes 89-104.
38. See Brown v. New Jersey, 175 U.S. 172, 175-77 (1899) (rejecting a claim that a jury selection procedure was inconsistent with due process); Ei-lenbacker v. Dist. Court, 134 U.S. 31, 35-40 (1890) (rejecting a claim that a criminal contempt proceeding in state court without a jury trial violated due process)
39. Ex parte Spies, 123 U.S. 131, 167-81 (1887) (denying an application for a writ of error for an incorporation claim based on the protection against self-incrimination and the right to an impartial jury trial)
40. Hurtado v. California, 110 U.S. 516, 538 (1884) (holding that the Fifth Amendment grand jury right did not bind the states)
41. Walker v. Sauvinet, 92 U.S. 90, 92 (1875) ("A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge.")
42. Kowan v. State, 30 Wis. 129, 149-50 (1872) (rejecting an argument that the Fourteenth Amendment prohibited the states from making a criminal accusation by "information," which is proffered by the prosecutor, rather than by indictment, which requires a grand jury under the Fifth Amendment)
43. cf. Missouri v. Lewis, 101 U.S. 22, 31 (1880) ("The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies⋯ . Each state prescribes its own modes of judicial proceeding.").
44. See Brown, 175 U.S. at 175 ("The state is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at the common law. ⋯ [I]t may avail itself of the wisdom gathered by the experience of the century to make such changes as may be necessary."); supra text accompanying note 1.
45. See infra notes 160-65 and accompanying text. The only exception involved the Takings Clause, which was incorporated through the Due Process Clause in 1897. See Chi. Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897). This decision was also a reaction against the Populists; additional federal protection for property rights was designed to block redi-stributive schemes popular with reformers.
46. See Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897) (holding that the Fourteenth Amendment created a liberty of contract on the same day the Court incorporated the Takings Clause in Chicago Burlington & Quincy Railroad Co.).
47. The first (and only) scholar to recognize this point was L.H. LaRue, Constitutional Law and Constitutional History, 36 BUFF. L. REV. 373, 401 (1987).
48. See Presser v. Illinois, 116 U.S. 252, 267-68 (1886) (rejecting an incorporation claim based on the First and Second Amendments made by a labor militia, in part to honor "the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine")
49. cf. In re Debs, 158 U.S. 564, 597-98 (1895) (upholding the use of contempt proceedings to crush the Pullman Strike with the admonition that "it is a lesson which cannot be learned too soon or too thoroughly that under this government⋯ no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the cooperation of a mob, with its accompanying acts of violence"). For more on the tumultuous events of this decade, see generally H.W. BRANDS, THE RECKLESS DECADE: AMERICA IN THE 1890S, at 1 (1995), which comments on the anxiety and "fin-de-siecle soul searching" felt by Americans at the close of the nineteenth century and the dawn of the twentieth
50. OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910, at 53-74 (1993), which tracks the events that coincided with the expansion of state power to maintain order against labor movements in In re Debs, 158 U.S. 564 (1895)
51. MATTHEW JOSEPHSON, THE POLITICOS 1865-1896, at 559-708 (1938), for an illustration of the anger over economic circumstances that led to the formation of the Populist Party and the presidential campaign of William Jennings Bryan;
52. DAVID RAY PAPKE, THE PULLMAN CASE (1999), for a discussion of the causes and consequences of the Pullman Strike; and THE POPULIST MIND (Norman Pollack ed., 1967), which mines turn-of-the-century primary sources in order to uncover the ideals and aims of the Populist party.
53. This argument builds on the work of my friend Kevin Newsom.
54. See Newsom, supra note 17, at 648-49 (opening the door for a reconsideration of Slaughter-House by challenging the standard view of that case with respect to incorporation).
55. This Article does not assess the policy implications of Second Amendment incorporation. For a critical view of incorporation from that perspective, see Lawrence Rosenthal, Second Amendment Plumbing After Heller; Of Standards of Scrutiny, Incorporation, Weil-Regulated Militias, and Criminal Street Gangs, 41 URB. LAW 1, 84-90 (2009).
56. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 57-83 (1873).
57. See, e.g., David S. Bogen, Slaughter-House Five: Views of the Case, 55 HASTINGS L.J. 333, 347 (2003) ("The incorporation aspect of the Slaughter-House cases was of little interest to contemporaries reacting to the decision. ⋯ Academic reaction focused on the majority's rejection of fundamental rights of citizenship, and paid no attention to what that rejection meant for incorporation.").
58. See, e.g., Morrison, supra note 9, at 144 ("In this opening battle under the Fourteenth Amendment the question of whether the Amendment incorporates the Bill of Rights was not raised.").
59. See U.S. CONST, amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens .⋯").
60. See Slaughter-House, 83 U.S. (16 Wall.) at 44, 83.
61. Id. at 79.
62. See id. at 74-78.
63. Id. at 79.
64. Id. at (quoting Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 44 (1867)).
65. Id. at 79-80; see also William H. Dunbar, The Anarchists' Case Before the Supreme Court of the United States, 1 HAEV. L. REV. 307, 313 (1887) (explaining that the issue of which national rights were protected by the Privileges or Immunities Clause was the chief question that divided the Court in Slaughter-House).
66. William Crosskey argued that the ambiguity in this passage was part of a deliberate effort to undermine incorporation, but there is no evidence to support this claim.
67. See 2 WILLIAM WlNSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1127, 1130 (1953) (attacking the majority's motives for including the list in its opinion);
68. see also Bo-gen, supra note 28, at 349 ("The scholars' [subsequent] confusion and inattention to the incorporation issue supports the contention that the opinion was ambiguous, but it falls short of showing that the ambiguity was deliberate.").
69. The Petition Clause reference is also subject to different interpretations, as it could be referring to state action barring a petition to Congress, which would not be an incorporation of that right for citizens petitioning a state legislature.
70. See U.S. CONST, amend. I; AMAR, supra note 12, at 212.
71. See Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 OHIO ST. L.J. 1051, 1063 (2000) ("Slaughter-House has been conventionally viewed as rejecting incorporation via the Privileges [or] Immunities Clause ⋯ .").
72. See CURTIS, supra note 12, at 175 ("The privileges and immunities of a citizen [in Slaughter-House] ⋯ were a narrow class of privileges, enjoyed by virtue of United States citizenship and including things such as protection on the high seas.")
73. Newsom, supra note 17, at 655 ("Miller compiled a rather pitiful list of freedoms.")
74. see also Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 CHI.-KENT L. KEV. 627, 654 (1994) (arguing that "the obvious omission of free speech" from the Court's list is strong evidence against an incorpo-rationist reading). Moreover, Justice Bradley's dissent did mention portions of the Bill of Rights in his definition of privileges and immunities, which might imply that the Court's exclusion of them was significant. See Slaughter-House, 83 U.S. (16 Wall.) at 118-19 (stating that free speech, free press, trial by jury, peaceable assembly, and freedom of unreasonable searches and seizures were secured against state action by the Fourteenth Amendment).
75. See, e.g., Nordyke v. King, 563 F.3d 439, 446-47 (9th Cir. 2009) (stating that Slaughter-House read the Privileges or Immunities Clause as excluding "those preexisting rights the Bill of Rights merely protects from federal invasion");
76. Bogen, supra note 28, at 343 ("[T]he natural inference is that Miller was listing the privileges of national citizenship that existed when the amendment was adopted, not changing their substance.");
77. Newsom, supra note 17, at 678 ("Admittedly, a number of the freedoms Miller mentioned- such as the right to access seaports and to use navigable waterways-have little, if anything, to do with the 'Constitution'; they are structural rights ⋯ .")
78. Pence, supra note 17, at 540-41 ("[TJhe clause of the Fourteenth Amendment in question created no new privileges and immunities; it had reference only to existing privileges.").
79. See Slaughter-House, 83 U.S. (16 Wall.) at 79; see also Adamson v. California, 332 U.S. 46, 77 (1947) (Black, J., dissenting) ("The Court enumerated some, but refused to enumerate all of these national rights.");
80. cf. Newsom, supra note 17, at 681 ("Given Miller's general inclination to avoid unnecessary pronouncements of constitutional law, it is most reasonable to read his list-and particularly his reference to the right of assembly and the privilege of habeas corpus-as merely illustrative of the sorts of rights that he thought the Privileges or Immunities Clause protected, not as exhaustive of those rights.").
81. See, e.g., 2 CROSSKEY, supra note 37, at 1128 ("One of these rights, that of 'free assembly and petition,' is one of those covered by the first eight amendments. The Justice's 'suggestion' of this right was, then, susceptible of being taken as an indication that all the rights covered by the first eight amendments had been made good against the states ⋯ ."); Newsom, supra note 17, at 680 ("Having expressly invoked the right of assembly and the privilege of the writ of habeas corpus, it is hard to imagine why Miller would have thought that other textually specified freedoms (including many of those enumerated in the Bill of Rights) should not follow as well."); Wildenthal, supra note 39, at 1101-02 ("Having included habeas corpus and two First Amendment guarantees in such an avowedly nonexhaustive list, what other federal right 'specially designated in the Constitution' could the majority have intended to exclude?' (quoting Slaughter-House, 83 U.S. (16 Wall.) at 96 (Field, J., dissenting))).
82. See Slaughter-House, 83 U.S. (16 Wall.) at 80;
83. Newsom, supra note 17, at 678 (stating that several of the rights described by the Court "are uniquely constitutional, protected by the text of the Constitution itself cf.
84. id. at 678-83 (providing contemporary commentary that seems to accept this interpretation).
85. See, e.g., JOHN NORTON POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES 178 (Boston & New York, Houghton, Mifflin & Co. 1886) ("The decision made in the Slaughter-Rouse Case[s] can hardly be regarded as final in giving a construction to the fourteenth amendment.").
86. 17 U.S. (4 Wheat.) 316 (1819).
87. See, e.g., Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 622-23 (1869) (reasoning that M'Culloch required invalidation of the Legal Tender Act of 1862), overruled by Knox v. Lee, 79 U.S. (12 Wall.) 457, 541 (citing M'Culloch for the opposite conclusion);
88. GERARD N. MAGLIOCCA, ANDREW JACKSON AND THE CONSTITUTION: THE ElSE AND FALL OF GENERATIONAL EEGIMES 123-25(2007) (examining the ambiguity of Marshall's opinion). In Knox, the Court observed that "[wjhenever the extent of the 'auxiliary powers' of Congress is in controversy, those who take the most restrictive view are in the habit of quoting .. . M'Culloch v. Maryland: '[l]et the end be legitimate, let it be within the scope of the Constitution, and all the means which are appropriate, which are plainly adapted to that end, which are not prohibited, but are consistent with the letter and spirit of the Constitution, are constitutional.'" 79 U.S. (12 Wall.) at 523 (emphasis added) (quoting M'Culloch, 17 U.S. (4 Wheat.) at 421). Today, this statement from M'Culloch is considered the canonical statement of broad federal power.
89. See MAGLIOCCA, supra note 47, at 55-57, 71-73, 107-08, 117, 123-24 (exploring how M'Culloch's meaning evolved in fits and starts); THE FEDERALIST NO. 78, at 525 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (stating that when ambiguities exist in legal authority, "it is the province of the courts to liquidate and fix their meaning and operation").
90. Reliance on the congressional record from this era is problematic. See Bogen, supra note 28, at 375 ("These congressional remarks are not convincing evidence of the meaning of the majority opinion in Slaughter-House. The only members of Congress who expressly took the incorporation reading were southern Democrats opposed to the proposed civil rights laws.");
91. Wildenthal, supra note 39, at 1116-25 (pointing out that during the debate on the Civil Rights Act of 1875 some Democrats in Congress adopted the view that the Bill of Rights was totally incorporated).
92. Cf. Pence, supra note 17, at 536-37 (stating that in 1891 the question of incorporation was "one of great interest and importance and [was] comparatively untouched by direct judicial precedent"). 1 cannot find any cases-state or federal-giving Slaughter-House a pro-incorporation reading.
93. There is only one state case to the contrary. See State v. Bates, 47 P. 78, 79 (Utah 1896) (relying on Slaughter-House for its claim that the Fourteenth Amendment has "no application to [criminal] jury trials in state courts"). A Louisiana case could be placed in the same category as Bates. State ex rel. Walker v. Judge of Section A, Criminal Dist. Court, 1 So. 437, 440-41 (La. 1887) (invoking Slaughter-House to reject a Fourteenth Amendment claim against a state statute that required most businesses to close on Sundays). One could say, however, that in holding that the Louisiana law did not violate the state's Establishment Clause before discussing Slaughter-House, the Walker court's subsequent discussion of the federal claim was on the merits and did not squarely address incorporation. See id. at 439-40.
94. See, e.g., Ex parte Virginia, 100 U.S. 339, 365 (1879) (relying on Slaughter-House for the point that "the right to acquire and enjoy property" was not within the ambit of the Fourteenth Amendment);
95. cf. William L. Royall, The Fourteenth Amendment: The Slaughter-House Cases, 4 S.L. REV. 558, 581 (1878) (criticizing Slaughter-House for rejecting the common-law claims made by the butchers).
96. See, e.g., In re Kemmler, 136 U.S. 436, 448 (1890) (using Slaughter-House to make this point); United States v. Cruikshank, 92 U.S. 542, 549 (1875) (citing Slaughter-House for the concept that a person's "rights of citizenship under one of these governments will be different from those he has under the other").
97. See Maxwell v. Dow, 176 U.S. 581, 582, 602 (1900), abrogated by Williams v. Florida, 399 U.S. 78 (1970). The Court also rejected the contention that the trial violated due process. See id. at 602-05.
98. Id. at 587. In the majority opinion, Justice Peckham noted that the same argument was made a decade earlier, but the Court was able to avoid the issue. See id. (citing Ex parte Spies, 123 U.S. 131, 182 (1887)).
99. Id. at 591; see also id. at 587-91 (discussing Slaughter-House).
100. Instead of reexamining Maxwell's reading of Slaughter-House, the Court eventually incorporated the Bill of Rights through the Due Process Clause under a test developed in the 1930s by Justice Cardozo. See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (asking whether a right is "implicit in the concept of ordered liberty"), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969).
101. This observation is certainly correct with respect to federal cases, and appears to be true for state decisions as well, although I have not read every state case that might be relevant. One lower federal court case that preceded Slaughter-House did hold that the substantive portions of the Bill of Rights, specifically the rights of free speech and petition, applied to state legislation through the Fourteenth Amendment. See United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871). And Presser v. Illinois presented a substantive incorporation claim, but that case involved labor unrest. See Presser v. Illinois, 116 U.S. 252, 254 (1886).
102. See, e.g., Adamson v. California, 332 U.S. 46, 64 (1947) (Frankfurter, J., concurring); infra notes 70-72 and accompanying text. One explanation for this distinction is that the gap between procedural protections in the Federal Constitution and state constitutions tilted the claims in the procedural direction because litigants in states without those protections would have had a clear reason to invoke the federal right. See Adamson, 332 U.S. at 64 (Frankfurter, J., concurring) ("It could hardly have occurred to these States that by ratifying the Amendment they uprooted their established methods for prosecuting crime and fastened upon themselves a new prosecutorial system."). Moreover, issues such as the grand jury and civil jury rights were basically binary-you either got one or you did not. A claim based on the deprivation of one of these was more likely to be decided than one based on a right with substantive content, because a court could easily reject the argument on the merits while assuming arguendo that incorporation was applicable. See, e.g., infra note 81.
103. Walker v. Sauvinet, 92 U.S. 90, 92 (1875). In Missouri v. Lewis, the Supreme Court also argued that the Fourteenth Amendment does not grant the same legal benefits and remedies to everyone in the United States. 101 U.S. 22, 31 (1879) ("Great diversities ⋯ may exist in two States separated only by an imaginary line. On one side of the line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding."). But see Pence, supra note 17, at 542-43 (dismissing Walker's relevance in this area)
104. Wildenthal, supra note 39, at 1139 (suggesting that Walker should not be discussed at all, as "[a] study of the briefs filed with the Court reveals that Walker did not even raise before the Court the jury trial incorporation issue the Court decided').
105. See Hurtado v. California, 110 U.S. 516, 538 (1884) (rejecting the argument that charging a criminal defendant by prosecutorial information instead of grand-jury indictment "after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law").
106. See Ex parte Spies, 123 U.S. 131, 167-80 (1887) (reviewing the voir dire proceedings of the challenged jurors);
107. id. at 180-81 (concluding that petitioners' Fourth Amendment claim was procedurally defaulted). Spies presents two special problems. First, because petitioners brought the case on an application for a writ of error, the Court assumed that the incorporation claims were valid and rejected the Fifth and Sixth Amendment arguments on the merits. See id. at 179-81
108. Pence, supra note 17, at 547 ("The practice [for writs of error] is to deny the application when it is manifest upon inspection of the record that the Federal questions involved were rightly decided.")
109. Wildenthal, supra note 9, at 1491 ("[The Spies Court] held, following detailed but unconvincing analysis, that [there was] no violation of the asserted Bill of Rights guarantees themselves (even assuming them to be applicable)."). Second, Spies came about because of the Haymarket Riot-exactly the type of protest that made incorporation less palatable during the 1890s. See infra note 122.
110. See Eilenbacker v. Dist. Court, 134 U.S. 31, 35-39 (1890)
111. see also Brown v. New Jersey, 175 U.S. 172, 175-77 (1899) (rejecting the claim that a nonstandard jury selection method was inconsistent with the Fourteenth Amendment's Due Process and Equal Protection Clauses).
112. Although the text focuses on nineteenth-century views of this question, the sentiments expressed then carried over into the twentieth century. See, e.g., Adamson v. California, 332 U.S. 46, 67 (1947) (Frankfurter, J., concurring) ("A construction which gives to due process no independent function but turns it into a summary of the specific provisions of the Bill of Rights ⋯ would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom.").
113. 30 Wis. 129 (1872)
114. Id. at 149.
115. Id.
116. Id.
117. See Hurtado v. California, 110 U.S. 516, 530 (1884) ("[Flexibility and capacity for growth and adaptation is [sic] the peculiar boast and excellence of the common law.").
118. Hurtado, 110 U.S. at 528-29 (responding to an earlier case suggesting that the specific procedural rights in the Constitution defined the Due Process Clause of the Fifth Amendment).
119. Id. at 530; see also Brown v. New Jersey, 175 U.S. 172, 175 (1899) ("The State is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at the common law. .. . [l]t may avail itself of the wisdom gathered by the experience of the century to make such changes as may be necessary.")
120. Hurtado, 110 U.S. at 531 ("[WJe should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.").
121. Hurtado, 110 U.S. at 532.
122. See supra text accompanying note 1 (suggesting that the procedures set forth in the Bill of Rights were "peculiar," and not "fundamental," to Anglo-American law);
123. see also Adamson v. California, 332 U.S. 46, 62-63 (1947) (Frankfurter, J., concurring) (arguing that requiring indictment-based prosecutions and court trials for petty civil cases, or prohibiting prosecutors from drawing adverse inferences from a defendant's failure to testify "is, in de Toc-queville's phrase, to confound the familiar with the necessary").
124. See Adamson, 332 U.S. at 67 (Frankfurter, J., concurring) ("A construction which gives to due process no independent function but turns it into a summary of the specific provisions of the Bill of Rights ⋯ would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom.").
125. Justice Miller, the author of Slaughter-House, expressed this sentiment regarding civil juries. See Newsom, supra note 17, at 730-32 (revealing Justice Miller's "aversion to the institution of the civil jury").
126. See Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights'?, 2 STAN. L. REV. 5, 82-83 (1949);
127. see also AMAR, supra note 12, at 198 ("Fairman's most dramatic evidence concerns the grand jury."); Wilden-thal, supra note 9, at 1476-79 (discussing Professor Fairman's argument about grand juries and incorporation).
128. See Fairman, supra note 76, at 82 (noting that if the states had truly understood that ratification of the Fourteenth Amendment would incorporate the Bill of Rights to the states, "then almost certainly each legislature would take note of what the effect would be upon the constitutional law and practice of its own state");
129. id. at 84-132 (concluding from his exhaustive survey that many ratifying states did not require civil jury trial or grand jury indictment as the Bill of Rights contemplated). New Hampshire provided the only exception because some provisions of the State Constitution were probably at odds with the Establishment Clause. See id. at 86. But see AMAH, supra note 12, at 198 (criticizing Fairman's argument for failing to take into account that "[i]n
130. Amar does not mention any members of Congress who said that they wanted to see the grand or civil jury applied to the states, except in a few cases where someone listed the entire Bill of Rights. See AMAR, supra note 12, at 197. And Curtis only identifies one example. See CUETIS, supra note 12, at 164 (finding one Congressperson who singled out the grand jury).
131. To be sure, not everyone involved in the ratification of the Fourteenth Amendment accepted this distinction, nor do the scholars take an all-or-nothing view. See Everson v. Board of Educ, 330 U.S. 1, 14-15 (1947) (incorporating the Establishment Clause);
132. Near v. Minnesota, 283 U.S. 697, 707 (1931) (applying the Free Press Clause to the states). Similarly, Amar admits there is a reasonable argument against incorporating the Seventh Amendment. See AMAR, supra note 12, at 276.
133. 144 U.S. 323 (1892).
134. See id. at 337-66 (Field, J., dissenting). One prior Eighth Amendment case rejected incorporation, but that was on an application for a writ of error and was a decision on the merits. In re Kemmler, 136 U.S. 436, 449 (1890) (concluding that execution by the electric chair was not cruel and unusual punishment) (citing Ex parte Spies, 123 U.S. 131, 143 (1887)). Another Eighth Amendment case followed in Kemmler's footsteps a year later. McElvaine v. Brush, 142 U.S. 155, 158-59 (1891) (rejecting a claim that solitary confinement imposed a week before execution was cruel and unusual and strongly suggesting that the decision was on the merits). Unless these cases are treated as assuming that incorporation was valid, it is hard to reconcile them with O'Neil, in which many of the same Justices decided that the Eighth Amendment applied to the states.
135. See O'Neil, 144 U.S. at 331 (1892) (describing the state court judgment);
136. id. at 339 (Field, J., dissenting) (observing that a jury convicted O'Neil "to be confined at hard labor in the house of correction, for the term of nineteen thousand nine hundred and fourteen days, a period of over fifty-four years");
137. see also Wildenthal, supra note 9, at 1494-95 (describing the Vermont statute).
138. See O'Neil, 144 U.S. at 331-32.
139. See id. at 359 (Field, J., dissenting) (arguing that when jurisdiction is established, the Justices "may look into the whole record" and take up issues that were raised in state court);
140. id. at 370 (Harlan, J., dissenting) ("It is true the assignments of error do not, in terms, cover this point, but it is competent for this court to consider it, because we have jurisdiction ⋯.").
141. Id. at 363 (Field, J., dissenting).
142. Id.
143. See AMAB, supra note 12, at 228 ("Field went on to distinguish between those aspects of the Bill that were mere limitations on power' and those that instead 'declare or recognize the rights of persons.'" (quoting O'Neil, 144 U.S. at 363 (Field, J., dissenting))). To be fair, Justice Field did include the right against self-incrimination in his discussion of privileges or immunities, so his analysis cannot be reduced to a simple line between procedure and substance. See O'Neil, 144 U.S. at 363 ("The state cannot ⋯ compel [a United States citizen] to be a witness against himself in a criminal prosecution.").
144. Justice Harlan's dissent, by contrast, backed Justice Field's view about the Eighth Amendment but did not suggest that procedural rights were excluded. See O'Neil, 144 U.S. at 370 (Harlan, J., dissenting) ("[S]ince the adoption of the Fourteenth Amendment, no one of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States, can be denied or abridged by a State in respect to any person within its jurisdiction. These rights are, principally, enumerated in the earlier Amendments of the Constitution.");
145. see also Hurtado v. California, 110 U.S.516, 539 (1884) (Harlan, J., dissenting) (stating that procedural protections such as the grand jury were fundamental).
146. 92 U.S. 542 (1875). For a detailed narrative of the events surrounding Cruikshank, see CHARLES LANE, THE DAY FREEDOM DIED: THE COLFAX MASSACRE, THE SUPREME COURT, AND THE BETRAYAL OF RECONSTRUCTION (Henry Holt & Co. ed., 2008).
147. 96 U.S. 97 (1877).
148. See Cruikshank, 92 U.S. at 552-53 (stating that the First and Second Amendments are not supposed to limit the state governments).
149. See id. at 548, 551-53;
150. Newsom, supra note 17, at 712 (explaining that the petitioners in Cruikshank "attacked and killed a group of more than sixty black citizens" and were convicted of interfering with their rights to assemble and bear arms);
151. Wildenthal, supra note 39, at 1148-49 (noting that the facts of the Cruikshank case resulted from the violent Colfax massacre).
152. Cruikshank, 92 U.S. at 552, 556-57. It is not clear what the Court meant here. See id. at 552 (observing that the rights of assembly and petition, "or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States");
153. see id. at 552-53 (stating that the indictment did not allege that the defendants were trying to prevent a petition meeting);
154. Newsom, supra note 17, at 714-16 (arguing that there was a difference between the right to petition the government, which was protected under the Fourteenth Amendment, and the right to assemble for other purposes, which was just a common-law right). But see Cruikshank, 92 U.S. at 552 ("The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.");
155. Wildenthal, supra note 39, at 1158 (suggesting that the Court was describing a structural right of assembly, not the First Amendment right); sources cited supra note 41 (positing that the discussion of "natural rights" in Slaughter-House referred to structural rights).
156. Cruikshank, 92 U.S. at 553.
157. See Newsom, supra note 17, at 720 ("[The Cruikshank holding] turned exclusively on the absence of state action.");
158. Pence, supra note 17, at 544 (arguing that the Cruikshank Court's conclusion that the Fourteenth Amendment secured no rights against fellow citizens was not relevant to incorporation);
159. Royall, supra note 51, at 582 (explaining that the Cruikshank outcome does not implicate incorporation because the State of Louisiana did not "make[] or enforce[] some law abridging the fundamental rights of citizens").
160. Cruikshank, 92 U.S. at 554.
161. Id. at 553.
162. It would be naive to downplay the impact of this dictum on the Court's subsequent rulings, as the Maxwell Court cited Cruikshank to support its conclusion that the Privileges or Immunities Clause did not apply the Bill of Rights to the states. See Maxwell v. Dow, 176 U.S. 581, 593 (1900) (arguing that Cruikshank would have to be overruled if incorporation went forward), abrogated by Williams v. Florida, 399 U.S. 78 (1900). My point is that reliance on this dictum was either sloppy or driven by the external political forces described in Part III.
163. See District of Columbia v. Heller, 128 S. Ct. 2783, 2812-13 (2008)
164. Id. at 105.
165. Id.
166. see also id. at 107 (Bradley, J., concurring) (stating his view that, under the Fourteenth Amendment, the Takings Clause did apply to the states).
167. See, e.g., In re Comm'rs of First Draining Dist., 27 La. Ann. 20, 21 (1875), aff'd sub nom. Davidson v. New Orleans, 96 U.S. 97 (1877) (explaining that this state court opinion will consider only three claims, none of which include a takings claim);
168. see also Davidson, 96 U.S. at 98 (lacking any reference to a takings claim in the summary of the petitioner's argument). In a previous article, I incorrectly stated that Davidson held that the Takings Clause was not incorporated. See Gerard N. Magliocca, Constitutional False Positives and the Populist Moment, 81 NOTRE DAME L. REV. 821, 882 (2006).
169. See Chi. Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 235 (1897) (explaining that the Davidson analysis supports the proposition that a naked transfer of property would violate due process)
170. See Maxwell v. Dow, 176 U.S. 581, 596 (1900) ("The Fourteenth Amendment, it must be remembered, did not add to those privileges or immunities."), abrogated by Williams v. Florida, 399 U.S. 78 (1900);
171. id. at 594 (noting that "a trial by jury in suits at common law in the state courts" is not protected by the Fourteenth Amendment (citing Walker v. Sauvinet, 92 U.S. 90, 93 (1875)));
172. id. at 598 (considering that the Fourteenth Amendment did not bar a state from adopting "any system of laws or judicature it sees fit for all or any part of its territory" (citing Missouri v. Lewis, 101 U.S. 22, 31 (1879)));
173. id. at 602-03 (concluding that the Fourteenth Amendment does not prohibit prosecuting a "person charged with murder by an information [instead of an indictment] under state constitution and law" (citing Hurtado v. California, 110 U.S. 516, 538 (1884)));
174. id. at 605 ("[T]he state has full control over the procedure in its courts ⋯ subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution." (quoting Brown v. New Jersey, 175 U.S. 172 (1899))).
175. One final piece of evidence that supports the Court's "two-tiered" approach to the Bill of Rights comes from Dowries v. Bidwell, which was quoted at the beginning of this Article and made the distinction explicit. See supra text accompanying note 1. Dowries was one of the Insular Cases, a group of cases that examined whether the Constitution applied to the territories acquired by the United States during the Spanish-American War. See Downes v. Bidwell, 182 U.S. 244, 249 (1901) (discussing whether the revenue clauses of the Constitution "extend of their own force to our newly acquired territories"). This question was analogous to the incorporation issue, which considered whether the Bill of Rights applied to the states.
176. See infra text accompanying notes 160-65 and accompanying text;
177. cf. Edward S. Corwin, The Dred Scott Decision in the Light of Contemporary Legal Doctrines, 17 AM. HIST. REV. 52, 66 (1911) (stating that in the mid-1890s "the Supreme Court began to regard itself as the last defense of the country against socialism").
178. 116 U.S. 252(1886).
179. See, e.g., FlSS, supra note 24, at 38 (noting that the Homestead Strike of 1892 was one example of how laborers "in the early 1890s confronted capitalism in massive, bitter, and often violent ways").
180. See DONALD GR1ER STEPHENSON, JR., CAMPAIGNS AND THE COURT: THE U.S. SUPREME COURT IN PRESIDENTIAL ELECTIONS 120 (1999).
181. See O'Neil v. Vermont, 144 U.S. 323, 371 (1892) (Harlan, J., dissenting) (noting that Justice Brewer "in the main" concurred with the dissenters). Granted, there is an ambiguity here, since we do not know exactly with what Justice Brewer was concurring. Nevertheless, the most reasonable interpretation is that he agreed with the incorporationist position.
182. See Presser, 116 U.S. at 253-54;
183. see also Stephen P. Halbrook, The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts Against Application of the Bill of Rights to the States, 76 U. DET. MERCY L. REV. 943, 975-76 (1999).
184. See Presser, 116 U.S. at 254;
185. Halbrook, supra note 112, at 947 ("Founded in reaction to election fraud and police violence, the Lehr und Wehr Verein modeled itself on the republican tradition of the armed citizen militia .⋯");
186. LaRue, supra note 23, at 387 (noting that "the organization of 'self-defense' associations" increased as a response to the Great Strike of 1877).
187. Presser, 116 U.S. at 253.
188. Halbrook, supra note 112, at 956 (referring to the Chicago Daily Times Herald) (internal quotation marks omitted).
189. See Presser, 116 U.S. at 267. The Illinois statute was also attacked for being inconsistent with the Militia Act of 1792 and the Militia Clause of Article 1, Section 8 of the United States Constitution. See id. at 261-64 (rejecting this statutory challenge);
190. id. at 268-69 (rejecting the Militia Clause argument). Notably, Presser failed to cite any specific right in support of his Fourteenth Amendment argument. See id. at 267 ("The only clause in the constitution which, upon any pretence, could be said to have any relation whatever to his right to associate with others as a military company is found in the First Amendment⋯ .").
191. See id. at 264-65.
192. See id. at 266-67 (citing United States v. Cruikshank, 92 U.S. 542 (1875)). The Court's citation of Cruikshank lends support to Newsom's interpretation of the assembly right in that case as a constitutional, rather than structural, right. See supra note 93.
193. Presser, 116 U.S. at 268.
194. Id.
195. see Halbrook, supra note 112, at 978 ("[T]he incident before the Court involved a peaceable march, where Presser intentionally got himself ar-rested, probably with the cooperation of local authorities, in order to test the law's validity.").
196. Presser, 116 U.S. at 266-67.
197. Ex parte Spies, 123 U.S. 131 (1887), also presented a version of this problem. Petitioners-including members of Lehr und Wehr Verein-were convicted of causing the Haymarket Riot, a labor protest in Chicago that led to several deaths. See Halbrook, supra note 112, at 980 (stating that the named party in Spies was a Lehr und Wehr Verein member);
198. LaRue, supra note 23, at 388-89 (describing the Haymarket events in the context of larger labor unrest). While the case raised incorporation claims about trial procedures, it is hard to avoid the conclusion that the petitioners' argument failed in part because of disdain toward their political attitudes. See Wildenthal, supra note 9, at 1485 ("Among other problems, the trial judge and jury were hopelessly biased against the defendants, jury selection was rigged, the prosecutor was allowed to indulge in outrageous misconduct and to introduce inflammatory and irrelevant evidence focusing on the defendants' unpopular political views, and the trial judge authorized the jury to convict on the basis of a startlingly far-reaching and legally unfounded theory of conspiracy and accomplice liability.");
199. see also Halbrook, supra note 112, at 985 ("[A]ll of the Haymarket defendants, after a public education campaign led in part by Clarence Darrow, would be pardoned posthumously in 1893 by Illinois Governor John Altgeld, on the basis of a total lack of evidence to convict them.").
200. ALLAN NEVINS, GROVER CLEVELAND: A STUDY IN COURAGE 649 (1932).
201. See HERBERT CROLY, MARCUS ALONZO HANNA: HIS LIFE AND WORK (1912) ("[T]he business depression, coincident with Mr. Cleveland's second administration, stirred the American people more deeply and had graver political consequences than had any previous economic famine.");
202. FlSS, supra note 24, at 39 (explaining that the rate of unemployment in manufacturing may have reached fifty percent).
203. See JAMES L. HUNT, MARION BUTLER AND AMERICAN POPULISM 38 (2003) (discussing the formation of the Populist Party);
204. Magliocca, supra note 103, at 834-40 (laying out the grievances of the rural reform movement that led to the founding of the Populist Party in 1891).
205. See, e.g., EDWARD IRVING, BREAKERS AHEAD!: AN ANSWER TO THE QUESTION WHERE ARE WE AT? 59 (Stockton, T.W. Hummel Co. 1894) ("There is but one party which is ready, willing and eager to tear from off the people the OCTOPUS CLASP of the money power. That party is the PEOPLE'S PARTY.");
206. MICHAEL KAZIN, A GODLY HERO: THE LIFE OF WILLIAM JENNINGS BRYAN 61 (2006) ('"[W]e will answer their demand for a gold standard by saying to them: You shall not press down upon the brow of labor this crown of thorns, you shall not crucify mankind upon a cross of gold.'" (quoting William Jennings Bryan, Democratic National Convention: The Cross of Gold (July 9, 1896)));
207. JOHN D. HICKS, THE POPULIST EEVOLT: A HISTORY OF THE FARMERS' ALLIANCE AND THE PEOPLE'S PARTY 442-43 (1931) (quoting the Omaha Platform, a manifesto adopted by the Populist Party at their founding convention on July 4, 1892, which described the Populists' goals to "demand free and unlimited coinage of silver," and to nationalize railroads, the telegraph, telephones, and banks) (internal quotation marks omitted);
208. id. at 440 (talking about the need to prevent "governmental injustice [that] breed[s] the two great classes-tramps and millionaires").
209. See, e.g., JOSEPH COLUMBUS MANNING, FADEOUT OF POPULISM 35 (1928) ("The Peoples Party ⋯ did bring to the South its first real democracy and the only democracy the South has ever known.");
210. Magliocca, supra note 103, at 862 n.234 ('"We condemn lynching and demand of our public servants the rigid enforcement of our laws against this barbarous practice."' (quoting Georgia Populists Platform, PEOPLE'S PARTY PAPER, Sept. 11, 1896, at 8));
211. see also C. VANN WOODWARD, TOM WATSON: AGRARIAN REBEL 220 (1938) (quoting from Georgian Populist leader Tom Watson's statements to African-American and white voters in 1892 that "[y]ou are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism which enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars both") (internal quotation marks omitted).
212. See, e.g., RICHARD HOFSTADTER, THE AGE OF REFORM 82 (1955) (quoting Tom Watson as stating that "[sjome of our principal cities are more foreign than American⋯ . The vice and crime which they have planted in our midst are sickening and terrifying") (internal quotation marks omitted).
213. See BRANDS, supra note 24, at 160-76 (describing Coxey's March).
214. See id. at 171 (quoting the New York Times);
215. id. at 171-73 (describing the clash between the police and protesters); MARTIN RlDGE, IGNATIUS DON-NELLY: THE PORTRAIT OF A POLITICIAN 329-30 (1962) (recounting the violence that met the protesters in Washington, D.C.); cf. Editorial, The Right to Petition, WEALTH MAKERS, Apr. 5,1894, in THE POPULIST MIND, supra note 24, at 345 (arguing that governmental reaction to Coxey's March infringed on the Petition Clause). White supremacists in the South launched a similar, though more vicious, campaign to intimidate and silence the Populists there. See WOODWARD, supra note 127, at 236-41 (describing the climate of terror that pervaded the 1892 campaign in Georgia); cf. MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 3 (2004) ("In the years 1895-1900, an average of 101 blacks were lynched a year-mostly in the South. In 1898, a white supremacist campaign to eliminate black political influence culminated in a race riot in Wilmington, North Carolina, which killed at least a dozen blacks.").
216. JEAN STROUSE, MORGAN: AMERICAN FINANCIER 336 (1999) (internal quotation marks omitted).
217. Id.
218. See FlSS, supra note 24, at 53-57 (recounting the historical circumstances and rhetorical progression of the speech);
219. STEPHENSON, JR., supra note 110, at 120 (describing Justice Brewer's speech as "prescient" in relation to Debs). This speech occurred a year before the Pullman Strike, but the sentiments expressed by Justice Brewer do shed light on Debs and, for the reasons stated in the text, the drift of incorporation thinking. See infra Part III.B.
220. O'Neil v. Vermont, 144 U.S. 323, 366-71 (1892) (Harlan, J., dissenting).
221. Maxwell v. Dow, 176 U.S. 581 (1900), abrogated by Williams v. Florida, 399 U.S. 78 (1900).
222. Since Maxwell concerned a procedural claim, Justice Brewer's vote there could be squared with his contrary view in O'Neil. Id. at 602. On the other hand, Brewer never again endorsed incorporation except in relation to the Takings Clause.
223. See FlSS, supra note 24, at 53.
224. See STEPHENSON, JR., supra note 110, at 120. This concern for property rights runs through Justice Brewer's jurisprudence, and was on display in one of his prior dissents. See Budd v. New York, 143 U.S. 517, 551 (1892) (Brewer, J., dissenting) ("The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection of him and his property, is both the limitation and duty of government. If it may regulate the price of one service, which is not a public service, or the compensation for the use of one kind of property which is not devoted to a public use, why may it not with equal reason regulate the price of all service, and the compensation to be paid for the use of all property?").
225. FlSS, supra note 24, at 56-57.
226. See Presser v. Illinois, 116 U.S. 252, 267 (1886).
227. See, e.g., In re Debs, 158 U.S. 564, 582 (1895) ("The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care.").
228. See FlSS, supra note 24, at 73 ("The Chicago disturbance started as an ordinary strike but quickly took on extraordinary dimensions. It created a mass disorder, paralyzing the national rail and postal systems and threatening the very idea of an economic union.");
229. see also Proclamation No. 11, 28 Stat. 1249 (1894), reprinted in 9 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 499 (James D. Richardson ed., 1899) [hereinafter Emergency Order] ("[I]t has become impracticable in the judgment of the President to enforce by the ordinary course of judicial proceedings, the laws of the United States within the State of Illinois and especially in the City of Chicago ⋯ .").
230. 158 U.S. 564, 566-67 (1895).
231. See BRANDS, supra note 24, at 147-49 (describing the strike);
232. PAPKE, supra note 24, at 11-25 (providing background on these events).
233. See FlSS, supra note 24, at 65 (noting that Governor Altgeld "was prepared to deploy state law enforcement against actual violence ⋯ [but] was not in the least inclined" to interfere with the strike itself);
234. see also BRANDS, supra note 24, at 153 (describing Governor Altgeld's pro-union sympathies).
235. W.P. BURNS, THE PULLMAN BOYCOTT 63 (Saint Paul, McGill Printing
236. see also WILLIAM JENNINGS BRYAN, THE FIRST BATTLE: A STORY OF THE CAMPAIGN OF 1896, at 410-11 (Chicago, W.B. Conkey Co. 1896) (asserting that the Guarantee Clause implied that state officials needed to give their permission before federal troops could enter a state for law enforcement).
237. See BRANDS, supra note 24, at 152. This action was grounded in the federal government's Commerce Clause authority, which was ironic because it was the Populists who brought the Commerce Clause back into the legal mainstream.
238. See Magliocca, supra note 103, at 840-44, 849-50 (exploring this issue).
239. See PAPKE, supra note 24, at 33 (noting that eleven people were killed and fifty were wounded);
240. See also Emergency Order, supra note 142, at 499 ("Those who disregard this warning and persist in taking part with a riotous mob in forcibly resisting and obstructing the execution of the laws of the United States ⋯ cannot be regarded otherwise than as public enemies.").
241. See, e.g., DELMORE ELWELL, A WALL STREET VIEW OF THE CAMPAIGN ISSUES OF 1896, at 4 (1896) (discussing the "railroad strike riots of 1894" and stating that "[tjhere are still a few blue-coated veterans of the Civil War who will⋯ register a prayer for a revival of the spirit of 1860");
242. PAPKE, supra note 24, at 35 (observing that the nation was "fighting for its own existence just as truly as in suppressing the great rebellion") (internal quotation marks omitted).
243. REPUBLICAN CAMPAIGN TEXT BOOK 138 (Washington, Hartman & Cadick 1896).
244. CAMPAIGN TEXT-BOOK OF THE NATIONAL DEMOCRATIC PARTY 1896, at 1.93 (Chicago & New York, Nat'l Democratic Comm. 1896) (providing the views of Democrats who rejected Bryan's platform in 1896).
245. PAPKE, supra note 24, at 32 (internal quotation marks omitted).
246. See U.S. CONST, art. I, § 10, cl. 1 (stating that no state may pass any law "impairing the Obligation of Contracts" or "make any Thing but gold and silver Coin a Tender in Payment of Debts");
247. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833) (holding that the Bill of Eights does not apply to the States).
248. O'Neil v. Vermont, 144 U.S. 323, 362 (1892) (Field, J., dissenting).
249. There is a powerful connection between this idea and other significant legal developments at this time. First, in the same year that Debs was decided, the Court handed down its controversial ruling in Pollock v. Farmers' Loan & Trust Co., which held that the federal income tax enacted in 1894 was unconstitutional. Pollock v. Farmers' Loan & Trust Co. (Pollock I), 157 U.S. 429, 583, 586 (1895), modified on reh'g, 158 U.S. 601 (1895);
250. See also Magliocca, supranote 103, at 864-73 (discussing the decision and the rehearing petition). Pollock I reversed a century of judicial deference to congressional tax policy and rested on concern about the growing clamor for redistribution, which indicates the strong influence of political events on doctrine.
251. See Pollock I, 157 U.S. at 608 (White, J., dissenting) ("[T]he result of the opinion ⋯ just announced is to overthrow a long and consistent line of decisions, and to deny to the legislative department of the government the possession of a power conceded to it by universal consensus for one hundred years ⋯ .");
252. Pollock v. Farmers' Loan & Trust Co. (Pollock II), 158 U.S. 601, 674 (1895) (Harlan, J., dissenting) ("[B]y much eloquent speech this court has been urged to stand in the breach for the protection of the just rights of property against the advancing hosts of socialism.").
253. Second, African American voting rights disappeared during this era, even though the Fifteenth Amendment guaranteed this privilege against state action. See, e.g., Giles v. Harris, 189 U.S. 475, 486-88 (1903) (holding that courts had no power to order an equitable remedy for voting restrictions in Alabama);
254. C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 83-85 (commemorative ed. 2002) (chronicling the proliferation of disenfranchisement measures in the South during the 1890s and early 1900s);
255. Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 CONST. COMMENT. 295, 296 (2000) ("If canonization requires a ready focal point, [Giles] is it for (anti-)democracy in American constitutional law."). This disincorporation of voting rights (and it may be fairly called that) was driven by a desire to deprive the Populists of support.
256. See Burton D. Wechsler, Black and White Disenfranchisement: Populism, Race, and Class, 52 AM. U. L. REV. 23, 29 (2002) ("The Populist agenda was too dangerous, Populist appeal too popular, Populist growth too alarming, and the enormity of the black belt vote fraud too embarrassing for the Bour-bon[] [Democrats] to shoulder.");
257. Florence Emeline Smith, The Populist Movement and Its Influence in North Carolina (Dec. 1929) (Ph.D. dissertation, University of Chicago), microformed on Thesis No. 7938 (Dep't of Photodupli-cation, Univ. of Chi. Library) ("The Democrats did not wish to continue such campaigns as the one of 1898 and the only way to prevent the regular recurrence of them every two years was to disenfranchise the negro.").
258. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74-78 (1873).
259. See In re Debs, 158 U.S. 564, 572-73, 599-600 (1895).
260. Id. at 576-77.
261. PAPKE, supra note 24, at 64 (quoting from petitioners' brief) (internal quotation marks omitted);
262. See also In re Debs, 158 U.S. at 576-77 (noting petitioners' Sixth Amendment argument);
263. JOSEPHSON, supra note 24, at 606 (stating that an injunction "was a formidable legal weapon, making possible imprisonment for contempt of court without a hearing, and without trial by jury, of those who organized labor action").
264. See In re Debs, 158 U.S. at 581.
265. Id. at 581-82.
266. Id. at 582.
267. See text accompanying note 2.
268. See supra Part 111.A.
269. In re Debs, 158 U.S. at 592.
270. See, e.g., Magliocca, supra note 103, at 860-64 (discussing Debs in the context of the Commerce Clause).
271. See supra text accompanying notes 60-75.
272. See Lorenzo D. Lewelling, Governor of Kan., Industrial Slavery (July 28, 1894), in THE POPULIST MIND, supra note 24, at 8 ("Under the decision of the United States Supreme Court you have no right to convince a man to your opinion. You have no right to ask a man to quit work today, no matter what the cause."). A similar argument was made about the attack on Coxey's March. See BRANDS, supra note 24, at 174-75.
273. The campaign reinforced the themes that emerged during the Pullman Strike, and 1 will not repeat them at length here. See, e.g., James A. Barnes, Myths of the Bryan Campaign, in WILLIAM JENNINGS BRYAN AND THE CAMPAIGN OF 1896, at 68, 73 (George F. Whicher ed., 1953) (referencing the Philadelphia Press's view that Bryan's 1896 platform "is the concrete creed of the mob. It is rank Populism intensified and edged with hate and venom. It rests upon the four corner stones of organized Repudiation, deliberate Confiscation, chartered Communism, and enthroned Anarchy") (internal quotation marks omitted);
274. The Week, NATION (N.Y.), Nov. 5, 1896, at 337 ("Probably no man in civil life has succeeded in inspiring so much terror, without taking life, as Bryan.").
275. See, e.g., Chi. Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 233-41 (1897) (applying the Takings Clause to the states through the Due Process Clause). There is nothing to be gained from discussing the Takings Clause further, as that result was consistent with the Court's greater enthusiasm for substantive incorporation (as discussed in Part 11) and the shift in favor of federal property protection after the Populist revolt.
276. See Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897).
277. See id. at 589-92;
278. See also Magliocca, supra note 103, at 881-87 (discussing how AUgeyer and Chicago Burlington & Quincy Railroad Co. fit into the narrative of the Populist defeat).
279. 198 U.S. 45 (1905).
280. 176 U.S. 581, 582 (1900), abrogated by Williams v. Florida, 399 U.S. 78 (1900).
281. AUgeyer, 165 U.S. at 589.
282. See Adamson v. California, 332 U.S. 46, 80 (1947) (Black, J., dissenting) ("[The Court in AUgeyer] substantially adopted the rejected argument of counsel in the Slaughter-House Cases, that the Fourteenth Amendment guarantees the liberty of all persons under 'natural law' to engage in their chosen business or vocation.").
283. See supra text accompanying notes 56-57.
284. See supra text accompanying note 105. Justice Harlan, the lone dissenter in Maxwell, rejected the distinction between substantive and procedural incorporation.
285. See Maxwell, 176 U.S. at 616 (Harlan, J., dissenting) ("The privileges and immunities specified in the first ten Amendments as belonging to the people of the United States are equally protected by the Constitution. No judicial tribunal has authority to say that some of them may be abridged by the states while others may not be abridged.").
286. See Maxwell, 176 U.S. at 593 (arguing that if the Fourteenth Amendment incorporates the Bill of Rights, "then the sovereignty of the State in regard to [its citizens] has been entirely destroyed, and the Slaughter-house cases, and United States v. Cruikshank are all wrong, and should be overruled").
287. See Allgeyer, 165 U.S. at 589.
288. See supra note 12 and accompanying text. The Justices were probably reluctant to overrule Slaughter-House explicitly because it was the Court's first case interpreting the Fourteenth Amendment. Repudiating such a decision outright would be a major embarrassment.
289. Maxwell, 176 U.S. at 614 (Harlan, J., dissenting).
290. See Presser v. Illinois, 116 U.S. 252, 268 (1886).
291. See In re Debs, 158 U.S. 564, 597-98 (1895).
292. See Allgeyer, 165 U.S. at 589.
293. See O'Neil v. Vermont, 144 U.S. 323, 366-71 (1892) (Harlan, J., dissenting).
294. See Maxwell, 176 U.S. at 593.
295. The Third Amendment is an unincorporated substantive provision, but that
296. In Cruikshank, the Second Amendment analysis turned on the lack of state action. See supra text accompanying note 94. In Presser, the Second Amendment claim failed because the Fourteenth Amendment was not cited. See supra text accompanying note 117. And in Miller v. Texas, 153 U.S. 535, 538 (1894), the argument was dismissed because no Second Amendment claim was raised in the lower courts.