Published online by Cambridge University Press: 21 March 2017
Scholars of judicial behavior have persuasively demonstrated that parties profoundly influence the elaboration of judicial doctrine, but have paid more limited attention to understanding how courts can transform the content of party agendas. In this article, I argue that judges can work to deliberately define the issue positions adopted by the political parties with which they are affiliated. I contend that judges can, like other political actors, use the tools of their office to further explicitly partisan goals. Although they may employ traditional modes of legal reasoning, judges may nevertheless craft their decisions in ways that prioritize certain party principles over others, interpret the law in ways that knit together the beliefs of divergent factions within their party coalition, articulate principles to guide the party's incorporation of new issues, and, in some instances, begin to outline a coherent ideological vision for the party. I develop this theory through a close examination of the Slaughterhouse Cases, regularly cited as a core building block of the American constitutional canon.
I thank Ruth Bloch Rubin, Bob Kagan, and Tony Chen and the editorial team at Studies in American Political Development for their constructive comments on multiple drafts of this article. I also benefited greatly from discussions with Sean Farhang, Jon Gould, Paul Pierson, Eric Schickler, Gordon Silverstein, and seminar participants in the University of California, Berkeley, American Political Development working group. I gratefully acknowledge the support of Michael McConnell, Jud Campbell, and the Bradley Student Fellowship at the Stanford Constitutional Law Center. All the views expressed in this article are my own.
1. Miller to William Pitt Ballinger, October 28, 1877, Samuel Freeman Miller Papers (SFMP), Library of Congress Manuscript Division (LOC), box 2, folder 2. Miller added, “I know I stand with that party as with the country as the best appointment to the bench which has been made since the party came into power.”
2. As with the rest of the nation's political institutions, the war and the Republican “leviathan” that had successfully prosecuted it, had dramatically reshaped the Court. See Bensel, Richard Franklin, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (New York: Cambridge University Press, 1991).CrossRefGoogle Scholar Eight of the Supreme Court's nine members had been appointed by Republican presidents and confirmed by Republican-dominated Congresses. Only one member of the Court remained from the antebellum period: Justice Nathan Clifford, an appointee of former President James Buchanan.
3. The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 67 (1873).
4. Section 1 of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis added).
5. Newsome, Kevin Christopher, “Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases ,” Yale Law Journal 109 (2000): 655 Google Scholar. Indeed, the Slaughterhouse Cases have long fascinated scholars of both law and politics, in part because Slaughterhouse represents a crucial “road not taken” in American constitutional law. The eminent legal scholar Charles Black, for instance, has argued not only that the Slaughterhouse Cases “annihilated the privileges and immunities of national citizens,” but also that Slaughterhouse was “probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court.” Black, Charles L. Jr., A New Birth of Freedom: Human Rights, Named and Unnamed (New Haven, CT: Yale University Press, 1997), 55 Google Scholar, emphasis in the original. Likewise, in a series of recent opinions, Justice Clarence Thomas has contended that the Privileges and Immunities Clause of the Fourteenth Amendment presents a more legitimate basis for expansive federal policy interventions than, for instance, the Interstate Commerce Clause. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 805–58 (2010) (Clarence, Thomas, J., concurring in part and concurring in the judgment). Relatedly, both President Lyndon B. Johnson's Justice Department and key congressional leaders considered the possibility that the 1964 Civil Rights Act was more appropriately grounded in Congress's power to make laws in furtherance of Section 1 of the Fourteenth Amendment than in its power to regulate interstate commerce under Article I, Section 8 of the Constitution. They concluded, however, that the Act had a much stronger chance of being upheld by the Supreme Court as a legitimate act of Congress's commerce power, largely because of the limited jurisprudence on the Privileges and Communities Clause resulting from Miller's Slaughterhouse decision. Silverstein, Gordon, Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics (New York: Cambridge University Press, 2009), 75–83 CrossRefGoogle Scholar. At least one component of the continued scholarly interest in Slaughterhouse stems from the strange bedfellows, including Black and Thomas, that the case tends to bring together analytically, if not ideologically. As discussed further below, the justices of the Slaughterhouse Court heard oral argument in defense of an expansive reading of the Fourteenth Amendment from John A. Campbell, an antebellum member of the Court. Campbell had resigned from the Court on April 30, 1861, and subsequently served as Confederate Assistant Secretary of War.
6. Slaughterhouse, 83 U.S. at 79.
7. Curtis, Michael Kent, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986)Google Scholar.
8. Amar, Akhil Reed, “The Bill of Rights and the Fourteenth Amendment,” Yale Law Journal 101 (1991): 1228 Google Scholar.
9. See, e.g., Fairman, Charles, Mr. Justice Miller and the Supreme Court, 1962–1890 (Cambridge, MA: Harvard University Press, 1939), 429 Google Scholar.
10. Although, as Pamela Brandwein observes, it is perhaps more appropriate to use the term “centrist” rather than “moderate” to describe the wing of the Republican Party located closest, in spatial terms, to the Democrats, here I adopt Miller's own designation of the term “moderate” to refer to Republican politicians who sought to distance themselves from copartisans they viewed as too “extreme” or “radical.” See Brandwein, , Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge University Press, 2011), 31 CrossRefGoogle Scholar.
11. Miller to Ballinger, August 31, 1865, SFMP, LOC, box 1, folder 2; Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4, emphasis added.
12. As discussed in the second section of this article, that exception concerned intimidation and violence targeted at the exercise of the franchise by newly freed slaves.
13. Pamela Brandwein argues, “The primacy but not exclusivity of state jurisdiction, a reluctance to expand federal power, and a belief in the juridical efficacy of the equal protection clause: each element of Miller's federalist commitments appears in centrist Republicans' development of the state neglect concept.” Brandwein, Rethinking the Judicial Settlement of Reconstruction, 59. For related arguments, see Aynes, Richard L., “Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases,” Chicago-Kent Law Review 70 (1995): 656 Google Scholar; McConnell, Michael W., “The Forgotten Constitutional Moment,” Constitutional Commentary 11 (1994): 202 Google Scholar.
14. My definition of party straddles both the conception offered by David Karol and a variety of co-authors and that presented by earlier work such as that of John Aldrich. The differences between their conceptions are not, in my view, salient to my project. Beginning with Karol, I conceptualize parties as “coalitions of groups with intense preferences on issues managed by politicians.” Karol, David, Party Position Change in American Politics: Coalition Management (New York: Cambridge University Press, 2009), 7 CrossRefGoogle Scholar. For a related statement, see Bawn, Kathleen, Cohen, Martin, Karol, David, Masket, Seth, Noel, Hans, and Zaller, John, “A Theory of Political Parties: Groups, Policy Demands and Nominations in American Politics,” Perspectives on Politics 10 (2012): 571–97CrossRefGoogle Scholar. However, unlike Karol, who emphasizes the coalitional aspects of party dynamics, I highlight the fact that parties are organizations managed by political elites, in keeping with Aldrich. See Aldrich, John H., Why Parties? The Origins and Transformation of Political Parties in America (Chicago: University of Chicago Press, 1995)CrossRefGoogle Scholar. Although coalitional interests matter, in this article, I focus analytical attention on the actions of political elites in managing relevant group interests and, more importantly, in arbitrating conflicts between and among those interests.
15. Because lower-court judges are governed by the norm of stare decisis and may fear the prospect that their decisions will be overruled, they are much less likely to engage in judicial partisanship. That is especially true for those judges who seek to advance their judicial careers, as cultivating a partisan identity may make it harder to be nominated or confirmed.
16. See, e.g., Knight, Jack and Epstein, Lee, “The Norm of Stare Decisis,” American Journal of Political Science 40 (1996): 1018–35CrossRefGoogle Scholar; Wahlbeck, Paul J., Spriggs, James F., and Maltzman, Forrest, “Marshaling the Court: Bargaining and Accommodation on the United States Supreme Court,” American Journal of Political Science 42 (1999): 294–315 CrossRefGoogle Scholar; Maltzman, Forrest, Spriggs, James F. II, and Wahlbeck, Paul J., “Strategy and Judicial Choice: New Institutionalist Approaches to Supreme Court Decision-Making,” in Supreme Court Decision-Making: New Institutionalist Approaches, ed. Clayton, Cornell W. and Gillman, Howard (Chicago: University of Chicago Press, 1999), 43–64 Google Scholar.
17. See Newsome, “Setting Incorporationism Straight,” 666, for a similar argument.
18. Here, it is important to note, as Miller's most recent biographer, Michael A. Ross, carefully documents, that Miller's Slaughterhouse opinion was motivated, in part, by his general concern for public health issues and his specific experience studying cholera. Ross, Michael A., Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era (Baton Rouge: Louisiana State University Press, 2003), 202–203 Google Scholar. A physician, Miller, like others interested in public-health reform, viewed the regulation at issue in Slaughterhouse—requiring that animal slaughtering in the city of New Orleans take place at a specified location and by an identifiable butchering cartel—as a sensible approach to a serious health. Nevertheless, Miller's solicitous approach to public-health regulation did not supersede his other political commitments.
19. Thanks to the editors at Studies in American Political Development for this formulation.
22. Implicit here is the idea that judges do not always, or even often do so. Nonetheless, my contention is that the occasions on which they do play this kind of role—as in Slaughterhouse—are both theoretically and empirically crucial to an understanding of both partisan and judicial politics. In examining the relationship between courts (including the Supreme Court) and American political parties, I argue, scholars of judicial politics can further their understanding of judicial behavior by probing more deeply the ways in which party identity shapes judicial decision making. In turn, my approach offers scholars of political parties a new way of understanding the ways in which intraparty conflicts are negotiated and resolved in institutions apart from Congress.
23. Silverstein, Law's Allure, 64.
24. Indeed, of the last thirteen justices to serve on the Supreme Court, eleven had previous executive or legislative experience. Justices Rehnquist, Scalia, Roberts, Alito, and Kagan served in the White House; Justices Stevens and Breyer were counsel to the House and Senate Judiciary Committees, respectively; Justice Thomas headed the Equal Employment Opportunity Commission; Justice O'Connor was Majority Leader of the Arizona State Senate; Justice Sotomayor was a New York State prosecutor; Justice Souter served as New Hampshire Attorney General.
25. Peretti, Terri Jennings, In Defense of a Political Court (Princeton, NJ: Princeton University Press, 1999), 85 Google Scholar.
26. Nonetheless, it is worth noting that not all judges are equally attuned to partisan considerations in their decision making. In this respect, I distinguish between what I term “partisan” and “nonpartisan” judges. By my definition, partisan judges—like Justice Miller—are those with an explicit connection to conscious party-building activities, including (but not necessarily limited to) holding prior, nonjudicial elected political office, working in the executive or legislative branch on the staff of an elected political official, or, for more modern judges, participating in quasi-partisan groups like the Federalist Society. Nonpartisan judges, in contrast, are those whose biographies and activities while on the bench suggest individuals at greater remove from the world of partisan political contestation.
27. Brandwein, Rethinking the Judicial Settlement of Reconstruction, 22.
28. Silverstein, Law's Allure, 65.
29. See Dworkin, Ronald, Law's Empire (Cambridge, MA: Harvard University Press, 1986), 398 Google Scholar.
30. This line of argument builds on the central thesis of Skowronek's foundational work on the presidency. Skowronek writes of instances in American history where “pre-established commitments of ideology and interest have, in the course of events, become vulnerable to direct repudiation as failed or irrelevant responses to the problems of the day.” Skowronek, Stephen, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge, MA: Harvard University Press, 1997), 36 Google Scholar. For a similar line of argument, which considers how courts “recalibrate” transformative reforms, see Chinn, Stuart, “Institutional Recalibration and Judicial Delimitation,” Law and Social Inquiry 37 (2012): 535–63CrossRefGoogle Scholar.
31. As another example, although President Franklin D. Roosevelt used belief in the constitutionality of his economic program as a selection tool for judges, that test did not necessarily relate to other issues that arose during the 1940s, including early cases concerning the constitutionality of the Jim Crow regime in the South or the applicability of the First Amendment to expressions of Communist sympathy or affiliation.
33. Brady, Henry E. and Collier, David, Rethinking Social Inquiry: Diverse Tools, Shared Standards (Lanham, MD: Rowman & Littlefield, 2004), 12 Google Scholar.
34. Indeed, Miller's correspondence with Ballinger is replete with instructions that particular pieces of information were “confidential.” See, e.g., Miller to Ballinger, July 31, 1866, SFMP, LOC, box 1, folder 3; Miller to Ballinger, April 21, 1870, SFMP, LOC, box 1, folder 7. On one occasion, Miller told Ballinger that the only other person in whom he had confided particular personal details was his wife. He added that he considered Ballinger's affection to be “one of the most valuable of his possessions.” Miller to Ballinger, September 4, 1866, SFMP, LOC, box 1, folder 3. On the subject of what would become known as the Legal Tender Cases, 79 U.S. 457 (1871), Miller wrote, “We have had a desperate struggle in the great conferences of the Court for three weeks over two cases involving the legal tender question. The Chief Justice [Salmon P. Chase] has resorted to all the shallowness of the lowest political trickery to prevent their being heard, and the fight has been bitter in the conference room.” He complained, “The excitement has nearly used me up. It has been fearful; and my own position as leader in marshaling my forces and keeping their courage, against a domineering chief … has been such a strain on my brain and nervous system as I never wish to encounter again.” The two men also regularly discussed Miller's efforts to obtain a nomination to the federal bench (including the Supreme Court) for Ballinger.
35. Miller told Ballinger, for instance, that Justice Clifford was “fussy” and “vain.” Miller to Ballinger, March 1, 1868, SFMP, LOC, box 1, folder 5; Miller to Ballinger, March 15, 1868, SFMP, LOC, box 1, folder 5. A year later, Miller reported that, although Justice Noah H. Swayne tended to make a charming first impression, “so much of it is found to mere courtesy, [a] parade of learning … with an absence of any real sincerity … that the impression doesn't last.” Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6. Miller added, “I say this with no personal feeling, for I think my relations with him are as close and binding as with any member of the Court, and I believe he is as frank with me as he is capable of being with anyone,” emphasis in the original. Miller also revealed to Ballinger his belief that Swayne had exercised undue influence on Grant's judicial nomination process, in particular, the process of selecting a Chief Justice to replace Chase. He wrote, Swayne “has artfully beslobbered the President, since Chase was stricken with paralysis in a way that no one was aware of until now.” Miller blamed Swayne's influence on the President for his own lack of success in being nominated to the position of Chief Justice. Miller to Ballinger, January 18, 1874, SFMP, LOC, box 1, folder 10. Upon the accession of Chief Justice Morrison R. Waite, Miller wrote, “We have had our new Chief Justice with us now three weeks times in conference. Is pleasant, a good presiding officer, mediocre, with fair amount of professional learning.” Miller to Ballinger, March 21, 1874, SFMP, LOC, box 1, folder 10, emphasis in the original. Likewise, Miller confided that Grant's Attorney General Ebenezer Hoar was “an able lawyer but no statesman. An honest man, a little rude sometimes, and thoroughly radical.” Miller to Ballinger, July 30, 1869, SFMP, LOC, box 1, folder 6. He suggested that Senator John Sherman (R-OH) had given “his heart and soul to the moneyed bond holders.” Miller to Ballinger, October 28, 1877, SFMP, LOC, box 2, folder 2. Echoing his comments on Hoar, Miller also shared with Ballinger his opinion that then-Secretary of State and former Republican Senator Frederick Frelinghuysen (R-NJ) was “an able lawyer and the President [Arthur] is perhaps more confidential with him than anyone in the cabinet.” Miller to Ballinger, May 2, 1883, SFMP, LOC, box 2, folder 8.
36. For instance, Richard Bensel's work on the post–Civil War American political economy has highlighted the substantial disagreements within the Republican coalition over a number of critical policy issues, including the very nature of the muscular program of Reconstruction, the extent of tariff protection for the nascent American industrial sector, and the question of whether the United States would return to the gold standard.
37. Ackerman, Bruce, We the People: Transformations (Cambridge, MA: Harvard University Press, 1998)Google Scholar; Moore, Wayne D., “(Re)Construction of Constitutional Authority and Meaning: The Fourteenth Amendment and Slaughterhouse Cases ,” in The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Ken I. (Lawrence: University Press of Kansas, 2006), 229–74Google Scholar.
38. Slaughterhouse, 83 U.S. at 112.
39. Ross, Michael A., “Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign Against Louisiana's Republican Government, 1868, 1873,” Civil War History 49 (2003): 237 CrossRefGoogle Scholar. The irony was not lost on contemporary observers. The New Orleans Picayune asked: “What reasonable man could have thought, ten years ago that any of our citizens, whose rights were threatened under any pretense, could have gone before a federal court and solemnly sworn that he could not obtain justice in the state courts?” As quoted in Ross, “Obstructing Reconstruction,” 250.
40. Ross, “Obstructing Reconstruction,” 247.
41. Slaughterhouse, 83 U.S. at 77.
44. Brandwein, Rethinking the Judicial Settlement of Reconstruction, 29.
45. 60 U.S. 393 (1857). See Aynes, “Constricting the Law of Freedom,” 644–49, for criticisms of Miller's apparent belief that the Civil Rights Act of 1866 failed to clarify the citizenship status of African Americans. See Kaczorowski, Robert, “Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary, The Review Essay and Comments: Reconstructing Reconstruction,” Yale Law Journal 98 (1988): 565–95CrossRefGoogle Scholar for a discussion of the constitutional foundations of the Act.
46. Slaughterhouse, 83 U.S. at 72.
48. In contrast, Miller called Senator Matthew Carpenter, one of the advocates for the state law, “one of the most remarkable men” he had known in “public or private life.” Miller to Ballinger, February 27, 1881, as quoted in Fairman, Mr. Justice Miller, 116.
49. Slaughterhouse, 83 U.S. at 72–73.
52. Ibid., 79. Consistent with its constitutional rejection of nonpositive law, as Brian Wildenthal and Kevin Newsome have argued, Slaughterhouse does not necessarily foreclose an incorporation theory of the Bill of Rights under the Privileges or Immunities clause. Miller's language even suggests that he believed the rights protected by the First Amendment, including the right to peaceably assemble and petition for redress of grievances, could be applied against the states by the Fourteenth Amendment. Wildenthal, Bryan H., “The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment,” Ohio State Law Journal 63 (2000): 1099 Google Scholar.
53. Slaughterhouse, 83 U.S. at 78.
54. Ex Parte Yarbrough, 110 U.S. at 651, 661, 666 (1884).
55. Hyman, Harold M. and Wiecek, William, Equal Justice under Law: Constitutional Development, 1835–1875 (New York: HarperCollins, 1982), 396 Google Scholar.
56. Tushnet, Mark, “The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston,” Journal of American History 74 (1987): 887–88CrossRefGoogle Scholar. This last right, along with the right to sue and be sued, and to testify as a witness in court, was sometimes considered to be a civil, not political, right.
57. Hyman and Wiecek, Equal Justice Under Law, 396; Brandwein, Rethinking the Judicial Settlement of Reconstruction, 71.
58. Tushnet, “The Politics of Equality,” 887–88.
59. Newsome, “Setting Incorporationism Straight,” 660.
60. Wildenthal, “The Last Compromise,” 1094. Field, a Lincoln appointee, was nominally a Democrat, although his views, particularly on state regulation of economic affairs were largely consonant with certain factions within the Republican Party.
61. Slaughterhouse, 83 U.S. at 89.
64. Aynes, “Constricting the Law of Freedom,” 653.
65. Slaughterhouse, 83 U.S. at 118.
66. Congressional Globe, 42nd Congress, 1st Sess., 84, as quoted in Aynes, Richard L., “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal 103 (1993): 71 CrossRefGoogle Scholar. There is, nonetheless, an active scholarly debate on the clarity of congressional intent on the issue of the Privileges and Immunities Clause. Ronald Labbé and Jonathan Lurie, for instance, have argued, “A search of the congressional debates for insights concerning the scope of Section 1 leaves us with ambiguity and uncertainty … Miller could have reasonably concluded that the congressional debates furnished no clear guidance as to intent in general and certainly no specific mandate that federalism was to undergo a specific mandate.” Labbé, Ronald M. and Lurie, Jonathan, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (Lawrence: University Press of Kansas, 2005), 6 Google Scholar.
67. Miller was likely well aware of Bingham's views, having spent several weeks together traveling on the Pacific Coast in 1871. Newsome, “Setting Incorporationism Straight,” 700. For accounts documenting the apparent intent of the Amendment's authors that it incorporate the Bill of Rights, see Curtis, No State Shall Abridge; Amar, “The Bill of Rights and the Fourteenth Amendment”; and Aynes, “On Misreading John Bingham and the Fourteenth Amendment.” For an important contrary account, see Rosenthal, Lawrence, “The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation,” Journal of Contemporary Legal Issues 18 (2009): 361–408 Google Scholar.
68. Slaughterhouse, 83 U.S. at 82.
70. Ibid. Indeed, the Justice believed that the Court served as the final bulwark within the constitutional system against the armed resolution of political conflict. He wrote, “There exists in our form of government no such necessity for resort to arms to support real or imaginary rights, for the Supreme Court is and has always been regarded as the final and just arbiter of differences.” For Miller, seventy years of American history, in which “many and fierce conflicts of the rights of federal and of state governments” had taken place, had shown that “all these difficulties may be adjusted without resort to arms.” Miller to Ballinger, August 31, 1865, SFMP, LOC, box 1, folder 2. He would later underscore his contention that the American people viewed the Court as the most trustworthy of American national political institutions, writing, “As the Court now stands, it has the confidence of the people of all political parties more than any branch of the government.” Miller to Ballinger, March 7, 1875, SFMP, LOC, box 1, folder 11. In the same letter, Miller reported on the Court's success in lobbying Grant to veto a measure enlarging the number of justices to eighteen — with subdivisions of nine to hear individual cases — and making numerous other changes expanding the Court's jurisdiction. Miller noted that the measures would overburden the Court, and were prompted “by the desire to break down the conservative influence of our Court.” He believed the plan to reform the Court “would convert it into a large debating club, with hostile subdivisions…[and] would soon destroy the esteem … with which it is now regarded.”
71. Slaughterhouse, 83 U.S. at 79.
73. Miller's reference to the right of peaceable assembly has led some commentators, like Newsome and Wildenthal, to suggest that Slaughterhouse does not stand in the way of incorporation—Miller, after all, referenced a right contained in the First Amendment in his list of federally protected rights.
74. 110 U.S. 651 (1884). See Goldman, Robert M., “A Free Ballot and a Fair Count:” The Department of Justice and the Enforcement of Voting Rights in the South, 1877–1893 (New York: Fordham University Press, 2001)Google Scholar; Ross, Justice of Shattered Dreams, 248–49; Valelly, Richard M., The Two Reconstructions: The Struggle for Black Enfranchisement (Chicago: University of Chicago Press, 2004)CrossRefGoogle Scholar; Wang, Xi, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 (Athens: University of Georgia Press, 2012)Google Scholar.
75. Yarbrough, 110 U.S. at 661.
76. See, e.g., Brandwein, Rethinking the Judicial Settlement of Reconstruction, 148–51.
77. Yarbrough, 110 U.S. at 666.
79. Slaughterhouse, 83 U.S. at 56.
82. Ross, Justice of Shattered Dreams, 203–05.
83. Slaughterhouse, 83 U.S. at 78.
84. Ross, “Obstructing Reconstruction,” 237.
85. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6.
86. Tushnet, Mark, “The Supreme Court and the National Political Order: Collaboration and Confrontation,” in The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Ken I. (Lawrence: University Press of Kansas, 2006), 117–37Google Scholar; see also Graber, Mark A., “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 35–73 CrossRefGoogle Scholar; Gillman, Howard, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96 (2002): 511–24CrossRefGoogle Scholar; Pickerill, J. Mitchell and Clayton, Cornell W., “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2 (2004): 233–48CrossRefGoogle Scholar; Whittington, Keith E., “Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” American Political Science Review 99 (2005): 583–96CrossRefGoogle Scholar.
87. Dahl, Robert A., “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 293 Google Scholar.
88. See Labbé and Lurie, The Slaughterhouse Cases; Goldstein, Leslie Friedman, “The Specter of the Second Amendment: Rereading Slaughterhouse and Cruikshank ,” Studies in American Political Development 21 (1997): 131–48Google Scholar.
89. Regime theorists are quick to note that they do not expect every judge to be a faithful agent of her party in every case. Pickerill and Clayton suggest that on any individual decision, “the Court may stray quite far from some of the dominant regime's values, as long as it does not challenge core values and constituencies.” Pickerill and Clayton, “The Rehnquist Court and the Political Dynamics of Federalism,” 236. Nevertheless, the issues presented Slaughterhouse were fundamental enough to the identity and agenda of the dominant governing Republican coalition that any deviations from the party's position on the meaning of the Fourteenth Amendment are of deep interest and significance.
90. President Grant had won reelection in 1872, and the midterm elections of 1874 that swept Democrats into office were still over a year away. More generally, see Brandwein, Rethinking the Judicial Settlement of Reconstruction, 18–20.
91. Valelly, The Two Reconstructions, 109.
97. Fairman, Mr. Justice Miller, 185; Goldstein, “The Specter of the Second Amendment.”
98. Brandwein, Rethinking the Judicial Settlement of Reconstruction, 31.
99. More broadly, it is difficult to evaluate the content of “liberal” and “conservative” preferences across time. Doing so assumes fixed points of reference across eras in American politics. Consider trade liberalization, for example, which was, from the 1860s to the 1930s a core tenet of the Democratic Party, but has, at least until very recently, become a central issue position uniting Republicans (see Karol, Party Position Change in America, chap. 2). It is therefore difficult to categorize a ruling on trade liberalization as “liberal” or “conservative” when we attempt to analyze judicial policymaking and its impact on American political development.
100. Ross, Justice of Shattered Dreams, 209.
101. Ackerman, We the People; Moore, “(Re)Construction of Constitutional Authority and Meaning.”
102. Miller to Ballinger, August 31, 1865, SFMP, LOC, box 1, folder 2. Graber, for instance, notes that Justices Miller and Bradley were the only two justices on the Chase Court “who never supported Jacksonian or Democratic causes at any point in their political careers. Both were committed Whigs before the Civil War and Republicans for the rest of their life.” Graber, Mark A., “The Jacksonian Origins of Chase Court Activism,” Journal of Supreme Court History 25 (2000): 22 CrossRefGoogle Scholar. As early as 1856, Miller was nominated as a candidate for the Iowa State Senate, although he did not win the seat. What's more, Miller's appointment to the Court in 1862 was largely the result of active lobbying on the part of Iowa's Republican members of Congress. Fairman, Mr. Justice Miller, 28–29, 48. In 1880, Miller believed that James G. Blaine, a fellow Iowan, would be the party's ultimate nominee, despite divisions within the party into Grant and anti-Grant factions. Miller informed Ballinger, “The Iowa delegation was prepared to offer my name at any time they could honorably have abandoned Blaine, but that time never came until they were compelled to choose between Grant and Garfield on the last ballot. Miller to Ballinger, June 10, 1880, SFMP, LOC, box 2, folder 5. Miller added, “They did wisely and I am more than satisfied with the result. Garfield will make a better President than any man voted for in convention unless it be Blaine.” See also Ross, Justice of Shattered Dreams, 237–38; Fairman, Mr. Justice Miller, 303. Among his political contemporaries, Miller particularly admired Blaine. Other than Henry Clay, Miller believed him to be “the only man worthy to be President of the United States who has come so near to a party nomination for that office,” since the practice of party nominating conventions had been adopted. In the early summer of 1883, Miller wrote to Ballinger about a meeting he had had with Blaine. According to Miller, Blaine informed him “that the inevitable result of the necessary negotiations of all the active leaders of the party” would make Miller the Republican candidate for President “because no man will be so strong with all wings of the party.” Miller to Ballinger, May 4, 1883, SFMP, LOC, box 2, folder 8. A year later, he reported to Ballinger on the results of the 1884 Republican convention. “The Iowa delegation … had a conference and agreed unanimously that if at any time it become apparent that Blaine could not be nominated they would present my name and push it.” Miller felt that an alliance of delegates from states in his circuit, along with delegates from several territories and the support of Blaine, could have made his nomination a reality. Miller to Ballinger, June 15, 1884, SFMP, LOC, box 2, folder 9. For Miller's view of Clay, see also Miller to Ballinger, October 28, 1877, SFMP, LOC, box 2, folder 2. When Blaine lost the 1876 Republican nomination to Rutherford B. Hayes, Miller wrote, “I admire him more than any man now in public life, and if he had been nominated he would have inspired an enthusiasm unknown to the present day, in the hearts of his supporters.” Miller to Ballinger, July 26, 1876, SFMP, LOC, box 2, folder 1.
103. The extent of Miller's partisan affiliation was not necessarily unusual for the Court on which he served. Chief Justice Chase, for instance, had been a senator and governor (from Ohio), served in Lincoln's cabinet as Treasury Secretary, and held presidential aspirations of his own, having run for the office in 1860 and 1864. Justice David Davis had worked as Lincoln's campaign manager during the presidential election of 1860. Justice Clifford had been President Polk's Attorney General and had represented Maine in the U.S. Congress. Justice Swayne, too, had served as Attorney General, working in Andrew Jackson's White House for eleven years, before ultimately switching parties in 1854. Justice Bradley had been a presidential elector from New Jersey in 1868. And Justice Field had also considered running for the Democratic nomination on several occasions. See Labbé and Lurie, The Slaughterhouse Cases, 167–79. In 1887, The Nation described Miller as “an original Republican,” who because he had never “wavered in his adhesion to the principles of that party,” was consequently “the embodiment of the interpretation which that court has placed upon the Constitution during the past quarter of a century.” The Nation, July 21, 1887, 46. For evidence of Miller's social interactions, see, for instance, Miller to Ballinger, January 9, 1872, SFMP, LOC, box 1, folder 9; Miller to Ballinger, March 9, 1872, SFMP, LOC, box 1, folder 9; Miller to Ballinger, March 31, 1879, SFMP, LOC, box 2, folder 4. After James Garfield's assassination, Miller wrote, “I had known the man and the family rather intimately ever since we both entered the public service about nineteen years ago … I served with Garfield on the Electoral Commission, and after his inauguration he asked my advice about one of his cabinet appointments and complained to Mrs. Miller that I did not come to see [him] as often as I ought to do.” Miller to Ballinger, September 25, 1881, SFMP, LOC, box 2, folder 6.
104. Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4.
105. Miller to Ballinger, March 29, 1875, SFMP, LOC, box 1, folder 11.
106. Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4; see also Ross, Justice of Shattered Dreams, 146.
107. Ross, Justice of Shattered Dreams, 115.
108. Miller to Ballinger, January 11, 1866, SFMP, LOC, box 1, folder 3; see also Ross, Justice of Shattered Dreams, 115.
109. Miller to Ballinger, January 18, 1874, SFMP, LOC, box 1, folder 10. Miller himself freed several slaves that he had owned upon moving to Iowa in 1850. Gregory, Charles Noble, Samuel Freeman Miller (Iowa City: The State Historical Society of Iowa, 1907), 64 Google Scholar; see also Fairman, Mr. Justice Miller, 16.
110. Miller to Ballinger, January 11, 1866, SFMP, LOC, box 1, folder 3, emphasis in the original; see also Ross, Justice of Shattered Dreams, 115.
112. Miller to Ballinger, August 31, 1865, SFMP, LOC, box 1, folder 2, emphasis in the original; Ross, Justice of Shattered Dreams, 108.
113. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6. In his view, Southern Democrats frequently announced that they were “firm in their resistance to radicalism, that is, to the governing majority, who alone can do them any good.” In response, the Republican majority became “more determined, more bitter, more exacting than ever.” In Miller's view, Southern Democrats deliberately avoided working with moderate Republicans. Instead, they occasionally called on radical Republicans, including Rep. Thaddeus Stevens (R-PA), Sen. Benjamin Wade (R-OH), or Sen. Charles Sumner (R-MA), “that they may report at home how hostile and offensive they are.” Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4.
114. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6; see also Ross, Justice of Shattered Dreams, 164.
115. Miller to Ballinger, December 22, 1867, SFMP, LOC, box 1, folder 4.
116. Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4, emphasis added.
117. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6. He told Ballinger, “After all, the real pacification of the country, the return of sentiments of real amity between the parties to the great strife, must be largely the work of time, and will never be through until the great interests of finance, currency, internal improvement, loyalism in which all are interested, shall so absorb us all, that if we do not forget the past, we at least cease to make it the predominant subject of thought and of feeling.”
118. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6.
120. Miller to Ballinger, December 8, 1870, SFMP, LOC, box 1, folder 7, emphasis in the original. Miller added, “Though but few good men seem willing to accept the place of republican leaders, still things must improve.”
121. Miller to Ballinger, July 30, 1869, SFMP, LOC, box 1, folder 6. Miller did indicate that he supported the nomination of Justice John Marshall Harlan to the court, despite his Democratic political affiliation. He stated that it was both “unkind” and “unjust” to make fidelity to the Reconstruction constitutional amendments and congressional Reconstruction Acts a litmus test for the bench. Miller to Ballinger, November 21, 1877, SFMP, LOC, box 2, folder 2.
122. Miller's twin personal evils—corporate greed and the Democratic Party—were joined in the person of Samuel Tilden (D-NY), the Democratic candidate for the presidency in 1876. Miller wrote described Tilden to Ballinger as a man who “never argued half a dozen cases as his life in court, who has made $5,000,000 by being trustee and director in rotten rail roads, who was [Boss] Tweed's intimate friend and associate during all his rascalities, and who only came in to assent at his destruction after there was no doubt that he would be destroyed, and also had to choose between going down with him or saving himself by his friend's ruin.” Miller to Ballinger, July 26, 1876, SFMP, LOC, box 2, folder 1.
123. Miller to Ballinger, December 25, 1876, SFMP, LOC, box 2, folder 1.
124. See Valelly, The Two Reconstructions, chap. 1, for a contemporary version of this argument.
125. To some extent, Miller's sentiments were based on a general skepticism of popular elections, rather than on a specific racial bias. He elaborated, “While I would allow every person … to vote for members of the state legislatures and for members of the House of Reps on Congress, I would latch every other office in the government from the range of popular elections.” In this context, Miller drew a particular distinction between legislative responsibility on the one hand and executive and judicial responsibilities on the other. In his view, it was “reasonable that in making laws which are to govern the whole people, the whole people should have some voice in their adoption, for which no better plan appears than the representative system.” But, Miller continued, “When those laws are to be put in execution,” it would be inappropriate to “confide to the people upon whom they are to be enforced the selection of the persons on whom the duty of enforcement is to be devolved.” In short, he told Ballinger, “I would have no person whose duty it is to enforce or administer the law dependent for his office on popular elections.” Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4. Miller indicated that he would even consider the possibility of female suffrage.
126. Ross, Justice of Shattered Dreams, 250.
127. Miller to Ballinger, November 22, 1884, SFMP, box 2, folder 9; see also Ross, Justice of Shattered Dreams, 250.
128. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6. Nevertheless, as we have seen, Miller was not naive about political corruption among Southern Republicans. He wrote, “It is not to be denied, that the leaders of the radical party in the gulf states since the rebellion have many of them been men of bad character, and without principle, and that still more of them have been ignorant, and unused to the exercise of political power. It has been a sore thing to me and to most of the republican party that it is so.” Miller added, “The republicans of the north complain also. We know that no party can live with such leaders. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6; see also Ross, Justice of Shattered Dreams, 164. Miller explicitly acknowledged the excesses of Governor Edmund Davis (R-TX), whom he called a “fanatic” and “greedy of power.” Having done so, however, he warned Ballinger, “Your real trouble will come when your own party friends come into full power of all branches of the state government. They are not of a class given to moderation more than Gov. Davis.” Miller to Ballinger, January 18, 1874, SFMP, LOC, box 1, folder 10, emphasis in the original.
129. Miller to Ballinger, July 25, 1875, SFMP, LOC, box 1, folder 11, emphasis added.
130. Ross, Justice of Shattered Dreams, 147; Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4.
131. Miller to Ballinger, April 24, 1868, SFMP, LOC, box 1, folder 4. Miller supported Lincoln's view that the Civil War was, at least in part, a contest to preserve a fundamental principle of democracy. He disagreed deeply with Ballinger on what he called the “philosophy of the rebellion.” Ballinger, in Miller's view, believed that the “rebellion and the war which it originated was a necessity, growing out of conflict of opinion in regard to the limits of federal and state authority, and having direct reference to differences between the majority in the northern and southern states. And you affirm that which is a true and necessary accompaniment of that proposition, namely, that such differences can only be settled by war. ” For Miller, echoing Lincoln, this fundamental proposition was a nonstarter. It contained an “invitation to revolution” and could be “tolerated by no government which expects to be or claim to be anything more than a temporary arrangement of convenience.” Miller to Ballinger, August 31, 1865, SFMP, LOC, box 1, folder 2, emphasis in the original; see also Ross, Justice of Shattered Dreams, 111–12.
132. Ross, Justice of Shattered Dreams, 154.
133. Miller to Ballinger, January 11, 1866, SFMP, LOC, box 1, folder 3; see also Ross, Justice of Shattered Dreams, 117. Two months later, Miller reported to Ballinger that the speculated breach had, in fact, taken place.
134. Miller to Ballinger, January 14, 1868, SFMP, LOC, box 1, folder 5. A year earlier, Miller had also complained to Ballinger about the rapid pace of Republican political reforms, writing that the “republican party was going at it at a killing pace.” He was not naive about its political failings. “It is true also that some of leaders are reckless, and not over honest as politicians,” he confided to Ballinger. In response, Miller again put his hope in Republican moderates. “But there are men and strong men among them who if they could find in the flood that is drifting them along against their will a rock or other footing on which they could make a stand would do it manfully and I hope successfully.” Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4.
135. Miller to Ballinger, April 24, 1867, SFMP, LOC, box 1, folder 4; see also Ross, Justice of Shattered Dreams, 149.
136. Miller to Ballinger, December 22, 1867, SFMP, LOC, box 1, folder 4. Earlier that year, Miller had written a letter to his former law partner, in which he made clear that the impeachment of the president was, in his view, purely political: “If this President were willing now, to heartily cooperate with Stevens, Sumner, Boutwell, etc. [referring to prominent Radical Republicans], no one for a moment supposes that any attempts would be made to impeach him.” Miller to Rankin, February 4, 1867, SFMP, LOC, box 1, folder 4.
137. Miller to Ballinger, January 14, 1868, SFMP, LOC, box 1, folder 5; see also Ross, Justice of Shattered Dreams, 154.
138. Miller to Ballinger, November 19, 1876, SFMP, LOC, box 2, folder 2.
139. Miller to Ballinger, July 25, 1875, SFMP, LOC, box 1, folder 11, emphasis added.
140. Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4; see also Ross, Justice of Shattered Dreams, 146.
141. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6. On one issue, however, Miller was unwilling to compromise: he was simply “unwilling to trust … the southern people with full power over the negro and the union man of the south.” Miller to Ballinger, February 6, 1867, SFMP, LOC, box 1, folder 4; see also Ross, Justice of Shattered Dreams, 146. Miller remained vague on the potential political partners to be found in the former Confederacy, suggesting that only that “when the republican party determined that the states which had rebelled should only be restored to their influence in national government when they had enfranchised the negro; a new set of leaders for those negroes and for the few white men who were willing to accept this situation was a necessity.” Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6.
142. Miller to Ballinger, March 21, 1874, SFMP, LOC, box 1, folder 10.
143. See, e.g., Ross, Justice of Shattered Dreams, 167–74, noting that Miller, like other residents of Keokuk, Iowa, blamed railroads for “their town's troubles.”
144. Miller to Ballinger, August 29, 1868, SFMP, LOC, box 1, folder 5.
145. Miller to Ballinger, January 13, 1878, SFMP, LOC, box 2, folder 3; see also Ross, Justice of Shattered Dreams, 186–87.
146. Miller to Ballinger, August 28, 1868, SFMP, LOC, box 1, folder 5. In one letter, for instance, Miller singled Swayne out in particular, highlighting a distinction between legal principles and justice. He informed Ballinger, Swayne “is extreme in upholding all negotiable bonds and especially Rail Road securities. He is not a man much affected by the justice of a case as distinguished from the principles of law which ought to govern it.” Miller to Ballinger, June 11, 1869, SFMP, LOC, box 1, folder 6, emphasis in the original.
147. Miller to Ballinger, February 3, 1878, SFMP, LOC, box 2, folder 3; see also Ross, Justice of Shattered Dreams, 174–75. Miller had echoed these sentiments in an earlier letter, this one from April 1871. Referring to another case involving railroad bonds, he told Ballinger, “I am not sure that any judge besides myself would have held the bonds void. I think they were, but the leaning of our Court to protect all commercial paper that gets into Wall Street rendered that proposition hopeless.” Miller to Ballinger, April 16, 1871, SFMP, LOC, box 1, folder 8.
148. Miller to Ballinger, December 5, 1875, SFMP, LOC, box 1, folder 11.
149. Miller to Ballinger, August 28, 1868, SFMP, LOC, box 1, folder 5, emphasis in the original; see also Ross, Justice of Shattered Dreams, 222.
151. Miller to Ballinger, April 28, 1878, SFMP, LOC, box 2, folder 3, emphasis in the original. Miller also shared with Ballinger his opinion that corporate managers had stacked the deck in various ways against those who depended on access to credit. Here, he focused on the divergent implications of inflation for creditors and debtors. In his view, creditors had benefited from inflation (particularly from the coinage of silver), which had enabled them to purchase securities cheaply and then to watch as those securities appreciated in value. He wrote, “I suppose I hazard nothing in saying that half the public securities now held by this class were paid for in currency when that currency was worth only two thirds of what it is now, and a still larger proportion of those bonds were issued when silver dollars were legal tender for their payment.” Miller, however, noted that these same beneficiaries of inflation continually refused to allow debtors to pay in similarly inflated currency, insisting instead on repayment in gold. Here, he suggested to Ballinger, “These men have fought with the bitterness of a death stinger the question of the right of the debtor to pay in that same coin. In other words, having their debts increased one third in value by the gradual appreciation of the currency they wish it still further enhanced by limiting the payment to gold coins alone which was lawful in gold or silver when the contract was made.” Miller's overall message was clear: “I believe in the payment of debts, compulsory payment if necessary, but I do not believe in legislation which adds to the value of the bond at the expense of those who have to pay it.”
152. As quoted in Fairman, Mr. Justice Miller, 236.
153. As quoted in Ross, Justice of Shattered Dreams, 205.
154. Over time, as Miller became an increasing anachronism within the party he had fought for, the laissez-faire economic ideology advanced by Justice Field and others triumphed over Miller's own convictions concerning the potential for government regulation of the economy. By approximately 1890, Republicans finally abandoned blacks to the doctrine of states' rights. As a result, by the 1880s, Miller served as “a melancholy legal voice of a lost Republicanism.” Ross, Justice of Shattered Dreams, 254.
155. Ibid., 249. Miller believed that his opinion in Davidson v. United States, 96 U.S. 97 (1878), provided a useful “continuation” of the judicial principles he had announced in Slaughterhouse for the construction of the Fourteenth Amendment. Miller to Ballinger, January 13, 1878, SFMP, LOC, box 2, folder 3. In that case, he ruled that litigants seeking to overturn state tax assessments could not pursue their case in federal court if they had been given a reasonable opportunity to contest the assessment at the state level. Miller was clear that the Fourteenth Amendment did not offer every unsuccessful litigant at the state level a second chance in federal court. 96 U.S. at 104.
156. In addition, as Labbé and Lurie argue, Miller was acting to preserve the legacy of the Fourteenth Amendment itself, “to prevent the Fourteenth Amendment from being diluted and diminished by its application to the issue of localized infighting among white butchers over which group would control the lucrative meat trade in New Orleans.” Labbé and Lurie, The Slaughterhouse Cases, 12. See also Benedict, “Preserving the Constitution”; Goldstein, “The Specter of the Second Amendment”; Brandwein, Rethinking the Judicial Settlement of Reconstruction.
157. Congressional Record, 43rd Congress, 2nd Sess., 1906.
158. Congressional Record, 43rd Congress, 2nd Sess., 408. Republican-leaning periodicals adopted a similar view of the purpose of the Fourteenth Amendment. In an editorial on Virginia v. Rives, 100 U.S. 313 (1880) and Strauder v. West Virginia, 100 U.S. 303 (1880) (two cases concerning the exclusion of African Americans from jury service and the issue of removal to federal court under the Civil Rights Act of 1875), for instance, Harper's noted with approval that the Court had now “with a unanimity not found in any previous opinion concerning the [Fourteenth] amendment [declared] that the purpose of this great constitutional guarantee, and of the acts of Congress for its enforcement, was to place the colored race, in respect of civil rights, upon a level with whites.” Harper's Weekly, March 27, 1880. In contrast, the “marked diversity of opinion” in Slaughterhouse “left in no little doubt questions relating to the civil rights of colored persons under the amendment.” Similarly, Oliver Morton (R-Ind.) argued that Slaughterhouse “shows that the very history and purpose that called the Fourteenth Amendment into existence was to protect the colored race from all unjust discrimination in the law, of whatsoever kind.” As quoted in Ross, Justice of Shattered Dreams, 209.
159. In Slaughterhouse, Miller had written, “In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to [the Equal Protection] clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden” (Slaughterhouse, 83 U.S. at 81). Ross, for instance, argues that Miller intended just this result, insofar as his hope for the political normalization of the South lay in the electoral process, and particularly, in the results of free African American voting.
160. Congressional Record, 43rd Congress, 1st Sess., 4149.
161. Congressional Record, 43rd Congress, 2nd Sess., 944. Here, too, Republican publications agreed with both Lynch and Howe. Harper's, for example, suggested that the Civil Rights Act of 1875 “was founded upon the last clause of the first section of the Fourteenth Amendment,” and cited Slaughterhouse for its constitutional authority. Harper's Weekly, October 10, 1874. In a later editorial, the magazine echoed this same frame, here focusing on the doctrine of “state neglect” and citing Slaughterhouse directly: “Does a law which stigmatizes a class of citizens on account of color violate the equality which the Constitution guarantees? This is the question, and the Slaughterhouse decision answers it. ‘The existence of laws in the States where the newly emancipated negroes resided which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by [the Equal Protection] clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation.’” Harper's Weekly, December 19, 1874. For a complete and thorough discussion of the concept of “state neglect,” see Brandwein, Rethinking the Judicial Settlement of Reconstruction.
162. The Nation, “The States Rights Issue Settled,” July 21, 1887.
163. Miller to Ballinger, August 29, 1869, SFMP, LOC, box 1, folder 6.
164. “Justice Field's Opinion in the New Orleans Case,” Chicago Daily Tribune, May 23, 1873.
165. Chicago Daily Tribune, April 18, 1873. Slaughterhouse’s Republican critics framed the issues in similar terms. The Nation, for instance, was originally critical of the Slaughterhouse decision on classical liberal grounds. In an editorial published in 1884, the magazine opined that Slaughterhouse stood for the proposition that under the “‘police power,’ that is, the power to provide for the public health and the preservation of life and limb, and the general security of person and property, a monopoly … could be created by any State.” The Nation, August 28, 1884. The New York Times, likewise, suggested that if Governor Kellogg of Louisiana “really desires to promote the welfare of the people of Louisiana, he now has an opportunity of doing so by securing the repeal of the laws under which the Louisiana Lottery company, the Slaughter-house Company, the Levee Company, and other oppressive monopolies were established.” “Oppressive Monopolies and How They Are Created,” The New York Times, October 21, 1874. Separately, Miller's opinion also partially suited the interests of northeastern capital. According to Richard Bensel, finance capitalists strenuously opposed a dramatic program of federal Reconstruction. Their desire to return the country to the gold standard as quickly as possible required a rapid restart of the Southern cotton-export economy. Only with such an economic reset could they hope to earn the capital that would pay back the national debt (with interest). In addition, this faction was concerned about the national implications of a program of wealth redistribution from Southern plantation-based elites to newly freed slaves and a small group of unionist whites. See Bensel, Yankee Leviathan, 348–49. Consequently, Republican finance interests would have welcomed a decision that potentially augured weakened federal control of the South.
166. The Democratic side included two of the infamous “Four Horsemen,” James McReynolds and Pierce Butler, who voted to strike down much of the “first” New Deal in the years between 1932 and 1935. McReynolds had served as Attorney General under Woodrow Wilson; Butler was appointed by Harding, a Republican.
167. Gillman, Howard, “The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making,” in Supreme Court Decision-Making: New Institutionalist Approaches, ed. Clayton, Cornell W. and Gillman, Howard (Chicago: University of Chicago Press, 1999), 77 Google Scholar.
168. See, e.g., Farhang, Sean, The Litigation State: Public Regulation and Private Lawsuits in the United States (Princeton, NJ: Princeton University Press, 2010), 87 Google Scholar.
169. Skowronek, The Politics Presidents Make, 31.
170. Dahl, “Decision-Making in a Democracy,” 294.