Authors: Damon Root
Because the Fourteenth Amendment is the primary legal battlefield upon which judicial restraint and judicial action have come to blows, this book begins with a brief history of that amendment, followed by a close look at the 1873 case in which the Supreme Court first grappled with its meaning and set the terms for the debate we're still having today. From there I turn to the great courtroom duels over economic regulation that marked the Progressive and New Deal eras, including the cases that inspired Franklin Roosevelt's ill-fated attempt to pack the Supreme Court. I then discuss the sweeping liberal triumphs of the mid-twentieth century, such as
Brown v. Board of Education,
and consider their relationship (if any) to the tenets of judicial deference. Next I introduce Robert Bork, founding father of the contemporary legal right and heir to Progressive hero Oliver Wendell Holmes. After Bork comes the first wave of libertarian insurgents who rose up to take him (and Holmes) down. Finally, I explain how all of these factors came together to produce several of the biggest Supreme
Court battles of our own time: namely, the battles over gay rights, eminent domain, gun control, and health care reform.
What follows is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society. Their fundamental debate, which stretches from the Civil War period to the present, goes to the very heart of our constitutional system.
One
“The Right of Free Labor”
On September 3, 1848, to mark the tenth anniversary of his escape from slavery, the abolitionist leader Frederick Douglass addressed an open letter to his old master, a man named Thomas Auld. “I have often thought I should like to explain to you the grounds upon which I have justified myself in running away from you,” Douglass wrote. The morality was simple. “You are a man, and so am I. . . . In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an
honest
living.”
1
Born into slavery in Talbot County, Maryland, sometime in February 1818, Frederick Douglass broke free from bondage at the age of twenty, making his way north under a false identity to New York City, where he stopped to get married, and then on to the whaling port of New Bedford, Massachusetts, where he found a job loading ships. Before long he was attending abolitionist meetings and had soon established himself as a force to be reckoned with inside the growing movement to abolish slavery. “Three out of the ten years since I left
you, I spent as a common laborer,” Douglass wrote to Auld. “It was there I earned my first free dollar. It was mine. I could spend it as I pleased. . . . That was a precious dollar to me.”
2
The story of his first paying job would appear frequently in Frederick Douglass's writings and speeches over the years, and with good reason. At the center of his lifelong struggle for liberty and equality stood the principle of self-ownership, a concept that necessarily included both the freedom to compete in the economic marketplace and the right to enjoy the fruits of those labors. Slavery, as Douglass understood all too well, obliterated such things, robbing its victims not only of the products of their toil, but of their control over their own bodies. Earning that “first free dollar” was therefore a milestone in his life. As he described the event in
My Bondage and My Freedom,
the second of his three autobiographies, “I was now my own masterâa tremendous fact.”
3
That tremendous fact of self-ownership, and the shattering repercussions that followed from it, would transform American law during the course of the nineteenth century, first by undermining the legal and moral foundations of the slave system, and then by inspiring a new constitutional order to replace it. The centerpiece of that new order was the Fourteenth Amendment to the U.S. Constitution. Drafted by the Radical Republicans of the thirty-ninth Congress in 1866 and ratified by the states in 1868, it declares: “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.” According to the author of those words, antislavery Republican Congressman John Bingham of Ohio, among the liberties now under protection from state abuse was “the right to work in an honest calling and contribute by your toil in some sort to the support of your fellowmen, and to be secure in the
enjoyment of the fruits of your toil.”
4
In other words, Bingham had sought to enshrine the free labor philosophy of Frederick Douglass within the text of the Constitution. As a corollary, the federal courts would now be empowered to protect such rights from the grasp of predatory state officials.
Yet in 1873, just five years after the Fourteenth Amendment went into effect, a bare majority of the U.S. Supreme Court voted to strip it of that meaning in one of the most consequential rulings in American history, a decision known as
The Slaughter-House Cases.
At issue was an act of the Louisiana legislature granting a private corporation the lucrative authority to operate an exclusive central slaughterhouse for the city of New Orleans for a period of twenty-five years. Although framed as a public health measure, the monopoly law had every appearance of corruption and special-interest favoritism, particularly in the eyes of the hundreds of local butchers whose economic livelihoods were suddenly at risk. It was “an odious and burdensome monopoly . . . against common right and the common interest,”
5
argued the lawyers for the Butchers Benevolent Association, the group whose legal challenge helped spark the case. They had good reason to suspect foul play. As the historian Charles Lofgren would later observe, “legislative bribery had greased passage of the law, with its most immediate beneficiariesâthe seventeen participants in the corporation it establishedâadroitly distributing shares of stock and cash.”
6
The Supreme Court, however, adopted a posture of judicial deference toward the state legislature and its corporate beneficiaries, holding that the new Fourteenth Amendment offered virtually no protection for individual rights against state authority. Government officials remained free to control economic affairs as they saw fit. “The power here exercised” by the state of Louisiana, observed the majority opinion of Justice Samuel F. Miller, “has been, up to the present period in the constitutional history of this country, always conceded to
belong to the States.”
7
To rule otherwise, Miller asserted, would “fetter and degrade the State governments” by denying them their traditional powers. Furthermore, Miller wrote, the Supreme Court had no business acting as “a perpetual censor upon all legislation of the States.”
8
(Twentieth-century conservatives would later employ a similar argument when condemning the Court's rulings against state restrictions on abortion.)
Among the minority of justices who took a dissenting view in
Slaughter-House
was Lincoln appointee Stephen Field. As Justice Field saw it, the protection of free labor principles from the rapacious actions of state lawmakers was
the
central issue in
The Slaughter-House Cases.
The majority opinion of the Court, he believed, had turned the Fourteenth Amendment completely on its head. If a constitutional right was under attack by a state legislature, Field maintained, then the Supreme Court was duty-bound by the new amendment to strike down the offending statute. Judicial restraint was no excuse for judicial surrender. As for the slaughterhouse monopoly before him, Field had little doubt that it deserved a fatal blow from the bench. “It is to me a matter of profound regret that [the monopoly's] validity is recognized by a majority of this court,” he wrote in his
Slaughter-House
dissent, “for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.”
9
According to Field, “the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the states which adopted it.”
10
More than 140 years have now passed since the Supreme Court issued its
Slaughter-House
ruling, yet the central issues of the case remain as hotly disputed as ever. Should the courts defer to legislative majorities and allow contested regulations to stand? Or does the Constitution require judicial action in defense of individual liberty, forcing the courts to overrule democratically enacted laws? Those questions have cropped up in almost every major Fourteenth
Amendment case since 1873, from the conflict over state regulation of business to the showdown over state controls on abortion. Indeed, it's no exaggeration to say that
Slaughter-House
lies at the very heart of America's long-running dispute over the scope of the Fourteenth Amendment and the reach of state power, perhaps the most litigated area in all of constitutional law.
To understand today's debate over judicial restraint and the role of the courts, we must first understand the origins of that debate in the bloody age of slavery, the Civil War, and Reconstruction.
“Liberty and Free Competition”
The idea of free labor has deep roots in Anglo-American history. In 1614, Britain's highest judicial officer, Sir Edward Coke, laid out the basic formulation in the case of
Allen v. Tooley.
At issue was a lawsuit filed against an upholsterer who failed to complete an apprenticeship with the local guild before going into business on his own. In mercantilist England, such guilds typically enjoyed broad control over their respective fields. Yet according to Coke, under both the Magna Carta and the common law, “it was lawful for any man to use any trade thereby to maintain himself and his family.”
11
The upholsterer won. Later that year, in
The Case of the Tailors of Ipswich,
Coke deployed the same free labor principles against a royally chartered guild that sought to prevent non-members from working as tailors. “At the Common Law,” he declared, “no man could be prohibited from working in any lawful Trade, for the Law doth abhor idleness, the mother of all evil.”
12
Adam Smith would make the same basic point a century and a half later in
The Wealth of Nations,
one of the most influential economic treatises of its day in both Britain and America. “The patrimony of the poor man lies in the strength and dexterity of his own hands,” Smith wrote. “To hinder him from employing this strength and dexterity
in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property.”
13
James Madison, the primary architect of the U.S. Constitution, agreed with Coke and Smith. “That is not a just government, nor is property secure under it,” Madison wrote, “where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”
14
President Thomas Jefferson made a similar claim in his first inaugural address, describing “the sum of good government” as a legal order that “shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”
15
Of course, Madison and Jefferson were not themselves entirely scrupulous on this point, as the many slaves forced to labor on their respective Virginia plantations might have told you. It would fall to the antislavery activists of the nineteenth century to correct these and other shortcomings of the founding generation.
Those activists had their work cut out for them. By the middle of the nineteenth century, the peculiar institution was deeply embedded in American political and economic life. But despite the daunting task before it, the antislavery movement proceeded to make its case, arguing not only against the evils of human bondage, but in favor of a superior system to replace it: the system of free labor. Those arguments would build directly on the intellectual foundation first established by thinkers such as Coke, Smith, and Madison. The “ever-present motive power” of slavery, announced Massachusetts Senator Charles Sumner, one of the slave system's most persistent foes, was “simply to compel the labor of fellow-men without wages,” by “excluding them from that property in their own earnings, which the law of nature allow,
and civilization secures. . . . It is robbery and petty larceny, under the garb of law.”
16
The abolitionist William Goodell struck a similar note. “Honest labor is despised at the south,” he wrote. “The idlers of the south, live upon the unrequited toil of the laborer.”
17
“All these distinctions may be resolved into this fundamental difference,” declared the
National Era,
a leading abolitionist publication. “The free working man owns himself; the slave is owned by another.”
18
As the legal scholar William E. Forbath later observed, “It was the abolitionists who first lent moral sanction and rhetorical energy to the notion that the northern worker's freedom rested simply in self-ownership and the right to sell his own labor.”
19
Slavery's defenders also recognized the potency of these free labor principles and correctly saw them as a threat to their way of life. To the pro-slavery politician John C. Calhoun of South Carolina, for instance, the idea of a universal right to life, liberty, and property was both dangerous and preposterous, a point of view that led Calhoun not only to denounce the abolitionists, but also to attack the celebrated words of the Declaration of Independence. Jefferson's notion that all men are created equal and endowed at birth with certain unalienable rights was “the most dangerous of all political errors,”
20
Calhoun claimed. “For a long time it lay dormant; but in the process of time it began to germinate, and produce its poisonous fruits.”
21
Those “poisonous fruits” included the existence of an organized abolitionist movement that had the nerve to take the Declaration of Independence at its word.
The pro-slavery writer George Fitzhugh went even further than Calhoun, arguing that slavery was superior to “liberty and free competition”
22
in all respects. The condition of free labor in an unfettered market, Fitzhugh maintained, was “worse than slavery”
23
because the forces of capitalism routinely exploited the poor and the working class, and left them struggling to make ends meet. “Slavery relieves our
slaves of these cares altogether,” he bragged in his 1854 bestseller
Sociology for the South, or The Failure of Free Society.
“Slavery is a form, and the very best form, of socialism.”
24
As for the notion that “individuals and peoples prosper most when governed least,”
25
Fitzhugh proclaimed it to be a lie: “It has been justly observed that under this system the rich are continually growing richer and the poor poorer.”
26
In fact, he declared, far from making the world a better place, “the love of personal liberty and freedom from all restraint, are distinguishing traits of wild men and wild beasts.”
27
As the historian Eugene Genovese later explained, “Fitzhugh understood that the South was the battleground for two irreconcilable forces,”
28
slavery and free labor.