The Tempting of America

by Robert H. Bork

  Shortly afterward, Curtis resigned from the Supreme Court and returned to Boston to practice law. His motives were said to be partly financial and partly a loss of confidence in the Court. It would be good to think that he might have borne the financial sacrifice had Dred Scott not convinced him that the Court, far from being a serious judicial body, had become hopelessly political, and that he wanted no part of it. Since only one other Justice, John McLean of Ohio, had sided with him, Curtis was entitled to think he could not affect the balance of the Court.

  The ruling in Dred Scott at once became an explosive national issue. As historian Don Fehrenbacher noted, Taney had ruled “in effect that the Republican party was organized for an illegal purpose. … No doubt it contributed significantly to the general accumulation of sectional animosity that made some kind of national crisis increasingly unavoidable.”31 There is something wrong, as somebody has said, with a judicial power that can produce a decision it takes a civil war to overturn.

  The Spirit of the Constitution and the Establishment of Justice

  Salmon P. Chase of Ohio was one of Lincoln’s rivals for the Republican presidential nomination in 1860. Lincoln, once in office, made Chase Secretary of the Treasury. Among his accomplishments in that office was to help finance the Union’s efforts in the Civil War by helping to make paper money legal tender of the United States. In 1864, Lincoln appointed him Chief Justice of the United States. Within a few years Chase wrote for a Court majority in Hepburn v. Griswold,32 holding that the Constitution forbade making paper legal tender. The decision may well have been correct, though Chase’s opinion does not persuade one of that. Of interest for present purposes is that Chase swept to his conclusion with arguments that justify absolutely unlimited judicial power.

  In 1860, a Mrs. Hepburn gave a promissory note for 11,250 “dollars” to one Griswold. At the time the note was made, and when it fell due in 1862, gold and silver coins were the only legal tender of the United States. A few days later Congress authorized the issuance of paper money and made it legal tender for the payment of all public and private debts. In 1864, having been sued on the note by Griswold, Hepburn tried to pay the principal and interest with paper money, which Griswold refused because that currency was worth a good deal less than the gold and silver he had been entitled to previously. The question in the suit became whether the act making paper money legal tender for debts already incurred was constitutional.

  The Supreme Court thought not, and Griswold received full value. That seems only fair, but the Court had some difficulty in explaining why that fairness was constitutionally mandated. Chase cited Marshall for the proposition that a claimed congressional power must be “consistent with the letter and spirit of the Constitution.” Chase skirted the question of the “letter” in favor of the question whether Congress’s statute was “consistent with the spirit of the Constitution.” With that maneuver he was free of constraint and broke into the open field. It required only a little rhetoric to go the rest of the way. “Among the great cardinal principles of that instrument, no one is more conspicuous or more venerable than the establishment of justice.” What was intended by “justice” was “happily, not a matter of disputation. It is not left to inference or conjecture, especially in its relations to contracts.” The principle to be applied found “expression in that most valuable provision of the Constitution of the United States, ever recognized as an efficient safeguard against injustice, that ‘no State shall pass any law impairing the obligation of contracts.’ ” Chase admitted, as he had to, that the provision bound only the states, not the federal government. But that was a minor difficulty since “we think it clear that those who framed and those who adopted the Constitution, intended that the spirit of this prohibition should pervade the entire body of legislation, and that the justice which the Constitution was ordained to establish was not thought by them to be compatible with legislation of an opposite tendency.”

  This would be an incredible performance had we not seen its like so many times since. The Constitution contains not only guarantees of liberty but also powers of government over individuals, including the power to define crimes and punish for them. It would appear to have a number of “spirits,” not all of them of the same character. Matters are not helped by Chase’s taking as expressing the “spirit” a clause in the Preamble, which is entirely hortatory and not judicially enforceable, stating that a purpose of the Constitution was to “establish Justice.” If that states a criterion for judicial review, every judge is free to decide which laws are just and which not. Subjectivism is given free rein. Worse than that, however, there are any number of “spirits” within the Preamble itself: other stated purposes are to “form a more perfect Union,” “insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”33 That is a cornucopia of “spirits” for a judge to draw upon in making uphis own Constitution. His freehand methodology permitted Chase to say that a provision barring the impairment of the obligation of contracts, which he admitted did not apply to the case, nevertheless applied to the case.

  Not satisfied with this, Chase suggested that the legal tender law violated the “spirit” of the fifth amendment’s prohibition of the “taking” of private property for public use without just compensation. He closed with a rousing Dred Scott finale. The statute, Chase said, deprived Griswold of property without due process of law. That there may have been a legitimate way to reach the same result (the power given Congress in article I, section 8, “To coin Money” may well have been intended to exclude paper money) hardly redeems Chase’s irresponsibility.

  Judicial Activism in the Service of Property and Free Enterprise

  After the Civil War the nation entered upon a long period of growth and industrialization. The judicial devotion to private property and limited government, which had been evident from the beginning of the Republic, now began to face the challenge of new kinds of legislation, some of it designed to further economic development through public expenditures, some of it designed to curb what were thought to be the abuses of a free enterprise system. The Constitution did not easily lend itself to all that the judges’ philosophy of the proper role of government and the limits of democratic choice might suggest.

  In a great burst of constitution-making prompted by the Civil War, the nation from 1865 to 1870 adopted three major constitutional amendments designed, primarily, to provide the recently freed slaves with the same civil and political rights as all free citizens. The thirteenth amendment prohibited slavery and “involuntary servitude”; the fifteenth guaranteed the right to vote regardless of “race, color, or previous condition of servitude.” But the fourteenth amendment, adopted in 1868, became and has remained the great engine of judicial power. The critical language of that amendment, for our purposes, is contained in three clauses: “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.”34 The privileges and immunities clause, whose intended meaning remains largely unknown, was given a limited construction by the Supreme Court and has since remained dormant. The due process clause, now made applicable to the states, was, of course, copied from the fifth amendment, which applied only against the federal government. Unlike the other two clauses, it quickly displayed the same capacity to accommodate judicial constitution-making which Taney had found in the fifth amendment’s version. The creative use of the equal protection clause for the same purpose had to await the Warren Court of the mid-twentieth century.

  In 1869, Louisiana chartered a corporation and gave it a monopoly of slaughterhouses, landings for cattle, and stockyards in a large area that included New Orleans. Butchers precluded from practicing their trade, except on the corporation’s land and terms, challenged the law un
der the thirteenth and fourteenth amendments. The Supreme Court, splitting five to four, sustained the law in the Slaughter-House Cases35 Justice Samuel Miller’s opinion for the Court said that the text and history of the three post-Civil War amendments disclosed a unity of purpose, “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” He interpreted privileges and immunities as referring to rights already protected elsewhere in the Constitution and thus, in effect, adding nothing. Of the due process clause, according to Miller, “it is sufficient to say that under no construction of that provision [as already contained in the fifth amendment] that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.” Moreover, “[w]e doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview” of the equal protection clause. The fourteenth amendment thus had little reach beyond the protection of those who had been slaves. Though some have complained bitterly about this, Miller was following a sound judicial instinct: to reject a construction of the new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members. He said of the argument by the complaining butchers, “[S]uch a construction … would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights… .” In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race.

  What is striking about the Slaughter-House Cases is not the caution displayed by the majority but rather the radical position of the four dissenters. Justice Stephen Field wrote for them all, stating that the first clause designated “those [privileges and immunities] which of right belong to the citizens of all free governments”36 These were “natural and inalienable rights” and included “the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.” Field actually supported his constitutional position with a quotation from Adam Smith to the effect that hindering a working man from employing his skills as he thinks proper is “a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him.” One may be an unyielding admirer of Adam Smith, and of that moral principle in particular, without supposing that Smith wrote the fourteenth amendment or that judges are entitled to enforce The Wealth of Nations because its principles should have been in the Constitution.

  Justice Joseph Bradley, in an additional dissent, agreed that the Louisiana law abridged the privileges of citizens and also deprived the butchers of liberty and property without due process of law. “Their right of choice is a portion of their liberty; their occupation is their property.”37 Bradley, like the Taney of Dred Scott, thus converted a constitutional requirement of just procedures into a prohibition of legislation whose substance he disliked. The difference is that Bradley’s principles are admirable and Taney’s despicable, but that is not a constitutional difference where nothing in the document authorizes judges to apply either principle. Bradley also found the statute in violation of the guarantee of the equal protection of the laws. The presence of three distinct clauses was apparently, in Bradley’s view, an embarrassment of riches; any one of them was adequate as a vehicle for his political views. Indeed, he apparently did not even need the fourteenth amendment, for, in a passage reminiscent of Chase in Calder v. Bull, Bradley said, “even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words… .” Speaking of the dissents in the Slaughter-House Cases, David Currie said, “The fundamental-rights notion reflects once again the incessant quest for the judicial holy grail; perhaps at long last we have discovered a clause that lets us strike down any law we do not like.”38

  Bradley also protested the limitation of the amendment almost entirely to blacks. “They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.”39 This, too, as we shall see, can be read as an almost illimitable discretionary power in the courts.

  The Slaughter-House Cases pose the interesting question of the appropriate judicial response to a constitutional provision whose meaning is largely unknown, as was, and is, the meaning of the privileges and immunities clause. It is quite possible that the words meant very little to those who adopted them and that, as Charles Fairman said, the clause came from Representative Bingham of Ohio. “Its euphony and indefiniteness of meaning were a charm to him.”40 Whether that is the case or not, that the ratifiers of the amendment presumably meant something is no reason for a judge, who does not have any idea what that something is, to make up and enforce a meaning that is something else.

  The Slaughter-House Cases were a narrow victory for judicial moderation and, in the event, proved only a temporary one. The idea that there are rights that are not in the Constitution and yet are enforceable by courts had been gaining ground in some state courts. For example, in 1870 the Wisconsin Supreme Court, in Whiting v. Sheboygan & Fond du Lac Railroad Co.,41 without citing a constitutional provision in point, held that the state legislature could not authorize taxes to aid the construction of a privately owned railroad even though a majority of the people should vote in the affirmative. The court simply limited the purposes for which people could be taxed according to the court’s political philosophy: “It is obvious, if public benefits and advantages of this kind, and which may be properly called incidental, constitute a public use which will justify a resort to either of these sovereign powers of government, that then all distinction between public and private business, and public and private purposes, is obliterated, and the door to taxation is opened wide for every conceivable object by which the public interest and welfare may be directly or in any wise promoted. Such a doctrine would be subversive to all just ideas of the powers of government and destructive of all rights of private property, leaving every man’s estate to be held by him as a mere grace or favor received at the hands of the legislative body.”

  Michigan’s Supreme Court, in People v. Township of Salem,42 an 1870 opinion by the distinguished Judge Thomas Cooley, struck down a similar law saying that “there are certain limitations upon this power [to tax], not prescribed in express terms by any constitutional provision, but inherent in the subject itself, which attend its exercise under all circumstances, and which are as inflexible and absolute in their restraints as if directly imposed in the most positive form of words.” It was beyond the power of the state to furnish capital to set private parties up in business or to subsidize a going business since “when the State once enters upon the business of subsidies, we shall not fail to discover that the strong and powerful interests are those most likely to control legislation, and that the weaker will be taxed to enhance the profits of the stronger.” Therefore, “the first and most fundamental maxim of taxation is violated by the act in question.” The “first and most fundamental maxim of taxation,” rather curiously had not been included in the constitution that gave the power to tax.

  So appealing was this political philosophy disguised as constitutional law that, astonishingly, Justice Miller, who in the SlaughterHouse Cases, refused to become a “perpetual censor” on all state legislation, one year
later, in 1874, became just that. Loan Association v. Topeka43 involved a Kansas statute which permitted cities to issue bonds and donate them to private businesses to encourage them to set up in the cities. The bonds would, of course, be paid out of tax revenues. Miller would have none of it. Like the state court judges, he insisted that people could not be taxed except for a public purpose, and it was up to the courts not only to impose this limitation but to define what such a purpose was. Unless such a limitation were imposed on the legislative power by judges, government would hold the lives, liberty, and property of its citizens subject to the most absolute despotism; “a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism.” It was not enough to have a Constitution that limited the powers of government and guaranteed specific freedoms of persons; it was necessary to have still further limitations invented by judges. “There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.” No provision of any constitution was invoked for this remarkable performance. Miller closed with a recitation of state cases upholding the same principle and seemed to view with particular approbation a decision by the Supreme Judicial Court of Massachusetts striking down taxation to provide funds to aid owners to rebuild “after the disastrous fire in Boston, in 1872, which laid an important part of that city in ashes.”

  The sole dissenter in Loan Association was Justice Nathan Clifford, who wrote that

  … the better opinion is that where the constitution of the State contains no prohibition upon the subject, express or implied, neither the State nor Federal courts can declare a statute of the State void as unwise, unjust, or inexpedient, nor for any other cause, unless it be repugnant to the Federal Constitution. Except where the Constitution has imposed limits upon the legislative power the rule of law appears to be that the power of legislation must be considered as practically absolute, whether the law operates according to natural justice or not in any particular case, for the reason that courts are not the guardians of the rights of the people of the State, save where those rights are secured by some constitutional provision which comes within judicial cognizance; or, in the language of Marshall, C. J., “The interest, wisdom, and justice of the representative body furnish the only security in a large class of cases not regulated by any constitutional provision.”