Transcripts For CSPAN3 Justice Joseph Bradley The Fourteenth Amendment 20240713

I am pleased to welcome you to the third of four lectures that comprise ourselves or men lecture series. This years series focuses on new perspectives in dissent and the Supreme Court. Before we begin the evenings program, i am commanded, not asked, im commanded to ask you to turn off your electronics. Cell phones, tablets, apple watches. Even in silent mode, they can interfere with the sound system here in the courtroom. So thank you for doing that. I would like to express the societys gratitude to our host this evening, justice sonya sotomayor. She has been enormously generous in giving up her time to the society when we call upon her to help us, and i want to thank her for taking time off during a very busy time in the life of the court. Sonya sotomayor was born in the bronx, new york, june 25, 1954. She earned a ba in 1976 from princeton. She earned a jd from yale law school, where she served as an editor of the yale law journal. She then was an assistant District Attorney in the New York County District Attorneys office, from 1979 to 1984. Then, she litigated. She handled International Commercial matters in new york city and served as an associate and partner from 1984 to 1992. She was then nominated for the Supreme Court on may 26, 2009, after service in the District Court and the Second Circuit court of appeals. Happily, she is also an author of books aimed at adults and children alike. Her most recent volume, a childrens book, is entitled just ask, be different, be brave, be you. It was published just last month. I am honored and grateful to introduce you to our host for the evening, justice sonya sotomayor. [applause] Justice Sotomayor welcome everyone. Good evening. I am always pleased to come to the Supreme Court. I am so delighted many of you are joining us this evening for the third of the societys fourpart 2019 leon silverman lecture series on dissent in the Supreme Court and new perspectives. During my tenure on the court, i have observed and appreciated and participated in many of the extensive efforts the society undertakes to engage its members on the greater world in the history of this institution. Lectures such as this one are just one example. I along with my colleagues, so grateful for the work the society does to educate the nation and the ways of the Supreme Court, the constitution, and that judiciary. From teacher Training Programs and middle schools and high schools, to publications like the journal of Supreme Court history, the societys efforts deeply and rich americans in their search for civic education. Tonights lecture is on dissent. Jester just Justice Bradley in the slaughterhouse cases, is a topic of particular interest to me. I have been given a lot of opportunity to think about dissent. [laughter] i hope that one day some of my dissent is viewed as prescient. I am going to introduce professor pamela brandwein. She received her ma and phd from northwestern university. She has amassed a remarkable number of teaching rewards, a testament of her devotion not only to scholarship, but also to education. Professor brandwein wrote the Supreme Court and the production of historical truth. Currently she is working on a book project that examines the relationship between antislavery politics and capitalist development in the United States. Professor brandwein previously delivered the silverman lecture for the Supreme Court society. Speaking on the courts role after reconstruction. The Historical Society invited her back a second time, and is a powerful endorsement of how influential her scholarship has been, and how much we have enjoyed her presence. I expect at the end of our talk, we will understand why her Teaching Awards are testaments to her power to enlighten and engage. Please welcome me in joining professor brandwein. [applause] professor brandwein thank you, Justice Sotomayor. Its an honor to be here and i would like to thank the Supreme Court society for inviting me back. To be asked back is such a privilege. My focus tonight is a dissenting opinion in a case, the slaughterhouse decision of 1873, the courts first major interpretation of the 14th amendment. The dissenting opinion is by Justice Joseph bradley. The majority opinion has been the target of massive criticism. The majority gutted the privileges or immunities clause of the 14th amendment, which reads no state shall abridge the privileges or immunities of citizens of the United States. The court gutted it by defining rights of National Citizenship narrowly on putting fundamental rights under the heading of state citizenship. The case involved white butchers. The white butchers were challenging an 1869 law passed by the Louisiana Legislature, the Reconstruction Legislature that was biracial, blacks held 42 out of 101 seats. The biracial legislature faced racial hostility. It was between passing a pair of laws, one that borrowed race discrimination in public accommodations on the other that integrated public schools, that the Legislature Passed the 1869 law. The law said, it granted exclusive franchise to a company, Crescent City livestock and lending company, to run a public slaughterhouse, a grand slaughterhouse. And it was required to be open to all butchers, blackandwhite, and all butchers had to do their slaughtering there. This was compulsory. Inspections were mandatory, fees are set by the legislature, and a portion of the fees went to an education fund. Butchers in new orleans resisted and obstructed regulations for years, and this was typical in american and european cities. With the rise of the Sanitation Movement in the u. S. And europe, big cities began regulating. New york and San Francisco removed slaughtering from the city, basically zoned it out of the city. This was upheld by state courts in 1866 and 1867. Chicago and milwaukee also passed compulsory slaughterhouse laws. The milwaukee one was upheld by a state court, and the one in chicago was struck down on what appeared to be technicalities. The butchers fought all of this tooth and nail. And in new orleans, Health Conditions were absolutely awful. Butchers slaughtered animals in their front yards, this was in public, they dumped animal waste into the streets and into the mississippi river, which was the source of the water supply, and descriptions of this are ghastly and there was a cholera outbreak. The butchers resistance to regulation had made them unpopular, and they were unpopular for years. But when the 1869 law got past, this time they got support of white new orleans because of hostility to the biracial legislature. On top of that, the fight attracted the attention of john campbell, who represented him, a Supreme Court justice who resigned his seat to join the confederacy. And campbell was deeply hostile to reconstruction. And campbell pressed hard an argument about the 14th amendment, about the privileges or immunities clause in particular, and he argued butchers had a right to pursue and occupation, and that that right to pursue and occupation was a right of National Citizenship. And he argued that the exclusive franchise was a monopoly that deprived butchers of that right in violation of the 14th amendment. The Court Majority ejected those claims. Campbell lost, and the court upheld the law. The court could have rejected the butchers claims and ruled the law was a valid Health Regulation and left the privileges or communities law intact. This is important to recognize because upholding the health law did not require the gutting of the privileges or immunity clause, but the majority rejected the butchers claim by rejecting the clause, by defining the right of National Citizenship narrowly and by putting fundamental rights under state citizenship. The majority recognize the law was valid, but the legal basis for the ruling was the construction of the privileges or immunities clause. And that construction, the gutting of the clause, worked to block future efforts to challenge state regulations of property under the privileges or immunities clause. To justify this narrow definition of National Citizenship, to justify its obstruction of the privileges or immunities clause, Justice Miller writing for the majority provided a historical account of the antislavery struggle. He called it a recapitulation of events too recent to be called history. Historians have made clear republicans had will objectives coming out of the civil war, dual objectives for reconstruction. In general, they wanted equality under law and also wanted to establish the primacy of National Citizenship. They wanted to make National Citizenship primary over state citizenship. With regard to the second objective, there is increasing scholarly consensus that republicans on National Citizenship includes bill of rights guarantees and that they saw the immunity clause as a vehicle to apply the bill of rights to states. Millers account of antislavery which he used to justify narrow construction of the privileges or immunities clause a raised the second objective. He identified antislavery with the first objective only, that was race equality. The language is familiar. He said the one pervading purpose of reconstruction amendments, lying at the foundation of each was the freedom of the slave race. He added, we dont say no one else can share the protection but black freedom must have a fair and just role in any question of reconstruction. And he said we doubt very much whether anything beyond black freedom will ever come within its purview. Bradley, who was writing a dissent, agreed with the butchers. He said the exclusive franchise was invalid, and he actually identified both republican objectives for reconstruction, and he connected antislavery to the invigoration of National Citizenship. He also argued rights of National Citizenship included bill of rights guarantees. And on the issue of the purpose of the 14th amendment, the beneficiaries of the 14th amendment, bradley responded directly to miller. He said, it is futile to argue that none of the persons of the african race are intended to be benefited by this amendment. They have maybe been the cause of the amendment, but the language is general, embracing all citizens. This has been regarded as prescient, regarded as bradley correctly predicting wider use of the 14th amendment. It is wellknown corporations were the first major beneficiaries of the 14th amendment and the due process clause in particular. In this respect, they got an assist from the doctrine of corporate personhood. In 1897 the court ruled Insurance Companies had a liberty of contract to do business across state lines free from arbitrary restrictions. But later the due process clause was read to protect rights of privacy, access to contraception, access to abortion, the right to marry, and Public Interest organizations were also covered under due process. The naacp won an important case when they won the right to say no to the state of alabama, went state of alabama wanted its membership list. The equal protection clause had many beneficiaries. Even for blacks, the promise of equality under law has been both partial and longdelayed. So bradleys dissent, and saying it was futile to limit and officiate raise of the 14th amendment to blacks, has been regarded as seeing into the future. Prescient means having foreknowledge, knowledge of events before they take place. It is a divining of the future. This is a special insight attached to that word in one respect, yes, bradley calls it. But i want to suggest bradleys dissent is less a feat of predicting the future than making the future. It is less about divining what is to come than making what is to come. I want to frame bradleys as world making, not world predicting, because what we see in the dissent is a new and modern logic of liberty and governance. And it is this new logic of liberty and governance that enables many beneficiaries as time unfolds. And by creating this new logic of liberty and governance, i mean something specific. I am not talking about a flat and an accurate notion of bradley as the father of laissezfaire jurisprudence at the end of the 19th century. Justice field was far more hostile than bradley to state regulations and corporations. When i frame bradleys dissent as world making and not world predicting, i mean that his dissent reconceptualizes the logic of liberty and governance in his dissent, he conceives of liberty as self interested private rights in opposition to public power. He conceives of liberty existing in opposition to state governance, in opposition to state governance of social life. And he constructs a discernibly modern rightsbearing individual. It is man against state, a new conception of the judicial role. The judicial role henceforth will be protecting private rights against legislative invasion. This is new. Bradley is doing transformative work, but we have trouble seeing the newness, trouble seeing the transformative work. But that transformative work is a vital dimension of his slaughterhouse dissent, and has not been seen before. So bradleys dissent needs a new look. He is doing nothing less than reorganizing the logic of public law. He is reconceptualizing liberty and governance. There are two types of obstacles to seeing this transformative work. The first obstacle are myths about the 19th century, myths of liberal individualism, the idea that the United States was lockeian from the founding. Theres also the weak antebellum state. The idea of antebellum statelessness and laissezfaire. The second obstacle is more specialized and this is scholarly revisionism on the landmark case walker versus new york. The case in 1905 struck down a maximum hour law and it was seen as the court imposing its individual policy preferences. It retraces Police Powers jurisprudence, located within the Police Powers framework and traces the whole public purpose, hopefullys powers jurisprudence across the entire 19th century. Lochner gets located. What the myths have in common is they posit continuity across the 19th century. Continuity in the concept of liberty as private selfinterested rights against governments, continuity in the Police Powers framework, so it is hard to see that bradleys dissent is doing anything new, especially because it is in a dissent. When it comes to addressing the first obstacle to seeing bradleys dissent as world making, these myths about the 19th century, the myth of individual liberalism, antebellum statelessness, i want to borrow from bill novak and his book the peoples welfare. It is in that book that novak looks at law and regulation in the antebellum era, and novak explodes both of these myths. He traces the antebellum legal worldview and this is a distinct to logic of public law. According to the old logic, liberty was conceived as depending on governance, and the judicial role was to protect what was called the rights of the community. Of course at the founding, there was a concern the National Government i. T. Private people of rights. The idea was people have rights against the National Government, but the National Government was very far away and the National Government did not organize the governance of peoples social lives. With regard to the rights of property and contract, the fabled natural rights, these were governed at the state level under something called the police power and the police power referred not to police officers, but it referred to the power of state governments to regular Property Rights and contract rights to serve the public good, to serve the general welfare. It is precisely here in tracing the state and local regulations of property and contract that we see novaks evidence, that we see this old worldview about liberty and governance, so to see bradleys transformative work, to see his creation of the modern rights bearing individuals whose liberty existed against governance, we need to briefly revisit that old division of liberty and governance. We need to revisit what novak calls the wellregulated society. This is a term he borrows from court cases at the time. Ok, so this is the antebellum logic of public law. The thinkers associated with it included james wilson, the founder, chancellor kent, Nathaniel Chipman the treatise of the law of nations is associated with this and for all these thinkers and the antebellum court, there were two great axioms. The first axiom was the peoples welfare is the supreme law. Private interest must be made subservient to the public good. The second axiom was use your own property so as not to injure others. Weve got two great axioms, and this antebellum logic of liberty and governance was made up of several interrelated components. At its core was the idea that man was a relational and social being, and it is not just main in the human sense of man, it is men and the gendered subject matters. Men were seen as social and in the human sense of man, it is relational beings. And this was a strand of natural law thinking, and it was preoccupied with the common good. As Nathaniel Chipman put it, the laws of nature were the laws of social nature. Tied to this was a relational theory of rights. There was a sharp rejection of blackstones notion of private presocial absolute rights. Individuals had title to property, yes. Title to property, but the use of property and rights generally were viewed as social or conventional in nature in the sense that rights were realized in society. So liberty is viewed as impossible without society and dependent on society. So in turn, public power, state governance is the predicate of liberty. Government was seen as having a duty for the common good and acting for the common good was the way in which liberty was promoted. The essence of law, the judicial role, was to make sure Government Acted for the general welfare. This protected the rights of the community, which in turn protected liberty. Finally, governance was viewed as pragmatic, dynamic. Laws change as conditions change and those changing conditions had to do with market expansion, growth in cities, changes in technology and the like. That is the antebellum legal worldview, and it is important to note the antebellum legal logic was an inversion of the modern logic of liberty and governance. According to the modern logic of liberty and governance, men are viewed as individualistic in nature. Men individual in nature, liberty is seen as private and self interested. There is a dichotomy between private right and public power, and liberty is seen as existing against governance. The judicial role is defending rights against state invasion. According to the antebellum legal worldview, men are social in nature, rights are relational, liberty is dependent on governance. The essence of law is to enable the rights of the community. It is that worldview that fostered and legitimated the wellregulated society, the well ordered society. Novak reprints pages upon pages of this to make the point, how extensive these regulations were. These regulations pertained to public space, public economy, public health, public reality, and nuisance law was one of the most important regulatory tools. To summarize this into bellum logic of public law, man is social in nature of our rights are relational, liberty is realized in society, liberty is dependent on public power, public power is instituted for the common good, and it was the role of the courts to enable a rights of the community. To see how bradley transformed this, we need to see Police Powers jurisprudence, which has gotten a lot of attention from scholars taking a new look at lochner and embedding it in this Police Powers framework. These are the scholars who impute continuity of Police Powers across the 19th century. The key point is that bradley reorganizes Police Powers jurisprudence. A reorganizes public purpose jurisprudence. It is in that reorganization that he really conceptualizes man as individualistic, that he reconceptualize his liberty as private and presocial, that he introduces the economy between private public power and it is in that reorganization of Police Powers jurisprudence that he basically introduces the modern rights bearing individual whose liberty exist against governance. To see this, we need to say a bit about how Police Powers jurisprudence worked, how it worked before. This is where some of the work in. In the wellregulated society of the into the era, we see dependence on public power, governance and it was the duty of Government Act for the community. What Police Powers jurisprudence did was that a defined the boundaries of general welfare legislation. In the Police Powers tradition, the courts worked with general welfare legislation. That was one category, this was legislation for the community. The other category was class legislation, also called partial legislation. Courts invalidated this, because this was legislation for favorites. The rule was the state could have no favorites. This was how liberty was protected. Liberty was seen as depending on governance for the public good, and so to require legislation for the public good was to protect liberty. This was the old judicial approach to the protection of rights. As i said, bradley transformed public jurisprudence. He uses both those familiar categories. He does use that general welfare category in the favored few categories, so at first blush, it looks like he is working with in that old tradition. The use of those categories is part of the reason why lochner revisionists have missed his transformative work. Radley is sharply critical of this 1869 law, calling it the law of a favored few and he says valid general welfare legislation. He is actually reorganizing those categories. He is reorganizing the logic of public law. He is introducing liberal individualism into public law. It is now man against the state. Of course, a civil war had just happened and slavery was implicated in the war. We had new amendments. Slavery was a state institution, and slavery had been abolished. There was now a fundamental right to self ownership, but it is important to remember that right was not absolute. The 13th amendment still permitted slavery if you were duly convicted of a crime. For bradley, republicans wanted to make National Citizenship mean something. That they had in mind, the republicans, they had in mind that slave states had the right to free speech, free assembly, jury trial rights, the bill of rights guarantees. Also part of the context was the butchers in new orleans were make in a claim for National Citizenship rights and bradley agrees with them. So under these conditions, it is reasonable to think bradley, who rejected that aging 1869 law, was going to introduce the category of National Citizenship into Police Powers jurors to prudence. Its reasonable to think that jurisprudence is going to be changed in some way. We will seem natural citizenship show up, but there are choices here. There were choices in how bradley was going to do that. What he could have said, favoring the butchers, still going to go for the butchers, emphasizing natural citizenship because that is crucial for him, but using the old logic, using the logic of the wellregulated society. He could have said that that 1869 law was at the expense of the community in the sense that it abridged the rights of natural citizenship. Man is a social being, he could have said, who has a yearning for national community, and the late war was about that national yearning. He could have emphasized citizens of the United States have the liberty to pursue a lawful and necessary occupation, and that liberty is realized in communities governed by state regulations for the common good. He could have concluded that that louisiana law, that exclusive grant was at odds with the governments duty to act for the common good. Now, if lochner revisionists were right, if they were right that the Police Powers framework was continuous across the 19th century, that is what we should have seen from bradley. In framing that alternative, i have utilized what we know from novaks work. The right to pursue an occupation is the right of natural citizenship, yes. Not changing that. Bradley is still for the butchers. In my alternative framing, the right to pursue an occupation would still be conceived in relational terms. Liberty would still be seen as depending on governance for the common good, the legislature would still be conceived as having a duty to act for the general welfare, and the role of the judiciary would still be enabling the rights of the community. But thats not what bradley said. What he said was that the exclusive franchise was invalid not because it was at the expense of the community. That is the old way, but that it violated fundamental absolute rights. He invokes the term fundamental rights 14 times compared with fields, who invokes it four times. Bradley is doing a lot of work with this category. He said there are certain fundamental rights that the right to regulate cannot infringe. And he named the sacred right to labor. He repeated that. He said the right to choose ones calling is an essential part of liberty, which is the object of government to protect. He called it an invasion of the right to choose the lawful calling and invasion of personal liberty. He repeats that many times and said is the business of the National Court to protect that personal liberty. Again, the key quotes. There are certain fundamental rights that the right to regulate cannot infringe. The right to choose ones calling is an essential part of liberty, which it is the job of government to protect. Again, the key quotes. There are certain fundamental here, we have the newly minted rights bearing individual. Here, we see the hallmark of the modern logic of rights and governance, the dichotomy between private righthand public power, the possession of private right in opposition to state governments. The judicial role as limiting public power, as protecting liberty against state invasion. This is the introduction of liberal individualism into constitutional law, into public law. And bradley does all of this through an interrelated treatment of all four clauses of section one of the 14th amendment. For citizenship clause, privileges or immunities, equal protection, and he integrates attention to all four clauses. This actually is part of the reason the due process clause can do all the analytic work by itself, because it the arise in relationship to these other clauses and within this new logic of rights and governance. It is especially notable that bradley cites to blackstone for absolute private rights. In the grip of the myth of liberalism, they will draw a Straight Line from bradley back to blackstone, and this is a mistake. Remember, thinkers and practitioners of the wellregulated society rejected blackstone. It is also notable that bradley draws on political languages from outside the port. He brings them into law and as he brings them into law, is reorganizing them as he conceives of liberty as man against the state. One of the preexisting concepts he draws on is substantive due process. Howard j graham showed us in 1968 that substantive due process had its origins in the Antislavery Movement outside of the courts. Antislavery activists since the 1830s and prior to that used due process of law to mean security against arbitrary power. They called on the natural right to self ownership and that right existed in all the natural law traditions at the time. That natural right to self ownership supplied to the substantive content to due process of law. It supplied the substantive content for the republicans argument for the antislavery argument that due process protected the right to freedom in the western territories. Bradley draws on this due processing of natural law, thats grahams phrase, but he brings it into the courts and in bringing it into the courts, he actually displaces the old natural law tradition of the wellregulated society, because that was a natural law tradition concerned with the common good, and he displaces that natural law tradition and he replaces it with the natural law tradition in the lochnian mold. Bradley gives us six references, fields gives us none, another indicator bradley is doing this transformative work. Miller tells us to process is irrelevant to this case, but due process is one of those clauses bradley is weaving into this. We also draw from the free labor language of the Republican Party. The Republican Party was founded in 1854, 1856 on the principle of the nonextension of slavery into the western territories. They argued, and give this language over and over, that slavery degraded labor. Very important phrase. The war itself had a general association with free labor, although there was some ambiguity about what exactly that meant. When bradley announces that the white butchers had a sacred right to labor, sacred is a key word here. What is crucial is bradley renders the right to labor in absolute terms. He fuses it with blackstone. It is important to note that bradleys new roger logic of rights and governance is not completely modern. The notion of absolute rights will be rejected in the new deal era and in favor of the balancing of rights. But we have in bradleys dissent a recognizably modern rights bearing individual. We have a hallmark of the modern logic of liberty and governance, that dichotomy between private rights and public power. The rule of law is now about shielding private right from state legislative invasion. Bradley succeeds in this work. He succeeds in institutionalizing this new logic of rights, and even Justice Miller in his majority opinion gets dragged along. He gets dragged along in his majority opinion and the way he frames the question. He frames the question this is miller as whether these exclusive privileges are at the expense of the Community Notice that old language. He frames the question as whether these exclusive privileges are at the expense of the community in the sense of there being a curtailment of fundamental rights. When he says at the expense of the community, in the sense of being a curtailment of fundamental rights, he is actually conceding bradleys reformulation of the judicial role as protecting private rights against legislative curtailment. Bradleys reformulation is actually elbowing its way into millers on formulation of the question. Scholars have been so focused on miller putting fundamental rights in the state citizenship category and so focused on bradley saying fundamental rights were in the National Citizenship category that they have entirely missed how bradley is reworking the logic of liberty and governance. Bradley is certainly relocating basic liberty from state citizenship to National Citizenship, but that is not what ive been calling world making. Bradley loses on National Citizenship. He loses on the privileges or immunities clause, and all those beneficiaries of the 14th amendment get those benefits without the privileges or immunities clause, without his construction of National Citizenship. Bradleys dissent is world making because he succeeds at reconceptualizing liberty as private presocial rights existing in opposition to governance. Henceforth, the judicial role is going to be framed and understood and taken for granted as protecting private right against state legislative incursion. That modern hallmark is there. Private right versus state power. We see the success of this. In the 1877 case against illinois. This was farmer friendly legislation that fixed the maximum rate, that Grain Elevators could charge in chicago. The court did use the notion of public purpose. On the surface, it again looks like the traditional two categories of Police Powers are organizing this decision. But the court actually upheld that state regulation using bradleys new logic. The key was the court refers to rights which are purely and exclusively private. Those rights, which are purely and exclusively private, were beyond the reach of state regulation. Here is this hallmark of the new logic. Purely and exclusively private rights in opposition of public power. Now, the court says there is no legislative invasion here. There is no legislative invasion against rights that are purely private, because we have private property devoted to a public use. Here, we get the court introducing this new category, business is affected with a Public Interest. The court says states can regulate those. States can regulate businesses affected with Public Interest, and the court says it is following antebellum Police Powers cases. It is calling on these cases as precedent, as support. This has actually fooled scholars into thinking one is continuous with the old Police Powers framework. The court is applying the new logic of liberty and governance. It takes for granted the dichotomy between private, presocial rights, purely and exclusively private rights in opposition to public power. It takes for granted that the judicial role is protecting purely and exclusively private rights against legislative invasion. Yes, we have this new category. Business is effected with Public Interest, but that is simply about line drawing within the new logic. Justice field dissents, and he says the maximum rates, they are an invasion of private property. They are an invasion of those private and exclusive rights. Justice fields dissent, it is clear he is working within the new logic, but the key point is both sides are working within the new logic. The majority is working within the new logic, as well and what we have between the majority and the dissent is a disagreement about where that line is between private right and public power. That line is going to move. Fields line drawing is later going to get the upper hand and it gets the upper hand in 1890 in the case Chicago Milwaukee Railroad versus minnesota. In this case, the Court Decides subsequent rates put on railroads that are set by the state are subject to judicial review. Substantive rates on the railroad set by the state are subject to judicial review. In this case, field is in the majority. He wins. Bradley is now in dissent. What is happening in this case is private right is expanding. Private right is expanding because the court is deciding on rates in favor of the railroad. And public power is getting restricted because the state is getting overruled, even though railroads are a business affected with Public Interest. To logic, that new logic, private right versus state power is organizing this decision, both the majority and the dissent. In 1917 in the world war i era, that line will start moving in the other direction. With the new deal constitutional revolution, we will see a modification in the logic of man versus state. Absolute rights are going to get thrown out. The court is going to reject absolute rights and in its place, we will see the balancing of rights. There is going to be a new thing called tiers of scrutiny and the courts approach to line drawing is going to vary by tier. The hallmarks of bradleys logic, that dissent come are still going to be there. Private right versus state governments, the role being to protect private right against state invasion. So bradleys world making is successful. Is transformative work takes hold. Now i want to come back to that work and a particular dimension of that work, because that transformative work, bradleys transformative work is premised on a new kind of suspicion of state legislatures. It is not only class legislation or partial legislation that is the problem anymore. The problem as bradley framed it as the legislature as a legislature or more precisely, the Reconstruction Legislature as a legislature. Here, the story about bradleys world making gets more complicated. There is a turn in the story, and that is because bradleys reconceptualization of liberty and governance, his reorganization of the logic of public law is premised on dubious legal moves and factual distortion, and in that series of moves, all of them problematic, and i want to turn to them now, bradley frames the exclusive franchise as an obviously a legal monopoly, and he portrays the Reconstruction Legislature as utterly incompetent and oppressive. So heres what happening in his dissent overall. His world making, the introduction of the modern rights bearing individual whose liberty exists in opposition to governance, that world making is premised on a series of dubious legal and factual moves and premised on a portrait of the liberty exists in opposition to Reconstruction Legislature of louisiana and Reconstruction Legislatures generally as oppressive. And want to walk through these moves and show how the basis for his new vision, is reconceptualized vision of liberty and governance. Scholars havent identified these moves, or framed their jurisprudential significance. So all of this is new too with regard to bradleys dissent. Ok, first, bradley calls butchering an ordinary trade. It is not. It is a nuisance trade, and slaughtering in what were called builtup areas were already treated as a per se nuisance. This was already the law of the land, and the new orleans area was a builtup area. It was densely populated. We saw this in the new york case and the San Francisco case that removed slaughtering from the cities. These cases had already been decided 1866, 1867. Now bradley uses the designation of slaughtering as an ordinary trade to declare the exclusive franchise a monopoly. He says monopolies in the ordinary trades are unlawful. Well, yes. As a general axiom, that is absolutely true, but slaughtering in the new orleans area is a per se nuisance. It is not an ordinary trade. Now there is an implicit recognition by bradley that slaughtering in the new orleans area is a nuisance trade because he concedes that removing slaughtering from the city is a valid police regulation. But ordinary trades are not subject to removal, and so this is an internal contradiction in bradleys dissent and he never resolves it. The next problem is that bradley asserts that butchery as a trade means keeping your own slaughterhouse. He says the keeping of the slaughterhouse is part of the trade of being a butcher, and that assertion is the basis for his claim that the exclusive franchise deprives the butchers of their occupation. Remember, in general, he is bradley is reconceptualizing liberty as private writing opposition to legislative invasion, opposition to public power. And specifically hes arguing the butchers private right to pursue an occupation was being assaulted by the Louisiana Legislature. To do that, he frames butchering in the new orleans area as an ordinary trade, even though it is not. But he needs that for claiming that the exclusive franchise is a monopoly. He also claims that butchering is a means of keeping your own slaughterhouse, and he adds no English Speaking people would ever endure the deprivation of such a trade. Well, what is happening in the United States and in the world at this time . We have got the Sanitation Movement of the 1850s. As i mentioned earlier. Butchering as a trade was already undergoing modernization. The livestock trades were undergoing consolidation for health and Public Safety reasons. Butchering as a trade was already being redefined. This started in paris as early as 1810. In 1810, there were five different public and compulsory slaughterhouses set up around the city. In 1867, one grand slaughter house was built in paris. Thethis was the model for 1869 louisiana law. Louisiana of course was a french colony, so they are keeping an eye on what is going on in paris. But it extends far beyond paris. In the 1840s and 1850s, all of these major european cities are setting up public and compulsory slaughter houses. Frankfurt, the lawn, brussels, the list goes on. In these cases, butchering is being redefined. It means doing your own slaughtering in a public central facility and then dressing and selling the meat on your own property. Now as for whether englishspeaking people would ever accept this, glasgow did this in the 1850s, edinburgh did this in the 1850s. We are even beginning to see this in england. Look port city did this in 1871. In the United States before 1869, there were three precursors when it comes to public and compulsory slaughterhouses. New york did this in the colonial era in 1676, and then there was the milwaukee case and the chicago case, which i had already mentioned. Many big cities start to do it in the 1850s, boston, philadelphia start doing it in the 1870s. That is afterward. But the Louisiana Legislature was in the vanguard of this. Closer to home, Jefferson City did this in 1862. Now Jefferson City was the municipality right next to new orleans. Separate municipality that passed their own laws, and Jefferson City was where the butchers were actually concentrated. Jefferson city in passed its own 1862 law that tracked almost exactly the 1869 law passed by the Louisiana Legislature, the state legislature. There was an exclusive franchise given to a private company. Health inspections were required. It was compulsory. It tracked the state law in almost every respect. It never got built because of the war, and in 1868, Jefferson City revived it because this continued to be a major problem. And the newspapers incidentally just loved, loved the Jefferson City law, the Jefferson City law. The daily picayune loved it. They said it is good for business, the butchers are terrible anyway, we want to regulate them. They just, they are signing up to the Jefferson City law. More importantly, we can infer that bradley knew about the Jefferson City laws, and we can infer this because of a lawyer his name was randall hunt. He argued the case for the Crescent City company at the state level, the city company that got the exclusive franchise. Randall is arguing for the Crescent City company at the state level, and he wins at the state level. Hunt also argued the case before bradley when bradley heard this case on circuit. And so we have his brief at the state level. So if we can assume he is using the same arguments before bradley, then we know bradley knew about the Jefferson City 1862 law. Now randall hunt treats campbells claims that there was an absolute right to property and the occupation. An absolute right to property and occupation. Hunt treats this claim by campbell as just offthewall, and it was offthewall under the old framework of the wellregulated society. And hunts brief gives all of the arguments that were operating in the wellregulated society. He cites the new orleans grand jury on the awful conditions. He identifies the Jefferson City law, and he analogize us and analogizes the use of exclusive privilege to a public utility and this was a vitally important move, because he says there is a need for capital investment. You need to keep up with mechanization that is involved in slaughtering. There is new technology you want to take advantage of, and it was known at this point that hygienic processing depended on access to running water, and that depended on huge, huge water pumps which required an enormous capital investment. And in this regard, i just want to mention the work of herbert jovencamp, emphasizing the recent invention of refrigerated Railroad Cars to which you would need to ship livestock all around the country. And new orleans was dependent on the livestock industry for its economic recovery after the civil war. What is also circulating at the time on the ground at the time is that after the war, folks in new orleans became aware of this cattle thattexas now could be brought to new orleans by a new railroad that is getting built, and in order to take advantage of this big herd of texas cattle, you actually need a huge landing. All of the dynamic wellregulated society. All of this this into the dynamic of the wellregulated society. It fits into it perfectly. But, but bradley says the exclusive franchise has not to not the faintest semblance of a police regulation. And he goes further than that. He invokes the Reconstruction Legislatures as Reconstruction Legislatures, and he says , referencing the 1869 law, it iss one of the arbitrary and unjust laws made in the interest of a few scheming individuals by which some of the Southern States have within the past few years been so deplorably oppressed and impoverished. And he said something very similar on circuit. He said the injustice perpetrated under acts of irresponsible legislation have become a crying evil in our country. This is a portrait of Reconstruction Legislatures as oppressive. And there is one more vital move that i want to identify. It works to present the Reconstruction Legislature as just patently unreasonable. Now bradley opens his dissent does theld actually same thing, with a description of the 1869 law as covering three parishes, orleans parish, st. Bernard parish, and jeffersons parish. Both justices say the three parishes cover 1154 square miles. They give the breakdown by it affects they say between 200,000 and 300,000 people. If you think about it, one facility for nearly 1200 square miles and 300,000 people, that seems a little drastic. And bradley presents these numbers. He repeats the nearly 1200 square miles multiple times to make the point about how unreasonable this legislature is. The thing is, that number, 1200 square miles, introduces a massive distortion. I went back to sources available at the time, so im going back to these sources. There are the u. S. Centennial gazettes, there is state level sources, and they all say the same thing, which is very similar. And one of the things they say first of all is the total population is 219,000, not 300,000. That is the small point. More importantly, st. Bernard parish this is the parish below new orleans and fans out into the gulf of mexico st. Bernard parish was listed by bradley as covering 620 miles, that is over half the area covered by the law. St. Bernard parish in all of the sources is described as almost completely uninhabitable. There is nobody there. It is described as swamps. Jefferson parish, 384 square miles. Thats a third of the area covered by the law, and it is also described consistently across these sources as having vast tracts of undeveloped land. They talk about all of the soil much of the soil being untillable except in the north and all the swamps and lakes. Even new orleans parish, 150 square miles, which still sounds like a lot, it is described as having its whole upper portion covered by water. When you add to that the value of farm production, the cash value of farms, the value of manufacturers, because this information is also given in the these in these sources. There is almost nothing going on in st. Bernard parish except for some sugar plantations, and there is not much going on in jefferson parish, and it is all concentrated in the north. This picture is reinforced by population per parish, per parish. St. Bernard parish, 620 square miles, has only 3500 people. Orleans parish, 150 square miles, has 191,400 people. So almost 90 of that 219,000 people are all concentrated in the lower half of new orleans, and so the population covered by this 1869 law is very concentrated. It is all in a builtup area, and now we are back to slaughtering as a per se nuisance, not an ordinary trade. And so that nearly 1200 square miles that bradley repeats over and over again, it is just a very significant distortion. And so we have all of these dubious moves. Butchering is an ordinary trade in the new orleans area. The definition of butchering is keeping a slaughterhouse. The explicit hostility to the Reconstruction Legislatures, the 1200 square miles, all dubious as a matter of law, as a matter of fact, as a matter of logic. All of it, though, is the basis for bradleys reconceptualization of liberty as private rights against public power, man against the state. It is all premised on a series of dubious legal moves. Now with regard to bradleys hostility to the Reconstruction Legislature, the biracial legislature, i want to just very briefly turn to issue in the recent slaughterhouse scholarship. It has been suggested in the recent slaughterhouse scholarship there is racism on both sides. It washes out as an issue in this case. We have got the racist butchers in campbell on one side and on the other side, disfigured jeremiah black, who was a lawyer for the Crescent City company. We knew he was antilincoln, we know he was antireconstruction. And it has been claimed that jeremiah black basically swallowed his distaste for those carpetbaggers who were coming in and getting the benefit of the exclusive franchise, and black had a litigation strategy to gut the privileges or communities clause for racial reasons. The source of this is a 1930 dissertation by a person named william brigands. And this dissertation was published as a 1934 book on jeremiah blacks speeches. Now the book is in the tradition of the Dunning School. But more importantly than that, brigands has not a shred of evidence about jeremiah blacks words in the slaughterhouse cases. There is absolutely no evidence whatsoever. And in fact we know from the work of Charles Furman on reconstruction that it wasnt jeremiah black who gave oral argument before the court. It was matthew carpenter. Now we dont have matthew carpenters brief unfortunately, that was not preserved in the record. But we do know from private correspondence that it was carpenter who argued the case, not black. Now jeremiah black is listed as a lawyer for the Crescent City company. He is actually listed in the decision. You can go search his name and you will find it. But black is cited for something called the motion to dismiss. He is representing the Crescent City company for this motion to dismiss, and with regard to the motion to dismiss, there is one final twist in the story. And that twist pertains to both scholarly claims about jeremiah black and this racism on both sides argument and one of bradleys dubious moves. Now in 1871, this is after the butchers have lost at the state level but won at the circuit level, and after the Supreme Court held the case over for reargument, because they held the case over for reargument, and we know in retrospect there was a 44 tie. So in 1871, before reargument, watchers racist butchers represented by campbell, fighting the Crescent City company, in 1871, those butchers bought the company. They bought the Crescent City company. Paul estabon, william fagan, all of those Livestock Dealers and butchers, in 1871, they are the new board of directors of the Crescent City landing and livestock slaughterhouse company. They are the new directors. They bring the motion to dismiss. They say it is no longer a controversy. They pay campbell, they say bye to campbell. We have all of their affidavits. It is in the motion to dismiss. It is in the landmark brief. So jeremiah black is representing them. He is representing those original butchers. Remember, brigands has no evidence anyway no evidence , about black. Campbell at this point may or may not be working pro bono for the very few butchers who were not included in the buyout, because a couple of names were on the original cases, and they were basically left out, so they are mad, and they want to keep going. And the Supreme Court denied the motion to dismiss because some of their names were actually on the cases, but paul esteban, william fagan, those names are on the cases because you cant take them off at this point. This has fooled scholars into continuing to frame the case in 1873 as still involving the original white butchers in those 17 investors when that is not the case at all. And bradley, bradley in 1873 keeps on talking about those poor white butchers even though they are now the monopolists. And so as a matter of law, what is still in question is the exclusive franchise. As a matter of law, the court still has to rule on that. Bradleys rhetoric works to paint those original butchers as still the victims. They are still the victims, they are still being deprived of a trade, even though they now on the Crescent City company. Ok. Where does this leave us . We have bradleys transformative work. He reconceptualizes liberty and governance. He reconceptualizes liberty as against governance. He introduces the rights bearing individual. He introduces the hallmark of modern liberal constitutionalism, that dichotomy between private right and public power. He gives us man against the state. Women too eventually. And all of that transformative work, all of that reworking of the logic of public law, is built on a series of dubious legal moves, factual distortions, and a new kind of suspicion of legislatures as legislatures. And i dont think it is an accident that it was a biracial legislature that he was suspicious of. Now that new logic of rights and governance gets solidified as the suspicion of legislatures as legislatures shift to granger legislatures, to farmer led legislatures, and this happens later on. And it happens in the context of haymarket, in the context of labor unrest, in the context of consolidation of industrial capital, and it is a new group of justices now who are going to be suspicious of granger legislatures. At the same time, that new logic bradleys new logic of , liberty and governance, does not met neatly onto pro or antireconstruction position. It is going to live on in modified form. It is going to be used in different contexts, and it is going to have many different beneficiaries. But attending to bradleys distortions matters. It matters for understanding the historical conditions under which the modern rights bearing individual appears in constitutional law. Now in closing, i want to make two points. And the first of those points is that bradley is a complex figure. His hostility to that biracial legislature does not mean he was hostile to all of reconstruction. As i traced out the last time i was standing here, in 1874, bradley wrote a circuit opinion in the cruickshank decision which let klansman walk free. The route indictments against klansman. Throughout indictments against klansmen. In that decision, bradley gives us a coordinated theory of all three reconstructed amendments. It had wide authority at the time. Klan lawyers hated it. That is a big signal. If the klan lawyers hate when you are writing, you noticed that. That coordinated theory provided a blueprint for bringing future indictments against klansmen for violence, for infractions against violence, and voting. There is only one aspect of this coordinated rights theory that i want to recall. And i want to recall bradleys Voting Rights theory because it is from a decision that is gone today, makes it hard to see. That Voting Rights basis was for the reboot of the Voting Rights prosecutions in the south in the 1880s. And that reboot of Voting Rights protections, which is not generally part of the story of the court of reconstruction, that produced a unanimous decision in ex parte yarborough in 1884 which sent klansmen to jail under in part the 15th amendment. Now that reboot of Voting Rights enforcement and the yarborough decision would be impossible to explain if the conventional story about the court abandoning blacks in 1876 were true. The reboot and yarborough are also impossible to explain if bradley were hostile to reconstruction across the board. The key thing about yarborough and the Voting Rights reboot is that that theory that is used traces to bradleys 1874 opinion. This is bradleys work, and it has been lost to modern observers. I trace it in my 2011 book, and i relate it to bradleys hostility to what at the time was called social equality, and bradley absolutely would have rejected that pair of laws passed by the Louisiana Legislature, the public accommodations law and the School Integration law. Bradley would have rejected this. He thought that these kinds of laws oppressed whites. But it is the mix, it is the mix that is difficult to see, that he can both be very supportive of Voting Rights and to go out of his way to create a Voting Rights theory, and be very supportive of the Civil Rights Act of 1886, and yet have this very deep hostility on the social equality dimension. So that mix is difficult for modern observers to see and bradleys reorganization of liberty and governance in the slaughterhouse cases, his world making in the slaughterhouse cases, is also difficult for modern observers to see. But that reworking of public law in the slaughterhouse cases was much more successful. It got institutionalized, and it got institutionalize right off the bat. And so between bradleys transformative work in the slaughterhouse cases and his coordinated theory in 1874 in cruickshank, which produced the fruit of the 1880s among other things, between both of those things, bradley now appears as the major thinker for the reconstruction court. And scholars have missed both of these things for so long because even though those Dunning School accounts of reconstruction, those racist Dunning School accounts of reconstruction are now rejected, the legal languages of the 19th century, those legal languages of the 19th century have continued to be obscured by anachronism and myth. And then finally, for years, critics of millers majority opinion have praised bradleys dissent because he presents the privileges or immunities clause as protecting the rights of National Citizenship, as applying the bill of rights to the states, and that is where i started tonight. But there is a gap between bradleys conceptualization of citizenship, his conceptualization of the privileges or immunities clause, and the 1868 amendment. There is daylight between bradleys conceptualization and the amendment itself. Bradleys conceptualization of National Citizenship does not equal the privileges or communities clause. Those are different things. Original incorporation in 1868 might easily have been conceived in the terms of the wellregulated society. And this is a point about history. It is not a point about originalism. And for those scholars across the political spectrum today who are arguing for a bill of rights under the privileges and immunities clause and thinking incorporation under immunities would advance their own commitments, there is actually a deeper agreement among them that i want to end on, because even though they have different brands of individualism, they all take for granted the modern logic of private right in opposition to public power. And that agreement marks them as living not in the world that bradley inherited in 1873, but in the legal world, bradley did so much to create. Thank you very much. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2019] i want to tell you [indiscernible] what i would say is very unfair personalized reporting of these fellows, and i think that you want to know that opinion because you are going to be disappointed in me down the road if i didnt tell you that. I will just tell you frankly that i think your industry is wrecking all of us. That is pretty heavyhanded, and you can imagine what it was like for the journalist the next day. I am sure he will not call the person the next day. They are wrecking the country, very disturbing. We are hearing that today. The press is the enemy of the American People according to president trump. The press is not the enemy. It is doing tonight on humid day, patty role, talks about attention of the american president s and the press. Watch q and a tonight at 8 00 eastern. Next hillary next, Hillary Clinton discusses her time as a lawyer ring the impeachment inquiry of president Richard Nixon in 1974. The interview was from the Richard Nixon president ial collection. History was wrought him odham was ad io of yale. What did you expect to be doing in 1974 . The expected to work for childrens defense fund. I had interned for