Transcripts For CSPAN3 Justice Joseph Bradley The Fourteenth Amendment 20240713

Justice Joseph Bradley dissented in thecation. And up next on American History tv, we will hear a university of michigan professor explaining how Justice Bradleys dissent in the case influenced Later Supreme Court decisions. Good evening, thank you for being here and being prompt. Im jilten varner from atlanta and i currently serve as president of the Supreme Court Historical Society. Im pleased to welcome you to the third of four lectures that comprised our silverman 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, i am 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 sonja sis sotomayor. Shes been enormously jen ress giving of her time to the society when we called upon her to help us. And i want to thank her for taking time off in a very busy time in the life of the court. Sonja sotomayor was born in the bonk, new york, in 1954. She earned a b. A. In princeton, she earned a j. D. From Yale Law School where she served as editor of the yale law journal. She was 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, where she served as both associate and partner from 1984 through 1992. She was then nominated for the Supreme Court on may 26th, 2009, after service in both 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 children as book, is entitled just ask, be different, be brave, be you. It was published just last month. Im honored and grateful to introduce you to our host of the evening, justice sonya sotomayor. Welcome, everyone. Good evening. I am always pleased to have you come to the Supreme Court. Im so delighted that many of you are joining us this evening for the third of this societys fourpart 2019 leon silverman lecture series on dissents in the Supreme Court in new perspectives. During my tenure on the court, i have observed and appreciated and participated in many of the extensive efforts that the society undertakes to engage its members and the greater world in the history of this institution. Lectures such as this one are just one example. I, along with my colleagues, am so grateful for the work the society does to educate the nation in the ways the Supreme Court, the constitution and the judiciary function. From teacher of Training Programs for middle school and High School Civics teachers, to publications like the journal of Supreme Court history, the societys efforts deeply enrich americans in their search for civic education. Tonights lecture is on pressient dissents. Justice bradley in the slaughterhouse cases, a topic that is of particular interest to me. As you may or may not know, i have been given a lot of opportunity to think about this. I hope that one day some of my dissents, too, will be viewed as prescient. This evenings eminently qualified speaker is professor pamela brandwein. She is currently a professor in the Political Science department at the university of michigan. She received her b. A. From the university of michigan and her m. A. And ph. D. In sociology from northwestern university. During her time as a tenure, she has amassed a remarkable number of Teaching Awards. A testament to her devotion not only to scholarship but also to education. Professor brandweins research bridges disciplinary conversations in long Political Science, history and sociology. She has published two books, rethinking the judicial settlement of reconstruction and reconstructing reconstruction, the Supreme Court and the production of historical truth. Currently shes working on a book project that reexamines the relationship between antislavery politics and capitalist development in the United States. Professor brandweins previously delivered the leon silverman lecture for the Supreme Court Historical Society in 2015. Speaking on the courts role after the reconstruction. That the Historical Society has invited her back a second time is a powerful endorsement of how influential her scholarship has been and how much we have enjoyed her presence. I expect that 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 ] thank you justice sotomayor. Its an honor to be here, and id like to thank the Supreme Court Historical Society for inviting me back. It is really an honor. And to be asked back is really just truly a privilege. My focus tonight is a dissenting opinion in an infamous case. That infamous case is the slaughterhouse decision of 1873. The courts first major interpretation of the 14th moment. And the dissntsing opinion is by justice Joseph Bradley. Now the majority opinion, of course, has been the target of massive criticism. The majority essentially gutted the privileges or immunities clause of the 14th amendment which read nose state shall abridge the privileges or immunities ofs is the of the United States. The court gutted it by defining the rights of National Citizenship narrowly and put it under the heading of state citizenship. Its also familiar that the case involved white butchers. These white butchers were challenging an 1869 law passed by the Louisiana Legislature, and it was the Reconstruction Legislature of louisiana. And it was biracial. Blacks held 42 out of a total of 131 seats. And that biracial legislature faced an enormous amount of racial hostility. And it was in between passing a pair of laws, one that barred race discrimination in public accommodations and the other that integrated Public Schools that the Legislature Passed this 1869 law. Now what the law said, and this is also familiar, is that it granted an exclusive franchise to a company, the Crescent City livestock and landing company, to build and run a public slaughterhouse. This was going to be a grand slaughterhouse. And it was required to be open to all butchers, black and white alike, and all butchers had to do their slaughtering there. This was compulsory. Health inspections of livestock were required, the fees set by the legislature and a portion of the fees went to an education fund. Now the butchers in new orleans resisted and obstructed regulation for years. And this was typical in both american and european cities. With the rise of the Sanitation Movement in the United States and europe, the big cities began regulating. New york and San Francisco removed slaughtering from the city. They basically zone it out of the city, and this was upheld by state courts in 1866 and 1867. Chicago and milwaukee also passed public and compulsory slaughterhouse laws and these were set up in both cities. The milwaukee one was upheld by a state court and the one in chicago was struck down on what appeared to be technicalities. And the butchers fought all of this just tooth and nail. And in new orleans, we know from the work of michael ross the conditions, the Health Conditions were absolutely awful. The 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 the descriptions of this are just ghastly. Of course, there were the cholera outbreaks. Now the butchers resistance to regulation had made them unpopular, and they were unpopular for years. But when this 1869 law got passed, this time they got the support of white new orleans. And they got the support of white new orleans because of hostility to the biracial legislature. And on top of that, the butchers fight attracted the attention of John Campbell who represented them. Nou campbell was the Supreme Court justice who resigned his seat in order to join the confederacy. This is familiar. And campbell was deeply hostile to reconstruction. And campbell pressed hard an argument about the 14th amendment. He pressed hard about the immunities clause in particular and he argued that the butchers had a right to pursue an occupation and that that right to pursue an occupation was the right of National Citizenship. He argued the exclusive franchise was a monopoly that deprived the butchers of that right in violation of the 14th amendment. Now the Court Majority rejected those claims. Campbell lost. And the court upheld the law. Now the court could have rejected the butchers claims and ruled that the law was a valid Health Regulation and left the privileges or immunities clause intact. This is important to recognize because upholding the health law did not require the gutting of the privileges or immunities clause. But the majority rejected the butchers claims by gutting the clause. By defining the rights of National Citizenship narrowly and by putting fundamental rights under state citizenship. Now the majority clearly recognized that 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 all future efforts by individuals and by corporations to challenge state regulations of property under the privileges or immunities clause. Now to justify this very narrow definition of National Citizenship to justify its construction of the privileges or immunities clause, the justice provided an historical account. He called it, quote, a recapitulation of events almost too recent to be called history. Historians have made clear that republicans had dual objectives coming out of the civil war. They had dual objectives for reconstruction. And in general, they wanted to establish equality under law and race equality under law in particular. They also wanted to establish the privacy of National Citizenship. They wanted to make National Citizenship primary over state citizenship. And with regard to that second objective, theres an increasing scholarly consensus that republicans saw National Citizenship as including bill of rights guarantees. And that they saw the privileges or immunities clause as a vehicle for applying the bill of rights to the states. Now muellers historical act of antishrivery which he used to justify the narrow construction of the privileges or immunities clause erased the second objective. He avenued antislavery with the first objective only and that was race equality. And the language here is familiar. He said the one pervading purpose of the reconstruction amendments lying at the foundation of each was the freedom of the slave race. He added, we do not say that no one else can share in this protection, but black freedom must have its fair and just weight. And then he added squarely, although only talking about the equal protection clause, he said we doubt very much whether anything beyond black freedom will ever come within its purview. Now bradley, who is writing a dissent. He joined justice fields dissent but wrote one of his own. Bradley agreed with the butchers and said the exclusive franchise was invalid. He identified both republican objectives. He identified both republican objectives for reconstruction, and he connected antislavery to the invigoration of National Citizenship. He also argued that the rights of National Citizenship included the bill of rights guarantees. And on the issue of the purpose of the 14th amendment, on the issue of the beneficiaries of the 14th amendment, bradley responded directly to miller. He said, quote, it is futile to argue that none but persons of the african race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens. And this has been regarded as prescient. This has been regarded as bradley correctly predicting the wider use of the 14th amendment. Now its well known that corporations were the first major beneficiaries of the 14th amendment and the due process clause in particular. In this respect they got a major assist from the doctrine of corporate personhood. In 1897, for example, the court ruled Insurance Companies had a liberty of contact to do business across state lines, free from arbitrary restriction. But later, of course, the due process clause was read to protect a right to privacy. That included access to contraception, access to aborti abortion, the right to marry. And Public Interest organizations were also covered under due process. The naacp won a very important case when they won the right to say no to the state of alabama when the state of alabama wanted its membership list. And the equal protection clause has had many, many beneficiaries, even as for blacks the promise of equality under law has been both partial and long delayed. And so bradleys dissent in saying that it was futile to limit the beneficiaries of the 14th amendment to blacks has been regarded as seeing into the future. Prescient means having foreknowledge. Showing knowledge of events before they take place. It means divine theres a kind of divining of the future. And this is a special predictive insight attached to that word. In one respect, yes, bradley calls it. But i want to suggest that bradleys dissent is less a feat of predicting the future than making the future. Its less about divining whats to come than creating whats to come. I want to frame bradleys dissent as world making, not world predicting. Because what we see in that dissent is the creation of a new and modern logic of liberty and governance. And its 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 very specific. Im not talking about a flat and inaccurate notion of bradley as the author of substantive due process or laissezfaire jurisprudence. Historians have long debunked the laissezfaire myth and justice field was far more hostile than bradley to state regulations of corporations. When i framed bradleys dissent as world making and not world predicting, what i mean is that his dissent reconceptualizes the logic of liberty and governance. In his consent he sees liberty as selfinterested private right in opposition to public power. He conceives of liberty as existing in opposition to state governance and opposition to state governance of social life. And with this, he constructs a discernibly modern rightsbearing individual. Its man against the state. And tied to that is a new conception of the judicial role. The judicial role, henceforth, will be protecting private presocial rights against legislative invasion. Now this is actually new. Bradley is doing transformative work. But we have trouble seeing the newness, the transformative work. But that transformative work say vital dimension and it hasnt been seen before. It needs a new look because what hes seeing is nothing less than reorganizing the logic of public law. Hes reconceptualizing liberty and governance. Now there are two types of obstacles to seeing this transformative work, to seeing bradleys world making. Thestacles are myths. The idea the United States was lockian from the founding, that liberty was always conceived as private presocial rights in opposition to governance. Also the myth of the weak antibellum state, the idea of antebellum statelessness and laissezfaire, even at the state and local levels. Now the second kind of obstac cell more specialized, and this is scholarly revisionism on the case lockner versus new york. The lockner case struck down a maximum hour law and lockner for a very long time was seen as the court imposing its individual policy preferences. What scholarly revisionism on lockner does is retraces whats called police power jurisprudence. It locates lockner within the Police Powers framework, and it traces that whole public purpose, that whole Police Powers jurisprudence across the entire 19th century. So lockne r gets located. Its no longer about individual policy preferences. What they have in common is that they posit continuity across the entire 19th century. We get continuity in the conception of liberty as private selfinterested rights against governance. We get continuity in the Police Powers framework. And so its hard to see that bradleys dissent is actually doing anything new. Especially because its in a dissent. Now when it comes to addressing the first obstacle to seeing bradleys dissent as world making, these myths about the 19th century, the myth of liberal individualism, the myth of an tebellum statelessness. I want to borrow from the work of bill novak and his book the peoples welfare. Its 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 world view and this is a distinctive logic of public law. And according to the old logic, liberty was conceived as depending on governance. And the judicial role was not to protect private rights against governance but to protect the rights of the community. Now, of course, at the founding there was a concern the National Government might deprive people of rights. There was the idea that people had 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. And with regard to the rights of property and contract, those fabled natural rights, these were goenverned at the state lel 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 regulate Property Rights and contract rights, to serve the public good. To serve the general welfare. And its precisely here in tracing the state and local regulations of property and contract that we see novaks evidence. That we see this old world view about liberty and governance. And so to see bradleys transformative work, to see his creation of the modern rightsbearing individual whose liberty existed against governance, we need to briefly revisit that old vision of liberty and goenvernance. We need to revisit the wellregulated society. And this is a term he borrows from court cases at the time. So this is the antebellum logic. James wilson, the founder, chancellor kent, nathaniel chipman, the law of nations is associated with this and for all of these thinkers, and for the antebellum court there were two great axioms. The first axiom was that 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. So 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 its not just man in the human sense of man. Its men and the gendered subject here matters. Men were seen as social and relational beings. And this was a strand of natural law thinking, and it was preoccupied with the common good. As nathanman chitman put it, the laws of nature were the laws of social nature. And 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. And so liberty is viewed as impossible without society and dependent on society. And so, in turn, public power, state governance, is viewed as the necessary predicate for liberty. Government was seen as having a duty to act for the common good, and acting for the common good was the way in which liberty was promoted. And the essence of law, the judicial role, was to make sure government acted for the general welfare. And this protected the rights of the community which, in turn, protected liberty. And then finally, governance was viewed as pragmatic, as dynamic. Laws changed as conditions changed, and those changing conditions had to do with market expansion, the growth in cities, changes in technology and the like. So thats the antebellum legal world view. The antebellum legal logic, it 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, individual in nature, liberty is seen as private and selfinterested. Theres a dichotomy between private right and public power. And liberty is seen as existing against governance. And the judicial role is protecting private presocial rights against state invasion. According to the antebellum legal world view, men are social in nature, rights are relational, liberty is depe dependen dependence, governance. And its that world view that fostered and legitimated the wellregulated society. The wellordered society. And there was a ton of regulation. Novak reprints pages upon pages of this to make the point how extensive these regulations were. These regulations obtain to public space, public health, public morality and nuance law was one of the most important regulatory tools. To summarize this logic of public law, man is social in nature, rights are relational, liberty is realized in society, liberty is dependent on public power. Public power is instituted for the common good and the role of courts is to enable the rights of the community. Now to see how bradley transforms this, we need to fold in attention to public purpose jurisprudence. Police power jurisprudence. It has gotten a lot of attention from the scholars who were taking a new look at lockner and embedding it in this Police Powers framework. These are the scholars to impute continuity in Police Powers across the 19th century. The key point here is bradley reorganizes Police Powers jurisprudence and reorganizes public purpose jurisprudence, and its in that reorganization that he reconceptualizes man as individualistic, that he reconceptualizes liberty as private and presocial, that he introduces that dichotomy between private right and public power. And its in that reorganization of Police Powers jurisprudence that he basically introduces the modern rightsbearing individual whose liberty exists against governance. To see this, we need to see a bit about how Police Powers jurisprudence works. How it works before and this is where some of the work of the lockner revisionists, i want to fall some of that work in. In the wellregulated society of the antebellum era weve seen how liberty is dependent on public power, dependent on goench an governance. It was the duty to act for the community. What Police Powers jurisprudence did was find the boundaries of general welfare legislation. In the Police Powers tradition, courts worked with two categories. 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. And the rule was the state could have no favorites. And this was how liberty was protected. Remember, 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. Bradley transforms public purpose jurisprudence. He does use both of those familiar categories. He does use that general welfare category and the favored few categories. And so at first blush, it looks like hes working within that old tradition. The use of those categories is part of the reason why lockner revisionists have missed his transformative work. Now bradley is sharply critical of this 1869 law. He calls it a law of the favored few and he rehearses various valid, he says valid general welfare legislation. But hes actually reorganizing those categories. Hes actually reorganizing the logic of public law. Hes introducing liberal individualism into public law. Its now man against the state. Now, of course, a civil war had just happened. And slavery was centrally implicated in the war. And we have new amendments. And slavery was a state institution. And slavery had been abolished. There was now a fundamental right to selfownership. But its important to remember that right was not absolute. The 13th amendment still permitted slavery if you were duly convicted of a crime. And part of the context, too, for bradley was that republicans wanted to make National Citizenship mean something. And what they had in mind, the republicans, they had in mind rights that slave states had denied to supporters of antislavery. The right to free speech, free assembly. Jury trial rights. The bill of rights guarantees. Now also part of the context was that the butchers in new orleans were making a claim for National Citizenship rights. And bradley agreed with them. So under these conditions, its reasonable to think that bradley, who rejected that 1869 law was going to introduce the category of National Citizenship into Police Powers jurisprudence. Its reasonable to think that Police Powers jurisprude sense goi is going to be changed in some way. Were going to see National Citizenship show up. But there are choices here in how bradley was going to do that. Now what he could have said, what he could have said, favoring the butchers, hes still going to go for the butchers. Emphasizing National Citizenship because thats 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 National 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 that 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. And 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 lockner revisionists were right, if they were right that police power the Police Powers framework was continuous across the 19th century, thats what we should have seen from bradley. And in framing that alternative, i have utilized what we know from novaks work. The right to pursue an occupation is a right of National Citizenship. Yes. Not changing that. Bradley is still for the butchers. Still going to emphasize National Citizenship. But 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 seen as 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. Thats the old way. But because it violated fundamental absolute rights. And he invokes the term fundamental rights 14 times compared with field who only invokes it four times. Bradley is doing a lot of work with this category. He said, quote, there are certain fundamental rights that the right to regulate cannot infrichbi infringe. He named the sacred right to labor. He said the right to choose ones calling is an essential part of liberty which it is the object of government to protect. He called the exclusive franchise, quote, an invasion of the right to choose a lawful calling. An invasion of personal liberty. He repeats that. And says, quote, its the business of the National Courts 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. Here we have the newly minted rightsbearing individual. Here we see the hallmark of the modern logic of rights and governance. The dichotomy between private right and public power. The possession of private right in opposition to state governance. The judicial role as limiting public powers, 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. The citizenship clause. Privileges or immunities, due process, equal protection, and he integrates attention to all four clauses. And this actually is part of the reason the due process clause can do all of the analytic work all by itself because its actually been theorized in relation to these other clauses. And within this new logic of rights and governance. Now its especially notable that bradley cites to blackstone for private absolute rights. Now if folks are in the grip of myths about the 19th century, and the grip of the myth of liberal individualism, they are going to draw a Straight Line from bradley back to blackstone. And this is a mistake. Remember, thinkers and practitioners of the wellregulated society rejected blackstone. And its also notable that bradley draws on concepts and political languages from outside the court. And he brings them into law. And as he brings them into law, hes reorganizing them. As he conceives of liberty as man against the state. Now one of the preexisting concepts he draws on is substantive due process. Now howard j. Graham showed us back in 1968 that substantive due process had its origins in the Antislavery Movement outside of the courts. Antislavery activists since the 1830s and even prior to that used due process of law to mean security against arbitrary power. They called on the natural right to selfownership and that right existed in all of the natural law traditions at the time. And that natural right to selfownership supplied 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. Now 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 displaces the old natural law tradition of the wellregulated society because that was a natural law tradition concerned with the common good and displaces that natural law tradition and replaces it with a natural law tradition in the lockian mold. And bradley gives us six references to due process. Field gives us none, which again is another indicator that bradley is doing all of this transformative work. Miller tells us due process is irrelevant to this case. But due process again is one of those clauses that bradley is weaving into this new theroriization. He draws on 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 they give this language over and over, that slavery degraded labor. Very important phrase. So the war itself had a general association with free labor, although there was some ambiguity about what that meant. Now when bradley announces that the white butchers had a, quote, sacred right to labor, sacred is a key word here. Whats crucial is that bradley renders the right to labor in absolute terms. He fuses it with blackstone. Its important to note that bradleys new logic of rights and governance is not completely modern. The notion of absolute rights is going to be rejected in the new deal era and its going to be rejected in favor of the balancing of rights. But we have in bradleys dissent a recognizably modern rightsbearing individual. We have the hallmark of the modern logic of liberty and governance that dichotomy between private right and public power. The rule of law is now about shielding private right from state legislative invasion. And bradley succeeds in this work. He succeeds in institutionalizing this new logic of rights. And even Justice Miller in his majority opinion gets dragged alo along. He gets dragged along in this majority opinion in the way he frames the question. Now 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 their being a curtailment of fundamental rights. Now when he says at the expense of the community in the sense of being a curtailment of fundamental rights, hes actually conceding bradleys reformulation of the judicial role as protecting private rights against legislative curtailment. Bradleys reformulation is actually elbowing its way into millers own formulation of the question. Now scholars have been so focused on miller putting fundamental rights in the state citizenship category and so focused on bradley saying that fundamental rights were in the National Citizenship category that they have entirely missed how bradley is reworking the logic of liberty and governance. Now bradley is certainly relocating basic liberty from state citizenship to National Citizenship. But that is not what i have been calling world making. Bradley loses on National Citizenship. He loses on the privileges or immunities clause. And all of those beneficiaries of the 14th amendment, they 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 initijudicial ro going to be framed and taken for granted as protecting private right against legislative incursion. The hallmark that modern hallmark is there. Private right versus state power. And we see the success of this in the 1877 case munn versus illinois. In this case, the court upheld the state regulation. This was farmer friendly legislation that fixed the maximum rates that Grain Elevators could charge in chicago. Now the court in munn did use the notion of public purpose. And so on the surface, it again looks like the traditional two categories of Police Powers are organizing this decision. It is using bradleys new logic and the key language in munn is that the court refers to, quote, rights which are purely and exclusively private. And those rights, which are poufly and exclusively private were beyond the state regulation according to the court in munn. Heres this hallmark of the new logic. Purely and exclusively private rights in opposition to public power. In munn, the court says theres no legislative invasion here. Theres no legislative invasion against rights that are purely private. And thats because the court said we have private property thats devoted to a public use. And here we get the court introducing this new category, businesses affected with the Public Interest. And the court says the states can regulate them. States can regulate businesses affected with the Public Interest. And the court says its following antebellum Police Powers cases. Its calling on these cases as precedent, as support. And this is actually fooled int continuous with the old framework, but its not. The court is aplying the new logic of liberty and governance. It takes for granted the dichotomy between private presocial rights, purely and exclusively private rights and 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 affected with the Public Interest, but thats simply about line drawing within the new logic. Justice field dissents, and he says, yeah, those maximum hour rates, those maximum rates, theyre an invasion of private property. They are an invasion of those private and exclusive rights. And in justice fields dissent, its very clear that hes working within the new logic. But the key point actually is that 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 in the dissent is a disagreement about where that line is between private right and public power. And that line is going to move. And fields line drawing is later going to get the upper hand. And it gets the upper hand in 1890 in chicago, milwaukee and st. Paul railroad versus minnesota. The Court Decides substantive rates put on railroads that are set by the state are subject to judicial review. So 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. And whats happening in this case is that 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 the Public Interest. But that logic, that new logic, a private right versus state power is organizing this decision, too. Both the majority and the dissent. Now in 1917 in the world war i era, that line is going to start moving in the other direction. And with the new deal constitutional revolution, were going to see a modification in the logic of man versus the state. And i mentioned that earlier. Absolute rights are going to get thrown out. The court is going to reject absolute rights, and in its place well see the balancing of rights. And then theres going to be this new thing called tears of scrutiny. And the courts approach to line drawing, private right versus public power, is going to vary by tier. But the hallmarks of bradleys logic, the hallmarks of that dissent are still going to be there. Private right against state governance, the role of the judiciary being the protection of private right from state invasion. Okay. So bradleys rule making is successful. His transformative work takes hold. But now i want to come back to that work and a particular dimmenceiodim e dimmence dimension of that work because that work is premised on a new kind of suspicion of state legislatures. Its not only class legislation or partial legislation thats the problem anymore. The problem is bradley frames it as actually the legislature as a legislature. Or more precisely, the Reconstruction Legislature as a legislature. And here the story about bradleys world making gets more complicated. Theres a turn in the story. And thats because bradleys reconceptualization of liberty and governance, his reorganization of the logic of public law is premised on a series of dubious legal moves and factual distortions. 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 illegal monopoly. And he portrays the Reconstruction Legislature as utterly incompetent and oppressive. So heres whats happening in his dissent overall. His world making, the introduction of the modern rightsbearing 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 Reconstruction Legislature of louisiana and Reconstruction Legislatures generally as oppressive. Okay. I want to walk through these moves and show how they are the basis for his new vision, his reconceptualized vision of liberty and governance. Scholars havent identified these moves or framed their jurisprudential significant. All of this is significant, too with regard to the with regard to bradleys dissent. Okay, first, bradley calls butchering an ordinary trade. Its not. Its a nuisance trade. And slaughtering and 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. This was 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, thats absolutely true. But slaughtering in the new orleans area is a per se nuisance. Its 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 bradley a dissent and he never resolves it. The next problem is that bradley asserts that butchering is 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 deprived the butchers of their occupation. Now remember, in general, hes recon in general, bradley is reconceptualizing liberty as private right in opposition to legislative invasion. In opposition to public power. And specifically, hes arguing that 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 its not, but he needs that for claiming that the exclusive franchise is a monopoly. He also claims that butchering is as a trade means keeping your own slaughterhouse and he adds that no englishspeaking people would ever endure the deprivation of such a trade. Well, whats happening in the United States and in the world at this time . Weve 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 across the city. In 1867, one grand slaughterhouse was built in paris. And this was the model for the 1869 louisiana law. Now louisiana, of course, was a french colony so theyre keeping their eye on whats happening 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 slaughterhouses. Frankfu frankfurt, milan, zurich, brussels. The list goes on. In these cases, butchering is being redefined. Doing your own slaughtering in a public facility and dressing and selling the meat on your own property. As for whether englishspeaking people would ever accept this, glasgow did this in the 1850s. Edinburgh in the 1850s. Were even seeing this in england. The port city of depford did this. 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 the milwaukee case and the chicago case which i had already mentioned. Many big cities start to do it in the 1870s. Boston, new york, philadelphia start doing it in the 1870s. Thats afterward. But the Louisiana Legislature was basically in the vanguard of this. Now closer to home, Jefferson City did this in 1862. Now Jefferson City was the municipality right next to new orleans. Separate municipality. They passed their own laws. And Jefferson City was where the butchers were actually concentrated. And so Jefferson City in 1862 passed its own 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. Its but compulsory. It tracked the state law in almost every respect. Now 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. Its great to have an exclusive franchise. Its great for business. The butchers are terrible anyway. We want to regulate them. 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 whose name was randall hunt. He argued the case for the Crescent City company at the state level. The Crescent City company that got the exclusive franchise. Randall hunt 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 hes using the same arguments before bradley, then we know that bradley knew about the Jefferson City 1862 law. Randall hunt treats campbells claims that there was an absolute right to property in the occupation. An absolute right to property and occupation. Hunt treats this claim by campbell as just off the wall. And it was off the wall under the old framework of their wellregulated society. And hunts brief gives all of the arguments that one would make who was operating in the terms of the welleagulated society. He cites the new orleans grand juries on the awful conditions. He identifies the Jefferson City law. And he analogizes the exclusive privilege to a public utility. And this was a vitally important move because what he says is that theres a need for capital investment. You need to keep up with mechanization thats involved in slaughtering. Theres new technology that you want to take advantage of. And it was known at this point that hygeanic processing depended on running water. And that depended on huge, huge water pumps which required an enormous capital investment. I want to mention the work of hovencamp. He brings in a couple of things that are relevant here. He emphasizes the invention, the recent invention of refrigerated Railroad Cars which youd need to ship livestock all across the country. And new orleans was dependent on the livestock industry for its economic recovery after the civil war. Its also circulating at the time, on the ground at the time, is that after the war, folks in new orleans became aware of this big mass of texas cattle that now could be brought to new orleans via new railroad thats getting built. And in order to take advantage of this big herd of texas cattle, you actually need a massive landing. So its not just about keeping the slaughterhouses clean. Its about making sure theres a big mass of centralized landing to take advantage of this big herd of texas cattle. And all of this fits into the logic of the dynamic, wellregulated society. It fits it perfectly. But bradley says the exclusive franchise, quote, has not the faintest semblance of a police regulation. And he goes further than that. He invokes the Reconstruction Legislature as Reconstruction Legislatures and he says referencing the 1869 law, he says, quote, it is one of those 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 impoveri impoverished. And he said something similar on circuit. He said, quote, 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 theres one more vital move that i want to identify. And it works to present the Reconstruction Legislature as just patently unreasonable. Now bradley opens his dissent and field does the same thing. With a description of the 1869 law as covering three parishes. Orleans parish, st. Bernard parish and Jefferson Parish. And what both of these justices say is that the three parishes cover 1,154 square miles. And they give the breakdown by parish. And they say that it affects between 200 and 300,000 people. Now if you think about it, one facility for nearly 1,200 square miles and 300,000 people, that seems a little drastic. And bradley presents these numbers. He repeatedly nearly 1200 square miles multiple times to make the point about how unreasonable this legislature is. The thing is, that number, 1,200 square miles, introduces a massive distortion. I went back to sources available at the time. So im going back to the sources. They are the u. S. Centennial gazettes, state level sources. And they all actually say the same thing which is, they are very similar. And one of the things they say first of all is that the total population is 219,000. Not 300,000. Thats 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 square miles. Thats over half the area covered by the law. St. Bernard parish in all of these sources is described as almost completely uninhabitable. Theres nobody there. Its described as swamps. Jefferson parish, 384 square miles. Thats onethird of the area covered by the law. And its also described consistently across these sources as having vast tracks of undeveloped land. They talk about all of the soil, much of the soil being untilable, except in the north and all of the swamps and the lakes that cover the rest of the parish. Even in orlean s parish, 150 square miles, its described as having its whole upper portion covered by water. And then 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 these sources. Theres almost nothing going on in st. Bernard parish except for sugar plantations and not much going on in Jefferson Parish and its all concentrated in the north. This spectacle reinforced by population per parish. Per parish. St. Bernard parish, 620 square miles, has only 3,500 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 the 1869 law is very concentrated. Its all in a builtup area, and now were 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, its just a very significant distortion. 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. Its all premised on the 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 an issue in the recent slaughterhouse scholarship. Its been suggested in the recent slaughterhouse scholarship that theres racism on both sides. And so it washes out as an issue in this case. Weve got the racist bushes and campbell on one side and weve got on the other side this figure, jeremiah black, who was a lawyer for the Crescent City company. We know he was antilincoln. He was antireconstruction. And its been claimed that jeremiah black basically swallowed his its been claimed that jeremiah black swallowed distaste for the carpetbaggers coming in and getting the benefit of the exclusive franchise and that black had had a litigation strategy to gut the privileges clause for racial reasons. The source of this is a 1930 dissertaition by brigantz. It was published as a 1934 book on jeremiah blacks speeches. The book is in the tradition of the dunning school. More importantly than that, he 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 on reconstruction that it wasnt jeremiah black that gave oral argument before the court. It was matthew carpenter. We dont have matthew carpenters brief, unfortunately. That was not preserved in the record. We 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. Hes 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. Hes representing the Crescent City company for this motion to dismiss. And with that regard to the motion to dismiss, theres 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 had lost at the state level but won at the circuit level. After the Supreme Court had held the case over for reargument, because they held the case over for reargument, and we know in retrospect that there was a 44 tie. So in 1871, before reargument, those white racist butchers represented by campbell, fighting the Crescent City company, in 1871, those butchers bought the company. They bought the Crescent City company. Paul esteban, paul fagan, all those livestock butchers, in 1871, they are the new owners of the crescent slaughterhouse company. Theyre the new board of directors. They bring the motion to dismiss. They say its no longer a controversy. They pay campbell. They say bye to campbell. We have all of their affidavits. Its in the motion to dismiss. Its in the landmark briefs. And so jeremiah black is representing them. Hes representing those original butchers. Remember, brigantz has no evidence anyway. He was no evidence about black. Now 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 theyre mad. 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, fagan, those names are still on the case, because you cant take them off at this point. This is full scholars and continuing to frame the case in 1873 as still involving the original white butchers in the 17 investors when thats not the case at all. Bradley, bradley in 1873 keeps on talking about those poor, white butchers, even though theyre now the monopolists. And so as a matter of law, what still in question is the exclusive franchise. As a matter of law, the court still has to rule on that. But bradleys rhetoric works to paint those original butchers as still there, they are still the victims, they are still being deprive d of a trade even thoug they now own the Crescent City company. Okay. Where does this leave us . We have bradleys transformative work. Reken septemberualizes liberty and 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. I dont think it was 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 shifts to granger legislatures, to farm erled legislatures. And this happens later on. And it happens in the context of hay maker, labor unrest. Its a new group of justices now that are part of the granger legislatures. At the same time, that new logic, bradleys new logic of liberty and governance does not map neatly on to pro or antireconstruction positions. Its going to live on in modified form. Its going to be used in different contexts and its 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. The first of those 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 that i was standing here, in 1874, bradley wrote a circuit opinion in the decision which let klansmen walk free throughout indictments against klansmen. In that decision, bradley gives us a coordinate theerd theory three reconstruction amendments. It had wide authority at the time. Klan lawyers hated it. Thats a big signal. If the klan lawyers hate what your writing, you notice that. That coordinated theory provided a blueprint for bringing future indictments against klansmen for violence, infractions against violence and voting. Theres only one aspect of this coordinated rights theory tha i want to recall. I want to recall bradleys Voting Rights theory. Its built from the distinction that is gone today and that makes it hard to see. That Voting Rights theory was the basis for the Republican Partys reboot of voting right prosecutions in the south in the 1880s, and that reboot of Voting Rights protections, which is not generally part of the story of the coordinated reconstruction. That reboot produced a unanimous decision exparte in 1884 which sent klansmen to jail under in part the 15th amendment. That would be impossible to explain if the conventional story about the court abandoning blacks in 1876 were true. The reboot is 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 thats used traces to bradleys 1874 opinion. This is bradleys work. Its 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. Bradley would have absolutely rejected that pair of laws pass bid the legislature, the School Integration law. Bradley would have rejected this. He thought that these kinds of laws oppressed whites. But its the mix, its the mix thats difficult to see that he can both be very supportive of Voting Rights and go out of his way to create a Voting Rights theory and be very supportive of the Civil Rights Act of 1866 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. It got institutionalized right off the bat. And so between bradleys transformative work in the slaughterhouse cases and his coordinated theory in 1874 which produced that 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 school accounts of reconstruction, those racist stunning school accounts 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 have praised bradleys dissent because he presents the clause as protecting the rights of National Citizenship, as applying the bill of rights to the states. And thats where i started tonight. But theres a gap between bradleys conceptualization of National Citizenship, his conceptualization of the privileges and immunities clause and the 1866 amendment. Theres daylight between bradleys conceptualization and the amendment itself. Brad lease conceptualization of National Citizenship does not equal the privilege or immunities 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. Its not a point about originalism. And for those scholars across the political spectrum today, who are arguing for the incorporation of the bill of rights under the privileges or immunities clause and think that corporation under privileges or immutants would advance their own commitments, theres 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 and opposition to public power. 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 ] youre watching a special edition of American History tv airing now during the week while members of congress are working in their districts because of the pandemic. Tonight at 8 00 eastern, the Virginia Museum of history and the university of Oklahoma Center for the study of American Indian law cohost a symposium on chief Justice John Marshal and the Supreme Courts decisions and cases involving the forced relocation of the cherokee nation. American history tv now, and also watch over the weekend on cspan3. Every saturday night, American History tv takes you to College Classrooms around the country for lectures in history. Why do you all know who Lizzie Borden is . Raise your hand if you ever heard of of this murder, the gene harris murder trial before this class. A deepest cause where well find the true meaning of the revolution was in this transformation that took place in the minds of the american people. Were going to talk about both of these sides of the story here, right . The tools, the techniques of slave owner power. Well also talk about the tools and techniques of power that were practiced by enslaved people. Watch history professors lead discussions with their studens s on top beings ranging from the American Revolution to september 11th. Lectures in history on cspan3 every saturday at 8 00 p. M. Eastern on American History tv, and lectures in history is available as a podcast. Find it where you listen to podcasts. And now a conversation on the constitutional issues the Supreme Court faced during world war i. Well hear first from Supreme Court justice