Transcripts For CSPAN3 Justice Joseph Bradley The Fourteent

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