The United States Since the Civil War

by Charles Ramsdell Lingley

The primacy of the Senate quickly led to recognition of the value of seats in it. Influential state politicians sought election in order to control the patronage. Competent judges in the early nineties declared, for example, that the senators from New York, Pennsylvania and Maryland were all of this type. Another considerable fraction was composed of powerful business men, directors in large corporations, who found it to their advantage to be in this most influential law-making body and who were known as oil or silver or lumber senators. So was laid the foundation of the complaint that the Senate was a millionaires' club. And so, too, it came about that much of state politics revolved about the choice of members for the upper house, for senators were elected by the state legislatures until long after 1890. The power of the House of Representatives, in contrast with the Senate, was relatively small except during the single session 1889-1891, when Thomas B. Reed was in control, although individual members sometimes wielded considerable influence.

Somewhat comparable to the shift in the center of power from one federal authority to another, was the change which took place in the relative strength of the state and national governments. This transfer was most clearly seen in the decisions of the Supreme Court in cases involving the Fourteenth Amendment.

Previous to 1868, when the Amendment became part of the Constitution, comparatively little state legislation relating to private property had been reviewed by the Court. Ever since the establishment of the federal government, cases involving the constitutionality of state legislation had been appealed to United States Courts when they had been objected to as running counter to the clauses of the Constitution forbidding states to enact bills of attainder, ex post facto laws, or laws impairing the obligation of contracts. Their number, however, had been relatively small, and normally the acts of state legislatures had not been reviewed by federal courts; or in other words the tendency had been to preserve the individuality and strength of the several states. After the war, the Fourteenth and Fifteenth Amendments placed additional prohibitions on the states, and the decisions of the Supreme Court determined the meaning and extent of the added provisions. The interpretation of the Fourteenth Amendment was especially important. Most significant was the interpretation of Section 1, which reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So vague and inclusive were these phrases that many important questions immediately sprang from them. What were the privileges and immunities of the citizen? Did those of the citizen of the United States differ from those of the citizen of a state? Was a corporation a person? What was liberty? What was due process of law? Hitherto the protection of life, liberty and property had rested, in the main, upon the individual states, and cases involving these subjects had been decided by state courts. Were the state courts to be superseded, in relation to these vital subjects, by the United States Supreme Court?

It has already been shown that the purpose of the Fourteenth Amendment was the protection of the recently freed negro. The Thirteenth Amendment had forbidden slavery, but the southern states had passed apprentice and vagrancy laws which reduced the negro to a condition closely resembling slavery in certain of its aspects. The Fourteenth Amendment was designed to remedy such a condition by forbidding the states to abridge the privileges of citizens, or to deprive persons of life, liberty or property. Were the very vague phrases of the Amendment merely in keeping with the vagueness of many of the other grants of power in the Constitution, or were they designedly expressed in such a way as to accomplish something more than the protection of the freedman?

The first decision of the Supreme Court involving the Amendment was that given in the Slaughter House Cases in 1873, which did not concern the negro in any way. In 1869 the legislature of Louisiana had given a corporation in that state the exclusive right to slaughter cattle within a large area, and had forbidden other persons to construct slaughter-houses within the limits of this region, but the corporation was to allow any other persons to use its buildings and equipment, charging fixed fees for the privilege. Cases were brought before the courts to determine whether the law violated that part of the Fourteenth Amendment which forbids a state to pass laws abridging the privileges of citizens and taking away their property without due process of law. By a vote of five to four the Court upheld the constitutionality of the statute.

The majority held that the purpose of the Amendment was primarily the protection of the negro. This purpose, the Court thought, lay at the foundation of all three of the war amendments and without it no one of them would ever have been suggested. The majority did not believe that the Congress which passed the amendments or the state legislatures which ratified them intended to transfer the protection of the great body of civil rights from the states to the federal government. Neither did they think that due process of law had been interfered with by the Louisiana legislation. In reply to the objection that the slaughter-house law violated the clause, "nor shall any State deny to any person within its jurisdiction the equal protection of the laws," the majority declared:

We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.

In brief, then, the majority was inclined to preserve the balance between the states and the national government very much as it had been. It believed that the amendments should be applied mainly if not wholly to the fortunes of the freedman and that judicial review of such legislation as that in Louisiana concerning the slaughter of cattle should end in the state courts.