Waite Court (1874–1888)

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WAITE COURT (1874–1888)

A new age of American constitutional law was at hand when morrison r. waite became chief justice of the United States in 1874. Not only had the civil war discredited many antebellum glosses on the "old" Constitution, consisting of the venerable document framed in 1787 and the twelve amendments adopted during the early republic, but it had also generated a "new" Constitution consisting of the thirteenth amendment, the fourteenth amendment, and the fifteenth amendment. The range of choices at the Court's disposal was virtually unlimited as it reconstituted the old organic law and integrated the new. charles sumner said it best just four years before Waite took the Court's helm. The tumultuous events of 1861–1869, he exclaimed, had transformed the Constitution into "molten wax" ready for new impression. An extraordinarily homogeneous group of men made this impression. Of the fourteen associate Justices who sat with Waite between 1874 and his death in 1888, only nathan clifford had been appointed by a Democrat and all but two—samuel f. miller and john marshall harlan, both of Kentucky—had been born in the free states. All of them were Protestants. Thus the Republican party, which had subdued the South and created the "new" Constitution, had also reconstructed the federal judiciary. As the Waite Court proceeded to refashion the structure of American constitutional law, its work ineluctably reflected the values, aspirations, and fears that had animated the Republican party's northern Protestant constituency since the 1850s.

Fierce opposition to state sovereignty concepts was a core element of Republican belief from the party's very inception. Republicans asociated state sovereignty with proslavery constitutionalism in the 1850s, with secession in 1861, and ultimately with the tragic war both engendered. Waite and his colleagues shared this aversion to state sovereignty dogma and repeatedly expressed it in controversies involving the implied powers of Congress under the "old" Constitution. In case after case the Court resisted limitations on federal power derived from state sovereignty premises and held, in effect, that Congress's authority to enact statutes deemed necessary and proper for the enumerated powers had the same scope under the Constitution as it would if the states did not exist. On several occasions the Court even revived the idea that Congress might exercise any power inherent in national sovereignty as long as it was not specifically prohibited by the Constitution. This doctrine, first expounded by Federalist congressmen during debate on the Sedition Act of 1798, had been regarded as "exploded" by most antebellum statesmen. But its revival after the Civil War did have a certain logic. If there was one impulse that every member of the Waite Court had in common, it was the urge to extirpate every corollary of "southern rights" theory from American constitutional law and to confirm the national government's authority to exercise every power necessary to maintain its existence.

The revival of the implied powers doctrine began in the often overlooked case of Kohl v. United States (1876). There counsel challenged Congress's authority to take private property in Cincinnati as a site for public buildings on the ground that the Constitution sanctioned federal exercise of the eminent domain power only in the district of columbia. Article I, section 8, vested Congress with authority to acquire land elsewhere "for the erection of forts … and other needful buildings" only "by the consent of the legislature of the State in which the same shall be." This was by no means a novel argument. james madison and james monroe had pointed to the national government's lack of a general eminent domain power when vetoing internal improvement bills, and proslavery theorists had invoked the same principle as a bar to compensated emancipation and colonization schemes. In Pollard's Lessee v. Hagan (1845), moreover, the taney court had said that "the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a State or elsewhere, except in the cases in which it is expressly granted." But william strong, speaking for the Court in Kohl, refused to take this doctrine "seriously." Congress's war, commerce, and postal powers necessarily included the right to acquire property for forts, lighthouses, and the like. "If the right to acquire property for such uses be made a barren right by the unwillingness of property holders to sell, or by the action of a State prohibiting a sale to the Federal Government," Strong explained, "the constitutional grants of power may be rendered nugatory.… This cannot be. "Congress's eminent domain power must be implied, Strong concluded, for commentators on the law of nations had always regarded it as "the offspring of political necessity, and … inseparable from sovereignty."

horace gray sounded the same theme in the Legal Tender Cases (Juilliard v. Greenman, 1884), where the Court sustained Congress's authority to emit legal tender notes even in peacetime. With only stephen j. field dissenting, Gray asserted that because the power to make government paper a legal tender was "one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution," it was unquestionably "an appropriate means, conducive and plainly adapted" to the execution of Congress's power to borrow money. In ex parte yarbrough (1884), decided the same day, the Court spoke the language of national sovereignty in an especially significant case. At issue there was the criminal liability of a Georgia man who had savagely beaten a black voter en route to cast his ballot in a federal election. The Court unanimously sustained the petitioner's conviction under the 1870 civil rights act, which made it a federal crime to "injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." It did so on the ground that Congress's duty "to provide in an election held under its authority, for security of life and limb to the voter" arose not from its interest in the victim's rights so much as "from the necessity of the government itself." Samuel F. Miller explained that Congress's power to regulate the time, place, and manner of holding federal elections, conferred in Article I, section 4, implied a "power to pass laws for the free, pure, and safe exercise" of the suffrage. "But it is a waste of time," he added, "to seek for specific sources to pass these laws.… If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption."

The Court's decisions in Kohl, Juilliard, and Yarbrough merely jettisoned antebellum canons of strict construction. They did not impair the autonomy of state governments. The eminent domain power of the several states was not threatened by Kohl, the Constitution expressly prohibited the states from making anything but gold and silver a legal tender, and Yarbrough did not jeopardize Georgia's power to prosecute political assassins for assault or murder. Yet the Waite Court was as quick to defend exercises of Congress's powers in situations where counsel claimed that the states' autonomy was in jeopardy as in cases where their reserved powers remained unimpaired. Ex parte Siebold (1880) was the leading case in point. There the Court sustained a conviction for ballot stuffing under the 1871 enforcement act, which made it a federal crime for any state official at a congressional election to neglect duties required of him by either state or federal law. Counsel for the petitioner argued that in prigg v. pennsylvania (1842) and Kentucky v. Dennison (1861) the Taney Court had held that the principle of divided sovereignty precluded acts of Congress compelling the cooperation of state officials in the execution of national law. "We cannot yield to such a transcendental view of State sovereignty," joseph bradley proclaimed for the Court in Siebold. "As a general rule," he said, "it is no doubt expedient and wise that the operations of the State and National Governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars." But the Constitution neither mandated an immutable boundary between spheres of federal and state power nor restricted Congress's choice of means in implementing its enumerated authority to regulate federal elections.

The Court's constitutional nationalism did have limits. Like most Republicans of the age, Waite and his colleagues resisted the idea of centralization with as much ardor as the concept of state sovereignty. They regarded the national government's competence as deriving from the powers specified in the Constitution or fairly implied from it; the residual powers of government, usually called "internal police," belonged exclusively to the several states. Thus decisions like Kohl and Siebold, as Waite and his associates understood them, did not contract the ambit of state jurisdiction. Rather the court simply refused to recognize implied limitations on the powers of Congress derived from state sovereignty premises. The Trade-Mark Cases (1879) underscored the Waite Court's allegiance to this view of the federal system. There a unanimous Court, speaking through Miller, held that Congress had no authority to enact a "universal system of trade-mark registration." Miller's method of analysis was more revealing than the result. His first impulse was to determine which sphere of government ordinarily had responsibility for such matters in the constitutional scheme. "As the property in trade-marks and the right to their exclusive use rest on the laws of the States, and like the great body of the rights of persons and of property, depend on them for security and protection," he explained, "the power of Congress to legislate on the subject … must be found in the Constitution of the United States, which is the source of all the powers the Congress can lawfully exercise." This two-tier method not only reified dual federalism but also put the burden of demonstrating Congress's authority to act on the government. In the Trade-Mark Cases it could not do so. Trade-marks lacked "the essential characteristics" of creative work in the arts and sciences, consequently the statute could not be sustained under the copyright or patent powers. And the commerce power, though admittedly "broad," could not be construed as to permit federal regulation of commercial relations between persons residing in the same state.

When the Waite Court turned to cases involving the "new" Constitution, the instinct to conceptualize rights and powers in terms of dual federalism had fateful consequences. Beginning in united states v. cruikshank (1876), the Court emasculated Congress's power "to enforce, by appropriate legislation," the rights guaranteed by the Fourteenth and Fifteenth Amendments. At issue was the validity of conspiracy convictions under the 1870 Civil Rights Act against a band of whites who had attacked a conclave of blacks in Grants Parish, Louisiana, killing from sixty to one hundred of them. The government claimed that the defendants had deprived the black citizens of their constitutional rights to hold a peaceful assembly, to bear arms, to vote, and to equal protection of the laws safeguarding persons and property. The Court unanimously overturned the convictions. The conspiracy law was not voided; indeed, the Court sustained a conviction under that very statute in Yarbrough. But Waite and his associates were determined to confine Congress's power to enact "appropriate legislation" in such a way to preserve what Miller called "the main features of the federal system." The Court had no choice in the matter, Joseph Bradley remarked on circuit in 1874, unless it was prepared "to clothe Congress with power to pass laws for the general preservation of social order in every State," or, in short, with a plenary power of "internal police."

Waite's opinion for the Court in Cruikshank contained two separate lines of argument. He began the first foray by pointing out that every American citizen "owes allegiance to two sovereigns, and claims protection from both." Because the two levels of government could protect the rights of citizens only "within their respective spheres," federal authorities could assert jurisdiction over perpetrators of violence only if the rights denied to victims were derived from the Constitution and laws of the United States. But in the slaughterhouse cases (1873), decided ten months before Waite came to the Court, a majority of five had concluded that there were very few privileges or immunities of national citizenship and that the Fourteenth Amendment had not created any new ones. Fundamental rights of life, liberty, and property still rested upon the laws of the states, and citizens had to rely upon the states for the protection of those rights. Among the privileges of state citizenship, Waite explained in Cruikshank, were the rights to assemble, to bear arms, and to vote. Although guaranteed against infringement by Congress in the bill of rights, the rights to assemble and bear arms were not "granted by the Constitution" or "in any manner dependent upon that instrument for existence." The right to vote in state and local elections stood on the same footing because "the right to vote in the States comes from the States." The Fifteenth Amendment did give citizens a new right under the Constitution—exemption from racial discrimination when attempting to vote. Because the Grants Parish indictments did not aver that the defendants had prevented their victims "from exercising the right to vote on account of race," however, that count was as defective as the rest.

Waite's second line of argument in Cruikshank was designed to hold the votes of Joseph Bradley, Stephen J. Field, and noah swayne. They had dissented in the Slaughterhouse Cases, claiming that the Fourteenth Amendment had been designed to reconstruct the federal system by creating a third sphere in the constitutional scheme—that of the individual whose fundamental rights were now protected against unequal and discriminatory state laws. Waite satisfied them by stating what came to be known as the state action doctrine. He not only conceded that "[t]he equality of the rights of citizens is a principle of republicanism" but strongly implied that the Fourteenth Amendment had nationalized this principle under the equal protection clause, if not the privileges or immunities clause. But the amendment, he added, "does not … add any thing to the rights which one citizen had under the Constitution against another." The very language of the amendment's first section—"No state shall …"—suggested that it must be read not as a grant of power to Congress but as a limitation on the states. It followed that the exercise of fundamental rights did not come under the Constitution's protection until jeopardized by the enactment or enforcement of a state law. "This the amendment guarantees, but no more," Waite declared. "The power of the national government is limited to the enforcement of this guaranty."

The principles announced in Cruikshank doomed the rest of Congress's civil rights program, all of which had been based on the assumption that the "new" Constitution might be employed as a sword to protect any interference with fundamental rights. A voting rights statute went down in united states v. reese (1876) because Congress had failed to limit federal jurisdiction over state elections to the prevention of racially motivated fraud or dereliction; the antilynching provisions of the 1871 Civil Rights Act were invalidated for want of state action in united states v. harris (1883). One latent function of Cruikshank, however, was to draw renewed attention to the equal protection clause as a shield for blacks and other racial minorities whose civil rights were imperiled by discriminatory state laws. Soon the docket was crowded with such cases, and the Court was compelled to wrestle with longstanding ambiguities in the Republican party's commitment to racial equality.

Republicans had always been quick to defend equal rights in the market, for it was the rights to make contracts and own property that distinguished free people from slaves. But many Republicans regarded the idea of equality before the law as wholly compatible with legalized race prejudice in the social realm. Words like "nation" and "race" were not merely descriptive terms in the nineteenth century; they were widely understood as objective manifestations of natural communities, the integrity of which government had a duty to maintain. Thus most Republicans never accepted the proposition that blacks ought to be free to marry whites and many denied the right of blacks to associate with whites even in public places. The framers of the "new" Constitution had neither abjured this qualified view of equality not incorporated it into the Fourteenth Amendment. The discretion of Waite and his colleagues was virtually unfettered. They could weave prevailing prejudices into equal protection jurisprudence or they could interpret the equality concept broadly, declare that the "new" Constitution was color-blind, and put the Court's enormous prestige squarely behind the struggle for racial justice.

Exponents of racial equality were greatly encouraged by strauder v. west virginia (1880), the case of first impression. There a divided Court reversed the murder conviction of a black defendant who had been tried under a statute that limited jury service to "white male persons." The Fourteenth Amendment, William Strong explained for the majority, "was designed to secure the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons." This formulation was acceptable even to the two dissenters. According to Stephen J. Field and Nathan Clifford, however, jury service was not a "civil right." It was a "political right." The only rights Congress intended to protect with the Fourteenth Amendment, they contended, were those enumerated in the Civil Rights Act of 1866—to own property, to make and enforce contracts, to sue and give evidence. The equal protection clause, Field said, "secures to all persons their civil rights upon the same terms; but it leaves political rights … and social rights … as they stood previous to its adoption." But the Strauder majority was unimpressed by Field's version of the "original understanding" and it set a face of flint against his typology of rights. "The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect," Strong declared. "It speaks in general terms, and those are as comprehensive as possible." The very term equal protection, he added, implied "that no discrimination shall be made against [blacks] by the law because of their color."

Strauder seemed to open the door for judicial proscription of all racial classifications in state laws. John R. Tompkins, counsel for an interracial couple that had been sentenced to two years in prison for violating Alabama's antimiscegenation law, certainly read the case that way. But the idea of distinct spheres of rights—"civil" and "social" if no longer "political"—furtively reentered the Waite Court's jurisprudence in pace v. alabama (1883). Field, speaking for a unanimous Court, held that antimiscegenation laws were not barred by the Fourteenth Amendment as long as both parties received the same punishment for the crime. Equal protection mandated equal treatment, not freedom of choice; antimiscegenation laws restricted the liberty of blacks and whites alike. Underlying this disingenuous view was an unarticulated premise of enormous importance. In settings involving the exercise of "social rights" the equal protection clause did not prohibit state legislatures from enacting statutes that used race as a basis for regulating the rights of persons. The legal category "Negro" was not suspect per se. (See suspect classification.)

The concept of "social rights" also figured prominently in the civil rights cases (1883), decided ten months after Pace. There the Court struck down the civil rights act of 1875, which forbade the owners of theaters, inns, and public conveyances to deny any citizen "the full and equal benefit" of their facilities. Joseph Bradley, speaking for the majority, rejected the claim that the businesses covered by the act were quasi-public agencies; consequently the state action doctrine barred federal intervention under the Fourteenth Amendment. But Bradley conceded that the state action doctrine was not applicable in Thirteenth Amendment contexts. It not only "nullif[ies] all state laws which establish or uphold slavery," he said, but also "clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." With the exception of John Marshall Harlan, however, every member of the Waite Court equated the "badges and incidents of slavery" with the denial of "civil rights" and concluded that Congress had nearly exhausted its authority to enact appropriate legislation under the Thirteenth Amendment with the civil rights act of 1866. "[A]t that time," Bradley explained, "Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of man and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery." Bradley's opinion was circumspect in only one respect. Whether denial of equal accommodation "might be a denial of a right which, if sanctioned by the state law, would be obnoxious to the [equal protection] prohibitions of the Fourteenth Amendment," he said, "is another question." But that was true only in the most formal sense. Once the Court had identified two distinct spheres of rights under the Thirteenth Amendment, one "civil" and another "social," it was difficult to resist the impulse to link that standard with the doctrine expounded in Pace when deciding equal protection cases. Stephen J. Field and Horace Gray, the only members of the Civil Rights Cases majority still alive when plessy v. ferguson (1896) was decided, had no qualms about state laws that required separate but equal accommodations for blacks on public conveyances. Harlan was the sole dissenter on both occasions.

Equal opportunity in the market was one civil right that every member of the Waite Court assumed was guaranteed by the equal protection clause. Thus in yick wo v. hopkins (1886) the Court invalidated the racially discriminatory application of a San Francisco ordinance that required all laundries, except those specifically exempted by the board of supervisors, to be built of brick or stone with walls one foot thick and metal roofs. No existing San Francisco laundry could meet such stringent building regulations, but the ordinance had the desired effect. The authorities promptly exempted the city's white operators and denied the petitions of their 240 Chinese competitors. "[T]he conclusion cannot be resisted," stanley matthews asserted for a unanimous Court, "that no reason for [this discrimination] exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified." Yet the type of right divested was at least as important in Yick Wo as the fact of discrimination. The Court described laws that arbitrarily impaired entrepreneurial freedom as "the essence of slavery" while laws that denied racial minorities free choice in the selection of marriage partners and theater seats were not. But that was not all. The court invoked the absence of standards for administering the laundry ordinance as an independent ground for its unconstitutionality. The boundless discretion, or, as Matthews put it, "the naked and arbitrary power" delegated to the authorities was as decisive for the Court as the fact that the ordinance had been applied with "an evil eye and an unequal hand." In the Waite Court's view, however, the same kind of concern about official discretion was neither possible nor desirable in jury-service cases. In Strauder Strong conceded that jury selection officials might constitutionally employ facially neutral yet impossibly vague tests of good character, sound judgment, and the like. The Court had no choice but to presume that the jury commissioners had acted properly, Harlan explained in Bush v. Kentucky (1883), in the absence of state laws expressly restricting participation to whites. As blacks began to disappear from jury boxes throughout the South, it became clear that although Strauder put jury service in the "civil rights" category, in practical application it stood on a far lower plane than the rights enumerated in the Civil Rights Act of 1866. When Booker T. Washington counseled blacks to place economic opportunities ahead of all others in 1895, he expressed priorities that the Waite Court had long since embroidered into equal protection jurisprudence.

The path of due process was at once more tortuous and less decisive than the development of equal protection doctrine. In Dent v. West Virginia (1888), decided at the close of the Waite era, the Court conceded, as it had in the beginning, that "it may be difficult, if not impossible, to give to the terms "due process of law' a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden." Yet two generalizations about the Waite Court's understanding of due process can be advanced with confidence. First, the modern distinction between procedural and substantive due process had no meaning for Waite and his colleagues. In their view, the Fifth and Fourteenth Amendments furnished protection for fundamental rights against arbitrary action, regardless of the legal form in which the arbitrary act had been clothed. In hurtado v. california (1884), where the majority rejected counsel's claim that the Fourteenth Amendment incorporated the Bill of Rights, Stanley Matthews explained that because the due process concept embraced "broad and general maxims of liberty and justice," it "must be held to guaranty not particular forms of procedure, but the very substance of individual rights to life, liberty, and property." Even Miller, the most circumspect member of the Court, agreed in 1878 that a law declaring the property of A to be vested in B, "without more," would "deprive A of his property without due process of law." It is equally clear that the Court assumed that corporations were persons within the meaning of the Fifth and Fourteenth Amendments long before Waite acknowledged as much during oral argument in Santa Clara County v. Southern Pacific Railroad Co. (1886). As early as the granger cases (1877) the Court decided controversies in which railroad corporations challenged state regulation on due process grounds, and neither the defendant states nor the Justices breathed a doubt about the Court's jurisdiction. In the sinking fund cases (1879), moreover, Waite stated emphatically in obiter dictum that the Fifth Amendment had always barred Congress "from depriving persons or corporations of property without due process of law."

Although every member of the Court accepted the essential premises of substantive due process, no statute was voided on due process grounds during the Waite era. Conventional assumptions about the boundary between the legislative and judicial spheres were largely responsible for the Court's reticence. In due process cases, at least, most of the period's Justices meant it when they stated, as Waite did in the Sinking Fund Cases, that "[e]very possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a reasonable doubt." The most disarming demonstration of that Court's adherence to this principle came in Powell v. Pennsylvania (1888). At issue was an act that prohibited the manufacture and sale of oleomargarine. The legislature had labeled the statute as a public health measure, but it was no secret that the law really had been designed to protect the dairy industry against a new competitor. Harlan, speaking for everyone but Field, conceded that counsel for the oleomargarine manufacturer had stated "a sound principle of constitutional law" when he argued that the Fourteenth Amendment guaranteed every person's right to pursue "an ordinary calling or trade" and to acquire and possess property. Indeed, the Court had furnished protection for those very rights in Yick Wo. "But we cannot adjudge that the defendant's rights of liberty and property, as thus defined, have been infringed," Harlan added, "without holding that, although it may have been enacted in good faith for the objects expressed in its title … it has, in fact, no real or substantial relation to those objects." And this the Court was not prepared to do. Defendant's offer of proof as to the wholesomeness of his product was insufficient, for it was the legislature's duty, not the judiciary's, "to conduct investigations of facts entering into questions of public policy." Nor could the Court consider the reasonableness of the means selected by the legislature: "Whether the manufacture of oleomargarine … is, or may be, conducted in such a way … as to baffle ordinary inspection, or whether it involves such danger to the public health as to require … the entire suppression of the business, rather than its regulation … are questions of fact and of public policy which belong to the legislative department to determine." Field, dissenting, claimed that the majority had not simply deferred to the legislature but had recognized it as "practically omnipotent."

Field overstated the predisposition of his colleagues, and he knew it. The Court seldom spoke with a luminous, confident voice in due process cases; majority opinions almost invariably revealed lingering second thoughts. Each time the Court said yes to legislatures, it reminded them that someday the Court might use the due process clause to say no. In Powell, for example, Harlan warned lawmakers that the Court was ready to intercede "if the state legislatures, under the pretence of guarding the public health, the public morals, or the public safety, should invade the rights of life, liberty, and property." Harlan did not explain how the Court might identify an act that had been passed "under the pretence" of exercising the police power, but he seemed to be confident that the Justices would be able to identify a tainted statute once they saw one. Waite's opinion in Munn v. Illinois (1877) was equally ambiguous. In one series of paragraphs he stated that the power to regulate prices was inherent in the police power; in another he suggested that price fixing was legitimate only if the regulated concern was a "business affected with a public interest." It followed from the latter proposition, though not from the former, that "under some circumstances" the Court might disallow regulation of prices charged by firms that were "purely and exclusively private." In Munn Waite was more certain about the reasonableness of rates lawfully fixed. "We know that it is a power which may be abused," he said; "but … [f]or protection against abuses by the legislatures the people must resort to the polls, not the courts." By 1886, however, Waite and some of his colleagues were not so sure. "[U]nder the pretense of regulating fares and freights," Waite declared in the Railroad Commission Cases (1886), "the State cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law." This statement, like Harlan's similar remark in Powell, warranted many conflicting inferences. At the close of the Waite era, then, the scope of the judicial power under the due process clause was as unsettled as the clause's meaning.

When Waite died in 1888, a St. Louis law journal observed that he had been "modest, conscientious, careful, conservative, and safe." It was a shrewd appraisal not only of the man but of his Court's work in constitutional law. The Court's unwillingness to use judicial power as an instrument of moral leadership evoked scattered protests from racial egalitarians, who accused Waite and his colleagues of energizing bigotry, and from exponents of laissez-faire who complained that the Court had failed to curb overweening regulatory impulses in the state legislatures. But no criticism was heard from the Republican party's moderate center, where the Court had looked for bearings as it reconstructed the "old" Constitution and integrated the "new." In retrospect, it was thomas m. cooley, not Charles Sumner, who supplied the Waite Court with an agenda and suggested an appropriate style for its jurisprudence. The Republican party had resorted to "desperate remedies" and had treated the Constitution as if it were "wax" during the Civil War, he said in 1867. Now it was time for the bench and bar to ensure that postwar institutions were "not mere heaps of materials from which to build something new, but the same good old ship of state, with some progress toward justice and freedom."

Charles W. Mc Curdy


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