Bill-of-Rights cases in the 19th century

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It probably won't surprise many people to hear that I'm interested in the history of constitutional law in America -- especially about your Bill-of-Rights jurisprudence. So far, I have read a lot of the founding-era literature (Federalist papers, Blackstone, Tucker, Jefferson, the cases cited in "The Founders' constitution, and so far.) Also, I consider myself reasonably well-read, for an interested layman anyway, in the important 20th century Supreme Court cases. But in between, there's a big hole: I am mostly ignorant of the Bill of Rights jurisprudence in the 19th century, and then some.

The reason for this seems simple. Before the Progressive Era and the New Deal, the federal government was simply too small and limited to violate Americans' fundamental rights a lot. Moreover, the doctrine of incorporation, which made (most of) the federal Bill of Rights enforcable against the states through the 14th Amendment, didn't persuade a majority of the Supreme Court until well into the 20th century. I'm sure the 19th century saw state governments violating rights that the Bill of Rights would have protected. But back then, the resolution of such conflicts was the business of state supreme courts. That explains why 19th century federal courts seem to have developed practically no jurisprudence on the Bill of Rights.

This brings me to my question: Is there any good literature about 19th century Bill of Rights cases -- cases that State supreme courts decided by the bills of rights in their respective state constitutions? Since an Amazon search on the obvious keywords looks rather dim, I would greatly appreciate any tips from the lawyers in this forum.

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Thomas: The Univ. of South Carolina Press has put out a series of books on the chief justiceships of the US Supreme Court. I've read the volume on Chief Justice Melville Fuller, which contained a good section on civil rights cases handled by the court during Melville's tenure. I would guess that the other books in the series would do likewise. Unfortunately, the series does not contain volumes on Roger Taney, Salmon Chase, or Morrison Waite, so that leaves a pretty large hole in the middle of the nineteenth century. ABC-CLIO also has a series on the chief justiceships that covers all the chief justices, but I have never read them so I can't comment on their usefullness for your purposes.

I doubt if there's much literature on state supreme court cases dealing with federal civil rights during the nineteenth century, for the simple reason that there weren't many cases in state courts dealing with federal rights during that period. Prior to the adoption of the fourteenth amendment, the bill of rights was regarded as restricting only congress's ability to pass laws. The fourteenth amendment was supposed to change this, but the supreme court's decision in the Slaughterhouse Cases delayed that process by about seventy years. The supreme court still dealt with civil rights cases, but, as you are aware, it certainly did not give them the expansive scope that would be the hallmark of civil rights jurisprudence in the twentieth century.

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Hi Joe --

Thanks for your pointers. I'll check out those books about chief justiceships

joefromchicago wrote:

I doubt if there's much literature on state supreme court cases dealing with federal civil rights during the nineteenth century, for the simple reason that there weren't many cases in state courts dealing with federal rights during that period.

I'm aware of that -- maybe I didn't express myself precisely enough in my second paragraph. The approach I'd like to try is this: Most state constitutions, too, contain bills of rights. Of these, many seem to have been copied and pasted from the federal constitution; the rest is modeled after it with a few tweaks. (For example, reconstruction-era Southern state constitutions explicitly proclaim a right to emigrate. I suppose that's a reaction to the injustice that inhered in the Fugitive Slave Act.)

I know there can be differences between how the federal supreme court interprets a clause of the federal constitution and a state supreme court may interpret an identical clause of its state constitution. But usually, different courts will interpret identitcal clauses similarly, reflecting the judicial community's conception of the right they protect. That's why I'm looking for bill of rights cases decided under state constitutions.

Incidentally, this is also where I run into a surprising dearth of sources. Amazon offers a flood of books about the federal constitution. By contrast, only few legal writers seem to find state constitutional law worth studying. And literature on 19th century state constitutional law is extremely hard to find.

I'm hoping I just haven't searched in the right places yet, and will strike gold once I've figured out where to look. Meanwhile, thanks again for your pointers so far!

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I don't know how state bills of rights were viewed in the nineteenth century. I know that, in the wake of the incorporation of the federal bill of rights into the fourteenth amendment, state bills of rights were almost completely ignored. That changed starting around the 1980s, when litigants started looking more frequently at state constitutions as a means of broadening the rights guaranteed by the federal constitution.

As for scholarship on state bills of rights, I don't know of any books that focus specifically on that topic (although it sounds very interesting -- somebody should write a book on it). Your best bet would be to look at general histories of American law. I can personally recommend Lawrence Friedman's History of American Law: it pays a good deal of attention to state law and jurisprudence, as opposed to other general histories that still focus on federal law and practice.

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joefromchicago wrote:

I don't know how state bills of rights were viewed in the nineteenth century.

Neither do I. But I think there must have been cases where, say, the governor who tried to harrass a politically inconvenient journalist, the journalist sued, and state courts had to decide such cases under their respective state constituion. Even without my libertarian paranoia against government, it seems clear that you can't have 50 states, a governor in each state every 5-10 years, and no governor who tries to pull such crap.

joefromchicago wrote:

(although it sounds very interesting -- somebody should write a book on it).

Eugen Volokh has researched the evolution of "right to bear arms" clauses in state constitutions. I found the result interesting. That's what got me started in the first place. It made me look for something similar about the other rights. I briefly considered doing the research myself. But then I calculated the size of the project and found it's probably a doctors thesis -- somebody else's, to be precise.

joefromchicago wrote:

I can personally recommend Lawrence Friedman's History of American Law: it pays a good deal of attention to state law and jurisprudence, as opposed to other general histories that still focus on federal law and practice.

I own that one already. Nothing about the bills of rights, though his treatment of the Massachusetts theocracy is quite fascinating, if brief. Do you have an opinion on Horwitz, whose book I don't own yet? I found his short book on the Warren Court is thoughtful and well-written, so I wouldn't be surprised if his heavier books are good too.

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I have read on the topic of "bills of rights" in the states; and although i well recall the source--a book on the history of jurisprudence in the United States--i unfortunately don't recall either the title or the author (this was about twenty years ago). The author contended that the extension to the states of the rights guaranteed to citizens in dealing with the Federal government only began in the late 19th century, and was a result of a slow but growing response of state legislatures to the provisions of the XIVth Amendment. According to that author, in the 1890s in particular, in response of a series of Federal rulings overturning State court decisions, legislatures in the States began to guarantee the civil rights of citizens, and to amend or re-write their own constitutions. The author seemed to think this were largely in emulation, but if that were so, i would wonder about the gap of more than twenty years between the ratification of the XIVth Amendment, and the broad activity of many States in their legislatures in the 1890s--it occurs to me that it might also have been derived from a desire not to have the decisions of State courts reviewed by the Federal Courts, and so the States acted to remove the objection of a lack of due process. I have never made a particular study of the development of jurisprudence in the United States, and can't therefore recommend any certain texts or authors.

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This site links the constitutions of the Several States; i've not gone into it closely, but you might find what you seek by reviewing it with a view to when constitutions were amended or re-written.

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Setanta wrote:

I have read on the topic of "bills of rights" in the states; and although i well recall the source--a book on the history of jurisprudence in the United States--i unfortunately don't recall either the title or the author (this was about twenty years ago). The author contended that the extension to the states of the rights guaranteed to citizens in dealing with the Federal government only began in the late 19th century, and was a result of a slow but growing response of state legislatures to the provisions of the XIVth Amendment.

Thanks Setanta. From your description, it sounds as if your source described how the federal Bill of Rights applied to the states. But independent of the federal constitution, the rights it contains were independently protected by the state consitutions. These independent protections were not introduced as a reaction to the 14th Amendment and the federal Supreme Court's interpretation of it. Most of them precede the 14th amendment, and some even precede the federal constitution itself. The Avalon project at Yale hosts the founding-era state constitutions, plus some of the later ones. It is clear that some of these contain Bills of Rights.

According to my somewhat hasty count, ten states had written constitutions when the federal constitution was drafted in 1787. Four of those already contained bills of rights: Maryland, Pennsylvania, Vermont, and Virginia. Five others don't contain one: Delaware, New Hampshire, Georgia, New York, and South Carolina. In between is the New Jersey constitution, which doesn't contain a full bill of rights, but does have a few articles that correspond to Amendments in the federal Bill of Rights.

So your source was probably referring to the specific provisions of the federal constitution, not to independent declarations of those rights in the state constitutions.

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Thomas wrote:

Thanks Setanta. From your description, it sounds as if your source described how the federal Bill of Rights applied to the states.

Not at all, and at the most, you could accuse me of having poorly expressed myself. The source to which i referred was writing about the amendment of state constitutions, or the adoption of new constitutions, primarily in the late 19th century, to effect the inclusion of bills of rights in state constitutions.

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In that case I'm afraid this source was wrong. You can check for yourself that there were bills of rights right smack in the middle of those four state constitutions, two of them Southern.

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By the way, your "hasty count" doesn't support a contention that there bills or rights commonly in state constitutions prior to the ratification of the XIVth Amendment, although there may have been. But at the time of the ratification of the XVIth amendment there were thirty five states, so references to a half-dozen which had bills of rights in 1787 is not conclusive evidence that States had commonly adopted bills of rights prior to 1868.

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Setanta wrote:

By the way, your "hasty count" doesn't support a contention that there bills or rights commonly in state constitutions prior to the ratification of the XIVth Amendment, although there may have been. But at the time of the ratification of the XVIth amendment there were thirty five states, so references to a half-dozen which had bills of rights in 1787 is not conclusive evidence that States had commonly adopted bills of rights prior to 1868.

Agreed -- but I don't really have time at this moment to find the 19th century version of 35 state constitutions.

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Update: Actually I did find the time. It was easier than I thought, because Volokh, in documenting the evolution of "right to bear arms" clauses, already finished my work for me. The new count is that bills of rights existed in 20 out of the 35 state constitutions when the Civil War started. On the assumption that every state constitution with a "right to bear arms" clause also has a bill of rights, that means that bills of rights were pretty common indeed even before the war. Here is the list of constitutions that contained "right to bear arms" clauses in 1860, so most probably had a bill of rights. (Note that 20 is a conservative estimate: There may well have been bills of rights without a right to bear arms clause.)

Alabama (1819), Arkansas (1836), Connecticut (1818), Florida (1838), Indiana (1816), Kansas (1859), Kentucky (1792, 1850), Maine (1819), Massachusetts (1780), Michigan (1835), Mississippi (1817), Missouri(1820), North Carolina (1776), Ohio (1802, 1851), Oregon (1857), Pennsyslvania (1776), Rhode Island (1842), Tennessee (1796), Texas (1836), Vermont (1777)

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Thomas wrote:

Do you have an opinion on Horwitz, whose book I don't own yet? I found his short book on the Warren Court is thoughtful and well-written, so I wouldn't be surprised if his heavier books are good too.

I haven't read Horwitz -- or, if I have, it has been so long ago that I don't remember -- so I can't offer an opinion on his work.

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Thomas wrote:

Here is the list of constitutions that contained "right to bear arms" clauses in 1860, so most probably had a bill of rights. (Note that 20 is a conservative estimate: There may well have been bills of rights without a right to bear arms clause.)

Alabama (1819), Arkansas (1836), Connecticut (1818), Florida (1838), Indiana (1816), Kansas (1859), Kentucky (1792, 1850), Maine (1819), Massachusetts (1780), Michigan (1835), Mississippi (1817), Missouri(1820), North Carolina (1776), Ohio (1802, 1851), Oregon (1857), Pennsyslvania (1776), Rhode Island (1842), Tennessee (1796), Texas (1836), Vermont (1777)

Some of those Southern states had reworked their RKBA provisions right after the civil war to keep blacks disarmed. Some reserved the right to only "free white men" etc. In 1867, Congress transmitted to these states the yet un-ratified proposed 14th Amendment. Included was a new mandate that for re-admittance to the Union, the rebel state's constitutions had to be in agreement with the federal Constitution and Bill of Rights. The non-complying states were forced to hold conventions to remove the racially restrictive language.

Doesn't that prove two things? The right is beyond any argument "individual" and the framers of the 14th intended the 2nd to be binding on the states (besides quoting the 2nd when introducing the proposed 14th amendment).

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fisherman_obx wrote:

Doesn't that prove two things? The right is beyond any argument "individual" and the framers of the 14th intended the 2nd to be binding on the states (besides quoting the 2nd when introducing the proposed 14th amendment).

Welcome to A2K, fisherman!

If the legal history is as you describe it, it would certainly be evidence in that direction. But my impression from reading historical sources so far is that evidence about the right to bear arms tends to be all over the place. So I wouldn't say your observation proves it.

Quite apart from this, I would prefer not to turn this into yet-another-2nd-amendment thread. We had lots of those before you arrived, and they have tended to produce more heat than light.

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Bill-of-Rights cases in the 19th century

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