—to be continued…
ADDRESS (PART 2)
in next month’s issue of ARIZONA ATTORNEY MAGAZINE.
1. Abraham Lincoln letter to Horace Greeley, Aug. 22, 1862 at www.abrahamlincolnonline.org/lincoln/speeches/greeley.htm (last visited June 7,
2. See Michael P. O’Connor, Time Out of Mind: Our Collective Amnesia About the History of the Privileges or Immunities Clause, 93 KY. L.J. 659,
681-82 (2004-2005) and accompanying notes.
3. See generally GARRY WILLS, LINCOLN AT GETTYSBURG: THE WORDS THAT REMADE AMERICA (1992).
4. Lincoln’s Second Inaugural Address, available at http://avalon.law.yale.edu/19th_century/lincoln2.asp (last visited June 7, 2017).
5. But one example was the Black Code of Mississippi, styled as “An Act to Confer Civil Rights on Freedmen, and for other Purposes.” It read
Section 6. [A]ll contracts for labor made with freedmen, free negroes and mulattoes for a longer period than one month shall be in writing, and a
duplicate, attested and read to said freedman, free negro or mulatto by a beat, city or county officer, or two disinterested white peons of the county
in which the labor is to be performed, of which each party shall have one: and said contracts shall be taken and held as entire contracts, and if the
laborer shall quit the service of the employer before the expiration of his term of service, without good cause, he shall forfeit his wages for that year
up to the time of quitting.
Section 7. Every civil officer shall, and every person may, arrest and carry back to his or her legal employer any freedman, free negro, or mulatto who
shall have quit the service of his or her employer before the expiration of his or her term of service without good cause; and said officer and person
shall be entitled to receive for arresting and carrying back every deserting employee aforesaid the sum of five dollars, and ten cents per mile from the
place of arrest to the place of delivery; and the same shall be paid by the employer, and held as a set off for so much against the wages of said deserting
employee: Provided, that said arrested party, after being so returned, may appeal to the justice of the peace or member of the board of police of the
county, who, on notice to the alleged employer, shall try summarily whether said appellant is legally employed by the alleged employer, and has good
cause to quit said employer. Either party shall have the right of appeal to the county court, pending which the alleged deserter shall be remanded to
the alleged employer or otherwise disposed of, as shall be right and just; and the decision of the county court shall be final.
Quoted in O’Connor, supra note 2 at 685-86.
6. See generally O’Connor’s listing of various Black Code provisions in various states and his accompanying notes, supra note 2 at 685-95.
7. See O’Connor, supra note 2 at 663, noting “state-sanctioned slavery, abhorrent to many even in the late eighteenth century, was tolerably enshrined
in the Constitution as an expression of states’ rights.”
8. Leslie F. Goldstein, Civil Rights, Then and Now: The Birth and Rebirth of Civil Rights in America, 50 TULSA L. REV. 317 (2015). Reviewing GERARD
N. MAGLIOCCA, AMERICAN FOUNDING SON: JOHN BINGHAM AND THE INVENTION OF THE FOURTEENTH AMENDMENT 304 (2013). GEORGE A. RUTHER-
GLEN, CIVIL RIGHTS IN THE SHADOW OF SLAVERY: THE CONSTITUTION, COMMON LAW, AND THE CIVIL RIGHTS ACT OF 1866 224 (2012).
9. For a good general discussion of the 14th Amendment’s history and evolution see Chapters 27-31 in IRVING BRANT, THE BILL OF RIGHTS: ITS ORIGIN
AND MEANING (1965).
10. O’Connor, supra note 2 at 664-65.
11. See O’Connor, supra note 2 at 659 (regarding the 14th Amendment’s privileges and immunities clause’s intended broad scope using Freedmen’s
Bureau records and other legislation and court records contemporaneous with the 14th Amendment). See also Robert G. Natelson, The Original
Meaning of the Privileges and Immunities Clause, 43 GA. L. REV. 1117 (2009); David T. Hardy, Original Popular Understanding of the Fourteenth
Amendment as Reflected in the Print Media 1866–1868, 30 WHITTIER L. REV. 695 (2009); Christopher R. Green, The Original Sense of the (Equal)
Protection Clause: Pre-Enactment History, 19 GEO. MASON U. CIV. RTS. L.J. 1 (2008); Steven G. Calabresi & Sarah E. Agudo, Individual Rights
Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?
87 TEX. L. REV. 7 (2008). For arguments against the incorporation doctrine, see Charles Fairman, Does the Fourteenth Amendment Incorporate the
Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949); Stanley Morrison, Does the Fourteenth Amendment Incorporate the Bill
of Rights? The Judicial Interpretation, 2 STAN. L. REV. 140 (1949).
12. See discussion in O’Connor, supra note 2 at 699-700.
13. Dred Scott v. Sandford, 60 U.S. 919 (How.) 393, 407 (1856).
14. See discussions in Goldstein, supra note 8 at 322; and Edward White, The Origins of Civil Rights in America, 64 CASE W. RES. L. REV. 755, 775
15. Dred Scott, 60 U.S. ( 19 How.) at 393. See generally Louisa M. A. Heiny, Radical Abolitionist Influence on Federalism and the Fourteenth Amendment, 49 AM. J. LEGAL HIST. 180 (2007). See also Symposium, Dred Scott After 150 Years: A Grievous Wound Remembered, 17 WIDENER L. J. 1
(2007); Paul Finkleman, Was Dred Scott Correctly Decided? An “Expert Report” for the Defendant, 12 LEWIS & CLARK L. REV. 1219 (2008)
(arguing that under the Constitution at the time with its proslavery provisions Dred Scott was correctly decided).
For a good outline of Dred Scotts’s history and interpretations of it see David T. Hardy, Dred Scott, John San(D)Ford, and the Case for Collusion, 41
N. KY. L. REV. 37 (2014), who also argues the case was a collusive test case with agreed-upon facts, some of which the record did not support,
to have the issue before the Supreme Court.
16. White, supra note 14. For the argument the Department of Justice was a Reconstruction project for the protection of ex-slaves’ civil rights, see
Norman W. Spaulding, Independence and Experimentalism in the Department of Justice, 63 STAN. L. REV. 409, 438 (2011); Norman W. Spaulding,
Professional Independence in the Office of the Attorney General, 60 STAN. L. REV. 1931, 1937, 1959-60 (2008); and Seth P. Waxman, Twins at Birth:
Civil Rights and the Role of the Solicitor General, 75 IND. L.J. 1297, 1297, 1300-01 (2000). For a contrary view that the DOJ’s creation was actually
about the professionalization of American legal practice, see Jed Handelsman Shugerman, The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service, 66 STAN. L. REV. 121 (2014).
Both the 13th and 15th Amendments ended with the same
clause granting Congress the power to legislate. With this, the United States Supreme Court should have upheld the legislation.
It did not do so.