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Extending Rights' ReachConstitutions, Private Law, and Judicial Power$

Jud Mathews

Print publication date: 2018

Print ISBN-13: 9780190682910

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780190682910.001.0001

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The American Constitution: First and Second Foundings

The American Constitution: First and Second Foundings

(p.91) 4 The American Constitution: First and Second Foundings
Extending Rights' Reach

Jud Mathews

Oxford University Press

Abstract and Keywords

Officially, the U.S. Supreme Court hews to a strong state action requirement and rejects the idea that constitutional rights can shape what private parties owe each other. To highlight some of the peculiarities of the state action doctrine, this chapter begins with a detailed discussion of a modern case, Brooks v. Flagg Brothers. Then, to understand the doctrine’s origins, the chapter turns to history. This chapter illuminates the political logic of the state action requirement at the time when the Court first imposed it, in the late nineteenth century. The chapter also highlights more flexible approaches to conceptualizing rights in the American tradition that were closed off with the choice for a strong state action rule.

Keywords:   United States, U.S. Supreme Court, state action, nineteenth century, constitutional rights


On June 13, 1973, Shirley Brooks, a widow and mother of three working as a nurse’s aide, was evicted from her apartment in Mount Vernon, New York. That same day, her belongings were moved into storage owned by Flagg Brothers, Inc. A few months later, she received a letter from Flagg Brothers informing her that she was delinquent in paying her storage charges and demanding payment within ten days to avoid a foreclosure sale. The company was, in fact, authorized by New York state law to sell her belongings in order to pay her bill. Provisions of the Uniform Commercial Code, as enacted into state law by New York’s legislature in 1962, grant a warehouseman a lien on stored property for the costs of storage and permit the warehouseman to enforce the lien by selling the property according to procedures specified by the statute.1

The following month, Brooks and co-plaintiff Gloria Jones filed a class action lawsuit in federal court, naming Flagg Brothers “and all others similarly situated” as defendants.2 The lawsuit claimed that the sale of stored property without a prior hearing violated due process rights, as guaranteed by the Fourteenth Amendment.

Following a loss in the trial court and a win in the appeals court, the case duly made its way to the U.S. Supreme Court, where it was argued on January 18, 1978.3 By a vote of five to three, the Court ruled that the plaintiff class had suffered no deprivation of constitutional rights, because the action they found (p.92) objectionable—the sale of their property without hearing—was undertaken by Flagg Brothers, a private company.4 Plaintiffs would have a claim, according to Justice Rehnquist’s opinion for the majority, only if “Flagg Brothers’ action may fairly be attributed to the State of New York.”5 It may not, according to Justice Rehnquist, because the power New York delegated to Flagg Brothers by statute—the power to resolve private disputes—was not a power “traditionally exclusively reserved to the State.”6 To the contrary, the Court countered that the “system of rights and remedies” embodied in New York’s statute “recogniz[es] the traditional place of private arrangements in ordering relationships in the commercial world, [and] can hardly be said to have delegated to Flagg Brothers an exclusive prerogative of the sovereign.”7 Nor was the State of New York itself directly involved with or encouraging Flagg Brothers’ decision to sell the property: it has “merely announced the circumstances in which its courts will not interfere with a private sale.”8 To hold that the sale of property could be attributed to New York merely because New York has “refused to act” (by proscribing or declining to honor a sale of property under the statute) would start us down the slippery slope to the total constitution: “all private deprivations of property would be converted into public acts whenever the State, for whatever reason, denies relief sought by the putative property owner.”9

Flagg Brothers is a suitable starting point for this chapter not because it is particularly important but because it is unexceptional. The decision points up some of the characteristic pathologies of the Supreme Court’s approach to managing the effect of rights. Famously, federal constitutional doctrine in the United States draws a sharp line in the sand: most constitutional rights offer individuals protection only against “state action.” As the Supreme Court put the point in Shelley v. Kraemer, “[t]he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States,” and the same holds for almost all provisions of the U.S. Constitution.10 The state action doctrine is equally famous for being a mess—a (p.93) “conceptual disaster area,” in the memorable phrase of Charles Black (1967, 95).11 In fact, colorfully heaping abuse on the state action doctrine has long been something of a pastime among constitutional law scholars.12

What is wrong with state action doctrine? The Flagg Brothers decision suggests some of the problems.13 At the outset, there is confusion about what exactly the target of the legal challenge is. The parties are bringing a challenge to the constitutionality of New York’s statute.14 But the Court makes the act of the warehouseman the focus on the constitutional analysis. Rather than asking whether what the state has done—namely, passing this statute—is consistent with the Constitution, the Court asks whether what the warehouseman has done can be treated as an act of the state.

On its own, the Court’s conclusion that Flagg Brothers is not acting as the state is eminently reasonable. But the question draws attention away from the inquiry that one might expect to lie at the heart of the Court’s analysis: whether the challenged provisions, enacted into law by New York’s legislature, are constitutional. Although it is a statute that permits the transfer of title from Brooks to Flagg Brothers, and passing a statute is clearly an action of the state, the state seems to keep slipping out of the frame in the majority’s analysis. Why is the state’s action so hard for the Court to see?

Justice Stevens picks up on this problem in his dissent. Stevens notes that the power to sell the stored property “derives solely from the State, and specifically from §7-210 of the New York Uniform Commercial Code.”15 Stevens teases (p.94) out the implications of the majority’s position that state action is not at issue because the state merely permits, but does not compel, the sale of property:

Under this approach . . . [a] state statute could authorize the warehouseman to retain all proceeds of the lien sale, even if they far exceeded the amount of the alleged debt; it could authorize finance companies to enter private homes to repossess merchandise; or indeed, it could authorize any person with sufficient physical power, to acquire and sell the property of his weaker neighbor. An attempt to challenge the validity of any such outrageous statute would be defeated by the reasoning the Court uses today: The Court’s rationale would characterize action pursuant to such a statute as purely private action, which the State permits but does not compel, in an area not exclusively reserved to the State.16

In a footnote, Justice Rehnquist counters that, while “the validity of property interests . . . depends on New York law, . . . [i]t would intolerably broaden . . . the notion of state action . . . to hold that the mere existence of a body of property law in a State, whether decisional or statutory, itself amounted to ‘state action’ even though no process or state officials were ever involved in enforcing that body of law.”17

Justice Rehnquist’s rejoinder is not responsive to Justice Stevens’s argument, in that it does not provide a basis for distinguishing between the outcome of the instant case and Stevens’s parade of horribles.18 But Justice Rehnquist’s reaction is revealing. Why would it be “intolerabl[e]” for every rule of decisional or statutory law to count as state action?

Suppose counterfactually that every rule of decisional or statutory law did count as state action. It does not follow that all actions, including those taken by private parties, that derive their legal effect from these rules must be treated as acts of the state. There is a conceptual difference between holding relevant state actors responsible for the content of the law and holding them responsible (p.95) for all the actions of nonstate actors that have legal effect.19 Some private choices made under the auspices of law may raise constitutional problems: it might be unconstitutional for state actors to permit or empower persons to use law to do certain things. When and whether this is the case amounts to a substantive question about what obligations constitutional rights impose on state actors.

This is the structure of the claim that the plaintiffs mounted in Flagg Brothers: Brooks argued that it is inconsistent with the requirements of due process for the legislature to permit warehousemen to take title to bailed property with no form of hearing. Other legal actions authorized by law may not raise meritorious constitutional claims. In every instance, assessing whether a given use of law comports with the Constitution will require a substantive legal judgment as to what, exactly, the implicated right requires of the state. So, for instance, a victory for Brooks would not automatically mean that it is unconstitutional for a homeowner to use the law of trespass to regulate admission to a dinner party at her home on a racially discriminatory basis (Chemerinsky 1985, 538). The cases may come out differently because they involve different rights and different facts.

With this point in mind, it is easier to understand Justice Rehnquist’s objection to Justice Stevens’s analysis and the work that state action doctrine does more broadly. The majority’s approach in Flagg Brothers permits the Court to sidestep difficult, substantive questions about how the Fourteenth Amendment constrains states’ ability to privatize dispute resolution. More generally, a substantial part of the functional value of American state action doctrine is precisely that it permits courts to avoid entertaining arguments and making judgments about what rights require of the state across a wide set of cases. The state action doctrine works as a constitution containment device that the Supreme Court can use to keep constitutional law within narrow banks, preempting many questions about what the government owes rights-holders and maintaining a sharp division between the domains of constitutional law and nonconstitutional law. The state action doctrine undergirds a particular model of judicial supremacy, in which constitutional rights have fixed content and the Supreme Court is the final authority on what that content is.

This chapter and the next trace how state action doctrine came to play this role in American constitutional law. I argue that modern state action doctrine, with all its peculiarities, was forged in two postwar constitutional settlements, the first after the Civil War, and the second after World War II. Litigation over the constitutional rights brought online by the amendments adopted during Reconstruction gave the Supreme Court its first real opportunity to articulate (p.96) a doctrine of horizontal effect. The Court was asked to give meaning to a new roster of rights that were not limited in their application to the national government. The idea that these rights could impact private law relations—more specifically, that the state’s failure to protect citizens against others could be legally actionable—had substantial currency at the time and resonated with antebellum ideas about rights and fundamental law. And a gap yawned conspicuously between the grossly inadequate protections the ordinary law provided to African Americans in the South and the principle of equality as embodied in the Fourteenth Amendment.

But the Supreme Court chose another path. As originally adopted in the 1883 Civil Rights Cases20 and refined subsequently, the state action rule committed the Court to something like a position of exclusive vertical effect. Only the acts of state organs that directly and adversely impacted the legal positions of others could trigger constitutional scrutiny. As applied by the Court for three generations, the state action rule meant that litigation between private parties would take place outside the auspices of constitutional law. It also meant that legislation adopted by Congress to enforce constitutional rights could regulate state actors only.

I argue that, in the context of post-Reconstruction politics, there was a strategic logic for the Court’s refusal to give horizontal effect to rights. The political compromise that resolved the disputed 1876 election rang down the curtain on Reconstruction for once and for all. The legislature and executive were united in abandoning the national commitment to combat racial inequalities in the political and civic life of the South. And for its part, even twenty years after its disastrous misstep in Dred Scott, the Supreme Court was still a weakened institution. The state action rule ensured that neither the Constitution, nor federal statutes to enforce constitutional rights, could reach most matters of state law. It also kept federal courts out of the business of supervising state law, since jurisdictional rules largely conditioned access to federal courts on the existence of a question of federal law.

In washing its hands of responsibility to supervise the private law’s conformity with equality rights (or with legislation to enforce those rights), the Supreme Court was, in a sense, capitulating to the reality of its own weakness. Lacking support from either Congress or the President, the judiciary was hardly in a position to vindicate broad equality rights in recalcitrant Southern states, even if it had wished to. If the last Reconstruction Congress had written a check it could not cash in the form of the Civil Rights Act of 1875, the Supreme Court voided the check in the Civil Rights Cases.

(p.97) The state action rule inaugurated a policy of constitutional containment, erecting a cordon sanitaire that kept constitutional rights out of the private law. Strikingly, the policy of constitutional containment, which emerged from the Court’s political weakness, in time became a foundation for institutional strength. The state action rule facilitated the Court’s construction of a new normative narrative that linked constitutional supremacy and judicial supremacy. The Supreme Court’s jurisprudence in the late nineteenth century reinforced the hierarchical relationship between constitutional law and ordinary law and stressed the Court’s role as the ultimate arbiter of constitutional meaning. In insisting on its exclusive authority to give content to constitutional rights, and in using that authority to define the scope of rights narrowly, the Supreme Court displaced a less court-centered, less univocal set of ideas in the American legal tradition about the character of legal obligation between government and governed.

The Supreme Court’s containment of rights and its assertion of interpretive primacy were mutually reinforcing. It is easier for a court to maintain an effective monopoly over constitutional interpretation when the scope of rights is limited and the border between constitutional and ordinary law is vigorously policed. For the U.S. Supreme Court, building and maintaining a virtual monopoly over constitutional interpretation was a key to its institutional strength, which redounded to the federal judiciary more broadly. The story of the state action doctrine is therefore part of the story of the institution-building of the Supreme Court and federal judiciary, although it has not figured in most accounts of this development.

This first postwar constitutional settlement held for more than sixty years. But in the years after the Second World War, the Supreme Court began to chafe under the limitations of the state action doctrine. As the Court inaugurated a newly activist rights jurisprudence, it permitted rights to be horizontally effective in a number of cases, without ever formally abandoning the idea that the Constitution does not bear on private law relationships, either directly or indirectly. In handing down these rulings, the Court could preserve the state action fiction only by engaging in considerable intellectual acrobatics.

The contrast between the Supreme Court’s state action jurisprudence following the Civil War and World War II furnishes material for a within-case comparison: Why did the Court turn to constitutional rights to fill normative gaps in ordinary law following the Second World War but not the Civil War? The difference, I argue, is that owing to a changed political landscape and a new judicial agenda, the Court in the latter period stood to benefit from the selective horizontal application of rights. The Supreme Court had begun to redefine its role substantially in the wake of its New Deal–era conflicts, abandoning an agenda centered around the protection of economic freedom for one emphasizing civil (p.98) rights and civil liberties. Carolene Products’ footnote four was the keynote for the Court’s new normative narrative, which emphasized its role as the protector of rights, paradigmatically the rights of minority groups vulnerable to abuse by local majorities.21 Civil rights cases played a huge part in defining the postwar judicial role. And crucially, the Court was not acting alone. Unlike in the 1880s, this time the civil rights agenda was undergirded by vigorous support from social movements and, increasingly, political support in the other branches of the national government. From the 1940s through the 1960s, the politics of civil rights took on an increasingly sectional cast, with the intransigence of the South putting it at odds with an emerging national consensus.

It was against this backdrop that the Supreme Court adopted a new jurisprudence that showcased its role as a rights-promoting court. For the first time, the Supreme Court permitted Congress to legislate against private (as well as public) discrimination under the banner of enforcing constitutional rights. Doing so required the Court to permit a level of interpretive pluralism that the Court had long resisted: to some degree, Congress got to say for itself what constitutional rights meant. But even so, there remained redoubts of private law not reached by the civil rights statutes, where state courts could continue to undercut these constitutional values. And these were the areas of law where the Supreme Court bent the rules of the state action doctrine, deploying constitutional rights horizontally to bring wayward states back into line. In making both of these moves, the Court demonstrated its unique contribution to American government. Without the Court, there could be no national response to racial discrimination under private law in the states. And without turning to constitutional rights, the Court could not address that discrimination. The Court’s moves were part of a new postwar constitutional settlement that placed the protection of rights at the heart of American constitutionalism.

It is in the civil rights and civil liberties context, during the postwar years—and the Warren Court years in particular—that the Supreme Court most nearly resembles Germany’s Federal Constitutional Court, both with respect to its horizontal application of rights and its tolerance for a measure of legislative constitutionalism. In the Supreme Court’s hands, horizontal rights could be potent: applying as entitlements that brooked no consideration of competing values; underwriting new causes of actions against private parties; overriding contrary provisions of law. But unlike in Germany, the Court gave no across-the-board green light for the horizontal application of rights, and there was no constitutional cascade. Instead, the Supreme Court relaxed the strictures of the state action rule on an ad hoc basis. As a matter of rhetoric, the Court’s answer (p.99) to the question “when are constitutional rights horizontally effective?” was still “never.” But in practice, the answer was, “when we say they are.”

If the Supreme Court’s state action jurisprudence is confusing on its own terms, it becomes more intelligible when viewed from a strategic perspective. The Supreme Court deviated from the state action rule when doing so furthered the substantive agenda that the Supreme Court had made its own, the agenda of civil rights and civil liberties. The next chapter demonstrates this point comparatively. Constitutionalizing family law, for instance, would not meaningfully advance any normative vision or strategic interest of the Court. And so, the Court did not constitutionalize family law to any significant extent. The Court brought constitutional rights to bear on libel law to the extent that it threatened civil libertarian values: when public figures brought suits that could chill debate on matters of public concern. The Court was less apt to disturb other private law regulations of speech. And the area nearest the heart of the Warren Court’s agenda, race discrimination, generated the most deviations from the state action rule. As the 1960s ended and the Court sloughed off its identity as a protector of rights first and foremost, it also retreated from its expansive state action jurisprudence.

The Supreme Court’s state action doctrine also needs to be understood in relation to two other bodies of constitutional law: Congress’s authority to legislate under the Commerce Clause and Congress’s enforcement powers under the Reconstruction Amendments. As disparate as these doctrines are, they overlap functionally insofar as they serve as vehicles for bringing constitutional values into private legal relationships governed by state law. In the 1960s, the Court did expand Congress’s enforcement power under the Reconstruction Amendments to uphold antidiscrimination statutes, including legislation addressing discrimination by private parties. In so doing, the Court gave Congress a freer hand to define for itself the practical meaning of constitutional guarantees. But the Court also allowed Congress to pass some of its most far-reaching equality legislation under the banner of regulating commerce, which altogether sidestepped tricky questions about the scope of rights. In the mid-twentieth century, the state action doctrine picked up the slack where there were regional gaps in the protection of favored constitutional values that were unreachable by federal legislation.

The Supreme Court’s ad hoc postwar renovations of state action doctrine had both costs and benefits. One cost was paid in coherence and predictability. The state action doctrine became “a conceptual disaster area” precisely because the Court refused to repudiate it even while reaching results incompatible with it. The Court pays some price in legitimacy when its jurisprudence is unintelligible, and perhaps a higher price still when it is intelligible only with reference to “political,” as opposed to “legal,” considerations.

(p.100) At the same time, this unpredictability bolstered the Supreme Court’s position as the ultimate expositor of the Constitution. By formally insisting on a state action requirement, the Supreme Court discouraged lower courts and other institutions from developing novel rights theories on their own. The Court alone enjoyed the latitude to stretch the Constitution’s reach. At other times, the state action doctrine provided the Court with cover, permitting it to avoid reaching difficult substantive questions about what rights required (as in Flagg Brothers).

Another consequence of state action doctrine registers in a sharp bifurcation between Big-C and small-c constitutionalism in the United States. When an issue has a Big-C Constitutional dimension, the courts’ involvement displaces normal politics entirely. At the same time, the Supreme Court is sidelined from many policy debates that have a small-c constitutional character (in that they speak to core national commitments), with the result that these policy projects are insulated from the language and solemnity of constitutionalism, except in an attenuated way. Certainly the domains of constitutional politics and ordinary politics are not totally self-contained and sealed off from each other in the United States (Ackerman 2007). But the notional divide between the two tends to hamper, rather than promote, meaningful interinstitutional dialogue over important issues of national concern. This sharp bifurcation is not necessarily a net negative, but it is a feature that distinguishes constitutionalism in the United States from its counterparts in other countries.

This chapter and the next are organized as follows. The next section describes the contents of the constitutional rights contained in the antebellum Constitution, in relation to the normative world of the common law. The following section explains the structure of federal court jurisdiction in the context of antebellum legal thought and the Supreme Court’s position during the Civil War years. The first section of Chapter Five picks up with the dramatic transformation in constitutional law wrought by the post–Civil War amendments to the Constitution and the Supreme Court’s original articulation of the state action doctrine in the wake of those changes. The remainder of the chapter details how the twentieth-century Supreme Court adapted state action doctrine to meet contemporary challenges in the areas of discrimination, freedom of expression, and family law, and considers broader impacts on lawmaking processes in these areas, before concluding.

American Constitutional Rights

Americans face a problem in thinking about our own constitutional history. We think that we know the Constitution that the delegates to the Philadelphia Convention signed in 1787 because the Constitution is a part of our civic culture (p.101) as Americans. Its signing is indelibly memorialized in Howard Chandler Christy’s iconic painting, with its tableau of framers arrayed across the canvas.

But our world is not the world of the framers. What the words of the Constitution—and the amendments shortly to be added to it—meant to them is not necessarily what they mean to us. Quentin Skinner warns of the danger “that the historian may conceptualize an argument in such a way that its alien elements are dissolved into an apparent but misleading familiarity” (Skinner 1969, 27). The danger is all the greater when the object of study already seems so familiar to us.

This section analyzes the character of constitutional rights in the antebellum American state, and the following section discusses the constitutional basis for judicial power and the relation of judicial power to federalism. In these sections, I emphasize two too-easily forgotten features of the American constitutional project. First, that it presupposed, and built upon, a robust common law heritage that already supplied important baseline legal norms, including, paradigmatically, for private law. The common law itself had something of a constitutional character, as it was understood to be fundamental law that formed the foundation for the whole legal order. Indeed, the dividing line between constitutional law and common law was not always drawn with precision in the early Republic.

Second, and relatedly, interpreting the Constitution was generally not understood to be the exclusive province of the judicial branch. Most antebellum officials subscribed to the departmentalist view that each branch of government possesses independent authority to interpret the Constitution (Kramer 2004, 201). In other words, if the Constitution was not regarded as the exclusive source of fundamental rights in the early republic, neither were the courts considered the exclusive arbiters of constitutional meaning. While the Supreme Court reserved for itself the authority to interpret the Constitution, and strike down laws as unconstitutional if necessary, the other branches insisted on the right to have their own constitutional interpretations. So for instance, when Andrew Jackson vetoed the charter extension for the Second Bank of the United States in 1832, he did so with a message explaining why he understood the Bank to be unconstitutional—notwithstanding the Supreme Court’s contrary opinion in McCulloch v. Maryland.22

These points are important to the argument I advance in the last section of this chapter and the first section of the next: when the Reconstruction Amendments brought important new rights online, there was ample support in the American constitutional tradition for a jurisprudence in which rights (p.102) could require affirmative acts from the states to regulate private-party relations, and Congress could play a role in defining their terms. I explain why, instead, the Supreme Court took a strictly vertical and court-centric approach to rights.

While the original text of the U.S. Constitution, as drafted by the delegates to the Philadelphia Convention during the summer of 1787, contained no charter of rights, it did provide guarantees against certain government abuses, including ex post facto laws, bills of attainder, and (except in cases of emergency) suspension of habeas corpus.23 But the absence of more explicit rights protections quickly became one of the key flashpoints in the effort to get the Constitution ratified. Though the Constitution’s promoters offered assurances that explicit rights protection was unnecessary, as the Constitution’s built-in limitations on the national government’s power preserved an ample sphere of freedom,24 several state ratifying conventions demanded amendments that explicitly added in rights.

The first Congress obliged, and James Madison drafted nineteen amendments, which were winnowed and edited in Congress to a slate of twelve. Two of these were not ratified by the requisite three-fourths of state legislatures, but those that were became the first ten amendments to the Constitution in 1791.

The Bill of Rights reads, to us, like the prototypical liberal charter of rights. All of the usual suspects seem to be here: freedom of speech, the press, assembly, and belief; protections of the person, home, and property against unreasonable searches, seizures, and treatment; rights to fair process in both criminal and civil matters. In addition, there appear some other elements less consonant with the liberal creed: the right to bear arms, and what appears to be a fetish for juries.

In fact, the original ten amendments are less familiar than they seem at first blush. First, as Akhil Amar has argued, the first amendments to the Constitution have at least as much to say about the structures and processes of government as about individual liberties (Amar 2000, 2012). The free press guarantee, for instance, was valued not least for its instrumental role as a check on government abuses that could be punished at the ballot box. And the insistence on juries and citizen militias both speak to ensuring public access to the levers of power through popular participation in the processes of government.

Some rights also speak to the vertical separation of powers between national and state governments. In declaring that Congress can make no law respecting an establishment of religion, the First Amendment leaves the states free to establish official churches without federal interference—which many of them (p.103) had done. Nor are the rights all individual rights. Juries and militias are groups of citizens acting together, and the First Amendment’s “right of the people peaceably to assemble” is a right explicitly granted to “the people” (Bhagwat 2010, 30–36; Primus 2007, 85–88).

And importantly, prior to Marbury v. Madison, it was by no means obvious that federal courts would be freely exercising a general power of judicial review, to test government actions for conformity with the Constitution.25 The Bill of Rights represented something more than, and also less than, a charter of rights as we understand the term: a set of justiciable, individual, defensive rights. (Indeed, the first time the Supreme Court used the term “Bill of Rights” to refer to the first ten amendments was in the Slaughterhouse Cases, after the Civil War.26)

Moreover, the rights guaranteed in the amendments were intended not to create new entitlements to government forbearance so much as to restate, and express commitment to, norms already in effect. In Akhil Amar’s words, Madison “generally endorsed clauses . . . that clarified limits that federalists had claimed were implicit in their plan all along, or that codified principles that were common practice among the states” (2012, 319). In asking Congress to adopt the amendments in his first inaugural address, George Washington urged Congress to enshrine “the characteristic rights of freemen” (Amar 2012, 318).

And importantly, the whole constitutional project played out against the backdrop of a common law that was understood to provide substantial protection for individuals’ basic rights (Chemerinsky 1985, 506). Prerevolutionary polemicists frequently invoked the English common law as the treasured heritage of the colonies, the repository of “the rights and liberties of Englishmen that were claimed as an indefeasible birthright” (Goebel 1964, 11) but denied by the actions of the Crown. “These appeals to the common law . . . created a regard for its virtues that seems almost mystical,” and this aura carried over into the early republic. Even before the Constitution was drafted, most states had already passed reception statutes that formally adopted the English common (p.104) law as providing the default rules of decision, subject to statutory alteration (Horwitz 1977, 4).

Indeed, the common law functioned in some respects as the constitutional law of the early republic.27 First, the common law was in an important sense the fundamental law of the country, predating the written Constitution. For legal theorists of the early nineteenth century, “constitutionalism was derived from and always secondary to an older body of law that remained the ‘national law’ of the Union and the individual states—‘the general law of the land’ ” (Novak 1996, 38).28 Furthermore, the common law defined individual rights—and not only “political” rights but “the more general ‘civil rights and obligations of the citizen’: ‘the relations between man and man’ ”(Novak 1996, 37).29

Although thinking about the nature of common law evolved in the early Republic,30 the common law remained a pervasive regulatory regime through the first half of the nineteenth century, through which courts—primarily state courts—provided the rules that a well-regulated society required. The common law functioned as the primary matrix within which individuals’ competing rights claims were asserted, assessed, and negotiated.

The law of nuisance, for instance, was the site where courts mediated between competing interests, both private and public, by adjudicating claims about the scope and limits of property rights. In the words of Horace Wood’s influential treatise on the law of nuisance, “every enjoyment by one of his own property, which violates the rights of another in an essential degree, is a nuisance, and actionable as such at the suit of the party injured thereby” (Wood 1875, 2). Nuisance law placed limits on personal liberty as well, and Wood’s treatise offers, among many others, keeping a disorderly house, calling together large and disorderly crowds, eavesdropping, and indecent exposure as examples of nuisances. The law of nuisance furnished a basis for the regulation of public health and public morals—indeed, it was “one of the most important regulatory (p.105) tools of the nineteenth-century American state” (Novak 1996, 44). The touchstone for the limits of individual rights in the law of nuisance was the maxim sic utere tuo ut alienum non laedas: use your own so as not to harm another. Nineteenth-century state courts proceeded under this banner to define the scope and limits of individual rights.

Moreover, Americans were not always punctilious about distinguishing between the written Constitution and the common law. The term “constitution” was often used in the founding era to refer to fundamental rights derived from natural law or English historical practice (Chemerinsky 1985, 514 n.50).

The quasi-constitutional character of the common law is also reflected in its relationship to legislation. According to the famous canon of statutory interpretation, statutes in derogation of the common law are to be construed narrowly (Novak 1996, 267 n.95). Accordingly, the common law acted as a kind of force field that shaped how legislation was received by courts.

Judicial Power and Federalism

The prominence of the common law in the founding period helps explain both the constitutional division of labor between federal and state courts, and state governments’ exemption from the rights contained in the first ten amendments.

The constitutional relationship between the jurisdiction of federal and state courts, as codified in Article III, mimics the structure of American federalism more generally: the national bodies, both legislative and judicial, have power over a narrowly defined set of subject matters, while their state counterparts operate under almost no subject matter restrictions—but valid acts of the national institutions trump the states. Article I, Section 8 confines the legislative competence of Congress to limited areas, but under Article VI, federal law is supreme over state law within those areas. Similarly, Article III, Section 2 provides that “[t]he judicial power [of the United States] shall extend to” nine different classes of “cases and controversies,” including cases arising under federal law and the Constitution, cases between citizens of different states, and controversies where the United States is a party. Rulings of federal courts trump state courts within those areas; state court rulings may be appealed to federal courts, but not the other way around.31

Critically, the Constitution left underdetermined the scope of federal judicial power in two respects. First, the Constitution itself only established one federal court: the Supreme Court. Article III, Section 1 declared that “[t]he Judicial Power of the United States, shall be vested in one Supreme Court, and in such (p.106) inferior courts as the Congress shall from time to time ordain and establish.” Because the Constitution granted the Supreme Court original jurisdiction only over the rare cases involving ambassadors and public ministers and those to which a state was a party, had Congress declined to “ordain and establish” federal trial courts, federal judicial power would be exercised exclusively by the Supreme Court, primarily on appeal from decisions by state courts. Second, while Article III made it constitutional for federal courts to exercise jurisdiction in the named classes of cases, it did not compel Congress to grant courts jurisdiction over all these cases. Indeed, Article III, Section 2 explicitly makes the Supreme Court’s appellate jurisdiction subject to “such exceptions, and under such regulations as the Congress shall make.”

In fact, the first Congress did establish lower federal courts, in the Judiciary Act of 1789: both trial courts (“district courts”) and intermediate “circuit” courts, which were to be staffed by a combination of Supreme Court Justices “riding circuit” and district court judges. But the first Congress did not vest the newly created courts with the full jurisdiction permissible under the Constitution, or anything close to it. The Act did grant federal trial courts diversity jurisdiction—original jurisdiction over actions where the parties are citizens of different states. However, the Act did not establish general federal question jurisdiction. In other words, a claim that raised a question under federal law was not, without more, a ticket into a federal court.

The 1789 Act did establish some islands of specialized federal question jurisdiction over certain kinds of cases, including federal felony cases.32 The Act also vested the Supreme Court with appellate jurisdiction over certain federal law rulings by states’ highest courts. Specifically, Section 25 gave the Supreme Court the power to review state court decisions (1) invalidating federal statutes, treaties, or actions; (2) upholding state statutes or acts against claims of violating federal law, the Constitution, or treaties; and (3) denying claims made under the Constitution or federal statutes, treaties, or commissions. At least in these critical contexts, when state courts limited federal power, expanded state power at the expense of federal claims, or limited rights under federal law, the 1789 Act gave a federal court jurisdiction to review. Outside of these circumstances, however, the 1789 Act contemplated that questions of federal law would be decided by state courts and not subject to review in any federal court.33 Moreover, the (p.107) Judiciary Act permitted cases subject to the concurrent jurisdiction of both state and federal courts, but actually filed by plaintiffs in state court, to be removed to federal court only in limited circumstances.34

The regime envisioned by the first Judiciary Act was thus one in which the tasks of interpreting federal law and the Constitution would be shared by state and federal courts, with the former doing the lion’s share of the work. Ironically to modern sensibilities, federal courts are valuable in this vision mostly for their role in deciding what we would consider questions of state law, as neutral fora for the resolution of diversity disputes.35 The 1789 Act equipped federal courts with limited levers for steering or coordinating state court interpretations of federal law and the Constitution. The Supreme Court could overturn state supreme court decisions that favored state law claims over federal law claims in the event of a conflict, but such conflicts and hence such decisions would be relatively rare, given the limited scope of federal legislation in the early republic.

Constitutional rights were also a potential source for federal judicial power, but only a weak one, since the Supreme Court held in Barron v. Baltimore that the constitutional rights contained in the first ten amendments do not apply against state governments.36 As Chief Justice Marshall explained, the amendments were adopted owing to concern that “those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought,”—that is, the powers of the national government—“might be exercised in a manner dangerous to liberty.”37 Accordingly, the amendments “demanded security against the apprehended encroachments of the General Government—not against those of the local governments.”38

The fact that state governments were largely exempted from constitutional rights review in federal courts was not regarded as a cause of concern in the early republic, and not only because state governments were considered to be closer to the people and therefore less of a threat to their liberty.39 It was also the case, (p.108) as Chief Justice Marshall observed, that the states were bound by state constitutions that predated the federal Constitution and restrained state power.40 And importantly, as discussed above, the common law was understood to provide substantial protection for individuals’ basic rights. The common law, with state courts as its stewards, offered the founding generation some assurance against gross abuses in the states.

Plainly, empowering federal courts to secure federal rights in the states was not a high priority for either the framers of the Constitution or the Congress that passed the 1789 Judiciary Act. Federal courts did perform a steering and coordinating function with respect to the law applied in the states, but they did so in large part through superintending the development of the common law. We see this in the 1842 case Swift v. Tyson, which illustrates the fundamental character of the common law as well as its implications for federalism and jurisdiction.41

The outcome in Swift turned on the enforceability of a note which had been endorsed to the plaintiff (Swift) in exchange for the cancellation of a debt. The note had been presented for payment and then dishonored in New York, and Swift brought his complaint in New York state court. Under the common law of contracts as applied in New York, such a note was unenforceable, because a preexisting debt did not count as consideration. Accordingly, Swift lost in the Court of New York and sought review in the U.S. Supreme Court on the basis of diversity: he was a citizen of Maine, and Tyson a citizen of New York.

The Supreme Court declined to follow the New York rule, notwithstanding the Rules of Decision Act, which instructed federal courts to apply “the laws of the several states” in diversity cases. Instead, the Supreme Court adopted the rule that it found to accord better with “the principles established in the general commercial law.”42 As Justice Story explained, the law of negotiable instruments was not the law of any one place; rather, it was law “of the commercial world.”43 The common law rulings handed down in New York courtrooms were not in any sense the law of New York; rather, they reflected the efforts of New York judges to apply law held in common. With respect to this body of law, “the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by (p.109) the principles of commercial law to govern the case.”44 In Swift, the general commercial law, and the common law more generally, is something bigger than state law: it is, in Justice Holmes’s derisive phrase from decades later, a “brooding omnipresence in the sky.”45

The Constitutional Politics of Reconstruction and the State Action Doctrine

The world of American law changed with the Civil War and Reconstruction. The war, emancipation, and the Reconstruction Amendments fundamentally altered what “the United States” meant, transforming the relation of the parts to the whole and the nature of the American enterprise of self-government. And the idea of rights was at the heart of this transformation.

There were different paths the Supreme Court could have taken in giving content to the new rights guaranteed against the states by the Reconstruction Amendments. The Court could have concluded that these rights, even if not directly binding on private parties, nonetheless did produce an effect on private‑party legal relations. The private law is maintained and enforced by the states, and the states are directly bound by rights: therefore, the states are bound to regulate the private law in a manner consistent with their rights obligations. Such an approach would amount to a version of indirect horizontal effect.

But this way of thinking about rights also resonates with antebellum American practice. The common law vision of the well-regulated society, in which the state is expected to intervene in private law orderings to mediate between the competing rights of different citizens, is congenial to it. What is more, this conception of the Reconstruction rights had substantial purchase when the amendments were still new. For a time, it was common ground between a majority in Congress and the Supreme Court that the states’ failure to provide protection against at least some forms of discrimination was actionable under the Fourteenth Amendment, as explained below. This approach to the Reconstruction Amendments would also justify, as legislation to enforce the amendments, federal statutes targeting private discrimination.

Ultimately, though, the Court took a different path, inaugurating the state action doctrine in the Civil Rights Cases. As declining support for the Reconstruction project from the other branches of government and the broader public made an expansive approach to constitutional rights untenable, the Court retrenched. Its decisions of the 1870s and 1880s delimited the scope of constitutional rights and (p.110) more sharply distinguished them from nonconstitutional rights. These elements of the Court’s postwar constitutional settlement both limited the relevance of constitutional rights in relations among nonstate actors and consolidated the Supreme Court’s own role as master of the Constitution’s meaning. This section analyzes the normative and strategic context in which the Court was operating in the years leading up to that decision, which is discussed in the following chapter.

The Postwar Legal Order

Three changes reshaped public law and federalism in the postwar legal order: the Reconstruction Amendments, enforcement legislation from Congress, and the expansion of the jurisdiction of federal courts. They are discussed in turn below.

Reconstruction Amendments

Not all provisions of the Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth—sounded in rights: Section 3 of the Fourteenth Amendment, for instance, bars former Confederates from serving in official capacities in the national government, subject to removal of the disability by Congress. But for the most part, the reconstruction of the three-point relationship between national government, state governments, and citizens was accomplished by means of rights. The Thirteenth Amendment declared that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” This established a right not to be enslaved that was truly erga omnes, binding by its terms not only against state and national governments but against individuals as well.

After establishing birthright citizenship, Section 1 of the Fourteenth Amendment went on to declare that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and to guarantee against the states rights of due process and the equal protection of the laws to all persons within their jurisdictions. Section 2 used the threat of reduced representation in Congress to induce states to secure the right to vote. The Fifteenth Amendment, ratified two years after the Fourteenth, afforded voting rights still stronger protection, flatly barring both states and national government from denying the right to vote “on account of race, color, or previous condition of servitude.”

And crucially, Congress did not leave these rights to judicial enforcement alone but made them the platform for a broader structural and institutional transformation. All three of the amendments contained enforcement clauses, authorizing Congress to enforce the substantive provisions “by appropriate legislation.” Congress thus reserved for itself a role in determining concretely what respecting (p.111) rights would mean in the states, giving it newfound powers to legislate for the states.

What exactly were the rights that the states were newly obliged to respect? In particular, what exactly were the “privileges and immunities of citizens of the United States” that were binding on states by virtue of the Fourteenth Amendment? This debate has roiled mightily for many decades, both on and off the Court.46 At the very least, it seems clear that the Privileges and Immunities Clause was understood at the time of its passage to encompass the individual rights textually guaranteed by the Constitution and its amendments, whatever else it might contain.

Another important question concerns the other rights innovation of the Fourteenth Amendment, the newly minted right to equal protection. The amendment declares that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” What obligations exactly does this impose on the state?

Pamela Brandwein has argued persuasively that the equal protection rights of the Fourteenth Amendment originally was understood not only to bar the states from treating persons differently on the basis of race but also to obligate the states to provide affirmative protection against certain kinds of discriminatory abuses initiated by private actors. According to Brandwein, the Reconstruction Congresses and the Supreme Court alike spoke a “lost language of state neglect.”47

For politicians and jurists with mainstream views (as opposed to Democrats on one side and radical Republicans on the other), the states were obligated to protect an important set of rights. More specifically, they must protect “those rights that a Republican consensus regarded as fundamental”: those “deemed essential for blacks to become ‘free laborers’ on terms equal with whites” (Brandwein 2006, 276). These were civil rights, but not social rights. There (p.112) were differences of opinion over which rights counted as fundamental (i.e., civil) rights: radical Republicans, for instance, would include rights of equal access to public accommodations, while most moderates would not.48 But the idea that rights imposed on the states some duty to protect was common ground. Moreover, state neglect created an opening for federal action, under the enforcement structure of the Fourteenth Amendment: “The state’s failure was a rights violation (‘state action’) within the meaning of the Fourteenth Amendment and Congress had the power to provide a remedy under Section 5 of that Amendment: the federal prosecution of individuals who remained unpunished” (Brandwein 2006, 276).

The state neglect concept was a “legal idiom . . . associated with nineteenth-century conceptions of rights and rights protections” (Brandwein 2006, 275). Indeed, the idea that the right to equal protection is more than a purely negative liberty—that is a right to be protected—fit comfortably with the open-textured and expansive antebellum conception of common law rights, as described above. Brandwein and other scholars have presented evidence that this understanding of the equal protection right was conventional early in Reconstruction.49 For instance, in correspondence over a case pending in circuit court in early 1871, Justice (and eventual author of the Civil Rights Cases) Joseph Bradley explained his understanding of the scope of equal protection to Judge (and future Justice) William Woods as follows: “Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect as well as the omission to pass laws for protection. . . .”50 Judge Woods reproduced Bradley’s language nearly verbatim in his opinion in the case.51

Enforcement Legislation

In the decade after the Civil War, Congress passed a string of statutes to combat persistent violence and discrimination against African Americans in the (p.113) South. When the Civil Rights Act of 1866 provided insufficient protection, Congress enacted the Enforcement Acts and the Ku Klux Klan Act, as well as the Fifteenth Amendment, between 1870 and 1871. Vigorous enforcement of the Ku Klux Klan Act did reduce violence against African Americans, at least for a time (Foner 2002, 458–59). But it also exhausted Congress’s appetite for Reconstruction.52 Many Republicans hoped that the legislative efforts of the 41st Congress, culminating with the Fifteenth Amendment, would be Reconstruction’s grand finale and justify them in washing their hands of the problems of African Americans. In the words of then-Congressman James A. Garfield, “The Fifteenth Amendment confers upon the African race the care of its own destiny. It places their fortunes in their own hands” (Foner 2002, 449).

By 1874 and 1875, violence and repression in the South were on the rise again, but this time, the federal government did not offer effective aid. As a new Democratic majority prepared to retake control of the House, the 43rd Congress did pass a final Civil Rights Act in 1875, but only “after bitter divisions among the Republicans themselves” (Kutler 1968, 159). By its terms, the 1875 Act was far-reaching. It declared, among other things, a right “to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement,” without regard to race or previous condition of servitude. The Act made violation a misdemeanor, punishable by fine and jail time, and also created a private right of action to sue in federal court for a $500 fine.

Federal Jurisdiction

Significantly, the same lame duck Congress also enacted the Jurisdiction and Removal Act of 1875. For the first time, this statute created general federal question jurisdiction: in other words, it gave federal trial courts original jurisdiction over all actions “arising under” federal law. Equally important, the Act provided for the removal of federal question actions to federal court. That is, a plaintiff could not defeat federal jurisdiction just by initiating an action in state court: the defendant could transfer the case to federal court. The statute (p.114) expanded on more modest efforts to expand the federal courts’ removal jurisdiction in 1866 and 1867 (Kutler 1968, 154).

The Jurisdiction and Removal Act ended the antebellum regime in which state courts played a lead role in applying federal law and elevated the federal courts in the American political economy. The 1875 statute and its predecessors represented “the greatest legislative expansion of jurisdiction since 1789” (Kutler 1968, 143). One significant driver behind Congress’s consolidation of federal judicial power was “the objective of making federal courts into agents of economic nationalism”: the parochialism of state courts was a threat to the growth of a national industrialized economy (Crowe 2007, 163). But coupled with the Civil Rights Act 1875, the jurisdictional reform had the effect of offloading responsibility for civil rights from Congress to the courts. With the restoration of “home rule” in the South following the disputed presidential election of 1876, the political branches’ abandonment of the Reconstruction project was official and complete. The only real option for aggrieved citizens was to bring their claims of rights violations directly to federal courts, which could provide judicial remedies. The courts alone were left to make good on the promise that all citizens would enjoy the rights of national citizenship and equal protection of the laws.

Reconstruction Politics and the Supreme Court

And when the Court addressed these developments in the law, it did so from a position of institutional weakness. Since the Civil War, the Supreme Court had found itself in an extraordinarily delicate position. To the Republican majorities in both houses of Congress and the Republican president who took office in 1861, the Taney Court, indelibly identified with Dred Scott, was deeply suspect. Abraham Lincoln set about remaking the Court, appointing five new Justices (including Chief Justice Salmon Chase) between 1862 and 1864. The Republican Congress expected the judicial branch, post-Taney, to be a faithful agent of Reconstruction: it was not at all inclined to tolerate the Court throwing up obstacles to its wartime or Reconstruction plans, nor did it feel obliged to make a great show of respecting judicial independence.

Congress launched one shot across the Court’s bow when it reduced the number of Justices from ten to seven in 1866, to prevent Andrew Jackson from making appointments, and a second when it stripped the Court of habeas corpus jurisdiction over military commissions in 1868, so as to deny the Court a chance to rule on the validity of the Reconstruction Acts. Meanwhile, Democrats looked to the Court as the guardian of the Constitution in the face of Republican overreaching. By repeatedly invoking the Constitution against Reconstruction policies, Democrats drew the Court straight into the white-hot political controversies of the day (Kutler 1968, 30).

(p.115) The Court picked its way through the minefield of Reconstruction politics with great care.53 The Court’s rulings from the 1870s and 1880s helped to inter the increasingly unpopular Reconstruction project by constricting the scope of the constitutional rights that freedmen could claim or that could justify civil rights legislation from Congress. In 1872’s Slaughterhouse Cases, the Court minimized the significance in the structural change in federal-state relations the Fourteenth Amendment had wrought and reduced the privileges and immunities of national citizenship to trivialities. The privileges and immunities guaranteed by the Fourteenth Amendment could not include fundamental civil rights, the Court reasoned, since that construction would “radically chang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”54

Four years later, in United States v. Cruikshank,55 the Court threw out convictions under the 1870 Enforcement Act of three participants in the notorious Colfax Massacre.56 The Enforcement Act made it unlawful for any persons to “band or conspire together . . . with intent to prevent or hinder [any citizen’s] free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States.” The Court held the Act could not reach the offenses charged against the defendants. In an opinion by Justice Bradley, the Court relied on the logic of the Slaughterhouse Cases and stressed the distinction between natural rights and constitutional rights to hold that none of the conduct alleged against the defendants, in fact, violated rights of the United States.57

(p.116) In short, then, already in the first decade after the end of the Civil War, the Supreme Court had done much to hollow out the protections offered by the new constitutional rights. It is against that backdrop that the Court would have the chance to decide in a few years’ time what those rights meant for private-party legal relations.


(1.) N.Y. U.C.C. §§ 7-209, 7-210.

(2.) The plaintiff class consisted of all persons with goods stored in New York state and subject to sale under the statute. Brooks v. Flagg Bros., 404 F. Supp. 1059, 1060 (S.D.N.Y. 1975).

(3.) Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

(4.) Justice Brennan did not take part in the case.

(5.) 436 U.S. at 152.

(6.) Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)).

(7.) Id. at 160.

(8.) Id. at 166.

(9.) Id. at 166, 165.

(10.) 334 U.S. 1, 13 (1948). Notably, the Thirteenth Amendment, which forbids slavery, is understood to bind all persons and not only the state.

(11.) A quick note about terminology. I use the phrase “state action rule” to refer to the idea that constitutional rights only offer protection against state action. “State action doctrine” refers to the broader body of law on the state action issue—the rule as elaborated by the courts, including its numerous exceptions, qualifications, and perplexities.

(12.) See Phillips (1984, 683) (recounting other scholars’ characterizations). Of the jibes directed at state action doctrine, my favorite is Paul Brest’s. Putting a positive and literary spin on things, Brest describes the doctrine’s “Whitmanesque capacity to encompass contradictions” (1982, 1330).

(13.) State action doctrine has different branches, each with characteristic difficulties. So, for instance, “public function” cases often raise knotty historical questions about whether a given activity now being performed by private actors is traditionally exclusively performed by the state, and “entanglement” cases set before courts the unenviable task of deciding whether a given quantum of state involvement suffices to subject nominally private decisions to constitutional scrutiny. I would argue, though, that state action doctrine is beset by deeper conceptual problems and that the taxonomy of cases into different branches of doctrine is itself often confusing and confused.

(14.) Brooks v. Flagg Bros., Inc., 404 F. Supp. 1059, 1061 (S.D.N.Y. 1975).

(15.) 436 U.S. at 169.

(16.) Id. at 170 (Stevens, J., dissenting) (internal quotation marks and citations omitted).

(17.) Id. at 160 n.10.

(18.) One difference between Stevens’s hypothetical and the Flagg Brothers case is that the former contemplates radical alternations to the common law rules of property law, throwing the state’s role in the reordering of things into sharper relief. Although the warehouseman’s right to sell stored property was not part of common law, the warehouseman’s lien on that property was, and the right to sell represents a fairly modest extension. The examples that Justice Stevens gives represent far greater departures from the common law rules. State action in Flagg Brothers is being assessed against a common law baseline that is never directly acknowledged.

(20.) 109 U.S. 3 (1883).

(21.) United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

(22.) 17 U.S. 316 (1819); see Brest et al. (2006, 74–77).

(23.) U.S. Const., art. I, sec. 9.

(24.) See, for instance, The Federalist No. 84 (Alexander Hamilton).

(25.) In an important article, Michael Treanor has argued that U.S. courts prior to Marbury exercised a power of judicial review far more often than typically appreciated (2005). Significantly, Treanor finds that courts generally used that power to overturn statutes only when separation of powers issues were implicated or when states trenched on federal powers. More broadly, Philip Hamburger has argued that what we call the power of judicial review was a necessary incident of the common law conception of the judicial role (2008). But what Hamburger describes is not identical to modern judicial review. Also, his book says little about how a written constitution might have altered that older conception (White 2010; Steinfeld 2010).

(26.) 83 U.S. 36, 109 (1872).

(27.) See Eskridge and Ferejohn (2010, 209) (“At the founding, America’s small ‘c’ constitution consisted, in large part, of state common law.”).

(28.) Novak is quoting Henry Baldwin and Peter Du Ponceau.

(29.) Here Novak quotes Francis Hilliard.

(30.) Morton Horwitz has argued that what the common law represented in the United States changed between the late eighteenth century and the early nineteenth century. Between 1780 and the 1820, Americans came to regard the common law less as the distillation of “natural principles of justice” and more as “an instrument of will,” justified by consent and social utility (Horwitz 1977, 7, 22). The common law was not frozen in time but continually adapting to meet evolving needs. James Wilson praised its “accommodating spirit,” which permitted it to “adjust itself to every grade and species of improvement by practice, commerce, observation, study, and refinement” (Novak 1996, 40).

(31.) See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816).

(32.) Judiciary Act of 1789, 1 Stat. 73, § 9. Federal district courts had exclusive jurisdiction over those matters and shared concurrent jurisdiction with state courts over others, including tort claims brought by aliens for violations of the law of nations or treaties.

(33.) Not counting a short-lived effort to expand federal question jurisdiction by the outgoing Federalist Congress in 1801, Congress would only establish general federal question jurisdiction with the Jurisdiction and Removal Act of 1875.

(34.) Judiciary Act of 1789, 1 Stat. 73, § 12.

(35.) It was not obvious to nineteenth-century lawyers that the common law was state law and not federal law; indeed, whether it was federal or state law was the subject of an important and long-running debate (Amar 2000, 147).

(36.) 32 U.S. 243 (1833).

(37.) Id. at 250.

(38.) Id.

(39.) State governments were not entirely exempted: Article I, Section 10 of the Constitution contains prohibitions against the states—for instance, a ban on ex post facto laws—that could be the basis for litigation.

(40.) 32 U.S. at 247.

(41.) 41 U.S. 1 (1842).

(42.) Id. at 18.

(43.) Id. at 19.

(44.) Id.

(45.) Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).

(46.) Notably, Akhil Amar has advanced an influential theory of “refined incorporation,” according to which the Fourteenth Amendment obliges the states to respect all those individual rights guaranteed against the federal government, as found within the first eight amendments of the Bill of Rights, as well as elsewhere in the Constitution, plus a set of unenumerated common-law rights understood to be fundamental, including those named in the antebellum case Corfield v. Coryell, which interpreted the “privileges and immunities” clause found in Article IV of the Constitution (Amar 2000, 177–78). More recently, Kurt Lash has further refined refined incorporation, by drawing a sharp distinction between the “privileges and immunities of citizens of the United States” (in the Fourteenth Amendment) and the “privileges and immunities of citizens in the several States” (in Article IV). Lash argues that the former excludes any unenumerated rights: the states are bound to respect the textually secured individual constitutional rights only (2014, 278). For a brief overview of the controversies, see Lash (2014, vii–xi).

(47.) For details, see Brandwein (2006, 287–93).

(48.) Richard Primus cautions modern scholars against taking too seriously the distinctions drawn between civil, social, and political rights in the Reconstruction period. Rather than reflecting a coherent and consistent typology, Primus argues that “particular rights moved about among the categories in a kind of constitutional shell game depending on whether legislators or judges wanted to confer those rights on blacks” (2007, 128).

(49.) In addition to Brandwein, see Frantz (1964). Brandwein’s scholarship is more easily reconciled with the Supreme Court’s jurisprudence than some other scholars’, because she emphasizes the distinction between fundamental civil rights, which the state is obligated to protect, and social rights, which the state is not obligated to protect. See Brandwein (2006, 285–86). For a dissenting view, see Benedict (1978, 45).

(51.) United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871) (No. 15,282).

(52.) Already by the late 1860s, political enthusiasm for the Reconstruction project had begun to fade. Even President Ulysses S. Grant’s 1868 campaign slogan, “Let Us Have Peace,” conveyed exhaustion with the years of sectional conflict, and his exceptionally mediocre cabinet seemed “oddly detached from the debates over Reconstruction” (Foner 2002, 445). A string of Democratic victories in Southern states between 1869 and 1871 and the rise of the Ku Klux Klan during those same years undermined many of the gains freedmen had made since Appomattox (Foner 2002, 423–43).

(53.) The Court avoided direct provocations whenever possible. The Court bowed to Congress’s jurisdiction-stripping in Ex parte McCardle, 74 U.S. 506 (1869), but framed Congress’s move as something less than a complete suspension of habeas (Kutler 1968, 104–08). On the other hand, the Court limited the conditions under which military commissions could be established and operate in Ex parte Milligan, 71 U.S. 2 (1866). In 1867 and 1868, the Court declined to pass on the constitutionality of Reconstruction, and in 1869, it upheld Reconstruction as a valid effort to enforce the constitutional guarantee of a republican form of government in each state. Mississippi v. Johnson, 71 U.S. 475 (1867); Georgia v. Stanton, 73 U.S. 50 (1868); Texas v. White, 74 U.S. 700 (1869).

(54.) Slaughterhouse Cases, 83 U.S. 36, 78 (1872).

(55.) 92 U.S. 542 (1876).

(56.) Following a dispute over local and state election results in 1872, a white paramilitary group numbering over three hundred attacked black supporters of the Republican candidate at the Grant Parish courthouse in Colfax, Louisiana, killing over one hundred.

(57.) As Pamela Brandwein has noted, the Court’s opinion did not decisively close the door on the idea that the right to equal protection might oblige the state to take steps to protect citizens against discrimination on the basis of race; the opinion suggests in places that the indictment was defective because it did not clearly allege that race was the basis for the abuses at Colfax. The circuit court opinion, also written by Justice Bradley, made this point more clearly (Brandwein 2006, 293–95).