SUPREME COURT OPINIONS: The Waite Court (1874 - 1888)


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OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.
1876 Munn v. Illlinois, 94 U.S. 113
Opinion: Chief Justice Morrison R. Waite
Dissent: J. Stephen J. Field
Dissent: J. William Strong

OOOThe question of whether the state of Illinois could regulate the prices charged by Chicago grain elevators involved the Fourteenth Amendment's prohibition against the taking of property without due process or just compensation. Specifically, was such regulation a "taking".
OOOWaite, in delivering the opinion of the Court, said it was not, and cited as precedent a long list of statutes regulating certain types of business "clothed in the public interest". He wrote: "When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public, for the common good, as long as he maintains the use."
OOOIn dissent, Field wrote that no statute could make public what was private — "There is no magic in the language, though used by a constitutional convention, which can change a private business into a public one" — and that there was no more about a grain elevator that made it a public interest than there was about a tailor's shop or a blacksmith. While Field conceded the state had a right to regulate private property that was a nuissance — i.e., harmful to the public health or morals — grain elevators obviously did not fall within such a category.
OOOThe decision temporarily opened the door to wide government regulation of business.
1883 The Civil Rights Cases, 109 U.S. 3
Opinion: Justice Joseph P. Bradley, C.J. Waite, J. Field, J. Wood. J. Miller. J. Matthews, J. Gray, J. Blatchford
Dissent: J. John Marshall Harlan
OOOThe cases arose out of suits brought before the court by several African-Americans who had been denied equal accommodation: 2 in hotels, 2 in theaters, and 1 in a train. They brought suit under the Civil Rights Act of 1875, which made such denial illegal. The court ruled on the constitutionality of the Act and found it to be unconstitutional.
OOOThe Act sought its foundation in the 13th and 14th Amendments to the Constitution. Bradley, writing for the majority, arrived at two conclusions. First, that the bar against discrimination in the Act was not supported by the 13th amendment because mere discrimination was not tantamount to slavery or servitude. Second, that while section 5 of the 14th amendment gives Congress the right to enforce the provisions of the amendment, section 1 only refers to what states may not do. From that Bradley reasoned that while Congress might amend or abolish discriminatory state laws, it had no constitutional mandate to pass laws regulating the behavior of private individuals - a matter for the states alone - which is what the Act sought to do. The Act, having no constitutional foundation, was therefore void.
OOOIn dissent, Harlan, an ex-slaveowner and the Court's only Southerner, maintained that the Court had read the letter of the amendments, but had missed their spirit, which was certainly to create a strict equality between former slaves and former masters. Moreover, Harlan pointed out that the Court had had no difficulty with Congress' regulation of individual behavior with the Fugitive Slave Law of 1793 or the Fugitive Slave Act of 1850. It was only in granting ex-slaves equality that the Court drew back. He also pointed out that Congress at least had commerce power over the railroads; and finally, citing the Court's own conclusion in Munn v. Illinios, maintained that "inns" and "places of public amusement" were not solely private, but carried with them "a public interest" which made them subject to regulation.
OOOThe Court's decision opened the door to the institutionalized racism known as "Jim Crow". Not until 1965 would Congress pass a similar law protecting the rights of minorities to equal access and accommodation.

The Barbarous Decision of the United States Supreme Court..., Henry McNeal Turner (Documenting the American South,
|||o|||||University of North Carolina at Chapel Hill)
Remembering Jim Crow (American Radio Works)
Creation of the Jim Crow South (African-American History at About.com)
The Rise and Fall of Jim Crow (PBS)
1886 Boyd v United States, 116 U.S. 616
Opinion: Justice Joseph P. Bradley (the opinion as found did not include a list of those who joined Bradley)
Concurrence (in part): Justice Samuel F. Miller, C.J. Waite
OOOThe case arose as an action by the US Customs against Boyd for the nonpayment of duties on imported glass. As part of the action, Customs demanded that Boyd produce the invoice for the glass. Boyd refused on the ground that Cusoms' demand was a violation of his Fourth Amendment right against unreasonable search and seizure and his Fifth Amendment right against self-incrimination. The action came before the Supreme Court, and in a decision that many regard as the Court's first step toward recognizing a right of privacy, the Court found for Boyd.
OOOIn writing for the Court, Bradley first took up the government's contention that, since they had demanded that Boyd produce the invoice, the action did not constitute a search and seizure. He rejected this, pointing out that the government's threat to treat noncompliance by Boyd as a confession of the charges based on the invoices was a form of compulsion which amounted to search and seizure.
OOOBradley next pointed out the difference between the glass, which had been brought into the country illegally, and which the government therefore had a claim to, and the invoice, which was Boyd's legal, personal property, and to which the government had no claim. The government could seize the glass as contraband — as something Boyd could not legally possess — but not the invoice, his legal property.
OOOAs to the government's argument that they had a right to seize the invoice as evidence of a crime, Bradley invoked the Judiciary Act of 1789, which stipulated that Courts might compel parties to produce their papers, but only under the rules of chancery, i.e., only in civil actions, not in criminal actions where forfeiture of property or incarceration were threatened, as they were against Boyd. In effect, the Act made the government's demand an illegal search, in violation of the Fourth Amendment because the surrender of the invoice would also compel Boyd to incriminate himself, in violation of the Fifth Amendment. Bradley was explicit in pointing out the link between the two Amendments: "...the 'unreasonable searches and seizures' condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the fifth amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the fourth amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself."
OOOIn laying the foundation for his opinion, Bradley referred to a very famous 1765 case in which the English judge, Lord Camden, had written: "...our law has provided no paper-search in these [criminal] cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself, because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem that search for evidence is disallowed upon the same principle. Then, too, the innocent would be confounded with the guilty." Bradley's comment on Camden's judgment has come down as the Court's first statement on the right to privacy: "The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Canden's judgment."