A life in the law.
JUSTICE SAMUEL FREEMAN MILLER WROTE 616 majority opinions for the Supreme Court, according to his biographer Michael A. Ross, but he is remembered almost exclusively for one of them: the Court's opinion in the Slaughterhouse Cases. In some ways this fact is fortunate for Ross, for it gives him an organizing center for his biography and allows him to avoid the grave danger faced by all biographers--the illusion that the life-line of their subject supplies them with enough focus that they need not worry about a theme or argument. Thus we have the familiar multi-volume biographies that normally tell us far more than we want to know about their subject--and far less as well.
Ross's biography of Justice Miller puts Slaughterhouse at the center and builds toward explaining that controversial decision. In addition, he seeks to correct the emphases of Miller's only previous full-scale biographer, Charles Fairman, who had identified Miller as an agrarian proto-populist, who was skeptical about Reconstruction (like Fairman himself) and acted to curb it. Ross disagrees with both claims and attempts to draw a different picture of Miller, one that accounts for Slaughterhouse without the premise of an anti-Reconstructionist bias, and roots his overall performance on the Court in a more adequate grasp of his life and political opinions. To a very large degree Ross succeeds. This is a very readable, thought-provoking study, which does indeed put Slaughterhouse and the rest of Miller's judicial output in new light.
But let us return to the beginning. Samuel Miller, born in 1816 in Kentucky, was appointed to the Supreme Court by Lincoln in 1862, the second of Lincoln's five court appointees. By that time he was living in Iowa and had a reputation as one of the leading Republican attorneys in the state. He served on the Court until 1890, outlasting all the other Lincoln appointees except Stephen Field, who at the time of his departure from the Court was the longest serving justice in the Court's history.
Miller's tenure was one of the most eventful in the Court's highly eventful history. Immediately upon taking office his Court faced a number of very important and politically charged cases involving war powers and other constitutional issues raised by the Civil War, particularly by Lincoln's actions as Commander-in-Chief. In these cases Miller was uniformly supportive of the Government position. When the war ended, Miller's Court faced a series of equally important and politically charged cases spawned by Reconstruction. Ross portrays Miller as a great supporter of the Republican efforts, Slaughterhouse notwithstanding. The latter, decided in 1873, was the first case to arise under the new 14th Amendment (1868). In it, Miller, writing for the majority, gave the Amendment a very restrictive reading, especially that part of it known as the privileges or immunities clause. In a sharply worded and analytically forceful dissenting opinion, Justice Field accused Miller of rendering nearly nugatory this important piece of constitutional legislation. Despite that critique, Miller's construal of the privileges or immunities clause has remained the standing law on the issue into the 21st century, representing Miller's longest-lasting contribution to American law.
FOLLOWING (AND PARTLY DURING) RECONSTRUCTION, Miller's Court faced a series of cases relating to property rights and the economy. The justices battled over the question of whether the Constitution, especially the 14th Amendment, stood as a barrier to efforts by various American governments to regulate the economy. The ultimate consequence of this series of cases was the doctrine of substantive due process, but that emerged in full form only after Miller left the Court. In the main, Miller supported efforts at regulation and control and resisted efforts to enlist the due process clause as a bulwark in favor of property.
Ross's book gives as good an answer as I have seen to the question, what can judicial biography add to our understanding of the Supreme Court and constitutional law? Court opinions are just the tips of various icebergs, one of which is the life and worldview of the justice(s) writing the opinions. With an exception or two I will detail below, Ross supplies an account that rings true for Miller.
Ross rejects Fairman's account of Miller as nascent agrarian radical; Miller, he points out, though born on a farm, had little sympathy with agriculture as a way of life, leaving it himself at the earliest opportunity. He instead became a member of the "learned professions," two of them to be exact, first studying and practicing medicine, then law. Ross explains the shift in career as due in part to Miller's becoming caught up in the gathering storm preceding the Civil War, while a physician in the small town of Barbourville, Kentucky. As a member of the local debating society and a rationalist who joined the Unitarians, Miller became interested in the slavery question, and by the mid-1840s he was committed to emancipation. Although he always sought to distance himself from abolitionists like Garrison, this shift in his interests and views had great consequences for his future; he changed careers and left Kentucky for the free state of Iowa.
As Ross presents him, Miller was a devotee of the "free labor" ideology, which drove him into opposition to the slave power, into support for Lincoln and the Free Soil Republicans, and, later on, into sharp opposition to corporate and financial interests, which he believed were out of harmony with free labor.
Miller was, according to Ross, a man of "shattered dreams," for he developed a belief in commercial development and technological progress, which turned to ashes in his mouth. The beginning of disillusion came soon after his move to the river town of Keokuk, Iowa. Like many Keokukians he saw a great future for his town, state, and region. He prospered as a lawyer and invested heavily in real estate. But the broader forces of technology and economy were against him and Keokuk. Many Iowa river towns, including his, foresaw great prosperity if they could have railroad networks knit together with river boat travel. To that end, they issued huge amounts of municipal bonds to help finance railroad construction. The result proved disastrous. The crash of 1857 cut deeply into the commerce that had been floating these towns, the Civil War closed off river traffic, and the railroads did not help but ultimately destroyed the towns' financial base. The coup de grace was delivered by the coming of railroad bridges over the Mississippi. With these bridges, the railroads no longer had to unload their cargo and passengers at a river town and ferry them across to a rail line on the other side.
With these developments, the hopes of river towns like Keokuk and entrepreneurs like Miller evaporated. But their debts did not. Miller very soon became involved in a series of legal moves by Keokuk and other towns intended to stave off the financial and commercial disaster they faced. They attempted to have the bridges removed as hazards to boat traffic; to have bonded debt declared illegal, as having been outside the legal power of the municipalities to issue; to renegotiate their debts on more favorable terms. For the most part, the courts and their creditors resisted all these efforts. Miller contracted at this time a strong antipathy to the financial and corporate-especially railroad--interests that he believed were predatory on the community and enemies to the common good.
This set of attitudes is identified by Ross as central to Miller's work on the Court. Their most obvious manifestations were in cases challenging the legality of municipal debt. Usually alone on the Court, Miller supported the municipalities, and in many of these cases wrote impassioned defenses of the common good against the interests of the propertied. But Ross also sees Miller's fundamental flee-labor convictions at work in his positive stance toward governmental war powers and congressional claims for power to reconstruct the Southern states. Ross sets the Slaughterhouse decision into this context, emphasizing far more than any other account of the case three factors. First, Miller had much personal experience with unsanitary and unhealthful conditions concomitant with the slaughtering business, for Keokuk had been a great center of hog slaughtering. Second, Ross emphasizes that the slaughterhouse regulations in question in the case were the product of the bi-racial Louisiana legislature, a creation of congressional reconstruction. The regulations, even though they were beneficial to the health of the residents of New Orleans, were resisted by the local whites because they were the product of a legislature whose legitimacy they refused to concede. Thus Ross brings out the way in which Miller's support for the regulation is pro-Reconstruction, and not, or not only, what it is usually taken to be, a nail in the coffin of Reconstruction. Finally, Ross locates the decision in the context of Miller's efforts to resist providing constitutional immunity to propertied interests against state and local legislation intended to promote the public good.
There is no doubt that Ross's account enriches our understanding of Slaughterhouse, Miller, and the Court of that era. Nonetheless, his account is not entirely satisfying. He fails to explore adequately Miller's attachment to traditional federalism, an attachment very visible not only in Slaughterhouse but in many other cases where Miller supported restrictive readings of the 14th Amendment. Ross knows in his heart of hearts that he has missed something, for he brings these other cases in as almost an afterthought--and with little serious analysis--and concedes that they do not simply fit the story he has told.
My second reservation about the book is the reverse of what I have identified as one of its great strengths. Ross proceeds on the legal-realist assumption that judicial action stems mostly from personal political ideologies and preferred policy outcomes. This assumption leads him to slight legal and constitutional analysis. A more serious consideration of the meaning of the 14th Amendment, of the relation between protection of property and constitutional principle, would make this a stronger book. As it stands, however, it is one of the more successful examples of judicial biography.
Michael P. Zuckert is Nancy Reeve Dreux Professor of Government and International Relations at Notre Dame University and author of Launching Liberalism: On Lockean Political Philosophy (University Press of Kansas).
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|Title Annotation:||Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era|
|Author:||Zuckert, Michael P.|
|Publication:||Claremont Review of Books|
|Article Type:||Book review|
|Date:||Jun 22, 2004|
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