From Magna Carta to the Montgomery March: common law and civil rights.
There are, I think, several similarities. First, both events took place in the countryside: not as a spontaneous eruption of anonymous crowds as in the cities, but among compatriots, gathering for a specific purpose in a chosen place. Second, both movements were led, or at least accompanied, by clergy. In the case of Magna Carta, there was Stephen Langton, the Archbishop of Canterbury, while the abortive voting rights march was led by Rev. Hosea Williams and the successful Montgomery March was led by Rev. Martin Luther King, Jr., thus suggesting a transcendental dimension to the rights claimed in both instances. Third, both involved the highest reaches of government. The king, of course, was at Runnymede. President Lyndon B. Johnson addressed Congress on the question of voting rights between the first march and the second, proposing what would become the Voting Rights Act of 1965.
Fourth, both Magna Carta and the Voting Rights Act began a century or more of legislation. Magna Carta was confirmed numerous times over the subsequent two hundred years. The Voting Rights Act has now been twice renewed, and the Supreme Court has singled it out for further attention. Looking at the struggle for voting rights as part of the larger Civil Rights Movement of the surrounding decade, it can fairly be said that the campaign for Magna Carta similarly intermingled civil and political rights, stressed equality before the law, and emphasized due process of law, that is, the importance of procedure and precision in legal proceedings. Finally, the politics of both Magna Carta and modern voting rights drew on well-developed traditions of resistance to unjust authority. In fact, both drew upon traditions linked to one another over a vast expanse of time.
In this essay, I will develop a few of these connections by discussing two intervening moments. The first is the American Revolution, particularly its key document, the Declaration of Independence. Second is Reconstmction and its grant of rights to those freed from slavery, and then the subsequent withdrawal of those rights, with the active complicity--if not encouragement--of the United States Supreme Court. The Revolution drew on the Magna Carta experience, which might be seen as a cause of its success. The modern Civil Rights Movement necessarily responded to the failure of Reconstmction, and the issue faced today is whether the "Second Reconstmction" (as modern civil rights have sometimes been called) has succeeded or might yet fail.
MAGNA CARTA AND THE DECLARATION OF INDEPENDENCE
The Declaration of Independence is famous for the ringing cadences of its first two paragraphs, and rightly so: the document has proven to anchor American unity, to define key elements of American identity, and to supply principles that have guided American social and political development. Abraham Lincoln referred to the Declaration's truth that "all men are created equal" as an apple of gold in a frame of silver, (1) and it served like a pilot star guiding his political action, as it would later do for the Civil Rights Movement. When men arose who renounced the value of the Union, they denied the Declaration's salient truth. (2)
Still, the success of the Declaration cannot be attributed solely to its abstract principles. What kind of equality in practice was mandated by men having been created equal? Would the truth, anchored by its authors in "the law of Nature and of Nature's God," change or lose its meaning if men's understanding of nature changed, or if they came to have doubts about the existence of a benevolent Creator? (3) Concerning the form of government the principle entails, the Declaration appears to be merely pragmatic: if it works to secure rights, keep it; if not, change it. Even constitutional monarchy seems permissible, for it is not said here (as it is in Thomas Paine's Common Sense) that kingship is an illegitimate form of government. Instead, it says only that the current occupant of the throne has proven himself "unfit to be the Ruler of a free People." (4) But the indeterminacy of the abstract principles assumes concrete meaning in the long middle section of the Declaration, where the "Facts ... submitted to a candid World" establish that the king has proven himself to be a tyrant, or at least aiming at tyranny, and thus made himself unworthy. (5) What are these facts? They are a series of violations by the king and Parliament of the unwritten constitution of British North America. To name them all here would be more tedious than pointless, but they include such offenses as destroying judicial independence, rendering the military power superior to the civil, quartering troops, forbidding trade, imposing taxes without representation, depriving the accused of trial by jury, abolishing local laws, and suspending colonial legislatures and waging war against them. (6) In every complaint there is implicitly a maxim of the English constitution, claimed by the colonists as their own, and every single one is guarded against in a subsequent provision of the United States Constitution of 1787 or in the Bill of Rights.
Unlike the Bill of Rights, the Declaration of Independence contains no close paraphrase of provisions of Magna Carta, but the influence of the latter on the former seems unmistakable. This is especially true of the bill of particular grievances. Magna Carta begins by reaffirming the freedom of the Church. While the Declaration is without such an analogous provision, the various invocations of the Deity in the document--"Nature's God," author of the laws of nature; the "Creator" that endows men with rights; the "Supreme Judge" to whom they appeal; the "divine Providence" on whom they rely--evidence a shared appeal to transcendent order and an emerging practice of religious liberty. (7) The mention in the Great Charter of the ancient liberties and customs of London and other cities indicates a tradition of local self-government that the Americans drew upon in the settlement and development of their colonies. Throughout Magna Carta, property rights and liberties of trade are reaffirmed against the threat of royal interference and seizure. Above all, in the famous thirty-ninth (and fortieth) chapters, lies the fount of Anglo-American due process:
No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the law of the land.--To none will we sell, to none will we deny, to none will we delay right or justice. (8)
Here one finds the principle of rule of law, of habeas corpus (no imprisonment without a trial), and of the nascent right to trial by jury. Most remarkably, the provision extends not only to the barons and any other privileged order, but to all "free men." This is a class that may not have included all Englishmen, but its reach was vast compared to most medieval documents. It is not yet the Declaration's universal principle, but it is easy to see, in retrospect, the link.
The concluding items of the original Magna Carta outline a process by which the barons might hold the king accountable in the future. While doubts exist among historians as to whether the process was ever used as designed, it is not hard to see, in retrospect, the seed of Parliament, which emerged over the subsequent century or two into something like its modern form. (9) It is important to note that Magna Carta does not distinguish, in a modern way, between civil and political rights any more than it distinguishes between rights and privileges. The Declaration of Independence makes something like this distinction in principle. Specifically, it distinguishes inalienable rights of individuals from the form of government established to secure them, treating the latter as a means toward securing the former as ends. (10) But in mingling the various rights and privileges inherited from the English constitution in its middle section, the Declaration follows Magna Carta rather than modern liberalism. This seems to be an important clue to the meaning of liberty in both documents: the rights of individuals are not secure unless there are political means to vindicate them, but also that the exercise of individual rights is incomplete unless men are politically free.
RECONSTRUCTION AND SAGA OF CIVIL RIGHTS
Fast-forward from the American Revolution to Reconstruction, the period occurring in the aftermath of the American Civil War. During Reconstruction, Congress passed a series of constitutional amendments and major acts of legislation designed to abolish slavery and its "badges and incidents," thus extending to the newly freed slaves the civil and political rights that had been won before the war by the white majority. (11) The first of these, of course, was the Thirteenth Amendment to the Constitution, which abolished slavery and involuntary servitude, and it gave Congress the "power to enforce this article by appropriate legislation." (12) Congress passed the amendment in January of 1865 before the war was over, and the states ratified the amendment before the year was out. (13) The following year, in response to legislation unfriendly to the freedmen in some of the Southern states, Congress passed the Civil Rights Act of 1866, extending to all American citizens, regardless of race or previous status, a federal guarantee of the basic rights to own and convey property, to make contracts, and to use the civil courts to vindicate property rights. (14) Doubts having arisen about the constitutionality of the Act--it was defended as appropriate under the enforcement clause of the Thirteenth Amendment (15)--Congress drafted and sent to the states the Fourteenth Amendment, the first section of which made clear as a constitutional matter that anyone born in the United States qualified as a citizen, that the rights of all persons (including a right to "due process of law") could not be denied by a state, and that the states were bound to provide all their citizens "the equal protection of the laws." (16) Still frustrated by the slow pace of reform in the South, Congress next extended to the freedmen the right to vote--following the argument made in the Jacksonian Era for universal suffrage that civil rights were not secure unless individuals could vindicate them at the ballot box (17)--again proposing a constitutional amendment, the Fifteenth, that was soon ratified by a sufficient number of states. Next came what is known as the Enforcement Acts, the third of which was also called the Ku Klux Klan Act, which made it a federal crime and a tort for state officials, or those acting under the color of law, to conspire to block the exercise of civil rights or the right to vote. (19) Finally, in the winter of 1875, the lame duck Congress passed the Civil Rights Act of 1875. This Act forbade discrimination on the basis of race in public carriers and in places of public accommodation.
In some respects, that legal framework began to come undone almost before it was completed: the Act of 1875 was passed after the Democrats won control of the House of Representatives in 1874, though before they took their seats in March of the following year. (21) None of the constitutional amendments, of course, were repealed, nor were any of the major acts of legislation. However, they were confined in their operation and, in one case, struck down as unconstitutional by the Supreme Court.
The first cases interpreting the Civil War Amendments were the Slaughter-House Cases decided in 1873. (22) While giving a ringing endorsement in dicta to the "one pervading purpose" of the Thirteenth, Fourteenth, and Fifteenth Amendments as the "freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him," (23) the Court in fact began a tradition of reading the amendments narrowly. In particular, the Court construed the Privileges and Immunities Clause of the Fourteenth Amendment to apply only to a limited number of federal privileges and denied that the amendments intended a fundamental restructuring of American federalism. (24)
While the Slaughter-House plaintiffs were whites trying to use the amendments to make a case against monopoly legislation passed by the Reconstruction legislature in Louisiana, (25) the mode of strict construction worked against blacks three years later in the case of United States v. Cruikshank. In Cruikshank, the Court dismissed a federal indictment of members of a white Louisiana mob that had killed blacks in a political assembly. (26) The Court read the Enforcement Act narrowly to prohibit only action by state officials while leaving in their hands the vindication of individual rights. (27) The following year, the last federal troops were withdrawn from the former states of the Confederacy, all of which by that time had elected "redeemer" governments dedicated to restoring white rule.
In three cases, the common law figured significantly: once vindicating the rights of the freedmen, and twice in dissents that disputed their confinement. The first case was Strauder v. West Virginia, decided together with Ex parte Virginia, in 1880. (28) In Strauder, the Supreme Court overturned the murder conviction of a West Virginia African-American on the ground that by a state law--found by the Court to be unconstitutional--blacks were excluded from sitting on juries. (29) Although the words of the Fourteenth Amendment are prohibitory, the Court inferred from them a positive right for African-Americans: "the right to exemption from unfriendly legislation against them distinctly as colored." (30) Justice Strong wrote:
The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. (31)
The Court did not say that the amendment stripped the states of all power over juries. In fact, the states could confine jury service to males, to freeholders, to citizens, or to people of a certain age or level of education. (32) Nor did the Court say that blacks must be tried before all-black juries, or even that blacks are entitled to at least one member of their race on their jury. Rather, the Court stated that blacks cannot be excluded categorically from the pool of jurors; no one is entitled to a particular jury, but a defendant is entitled to a jury that does not exclude his peers. (33)
In Ex parte Virginia, Strauder's companion case, the Court denied the habeas petition of a Virginia judge who had been arrested by federal officials for excluding blacks from juries in his court, in violation of the Civil Rights Act of 1875. (34) Key to the case was the Court's endorsement of Congress's enforcement power: the Fourteenth Amendment is said to be "to some extent declaratory of rights," and Congress is allowed to create a forceful remedy, authorizing the arrest and imprisonment without bail of a judge for excluding blacks from his jury pool. (35) Justice Field, joined by Justice Clifford, dissented in both cases, partly on grounds that the indictment against the Virginia judge was vague, but principally because Justice Field thought the Act was unconstitutional. Justice Field argued that the constituting of juries remained a state function--a matter of local concern--and Congress cannot supervise how state officials perform their functions. To allow otherwise, Field contended, would "destroy the independence and autonomy of the States," undermining here the usual role of a judge exercising discretion and judgment. While he conceded that the Fourteenth Amendment placed certain prohibitions on the states, he denied that it meant to destroy their central attributes, even citing the adage in Texas v. White that the United States is an "indestructible union composed of indestructible states." (38) Crucial to his argument was a distinction between civil rights and political rights and his treating the right to jury service as among the latter. Specifically, Justice Field thought that the Fourteenth Amendment conferred only civil rights, not political rights, and noted that the Fifteenth Amendment, conferring the undeniably political right to vote, was silent about jury service. (39)
Although Justice Bradley voted with the majority in Strauder and Ex parte Virginia, he struck down the equal accommodations provision of the Act when he authored the majority opinion in the Civil Rights Cases. (40) He formulated the doctrine of "state action" that is still adhered to in principle today, namely the view that because the Fourteenth Amendment by its terms says "No state ..." shall discriminate on the basis of race, Congress's enforcement power can be exercised only against the states and their officials, not against private individuals who discriminate in their places of business. (41) According to Justice Bradley, the actions of individual innkeepers and restaurateurs denying service to blacks cannot be made a federal offense. (42)
Justice Harlan wrote a magnificent (though solo) dissent in the case. (43) In fact, Justice Ginsburg has recently drawn attention to the story told by Justice Harlan's wife of his having procured Chief Justice Taney's inkwell and having deliberately used it when writing the dissent, as though indicating the way to reverse the effects of the disastrous legacy of Dred Scott v. Sandford. (44) In the first place, Justice Harlan argued, the Thirteenth Amendment's enforcement clause allowed Congress to reach the badges and incidents of slavery, of which race discrimination in the marketplace was a continuing reminder. (42) Congress's power to remove the legacy of slavery, he thought, ought to be at least as wide as was its power before the amendments to support slavery; if the power to pass a Fugitive Slave Act might be inferred from the provisions of Article Four, section two, clause three of the original Constitution, so the power to pass an equal accommodations act might be inferred from section one of the Fourteenth Amendment. (46) Concerning Justice Bradley's state action argument, Justice Harlan did not dispute the text's attention to the state, but rather widened the concept of what state action includes. (47) The common law of the states, he explained, supplemented in some cases by statutes, regulates the duties of common carriers--in general, for example, requiring them to carry all orderly customers who offer to pay the fare--as well as the duties of innkeepers, and most places of public amusement operate under a license from the state. (48) All are businesses "affected with a public interest," quoting a term the Court made central to its decision upholding state regulation in Munn v. Illinois, resonating, so to speak, with common law. (49) The Act of 1875, according to Justice Harlan's dissent, did not purport to replace the law of the states but only to forbid the invocation of race or color to abrogate ordinary common-law duties or civil rights. (50) Justice Harlan offered a robust account of civil freedom and civic equality, and of Congress's power to enforce rights: to "do for liberty ... what it did for ... slavery." (51) He denied that at issue in the case were social rights as opposed to legal ones; individuals and corporations in such businesses "wield power under State authority for the public benefit or the public convenience," so their actions are in some sense attributable to the state that authorizes them. (52) African Americans were not made the special favorite of the laws by the Act of 1875. Instead, it was made for persons of every race, ensuring they were not deprived of rights otherwise established or provided for in state law.
In the Civil Rights Cases, the Court struck down an act of Congress that attempted to prevent private discrimination of the sort the Court thought only state law might reach. In Plessy v. Ferguson, the Court upheld state legislation that required common carriers to discriminate on the basis of race and establish separate railway cars for blacks and whites. (53) The Justices wrote that "equal but separate" facilities do not violate the Equal Protection Clause, at least if the state can cite a reasonable police-power concern, such as public safety. (54) Justice Harlan's solitary dissent again made note of the common-law duties of common carriers and again rejected the majority's distinction between social and legal rights. (55) Social equality, he admitted, depended on the free choices of individuals, as well as on their individual accomplishments. (56) From this, it can be inferred that he would give the states no license to mandate attendance at each other's parties or clubs and would not deny states the ability to award privileges based on individual achievements. Drawing on the suggestion of Plessy's lawyer, Albion Tourgee, Justice Harlan added that, under the Civil War Amendments, the law must be "colorblind," that is, the law of the state must be administered without regard to the color of those to whom it is applied and thus cannot sort citizens on the basis of race. (57) 58 Justice Harlan concluded with the prediction--borne out--that the Court's opinion in Plessy would one day prove as notorious as its decision in Dred Scott. (58)
MODERN CIVIL RIGHTS
Fast-forward again to the modern era of civil rights. There were, of course, many steps and achievements associated with the Second Reconstruction, but I want to concentrate in concluding on three main highlights in the law: Brown v. Board of Education in 1954, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. In Brown, the Supreme Court began to undo the harm it had done in Plessy, not by adopting Justice Harlan's reasoning, but by relying upon current psychological evidence. As one wit put it, the Brown Court said of Plessy that it was not bad law, but bad social science. Moreover, the Court, after ordering re-argument to show the original intention of the Fourteenth Amendment, decided the clock had changed and the original understanding no longer mattered. (59) The Progressive and New Deal way of thinking about the role of government in the management of the economy meant that public education had become central to economic success, or at least to publicly-managed economic success, so that what civil rights had been to a person in the nineteenth century, access to public education now became in the twentieth. (60)
The landmark Civil Rights Act of 1964, which passed with bipartisan support against bipartisan opposition, restored and extended the equal accommodations regime that was promoted halfheartedly in 1875. This time, the Supreme Court upheld the Act, again not by reverting to Justice Harlan's opinion and reversing the Civil Rights Cases, but by grounding it upon the Commerce Clause, which had been construed quite expansively since the latter days of the New Deal. (61) Although some consider this rationale forced, time has vindicated the argumentation: for the dramatic economic growth of the "Sunbelt" in the decades that followed was only possible because the obstacle of segregation was removed and the economy of the country fully nationalized. Indeed, integration of African Americans into the national economy has been one of the most successful forms of integration to date; call it the "McDonald's effect," if you will, the market's answer to the lunch counter. Section
five of the Fourteenth Amendment remains under the state action doctrine, limiting Congress, for better or for worse.
And that brings us, finally, to the Voting Rights Act of 1965, which struck down various devices used in some of the Southern states to restrict black enfranchisement, sent federal registrars to those states to ensure that excluded populations could be safely enrolled, and subjected offending states to "preclearance" of any future changes they sought to make to their own election laws. This was precisely the sort of bold remedy to which Justice Field had objected but that the Court now upheld (at least as a temporary measure for a specified term). As with the Fifteenth Amendment, the provisions of which it sought finally and effectively to enforce, the practical argument in favor of a federal voting rights act was that in a democracy, civil rights would never be secure unless voting rights were established. Even a minority benefits from the right to vote in an extended republic, after all, since coalitions of interests are (at least in principle) open to adjustment and change, giving real leverage even to those who do not command majority status on their own. There is little doubt that the Act transformed politics in the Southern states and, thereby, in the country as a whole. Here too, issues concerning the extension of the franchise were tied to questions concerning the role of government; Martin Luther King, Jr., speaking in Montgomery at the conclusion of the famous march, predicted that change in voting rights would lead to change in the economic order. (62) He might have been correct, although the direction of change was the opposite of what he anticipated: towards a revival of market freedom, rather than more extensive state intervention, in a complex relation to the development of race relations both in the South and in the country as a whole.
The Civil Rights Movement, and the legal cases and legislation it promoted, removed the harm of Court-endorsed Jim Crow laws and thus cleared the Constitution of a shameful mark, a mark which appeared not in the text of the document, as had the compromises with slavery, but in judicial doctrine that betrayed, or at best narrowly confined, a liberating text. The Court changed its course without, in some instances, reversing its chief precedents--something that the jurisprudence of legal realism that emerged between the late nineteenth and early twentieth century enabled it to do. The change in the polity at large was less subtle. For the legislation of 1964 and 1965 was more clearly restorative, reintegrating civil rights and political rights, albeit with the help of innovative federal remedies.
Today, liberals fear that, since the successful recovery of civil rights in the middle of the twentieth century depended jurisprudentially on Progressive constitutional doctrines, civil rights will be endangered as Progressive doctrines wane; some even insist that, as a consequence, the Progressive doctrines may be sustained by invoking race, as if all racial progress is in jeopardy if the welfare state is diminished. By contrast, what friends of racial equality and personal freedom need to do is recover the common-law basis of civil rights as originally understood. This entails vigorous protection of property rights along with vigorous pursuit of the public good. Of course it is not enough simply to revert to the opinions of Justice Harlan (the ways of the world have indeed changed in many respects since his day), but his insights are nonetheless well worth our attention and further study. I do not mean to invoke "colorblindness" as a way of forgetting history, but rather to see how that metaphor squared with his rich understanding of liberty and equality in the heritage of common law--a heritage that Magna Carta symbolizes and embodies, even today.
James R. Stoner, Jr.
Louisiana State University
(1) Abraham Lincoln, Fragment on the Constitution and Union, in 4 The Collected Works of Abraham Lincoln, 168, 168-69 (Roy P. Basler ed., Rutgers Univ Press 1953).
(2) See Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates 313-15 (1959) (discussing Lincoln s quoting a speech by Senator John Pettit of Indiana calling the proclamation of equality in the Declaration "a self-evident lie"). See also Jeremy J. Tewell, A Self-Evident Lie: Southern Slavery and the Threat to American Freedom (Kent, OH: The Kent State University Press, 2013), who quotes Sen. Pettit's speech at pp. 23-24, identifies its date of delivery as February 20, 1854, and cites it as Congressional Globe, 33rd cong., 1st sess., appendix, 212-21.
(3) The Declaration of Independence para. 1 (U.S. 1776).
(4) Id. para. 29.
(5) Id. para. 2.
(6) See id. para. 3-28.
(7) Id. para. 1,2, 30.
(8) Richard Thomson, An Historical Essay on the Magna Carta of King John 83 (The Legal Classics Library 1982) (1829) (providing an English translation of the 1215 Magna Cart).
(9) See Matthew Strickland, Enforcers of Magna Carta (act. 1215-1216), Oxford Dictionary of National Biography,
http://www.oxforddnb.com/public/theme/93/93691.html (last visited March 29, 2015).
(10) The Declaration of Independence para. 2 (U.S. 1776).
(11) See Laura F. Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (2015). On the origin of the concept of "badges and incidents of slavery," see George Rutherglen, "The Badges of Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment," in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 163 (Alexander Tsesis ed., 2010).
(12) U.S. Const, amend. XIII.
(13) The Constitution: Amendments 11-27, The U.S. National Archives & Records Administration, http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html (last visited April 2, 2014).
(14) Civil Rights Act of 1866, 14 Stat. 27 (1866).
(15) See Hurd v. Hodge, 334 U.S. 24, 32-33 (1948).
(16) See U.S. Const, amend. XIV.
(17) See, e.g, Slaughter-House Cases, 83 U.S. 36, 71 (1873).
(18) The Constitution: Amendments 11-27, The U.S. National Archives & Records Administration, http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html (last visited April 2, 2014).
(19) Enforcement Act of 1870, 16 Stat. 140 (1870); Enforcement Act of 1871, 16 Stat. 433 (1871); Ku Klux Klan Act of 1871, 7 Stat. 13 (1871).
(20) Civil Rights Act of 1875, 18 Stat. 335 (1875).
(21) 43 Cong. Rec. 2,1870(1875).
(22) Slaughter-House Cases, 83 U.S. 36 (1873).
(23) Id. at 71.
(24) Id. at 74-80.
(25) See Ronald M. Labbe and Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (2003).
(26) United States v. Cruikshank, 92 U.S. 542 (1876).
(27) See id.
(28) Strauder v. West Virginia, 100 U.S. 303 (1880); Ex parte Virginia, 100 U.S. 339 (1880).
(29) Strauder, 100 U.S. at 308.
(30) Id. at 308.
(32) Id. at 310.
(33) Id. at 308.
(34) Ex parte Virginia, 100 U.S. 339, 340 (1880).
(35) Id, at 345.
(36) Id. at 358 (Field, J., dissenting).
(38) Texas v. White, 74 U.S. 700, 725 (1868).
(39) Ex parte Virginia, 100 U.S. 339, 363 (1880) (Field, J., dissenting).
(40) See The Civil Rights Cases, 109 U.S. 3 (1883).
(41) Id. at 17-18.
(43) Id. at 33-57.
(44) Ruth Bader Ginsburg, Foreword to Malvina Shanklin Harlan, Some Memories of a Long Life, 1854-1911, at vii (Modern Library 2002).
(45) The Civil Rights Cases, 109 U.S. 3, 35 (1883).
(46) Id. at 34.
(47) Id. at 37-43.
(49) Munn v. Illinois, 94 U.S. 113 (1877).
(50) The Civil Rights Cases, 109 U.S. 3, 33-57 (1883).
(51) Id. at 53.
(52) Id. at 59.
(53) Plessy v. Ferguson, 163 U.S. 537 (1896).
(54) Id. at 550-51.
(55) Id. at 557-58.
(56) Id. at 559.
(59) Brown v. Board of Education, 347 U.S. 483,492 (1954).
(60) Id. at 489-90, 492. That the clock might change again, making dependence on the state a liability rather than a privilege, seems to have occurred to none of the judges or their admirers for quite some time.
(61) Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
(62) Martin Luther King, Jr., Address at the Conclusion of the Selma to Montgomery March (Mar. 25, 1965), available at http://mlk kpp01.stanford.edu/index.php/encyclopedia/documentsentry/doc_address_at_the_ conclusion of selma march/.
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|Title Annotation:||Faulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery|
|Author:||Stoner, James R., Jr.|
|Publication:||Faulkner Law Review|
|Date:||Sep 22, 2014|
|Previous Article:||Legislated rights: from Magna Carta to Montgomery March.|
|Next Article:||The possibility of private rights and duties.|