The Judicial Bookshelf DONALD GRIER STEPHENSON JR. I. “The fourteenth and fifteenth amend ments are in this respect a novelty,” remarked James Bryce as he interrupted a closely reasoned passage about federalism in his late nineteenth century examination of political systems in the United States. In particular, he observed the absence in the Constitution, as it came from the hands of the framers, of restrictions on state governments to safe guard basic civil rights and liberties. “These omissions are significant. They show the framers of the Constitution had no wish to produce uniformity among the States in government or institutions, and little care to protect the citizens against abuses of State Power.”1 The Fourteenth Amendment became part of the Constitution 150 years ago, after Secretary of State William Seward issued a proclamation on July 18, 1868, certifying that the amendment which had successfully cleared the Senate (33-11) on June 8, 1866, and the House ofRepresentatives (120-32) on June 13, 1866, had been approved by the legislatures of the requisite number of states. Along with the Thirteenth (1865) and Fif teenth (1870), the Fourteenth remains the constitutional legacy ofthe Republic’s greatest domestic crisis. Its sesquicentennial remains a reminder not only of the events and circum stances that marked the beginnings ofprofound systemic change in the American polity but also an acknowledgementthat students ofAmerican constitutional history and the Supreme Court would find it difficult to comprehend the last century and a half without this particular addition to the Constitution. II. Samuel F. Miller was the first Justice appointed from a trans-Mississippi state. For him, “[t]he most cursory glance” at the Reconstruction amendments “discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning.” As he explained for the majority in the Slaughterhouse Cases,2 “the one pervading purpose found in [the amend ments], lying at the foundation of each, and without which none ofthem would have been even suggested [was] ... the freedom of the slave race, the security and firm establishment THE JUDICIAL BOOKSHELF 349 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.”3 Moreover, as Miller might have acknowl edged, slavery itself had hardly been a novel issue for the Court. The slavery jurisprudence of three members of the High Court is the focus of Supreme Injustice by legal historian Paul Finkelman, visiting professor at the Univer sity of Pittsburgh School of Law at the time the book was published and presently presi dent of Gratz College.4 Without question, Finkelman’s book is hard-hitting. It may even be unsettling for those who customarily view the Court principally as a guardian offreedom and human dignity. Others will find it an illustration of the contemporary rejection by some of the forebears now deemed morally unworthy of their descendants. The book is also benchmark scholarship that no subse quent writing on the nineteenth-century Court and its members can easily (or wisely) ignore. Given the transforming events that have occurred since 1865 in the United States, it may be difficult for present-day readers to comprehend the scope of slavery—what some euphemistically called the South’s “peculiar institution.” Finkelman reports that, during John Marshall’s time on the Court, slavery virtually disappeared in the northern states through state constitutional provisions and legislative enactments. It declined from some 37,000 in 1800, just before Marshall went on the Bench, to about 1,100 in 1840, five years after his death. In contrast, slavery became further entrenched in southern states, with numbers rising from 900,000 in 1800 to about 2,250,000 at the end ofMarshall’s life. Because slaves were a form of property where individual slaves were bought, sold, and traded, such numbers meant that enormous wealth in the South was embedded within the institution. That wealth in turn was linked to all aspects of the economy, society, culture, and politics. From study of the slave cases in which Chief Justice Marshall, Justice Joseph Story...