This essay provides additional historical information and perspective to help counteract the roadblock that Justice Thomas faced. It uses graphics with Supreme Court text in white boxes and adjacent helpful information in shaded boxes to explain complex topics and sentence structures. This essay explains how Privileges and Immunities can, and should, be more powerful in protecting our freedoms than even the 1st and 2nd Amendments in the Bill of Rights. More details can be found in Appendix 1 which provides a formal list of Privileges and Immunities and their associated Supreme Court precedents, as well as Appendix 2 which shows a timeline of key Supreme Court precedents.
Analyzing the Constitution
The Constitution and older Supreme Court precedents have many semicolons that can make them difficult to read. According to Merriam-Webster, “Semicolons separate independent clauses that are related in meaning, and they separate items in a list when those items themselves are long or include commas.” The Supreme Court described interpreting the Constitution in United_States_v. Sprague(1931) and their explanation is shown in Figure 1.
The author has extensive experience with patents. There are many similarities between reading patents and reading our founding documents and old Supreme Court cases. The author has provided successful expert witness testimony regarding patent claims for multiple Federal Courts. Patent claims must be limited to one sentence, and can be very challenging to read. One of the claims that the author was asked to testify about was a single sentence with 256 words, 10 semicolons, and six commas. The following analysis will support an understanding of the power the Privileges and Immunities clause in protecting individual rights.
What are Privileges and Immunities?
The United States Constitution has a standalone clause that is referred to as the Privileges and Immunities Clause shown in Figure 2.
In a patent case, it is critical to look at prior art to determine the meaning of patent claims. Our nation was operating under the ‘prior art’ of the Articles of Confederation when the present United States Constitution was written. The Articles of Confederation created a confederacy called “The United States of America” which had a very weak federal government.
The first sentence of Article IV of the Articles of Confederation pertains to the privileges and immunities of citizens when traveling throughout the confederacy. It is broken down in Figure 3.
To allow safe travel to all other states for trade, political organizing, or personal reasons, the Privileges and Immunities provide a common set of rights to all citizens of the confederacy. The first additional right indicates that all citizens of the confederacy can freely enter and exit any other state. The second additional right encourages trade between the states by providing that out of state visitors will be subject to equivalent duties, impositions, and restrictions as in state inhabitants. The first explicit restriction on States would keep them from stopping you from leaving their state with the property that you brought into their state. The second explicit restriction on States says that States cannot tax or restrict United States property or the property of other States.
Why the strange language regarding Citizenship?
When the Articles of Confederation were signed in 1777, the nation was in the early stages of the Revolutionary War. Many people might not have wanted to be called “citizens” of this confederacy. If the British had won the war, “citizens” could have been imprisoned or executed. This explains the usage of “free citizens” and “free inhabitants” to include everyone who lived in a specific state. When the Constitution was written in 1787, the Revolutionary War had been over for six years. Anyone who chose to remain in our country were then called “citizens”.
A citizen can only be a citizen of a single state at one time. Therefore, “free citizens in the several states” can only refer to all of the citizens of the confederacy. A 1787 Virginian could have said “I am a citizen of Virginia, and a citizen of the confederacy of the United States of America”. They could have shortened this to “I am a citizen of Virginia and the 13 states”. The Northwest Ordinance(1787) had just passed which made new states likely. It would have been safer to say, “I am a citizen of Virginia and of the several states”. Any “citizen of the United States” could be referred to as a “citizen in the several States”; they are equivalent.
It would be illogical for a citizen of one state, who is visiting another state, to have more rights than the citizens of the state they are visiting. Therefore, Privileges and immunities must be fundamental rights of all citizens across the United States, including its territories. Two years after the Constitution was ratified, the Bill of Rights was enacted. Most of the Amendments in the Bill of Rights restrict the federal government from taking away the freedoms of citizens. The Privileges and Immunities directly protected the freedoms of citizens throughout the United States. The Bill of Rights and the Privileges and Immunities should be acting as partners.
The 10-90 Rule of Second-Hand Historical Knowledge
In the days prior to computers and the internet, knowledge was passed down primarily through books, written publications and verbally. Obvious Privileges and Immunities of citizenship would have been verbally communicated from elders to children. To highlight how far this can go, consider the following thought experiment: A child at the age of 10 should be able to learn the basics of American History and ask their elders questions about their elders’ memories and understandings. Some percentage of people will live to the age of 90. Using this “10-90 Rule”, there should be some living Americans today who learned directly from people who vividly remembered the horrors of the Civil War. As surprising as this may seem, a person born in 1851 would have been 10 when the Civil War started and should have had a good memory of those terrible times. If that person lived to 90, they would have passed away in 1941. If just prior to their death, they taught a young 10-year-old relative about their experiences, that relative would be 93 today.
In a court of law, there are a few exceptions where second-hand information is admissible. Using the “10-90” rule, second-hand information can be passed down verbally for over 160 years. In the short 72 years between the ratification of the Constitution and the start of the Civil War, this may help to explain why the Supreme Court did not create a formal list of obvious Privileges and Immunities of citizenship. The most comprehensive explanation of many Privileges and Immunities came in an attempt to justify keeping an entire race of people from obtaining these critical rights.
The Hidden Precedent
The precedent that Justice Thomas referenced in McDonald v. Chicago(2010) is in one of the most reviled and notorious1 decisions in the court’s history: Dred Scott v. Sanford(1857). The precedent is hidden and buried deep in the decision, but it provides the best definition of Privileges and Immunities that can be found in any Supreme Court decision. It will be shown that the justices who wanted to protect slavery were specifically worried about the Privileges and Immunities Clause. They realized that a correct application of this clause was a tremendous threat to slavery, and this greatly influenced their racist decision.
In 1857, slavery was tearing the nation apart. Half the states were slave states, and half the states were free states. The institution of slavery would have been in mortal danger if free ‘negros’ could be citizens. This would have allowed them to freely travel, assemble, and organize anti-slavery movements or rebellions in the slave states. Figure 4 shows and describes a list of rights that Chief Justice Taney worried ‘negros’ would obtain if they were citizens of any State.
These rights line up perfectly with the privileges and immunities definition in the Articles of Confederation. They would be necessary to safely travel to other states for trade, political organizing, or personal reasons. There are over 30 references to “privileges and immunities” in the Dred Scott decision. The only place where they were described was in the text analyzed in Figure 4. Democrat, and former slaveholder, Chief Justice Taney wrote the Opinion of the Court. He was a teenager when the Bill of Rights were ratified, and he had a lifetime of first-hand knowledge of the “privileges and immunities” of citizens of the United States. He knew the risk to slavery if ‘negros’ could be citizens with these “privileges and immunities”, and this explains the following sentences shown in Figure 5 that led up to the rights described in Figure 4.
A year after the Dred Scott decision, future Republican President Abraham Lincoln made the points shown in Figure 6 in his House Divided Speech(1858).
Both Chief Justice Taney and Abraham Lincoln agreed that a citizen of any state would be entitled to the “privileges and immunities” from the United States Constitution. There were no disagreements regarding the content of the described “privileges and immunities” in any of the Court’s Dred Scott opinions. Reflecting back on subsequent history, it took a brutal Civil War and the ratification of the 14th Amendment in 1868 to provide African Americans with these fundamental “privileges and immunities” of citizenship; at least constitutionally.
18 years after the Civil War, Justice Harlan2 in dissent in the Civil Rights Cases(1883) gave an excellent description as to the operation of federal Privileges and Immunities. Sections of his dissenting opinion are shown in Figure 7 and explain exactly the problem that drove Justice Taney to write the Dred Scott decision the way he did.
The 14th Amendment and New Privileges and Immunities
Section 1, Clause 2 of the 14th Amendment states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Theoretically, the Privileges and Immunities Clause already protected citizens throughout the country. With the granting of citizenship to all African Americans by the 14th Amendment, this additional clause automatically and forcefully incorporated the “privileges or immunities” of citizens of the United States against recalcitrant States. Changing to “privileges or immunities” allowed for just “privileges” or just “immunities” to be covered. For instance, in Crandall v. Nevada(1868), Justice Miller described a “privilege” that he later declared in the Slaughter-House Cases(1873) was a ‘Privilege and Immunity’. Appendix 1 shows a detailed list of the Privileges and Immunities of United States citizens.
The Slaughter-House Cases - Differentiating State from Federal Privileges and Immunities
In the Slaughter-House Cases(1873), Justice Miller’s opinion single handedly killed interest in the Privileges and Immunities Clause. He found that the privileges and immunities claimed by butchers in New Orleans, and the privileges and immunities claimed by oyster fishermen in the Appeals Court case of Corfield v. Coryell(1823) were only state level privileges and immunities and not covered by the United States Constitution or the 14th Amendment. He said national privileges and immunities must be rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws”. Figure 8 shows how Justice Miller specifically included Chief Justice Taney’s quote from “another case” which appears to be from the Passenger Cases(1849).
Justice Miller’s use of this quote directly supports the rights described in Dred Scott as being national “privileges and immunities”. The Slaughter-House Case reinforced the Dred Scott Privileges and Immunities. Appendix 2 shows the progression of the Supreme Court precedents regarding Privileges and Immunities through the Slaughter-House decision.
Justice Miller noted that the Supreme Court had not listed all of the Privileges and Immunities when he said: “we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.” One of the Privileges and Immunities that he described was the “privilege of a citizen of the United States to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.” A possible corollary Privilege and Immunity, that had no reason for description in 1873, might be: “The privilege of a citizen of the United States to demand the care and protection of Federal and State governments over their life, liberty and property from foreigners illegally in the United States.”
An Older Contorted Interpretation of the Privileges and Immunities Clause
Even though the Privileges and Immunities Clause is only 19 words long, Figure 9 shows two possible interpretations of the wording.
The following reasoning shows why Interpretation #1 must have been the original intent of the Privileges and Immunities Clause. Interpretation #2 was used to interpret some specific rights in older Supreme Court cases, but it is implausible for the following reasons:
- Interpretation #2 is not the normal meaning, as distinguished from a technical meaning (see Figure #1)
- If Interpretation #2 was the intent, it could have been more cleanly written as “The Citizens of each State, when visiting another State, shall be entitled to the Privileges and Immunities of the Citizens of that State therein”.
- Interpretation #2 implies that there are only State level Privileges and Immunities. This contradicts Justice Taney from the Passenger Cases and Dred Scott, Justice Miller in the Slaughter-House cases, and Justice Harlan in the Civil Rights cases. This is directly contradicted by the text of the 14th Amendment which refers to “privileges or immunities of citizens of the United States”.
- The entire Dred Scott decision, and Abraham Lincoln’s view regarding its purpose, would not have been necessary if Interpretation #2 was correct because ‘negros’ from other states could have been denied all of the described rights in the slave states since the slave states did not provide ‘negros’ these rights.
- Interpretation #2 hardly gives any new rights to anyone to “perpetuate mutual friendship and intercourse among the people of the different states”. If you were planning to travel through five states, you would have to know the Privileges and Immunities of each state. Any one state could entirely restrict how you traveled, what you brought, and how you expressed yourself.
Voting Rights protected as Privileges and Immunities
Prior to the 14th and 15th Amendments, voting was a limited right that was left up to the states3. The Slaughterhouse decision referenced the newly created Privilege and Immunity related to voting, and it was further explained in United States v. Reese 92 U.S. 231 amongst other decisions.
United States v. Reese (1876) 92 U.S. 231
“Evidence is entirely wanting to show that the authors of the Enforcement Act ever intended to abrogate any State election law, except so far as it denies or abridges the right of the citizen to vote on account of race, color, or previous condition of servitude. Every discrimination on that account is forbidden by the Fifteenth Amendment;”
Many years later, the 19th and 26th Amendments gave women and people over 18 the same protections. The combination of the 15th, 19th and 26th Amendments provide powerful Privileges and Immunities for American citizens to protect against discrimination through denial or abridgement of their voting rights due to race, sex or age. Figure 10 shows the similar structure of each of these Amendments.
Cruikshank vs. United States – Seeing the Forest for the Trees
The 1876 United States v. Cruikshank Supreme Court decision related to an awful slaughter of over 50 African Americans near Colfax, Louisiana by a group of whites. The circumstances, and the Supreme Court case are described in detail in “The Day Freedom Died” by Charles Lane4. It is easy for people who believe that Supreme Court decisions should correct every wrong in our country to argue that the Court should have ruled differently in the Cruikshank case. The reality is that the Supreme Court’s role is to interpret the laws passed by Congress based on the United States Constitution and prior court precedents. There were many deficiencies in the case that resulted in the Supreme Court’s decision and the ultimate release of the accused killers, including the fact that racism was not part of the indictments. A huge problem is that to have convicted the killers would have required that the Federal government take over local police powers which had always been left to the states. Since the founding of our republic, it has been the States’ responsibility to manage crimes between individuals such as murder, robbery, and false imprisonment.
What the Cruikshank decision did provide was further acknowledgement that the right to peaceably assemble and the right to bear arms both preceded the Constitution.
Cruikshank 92 U.S. 542 references to rights recognized elsewhere:
“The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. … It was not, therefore, a right granted to the people by
the Constitution.”
“The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
“The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States.”
The statements in the Cruikshank decision align perfectly with the fact that Privileges and Immunities were rights that preceded the Constitution, and they match the precedents from Scott v. Sanford and from Slaughterhouse. In addition, the Cruikshank decision made it perfectly clear that the right to peaceably assemble to petition Congress is fundamental and guaranteed by the United States.
Questions regarding the Application of Privileges and Immunities Today
Freedom of Assembly – Did State and Local COVID restrictions5 violate the Privileges and Immunities of all citizens to assemble described in Scott v. Sanford, Slaughterhouse, and Cruikshank?
Freedom of Speech – Did State restrictions regarding speaking about COVID vaccine efficacy and therapies violate the Privileges and Immunities of all citizens to exercise their full liberty to speak on all legal subjects? Do we need a federal Internet Civil Rights law to guarantee that private companies engaged in interstate commerce do not discriminate against users’ Privileges and Immunities to speak on all legal subjects, and not just approved positions?
Gun Rights – Do State and local gun laws violate6 the Privilege and Immunity of all United States citizens to enter every other State whenever your please, and to keep and carry arms wherever you go?
Redress of Grievances - The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, is a “super” Privilege and Immunity. As explained in Slaughterhouse and Cruikshank, it is guaranteed by the United States government. Did citizens from around this nation have this Privilege and Immunity violated by physically not being permitted to approach the United States Capital to let their voices be peacefully and patriotically heard on January 6, 2021? Were the alternate elector slates presented to Congress another example of the Privilege and Immunity to petition the government for a redress of grievances?
Voting Rights - When local or state jurisdictions allow non-citizen voting are they abridging the voting rights of all citizens in their jurisdiction? Since it would be statistically impossible to have the races, sexes and ages of the non-citizen voters match the citizen voters exactly, many citizens would also have their voting power abridged with respect to their sex, race and/or age by non-citizen voters.
Sanctuary Cities – Do Sanctuary states or cities violate citizens’ corollary Privilege and Immunity “to demand the care and protection of Federal and State governments over their life, liberty and property from foreigners illegally in the United States.”?
Conclusion
Resurrecting the Privileges and Immunities of American citizens could have a profound and positive impact on our nation. Unlike the Bill of Rights, Privileges and Immunities are automatically incorporated against the States by the 14th Amendment which makes them more powerful. The standing Supreme Court precedent from Scott v. Sanford provides an excellent starting point for the Supreme Court to reaffirm these fundamental American rights. It also provides a very unique opportunity. The Supreme Court can use a case that excluded rights from African Americans 167 years ago and turn it into a shield that protects the freedoms of all Americans today.
Brian holds bachelor’s and master’s degrees and graduated Phi Beta Kappa from the University of California, Berkeley. He has had a 40-year career in Silicon Valley, including many years as a corporate executive in public and private electronic companies. Brian has been granted three patents, and has provided critical and successful expert witness testimony in multiple Federal Court Patent Infringement cases. This article is written in memory of Brian’s Great-Great-Grandfather William B. Messenger of the 186th Ohio Infantry who fought to free the slaves and died in the Civil War. Brian can be contacted at [email protected]
[1] The Dred Scott case was so impactful that a summary would have been published in every major newspaper in the country. The case can be broken down into two parts: the first was a question as to whether a ‘Negro’ of African descent could ever become a citizen of either a State or the United States, and the second part analyzed the Constitutionality of the Missouri Compromise. In addition to the extremely racist determination that “Negros” could never be citizens of the United States, the Dred Scott decision was also faulted for judicial activism for deciding that the Missouri Compromise was un-Constitutional when that question did not need to be decided. On the 150th anniversary of the decision, Paul Finkelman published “Scott v. Sandford: The Court's Most Dreadful Case and How It Changed History” in the Chicago-Kent Law Review. Pages 27-47 of Finkelman’s paper describe the captivating intrigue and politics of the decision which included Democrat President James Buchanan’s knowledge of the decision prior to its announcement, and his unethical interference with the Supreme Court.
[2] “The Great Dissenter - The Story of John Marshall Harlan, America’s Judicial Hero”, Peter S. Canellos, 2021, Simon and Schuster, Inc. This book provides a history of Justice Harlan’s tenure on the court and how he stood alone in support of ideas that later became the norm.
[3] Minor v. Happersett 88 U.S. 162 (1875) This case evaluated whether the 14th Amendment granted women the right to vote (which the Supreme Court found it did not). In the decision, an extensive history of voting in the early parts of our republic is provided.
[4] “The Day Freedom Died – The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction” , Charles Lane, 2008, Henry Holt and Company, LLC. This provides a detailed analysis of the Colfax Massacre of April 13, 1873 and the Supreme Court decision in Cruikshank v. United States.
[5] One example is the fining of the Calvary Church in San Jose, California $2.3 Million for hosting in person church services during COVID.
[6] One example is California’s Assault Weapon ban which makes it illegal for people traveling for business or pleasure to carry lawful weapons from other states into California for protection or hunting purposes.
Prior to the 14th and 15th Amendments, voting was a limited right that was left up to the states3. The Slaughterhouse decision referenced the newly created Privilege and Immunity related to voting, and it was further explained in United States v. Reese 92 U.S. 231 amongst other decisions.
United States v. Reese (1876) 92 U.S. 231
“Evidence is entirely wanting to show that the authors of the Enforcement Act ever intended to abrogate any State election law, except so far as it denies or abridges the right of the citizen to vote on account of race, color, or previous condition of servitude. Every discrimination on that account is forbidden by the Fifteenth Amendment;”
Many years later, the 19th and 26th Amendments gave women and people over 18 the same protections. The combination of the 15th, 19th and 26th Amendments provide powerful Privileges and Immunities for American citizens to protect against discrimination through denial or abridgement of their voting rights due to race, sex or age. Figure 10 shows the similar structure of each of these Amendments.
Cruikshank vs. United States – Seeing the Forest for the Trees
The 1876 United States v. Cruikshank Supreme Court decision related to an awful slaughter of over 50 African Americans near Colfax, Louisiana by a group of whites. The circumstances, and the Supreme Court case are described in detail in “The Day Freedom Died” by Charles Lane4. It is easy for people who believe that Supreme Court decisions should correct every wrong in our country to argue that the Court should have ruled differently in the Cruikshank case. The reality is that the Supreme Court’s role is to interpret the laws passed by Congress based on the United States Constitution and prior court precedents. There were many deficiencies in the case that resulted in the Supreme Court’s decision and the ultimate release of the accused killers, including the fact that racism was not part of the indictments. A huge problem is that to have convicted the killers would have required that the Federal government take over local police powers which had always been left to the states. Since the founding of our republic, it has been the States’ responsibility to manage crimes between individuals such as murder, robbery, and false imprisonment.
What the Cruikshank decision did provide was further acknowledgement that the right to peaceably assemble and the right to bear arms both preceded the Constitution.
Cruikshank 92 U.S. 542 references to rights recognized elsewhere:
“The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. … It was not, therefore, a right granted to the people by
the Constitution.”
“The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
“The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States.”
The statements in the Cruikshank decision align perfectly with the fact that Privileges and Immunities were rights that preceded the Constitution, and they match the precedents from Scott v. Sanford and from Slaughterhouse. In addition, the Cruikshank decision made it perfectly clear that the right to peaceably assemble to petition Congress is fundamental and guaranteed by the United States.
Questions regarding the Application of Privileges and Immunities Today
Freedom of Assembly – Did State and Local COVID restrictions5 violate the Privileges and Immunities of all citizens to assemble described in Scott v. Sanford, Slaughterhouse, and Cruikshank?
Freedom of Speech – Did State restrictions regarding speaking about COVID vaccine efficacy and therapies violate the Privileges and Immunities of all citizens to exercise their full liberty to speak on all legal subjects? Do we need a federal Internet Civil Rights law to guarantee that private companies engaged in interstate commerce do not discriminate against users’ Privileges and Immunities to speak on all legal subjects, and not just approved positions?
Gun Rights – Do State and local gun laws violate6 the Privilege and Immunity of all United States citizens to enter every other State whenever your please, and to keep and carry arms wherever you go?
Redress of Grievances - The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, is a “super” Privilege and Immunity. As explained in Slaughterhouse and Cruikshank, it is guaranteed by the United States government. Did citizens from around this nation have this Privilege and Immunity violated by physically not being permitted to approach the United States Capital to let their voices be peacefully and patriotically heard on January 6, 2021? Were the alternate elector slates presented to Congress another example of the Privilege and Immunity to petition the government for a redress of grievances?
Voting Rights - When local or state jurisdictions allow non-citizen voting are they abridging the voting rights of all citizens in their jurisdiction? Since it would be statistically impossible to have the races, sexes and ages of the non-citizen voters match the citizen voters exactly, many citizens would also have their voting power abridged with respect to their sex, race and/or age by non-citizen voters.
Sanctuary Cities – Do Sanctuary states or cities violate citizens’ corollary Privilege and Immunity “to demand the care and protection of Federal and State governments over their life, liberty and property from foreigners illegally in the United States.”?
Conclusion
Resurrecting the Privileges and Immunities of American citizens could have a profound and positive impact on our nation. Unlike the Bill of Rights, Privileges and Immunities are automatically incorporated against the States by the 14th Amendment which makes them more powerful. The standing Supreme Court precedent from Scott v. Sanford provides an excellent starting point for the Supreme Court to reaffirm these fundamental American rights. It also provides a very unique opportunity. The Supreme Court can use a case that excluded rights from African Americans 167 years ago and turn it into a shield that protects the freedoms of all Americans today.
Brian holds bachelor’s and master’s degrees and graduated Phi Beta Kappa from the University of California, Berkeley. He has had a 40-year career in Silicon Valley, including many years as a corporate executive in public and private electronic companies. Brian has been granted three patents, and has provided critical and successful expert witness testimony in multiple Federal Court Patent Infringement cases. This article is written in memory of Brian’s Great-Great-Grandfather William B. Messenger of the 186th Ohio Infantry who fought to free the slaves and died in the Civil War. Brian can be contacted at [email protected]
[1] The Dred Scott case was so impactful that a summary would have been published in every major newspaper in the country. The case can be broken down into two parts: the first was a question as to whether a ‘Negro’ of African descent could ever become a citizen of either a State or the United States, and the second part analyzed the Constitutionality of the Missouri Compromise. In addition to the extremely racist determination that “Negros” could never be citizens of the United States, the Dred Scott decision was also faulted for judicial activism for deciding that the Missouri Compromise was un-Constitutional when that question did not need to be decided. On the 150th anniversary of the decision, Paul Finkelman published “Scott v. Sandford: The Court's Most Dreadful Case and How It Changed History” in the Chicago-Kent Law Review. Pages 27-47 of Finkelman’s paper describe the captivating intrigue and politics of the decision which included Democrat President James Buchanan’s knowledge of the decision prior to its announcement, and his unethical interference with the Supreme Court.
[2] “The Great Dissenter - The Story of John Marshall Harlan, America’s Judicial Hero”, Peter S. Canellos, 2021, Simon and Schuster, Inc. This book provides a history of Justice Harlan’s tenure on the court and how he stood alone in support of ideas that later became the norm.
[3] Minor v. Happersett 88 U.S. 162 (1875) This case evaluated whether the 14th Amendment granted women the right to vote (which the Supreme Court found it did not). In the decision, an extensive history of voting in the early parts of our republic is provided.
[4] “The Day Freedom Died – The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction” , Charles Lane, 2008, Henry Holt and Company, LLC. This provides a detailed analysis of the Colfax Massacre of April 13, 1873 and the Supreme Court decision in Cruikshank v. United States.
[5] One example is the fining of the Calvary Church in San Jose, California $2.3 Million for hosting in person church services during COVID.
[6] One example is California’s Assault Weapon ban which makes it illegal for people traveling for business or pleasure to carry lawful weapons from other states into California for protection or hunting purposes.