This week, I continue with Fred Rodell’s, Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955. One of Rodell’s strongest points involves his assertion that the period between the end of the Civil War and the beginning of the First World War is probably the most neglected in U.S. Constitutional history. [1] The Court emerged from the Civil War a much-damaged institution. It took a long time for it to recover from the disaster of its decision in Dred Scott and the inevitable adjustments to a post-Civil War era, in which the Reconstructionist Congress claimed ascendancy over both the Presidency and the Court.
The Civil Rights Cases
There can be no doubt that the most significant outcomes of the Civil War were the Emancipation Proclamation and the 13th, 14th, and 15th Amendments to the Constitution. Of these three amendments, the 14th Amendment has generated the most litigation and Supreme Court decisions.[2] Superficially, one would think that interpreting the 14th Amendment would be pretty straightforward.
On April 9, 1868, three years after the War’s end and Lincoln’s death, the Fourteenth Amendment was ratified by the requisite number of states. Section 1 of this Amendment provides as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [3]
Superficially, the 14th Amendment seems to have a simple goal: to prevent the states from interfering with the rights to life, liberty, or property of former slaves. However, its effects went further. Congressman John Bingham of Ohio, the principal author of the first part of the 14th Amendment, sought to nationalize the Bill of Rights by making it binding on the states. When introducing the amendment, Senator Jacob Howard of Michigan clearly stated that the privileges and immunities clause would extend to the states “the personal rights guaranteed and secured by the first eight amendments.”
There is some debate over whether Congress, when passing the amendment, or the various states, when ratifying it, understood the law’s broader implications. For many years, the Supreme Court ruled that the amendment did not extend the Bill of Rights to the states.[4] Rodell sees in the adoption of the amendment the seeds of later misinterpretation, for he believes that property owners wanted to ensure that their property rights were not interfered with by State or National governments. This was the root of future problems and Constitutional errors by the Court.[5]
The Civil Rights Cases
Wars leave populations physically, mentally, morally, and emotionally drained. The Civil War was no exception. By 1865, the North achieved a significant victory. They had built a formidable army. But that army was mainly made up of civilian volunteers eager to return home to their families. The country lacked the stomach for a protracted guerrilla war, which many feared might erupt. Many of those who wanted to free the slaves did not necessarily want to make the former slaves equal, nor did they want to face the social pressures of a prolonged occupation of the South. The result was a brief period of radical Reconstruction followed by one of accommodation.
Following the Civil War, Congress enacted the Civil Rights Act of 1866. The law declared that citizens of all races or colors, regardless of their history of slavery or involuntary servitude, would have the same rights as any other American to make contracts, inherit property, sell, and transfer real estate, and enjoy equal protection under the law for their safety, just like white citizens.
President Andrew Johnson vetoed that law, which prompted Congress to pass the 14th Amendment. One purpose of the 14th Amendment was to explicitly state that former slaves were citizens with the same rights as all other citizens. These rights and protections had been outlined years earlier in a significant decision by Justice Bushrod Washington sitting as a Circuit Judge.
We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; . . . and an exemption from higher taxes or impositions than are paid by the other citizens of the state; . . . the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities.[6]
Substantive Due Process
The nation grew rapidly after the Civil War. At the outset, the nation was primarily agrarian, but the war spurred rapid industrialization that continued for the remainder of the 19th and well into the 20th century. At the time the 14th Amendment was passed, industrial interests sought to ensure that the record included testimony that corporations had civil rights. Eventually, as states enacted legislation to restrict corporate activities, industrial companies challenged the states’ right to regulate on the basis that such regulation deprived them of property without due process of law. The notion that certain property regulations deprived owners of due process was the original form of substantive due process, which has been viewed differently in the 20th and 21st centuries.[7]
Many justices from the 19th and early 20th centuries were lawyers heavily involved in representing railroads and their associated industries. Justice Miller, who disagreed with some of the court’s substantive due process actions, believed it was almost impossible to shift the perspectives of judges who entered the bench with set beliefs. These views were often formed through their legal work for the railroads.[8]
Ultimately, the development of substantive due process to safeguard property interests has been a complex and often controversial journey. I personally believe that many of the innovations from the 20th Century, where substantive due process was used to prevent regulations on activities that many states managed and that some citizens felt uncomfortable with, have also faced difficulties and disagreements.
The problem of judges arriving at court with “fixed opinions” has become even more serious as the professional and moral consensus that often transcends ideological disagreements has eroded. When law is only about who has power and who wins, justice is never served. Increasingly, we see the negative impact of judges whose ideological commitments blind them to deeper issues. This is one reason these blogs often emphasize the need for a transcendent commitment to justice.
Oliver Wendell Holmes
I’ve shared insights on Oliver Wendell Holmes’s life and philosophy before, but I can’t pass up the chance to highlight his significant influence on the Court, especially when it comes to due process and some parts of freedom of speech. Holmes was, in many ways, a kind of social Darwinist. His time in the Civil War shaped him into a resilient and tough individual. His sharp mind was evident in his clear, focused thinking and logical approach.
Nevertheless, he consistently argues against restrictions on the power of the state or federal government to regulate commerce under either the 5th or the 14th Amendment Due Process clauses. In one case, he spoke eloquently about the problem:
“If an act is within the powers specifically conferred upon Congress, it seems to me that it is not made any less constitutional because of the indirect effects that it may have…. Congress is given the power to regulate interstate commerce in unqualified terms…”[9]
It took time, and a great deal of political conflict, but by the end of the New Deal, the Court had ceased attempting to limit either state legislatures or Congress from regulating commerce for the public good. Today, many scholars believe that the situation has evolved beyond the framers’ original intentions, as Congress sometimes encroaches on areas that were once primarily the states’ domain.
In Patterson v. Colorado, a newspaper editor was convicted of contempt after printing articles and cartoons depicting members of the Colorado Supreme Court in a derogatory manner. [10] Writing for the majority, Holmes once again wrote that no First Amendment issues were at issue because the amendment limited only the actions of the national government. [11] Then, in Fox v. Washington, Holmes rejected Jay Fox’s claim that his First Amendment rights had been infringed upon in his misdemeanor conviction for printing an article, “The Nude and the Prudes,” in praise of nudity.[12]At that point, it seemed the Holmes “Hands off” judicial philosophy applied not just to property but also to other rights.
World War I gave rise to numerous significant legal cases in which the government sought to hold individuals accountable for seditious activities. In the case of Schenck v. United States, Holmes provided the majority opinion that supported the conviction of Charles Schenck, a socialist, who was charged under the Espionage Act of 1917 for trying to dissuade draftees from responding to their draft notices. [13] In Schenck, Holmes acknowledged that, in some instances, speech might be limited—particularly when it interferes with the government’s ability to assemble troops. He introduced the idea of the “clear and present danger test,” which helps decide when speech is not protected under the First Amendment. According to Holmes, such decisions should depend on whether the words used create an immediate and serious risk of harm that Congress has the right to prevent. These risks could include plots to overthrow the government, inciting riots, or causing harm to lives and property.
Then, in Abrams v. United States, Holmes broke with the majority and dissented when the Court upheld the convictions of five petitioners also charged under the Espionage Act of 1917. [14] In his dissent, Holmes stated that the principle of free speech remained the same during wartime as in peacetime; he reiterated his belief that congressional restraints on speech were permissible only when speech posed a “present danger of immediate evil or an intent to bring it about.” Holmes had begun to see the limits the Constitution might place on what Congress and administrations might do to restrict freedom of speech.
Finally, in 1927, the Court revisited sedition in Whitney v. California, a case that challenged California’s criminal anti-syndicalism law. The Court upheld the law and recognized that Charlotte Whitney, as a member of a Communist organization, was in a position to attempt to carry out seditious activities, not merely discuss them. Holmes agreed with Brandeis’s concurring opinion, often praised as a beautiful defense of free speech. He pointed out that the First Amendment didn’t protect Communist conspiracies because those involved had both the intention and the means to attempt to overthrow the government.[15] Whitney remains of continuing interest, as it suggests that groups intending to overthrow the government of the United States, or those funded by foreign nations or their designees, may not have unlimited First Amendment Rights.
Conclusion
This is where I’m ending my discussion of Nine Men. The book continues with Brown v. Board of Education, which I have previously covered in these blogs. Its discussion of the Depression years is strong and offers a clear explanation of Roosevelt’s court-packing plan and Charles Evans Hughes’s prudent conduct during that period. The book is sufficient for this discussion. I’ll revisit the First Amendment before I wrap up this series of blogs, as it reignited my passion for constitutional law. Next week, I’ll share an early case that highlights the impact of judicial overreach.
Ultimately, histories of the Supreme Court reveal that it has sometimes made serious mistakes. It has often been quick to cater to powerful special interests and overly supportive of existing factions, which can overshadow its duty to protect citizens’ rights. Additionally, as a product of the Enlightenment, the Court has sometimes lacked the humility needed to genuinely question its own beliefs and those of others.
Copyright 2026, G. Christopher Scruggs, All Rights Reserved
[1] Fred Rodell, Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955 (New York: Random House, 1955), 141.
[2] The Thirteenth Amendment provided that, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” [2] Its impact was to undo the Dred Scott decision granting property rights in slaves and nationalize the freedom granted to slaves by the Emancipation Proclamation. The 15thAmendment to the Constitution was added to the Constitution to clarify the voting rights of former slaves.
[3] Constitution of the United States of America, Amendment XIV (1868).
[4] National Archives, “14th Amendment to the U.S. Constitution: Civil Rights (1868)” https://www.archives.gov/milestone-documents/14th-amendment (downloaded September ).
[5] Nine Men, 149.
[6] Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3, 230) (CCED Pa. 1825). Bushrod Washington was the nephew of George Washington and his executor. He served as a highly regarded Associate Justice of the Supreme Court from 1798 to 1829. The quoted provision is one of the most important judicial statements in American history, which is why I have quoted it here.
[7] Substantive Due Process is the view that that the Due Process Clause of the 14th Amendment not only requires that the government respect fundamental procedural rights, but also protects basic substantive rights, such as the right to own and dispose of property without interference. In the 20th Century, it has been used to protect substantive personal rights, such as the right to procure an abortion. I intend to return to whether corporations should be deemed full persons and whether the late Warren Court and beyond abused the 14th Amendment to make substantive changes in the Constitution.
[8] Nine Men, 148,
[9] Id, 185.
[10] This portion of the blog is based on Elizabeth R. Purdy, “Oliver Wendell Holmes, Jr” at The Free Speech Center of Middle Tennessee State https://firstamendment.mtsu.edu/article/oliver-wendell-holmes-jr/ (downloaded January 6, 2026). See also, Patterson v. Colorado, 205 U.S. 454 (1907).
[11] This is an example of the refusal of the court to declare that the 14th Amendment made the requirements of the Bill of Rights applicable to the states, which was its intent.
[12] Fox v. Washington, 236 U.S. 273 (1915).
[13] Schenck v. United States 249 U.S. 47 (1919).
[14] Abrams v. United States, 250 U.S. 616 (1919).
[15] Whitney v. California 274 U.S. 357 (1927).