Freedom and the Court: Civil Rights and Liberties in the United States

By Henry J. Abraham | Go to book overview

II
The "Double Standard"

THE EVOLUTION OF THE DOUBLE STANDARD

THE EARLIEST LINES, drawn by the Marshall Court ( 1801-35), defined and strengthened the young nation, guarding the federal government against the state governments, and furthering its growth and ability to function. They were also drawn to protect the property interests of individuals. From 1836-64 Mr. Chief Justice Roger B. Taney's Court sought in part and in a variety of ways to redress the balance, as it saw it, in favor of the states, while continuing to defend the ownership of land and slaves. The disastrous Dred Scott1 decision bears lasting witness to their posture. The decisions of the next two rather undistinguished eras of Chief Justices Salmon P. Chase ( 1864- 74) and Morrison R. Waite ( 1874-88) were predominantly concerned with confirming state authority over individuals and federal authority over interstate commerce. In general they heralded the broadly proprietarian notions of the next five decades of Chief Justices Melvin W. Fuller ( 1888-1910), Edward D. White ( 1910-21), and William Howard Taft ( 1921-30).2 The chief concern of this long era was to guard the sanctity of property. Economic experimentation by the legislatures, such as minimum-wage, maximum-hour, and child-labor regulations, was regarded with almost unshakeable disapproval by a majority of the Court. Again and again the justices struck down, as unconstitutional violations of substantive due process of law, legislation that majorities on both the national and state levels deemed

____________________
1
Dred Scott v. Sandford, 19 Howard 393 ( 1857).
2
He was the only person ever to hold the offices of both President and Chief Justice of the United States.

-7-

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Freedom and the Court: Civil Rights and Liberties in the United States
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents ix
  • I - Introduction 3
  • II - The "Double Standard" 7
  • III - The Bill of Rights and Its Applicability to the States 26
  • IV - The Fascinating World of "Due Process of Law" 79
  • V - The Precious Freedom of Expression 124
  • VI - Religion 172
  • VII - Race: the American Dilemma 242
  • Appendix 313
  • Bibliographical Note 317
  • General Index 323
  • Index to Court Cases 331
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