Volume 106

The Rise and Fall of Transcendent Constitutionalism in the Civil War Era

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty.

After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the Justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.

Introduction

How did the Civil War transform American constitutionalism? Scholars have traditionally understood the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth) as creating a new constitutional order in the United States.1 1.There is a vast literature on the Reconstruction Amendments’ transformative effect on American constitutional law, including Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014); Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (1990); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992) [hereinafter Amar, Fourteenth Amendment]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]; Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801 (2010); Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235 (1984); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000); Mark A. Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112 Colum. L. Rev. 1501 (2012); Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855 (2007); Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L.J. 1509 (2007); Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012).Show More Michael McConnell pointed to the “extraordinary character of the change” wrought by the amendments,2 2.See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1159 (1992); see also Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115 (1994) (arguing that the retrenchment following Reconstruction should lead legal scholars to view the period as significantly less revolutionary).Show More and Bruce Ackerman maintained that the amendments signified nothing less than a national “re-founding.”3 3.2 Bruce Ackerman, We the People: Transformations 198 (1998); see also Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xix-xx (2019) (conceptualizing the Reconstruction amendments as a “second founding”); Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2045 (2003) (agreeing with Ackerman that Reconstruction constituted a re-founding in favor of national power).Show More While they disagree on the precise meaning of the amendments, scholars have tended to locate the source of revolutionary change in the act of adding the new amendments to the Constitution between 1865 and 1870.4 4.Scholarship that directly locates revolutionary change within the formal amendment process includes David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 154–87 (1996) (detailing the amendments to the Constitution) and John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994) (identifying formal amendments as the source of change in constitutional law). On the general importance of reliance on text in legal interpretation, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (new ed. 2018).Show More

Americans who had lived through the horrors of the Civil War had a different perspective—they considered the war itself to have altered the Constitution. For them, the war had been a world-churning, paradigm-shifting event. Civil War-era lawyers conceived of the post-war amendments as memorializing or ratifying a change that had already taken place through the brutal ordeal of war. The amendment process was their attempt to capture the war’s energy and to begin to spell out its meaning, but the words did not supply that energy. Nineteenth-century Americans identified the chaotic, bloody, unruly, and unfathomable experience of the war as the catalyst, the source of constitutional change. It ruptured their world and provided a transcendent source of lawmaking. In their view, the war’s scope and its ultimate significance were not quite within the realm of human control; God and forces of destiny directed the conflict more than they did. As they put their nation back together in the war’s aftermath, nineteenth-century Americans had to try to fathom its meaning.

This Article examines contemporaries’ understanding of the war as a supernatural force that remade the fundamental law of the nation, a phenomenon that I call “transcendent constitutionalism.” I employ the term “transcendent constitutionalism” for three distinct reasons. First, I focus on informal, unwritten changes to the Constitution, which stemmed from the extraordinary power of war rather than more ordinary methods of constitutional interpretation. Here I seek to broaden our conception of the non-formal means of constitutional change, which include the political process, grassroots social movements, and even mob violence.5 5.On various mechanisms of non-formal constitutional change, see generally Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) (detailing the interaction of legal and social factors in ending de jure segregation); Tomiko Brown-Nagin, Courage To Dissent: Atlanta and the Long History of the Civil Rights Movement (2011) (examining the role of local communities as agents of legal change within the civil rights movement); John Phillip Reid, In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution, 49 N.Y.U. L. Rev. 1043 (1974) (exploring the phenomenon of mob violence as an instrument of constitutional change in the Revolutionary period).Show More By including war within the ambit of constitutionalism, I intend to expand the scope of what we view as agents of constitutional transformation. Second, because I mean to describe the world as nineteenth-century Americans conceived of it, I have chosen not to rely on the phrases “unwritten constitutionalism” or “popular constitutionalism,” which invoke a modern view of how we understand history and extra-textual sources to have shaped our constitutional traditions.6 6.Scholars who have developed theories of how historical change shapes modern American constitutionalism include Ackerman, supra note 3; Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995); David A. Strauss, The Living Constitution 120–32 (2010); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) [hereinafter Strauss, Irrelevance]. A number of scholars have also examined unwritten constitutionalism’s intersection with the original understanding of the Constitution, including Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); Jed Rubenfeld, The New Unwritten Constitution, 51 Duke L.J. 289 (2001); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U. Ill. L. Rev. 1935.Show More Third, I also want to convey a sense of the otherworldly or the mystical in describing this mode of thinking.7 7.Cf. Mark A. Noll, The Civil War as a Theological Crisis (2006) (discussing the theological crisis that grew out of the American Civil War); George C. Rable, God’s Almost Chosen Peoples: A Religious History of the American Civil War (2010) (discussing Americans’ understanding of the religious forces at work during the Civil War).Show More Americans focused on the war itself as a source of lawmaking, and they also considered war to be a force that was outside of human control. They were unsure about whether it could be directed. This way of understanding constitutional change may sound unfamiliar, and because none of us has lived through the world-shattering experience of the Civil War, it is difficult to comprehend the turmoil the war’s survivors experienced.

The transcendent constitutionalism that followed Union victory in the Civil War caused a number of momentous shifts in the United States, but this Article will focus on one in particular: the change wrought to nationhood and federalism.8 8.The other huge, looming issue that seemed to be settled by the war was the end of slavery in the United States.Show More Federal structure necessarily intersected with other very important issues: the war’s impact on race and slavery, and the federal government’s relationship with the citizen, particularly in terms of the rights guaranteed to individuals as a matter of federal constitutional law. In the eyes of many legal thinkers, the war had altered the nature of sovereignty in the United States. For decades, Americans had wrangled over whether sovereignty was held primarily in the states, which could exit the federal arrangement at will, or whether the people as a whole were the constituent sovereign and had created an unbreakable Union at the Founding.

The Civil War’s survivors interpreted Northern victory as a triumph over the forces of secessionist disintegration. It functioned as a confirmation (or an establishment) of the basic integrity and existence of the United States as a nation.9 9.For a discussion of this basic assumption in the scholarly literature, see Cynthia Nicoletti, The American Civil War as a Trial by Battle, 28 Law & Hist. Rev. 71, 73–74 (2010) [hereinafter Nicoletti, Trial by Battle]. For a deeper analysis of how, precisely, the war established this maxim, see id. at 76 (arguing that “American jurists and other intellectuals adopted the language of the medieval legal custom of trial by battle” as a way of rationalizing the war’s determination of secession’s illegitimacy); Spaulding, supra note 3, at 2038, 2040–42 (arguing that the war itself functioned as a mechanism of legal adjudication); Strauss, Irrelevance, supra note 6, at 1482–85 (arguing that the Reconstruction Amendments did not alter the Constitution so much as societal change did). Strauss also discusses the war’s settlement of the permanence of the Union, although he notes that no formal amendment recognized this. Id. at 1486.Show More Former Confederate Congressman Clement Clay admitted to President Andrew Johnson that:

[T]he subordination of the States & supremacy of the General Government has been established in the Court of last resort—the field of battle . . . . The established theory now is, that the citizen owes his highest & first allegiance to the Genl. Govt. Such is the fact & none should dispute it.10 10.Letter from Clement C. Clay, Jr., to Andrew Johnson (Nov. 23, 1865), in 9 Papers of Andrew Johnson 420, 421 (Paul H. Bergeron ed., 1991).Show More

The war’s energy was, however, a double-edged sword. It could forge a nation out of a number of disparate parts, but it could also, as many American lawyers feared, destroy federalism in the process, ushering in what contemporaries (and the Founders) termed “consolidation.”11 11.The Federalist No. 32, at 155 (Alexander Hamilton) (Ian Shapiro ed., 2009); id. No. 45, at 238 (James Madison).Show More The war could provide an impetus for reform. But it could also overcorrect and kill the states entirely.

The war was unlike the formal amendment process in that it was not deliberative. It was not the product of thought and consideration. Instead, it was savage and unpredictable. Once unleashed, the Civil War’s progress was a force that could not be contained by human efforts. As a result, a number of American intellectuals (lawyers, historians, political theorists, and journalists) worried that the basic federal structure of the original Constitution would be altogether lost in the aftermath of the war. Some thinkers welcomed the chaos, which could enable Americans to slough off their old, irrational attachment to the tradition of localism. Many others regarded it with dread. One lawyer compared the Civil War to “the deadly heat of fever, which consumes without remedy the vitals of the Constitution.”12 12.Charles O’Conor, Opinion, Age Has Not Softened Him Nor Taught Him Manners or Charity—He Holds that the Republic Has Been Dead Since M’Dowell Moved on Richmond, N.Y. Times, Dec. 6, 1876, at 1.Show More The war would leave America a unitary state, and it was not clear that intrepid human energy could prevent a slide into consolidation.

During Reconstruction, Congress sought to capture the transcendent energy of the war and infuse it into the written Constitution. In the process of translating the war’s energy into the written text of the Fourteenth Amendment, Congress sought to establish two principles.13 13.U.S. Const. amend. XIV.Show More First was the confirmation of the primacy of the nation rather than the states. The sovereignty of the nation was, the war made clear, derived from the people directly and not from the states as a conduit for the people. The second—the protection of civil rights—followed from the first.14 14.See infra note 183 and accompanying text.Show More As Congressional Republicans argued, the primacy of national sovereignty meant that the citizen’s principal relationship was with the national government rather than with the states. Correspondingly, the federal government was now to be the guarantor of the citizen’s rights, bound to protect citizens even against interference by their own state governments.

Questions about the war’s impact on American federalism, as partially, but not wholly, expressed in the new constitutional amendments, eventually found their way to the Supreme Court. Rereading the Court’s opinions, and particularly, the Slaughterhouse Cases,15 15.83 U.S. (16 Wall.) 36 (1873).Show More with an eye toward claims of transcendent constitutional change is revealing. In a number of cases, the Court explicitly addressed the premise that the war, rather than the ratification of the Fourteenth Amendment, had remade the vitals of the Constitution—and rejected it. Instead, the Court opted to rely on the text of the Constitution and on longstanding—and distinctly non-radical—notions of federal structure. The Court would supply the counterforce against consolidation that the most extreme post-war commentators had desired. In numerous ways, the Court took on the role of policing the boundaries of federal and state power and arresting the prospect of consolidation.

By the time of Slaughterhouse in 1873, the Court’s role in limiting the centripetal energy unleashed by the war generally met with the approval of most American legal commentators, who were anxious to find normalcy and achieve balance. As one legal commentator enthused, the Justices “all shrank from the hideous features of the apparition [of consolidation] when [the details] were fully disclosed. Not one was found willing to abolish the States . . . .”16 16.Robert Ould, The Last Three Amendments to the Federal Constitution, 2 Va. L.J. 385, 392 (1878).Show More Americans who had wearied of the war’s revolutionary spirit endorsed the Court’s rejection of transcendent constitutionalism and the radical consequences that accompanied it.

The Civil War, violent and messy, looms large in the popular understanding of how American constitutionalism has changed over time, but not in the dominant scholarly narrative, which focuses instead on the formal and intentional act of ratifying the Reconstruction Amendments. This is not to say that previous scholars have been uninterested in investigating the broader political and legal culture surrounding the adoption of the amendments,17 17.See David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888,at 400–02 (1985); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1, 1118, 1127–28, 1298–1300 (Paul A. Freund ed., 1971); Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 256–57 (1988); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution, at xv–xvi (1973); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876, at 2, 4–6 (2005); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869, at 22–23 (1974); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 8–9 (1988); Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era, at xv–xvii (2003); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 2–3 (2001); Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc. Inquiry 459, 476–78, 490 (1997) (reviewing John Niven, Salmon P. Chase: A Biography (1995)); Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev. 45, 48–53 (1987).Show More but they have seldom taken account of the war itself as a source of lawmaking power.18 18.There is some discussion of this topic in Spaulding, supra note 3, at 2040, and Strauss, Irrelevance, supra note 6, at 1479–80. My own work has explored it in other contexts, such as how the war settled the question of secession’s constitutionality and the availability of treason charges against the perpetrators of an unsuccessful rebellion. See Cynthia Nicoletti, Trial by Battle, supra note 9, at 74–76; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 84–86 (2017) [hereinafter Nicoletti, Secession on Trial].Show More Thinking only about the Constitution as the product of deliberate human choices by politicians and lawmakers misses a key part of Civil War-era discussion about the ways that American life—and the U.S. Constitution—could be changed.

Nineteenth-century American intellectuals understood the course of history and the abstract forces behind it in a fatalistic way that is unfamiliar to modern American legal scholars. This Article recreates a largely overlooked intellectual debate over the nature of constitutionalism in the aftermath of the Civil War by exploring a broad array of previously neglected sources that range far beyond Congress and the Supreme Court. Nineteenth-century American jurists understood the Constitution to be both the written product of formal deliberation and the result of the decidedly non-deliberative, explosive power of transcendent lawmaking. They feared that the war’s energy could destroy the states the same way it had destroyed secession, thus resulting in the total annihilation of American federalism. Reconstructing the Union after the Civil War involved a more difficult task than scholars have previously realized, because of the ease of veering, without conscious choice, into consolidation.

I seek to situate the Supreme Court’s much maligned Slaughterhouse Cases against this larger intellectual backdrop and thus offer a way to make sense of the Court’s seemingly indefensible decision to twist the language of the Privileges or Immunities Clause beyond recognition.19 19.See infra notes 283–88 and accompanying text on Slaughterhouse’s poor reputation among jurists and academics.Show More Although Slaughterhouse itself did not undercut the federal government’s role in securing racial equality in the United States, the decision signaled the Supreme Court’s subsequent unwillingness to invalidate schemes of racial discrimination in the United States until the mid-twentieth century. In cases like Cruikshank v. United States and the Civil Rights Cases, the Court built on Slaughterhouse’s firm distinction between the state and federal aspects of citizenship in crafting the state action doctrine, which put most forms of racial discrimination beyond the reach of federal regulatory power.20 20.See infra Section III.C for more on the connection between Slaughterhouse and later cases undercutting the federal government’s power in the realm of civil rights, based on an expansive reading of the state action doctrine.Show More

Certainly the criticism Slaughterhouse has received for both its shaky logic and the limitations it imposed on federal power has been well deserved, but scholars have also missed a crucial aspect of what the Slaughterhouse Court sought to achieve in the aftermath of the Civil War. Slaughterhouse reflected the fact that white northerners, including the elites in the legal community, were increasingly uninterested in using federal power to protect Black Americans from violence and discrimination.21 21.This Article focuses on the views of lawyers, judges, legislators, and other public commentators on constitutional law in the aftermath of the Civil War, which necessarily means that it channels the voices of the elite class. For more on the historical exclusiveness of the American bar in both racial and class terms, see Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer 12–26 (2012) (discussing Black lawyers in the nineteenth century) and Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1870–1910, in The New High Priests: Lawyers in Post-Civil War America 51, 51–74 (Gerard W. Gawalt ed., 1984) (discussing class prejudice in the elite legal profession of the late nineteenth century).There is a large literature on the racial motivations and implications of the Reconstruction-era Supreme Court’s decisions. See, e.g., Eric Foner, supra note 17, at 530, and Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 Sup. Ct. Rev. 39, 60–62 [hereinafter Benedict, Preserving Federalism] (both highlighting the Supreme Court’s crucial role in limiting the federal government’s power to address racial inequality in the post-Reconstruction United States).Show More But the widespread acclaim with which the mainstream legal community greeted the decision in the 1870s and 1880s was also the product of another aspect of post-war national conservatism.22 22.Bryan H. Wildenthal’s article, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867–1873, 18 J. Contemp. Legal Issues 153, 221–29 (2009), comes the closest to examining public discussion around the Fourteenth Amendment, but ends in 1873 with the Slaughterhouse decision. See infra notes 283–346 and accompanying text for discussion of reactions to Slaughterhouse.Show More As Reconstruction waned, the American legal community sought to shrug off the explosive potential of transcendent constitutionalism along with the radical promise of racial egalitarianism that had seemed possible at the moment of Union victory in the Civil War.

The Article proceeds in four parts. Part I begins by reconstructing nineteenth-century Americans’ conception of war as a means of constitutional change and their understanding of the effect that Union victory would have on the American federal arrangement. American intellectuals were conflicted about the legitimacy of using violence as a source of law, but they nonetheless recognized the explosive power of the Civil War to reshape the course of history. They were also unsure about what the war’s ultimate significance might be. They feared that the nationalism unleashed by the war would result in consolidation—or the complete eradication of federalism in favor of a unitary state.

Part II discusses the relationship between ideas about transcendent constitutionalism, fashioned by the war itself, and the formal changes to the Constitution through the ratification of the Fourteenth Amendment. In debating the Amendment and the Civil Rights Bill in 1866, congressmen consistently revealed that they understood the Civil War to have altered the national arrangement in fundamental ways. The new Fourteenth Amendment sought to capture that change by memorializing the primacy of national sovereignty. In addition, Congress connected the Amendment’s protections for individual rights, along with the federal power to protect those rights from state incursion, to the new conception of national sovereignty. This understanding was informed by natural law.

The Supreme Court’s role in checking the excesses baked into concepts of transcendent constitutionalism is explored in Part III. The danger of consolidation loomed large, and the Supreme Court saw its role as policing the balance between federal and state power, a necessary function in the post-war period. The most notable decision in this regard was the (now) much-maligned Slaughterhouse Cases, in which the Court indicated its willingness to cut down on the radical centralizing potential of the Fourteenth Amendment.

Finally, Part IV explores reactions to the Supreme Court’s post-war federalism jurisprudence, and particularly, the Slaughterhouse Cases. For the most part, commentators welcomed the Supreme Court’s influence in preventing consolidation and checking the federal government’s authority. The wider American legal community saw the Court’s actions as returning American constitutionalism back to its ordinary state.

  1. * Class of 1966 Research Professor of Law, University of Virginia School of Law. I thank Charles Barzun, Will Baude, Molly Brady, John Duffy, Risa Goluboff, Jessica Lowe, Ruth Mason, Charles McCurdy, and George Rutherglen for discussing the ideas in this Article and for comments on previous drafts. I also thank Wilson Miller and Daniele Celano for excellent research assistance and helpful comments along the way. ↑
  2. There is a vast literature on the Reconstruction Amendments’ transformative effect on American constitutional law, including Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014); Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (1990); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992) [hereinafter Amar, Fourteenth Amendment]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]; Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801 (2010); Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235 (1984); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000); Mark A. Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112 Colum. L. Rev. 1501 (2012); Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855 (2007); Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L.J. 1509 (2007); Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012). ↑
  3. See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1159 (1992); see also Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115 (1994) (arguing that the retrenchment following Reconstruction should lead legal scholars to view the period as significantly less revolutionary). ↑
  4. 2 Bruce Ackerman, We the People: Transformations 198 (1998); see also Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xix-xx (2019) (conceptualizing the Reconstruction amendments as a “second founding”); Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2045 (2003) (agreeing with Ackerman that Reconstruction constituted a re-founding in favor of national power). ↑
  5. Scholarship that directly locates revolutionary change within the formal amendment process includes David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 154–87 (1996) (detailing the amendments to the Constitution) and John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994) (identifying formal amendments as the source of change in constitutional law). On the general importance of reliance on text in legal interpretation, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (new ed. 2018). ↑
  6. On various mechanisms of non-formal constitutional change, see generally Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) (detailing the interaction of legal and social factors in ending de jure segregation); Tomiko Brown-Nagin, Courage To Dissent: Atlanta and the Long History of the Civil Rights Movement (2011) (examining the role of local communities as agents of legal change within the civil rights movement); John Phillip Reid, In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution, 49 N.Y.U. L. Rev. 1043 (1974) (exploring the phenomenon of mob violence as an instrument of constitutional change in the Revolutionary period). ↑
  7. Scholars who have developed theories of how historical change shapes modern American constitutionalism include Ackerman, supra note 3; Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995); David A. Strauss, The Living Constitution 120–32 (2010); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) [hereinafter Strauss, Irrelevance]. A number of scholars have also examined unwritten constitutionalism’s intersection with the original understanding of the Constitution, including Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); Jed Rubenfeld, The New Unwritten Constitution, 51 Duke L.J. 289 (2001); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U. Ill. L. Rev. 1935. ↑
  8. Cf. Mark A. Noll, The Civil War as a Theological Crisis (2006) (discussing the theological crisis that grew out of the American Civil War); George C. Rable, God’s Almost Chosen Peoples: A Religious History of the American Civil War (2010) (discussing Americans’ understanding of the religious forces at work during the Civil War). ↑
  9. The other huge, looming issue that seemed to be settled by the war was the end of slavery in the United States. ↑
  10. For a discussion of this basic assumption in the scholarly literature, see Cynthia Nicoletti, The American Civil War as a Trial by Battle, 28 Law & Hist. Rev. 71, 73–74 (2010) [hereinafter Nicoletti, Trial by Battle]. For a deeper analysis of how, precisely, the war established this maxim, see id. at 76 (arguing that “American jurists and other intellectuals adopted the language of the medieval legal custom of trial by battle” as a way of rationalizing the war’s determination of secession’s illegitimacy); Spaulding, supra note 3, at 2038, 2040–42 (arguing that the war itself functioned as a mechanism of legal adjudication); Strauss, Irrelevance, supra note 6, at 1482–85 (arguing that the Reconstruction Amendments did not alter the Constitution so much as societal change did). Strauss also discusses the war’s settlement of the permanence of the Union, although he notes that no formal amendment recognized this. Id. at 1486. ↑
  11. Letter from Clement C. Clay, Jr., to Andrew Johnson (Nov. 23, 1865), in 9 Papers of Andrew Johnson 420, 421 (Paul H. Bergeron ed., 1991). ↑
  12. The Federalist No. 32, at 155 (Alexander Hamilton) (Ian Shapiro ed., 2009); id. No. 45, at 238 (James Madison). ↑
  13. Charles O’Conor, Opinion, Age Has Not Softened Him Nor Taught Him Manners or Charity—He Holds that the Republic Has Been Dead Since M’Dowell Moved on Richmond, N.Y. Times, Dec. 6, 1876, at 1. ↑
  14. U.S. Const. amend. XIV. ↑
  15. See infra note 183 and accompanying text. ↑
  16. 83 U.S. (16 Wall.) 36 (1873). ↑
  17. Robert Ould, The Last Three Amendments to the Federal Constitution, 2 Va. L.J. 385, 392 (1878). ↑
  18. See David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888, at 400–02 (1985); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1, 1118, 1127–28, 1298–1300 (Paul A. Freund ed., 1971); Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 256–57 (1988); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution, at xv–xvi (1973); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876, at 2, 4–6 (2005); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869, at 22–23 (1974); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 8–9 (1988); Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era, at xv–xvii (2003); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 2–3 (2001); Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc. Inquiry 459, 476–78, 490 (1997) (reviewing John Niven, Salmon P. Chase: A Biography (1995)); Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev. 45, 48–53 (1987). ↑
  19. There is some discussion of this topic in Spaulding, supra note 3, at 2040, and Strauss, Irrelevance, supra note 6, at 1479–80. My own work has explored it in other contexts, such as how the war settled the question of secession’s constitutionality and the availability of treason charges against the perpetrators of an unsuccessful rebellion. See Cynthia Nicoletti, Trial by Battle, supra note 9, at 74–76; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 84–86 (2017) [hereinafter Nicoletti, Secession on Trial]. ↑
  20. See infra notes 283–88 and accompanying text on Slaughterhouse’s poor reputation among jurists and academics. ↑
  21. See infra Section III.C for more on the connection between Slaughterhouse and later cases undercutting the federal government’s power in the realm of civil rights, based on an expansive reading of the state action doctrine. ↑
  22. This Article focuses on the views of lawyers, judges, legislators, and other public commentators on constitutional law in the aftermath of the Civil War, which necessarily means that it channels the voices of the elite class. For more on the historical exclusiveness of the American bar in both racial and class terms, see Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer 12–26 (2012) (discussing Black lawyers in the nineteenth century) and Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1870–1910, in The New High Priests: Lawyers in Post-Civil War America 51, 51–74 (Gerard W. Gawalt ed., 1984) (discussing class prejudice in the elite legal profession of the late nineteenth century).

    There is a large literature on the racial motivations and implications of the Reconstruction-era Supreme Court’s decisions. See, e.g., Eric Foner, supra note 17, at 530, and Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 Sup. Ct. Rev. 39, 60–62 [hereinafter Benedict, Preserving Federalism] (both highlighting the Supreme Court’s crucial role in limiting the federal government’s power to address racial inequality in the post-Reconstruction United States). ↑

  23. Bryan H. Wildenthal’s article, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867–1873, 18 J. Contemp. Legal Issues 153, 221–29 (2009), comes the closest to examining public discussion around the Fourteenth Amendment, but ends in 1873 with the Slaughterhouse decision. See infra notes 283–346 and accompanying text for discussion of reactions to Slaughterhouse. ↑

Damages for Privileged Harm

The law often permits us to impose substantial harm on others without incurring liability. Once liability is triggered, compensatory damages require a defendant to pay for the harm caused by his wrongful conduct. Calculating these damages requires consideration of the harm that the defendant could have caused without incurring liability in the first place. This harm is “privileged,” in the sense that the defendant would have been free to impose it in a counterfactual universe in which he complied with the substantive law. Having transgressed that law, he is responsible for damages. But the question is whether these damages should be reduced to account for the harm he could have imposed without owing damages at all.

The treatment of privileged harm is fundamental to the calculation of compensatory damages. Nonetheless, it has received little scholarly attention and has been the subject of conflicting decisions in the courts. In some areas of law, damages are routinely reduced to account for privileged harm; in others, this credit is given only sporadically, or not at all. Critically, there is not yet any sound theoretical explanation for why the rule ought to be different in one set of cases than another.

This Article begins by exploring the effects of crediting or not crediting privileged harm. It then relates the treatment of privileged harm to several well-known questions of remedial design. Finally, it proposes several general principles that a court or policymaker might follow in determining whether to reduce damages to account for privileged harm.

Introduction

Compensatory damages are meant to restore a plaintiff to the position she would have enjoyed absent the defendant’s wrong.1 1.See Restatement (Second) of Torts § 903 cmt. a (Am. L. Inst. 1979) (“When there has been harm only to the pecuniary interests of a person, compensatory damages are designed to place him in a position substantially equivalent in a pecuniary way to that which he would have occupied had no tort been committed.”); 1 Theodore Sedgwick, A Treatise on the Measure of Damages § 30, at 25 (9th ed. 1920) (“In all cases . . . of civil injury and breach of contract, the declared object of awarding damages is . . . to put the plaintiff in the same position, so far as money can do it, as he would have been if the contract had been performed or the tort not committed.”) (footnotes omitted).Show More Their amount is typically figured by way of a counterfactual. We ask the factfinder, “How much worse off is the plaintiff compared to the position she would have occupied in a hypothetical universe in which the defendant did not wrong her at all?” In theory, damages equal to this amount will “redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.”2 2.Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001).Show More

In many cases, it is simple and true to imagine this alternative, wrong-free universe as one in which the defendant does no harm to the plaintiff. For example, rather than negligently swerving into oncoming traffic, the defendant simply stays in his lane. In a case like that, the defendant’s role in the counterfactual universe is so trivial that he can be imagined out of it completely. Instead of asking what the plaintiff’s condition would have been if the defendant had driven safely, we could just as well ask what the plaintiff’s condition would have been if the defendant had not driven at all. This works because the world in which the defendant commits no tort is also a world in which the defendant imposes no harm.

But sometimes things are more complicated. In some cases, the truth is that the defendant would have imposed some harm on the plaintiff even if he had acted lawfully. This is possible because the law often leaves certain injuries to lie where they fall. As Oliver Wendell Holmes put it, some harm is “privileged,” in the sense the defendant was free to impose it, even intentionally, only subject to conditions set by the substantive law.3 3.Oliver Wendell Homes, Jr., Privilege, Malice, and Intent, 8 Harv. L. Rev. 1, 3–4 (1894). Note that the term “privilege” later took on a somewhat narrower, more technical meaning in tort law: “conduct which, under ordinary circumstances, would subject the actor to liability, [but that] under particular circumstances, does not subject him thereto.” Restatement (First) of Torts § 10 (Am. L. Inst. 1934); see also Francis H. Bohlen, Incomplete Privilege To Inflict Intentional Invasions of Interests of Property and Personality, 39 Harv. L. Rev. 307, 308 (1926) (consciously reappropriating the term “privilege” to refer to excuses and justifications). Throughout this Article, I use the term “privileged” in the broader sense that Holmes used it—to describe harm that may be imposed on another without incurring legal liability.Show More Holmes was never known for timid examples:

[A] man has a right to set up a shop in a small village which can support but one of the kind, although he expects and intends to ruin a deserving widow who is established there already. He has a right to build a house upon his land in such a position as to spoil the view from a far more valuable house hard by. He has a right to give honest answers to inquiries about a servant, although he intends thereby to prevent his getting a place. . . . In these instances, the justification is that the defendant is privileged . . . to inflict the damage complained of.4 4.Holmes, supra note 3, at 3.Show More

In cases involving damages, the defendant has, by hypothesis, not complied with the strictures of the substantive law, making the plaintiff’s injuries actionable rather than privileged. But the possibility of privileged harm forces us to confront a choice in counterfactuals. When measuring compensatory damages, do we work from a baseline in which the defendant imposes no harm on the plaintiff, or one in which the defendant imposes only privileged harm on the plaintiff?

The difference between these two conceptions can have significant consequences for the defendant’s ultimate liability, and courts have come down both ways. To pick just one example among many, consider the landmark due process case of Carey v. Piphus.5 5.435 U.S. 247 (1978).Show More The plaintiff in that case, Piphus, was a freshman at a Chicago high school who had been summarily suspended after a principal observed him smoking what appeared to be marijuana. Piphus brought suit under 42 U.S.C. § 1983, alleging that this suspension without pre-deprivation process violated the Fourteenth Amendment.6 6.Id. at 248–50.Show More The school district argued that, whether or not the afforded process was constitutionally sufficient, Piphus would be unable to prove any actual damages, since Piphus deserved his suspension either way.7 7.Id. at 260.Show More At heart, this was an argument rooted in privileged harm. Piphus sought the value of the school days lost to his unconstitutional suspension; the school district sought to reduce its damages by invoking a hypothetical suspension it could have imposed constitutionally.

In a terse section of its opinion, the Supreme Court accepted the school district’s argument for privileged harm. If it was really true that the school could have suspended Piphus in a counterfactual world in which it also afforded him due process, then “the failure to accord procedural due process could not properly be viewed as the cause of the suspension[].”8 8.Id.Show More To hold otherwise, the Court suggested, would afford Piphus a windfall rather than compensation.9 9.Id.Show More

Carey’s damages rule has had far-reaching consequences for plaintiffs invoking their federal constitutional right to procedural due process. But some courts have blunted its practical import by treating privileged harm differently for claims arising out of state law. Following Carey, a terminated government employee alleging that her firing violated the U.S. Constitution will typically receive zero compensatory damages unless she can show that the constitutionally required procedure would have actually prevented her termination.10 10.See infra notes 45–48 and accompanying text.Show More But when that same employee alleges that she was denied the procedural protections promised by her employment contract, a number of state courts have refused to credit privileged harm. For example, in Piacitelli v. Southern Utah State College,11 11.636 P.2d 1063 (Utah 1981).Show More the Utah Supreme Court explicitly declined to follow Carey, holding that the State was liable for back pay until the contractually specified process had been substantially performed. If credit were given for privileged harm, the Court reasoned, “the employer could discharge an employee summarily and then omit or delay the contractual termination procedures with impunity so long as it was in possession of evidence which, when ultimately provided, would justify the discharge.”12 12.Id. at 1069.Show More The State was thus liable for the privileged harm, even if it could have terminated the employee by following the contractually specified procedures in the first instance.13 13.See id. A number of Western states have followed Utah’s lead. See, e.g., Hom v. State, 459 N.W.2d 823, 826 (N.D. 1990) (adopting same rule for North Dakota); Bowler v. Bd. of Trs., 617 P.2d 841, 849 (Idaho 1980) (“[I]n order to prevail, appellant must allege and prove either that his employment contract was breached by the board or that he was unjustifiably discharged.”); Brown v. Ford, Bacon & Davis, Utah, Inc., 850 F.2d 631, 633–34 (10th Cir. 1988) (applying Piacitelli in case arising under Utah law). But see Nzomo v. Vt. State Colls., 411 A.2d 1366, 1367–68 (Vt. 1980) (applying Carey rule in case involving contractual claims).Show More

As we will see, variants of this question arise in many areas of law, from torts to contracts, intellectual property, antitrust, defamation, and constitutional litigation. Perhaps surprisingly, a search across these disparate fields reveals there is not yet a clear theoretical or consistent doctrinal answer to what seems like a very basic remedial question. As a pair, Carey and Piacitelli capture the dilemma succinctly. On the one hand, a court must consider the possibility of privileged harm to measure the injury actually caused by the defendant’s wrongful conduct; to do otherwise seems to afford the plaintiff a windfall rather than compensation. On the other hand, reducing damages to account for privileged harm risks leaving violations unpunished, creating no particular incentive for the defendant to comply with the substantive law. Carey and Piacitelli are outliers in acknowledging these policy concerns so explicitly, but the same basic tradeoff lurks beneath the surface in countless compensatory damages cases.

This Article explores when and how damages should be reduced to account for privileged harm. It begins with an introduction to prior doctrinal treatment of this question—an apparent morass of inconsistent rules and unreasoned conclusions.14 14.See infra Part I.Show More It then models the effects of privileged harm on marginal incentives, both for prospective plaintiffs and prospective defendants.15 15.See infra Sections II.A, II.B, II.C.Show More This analysis reveals that the treatment of privileged harm closely tracks a well-known question of remedial design: whether damages ought to operate as prices or sanctions.16 16.See Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523, 1523 (1984).Show More At its core, a decision to deny credit for privileged harm is a decision to erect sanctions-like damages around the threshold of liability, with increased marginal deterrence for defendants and wealth transfer to plaintiffs following as a result.17 17.See infra Sections II.B, II.C.Show More In this way, there is a previously unrecognized commonality between the question of how to measure compensatory damages and the question of whether to impose punitive damages.18 18.See infra Section II.D.Show More

Building on this theoretical account, this Article turns to the specifics of how courts should handle arguments for privileged harm. In addition to the first-order question of whether damages should operate as prices or sanctions,19 19.See infra Section III.A.Show More there are a number of practical, second-order concerns that may influence the decision to account for privileged harm. In identifiable categories of cases, the magnitude of any privileged harm will be small enough that the question can be safely ignored in the interest of remedial simplicity.20 20.See infra Section III.C.Show More In other cases, incautious crediting of privileged harm has the potential to leave entire classes of plaintiffs with no remedy.21 21.See infra Section IV.A.Show More As these and other examples will illustrate, the treatment of privileged harm might look like a simple calculation detail, but in fact it can significantly affect the ability of the substantive law to achieve its ends. For that reason, it is a question better confronted than avoided.

  1. * Professor of Law, Notre Dame Law School. For very helpful feedback on prior drafts, I thank A.J. Bellia, Sam Bray, Bernard Chao, Thomas Cotter, John Duffy, John Golden, Bert Huang, Dan Kelly, Andrew Kull, Douglas Laycock, Saul Levmore, Mark McKenna, Collen Murphy, Jeff Pojanowski, Henry Smith, Jay Tidmarsh, and Stephen Waddams. ↑
  2. See Restatement (Second) of Torts § 903 cmt. a (Am. L. Inst. 1979) (“When there has been harm only to the pecuniary interests of a person, compensatory damages are designed to place him in a position substantially equivalent in a pecuniary way to that which he would have occupied had no tort been committed.”); 1 Theodore Sedgwick, A Treatise on the Measure of Damages § 30, at 25 (9th ed. 1920) (“In all cases . . . of civil injury and breach of contract, the declared object of awarding damages is . . . to put the plaintiff in the same position, so far as money can do it, as he would have been if the contract had been performed or the tort not committed.”) (footnotes omitted). ↑
  3. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001). ↑
  4. Oliver Wendell Homes, Jr., Privilege, Malice, and Intent, 8 Harv. L. Rev. 1, 3–4 (1894). Note that the term “privilege” later took on a somewhat narrower, more technical meaning in tort law: “conduct which, under ordinary circumstances, would subject the actor to liability, [but that] under particular circumstances, does not subject him thereto.” Restatement (First) of Torts § 10 (Am. L. Inst. 1934); see also Francis H. Bohlen, Incomplete Privilege To Inflict Intentional Invasions of Interests of Property and Personality, 39 Harv. L. Rev. 307, 308 (1926) (consciously reappropriating the term “privilege” to refer to excuses and justifications). Throughout this Article, I use the term “privileged” in the broader sense that Holmes used it—to describe harm that may be imposed on another without incurring legal liability. ↑
  5. Holmes, supra note 3, at 3. ↑
  6. 435 U.S. 247 (1978). ↑
  7. Id. at 248–50. ↑
  8. Id. at 260. ↑
  9. Id. ↑
  10. Id. ↑
  11. See infra notes 45–48 and accompanying text. ↑
  12. 636 P.2d 1063 (Utah 1981). ↑
  13. Id. at 1069. ↑
  14. See id. A number of Western states have followed Utah’s lead. See, e.g., Hom v. State, 459 N.W.2d 823, 826 (N.D. 1990) (adopting same rule for North Dakota); Bowler v. Bd. of Trs., 617 P.2d 841, 849 (Idaho 1980) (“[I]n order to prevail, appellant must allege and prove either that his employment contract was breached by the board or that he was unjustifiably discharged.”); Brown v. Ford, Bacon & Davis, Utah, Inc., 850 F.2d 631, 633–34 (10th Cir. 1988) (applying Piacitelli in case arising under Utah law). But see Nzomo v. Vt. State Colls., 411 A.2d 1366, 1367–68 (Vt. 1980) (applying Carey rule in case involving contractual claims). ↑
  15. See infra Part I. ↑
  16. See infra Sections II.A, II.B, II.C. ↑
  17. See Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523, 1523 (1984). ↑
  18. See infra Sections II.B, II.C. ↑
  19. See infra Section II.D. ↑
  20. See infra Section III.A. ↑
  21. See infra Section III.C. ↑
  22. See infra Section IV.A. ↑

College Athletics, Coercion, and the Establishment Clause: The Case of Clemson Football

Once a person turns eighteen and goes to college, do they immediately become less susceptible to the influences of those in power and their peers? The Supreme Court tells us that they do. While consistently willing to find that prayers at middle school graduations and high school football games are violations of the Establishment Clause under the coercion test, the Court has stated that adults are more mature and “presumably” less susceptible to religious coercion. Scholars and the circuit courts of appeals have taken varying approaches and arrived at different outcomes when considering adult claimants. None, however, have articulated a uniform test for adults to establish coercion. Using indicative language from the Supreme Court, this Note argues for the first time that adult claimants must show that a State action has a “real and substantial likelihood” of coercion in order to bring a successful Establishment Clause challenge. It further proposes that a spectrum of susceptibility to coercion exists under the Establishment Clause based on certain populations’ ages and respective environments.

After articulating the standard of coercion for adults and the spectrum of susceptibility to coercion, this Note applies both to a prominent example of overt incorporation of religion into a public university—the Clemson University football program. The Clemson football coaching staff unabashedly integrates religion into many aspects of the program, from Bible studies led and organized by staff to baptisms of players on the practice field. Using psychological and educational research about the effects of coaches and teammates on a college student-athlete’s values, beliefs, and behaviors, this Note argues that college student-athletes are uniquely prone to coercion and places them on the spectrum of susceptibility to coercion. Finally, it applies the standard of coercion for adults to conclude that religious aspects of Clemson’s football program are unconstitutional under the Establishment Clause.

Introduction

Situated in the small college town of Clemson, South Carolina, the Clemson University (“Clemson”) football team boasts quite a record. With NCAA College Football Playoff (“CFP”) National Championships in 2016 and 2018, consecutive CFP appearances and Atlantic Coast Conference Championships from 2015 to 2019, and at least ten wins in each season from 2011 to 2019, head coach Dabo Swinney has built a culture of success in his program around his slogan “all in.”1 1.National Champions, https://daboswinney.com/championships/ [https://perma.cc/9S7H-SPP4] (last visited Sept. 28, 2020); Greg Wallace, Inside a Top 10 College Football Team’s Summer Conditioning Program, Bleacher Rep. (June 6, 2014), https://bleacher­report.com/articles/2088395-inside-a-top-10-college-football-teams-summer-conditioning-program [https://perma.cc/274C-3ZG5] (internal quotation marks omitted).Show More While the students, alumni, and fans of Clemson football may consider football their religion, there is a tenet of actual sectarian religion deeply ingrained and woven into the program’s culture.2 2.Tim Rohan, Faith, Football and the Fervent Religious Culture at Dabo Swinney’s Clemson, Sports Illustrated (Sept. 4, 2019), https://www.si.com/college-football/2019/09/04/clemson-dabo-swinney-religion-culture [https://perma.cc/46JS-8ZGA].Show More As documented by the Freedom from Religion Foundation’s (“FFRF”) 2014 letter sent to Clemson’s Senior Associate General Counsel, several of the program’s practices—which originate from the coaching staff’s conduct and are not student-led or organized—indicate not only an “endorsement of religion over nonreligion,” but also a preference for “Christian worship.”3 3.Letter from Patrick C. Elliott, Staff Att’y, Freedom from Religion Found., to Erin Swan Lauderdale, Senior Assoc. Gen. Couns., Clemson Univ. 1 (Apr. 10, 2014) [hereinafter FFRF Letter], https://ffrf.org/images/clemson_letter.pdf [https://perma.cc/Y26K-4HUA]. FFRF sent this letter to Clemson after they reviewed records obtained through a FOIA request. Id.Show More Coach Swinney has maintained an “an outwardly religious program.”4 4.Kevin Trahan, Freedom from Religion Foundation Complains About Clemson Football Program, SBNation (Apr. 15, 2014), https://www.sbnation.com/college-football/2014/4/15/5616602/clemson-football-dabo-swinney-religious-freedom-complaint.Show More Quite simply, “[a]t Clemson, God is everywhere.”5 5.Brad Wolverton, With God on Our Side, Chron. of Higher Educ. (Nov. 24, 2013), https://www.chronicle.com/article/With-God-on-Our-Side/143231 [https://perma.cc/7Q3G-M4PG].Show More

In 2011, James Trapp became the official chaplain of the football team at Coach Swinney’s personal invitation and insistence.6 6.FFRF Letter, supra note 3, at 1.Show More In his paid role as chaplain, Mr. Trapp went beyond simply leading team prayers. He “was regularly given access to the entire football team in between drills for the purpose of bible study,” maintained an office in the Jervey Athletic Center where he kept Bibles for distribution and displayed Bible quotes, and planned and facilitated sessions on “being baptized” in the athletic center.7 7.Id. at 2–3.Show More Mr. Trapp also organized more than eighty devotionals for the football team between March 2012 and April 2013, which were approved by Coach Swinney and led by members of the coaching staff.8 8.Id. at 4.Show More Further, he organized the team’s transportation via coach buses to local churches for annual “Church Day[s]” during training camp.9 9.Id.Show More

Journalists have reported other instances of the coaching staff’s endorsement of religion. In the fall of 2012, star wide receiver DeAndre Hopkins was baptized on the field in his uniform and pads at the conclusion of practice.10 10.Rohan, supra note 2; see also Wolverton, supra note 5 (describing DeAndre Hopkins’s baptism in a livestock trough on the practice field).Show More Then-Assistant Coach Jeff Scott even tweeted a photo that captured the scene.11 11.Coach Jeff Scott (@coach_jeffscott), Twitter (Sept. 2, 2012, 10:14 PM), https://twitter.com/coach_jeffscott/status/24244533830313984.Show More Following Hopkins’s baptism, it is estimated that between ten and fifteen player baptisms occurred over the next two seasons—many of which took place during camp in a pond by the practice field.12 12.Rohan, supra note 2.Show More Coach Swinney tells recruits and their families that he is a Christian and, if they “have a problem with that, [they] don’t have to be [there].”13 13.Wolverton, supra note 5.Show More One recruit’s mother distinctly remembers Coach Swinney’s guarantee “that every single player that comes through this program will hear about the Gospel of Christ.”14 14.Rohan, supra note 2.Show More

If Clemson were a public high school instead of a public university, this situation would present a clear violation of the Establishment Clause of the First Amendment.15 15.See Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”).Show More The Supreme Court has stated, however, that college students “are . . . young adults” and are therefore “less impressionable than younger students.”16 16.Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981). Widmar was decided on free speech grounds as the Court did not find the State’s interest in creating more separation between church and state than required by the Establishment Clause “sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.” Id. at 276. For further discussion of circuit courts of appeals’ application of Widmar to the coercion test in cases involving higher education, see also infra notes 110–12 and accompanying text.Show More Yet, the Court has not spoken directly on the issue of religious coercion with respect to adult college students at a public university. While the religious nature of Clemson’s football program presents only one example of overt incorporation of religion at a public university, the initial, more important, and unanswered question is what must adult claimants show in order to litigate a successful Establishment Clause challenge.17 17.By “adult,” I mean individuals who have reached the age of majority in their respective states.Show More

Using the prominent example of Clemson football,18 18.Clemson’s football program presents one of many examples of the incorporation of religion into college football. For examples of other football programs that have hired chaplains, see Freedom from Religion Found., Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields into Mission Fields 13–15 (2015) [hereinafter Pray to Play], https://ffrf.org/images/Pray_To_Play_FINAL_REPORT1.pdf [https://perma.cc/A4QB-T8V­H]. Examples of the incorporation of religion can also be found in other college sports, such as basketball. See, e.g., Whitelaw Reid, Man of Faith: How Tony Bennett’s Religion Has Shaped His UVa Tenure, Daily Progress (Nov. 24, 2010), https://www.dailyprogress.com/­sports/man-of-faith-how-tony-bennett-s-religion-has-shaped/article_de7b70b5-54f2-5f94-bc4f-dc4449748bb8.html [https://perma.cc/CM7C-K9JR] (“As a number of recruits have signed to play for [Tony] Bennett, the first thing they’ve talked about . . . . [is] the connection they’ve felt with Bennett through God.”).Show More this Note answers that question by articulating a coercion standard for adults, arguing that a spectrum of susceptibility to coercion exists under the Establishment Clause, and suggesting where college student-athletes fit along that spectrum. While some scholars have written about the Establishment Clause and college athletics, they do not apply the modern coercion test,19 19.The modern coercion test focuses on psychological coercion as articulated in Lee v. Weisman. See infra Section I.B.Show More articulate a coercion standard for adults, or advance a theory regarding a range of susceptibility to coercion. For example, Clayton Adams, emphasizing a need to protect a “government employee’s right to speak on matters of public concern,” applied a “modified coercion test” to religious aspects of various college football programs—including the Clemson football program.20 20.Clayton D. Adams, Personal Foul, Roughing the Speaker: The Illusory War Between the Establishment Clause & College Football, 84 Miss. L.J. Supra 167, 183, 194–202 (2015).Show More Kris Bryant suggested that the Court should adopt a “Coercion/Endorsement Test ‘with teeth’” when analyzing the Establishment Clause claims of public university students.21 21.Kris Bryant, Take a Knee: Applying the First Amendment to Locker Room Prayers and Religion in College Sports, 36 J. Coll. & U.L. 329, 359–60 (2009).Show More Gil Fried and Lisa Bradley briefly suggested that there is an “Establishment Clause case law scale from elementary school prayer to prayer opening legislative sessions cases” and recognized that “college prayer cases” fall “in between these two ends of the continuum” without theorizing further.22 22.Gil Fried & Lisa Bradley, Applying the First Amendment to Prayer in a Public University Locker Room: An Athlete’s and Coach’s Perspective, 4 Marq. Sports L.J. 301, 303, 310–13 (1994).Show More Fried and Bradley, however, then applied the now disfavored Lemon test to analyze college locker room prayers.23 23.Id.Show More In a similar vein, other scholars have addressed the Establishment Clause’s application to students at public universities, or adults in general, without applying the psychological coercion test, articulating a coercion standard for adults, or proposing a theory regarding a range of susceptibility to coercion.24 24.See, e.g., Phillip E. Marbury, Comment, Audience Maturity and the Object of the Establishment Clause, 6 Liberty U. L. Rev.565, 579 (2012) (arguing that “audience maturity is a significant factor” in the Court’s modern Establishment Clause jurisprudence); Elizabeth B. Halligan, Coercing Adults? The Fourth Circuit and the Acceptability of Religious Expression in Government Settings, 57 S.C. L. Rev.923, 924–26 (2006) (analyzing Mellen v. Bunting, a Fourth Circuit case that struck down a prayer at a public military university because of public prayer’s potential impact on adult audience members); Deanna N. Pihos, Assuming Maturity Matters: The Limited Reach of the Establishment Clause at Public Universities, 90 Cornell L. Rev.1349, 1373 (2005) (arguing that the respective ages of high school and college students is a “questionable distinction on which to create two different standards of Establishment Clause protection” under the coercion, Lemon, and endorsement tests).Show More

This Note addresses the gap in the literature regarding how to treat adult claimants under the coercion test of the Establishment Clause. Instead of suggesting a new or modified coercion test or using a now disfavored test, this Note articulates a practical coercion standard for adults that is rooted in the current jurisprudence. Part I of this Note traces the development of the modern coercion test in the Supreme Court and the test’s application to cases involving higher education in the circuit courts of appeals. Then, Part II proposes a coercion standard for adults and, based on their respective environments, places various populations along a spectrum according to their level of susceptibility to coercion. Finally, Part III applies the coercion standard for adults and coercion spectrum to college student-athletes. It argues that college student-athletes should be seen as more susceptible to coercion than typical college students and that various religious-oriented aspects of the Clemson football program violate the Establishment Clause. A conclusion follows.

  1. * J.D., University of Virginia School of Law, 2021; M.Ed., Clemson University, 2015. I am especially grateful to Professor Micah Schwartzman for sparking this research and for supporting me in the development of this Note. I also sincerely appreciate the members of the Virginia Law Review who assisted in the editing and preparation of the Note—especially Olivia Roat. ↑
  2. National Champions, https://daboswinney.com/championships/ [https://perma.cc/9S7H-SPP4] (last visited Sept. 28, 2020); Greg Wallace, Inside a Top 10 College Football Team’s Summer Conditioning Program, Bleacher Rep. (June 6, 2014), https://bleacher­report.com/articles/2088395-inside-a-top-10-college-football-teams-summer-conditioning-program [https://perma.cc/274C-3ZG5] (internal quotation marks omitted). ↑
  3.  Tim Rohan, Faith, Football and the Fervent Religious Culture at Dabo Swinney’s Clemson, Sports Illustrated (Sept. 4, 2019), https://www.si.com/college-football/2019/09/04/
    clemson-dabo-swinney-religion-culture [https://perma.cc/46JS-8ZGA]. ↑
  4. Letter from Patrick C. Elliott, Staff Att’y, Freedom from Religion Found., to Erin Swan Lauderdale, Senior Assoc. Gen. Couns., Clemson Univ. 1 (Apr. 10, 2014) [hereinafter FFRF Letter], https://ffrf.org/images/clemson_letter.pdf [https://perma.cc/Y26K-4HUA]. FFRF sent this letter to Clemson after they reviewed records obtained through a FOIA request. Id. ↑
  5. Kevin Trahan, Freedom from Religion Foundation Complains About Clemson Football Program, SBNation (Apr. 15, 2014), https://www.sbnation.com/college-football/2014/4/15/
    5616602/clemson-football-dabo-swinney-religious-freedom-complaint. ↑
  6. Brad Wolverton, With God on Our Side, Chron. of Higher Educ. (Nov. 24, 2013), https://www.chronicle.com/article/With-God-on-Our-Side/143231 [https://perma.cc/7Q3G-M4PG]. ↑
  7. FFRF Letter, supra note 3, at 1. ↑
  8. Id. at 2–3. ↑
  9. Id. at 4. ↑
  10. Id. ↑
  11. Rohan, supra note 2; see also Wolverton, supra note 5 (describing DeAndre Hopkins’s baptism in a livestock trough on the practice field). ↑
  12.  Coach Jeff Scott (@coach_jeffscott), Twitter (Sept. 2, 2012, 10:14 PM), https://twitter.com/coach_jeffscott/status/24244533830313984. ↑
  13. Rohan, supra note 2. ↑
  14. Wolverton, supra note 5. ↑
  15. Rohan, supra note 2. ↑
  16. See Lee v. Weisman, 505 U.S. 577, 592 (1992) (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”). ↑
  17. Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981). Widmar was decided on free speech grounds as the Court did not find the State’s interest in creating more separation between church and state than required by the Establishment Clause “sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.” Id. at 276. For further discussion of circuit courts of appeals’ application of Widmar to the coercion test in cases involving higher education, see also infra notes 110–12 and accompanying text. ↑
  18. By “adult,” I mean individuals who have reached the age of majority in their respective states. ↑
  19. Clemson’s football program presents one of many examples of the incorporation of religion into college football. For examples of other football programs that have hired chaplains, see Freedom from Religion Found., Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields into Mission Fields 13–15 (2015) [hereinafter Pray to Play], https://ffrf.org/images/Pray_To_Play_FINAL_REPORT1.pdf [https://perma.cc/A4QB-T8V­H]. Examples of the incorporation of religion can also be found in other college sports, such as basketball. See, e.g., Whitelaw Reid, Man of Faith: How Tony Bennett’s Religion Has Shaped His UVa Tenure, Daily Progress (Nov. 24, 2010), https://www.dailyprogress.com/­sports/man-of-faith-how-tony-bennett-s-religion-has-shaped/article_de7b70b5-54f2-5f94-bc4f-dc4449748bb8.html [https://perma.cc/CM7C-K9JR] (“As a number of recruits have signed to play for [Tony] Bennett, the first thing they’ve talked about . . . . [is] the connection they’ve felt with Bennett through God.”). ↑
  20. The modern coercion test focuses on psychological coercion as articulated in Lee v. Weisman. See infra Section I.B. ↑
  21. Clayton D. Adams, Personal Foul, Roughing the Speaker: The Illusory War Between the Establishment Clause & College Football,
    84

    Miss. L.J. Supra

    167

    , 183, 194–202 (2015). ↑

  22. Kris Bryant, Take a Knee: Applying the First Amendment to Locker Room Prayers and Religion in College Sports, 36 J. Coll. & U.L
    .

    329, 359–60 (2009). ↑

  23. Gil Fried & Lisa Bradley, Applying the First Amendment to Prayer in a Public University Locker Room: An Athlete’s and Coach’s Perspective, 4 Marq. Sports L.J. 301, 303, 310–13 (1994). ↑
  24. Id. ↑
  25.  See, e.g., Phillip E. Marbury, Comment, Audience Maturity and the Object of the Establishment Clause, 6 Liberty U. L. Rev.

    565, 579 (2012) (arguing that “audience maturity is a significant factor” in the Court’s modern Establishment Clause jurisprudence); Elizabeth B. Halligan, Coercing Adults? The Fourth Circuit and the Acceptability of Religious Expression in Government Settings, 57 S.C. L. Rev.

    923, 924–26 (2006) (analyzing Mellen v. Bunting, a Fourth Circuit case that struck down a prayer at a public military university because of public prayer’s potential impact on adult audience members); Deanna N. Pihos, Assuming Maturity Matters: The Limited Reach of the Establishment Clause at Public Universities, 90 Cornell L. Rev.

    1349, 1373 (2005) (arguing that the respective ages of high school and college students is a “questionable distinction on which to create two different standards of Establishment Clause protection” under the coercion, Lemon, and endorsement tests). ↑

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