Day 17: Samuel Miller

[A18]

Discuss.

[Emsworth]

FF. He voted soundly on the most significant Fourteenth Amendment cases that came up during his era: the Civil Rights Cases and the Slaughterhouse Cases. It is true that he erred in Ex Parte Milligan, and that his majority opinion in Slaughterhouse has confused generations of scholars. However, when he is compared to contemporaries such as Stephen Field, he comes out in a very favorable light.

[A18]

Whenever I think of Justice Miller, his deeply unsound position in Hepburn v. Griswold that paper money could constitutionally be made legal tender comes to mind.

Also, his opinion in Davidson v. New Orleans is rather cryptic. He seems to both affirm and deny the existence of "substantive due process" in the same opinion:

"It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by 'law of the land' the ancient and customary laws of the English people, or laws enacted by the Parliament of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of England. But when, in the year of grace 1866, there is placed in the Constitution of the United States a declaration that 'no State shall deprive any person of life, liberty, or property without due process of law,' can a State make any thing due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is effected under the forms of State legislation. It seems to us that a statute which declares in terms, and without more, that the full and exclusive title of a described piece of land, which is now in A., shall be and is hereby vested in B., would, if effectual, deprive A. of his property without due process of law, within the meaning of the constitutional provision.

". . . It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case."

Despite those points of contention (plus that "right to travel" nonsense), I agree that he's a freedom fighter, principally for the reasons you bring up.