MILLER, SAMUEL F. (1816–1890)

Samuel Freeman Miller was a towing figure on the Supreme Court from his appointment by abraham lincoln in 1862 until his death in 1890. He sat with four Chief Justices, participated in more than 5,000 decisions of the Court, and was its spokesman in ninety-five cases involving construction of the Constitution. No previous member of the Court had written as many constitutional opinions.

Miller's contemporaries regarded him as one of the half-dozen great Justices in American history, a remarkable achievement for a self-educated lawyer who had never held public office, either in his native Kentucky or in adopted Iowa, prior to his appointment to the Court. Justice horace gray claimed that if his legal training had been less "unsystematic and deficient," Miller would have been "second only to [ john ] marshall."

Miller looked and acted the part of a great magistrate. He was tall and massive; he had a warm, unaffected disposition and was said to be "as ready to talk to a hod-carrier as to a cardinal." His instinct for what he often called "the main points, the controlling questions," his impatience with antique learning and philosophical abstraction, and his unrivaled reputation for industry, integrity, and independence all enhanced his stature. Candor and intellectual self-reliance pervaded his opinions, and he often stated quite bluntly his assumption that law and practical good sense were of one piece: "This is the honest and fair view of the subject, and we think it conflicts with no rule of law" (Pettigrew v. United States, 1878); "if this is not due process of law it ought to be" (Davidson v. New Orleans, 1878); "this is just and sound policy" (Iron Silver Mining Co. v. Campbell, 1890).

Statecraft rather than formal jurisprudence was Miller's forte, and he emerged as the Court's balance-wheel soon after coming to the bench. His career ultimately spanned three tumultuous decades in which the Justices constantly quarreled, often rancorously, about the scope of federal and state powers and the Court's role in protecting private rights against the alleged usurpations of both. Scores of cases involved highly charged political issues. Yet Miller always remained detached. He never permitted differences of opinion to affect personal relations with his brethren; he met counsels of heat and passion with chilly distaste. Miller's capacity for detachment was, in part, a matter of personality. But it was also a function of his modest view of the Court's role in the American system of government. He resisted doctrinal formulations that curtailed the discretion of other lawmakers, spoke self-consciously about "my conservative habit of deciding no more than is necessary in any case," and often succeeded in accommodating warring factions of more doctrinaire colleagues by narrowing the issue before the Court. As early as 1870, Chief Justice salmon p. chase said he was "beyond question, the dominant personality upon the bench."

The first principles of Miller's constitutional understanding were derived from henry clay and the Whig party. Although he abandoned the Whigs for the Republican party in 1854, Miller never ceased to regard Clay as the quintessential American statesman or to reaffirm the Kentucky sage's belief in a broad construction of national powers, the primacy of the legislative department in shaping public policy, and the duty of government at all levels to encourage material growth. Miller's adherence to the first two principles was especially apparent in his work on the chase court. In ex parte milligan (1866), he joined the minority of four, concurring, who suggested that Congress might constitutionally have established martial rule in Indiana. And in Tyler v. Defrees (1870), a confiscation case, Miller flatly rejected the doctrine "long inculcated, that the Federal Government, however strong in a conflict with a foreign foe, lies manacled by the Constitution and helpless at the feet of a domestic enemy." Early in 1868, when the movement to impeach President andrew johnson gathered momentum and the Court initially established jurisdiction in ex parte mccardle, Miller conceded privately that "in the threatened collision between the Legislative branch of the government and the Executive and judicial branches I see consequences from which the cause of free government may never recover in my day." He added, however, that "the worst feature I now see is the passion which governs the hour in all parties and persons who have a controlling influence." In contrast, Miller not only counseled caution and delay while Congress proceeded to divest the Court of jurisdiction over McCardle but also dissented in texas v. white (1869). He regarded the status of states still undergoing military reconstruction as a political question which only Congress could decide. Hepburn v. Griswold (1870), the first of the legal tender cases, evoked his most celebrated defense of congressional authority. There Miller sharply criticized the majority's reliance on the "spirit" of the Constitution, which, he insisted, "substitutes … an undefined code of ethics for the Constitution, and a court of justice for the National Legislature.… Where there is a choice of means, the selection is for Congress, not the Court."

Miller was not always such a positivist in rejecting considerations arising from the spirit of the Constitution. In the slaughterhouse cases (1873), which came up during fierce public debate over the Enforcement and Klu Klux Klan Acts, Miller intervened decisively to preserve "the main features" of the federal system. Although the powers of Congress were not directly at issue, his opinion for the Court undercut every fourteenth amendment theory that had been advanced in other cases to justify federal jurisdiction over perpetrators of racially motivated private violence. The Fourteenth Amendment's privileges and immunities clause, Miller explained for a majority of five, protected only the handful of rights that necessarily grew out of "the relationship between the citizen and the national government." The really fundamental privileges and immunities of citizenship, including the rights to protection by the government, to own property, and to contract, still remained what they had been since 1789—rights of state citizenship. To bring all civil rights under the umbrella of national citizenship, Miller concluded, would be "so great a departure from the structure and spirit of our institutions" and would so "fetter and degrade the State governments by subjecting them to the control of Congress" that it should not be permitted "in the absence of language which expresses such purpose too clearly to admit of doubt."

Over the succeeding seventeen years, Miller's voting record in civil rights cases remained consistent with the views he expounded in 1873. He joined the majority in united states v. cruikshank (1876) and the civil rights cases (1883), both of which severely reduced the range of "appropriate legislation" Congress was authorized to enact; he voted to invalidate the Ku Klux Klan Act altogether in united states v. harris (1883). In ex parte yarbrough (1884), an important Enforcement Act case, Miller consolidated his formal approach to protecting civil rights in a federal system. Speaking for a unanimous Court, he sustained federal jurisdiction over persons who violently interfered with the exercise of voting rights in a federal election. Congress's authority to reach private action in Yarbrough, he explained, flowed not from the fifteenth amendment but from both its power to regulate the time, place, and manner of federal elections and its duty "to provide, in an election held under its authority, for security of life and limbs to the voter." By emphasizing the national ramifications of private action in Yarbrough, Miller managed to distinguish Cruikshank in much the same way that he had distinguished between rights of national citizenship and rights of state citizenship in the Slaughterhouse Cases. Both formulations were designed to set principled limits to the exercise of Congress's affirmative powers to protect civil rights.

The impulse to preserve "the main features" of the federal system also shaped Miller's work in cases involving governmental interventions in economic life. He was certainly not immune to the laissez-faire ethos of the late nineteenth century, and his opinion for the Court in loan association v. topeka (1875) has long been regarded as one of the most significant expressions of natural law constitutionalism in American history and as an important building block in the growth of substantive due process. There he held that a contract for $100,000 in municipal bonds, issued to lure a manufacturing firm to Topeka, was unenforceable. The people's tax dollars, he proclaimed, could not "be used for purposes of private interest instead of public use." Yet Miller resisted the urge, spearheaded by Justice stephen j. field, to link the "public use" principle with the Fourteenth Amendment and the concept of "general jurisprudence" in order to limit the exercise of all the states' inherent powers—police, taxation, and eminent domain.

The sweeping doctrines advanced by Field and other doctrinaire advocates of laissez-faire conflicted with three working principles of Miller's constitutional understanding, each of which militated against dramatic enlargement of federal judicial power at the expense of the states. The first was his Whiggish predisposition to allow state governments ample room to channel economic activity and develop resources for the general good. A broad construction of the Fourteenth Amendment, he asserted in the Slaughterhouse Cases, "would constitute this Court a perpetual censor upon all legislation of the States" and generate state inaction, even in the face of clear public interests, for fear of endless litigation. Miller also believed that it was not the function of federal courts to sit in judgment on state courts expounding state law. He repeatedly invoked this second working principle in the long line of cases that began with gelpcke v. dubuque (1864). There the Court insisted that municipal bonds issued to subsidize railroad construction were unquestionably for a "public use" despite recent state court decisions to the contrary. The Gelpcke majority defended federal judicial intervention on the ground that municipal bonds were a species of commercial paper and therefore the question of bondholder rights "belong[ed] to the domain of general jurisprudence." Miller dissented. In his view, extension of the principle of swift v. tyson (1842) to the construction of state statute law was an unconscionable act of federal usurpation, and he accurately predicted that it would spawn a generation of conflict between federal courts and recalcitrant state and local officials.

The apparent inconsistency between Miller's opinion in Loan Association v. Topeka and his stance in the Slaughterhouse Cases and in the Gelpcke line of municipal-bond cases is readily explained. All of them did raise similar conceptual issues; each hinged, in part, on the application of the "public use" principle to governmental aid of private enterprise in the form of either monopoly grants or cash subsidies. But for Miller, if not for his colleagues, the controlling factor in Loan Association v. Topeka was that it had been tried under the diversity jurisdiction of a federal court, and pertinent state law had not yet been framed on the subject. As a result, Miller later explained in Davidson v. New Orleans (1878), the Court had been free to invoke "principles of general constitutional law" which the Kansas court was equally free to adopt or reject in subsequent cases involving similar circumstances. The concepts of substantive due process and "general jurisprudence," on the other hand, failed to maintain the ample autonomy for state governments which Miller regarded as an indispensable component of the American polity.

Miller ultimately failed to stave off the luxuriation of substantive due process, just as he had failed to curb the majority's impulse to invoke Swift in the municipal-bond cases. "It is in vain to contend with judges who have been at the bar the advocates for forty years of rail road companies, and all the forms of associated capital," he told his brother-in-law late in 1875. "I am losing interest in these matters. I will do my duty but will fight no more." Yet Miller's views did make a difference, particularly in the conference room. What remained influential was Miller's third working principle of constitutional interpretation. He recommended resistance to Field's syllogistic reasoning and quest for immutable principles; he suggested, instead, that once the Court had determined to protect private rights against state interference, it was best to decide cases on the narrowest possible grounds, to employ open-ended doctrinal formulas amenable to subsequent alteration, and to elaborate the meaning of due process through what he called a "gradual process of inclusion and exclusion." Thus Miller described local aid of manufactures as "robbery" in Loan Association v. Topeka, but he added that "it may not be easy to draw the line in all cases so as to decide what is a public use in this sense and what is not." He also endorsed the notoriously vague doctrine of "business affected with a public interest " in Munn v. Illinois (1877). And in chicago, milwaukee & st. paul ry. v. minnesota, (1890), when the Court finally invalidated a state law on due process grounds, Miller concurred "with some hesitation" but filed an opinion cautioning his colleagues against the adoption of a rigid formula, such as "fair value," to determine whether rate-making authorities had acted "arbitrarily and without regard to justice and right."

Miller's immediate successors disregarded the advice, but during the 1930s interest revived in his conception of the judicial function, particularly among felix frankfurter's circle at the Harvard Law School. Frankfurter, who called Miller "the most powerful member of his Court," insisted in 1938 that judging was not at all like architecture. Rather than framing doctrinal structures with clean lines and the appearance of permanence, Frankfurter explained, "the Justices are cartographers who give temporary location but do not ultimately define the evershifting boundaries between state and national power, between freedom and authority." Miller could not have described his own views with greater clarity or force.

Charles W. Mc Curdy
(1986)

Bibliography

Fairman, Charles 1938 Mr. Justice Miller and the Supreme Court, 1862–1890. Cambridge, Mass.: Harvard University Press.

Frankfurter, Felix (1938) 1961 Mr. Justice Holmes and the Supreme Court. Cambridge, Mass.: Harvard University Press.

Gillette, William 1969 Samuel Miller. Pages 1011–1024 in Leon Friedman and Fred Israel, eds., The Justices of the Supreme Court, 1789–1965. New York: Chelsea House.