Wes Tripp 1

A Seed of Justice: The Lynching of Ed Johnson and Incorporation of the Sixth AmendmentGod bless you all. I am innocent.[footnoteRef:1] Those are the final words of Ed Johnson, a black man who was convicted of raping a white woman in Chattanooga, Tennessee, in 1906. As was all too common for a black man accused of rape in the South, Ed Johnson did not receive a fair trial. In three weeks time, he was railroaded through the Tennessee court system. Twice, a lynch mob attacked the jail before the trial and a juror threatened to kill Johnson in the middle of the trial. His court-appointed lawyers, who had begged the judge to not force them to defend Johnson, abandoned the defendant before and after the trial. The judge refused to allow his lawyers to file motions protecting the defendants rights and ordered the defense attorneys to convince Johnson to waive his right to appeal. [1: Mark Curriden and Leroy Phillips, Jr., Contempt of Court: The Turn-of-the-Century Lynching That Launched 100 Years of Federalism (New York: Faber and Faber, Inc., 1999), 213. ]

Twice, white mobs tried to exact revenge upon the accused rapist. Before Johnsons original trial, the jail was bombarded, but Johnson had been whisked away to Nashville for his safety. However, during his appeals process, Johnson was kidnapped from his jail cell and lynched with the sheriffs approval. Johnson was murdered by a mob because the Supreme Court decided to take matters into its own hands. Justice John Marshall Harlan and others on the Court had grown tired of the unfairness of the justice system toward blacks in the South. This case was the opportunity to right wrongs and to set an innocent man free. The white mob took that opportunity away from the Court when it murdered Johnson. Johnsons last words triggered historic moments in the Courts history. The Court held those responsible for the mob in contempt of court and for the first and only time, the Supreme Court held a trial and convicted those responsible. While others have also noted the unique nature of the Supreme Court holding a trial to discipline a Southern sheriff, this paper seeks to look at this incident through the use of a counterfactual. What if Johnson had not been lynched and had been able to continue his appeals process all the way to the Supreme Court? I declare that had that happened, Johnsons conviction would have been overturned. His Sixth Amendment right to a fair trial in front of an impartial jury would have been incorporated through the due process clause of the Fourteenth Amendment. In the 1833 Supreme Court case Barron v. Baltimore[footnoteRef:2], the Court ruled that the Bill of Rights only applied to the federal government. After the Civil War, Congress drafted the Fourteenth Amendment. One of the authors of the amendment, John Bingham of Ohio, expressed the amendments stated purpose was to nationalize or incorporate the first eight amendments of the Constitution to the states. This meant that those amendments would apply to the federal government and all the state governments. [2: Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)]

The Supreme Court did not approve of that interpretation at first. A selective incorporation of specific amendments began in 1925 in Gitlow v. New York.[footnoteRef:3] In that case, the First Amendment was applied to the states. However, if the lynch mob had not murdered Ed Johnson, the ingredients for the first incorporation case in the Supreme Courts history would have existed. Associate Justice John Marshall Harlan granted Johnsons original appeal to the Court. He had become appalled at how state courts had made a mockery of the justice system. Harlan believed that Johnson was an innocent man and saw his case as an opportunity to correct years of wrong. Harlan believed that the Bill of Rights should apply to the states and first argued this in Hurtado v. California.[footnoteRef:4] He also argued in Plessy v. Ferguson[footnoteRef:5] that the Constitution is colorblind. Combining Harlans sentiments along with other justices displeasure at the lack of due process in state courts for blacks, I believe that had Johnson not been lynched, his conviction would have been overturned because he did not receive a fair trial in front of an impartial jury. The Sixth Amendment would have been applied to the states sixty-two years before it actually was in Duncan v. Louisiana.[footnoteRef:6] [3: Gitlow v. New York, 268 U.S. 652 (1925) ] [4: Hurtado v. California, 110 U.S. 516 (1884) ] [5: Plessy v. Ferguson, 163 U.S. 537 (1896) ] [6: Duncan v. Louisiana, 391 U.S. 145 (1968) ]

This incident is largely underappreciated in scholarship. There is only one major work regarding this case. Mark Curriden and Leroy Phillips, Jr. wrote Contempt of Court: The Turn-of-the-Century Lynching that Launched 100 Years of Federalism in 1999. This book largely deals with separate issues and gives an excellent summary of the case. I intend, however, to look at the case in a counterfactual manner. The Case[footnoteRef:7] [7: The following summary is dependent on these two sources: Curriden and Phillips, Contempt of Court. Mark Curriden. A Supreme Case of Contempt: A tragic legal saga paved the way for civil rights protections and federal habeas actions. ABA Journal Vol. 95 No. 6 (June 2009): 34-42. ]

On January 23, 1906, Nevada Taylor left her job at W.W. Brooks Grocery Story in Chattanooga at six in the evening. Taylor spent most of her trip home on one of the towns electric trolleys. The ride took about twenty minutes; she stepped off the trolley near 35th Street at around 6:30 p.m. That night was very dark; it was difficult to recognize anyone close by. As Taylor began her brief walk home from the trolley station, she passed by the Forest Hills Cemetery. Suddenly, a man attacked her. He pulled a leather strap around her throat and began to choke her. The attacker told Taylor, If you scream, I will kill you.[footnoteRef:8] Taylor could see her home from the scene of the attack. Her attack and raping lasted less than ten minutes. Once Taylor regained consciousness, she fled home and her father called the police. Immediately, public outcry spread, as demonstrated in the next days newspaper. The crime was described as the most fiendish crime in the history of Chattanooga.[footnoteRef:9] [8: Curriden and Phillips, Contempt of Court, 26. ] [9: Brutal Crime of Negro Fiend. The Chattanooga News, January 24, 1906, 5. ]

Taylor never saw her attacker, rendering her unable to identify the attackers race. Taylor believed the attacker to be a Negro with a soft and kind voice. Deputies found a black leather strap near the scene of the crime, but Taylor was unable to identify it as the one used against her. With very little evidence and a public clamoring for justice, Sheriff Joseph Shipp felt pressured to produce results. The total reward for the capture of Taylors attacker amounted to $375. That reward produced a break in the case. Will Hixson, a white man, stated to Shipp that he had been at the trolley station around 5:50 p.m. and had seen Ed Johnson, a black man, nearby with a leather strap in hand. After Hixson gave a positive identification, Johnson was arrested, charged with the rape, and questioned about the attack. Johnson, who had no lawyer present during questioning because it was not yet a right he could exercise, denied committing the crime. At this time, the Supreme Court had not recognized the right to an attorney during questioning. Word quickly spread throughout town that Johnson had been taken into custody. A large mob gathered outside the jail and tried to break in and lynch Johnson. The Chattanooga News seemed to invite a lynching with the words: Hanging would be too good for this contemptible villain, who has destroyed a pure, good womans honor and virtue, and probably her life.[footnoteRef:10] However, Johnson had been safely transported to Nashville earlier in the day. [10: The Chattanooga News, January 25, 1906, pg. 4. ]

Taylor was taken to Nashville to identify the suspect and to the best of her knowledge identified Johnson as her attacker. Shipp told Judge Sam McReynolds to proceed with the grand jury, which handed down its indictment for Ed Johnson. Since Johnson could not afford lawyers, McReynolds appointed three white lawyers for Johnson: Robert Cameron, William Thomas, and Lewis Shepherd. In the U.S. a person charged with a crime was not guaranteed a lawyer until 1963 after the Supreme Court decided Gideon v. Wainwright.[footnoteRef:11] However, Tennessee was one of the few states in 1906 that already guaranteed a court-appointed lawyer to anyone facing the death penalty in a trial.[footnoteRef:12] The trial that commenced for Johnson was anything but just. Johnsons lawyers had very little time to prepare their defense and had less than a week before the trial would start. Johnsons lawyers wanted to file a motion for a delay and change of venue, but Judge McReynolds told them that such motions would not be allowed. [11: Gideon v. Wainwright, 372 U.S. 335 (1963).] [12: Curriden and Phillips, Contempt of Court, 60. ]

The trial began on February 6, just 14 days after the crime. Thirty-four white men were summoned for jury service. No blacks were summoned. Nevada Taylor was the first witness. She walked jurors through the attack and, pointing at Johnson, said, I believe he is the man.[footnoteRef:13] The second witness was Hixson who claimed that he saw Johnson near the scene of the crime at about the time the crime occurred. However, through cross-examination and rebuttal witnesses, it became apparent that Hixson probably was not near the scene of the crime at all on the night of the attack. Witnesses stated that the morning the reward was announced, Hixson saw Johnson working on a church roof, inquired about Johnsons identity, and later that day was talking to Shipp about Johnson. The next day, defense attorneys called 17 witnesses that each stated they had seen Johnson at the Last Chance Saloon at various times during the attack. One day later, the jurors recalled Taylor to the stand to try to get a positive identification of Johnson. After being asked by one juror, Taylor could not swear that Johnson was her attacker. A second juror crying and screaming at Taylor asked again. Taylor said that she believed Johnson was the guilty Negro.[footnoteRef:14] As soon as Taylor said that, a third juror jumped out of his seat and yelled toward Johnson, If I could get at him, I would tear his heart out right now![footnoteRef:15] [13: Curriden and Phillips, Contempt of Court, 87. ] [14: Curriden and Phillips, Contempt of Court, 109. ] [15: Curriden and Phillips, Contempt of Court, 109. ]

Johnson was convicted of the rape and Judge McReynolds informed attorneys that he planned to sentence Johnson to death. Johnsons attorneys told him that an appeal would be a waste of time and that he should accept the courts decision. Johnson stated before the court, The jury says that I am guilty, and I guess I will have to suffer for what somebody else has done. I guess I will be punished for another persons crime.[footnoteRef:16] Judge McReynolds scheduled Johnsons execution on March 13. [16: Curriden and Phillips, Contempt of Court, 129. ]

Ed Johnsons father begged Noah Parden, a prominent black attorney in Chattanooga, to take on his sons case. Parden and his partner Styles Hutchins had helped Lewis Shepherd round up witnesses but had declined to join the defense team in the original trial. Parden accepted the challenge and began Johnsons appeal. On February 13, Parden and Hutchins filed a motion before McReynolds for a new trial. The appeal was denied because the lawyers had missed the 72-hour deadline. After denying their appeal, McReynolds scolded the lawyers saying, What can two Negro lawyers do that the defendants previous three attorneys were unable to achieve? Do you know the law better than this court or the lawyers who represented the defendant? Do you think a Negro lawyer could possibly be smarter or know the law better than a white lawyer?[footnoteRef:17] On February 20, Parden and Hutchins filed an appeal with the Tennessee Supreme Court that was unanimously denied on March 3. [17: Curriden and Phillips, Contempt of Court, 144. ]

While the state of Tennessee was satisfied that justice had been served, Johnsons new lawyers sought another remedy to correct injustice. On March 7, Parden and Hutchins filed a petition in the U.S. District Court in Knoxville under the 1867 Habeas Corpus Act that allowed defendants in state criminal trials to ask federal judges to review their cases if they believed they had been imprisoned in violation of their federal constitutional rights. Pardens petition pointed out that Johnsons original lawyers were denied the right to file pretrial motions, that the trial was unfairly influenced by the threat of mob violence, that only white people were summoned for jury service, that Johnsons lawyers abandoned their client by waiving Johnsons right to appeal, and that there were numerous irregularities during the trial, including the fact that a juror tried to attack Johnson during the trial. In Judge C.D. Clarks decision he stated that counsel were to an extent terrorized on account of the fear of the mob.[footnoteRef:18] Clark expressed doubts about the states case against Johnson but said that he was not empowered by the Constitution to grant the habeas petition. He stayed Johnsons execution 10 days to allow Johnsons lawyers to appeal directly to the Supreme Court. [18: Curriden and Phillips, Contempt of Court, 167. ]

The federal court decision caused tension in the community. Judge McReynolds said the federal court had no right to intervene in a state court case, and rioters set fire to Parden and Hutchins law office. Despite these set backs, Parden filed the official appeal for the denial for federal habeas with the U.S. Supreme Court clerk. This was the first time a black lawyer had served as lead counsel in a case before the Supreme Court. On March 17, Parden made his appeal directly to Associate Justice John Marshall Harlan, who was assigned to hear emergency appeals originating from the 6th Circuit. Parden pointed to specific violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments. The atmosphere in the community was so poisoned that there was no way Ed Johnson could have received a fair trial from an impartial jury, Parden said. Everybody in that courtroom knew going in what they were going to do. They were there to give Ed Johnson a trial, and they were going to hang him.[footnoteRef:19] The next day Harlan allowed the appeal. [19: Curriden and Phillips, Contempt of Court, 14. ]

News spread quickly in Chattanooga about Johnsons successful appeal to the Supreme Court. A mob formed to storm the jail to take Johnson and murder him. Leaders of the mob found no resistance at the jail. Sheriff Shipp, claiming that talk of a lynching was nonsense, had given all his deputies the night off except for one jailer, 72-year-old Jeremiah Gibson. The siege on the jail began at 8 p.m. on March 19. Shipp was informed of the riot and went to the jail. He did not physically try to stop the riot. He was told to go to the bathroom and wait, and he complied. After three hours the mob reached Johnson, took him from the jail, and headed toward the Walnut Street Bridge over the Tennessee River. Someone placed a noose around Johnsons neck and ordered him to confess. Johnson stated, I am ready to die. But I never done it. I am going to tell the truth. I am not guilty. I have said all the time that I did not do it and it is true. I was not there . . . God bless you all. I am innocent.[footnoteRef:20] [20: Curriden and Phillips, Contempt of Court, 213. ]

These words incensed the crowd, and they lifted Johnson into the air. The noose held Johnson for a few minutes but he was not dying quickly enough so members of the crowd opened fire and shot at Johnson. One of the bullets snapped the noose and Johnson fell to the bridge. Someone in the crowd stated that Johnson was not dead yet so a man, later identified as a deputy sheriff, shot Johnson in the head at point blank range. He then placed a note on Johnsons body that said: To Justice Harlan. Come get your nigger now.[footnoteRef:21] [21: Curriden and Phillips, Contempt of Court, 214. ]

Supreme Court Justices and President Theodore Roosevelt heard about the lynching the next morning. Discussions quickly began about a federal investigation. Reactions were mixed in initial news reports. Local Chattanooga papers blamed the Supreme Court and their intervention for Johnsons lynching. Justice Harlan had a different opinion. Johnson was tried by little better than mob law before the state court . . . He had the right to a fair trial and the mandate of the Supreme Court has for the first time in the history of the country been openly defied by a community.[footnoteRef:22] An article in the New York Times on March 21, 1906, stated, The open defiance of the Supreme Court of the United States has no parallel in the history of the court. No justice can say what will be done. All, however, agree in saying that the sanctity of the Supreme Court shall be upheld if the power resides in the court and the government to accomplish such a vindication of the majesty of the law. [22: The Washington Post, March 20, 1906, pg. 1.]

Attorney General William Moody sent two Secret Service Agents to Chattanooga to investigate the lynching by interviewing witnesses. Those agents came to one conclusion: A conspiracy existed between Sheriff Shipp, his deputies, and the leaders of the lynch mob to kill Johnson. On May 28, Moody did something that was unprecedented and has never been done since. He charged Shipp, six deputies, and nineteen leaders of the mob with contempt of the Supreme Court. On that same day, Sheriff Shipp told The Birmingham News, The Supreme Court of the United States was responsible for this lynching. Shipp and all the other defendants became the first individuals ever to enter a not guilty plea before the Supreme Court. The defense argued that the Supreme Court did not have the authority to intervene in a state criminal case by means of federal habeas. They also argued that the court did not have the power to stay Johnsons execution or declare him a federal prisoner during the appeal process. Since the stay was invalid, the defense argued, the court could not find Shipp and the defendants in contempt of court. On December 24, a unanimous court rejected the defendants plea. The opinion, written by Justice Oliver Wendell Holmes, stated, This court, and this court alone, has jurisdiction to decide whether a case is properly before it and until its judgment declining jurisdiction is announced, it has authority to make orders to preserve existing conditions, and a willful disregard of these orders constitutes contempt. The power and dignity of this court are paramount.[footnoteRef:23] [23: United States v. Shipp, 203. U.S. 563 (1906). ]

The trial itself began on February 12, 1907. The Court appointed its deputy clerk as special master to take testimony and oversee the admission of evidence that took place at the federal courthouse in Chattanooga. The justices were not in attendance. On March 2, 1909, the lawyers gathered in the Old Senate Chambers in the Capitol for closing arguments. New Attorney General Charles Bonaparte delivered the closing arguments himself. Former DA Moody had been named to the court to fill a vacancy. This proceeding is unique in the history of the court, Bonaparte said. Its importance cannot be overestimated. Lynchings have occurred in defiance of state laws and state courts without attempt, or at most with only desultory attempt, to punish the lynchers.[footnoteRef:24] Bonaparte went on to say that, never in its history has an order of this court been disobeyed with such impunity. Justice is at an end when orders of the highest and most powerful court in the land are set at naught. Obedience to its mandates is essential to our institutions.[footnoteRef:25] [24: Curriden and Phillips, Contempt of Court, 319. ] [25: Curriden and Phillips, Contempt of Court, 323.]

Over the next five days, the justices met and deliberated. A consensus formed among five of the eight justices. Moody recused himself since he had argued the case before the court. The justices were divided on the meaning of the verdict. Some argued it was about enforcing the integrity of the court while others believed the court needed to send a message to states that lynch law would not be tolerated. On May 24, 1909, Chief Justice Melville Fuller addressed both points when he announced that Shipp, one of his deputies, and four leaders of the mob had been found guilty of contempt. It is apparent that a dangerous portion of the community was seized with the awful thirst for blood which only killing can quench, Fuller stated. The persons who hung and shot this man were so impatient for his blood that they utterly disregarded the act of Congress as well as the order of this court. When anyone in custody is at the mercy of a mob, Fuller continued, the administration of justice becomes a mockery. When this court granted a stay of execution on Johnsons application, it became its duty to protect him until his case should be disposed of. And when its mandate, issued for his protection, was defied, punishment of those guilty of such attempt must be awarded.[footnoteRef:26] [26: United States v. Shipp, 214 U.S. 386 (1909). ]

Shipp and the other defendants were sentenced to 90 days in federal jail in Washington, D.C., but they only served 60 days for good behavior. When Shipp returned to Chattanooga on January 30, 1910, he was greeted with a heros welcome by more than 10,000 cheering onlookers. Later, a monument was constructed in Sheriff Shipps honor. Judge McReynolds went on to serve in Congress for eighteen years.Fourteenth AmendmentA proper understanding of the ratification of the Fourteenth Amendment is key to my argument that Johnsons conviction would have been overturned through the incorporation of at least the Sixth Amendment through the due process clause of the Fourteenth Amendment.Even though Ed Johnson was a black man, he should have received rights that would have protected his life. Just because of his race, Johnson did not receive a fair trial in front of an all-white jury. The Fourteenth Amendment sought to extend national rights to citizens regardless of their race and has become the most litigated part of the U.S. Constitution. It was proposed in June 1866 and ratified in July 1868. The amendment was one of three passed soon after the end of the Civil War. The Thirteenth Amendment eliminated involuntary servitude except in cases of punishment for crimes. Many southern states enacted Black Codes that essentially stripped former slaves of their newfound freedoms. In response, Congress passed the 1866 Civil Rights Bill, which ignored the Supreme Courts Scott v. Sanford decision by recognizing the citizenship of all native-born Americans and attempting to protect their rights. This bill was enacted despite President Johnsons veto and he claimed that the bill was unconstitutional. Doubts existed as to whether the Thirteenth Amendment adequately protected the rights that had usually rested with the states.[footnoteRef:27] [27: John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2010 (3rd Edition), Santa Barbara, CA: ABC-CLIO, 2010) Proquest ebary, Web, 22 October 2014, 209. ]

The Fourteenth Amendment is an amalgamation of proposals that were brought together to form a single amendment with the idea of increasing the likelihood of congressional adoption and state ratification.[footnoteRef:28] Section one of the amendment, which is the relevant section for my argument states: [28: John R. Vile, Encyclopedia of Constitutional Amendments, 209. ]

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This section overturned Scott v. Sanford (1857) by extending citizenship to all persons born in the United States. It also forbade states to abridge the privileges and immunities of such citizens. More broadly, it prohibited states from denying persons due process of law and equal protection of the law.[footnoteRef:29] [29: John R. Vile, Encyclopedia of Constitutional Amendments, 209.]

Congressman John Bingham was a member of the Joint Committee on Reconstruction in Congress. As a member of that committee he wrote the key language of section one and fought for its ratification in the House. Although Bingham did not write the first sentence of section one, the rest of the section belongs to him.[footnoteRef:30] Through the statements of its author, we learn that the purpose of section one of the Fourteenth Amendment is to nationalize the first eight amendments, called the Bill of Rights, to the states. This clause of the amendment would essentially overrule the Supreme Courts decision in Barron v. Baltimore[footnoteRef:31], which stated that the Bill of Rights did not apply to state governments. Prior to the amendments approval, Bingham stated during closing debate in the House that the Fourteenth Amendment meant to curb the unconstitutional actions of state governments through the application of the first eight amendments to the Constitution: [30: Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment, (New York: NYU Press, 2013), 121. ] [31: Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)]

Many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guaranteed privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none . . . It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment.[footnoteRef:32] [32: Cong. Globe, 39th Cong., 1st Sess. 2542-43 (1866) (statement of Rep. Bingham).]

In 1871, in a speech regarding the Ku Klux Klan Act, which was enacted to enforce section one, Bingham reflected on his thinking. He said that the key to deciphering the amendments wording was in Barron v. Baltimore: In reexamining that case of Barron, Mr. Speaker, after my struggle in the House of February 1866, . . . I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendment to the Constitution of the United States, the Chief Justice said: Had the framers of those amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention. Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts; imitating their example and imitating it to the letter, I prepared the provision of the first section of the Fourteenth Amendment as it stands in the Constitution. The privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.[footnoteRef:33] [33: Cong. Globe, 42nd Cong., 1st Sess. app at 84 (1871) (statement of Rep. Bingham).]

Bingham then read the first eight amendments and said, These eight articles I have shown never were limitations upon the powers of the States, until made so by the Fourteenth Amendment.[footnoteRef:34] Bingham clearly argues that the first eight amendments of the Bill of Rights should apply to the states. Bingham also argued on the floor of Congress that the amendment was meant to protect the inborn rights of every person.[footnoteRef:35] He saw the adoption of the amendment as a declaration of the American people that they stood for the absolute equality of all citizens.[footnoteRef:36] [34: Cong. Globe, 42nd Cong., 1st Sess. app at 84 (1871) (statement of Rep. Bingham).] [35: William E. Nelson, Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988), 66] [36: Nelson, Fourteenth Amendment, 78.]

Since the amendment was ratified, lawmakers and the courts questioned its interpretation. Much debate revolved around the extent to which the amendment was to relate to earlier understandings of federalism. Many questioned whether section one of the amendment was meant to overrule Barron v. Baltimore[footnoteRef:37] and apply the provisions of the Bill of Rights to the states. Even though Bingham argued for such an interpretation, the Supreme Court did not initially take this position. Republicans argued that the amendment did not protect specific rights our give Congress or the courts power to interfere with state lawmaking that either created or denied rights. The only effect of the amendment was to keep the states from purposefully discriminating between different classes of citizens. As long as a state treated its citizens fairly, only making a distinction based on reason, the state would remain immune from federal intervention.[footnoteRef:38] If Bingham and the Republicans interpretation had held sway, then Johnsons case should have never reached the Supreme Court on appeal. The Courts decisions regarding the Fourteenth Amendment before the Shipp case gave a restrictive reading to the amendment. In the Slaughterhouse Cases[footnoteRef:39], the Court narrowly read the privileges and immunities of section one of the amendments. In the Civil Rights Cases[footnoteRef:40], the Court overturned the Civil Rights Act of 1875, which had tried to prevent discrimination in public places. The Court determined that the Fourteenth Amendment applied only to state action and not to actions by individuals. Finally, in Plessy v. Ferguson[footnoteRef:41], the Court upheld racial segregation and Jim Crowe laws as long as the accommodations for blacks were separate but equal.[footnoteRef:42] [37: Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)] [38: Nelson, Fourteenth Amendment, 115. ] [39: Slaughter-House Cases, 83 U.S. 36 (1873)] [40: Civil Rights Cases, 109 U.S. 3 (1883)] [41: Plessy v. Ferguson, 163 U.S. 537 (1896)] [42: John R. Vile, Encyclopedia of Constitutional Amendments, 210.]

John Marshall HarlanIf the Fourteenth Amendments due process clause meant anything, as has been argued thus far, it was that all persons must be accorded fair treatment in state criminal proceedings. Fair treatment should be understood as following the forms of justice set out in the Fourth through Eighth Amendments, even though these had never been applied to the states at the time of Johnsons case. The Court did very little to assure this kind of due process. It continued its pre-Fourteenth Amendment course of allowing the states to do whatever they wished in handling criminal procedures.[footnoteRef:43] Ed Johnsons case would have changed that, and the Court would have taken a stand against unfair state criminal procedures. [43: Loren P. Beth, John Marshall Harlan: The Last Whig Justice (Lexington, KY: The University Press of Kentucky, 1992), 216. ]

Associate Justice John Marshall Harlan stood up against his colleagues and their refusal to give even a small amount of protection to persons caught in the failings of state criminal processes. Harlan was born into a prominent Kentucky slaveholding family in 1833. After attending school in Frankfort, Harlan attended Centre College and studied law. Harlan entered politics early and was actively involved in Kentuckys Whig Party. He served as a colonel in the Union Army during the Civil War. After the War, he was nominated as Kentuckys Attorney General. He eventually became a Republican and was nominated to the Supreme Court by Rutherford B. Hayes in 1877. Over twenty-five years, Harlan dissented from decisions holding that due process did not apply to state criminal procedures. One such case was Hurtado v. California[footnoteRef:44]. In Hurtado the defendant in a murder case had been convicted in a trial held without a grand jury indictment. California had used a now common method of bringing charges against a defendant called criminal information. Hurtado claimed that this was an unfair procedure since both custom and the Bill of Rights demanded indictment by a grand jury. To understand the arguments in the case, we must remember that the Bill of Rights had always been held to apply only to federal cases until the Fourteenth Amendment. There is a due process clause in both the Fifth Amendment and the Fourteenth Amendment, so Hurtados lawyers had to argue that the clause in the Fourteenth meant something more than it apparently meant in the Fifth. California claimed that since there was a separate grand jury clause, this right was not part of due process, since due process meant only what it had always meant in the Fifth Amendment.[footnoteRef:45] [44: Hurtado v. California, 110 U.S. 516 (1884) ] [45: Loren P. Beth, John Marshall Harlan, 217. ]

Justice Stanley Matthews, writing for the majority in a 7-1 decision, followed precedent by saying that if the framers of the Fourteenth Amendment had meant that the amendment incorporated all of the Bill of Rights, they could have said so in much plainer fashion. Matthews went all the way back to the Magna Carta to clarify whether grand juries were fundamental and traditional to American ideas of justice and were a part of common law. Matthews said they were not. Due process, he said, does not include every particular of procedure that may have become traditional, but only those involving the very substance of individual rights to life, liberty, and property. Grand jury indictment, he decided, was not fundamental, being merely a preliminary proceeding that does not affect the result of the trial.[footnoteRef:46] [46: Hurtado v. California, 110 U.S. 516 (1884) ]

Justice Harlan disputed Matthews claims every chance he had. Harlan pointed out the similarities between the Fifth and the Fourteenth Amendments and concluded similarity was no accidental, but evinces a purpose to impose upon the states the same restrictions . . . which had been imposed upon the general government.[footnoteRef:47] Harlan also tried to prove that due process means more than merely what a majority of the justices might feel is fundamental:[footnoteRef:48] It refers to those settled usages and modes of proceeding existing in the common and statute law of England.[footnoteRef:49] Harlan insisted by quoting Blackstone and other English writers that the use of an information to indict was not consistent with . . . due process of law.[footnoteRef:50] Harlan thought the majority roamed through the Bill of Rights picking at will the amendments they thought were fundamental. Harlan thought this decision would allow states to ignore other fundamental rights like a jury trial. In Harlans analysis, the due process clause of the Fifth Amendment was meant to include all the other trial rights settled in English law, but some of these were enumerated in the Bill of Rights merely to make it perfectly clear that Congress could not do away with them. So the clause in the Fourteenth Amendment has the same meaning as the one in the Fifth.[footnoteRef:51] [47: Hurtado v. California, 110 U.S. 516 (1884) ] [48: Loren P. Beth, John Marshall Harlan, 217. ] [49: Hurtado v. California, 110 U.S. 516 (1884) ] [50: Hurtado v. California, 110 U.S. 516 (1884) ] [51: Loren P. Beth, John Marshall Harlan, 217. ]

In Hurtado, Harlan argues for incorporation of the Bill of Rights twenty-two years before Ed Johnson was lynched. In Plessy v. Ferguson[footnoteRef:52], another case that came before Harlan and his fellow justices, Harlan penned another dissent in which he argues for the rights of African Americans. In 1890, Louisiana passed the Separate Car Act that required separate accommodations for blacks and whites on railroads, including separate railway cars. A group of prominent black, creole, and white New Orleans residents formed the Committee of Citizens dedicated to repeal the law. They eventually persuaded Homer Plessy, a man who was one-eighth black, to participate in a planned test case. Plessy under Louisiana law was classified as black and thus required to sit in the colored car.[footnoteRef:53] [52: Plessy v. Ferguson, 163 U.S. 537 (1896)] [53: Loren P. Beth, John Marshall Harlan, 217. ]

In a seven-to-one decision handed down on May 18, 1896, the Court rejected Plessy's arguments based on the Fourteenth Amendment. The majority of the Court rejected the view that the Louisiana law implied any inferiority of blacks, in violation of the Fourteenth Amendment. Instead, it contended that the law separated the two races as a matter of public policy. Justice Henry Brown writing for the majority declared, We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.[footnoteRef:54] Thus, separating the races in public accommodations did not violate the Fourteenth Amendments Equal Protection clause as long as the accommodations were separate but equal. [54: Plessy v. Ferguson, 163 U.S. 537 (1896)]

Justice Harlan wrote a dissent in which he asserted that the law regards man as man:In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.[footnoteRef:55] [55: Plessy v. Ferguson, 163 U.S. 537 (1896) ]

ConclusionJustice Harlan argued for incorporation of the Bill of Rights and argued that blacks were equal in the eyes of the law; however, Harlans lone voice was not enough at the time to change the law. Selective incorporation of certain amendments began many years later, and the Plessy decision was not overturned until 1954. Yet, I believe Ed Johnsons case would have changed that. Justices other that John Marshall Harlan were disgusted by the situation. Talking to reporters from the Washington Post before oral arguments, Justice Oliver Wendell Holmes described the state-court trial given to Johnson as a shameful attempt at justice. He also compared the judge and jury to the lynch mob. This was not merely a case of a defendant claiming he did not receive a fair trial, Holmes told reporters. In all likelihood, this was a case of an innocent man improperly branded a guilty brute and condemned to die from the start. Holmes also scolded the lawyers appointed to defend Johnson at his trial for abandoning their client after the jurys verdict.[footnoteRef:56] [56: The Washington Post, March 22, 1906, pg. 5.]

Not only were Harlan and Holmes disgusted by the state courts handling of the case, but during oral arguments both Harlan and Holmes questioned Shipps lawyer, Judson Harmon, about Fourteenth Amendment incorporation. Harlan surprised Harmon by asking, What of the argument that the Fourteenth Amendment incorporates the Bill of Rights on state courts? If we determined that it did, would that make a difference? Hudson replied, Well, that is not the law. This Court has ruled repeatedly that state courts are not duty-bound to follow the Bill of Rights in the federal Constitution. Then Justice Holmes interjected, But you would agree that this Court has the authority to determine that the Sixth Amendment is binding on state courts, do you not? Harmon was at a loss for words. He expected a question like that to come from Harlan and not Holmes. Hudson knew that Harlan wanted state courts to abide by the specific legal requirements set out in the first ten amendments. It was at this moment that Harmon later acknowledged that he looked into the faces of all the justices and realized just how personally outraged they were at the state courts handling of the Johnson case. Harmon finally responded that he did not know how to answer the question since it was not the law of the land, at least not yet.[footnoteRef:57] [57: Curriden and Phillips, Contempt of Court, 275.]

If the lynch mob had never murdered Ed Johnson and his case had been allowed its appeal to the Supreme Court, Justices Harlan and Holmes would have led the charge to have his case overturned on Sixth Amendment grounds. The Sixth Amendment right to a fair trial would have been incorporated against the states as a result of Ed Johnsons appeal. Johnsons appeal would have created the perfect storm to allow this to happen. Harlan had been arguing for incorporation and equal treatment for blacks for years. The justices were appalled at how the Tennessee courts handled Johnsons case. They were so outraged that they felt they had to do something to correct the injustices. What they would have done was incorporate the Sixth Amendment to the states. The Sixth Amendment right to a fair trial was eventually applied to the states, as was every other argument that Johnsons lawyers made before the Supreme Court. The case itself was a precursor of rights to come in the future. In 1923, the Court, in an opinion written by Justice Holmes, found that a trial in which a lynch mob puts pressure on the judge, lawyers, or jury, or exerts any other kind of influence on a case is a violation of a defendants right to due process.[footnoteRef:58] In 1932 the justices ruled that people accused of capital crimes in state or federal courts have to be provided a lawyer.[footnoteRef:59] In 1948 the Court decided that all criminal trials had to be open to the public.[footnoteRef:60] In 1966 the Court ruled that it was a violation of a persons Fifth Amendment right against self-incrimination to question a suspect and not allow their lawyer to be present.[footnoteRef:61] In 1967 the Court ruled that an individual does have the right to an effective attorney during an appeals process, but that attorney does not have the authority to decide if the appeal has merit. Only an appellate court can do that.[footnoteRef:62] Also, in 1967 the Court determined that a defendant has the right to have his or her attorney present during a witness identification lineup.[footnoteRef:63] In 1970, the Court ruled that a local court could not exclude blacks from jury service.[footnoteRef:64] In 1972 the justices ruled[footnoteRef:65] that the death penalty could no longer be used as punishment in rape cases.[footnoteRef:66] [58: Moore et al. v. Dempsey, 261 U.S. 86 (1923)] [59: Powell v. Alabama 287 U.S. 45 (1932)] [60: In re Oliver, 333 U.S. 257 (1948)] [61: Miranda v. Arizona, 384 U.S. 436 (1966)] [62: Anders v. California, 386 U.S. 738 (1967)] [63: United States v. Wade, 388 U.S. 218 (1967)] [64: Carter v. Jury Commission of Greene County 396 U.S. 320 (1970)] [65: Coker v. Georgia, 433 U.S. 584 (1977)] [66: Curriden and Phillips, Contempt of Court, 344-345. ]

On February 27, 2000, almost ninety four years after Ed Johnson was killed, Judge Douglas A. Meyers set aside Johnsons conviction of raping Nevada Taylor, saying: 'Something I don't believe the white community really understands is that, especially at that time, the object was to bring in a black body, not necessarily the person who had committed the crime. And I think that's what happened in this case. There was a rush to find somebody to convict and blame for this.[footnoteRef:67] [67: Emily Yellin. Lynching Victim is Cleared of Rape, 100 Years Later. New York Times, February 27, 2000. Accessed December 3, 2014. http://www.nytimes.com/2000/02/27/us/lynching-victim-is-cleared-of-rape-100-years-later.html]

Bibliography

Beth, Loren P. John Marshall Harlan: The Last Whig Justice. Lexington, KY: The University Press of Kentucky, 1992.

Brutal Crime of Negro Fiend. The Chattanooga News, January 24, 1906, pg. 5.

Chattanooga News, The. January 25, 1906, pg. 4.

Cong. Globe, 39th Cong., 1st Sess. 2542-43 (1866) (statement of Rep. Bingham).

Cong. Globe, 42nd Cong., 1st Sess. app at 84 (1871) (statement of Rep. Bingham).

Curriden, Mark, and Leroy Phillips, Jr. Contempt of Court: The Turn-of-the-Century Lynching That Launched 100 Years of Federalism. New York: Faber and Faber, Inc., 1999.

Curriden, Mark. A Supreme Case of Contempt: A tragic legal saga paved the way for civil rights protections and federal habeas actions. ABA Journal Vol. 95 No. 6 (June 2009): 34-42.

Magliocca, Gerard N. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. New York: NYU Press, 2013.

Nelson, William E. Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, MA: Harvard University Press, 1988.

Vile, John R. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2010 (3rd Edition), Santa Barbara, CA: ABC-CLIO, 2010 Proquest ebary, Web, 22 October 2014.

Washington Post, The. March 20, 1906, pg. 1.

Washington Post, The. March 22, 1906, pg. 5.

Yellin, Emily. Lynching Victim is Cleared of Rape, 100 Years Later. New York Times, February 27, 2000. Accessed December 3, 2014. http://www.nytimes.com/2000/02/27/us/lynching-victim-is-cleared-of-rape-100-years-later.html

Supreme Court Cases Cited

Anders v. California, 386 U.S. 738 (1967)

Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)

Carter v. Jury Commission of Greene County 396 U.S. 320 (1970)

Civil Rights Cases, 109 U.S. 3 (1883)

Coker v. Georgia, 433 U.S. 584 (1977)

Duncan v. Louisiana, 391 U.S. 145 (1968)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Gitlow v. New York, 268 U.S. 652 (1925)

Hurtado v. California, 110 U.S. 516 (1884)

In re Oliver, 333 U.S. 257 (1948)

Miranda v. Arizona, 384 U.S. 436 (1966)

Moore et al. v. Dempsey, 261 U.S. 86 (1923)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Powell v. Alabama 287 U.S. 45 (1932)

Slaughter-House Cases, 83 U.S. 36 (1873)

United States v. Shipp, 203. U.S. 563 (1906)

United States v. Shipp, 214 U.S. 386 (1909)

United States v. Wade, 388 U.S. 218 (1967)