Joseph P. Bradley's Journey: The Meaning of Privileges and Immunities

Justice Joseph P. Bradley of New Jersey will forever be remembered as the judge who in 1883 cruelly scorned black rights in the Civil Rights Cases . ¹ Yet Bradley's position that year marked the end of a journey that had started in a quite different place. Thirteen years before, when he first joined the Court, Bradley had read Fourteenth Amendment protections of citizens' rights expansively, believing that "it is possible that those who framed the [Fourteenth Amendment] were not themselves aware of the far reaching character of its terms." In 1870 and 1871, Bradley wrote that the Fourteenth Amendment's Privileges and Immunities Clause reached "social evils … never before prohibited" and represented a commitment to " fundamental " or "sacred" rights of citizenship that stood outside the political process and "cannot be abridged by any state." ² By 1883, however, Bradley had turned away from such views. In the Civil Rights Cases , he wrote that nothing in the Thirteenth or Fourteenth Amendments countenanced a law against segregation. Blacks, he said, must take "the rank of mere citizen" and cease "to be the special favorite of the laws." ³