Justice Lumpkin's Bill of Rights VI

In my first post about Campbell v. Georgia, I briefly reviewed the facts but said that they contained a great irony. Now it's time to pull back the curtain.

Mays was beaten and stabbed late Saturday night or early Sunday morning. He died late Monday. On Monday, while he knew he was dying, he told people who were attending him that it was Campbell who had assaulted him. The people who heard Mays' statements testified to them in court. It was the admission of these hearsay statements -- the statements by witnesses as to what Mays had supposedly told them -- that Campbell contended violated the Confrontation Clause.

The irony lies in the fact that Justice Lumpkin ultimately concluded that the statements were hearsay -- that is, the witnesses had testified about unsworn, out-of-court statements allegedly made by Mays, introduced for the purpose of demonstrating the truth of those unsworn, out-of-court statements (i.e., that it was Campbell who had assaulted and thus ultimately caused the death of Mays). Nonetheless, the court concluded, the statements were admissible because they fell within a long-recognized exception to the hearsay rule, known as the "dying declarations" exception. (The rationale of the exception is that a person who is about to die, and who knows that he is about to die, is likely to be telling the truth.) The court therefore affirmed Campbell's conviction of voluntary manslaughter.

In short, all of Justice Lumpkin's ringing oratory was utterly unnecessary dictum. The court could (and should) have avoided the constitutional issue altogether. It could simply have said, "There is no need to decide, or even discuss, whether the Confrontation Clause, or some similar principle of fundamental law, applies to this case, because the admission of the statements does not and would not violate the Clause or principle."

The image is of the Joseph Henry Lumpkin house in Athens, Georgia, which he owned from 1843 until his death.

Justice Lumpkin's Bill of Rights V

As he builds to a crescendo, Justice Lumpkin's magnificent oratory swells with grandeur and unintentional irony. Print out this passage and read it aloud:

"[T]he Legislature . . . cannot commit political suicide, or rather parricide, by violating or destroying the great first principles of American civil liberty, as set forth and declared in the ten amendments of the Constitution -- a legal decalogue for every civilized society, in all time to come.

"No such attempt would be considered a rightful exercise of legislative authority. To maintain that our Federal or State Legislature possess such a power, is, in our opinion, a political heresy, altogether inadmissible. The British Parliament dare not, at this day, with all its transcendental power, commit such an outrage. For such monstrosity in legislation we must go to semi-imperial France, or semi-barbarous Russia. Any attempt in this country, at this day, to establish religion; to curtail the freedom of speech or of the press; to deprive a party of the privilege of appearing personally, or by counsel; to inflict cruel or unusual punishments; to immure a prisoner without trial, in a dungeon for life; to subject a citizen to a star-chamber proceeding instead of a public trial; would shock not only the common sense, but sense of justice of the teeming millions in this free and happy country! Shame! shame! upon such legislation, would be indignantly uttered by ten thousand tongues!"

The picture above is of Thomas R.R. Cobb, Justice Lumpkin's son-in-law.

Justice Lumpkin's Bill of Rights IV

We have seen Justice Lumpkin espousing a truly remarkable and radical doctrine: even if State laws do not run afoul of the State constitution, judges can and should strike down State laws that violate the fundamental principle that republican government must protect life, liberty and property.

But does this not lead to judicial activism (as we would say today) run amok? Perhaps the most interesting part of this fascinating opinion is how Justice Lumpkin wrestles with, and resolves, this issue. He finds in the Bill of Rights a limiting principle that constrains judicial discretion. Judges should not strike down all legislative acts that they perceive may be violations of life, liberty and property. They should limit themselves to striking down only those enactments that violate the most important principles -- those declared by the people in the Bill of Rights.

The rhetoric and language are so wonderful that, as before, I will let Justice Lumpkin speak for himself. First, he identifies the problem of excessive judicial discretion:

"But we do not intend to put our opinion in this case upon this foundation [i.e., that courts may nullify all laws that violate life, liberty or property], however solid it may be. For while we have denied the omnipotence of the Legislature, the tendency of our administration, nevertheless has been, to side with those who refused to declare and Act of the Legislature void, because it conflicts with the Court's views of reason, expediency or justice; and who recommend an appeal to the ballot-box as the only remedy for unwise legislation. And one of the strongest arguments against Judicial interposition in such cases is, that apart from a written Constitution, our ideas of natural justice are vague and uncertain, regulated by no fixed standard; the ablest and best men differing widely upon this, as well as all other subjects."

Justice Lumpkin then proposes the solution: courts should limit their discretion by nullifying only those laws that violate the principles embodied in the Bill of Rights, declared by the People to constitute the bedrock principles of republican government:

"But as to questions arising under these amendments [the Bill of Rights] there is nothing indefinite. The people of the several States, by adopting these amendments, have defined accurately and recorded permanently their opinion, as to the great principles which they embrace . . .. [V]iewing these amendments as we do, as intended to establish justice -- to secure the blessings of liberty -- to protect person and property from violence; and that these were the very purposes for which government was established, we hold that they constitute a limit to all legislative power, Federal or States, beyond which it cannot go; that these vital truths lie at the foundation of our free, republican institutions; that without this security for personal liberty and private property, our social compact could not exist. No Court should ever presume that it was the design of the people to entrust their representatives with the power to take away or impair these securities. Such an assumption would be against all reason. The very genius, nature and spirit of our institutions amount to a prohibition of such acts of legislation, and will overrule and forbid them."

The picture above is of Hiram Warner, the third member of the Supreme Court of Georgia in 1852, who also concurred in the decision. Here is a brief biography of Justice Warner, who later became the second Chief Justice of the court, after Justice Lumpkin.

Justice Lumpkin's Bill of Rights III

Justice Lumpkin was a smart man and good lawyer. He acknowledged that the Supreme Court had ruled, in Barron v. Baltimore, that the Bill of Rights did not apply to the States. He did not so much disagree as conclude that that was irrelevant. He cited and quoted from a number of opinions of State courts that had held that States were bound to observe certain fundamental principles. His favorite quote was from a Maryland court, for he emphasized the entire passage:

"'Independent of that instrument [the federal Constitution], and of any express restriction in the Constitution of the State, there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact (in this country at least,) the character and genius of our governments, the causes from which they sprang, and the purposes for which they were established, that rises above the restraints and sets bounds to the power of legislation, which the Legislature cannot pass, without exceeding its lawful authority. It is that principle which protects the life, liberty and property of the citizen, from violation, in the unjust exercise of legislative power.'"

The picture above is of Eugenius Aristides Nisbet, one of Justice Lumpkin's colleagues on the Georgia Supreme Court from its establishment in 1845 until 1853, who concurred in the decision.

Joseph Henry Lumpkin and The Bill of Rights

Joseph Henry Lumpkin was the first Chief Justice of the Supreme Court of Georgia, serving on that court from its establishment in 1845 until his death in 1867. You can find brief biographies of him here and here.

So far as I can tell, the web contains no discussion of Chief Justice Lumpkin's most remarkable opinion, Campbell v. State, 11 Ga. 353, 1852 WL 1345 (1852). The purpose of this post (and others to follow) is to remedy that omission.

I will return to the facts later, for they contain a supreme irony in this extraordinary opinion. For present, it is sufficient to state that the defendant, James Campbell, was convicted in January 1852 in Superior Court, Richmond, Georgia of the manslaughter of Carl Mays. Saturday night, January 11, 1851, Campbell and Mays were drinking. Late that night, they apparently fell into a dispute. Campbell hit Mays with a stick or branch, and then stabbed him repeatedly with a sharp instrument. Mays died Monday afternoon.

Campbell appealed to the Supreme Court of Georgia. On appeal, he asserted that his conviction should be overturned because it was based on out-of-court statements by an absent witness, in violation of the Confrontation Clause of the Sixth Amendment to the federal Constitution, which provided (and still provides) in relevant part that, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Georgia Constitution of 1798 did not contain a similar provision. One of the questions presented to the court was whether the Confrontation Clause applied to state court proceedings.

Almost twenty years earlier, in Barron v. Baltimore (1833), the United States Supreme Court had held that the Fifth Amendment and, by implication, the other provisions of the Bill of Rights, did not apply to the states. As we shall see, Chief Justice Lumpkin and the Supreme Court of Georgia did not agree.

Chief Justice Lumpkin delivered the opinion of the court. He enunciated what has been termed a "declaratory" view of the Bill of Rights. That is, he expressed the view that, whether or not the Bill of Rights itself applied to the states, the Bill declared fundamental principles that were binding on any republican government, including the government of the State of Georgia:

"The principles embodied in these amendments. for better securing the lives, liberties, and property of the people, were declared to be the 'birthright' of our ancestors, several centuries previous to the establishment of our government. It is not likely, therefore, that any Court could be found in America of sufficient hardihood to deprive our citizens of these invaluable safeguards."

It is possible that States have the reserved right to ignore these fundamental safeguards? May a State pass a law abridging freedom of speech or of the press? May it establish a state religion? Justice Lumpkin answered these rhetorical questions with words that are both majestic and supremely ironic given their place and time (Georgia 1852):

"Such logic, I must confess, fails to commend itself to my judgment. for let it constantly be borne in mind, that notwithstanding we may have different governments, a nation within a nation, imperium in imperio, we have but one people; and that the same people which, divided into separate communities, constitute the respective State governments, comprise in the aggregate, the United States Government; and that it is in vain to shield them from a blow aimed by the Federal arm, if they are liable to be prostrated by one dealt with equal fatality by their own."

Justice Lumpkin contended that no government "has the right to do wrong." To those who contended otherwise, he cried out:

"From such State rights, good Lord deliver us! I utterly repudiate them from the creed of my political faith!"

In the next post, I will let Chief Justice Lumpkin do most of the talking.