You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley.  Copyright 2002.  All rights reserved.  This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author.  Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited. 
How the First Amendment Came to Protect Topless Dancing
A History of the
Incorporation of the Bill of Rights
into the Fourteenth Amendment,
Why It's a Problem,
and How to Fix It
By Susan Shelley

Copyright 2002 

Part I


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(This essay is the appendix to The 37th Amendment, a novel by Susan Shelley. Available at,, and wherever books are sold, or read it online by clicking here.)


In 1991, the Supreme Court of the United States considered this question: Do the dancers at the Kitty Kat Lounge in South Bend, Indiana, have a First Amendment right to perform totally nude, or can they be forced under the state's public indecency law to wear pasties and G-strings? 

"Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment," Chief Justice William Rehnquist noted. 

"Pasties and a G-string moderate the expression to some degree," Justice David Souter observed. 

"Nude dancing conveys an erotic message," Justice Byron White argued, and "the message would be muted if the dancers wore pasties and G-strings." 

The justices applied a complex four-part balancing test to determine if the Indiana indecency law was sufficiently justified to warrant an intrusion on the Kitty Kat dancers' constitutionally-protected right to freedom of speech.1

This case would have shocked James Madison, but not because there were nude dancers in Indiana. What would have floored the man who has been called "the father of the Constitution"2 was the sight of the U.S. Supreme Court using the First Amendment to question the validity of a state law. 

You see, he proposed exactly that to the First Congress in 1789. Rep. James Madison's proposal was voted down. 

The fact is, the people of the United States never agreed to have the First Amendment, or the rest of the Bill of Rights, restrict the actions of state governments.

Ridiculous, you might say. State laws on everything from pornography to school prayer have been struck down by the Supreme Court as a violation of the First Amendment. Local police are required to read suspects their rights in accordance with the Fifth Amendment. Evidence seized illegally is inadmissible in a state court under the Fourth Amendment. 

How could any of that be possible if the Bill of Rights doesn't apply to the states? 

Here's how: Over the course of the 20th century, the justices of the U.S. Supreme Court made a fundamental change to the structure of government set up by the Constitution. They did it without a public debate and without a constitutional amendment. They did it by inventing an interpretation of the clause in the Fourteenth Amendment that reads, "nor shall any State deprive any person of life, liberty or property, without due process of law."

This interpretation is known as the "incorporation" doctrine. It is the surprisingly recent assertion that some of the protections listed in the first ten amendments to the U.S. Constitution--the Bill of Rights--are "incorporated" into the Fourteenth Amendment's due process clause, and therefore binding on the states as well as the federal government.

The incorporation doctrine gradually expanded to include all rights that a majority of justices considered "fundamental" to the conception of due process of law. The justices acknowledged that there might be times when a state legitimately needed to restrict a fundamental right, but the Court established that the states must show a compelling reason for such a law or it would not be permitted to stand.

In this manner, the U.S. Supreme Court gave itself a veto over state and local laws as well as control of police procedures in every jurisdiction in the country. These are powers that were specifically denied to the federal government by the framers of the Constitution and the Fourteenth Amendment.

The carefully-constructed division of powers in the American system of government owes much to one historical fact: the states were first.

In 1776, when the thirteen original colonies declared their independence from Great Britain, each former colony adopted its own state constitution and established its own state government. There was general agreement on the immediate need for some sort of national union. Articles of Confederation were drafted, but Congress debated them for a year before they were sent out to the states for approval, and the states took three years to ratify them. Apparently there was some disagreement as well.3

The Articles of Confederation, which formally took effect in 1781, established a weak central government with no ability to enforce its policies on the states. It consisted of a Congress in which each state had one vote. Nothing important could be done unless at least nine states agreed, so, for all intents and purposes, nothing important could be done.4

After the Revolutionary War, with various disputes between the states proving unresolvable under the existing structure, the Congress called a federal convention in Philadelphia "for the sole and express purpose of revising the Articles of Confederation."5 The convention met on the second Monday of May, 1787, and spent the summer drafting what became the Constitution of the United States. 

It was not an easy job. 

The states were cautiously willing to strengthen the powers of the national government, but they were unwilling to give up their own general power to govern internal state affairs.6 It is in this context that the constitutional structure, known as federalism, was created. 

Federalism was an entirely new system in which there would be two governments over the same physical area, co-existing through a division of powers. James Madison explained it this way: 

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce....The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.7

In other words, by agreeing to the new Constitution, the states would be giving up only some of the powers that belonged to them. Any power not specifically delegated to the federal government--in writing, in the Constitution--remained with the states. 

A lot of people felt this still gave the federal government too much wiggle room. The call went up for a Bill of Rights, a clearly written list of limits on the federal government's power.

Former New York delegate and future Treasury Secretary Alexander Hamilton was irritated. "[W]hy declare that things shall not be done which there is no power to do?" he asked.8

Former Virginia delegate and future President James Madison agreed. He worried that by listing rights which the federal government could not infringe, the Constitution would imply that any right not on the list could be infringed.9 The whole idea of a written Constitution was to limit the federal government to those powers specifically listed in the document, not to create unlimited federal power by implication.10

But Madison had a problem. He had just been out-maneuvered in his attempt to win a Senate seat from Virginia and was now running for election to the House. Facing a public outcry in support of a Bill of Rights he opposed, Madison changed his position and decided to support it. "It is my sincere opinion that the Constitution ought to be revised," he wrote during the campaign, "and that the first Congress meeting under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights...." Madison was elected easily.11

When the First Congress convened, Rep. Madison took the lead in drafting the amendments that would become the Bill of Rights. While he was at it, he pointed out to his colleagues that infringement of rights by the federal government was only part of the threat to liberty. "[T]he State governments are as liable to attack these invaluable privileges as the General Government is," Madison said, "and therefore ought to be as cautiously guarded against."12 Madison suggested this amendment: 

No state shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases.13

But the Congress was not interested in amending the Constitution to place any federal restrictions on the states' powers of self-government, and Madison's proposed amendment was voted down. As Thomas Tucker of South Carolina put it, "It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do."14

So the states would continue to have the power, subject to their own state constitutions, to violate all the rights Madison's amendment would have protected. 

Can that be right? Is it possible that the Founding Fathers really meant for state governments to have the power to restrict freedom of the press? Consider this statement from one of them, contained in an 1804 letter to Abigail Adams: 

While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right, to do so. 

Of course, the fact that one of the Founders expressed this view is not proof that all of them accepted it. Surely there were others who aggressively defended the freedom of the press from state invasion. What about Thomas Jefferson? 

That was Thomas Jefferson.15

You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley.  Copyright 2002.  All rights reserved.  This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author.  Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.

James Madison did persuade the Congress to accept an amendment designed to eliminate the unlimited-federal-power-by-implication problem that concerned him. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." 

Many people still feared, despite repeated assurances, that the federal government would find a way to trample on the states' reserved powers. The Congress attempted to lay those fears to rest with what became the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." 

What did the U.S. Supreme Court think of all this? 

What did it matter? 

The Constitution gave the Supreme Court no role in the amending process, no role in the making of law, no role in the making of public policy. 

No kidding. 

The delegates to the Constitutional Convention in Philadelphia actually considered a proposal to involve the justices in the lawmaking process. Edmund Randolph of Virginia suggested that "a convenient number of the national judiciary" should join with the president to form a Council of Revision, which would have veto power over legislative acts passed by Congress. The Council of Revision would be empowered to consider the wisdom of the legislation, in recognition of the fact, as James Wilson of Pennsylvania explained, that "laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect."16

Not only was the Council of Revision proposal voted down, it was voted down twice.17

Nathaniel Gorham of Massachusetts pointed out that judges "are not to be presumed to possess any peculiar knowledge of the mere policy of public measures." John Dickinson of Delaware opposed the idea on the grounds that as "the Judges must interpret the Laws, they ought not to be legislators." James Madison supported the proposal, arguing that a check on the legislature was necessary, but once again he was voted down. More in line with the majority view was Elbridge Gerry of Massachusetts, who argued that the judges would have "a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality."18 The veto power was given to the president alone.19

The Bill of Rights, which everybody agreed applied only to the national government and not to the states,20 was passed by the First Congress, ratified by the states, and made part of the Constitution in December, 1791. Here's the final version: 

The Bill of Rights

Amendment I 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

Amendment II 

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. 

Amendment III 

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. 

Amendment IV 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

Amendment V 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 

Amendment VI 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. 

Amendment VII 

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. 

Amendment VIII 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

Amendment IX 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 

Amendment X 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. 

Forty-two years later, in 1833, a man named John Barron asked the U.S. Supreme Court to rule that the Fifth Amendment applied to the states. He was upset because his Baltimore wharf, once a profitable deep-water facility where large ships could dock and unload, had been filled with earth and gravel as a result of the city's decision to re-route streams and pave the city streets. Barron sued the city, claiming that his property had been taken from him for public use without just compensation. The Maryland courts rejected Barron's claim, and he appealed to the U.S. Supreme Court. The Fifth Amendment to the U.S. Constitution, Barron argued, prohibits the taking of private property for public use without just compensation. 

No, it doesn't, said Chief Justice John Marshall, not if it's a state that's taking the property. He wrote: 

[T]he provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.21

And that was that. If Congress had meant for the provisions of the Bill of Rights to bind the states, the chief justice wrote, "they would have declared this purpose in plain and intelligible language."22

Federalism might have lived happily ever after, if the states hadn't ratified a Constitution that permitted slavery. 

In the annals of catastrophic mistakes, that was a lulu. 

After the Civil War, in 1865, the Thirteenth Amendment was ratified, establishing that "Neither slavery nor involuntary servitude...shall exist within the United States, or any place subject to their jurisdiction." In 1868, the Fourteenth Amendment was ratified. Its first section reads: 

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. 

Now, the question is, what did that language mean? 

It's easier to say what it didn't mean. 

It didn't mean blacks could vote, serve on juries, hold public office, attend desegregated schools, or intermarry with whites. It didn't mean every unfair state law violated the United States Constitution. And it still didn't mean the Bill of Rights applied to the states. 

Then what did it mean? 

To the U.S. Congress in 1866, it meant states would not be permitted to enact grotesque new laws to keep the former slaves in a condition as near to slavery as possible. 

In late 1865, after the Civil War had ended but before the 39th Congress had convened, the legislatures of eight Southern states began work on a body of new laws to regulate the lives of the former slaves. And what a piece of work it was. 

In Mississippi, to take one state as an example, the law banned blacks from owning land and prohibited them from renting or leasing except in places controlled by local authorities. The law restricted blacks from testifying against whites in court. It imposed fines and imprisonment on blacks who falsely reported themselves to be the victim of a crime committed by whites. The law required blacks to contract to do a year's work, and if they quit early without good cause, to forfeit their entire year's wages. Employers had the legal right to recapture any black employee who deserted. New laws against vagrancy made it a crime for a black person to be unemployed, to "misspend" his earnings or to fail to pay a head tax that was imposed exclusively on blacks in order to establish a Freedman's Pauper Fund. Also against the law, just for blacks: "insulting gestures, language or acts," and "exercising the function of a Minister of the Gospel without a license from some regularly organized church."23

These types of laws were known generally as the Black Codes. 

When the 39th Congress convened in December, 1865, an immediate effort was begun to wipe the Black Codes off the books. The leadership began work on both a civil rights bill and a constitutional amendment that would duplicate its provisions. They reasoned that a future Congress might try to repeal the civil rights bill, but a constitutional amendment could not be reversed by a simple majority vote.24 Any change to the Constitution requires a two-thirds vote of each house of Congress (or a Constitutional Convention requested by two-thirds of the state legislatures), and the ratification of three-quarters of the states.25

The Civil Rights Bill of 1866, as originally considered in the House and Senate, had two clauses in Section I: 

[1] That there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery.... 

[2] but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.26

The second clause, it's easy to see, is addressed specifically to the kind of laws that had just been passed in Mississippi. The first clause, on the other hand, is more sweeping in its scope. The words "no discrimination in civil rights...on account of race, color or previous condition of slavery" would seem, especially if put into the Constitution through the Fourteenth Amendment, to give the courts the power to strike down all racially discriminatory state laws on subjects like voting rights, jury service, segregated schools and interracial marriage. 

At least that's what the 39th Congress thought, and that's why they took it out. 

They took it out.

The first clause of Section I of the Civil Rights Bill, guaranteeing no discrimination in civil rights on account of race, was stricken from the bill before the House of Representatives passed it. Judiciary Committee Chairman James F. Wilson of Iowa cordially explained, 

[S]ome gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.27

Not intended. The Civil Rights Act of 1866 was not intended to strike down all racially discriminatory state laws. Senator Lyman Trumbull assured the Senate, and Rep. James F. Wilson promised the House, that the Civil Rights Act would not abolish state laws that prohibited blacks from voting or serving on juries, required racially segregated schools, or banned interracial marriage.28 Congress took out the "no discrimination" language to remove any possibility that a future court would give the Civil Rights Act a "latitudinarian construction," or what we would call a broad interpretation.

This matters because, as legal historian Charles Fairman pointed out many years later, the Fourteenth Amendment was considered to be identical (in its first section) with the Civil Rights Act of 1866. "Over and over in this debate," Fairman wrote, "the correspondence between Section One of the Amendment and the Civil Rights Act is noted. The provisions of the one are treated as though they were essentially identical with those of the other."29

There is more evidence that the amendment was not intended to secure full equality to black Americans. Rep. Thaddeus Stevens of Pennsylvania proposed on January 12, 1866, that the first section of the Fourteenth Amendment should read: 

All laws, state or national, shall operate impartially and equally on all persons without regard to color or race. 

That language never even made it out of the subcommittee.30

The intent of the 39th Congress was to secure a limited category of rights to the freedmen. To explain these fundamental rights, Judiciary Committee Chairman Wilson read to the House the definition written by 18th-century English legal scholar William Blackstone in a chapter from his Commentaries on the Laws of England entitled "The Absolute Rights of Individuals": 

[T]hese may be reduced to three principal or primary articles... 

I. The right of personal security [consisting] in a person's legal and uninterrupted enjoyment of his life, his limbs... 

II...the personal liberty of individuals...[consisting] in the power of locomotion, of changing situations or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint, unless by due course of law... 

III. The third absolute right, inherent in every Englishman...of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.31

It is worth noting for modern readers--all of us who have been educated to think of property rights only as an obstacle to parkland--that property rights are not reserved exclusively to wealthy landowners. A paycheck is property as well. A person who contracts to do work for an agreed-upon sum and doesn't receive payment has the right to go to court and use all the resources of the law to enforce that contract. Freedom is hollow if everything you have can be lawlessly and arbitrarily confiscated, whether by the government or by a fellow citizen. Free countries protect property rights because property rights are an essential foundation of freedom. 

That's why slavery was both a tragedy and a mockery: for the first 76 years of its existence, the U.S. Constitution permitted some human beings to be property, thereby requiring the nation to protect freedom by enforcing slavery. This bitter contradiction was not corrected until 1865 with the ratification of the Thirteenth Amendment, abolishing slavery in the United States and all its territories. 

So the framers of the Fourteenth Amendment thought they were doing quite a lot for black Americans. Having removed the ex-slaves from the category of property, they now guaranteed to them as free citizens all of Blackstone's fundamental rights. The freedmen would have the protection of the full force of the United States government to secure their right to life, liberty and property. Political rights, however, including the right to vote,32 serve on juries and hold public office, were left to the states to determine, as were social matters such as intermarriage and segregation. 

Is it really possible that the North fought a Civil War and ended slavery without ever intending to confer full equality on the freed slaves? Consider this statement from one Northern politician in 1859: 

I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and the black races . . . I am not, nor ever have been, in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this, that there is a physical difference between the white and the black races, which, I believe, will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I, as much as any other man, am in favor of having the superior position assigned to the white race. 

Of course, there were some people who held such views, but there were also great leaders, like Abraham Lincoln, who courageously fought against the oppression of the black race. What about Abraham Lincoln? 

That was Abraham Lincoln.33

You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley.  Copyright 2002.  All rights reserved.  This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author.  Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.

It's a harsh but revealing view of the political climate in mid-19th century America. Even the leaders who spoke out against slavery spoke out against racial equality with equal force, especially if they were running for office. In this light, the limited goals of the Fourteenth Amendment may be plainly seen and comprehended. The amendment prohibited states from abridging the "privileges and immunities" of U.S. citizens or denying "due process of law" or "the equal protection of the laws" to any person, but those terms were understood far more narrowly in 1868 than they are today. 

The language of the new Fourteenth Amendment was put to the test almost immediately by people who thought the Supreme Court would use it to strike down oppressive state laws. Hopes were dashed abruptly by the Slaughter-House Cases in 1872, when the Court ruled 5-4 that a New Orleans law requiring butchers to give up their own facilities and work in a monopoly-controlled slaughter-house did not infringe the privileges and immunities of U.S. citizens under the Fourteenth Amendment, because everybody knew the "pervading purpose" of the Fourteenth Amendment was to secure fundamental rights to black people.34

Once the Court took "privileges and immunities" out of the game as a weapon to strike out state laws, it was perhaps only a matter of time before "due process" got the call. The bullpen phone rang in 1897 with the case of Chicago, Burlington & Quincy Railroad Co. v. Chicago.35

The case involved a railroad company that had sued the city of Chicago for opening a public street across the railroad's land. The constitution of the state of Illinois provided that "Private property shall not be taken or damaged for public use without just compensation," and the railroad went to court to demand payment. There was a trial. The jury agreed that the railroad was entitled to be compensated for the loss of its land, and the jurors awarded damages of exactly one dollar. The Illinois Supreme Court upheld the decision. 

The railroad appealed to the U.S. Supreme Court, arguing that a payment of one dollar was so low that it deprived them of their property without due process of law, a plain violation of the Fourteenth Amendment. 

Was the railroad company really denied due process of law? What exactly is due process of law? 

In his opinion for the Court, Justice John Marshall Harlan explained: 

[T]his court has said that a trial in a court of justice according to the modes of proceeding applicable to such a case, secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government...met the requirement of due process of law. 36

In other words, due process of law meant a trial in the ordinary manner under the laws that apply to everybody. It appeared that the state of Illinois had provided the railroad with exactly that. But then Justice Harlan served notice that the Supreme Court would consider a broader interpretation of due process: 

[A] state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form.37

Let's stop right there. It's easy to see whether the form of due process has been observed--either the state authorities followed the state's standard, ordinary legal process or they didn't. But how can it be determined if the state's standard, ordinary legal process failed to produce a result consistent with due process in substance? What's the standard for that? And if there is no clear standard, will the Supreme Court have to decide what is fair in each individual case? And if that's the case, what's to stop every defendant in every state proceeding from appealing their cases to the U.S. Supreme Court? 

"[W]e do not wish to be understood as holding that every order or ruling of the state court in a case like this may be reviewed here," Justice Harlan wrote.38

Well, that clears that up. 

Incidentally, the Court affirmed the Illinois Supreme Court's decision to let the one-dollar award stand, ruling that the railroad did receive due process, and the jury had reasonably concluded that nobody would pay more than a dollar for a piece of land when anything built on it would be hit by a train. 


In the next section: 

Due process is for bakeries, not people.

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