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10. Ambassador
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t 167 10 ambassador He sat down to rest and, as it proved, to rust. Walter Gaston Shotwell, 1927 After thirty years of political seasoning in Ohio and Washington, John Bingham was ready to step onto the world stage. In June 1873, President Grant appointed (and the Senate confirmed) him as the first American minister plenipotentiary to Japan.1 Over the next twelve years, Bingham served with distinction and took a firm anticolonial stance, arguing that Japan should be freed from one-sided foreign trade treaties that limited its sovereignty.2 His time in Tokyo was also a happy one, as most of his family lived with him, and he was able to expand his cultural and aesthetic horizons. Back home, though, the Supreme Court began weighing in on the meaning of the Fourteenth Amendment, and Bingham’s text was given a much narrower interpretation than he had intended. The Slaughter-House Cases One month after Bingham retired from Congress, the justices issued their first opinion construing the Privileges or Immunities Clause of Section One.3 In the Slaughter-House Cases, some white butchers in Louisiana filed suit, claiming that a state law granting a monopoly on butchering to a New Orleans corporation was unconstitutional.4 Setting aside the irony that white southerners were the first litigants seeking the protection of the Fourteenth Amendment, the issue was whether the right to work in a particular trade unencumbered by excessive regulation was a privilege or immunity of citizenship. In a five-to-four decision , the justices said no in one of the last cases that Chief Justice Chase heard before his death.5 Justice Miller, Bingham’s old travel companion, wrote for the Court and held that the states retained a broad right to 168 s ambassador regulate most contract and property rights.6 Nothing about this holding was contrary to Bingham’s understanding, as he never endorsed the view that monopolies came within the scope of Section One.7 Slaughter-House did discuss what would count as national privileges or immunities, but the list provided by the Court fell far short of Bingham ’s. Each citizen had the right to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports . . . to the subtreasuries, land offices, and courts of justice in the several States.8 This was not a thrilling start, but the opinion described other rights such as: to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. . . . The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus. . . . The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations. . . . [A ] citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment.9 Notably absent from this passage was a declaration that the Bill of Rights was part of the privileges or immunities of citizenship.10 The Court did refer to the right to “peaceably assemble and petition for redress of grievances,” which is part of the First Amendment, but that was not a clear statement on the relationship between the first eight constitutional amendments and the states. Whatever Justice Miller meant to say, his opinion could be read as saying that the Bill of Rights was not extended to the States by the Fourteenth Amendment. In fairness, Slaughter-House only set forth suggestions for [3.235.251.99] Project MUSE (2024-03-28 14:58 GMT) ambassador t 169 what the Privileges or Immunities Clause covered, and thus did not foreclose the possibility that more were included. Nevertheless, the cases that followed Slaughter-House did not take an expansive view of that question . In 1876, the Court held that the Seventh Amendment “trial by jury in suits at common law pending in the State courts is not . . . a privilege or immunity of...