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.