The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

PART I

1

Introduction

The Fourteenth Amendment is the case study par excellence of what Justice Harlan described as the Supreme Court’s “exercise of the amending power,” 1 its continuing revision of the Constitution under the guise of interpretation. Because the Amendment is probably the largest source of the Court’s business2 and furnishes the chief fulcrum for its control of controversial policies, the question whether such control is authorized by the Constitution is of great practical importance.

Those whose predilections are mirrored in a given decision find such judicial revision an exercise of statemanship.3 Others consider that a democratic system requires adherence to constitutional limits, by courts no less than presidents.4 This study seeks to demonstrate that the Court was not designed to act, in James M. Beck’s enthusiastic phrase, as a “continuing constitutional convention,” 5 that the role assigned to it was far more modest: to police the boundaries drawn in the Constitution.6 A corollary is that the “original intention” of the Framers, here very plainly evidenced, is binding on the Court for the reason early stated by Madison: if “the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable [government], more than for a faithful exercise of its powers.” 7

The present generation, floating on a cloud of post–Warren Court euphoria, applauds a Court which read its libertarian convictions into the Fourteenth Amendment, forgetting that for generations the Court was harshly criticized because it had transformed laissez faire into constitutional dogma in order to halt the spread of “socialism.” 8 With Brahmin restraint, Justice Holmes commented, in fear of socialism, “new principles had been discovered outside the bodies of those instruments [constitutions] which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago.” 9 In the economic sphere that finally made due process a “dirty phrase.” 10 The logic whereby that process becomes sanctified when employed for libertarian ideals has yet to be spelled out.11 Logic, it is true, must yield to history, but history affords the Court even less support than logic.

Commentary on the Court’s decisions frequently turns on whether they harmonize with the commentator’s own predilections. My study may be absolved of that imputation: I regard segregation as a blot on our society,12 and before I began to study the reapportionment issue I was taken with the beguiling slogan “one man, one vote.” But almost thirty-five years ago I wrote of a decision that responded to my desires that I liked it no better when the Court read my predilections into the Constitution than when the Four Horsemen read in theirs.13 Against the fulfillment of cherished ideals that turns on fortuitous appointments must be weighed the cost of warping the Constitution, of undermining “the rule of law.” The Court has shown in the past that the Constitution can also be twisted to frustrate the needs of democracy.14 These statements raise a congeries of questions which have been the subject of interminable controversy to which Part II is addressed.

The task here undertaken is that of an historian, to attempt accurately and faithfully to assemble the facts; that effort constitutes its own justification. For a decade the revisionist historians15 have been engaged in what has been described as an “extraordinary revolution in the historiography” of Reconstruction,16 throwing fresh light on the reasons for its limited objectives and its failure. To some extent the legal studies of Charles Fairman in 1949 and Alexander Bickel in 195517 had shown that the objectives of the framers of the Fourteenth Amendment were limited. Like the revisionist historians, a lawyer too may take another look after the passage of about a quarter-century. Despite the wilderness of commentary, largely devoted to the due process clause, the historical warrant for desegregation, reapportionment, and incorporation of the Bill of Rights in the due process clause remains controversial.18 Little analysis has been devoted to the role of the privileges or immunities clause in the original scheme of things;19 nor have studies of the equal protection and due process clauses adequately explored what those terms meant to the framers.

In reconstructing the past, historians generally are compelled to rely on accounts written after the event by participants and witnesses, or on the hearsay versions of those who learned at second-hand what had occurred. Such writings are subject to the infirmities of recollection, or of bias arising from allegiance to one side or the other. The historical records here relied on—the legislative history of the Fourteenth Amendment—are of a far more trustworthy character, being a stenographic transcription of what was said in the 39th Congress from day to day by those engaged in framing the Amendment. It is a verbatim account of what occurred, recorded while it was happening, comparable to a news film of an event at the moment it was taking place and free from the possible distortion of accounts drawn from recollection or hearsay. What men say while they are acting are themselves facts, as distinguished from opinions about facts.20 Such statements constitute a reliable record of what happened as the Amendment was being forged by the framers.

It needs to be emphasized that the records of the 39th Congress are free from the reproach often leveled at legislative history—that it is “enigmatic.” A statement such as that of Charles P. Curtis, “It is a hallucination: this search for intent. The room is always dark” 21 simply cannot stand up against these records. Instead of sparse, cryptic remarks there are, for example, with respect to suffrage, the unequivocal Joint Report of the Committee on Reconstruction which drafted the Amendment; explanations of the Amendment and the antecedent Civil Rights Act of 1866 by the committee chairmen who had them in charge, and by other members of the committees; statements by leaders of the Republican Party which sponsored both, accompanied by a virtually unanimous chorus of fellow Republicans. These are commonly regarded as the best evidence of legislative “intention.” 22 Then there are repeated rejections, by heavy pluralities, of extremist efforts to put through legislation or amendments that would confer suffrage. Thus, the records richly confirm Justice Harlan’s comment: “The history of the Fourteenth Amendment with respect to suffrage qualifications is remarkably free of the problems which bedevil most attempts to find a reliable guide to present decision in the pages of the past. Instead, there is virtually unanimous agreement, clearly and repeatedly expressed, that §1 of the Amendment did not reach discriminatory voter disqualifications.” 23

In short, the proof is all but incontrovertible that the framers meant to leave control of suffrage with the States, which had always exercised such control, and to exclude federal intrusion. On traditional canons of interpretation, the intention of the framers being unmistakably expressed, that intention is as good as written into the text.24 It is, therefore, as if the Amendment expressly stated that “control of suffrage shall be left with the States.” If that intention is demonstrable, the “one man, one vote” cases represent an awesome exercise of power, an 180-degree revision, taking from the States a power that unmistakably was left to them. That poses the stark issue whether such revisory power was conferred on the Court. Because the “intention” of the framers is so crucial to examination of this issue, because a commentator should not pit his mere ipse dixit against the Court’s finding, for example, that the historical evidence respecting desegregation is inconclusive, it is not enough to retort that the evidence is overwhelming. It is necessary to pile proof on proof, even at the risk of tedium, so that the reader may determine for himself whether it is overwhelming or inconclusive.

Whether the “original intention” of the framers should be binding on the present generation—a question hereafter discussed—should be distinguished from the issue: what did the framers mean to accomplish, what did the words they used mean to them. That must be the historical focus, not what we should like the words to mean in the light of current exigencies or changed ideals. In the words of the eminent British historians H. G. Richardson and G. O. Sayles, “We must learn, not from modern theorists, but from contemporaries of the events we are studying.” We should not impose “upon the past a creature of our own imagining.” 25 One hundred and fifty years earlier Justice James Iredell, one of the first Founders to spell out the case for judicial review, stated, “We are too apt, in estimating a law passed at a remote period, to combine in our consideration, all the subsequent events which have had an influence upon it, instead of confining ourselves (which we ought to do) to the existing circumstances at the time of its passing.” 26

In an area of warring interpretations no useful purpose is served by delivering another ex cathedra opinion.27 A commentator should spread before the reader the evidence on which his opinion is based and comment both on discrepant evidence and on opposing inferences.28 Consequently, a polemical tone is inescapable; a student of history can no more avoid criticism of views which seem to him erroneous than did the chemists who disputed the tenability of the phlogiston theory of combustion. To avoid that responsibility is to court the charge of ignoring an influential body of contrary opinion, of selecting only the evidence that advances one’s own argument, and, even worse, to cast the reader adrift on a sea of conflicting opinions.

Now that the dust has settled, a synthesis of the historical materials that bear on the three controversial areas will furnish some cross-illumination. No synthesis need undertake to trace in complete detail the development of the Amendment and its antecedent bills. Not only is there no need to duplicate the chronological labors that others have already performed, but to do so is to risk swamping the reader in a mass of detail that is bewildering rather than illuminating.29 Instead my effort will be to focus on the facts that seem to me crucial, to take account of discrepant facts, and to analyze views that are opposed to mine.

Following the lead of Howard Jay Graham and Jacobus tenBroek,30 academicians have shown a growing tendency to attribute to the framers of the Fourteenth Amendment moral-legal conceptions formulated by some abolitionists during their crusade of the 1830s–1860s, and to read those conceptions of substantive due process and equal protection into the Amendment. Noble enthusiasm is no less prone to distort the vision than vulgar prejudice. In evaluating the historical facts we do well to bear in mind Flaubert’s view that “personal sympathy, genuine emotion, twitching nerves and tear-filled eyes only impair the sharpness of the artist’s vision.” 31 Even more, the historian, in the words of C. Vann Woodward, has “a special obligation to sobriety and fidelity to the record.” 32

Background

The key to an understanding of the Fourteenth Amendment is that the North was shot through with Negrophobia, that the Republicans, except for a minority of extremists, were swayed by the racism that gripped their constituents rather than by abolitionist ideology. At the inception of their crusade the abolitionists peered up at an almost unscalable cliff. Charles Sumner, destined to become a leading spokesman for extreme abolitionist views, wrote in 1834, upon his first sight of slaves, “My worst preconception of their appearance and their ignorance did not fall as low as their actual stupidity . . . They appear to be nothing more than moving masses of flesh unendowed with anything of intelligence above the brutes.” 33 Tocqueville’s impression in 1831–1832 was equally abysmal.34 He noticed that in the North, “the prejudice which repels the negroes seems to increase in proportion as they are emancipated,” that prejudice “appears to be stronger in the States which have abolished slavery, than in those where it still exists.” 35

Little wonder that the abolitionist campaign was greeted with loathing! In 1837 Elijah Lovejoy, an abolitionist editor, was murdered by an Illinois mob.35a How shallow was the impress of the abolitionist campaign on such feelings is graphically revealed in a Lincoln incident. A delegation of Negro leaders had called on him at the White House, and he told them,

Fear of Negro invasion—that the emancipated slaves would flock north in droves—alarmed the North.37 The letters and diaries of Union soldiers, Woodward notes, reveal an “enormous amount of antipathy towards Negroes”; popular convictions “were not prepared to sustain” a commitment to equality.38 Racism, David Donald remarks, “ran deep in the North,” and the suggestion that “Negroes should be treated as equals to white men woke some of the deepest and ugliest fears in the American mind.” 39

One need not look beyond the confines of the debates in the 39th Congress to find abundant confirmation. Time and again Republicans took account of race prejudice as an inescapable fact. George W. Julian of Indiana referred to the “proverbial hatred” of Negroes, Senator Henry S. Lane of Indiana to the “almost ineradicable prejudice,” Shelby M. Cullom of Illinois to the “morbid prejudice,” Senator William M. Stewart of Nevada to the “nearly insurmountable” prejudice, James F. Wilson of Iowa to the “iron-cased prejudice” against blacks. These were Republicans, sympathetic to emancipation and the protection of civil rights.40 Then there were the Democratic racists who unashamedly proclaimed that the Union should remain a “white man’s” government.41 In the words of Senator Garrett Davis of Kentucky, “The white race . . . will be proprietors of the land, and the blacks its cultivators; such is their destiny.” 42 Let it be regarded as political propaganda, and, as the noted British historiographer Sir Herbert Butterfield states, it “does at least presume an audience—perhaps a ‘public opinion’ —which is judged to be susceptible to the kinds of arguments and considerations set before it.” 43 Consider, too, that the Indiana Constitution of 1851 excluded Negroes from the State, as did Oregon,44 that a substantial number of Northern States recently had rejected Negro suffrage,45 that others maintained segregated schools.46 It is against this backdrop that we must measure claims that the framers of the Fourteenth Amendment swallowed abolitionist ideology hook, line, and sinker.47

The framers represented a constituency that had just emerged from a protracted, bitterly fought war, a war that had left them physically and emotionally drained. It had begun with a commitment to save the Union and had gone on to emancipate the slaves. Now the war-weary North was far from anxious to embark on fresh crusades for the realization of still other abolitionist goals.48 While emancipation largely hit slavery in the South, eradication of inequality, as Vann Woodward remarked, required “a revolution for the North as well,” 49 a revolution for which most Republicans were utterly unprepared. Then too, the fact that Republicans and Democrats had been pretty evenly matched over the years, that some districts definitely were swing areas, led Republicans in those areas to be cautious of affronting their constituents.50 Many moderate and conservative Republicans, as we shall see, were acutely aware of the impact on elections of sweeping radical claims for political, let alone social, equality for the blacks.51 While most men were united in a desire to protect the freedmen from outrage and oppression in the South by prohibiting discrimination with respect to “fundamental rights,” without which freedom was illusory, to go beyond this with a campaign for political and social equality was, as Senator James R. Doolittle of Wisconsin confessed, “frightening” to the Republicans who “represented States containing the despised and feared free negroes.” 52

A striking reflection of Northern sentiment was furnished by Thaddeus Stevens, the foremost Radical leader. According to his biographer, Fawn M. Brodie, he

As Stevens revealed, most Republicans were politicians first and ideologues afterward.54 Not civil rights for blacks but the dreaded take-over of the federal government by the South was their obsessive preoccupation. Emancipation brought the startling realization that Southern representation would no longer be limited in the House of Representatives to three-fifths of the blacks, as article I, §3, provided. Now each voteless freedman counted as a whole person; and in the result Southern States would be entitled to increased representation and, with the help of Northern Democrats, would have, Thaddeus Stevens pointed out at the very outset of the 39th Congress, “a majority in Congress and in the Electoral College.” With equal candor he said that the Southern States “ought never to be recognized as valid States, until the Constitution shall be amended . . . as to secure perpetual ascendancy” to the Republican party.55 The North had not fought and quelled rebellion in order to surrender the fruits of victory to the unrepentant rebels. How to circumvent this possibility was the central concern of the Republicans, and it found expression in §2 of the Fourteenth Amendment, which reduced representation in proportion as the right to vote was denied or abridged. Unless we seize hold of the fact that, to borrow from Russell R. Nye, “what lies beneath the politics of the Reconstruction period, so far as it touched the Negro, is the prevailing racist policy tacitly accepted by both parties and by the general public,” 56 we shall fail to appreciate the limited objectives of the Fourteenth Amendment. That is the reality underlying the limited purposes of the framers of the Fourteenth Amendment, and which circumscribes the so-called “generality” of “equal protection” and “due process.”

Proponents of a broad construction of the Amendment have assumed that advocates of a restricted construction have the burden of proving that the framers’ objectives were limited. The shoe is on the other foot; an interpretation that invades what had long been considered the exclusive province of the States, as, for example, criminal procedure, requires some justification. It is not enough in that situation that the words are capable of a broad meaning; the reservation to the States in the Tenth Amendment of powers not delegated to the federal government calls for a clear showing that the successor amendment was designed to curtail those reserved powers.57 Over the years the Supreme Court, to be sure, has steadily eroded those reserved powers, but this simply represents another of the usurpations that bestrew the path of the Court. But the historian, looking to the Constitution itself, may not be blind to the fact that, in the words of Willard Hurst, the reservation “represented a political bargain, key terms of which assumed the continuing vitality of the states as prime law makers in most affairs.” 58 No trace of an intention by the Fourteenth Amendment to encroach on State control—for example, of suffrage and segregation—is to be found in the records of the 39th Congress. A mass of evidence is to the contrary, and, as will appear, the attachment of the framers to State sovereignty played a major role in restricting the scope of the Amendment. “ [W]e ought to remember,” Justice Holmes said, “the greater caution shown by the Constitution in limiting the power of the States, and should be slow to construe the [due process] clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court’s own discretion the validity of whatever laws the States may pass.” 59 The history of the Amendment buttresses the flat statement that no such jurisdiction was conferred.

“What, after all,” asked Wallace Mendelson, “are the privileges and immunities of United States citizenship? What process is ‘due’ in what circumstances? and what is ‘equal protection’?” 60 Study of what the terms meant to the framers indicates that there was no mystery. The three clauses of §1 were three facets of one and the same concern: to insure that there would be no discrimination against the freedmen in respect of “fundamental rights,” which had clearly understood and narrow compass. Roughly speaking, the substantive rights were identified by the privileges or immunities clause; the equal protection clause was to bar legislative discrimination with respect to those rights; and the judicial machinery to secure them was to be supplied by nondiscriminatory due process of the several States. Charles Sumner summarized these radical goals: let the Negro have “the shield of impartial laws. Let him be heard in court.” 61 That shield, it will be shown, was expressed in “equal protection of the laws; access to protection by the courts found expression in “due process of law.” The framers, it needs to be said at once, had no thought of creating unfamiliar rights of unknown, far-reaching extent by use of the words “equal protection” and “due process.” Instead, they meant to secure familiar, “fundamental rights,” and only those, and to guard them as of yore against deprivation except by (1) a nondiscriminatory law, and (2) the established judicial procedure of the State.

Supplementary Note on the Introduction

2

“Privileges or Immunities”

The “privileges or immunities” clause was the central provision of the Amendment’s §1, and the key to its meaning is furnished by the immediately preceding Civil Rights Act of 1866,1 which, all are agreed, it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their “life, liberty, and property” —no more. For the framers those words did not have the sprawling connotations later given them by the Court but, instead, restricted aims that were expressed in the Act. The legislative history of the Amendment frequently refers to “fundamental rights,” “life, liberty, and property,” and a few historical comments will show the ties between the two.

At Locke’s hands, said Edward S. Corwin, natural law dissolves “into the rights of ‘life, liberty, and estate,’ ” a derivation noted by Francis Bacon. The trinity was reiterated by Sir Matthew Hale2 and sharply etched by Blackstone in his chapter on “The Absolute Rights of Individuals”:

For Blackstone “due course of law” and the “laws of the land” did not enlarge, they did not add to, the “absolute rights” of an Englishman, but rather marked the sole means whereby those rights might be diminished. These “absolute,” “fundamental” rights of “life, liberty, and property” referred, in sum, to (1) personal security; (2) freedom of locomotion; and (3) ownership and disposition of property.

On this side of the water the opening Resolve of the First Continental Congress affirmed that the Colonists “by the immutable laws of nature, the principles of the British Constitution . . . ‘are entitled to life, liberty, and property.” 4 Blackstone, whose work was widely circulated in the Colonies, was cited in Federalist No. 84 and paraphrased by Kent.5 Instead of the “absolute rights” of “life, liberty, and property” the Framers resorted to the terminology of Article IV, §2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” These words were construed “confiningly” by Justice Bushrod Washington on circuit, in Corfield v. Coryell, as comprising “fundamental” rights such as freedom of movement, freedom from discriminatory taxes and impositions, ownership of property, access to the courts.6

For the “principal spokesmen” and theorists of the abolitionist movement, Lysander Spooner and Joel Tiffany, “privileges and immunities” meant that a citizen has a right “to full and ample protection in the enjoyment of his personal security, personal liberty, and private property . . . protection against oppression . . . against lawless violence.” 7 This echoes Blackstone’s formulation and in large part anticipates the privileges embodied in the Civil Rights Act of 1866. The sponsors of the Act, Senator Lyman Trumbull and Representative James F. Wilson, chairmen respectively of the Senate and House Judiciary committees, cited Blackstone, Kent, and Coryell, as did others.8 And John A. Bingham, draftsman of the Amendment, stated that he had drawn the “privileges or immunities” clause of the Fourteenth Amendment from Article IV, §2.9

The Civil Rights Act of 1866

The meaning and scope of the Fourteenth Amendment are greatly illuminated by the debates in the 39th Congress on the antecedent Civil Rights Act of 1866. As Charles Fairman stated, “over and over in this debate [on the Amendment] 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.” 10 George R. Latham of West Virginia, for example, stated that “the ‘civil rights bill’ which is now a law . . . covers exactly the same ground as this amendment.” 11 In fact, the Amendment was designed to “ constitutionalize ” the Act,12 that is, to “embody” it in the Constitution so as to remove doubt as to its constitutionality and to place it beyond the power of a later Congress to repeal. An ardent advocate of an abolitionist reading of the Amendment, Howard Jay Graham, stated that “virtually every speaker in the debates on the Fourteenth Amendment—Republican and Democrat alike—said or agreed that the Amendment was designed to embody or incorporate the Civil Rights Act.” 13

Section 1 of the Civil Rights Bill provided in pertinent part,

The specific enumeration was in response to a sentiment expressed at the very outset by Senator John Sherman, who desired to secure such rights to the freedmen, “naming them, defining precisely what they should be.” 15 Shortly stated, freedmen were to have the same enumerated rights (as white men), be subject to like punishment, suffer no discrimination with respect to civil rights, and have the equal benefit of all laws for the security of person and property. Patently these were limited objectives; the rights enumerated, said William Lawrence of Ohio, were the “ necessary incidents of these absolute rights,” that is, of “life, liberty, and property,” lacking which those “fundamental rights” could not be enjoyed.16 It was these “enumerated rights,” “stated in the bill,” said Martin Thayer of Pennsylvania, that were “the fundamental rights of citizenship.” 17

Section 1 of the Bill was a studied response to a perceived evil, the Black Codes,18 which the Republicans averred were designed to set emancipation at naught, to restore the shackles of the prior Slave Codes, and to return the blacks to serfdom. The Bill was necessary, Senator Henry Wilson of Massachusetts said, because the new Black Codes were “nearly as iniquitous as the old slave codes.” 19 Citing the prewar Slave Code of Mississippi, which prohibited the entry of a free Negro into the State, travel from one county to another, serving as a preacher, teaching slaves, and so on, Senator Trumbull stated that “the purpose of the bill . . . is to destroy all these discriminations.” 20 References to the Black Codes stud the debates:21 they were described as “atrocious” and “malignant.” 22 Samuel W. Moulton of Illinois, William Windom of Minnesota, Thomas D. Eliot of Massachusetts, and Senator Daniel Clark of New Hampshire considered that the Bill was needed to protect the Negro against “damnable violence,” “wrong and outrage,” “fiendish oppression,” “barbarous cruelties.” 23 As Senator John B. Henderson, a Republican from Missouri, stated, “though nominally free, so far as discriminating legislation could make him [the black] so he was yet a slave.” 24 Republicans did not have to travel beyond the halls of Congress to savor Southern recalcitrance. Toward the close of the debates, Benjamin G. Harris of Maryland, an old-line Democrat, said,

So it proved.

The explanations of the Civil Rights Bill by the respective committee chairmen made its limited objectives entirely clear. Speaking to “civil rights and immunities,” House Chairman Wilson asked,

quoting Chancellor Kent.26 Of “immunities” Wilson said that a black should “not be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . This is the spirit and scope of the bill, and it does not go one step beyond.” 27 M. Russell Thayer of Pennsylvania stated that “to avoid any misapprehension” as to what the “fundamental rights of citizenship” are, “they are stated in the bill. The same section goes on to define with great particularity the civil rights and immunities which are to be protected by the bill.” And, he added, “when those civil rights which are first referred to in general terms [that is, civil rights and immunities] are subsequently enumerated, that enumeration precludes any possibility that the general words which have been used can be extended beyond the particulars which have been enumerated,” that the Bill was for “the protection of the fundamental rights of citizenship and nothing else.” 28 Wilson emphasized that the rights enumerated were no “greater than the rights which are included in the general terms ‘life, liberty, and property.’ ” 29 He did not proceed from the dictionary but responded to a sentiment unequivocally articulated by James W. Patterson of New Hampshire in a later discussion of the Fourteenth Amendment, for which he voted. I am opposed, he stated, “to any law discriminating against [blacks] in the security of life, liberty, person, property and the proceeds of their labor. These civil rights all should enjoy. Beyond this I am not prepared to go, and those pretended friends who urge political and social equality . . . are . . . the worst enemies of the colored race.” 30

Such views had been expressed in the Senate by Trumbull, who drafted the Bill: “The bill is applicable exclusively to civil rights. It does not propose to regulate political rights of individuals; it has nothing to do with the right of suffrage, or any other political right.” 31 Commenting on Corfield v. Coryell, Trumbull stated that such cases had held that under the “privileges and immunities” of Article IV, §2, a citizen had “certain great fundamental rights, such as the right to life, to liberty, and to avail oneself of all the laws passed for the benefit of the citizen to enable him to enforce his rights.” These were the rights with which the Civil Rights Bill would clothe the Negro.32

Suffrage, said Senator Jacob M. Howard in later explaining the Fourteenth Amendment, is not “one of the privileges and immunities thus secured by [Article IV, §2 of] the Constitution”; it is not, said Senator William P. Fessenden of Maine, chairman of the Joint Committee on Reconstruction, a “natural right.” 33 Trumbull stated that the Bill “has nothing to do with the right of suffrage, or any other political rights.” 34 When Senator Willard Saulsbury, a Democrat of Delaware, sought specifically to except “the right to vote,” Trumbull replied: “that is a political privilege, not a civil right. This bill relates to civil rights only.” 35 And he reiterated that the Bill “carefully avoided conferring or interfering with political rights or privileges of any kind.” 36 The views of Trumbull and Wilson were shared by fellow Republicans. The “only effect” of the Bill, said Senator Henderson, was to give the blacks the enumerated rights. “These measures did not pretend to confer upon the negro the suffrage. They left each State to determine the question for itself.” 37 Senator Sherman said the bill “defines what are the incidents of freedom, and says that these men must be protected in certain rights, and so careful is its language that it goes on and defines those rights, the rights to sue and be sued [etc.] . . . and other universal incidents of freedom.” 38 Thayer stressed that the bill did not “extend the right of suffrage,” that suffrage was not a “fundamental right.” 39 That the purpose of the bill was to prevent discrimination with respect to enumerated, fundamental not political or social rights, was also stated in one form or another by Cook and Moulton of Illinois, Hubbell, Lawrence, and Shellabarger of Ohio, and Windom of Minnesota.40

Since Corfield v. Coryell41 is cited on all hands, it will profit us to consider its bearing on the scope of “privileges or immunities.” The actual holding was that the phrase did not confer on an out-of-state citizen the right to dredge for oysters in New Jersey waters. In passing, Justice Washington stated:

The last sentence alone militates against an “all-inclusive” reading of Corfield.44

In the main, these are the privileges and immunities enumerated in the Civil Rights Bill. Justice Washington’s inclusion of the “elective franchise, ” as Charles Fairman remarked, was “plainly wrong.” 45 Article IV hardly intended to enable a transient migrant to vote, and this after excluding him from dredging for oysters. From the beginning, admission to suffrage had been the province of the State, as Chief Justice Parker of Massachusetts held at about the same time as Corfield, being preceded by Judge Samuel Chase of Maryland.46 Right or wrong, it was open to Congress to take a narrower view than that of Washington for purposes of the Act which the Fourteenth Amendment was to constitutionalize. Trumbull did just this, saying of Washington, “This judge goes further than the bill” in including the “elective franchise.” 47 Graham dwells on the Corfield phrase “Protection by the government; the enjoyment of life and liberty . . . and to pursue and obtain happiness.” 48 Here, too, the framers could choose to exclude protection for the “pursuit of happiness,” but in truth it was to Trumbull’s mind a synonym for property: “the great fundamental rights of life, liberty, and the pursuit of happiness.” 49 And so it was read by Justice Bradley in the Slaughter-House Cases: the rights “to life, liberty and the pursuit of happiness are equivalent to the rights of life, liberty and property.” 50 At any rate, the “pursuit of happiness” found no place in the Amendment; in its stead the framers substituted the bare word “property,” clinging to the traditional trinity: “life, liberty, and property.”

It remains to notice two earlier cases also cited in the debates. In Campbell v. Morris (1797), Judge Chase, before long to be a Supreme Court Justice, stated on behalf of the General Court of Maryland that counsel were agreed

Mark that the emphasis is on freedom from discrimination, on equality with respect to described rights. In 1827, shortly after Corfield, Chief Justice Parker declared on behalf of the highest court of Massachusetts, in Abbott v. Bayley, that the privileges and immunities phrase confers a “right to sue and be sued,” that citizens who remove to a second State “cannot enjoy the right of suffrage,” but “may take and hold real estate.” 52 Thus, long before 1866 courts had held that “privileges and immunities” were comprised of the rights Blackstone had enumerated; the framers, aware of Blackstone and the decisions, embodied those rights, and those rights only, in the Civil Rights Act of 1866.

That, however, is not the neoabolitionist reading of the history. So Alfred Kelly remarked, “Trumbull made it clear that his notion of the rights incidental to national citizenship were exceedingly comprehensive in character . . . Citing the dictum in Corfield v. Coryell, he argued that the rights of national citizenship included all ‘privileges which are in their nature fundamental’ . . . In short, he nationalized the comity clause [Article IV, §2] and turned it into a national bill of rights against the states, as the pre-war antislavery theorists had pretty generally done.” 53 Such interpretations are poles removed from Trumbull’s carefully restricted explanations. In the debates on the Civil Rights Bill, Trumbull made no mention of the Bill of Rights, but tied the “privileges and immunities” phrase to “certain great fundamental rights such as the right to life, to liberty,” and the benefit of laws passed for the enforcement of those rights, explicitly excluding “political” rights. His fellows even more clearly viewed the enumerated rights as restrictive.54 As the citations to Blackstone and Kent show, “fundamental,” “natural” rights had become words of received meaning.55 TenBroek himself states that “the area of disagreement” about “privileges and immunities was not large, since their natural rights foundation was generally accepted”; they were “the natural rights of all men or such auxiliary rights as were necessary to secure and maintain those natural rights. They were the rights to life, liberty, and property. They were the rights to contract, and to own, use and dispose of property.” 56

Nevertheless, tenBroek remained fuzzy as to the meaning of “fundamental” rights as is shown by his citation to Senator Henderson. After noting Henderson’s explanation of the purpose of the Civil Rights Act, to give the rights therein enumerated (which he read into the record), and his reference to “those fundamental rights of person and property which cannot be denied to any person,” tenBroek concludes: “This was the sweeping view of those who sponsored . . . the Fourteenth Amendment.57 Henderson, however, had emphasized that the “only effect” of the Civil Rights Bill was to give the blacks the rights there listed, that because the “negro is the object of that unaccountable prejudice against race” the “country is not prepared” to give them more.58

The Graham–tenBroek–Kelly writings have muddied analysis; they are not true to the historical facts. Shortly restated, those facts are that the “fundamental” rights which the framers were anxious to secure were those described by Blackstone—personal security, freedom to move about and to own property; they had been picked up in the “privileges and immunities” of Article IV, §1; the incidental rights necessary for their protection were “enumerated” in the Civil Rights Act of 1866; that enumeration, according to the framers, marked the bounds of the grant; and at length those rights were embodied in the “privileges or immunities” of the Fourteenth Amendment. An argument to the contrary, it may be stated categorically, will find no solid ground in the debates of the 39th Congress.

Supplementary Note on the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights

A

B

the civil rights bill of 1866

fundamental rights

3

The “Privileges or Immunities of a Citizen of the United States”

Narrow as was the protection afforded blacks by the “privileges or immunities” clause, it was at least designed to shield them from violence and oppression. Even that limited goal was soon aborted when the Supreme Court divorced the rights of “a citizen of the United States” from the freedom from the discrimination proscribed by the Amendment. Consequently, the provision has become the all-but-forgotten clause of the Constitution.1 In the Slaughter-House Cases the Supreme Court grounded this view in part on the differentiation between the declaration in the first sentence of §1 that “all persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside” and the second-sentence provision that no State “shall abridge the privileges or immunities of a citizen of the United States.” From this Justice Miller deduced that a “citizenship of the United States and a citizenship of a State . . . are distinct from each other,” and that §1 secured only the privileges of a “citizen of the United States.” 2 So meager was his catalog of those privileges as to move Justice Field to exclaim that if this was all the privileges or immunities clause accomplished, “it was a vain and idle enactment.” 3Slaughter-House was a five-to-four decision, and Field was joined by Chief Justice Chase and Justices Bradley and Swayne in an opinion that took more accurate account of the framers’ intention than did that of Miller.

Preliminarily it will be useful to pull together a few strands that tie the privileges or immunities of §1 to the specific enumeration of the Civil Rights Act of 1866. There is first the correspondence to the Civil Rights Bill’s “civil rights and immunities,” “privileges” being narrower than “civil rights,” which had been deleted at Bingham’s insistence.4 Second, Chairman Trumbull explained that the Bill had been patterned on the “privileges and immunities” of Article IV, §2, and its construction by Justice Washington. Third, in introducing the prototype of §1, Bingham said that the “privileges or immunities” had been drawn from Article IV; fourth, Senator Howard similarly referred back to the Article.5 Speaking after Howard, Senator Luke P. Poland stated that §1 “secures nothing beyond what was intended by” the original privileges and immunities provision.6 More important is the all but universal identification of §1 with the Civil Rights Act. Why, then, were not the terms of the Act incorporated bodily in §1? Constitutional drafting calls for the utmost compression, avoidance of the prolixity of a code;7 “the specific and exclusive enumeration of rights in the Act,” as Bickel remarked, presumably was considered “inappropriate in a constitutional provision.” 8 In sum, the words “privileges or immunities,” it is safe to say, were designed to secure “person and property” against violence and oppression by the rights auxiliary to such protection. How was this design separated from the “privileges or immunities of a citizen of the United States”?

Justice Miller correctly stated that Article IV, §2, did not “profess to control the powers of State governments over the rights of its own citizens.” Its sole purpose was to require that the rights granted by a State to its “own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” 9 Without mentioning “citizens of the United States,” the courts had construed Article IV to mean that a migrant citizen from one State would enjoy the “fundamental rights” accorded by a sister State to its own citizens.10 This the framers understood; the cases were quoted, explained, and used as a platform for the Civil Rights Bill.11 The task, however, was not one of outright adoption but of adaptation. For the Negro did not become a migrant by emancipation; generally speaking, he remained in the same State. But he had experienced a transmigration, from that of a slave, a nonperson,12 to a freeman, and the framers meant to secure to this transmigrant the rights that Article IV, §2, had guaranteed to a migrant citizen.

Early on, James A. Garfield of Ohio stated, the goal was that “personal liberty and personal rights are placed in the keeping of the nation, that the right to life, liberty, and property shall be guarantied to the citizen in reality . . . We must make American citizenship the shield that protects every citizen, on every foot of our soil.” 13 That motive manifestly was at the heart of the Civil Rights Bill: “all persons born in the United States . . . are hereby declared to be citizens of the United States,” and it went on to proscribe “discrimination in civil rights or immunities among the inhabitants of any State.” 14 A citizen of the United States who was an “inhabitant” of a State was to be free from discrimination. The Bill, Chairman Wilson stated, “refers to those rights which belong to men as citizens of the United States and none other.” 15 Raymond of New York said that it provided protection for “citizens of the United States . . . against anticipated inequality of legislation in the several States.” 16 Cook of Illinois understood the Bill to provide “that as between citizens of the United States there shall be no discrimination in civil rights or immunities. When these rights which are enumerated in this bill are denied to any class of men on account of race or color, when they are subject to a system of vagrant laws which sells them into slavery or involuntary servitude, which operates upon them as upon no other part of the community, they are not secured in the rights of freedom.” 17

In the Senate, Trumbull stated that Corfield v. Coryell “enumerates the very rights belonging to a citizen of the United States which are set forth in the first section of the bill.” 18 Senator Garrett Davis of Kentucky understood full well what Trumbull was about, and therefore proposed to substitute the Article IV, §2, formula— “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States” —explaining that it would apply “only when a citizen of one State goes into another State,” whereas, he stated, Trumbull “proposes now to apply his bill to every citizen of the United States . . . where that citizen is domiciled in the State in which he was born.” In other words, Trumbull would legislate “for the resident Negro in Kentucky, born there, who has always lived there, and who intends to remain there,” to which, he stated, Corfield has no application.19 Thus, Davis sought to restrict the Bill exactly as Justice Miller later did, but his proposal was stillborn. Instead, Trumbull reasoned from Corfield that were a law to declare a “person born in the United States a citizen of the United States, the same rights [listed in Corfield ] would then appertain to all persons who were clothed with American citizenship.” 20 After President Johnson’s veto of the Bill, Trumbull again stated that “citizens of the United States” have “fundamental rights . . . such as the rights enumerated in this bill,” among them, citing Blackstone, that “restraints introduced by law should be equal to all ” and, quoting Kent, “the right of personal security, the right of personal liberty, and the right to acquire and enjoy property.” 21 In short, the Senate rejected the Davis-Miller view in favor of a United States citizenship that would clothe residents of a State with the “fundamental rights” theretofore conferred on migrants.

Did these views, expressed in connection with the Civil Rights Bill, carry over into the Fourteenth Amendment? Here there is more than the intention to constitutionalize the Civil Rights Act. Frederick E. Woodbridge of Vermont stated that the proposed Bingham prototype was “intended to enable Congress . . . to give all citizens the inalienable rights of life and liberty, and to every citizen in whatever State he may be . . . that protection for his property which is extended to the other citizens of the State.” 22 George R. Latham of West Virginia understood the Fourteenth Amendment “privileges and immunities of citizens of the United States” to “provide that no State shall make any discrimination in civil rights of citizens of the United States on account of race . . . the ‘civil rights bill’ which is now a law . . . covers exactly the same ground.” 23 So, too, John M. Broomall of Pennsylvania stated, “We propose, first, to give power to the Government . . . to protect its own citizens within the States,” a proposition for which the House had “already voted . . . in the civil rights bill.” 24 Ephraim R. Eckley of Ohio also stressed the need to provide “security for life, liberty and property to all citizens of all the States.” 25 And Senator Howard referred to the privileges and immunities of Article IV, quoted Corfield to explain the terms, and stated that these rights “are secured to the citizens solely as a citizen of the United States.” 26 Apart from Garrett Davis’ abortive attempt to limit this objective, no one, so far as I could find, disputed that the purpose of both the Civil Rights Act and the Amendment was to guarantee to “citizens of the United States,” whether they were migrants to or residents of a State, the enumerated fundamental rights.

In the process of hammering out the Amendment, the framers had lost sight of the definition of citizenship contained in the Civil Rights Bill, so it was late in the day when Senator Benjamin F. Wade of Ohio remarked anent the word “citizen” in §1, “that is a term about which there has been a great deal of uncertainty in our government.” To “put the question beyond cavil,” he proposed to “strike out the word ‘citizen’ [in what is now the second sentence of §1], and substitute all persons born in the United States.” 27 Howard advanced a counterproposal, the present introductory sentence, “All persons born in the United States . . . are citizens of the United States and of the State wherein they reside.” Wade then withdrew his proposal.28 Presumably the Howard formulation struck Wade as a satisfactory substitute for, not a repudiation of, his own proposal. Although the Negro had been emancipated, the Dred Scott decision threw a shadow over his citizenship;29 the matter had been a source of interminable argument. Trumbull wished “to end that very controversy, whether the Negro is a citizen or not.” 30 Howard stated that his definitional amendment of §1 “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” And he further explained, “we desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power” of those who would “expose the freedmen again to the oppression of their old masters,” 31 thus confirming that his definition was not a sub rosa abandonment of the paramount goal throughout: protection of the resident Negro against State discrimination. In the House, Thaddeus Stevens of Pennsylvania regarded the Howard interpolation as an “excellent amendment, long needed to settle conflicting decisions.” 32 This limited purpose of Howard’s definition throws doubt on Miller’s view that it was designed to demark the rights of a citizen of the United States from those of a State citizen. Against the manifest purpose of the framers, of which Justice Miller was well aware,33 his reliance on a rule of construction—to express at one point is to exclude at another—should carry little weight.34 Rules of construction are useful guides where other light is lacking, but they are not meant to dim or extinguish available light. The cardinal purpose of interpretation, it cannot too often be emphasized, is to ascertain and effectuate, not defeat, the intention of the framers. Once that purpose is ascertained, it may not be thwarted by a rule of construction.35

In sum, the purpose of the framers was to protect blacks from discrimination with respect to specified “fundamental rights,” enumerated in the Civil Rights Act and epitomized in the §1 “privileges or immunities” clause. To achieve that purpose they made the black both a citizen “of the United States and of the State in which he resides.” They did not intend by the addition of State citizenship to diminish the rights they had been at such pains to specify, but the better to secure them. The notion that by conferring dual citizenship the framers were separating said rights of a citizen of the United States from those of a State citizen not only is without historical warrant but actually does violence to their intention. Fessenden stated that the definition was framed “ to prevent a State from saying that although a person is a citizen of the United States he is not a citizen of the State.” 36 He did not mean to safeguard State citizenship in order to leave blacks at the mercy of Southern States. It was precisely their abuse of the freedmen that led to the Amendment.

Justice Miller next stressed the serious consequences that would follow adoption of a construction contrary to his own; the effect would be to “degrade the State governments by subjecting them to the control of Congress” in unwonted manner. He read “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” as transferring “the entire domain of civil right” from the States to the federal government, so that Congress could even “pass laws in advance, limiting and restricting the exercise of legislative power by the States.” 37 Here Miller imported a term into the clause; “abridge” presupposes preliminary State action; before such abridgment there is nothing upon which to act “in advance.” Moreover, Congress was confined to corrective measures, as Miller was aware: “If, however, the States did not conform their laws to its [the Amendment’s] requirements, then by the fifth section . . . Congress was authorized to enforce it by suitable legislation.” 38 It was emphatically not authorized to promulgate a general code “in advance.”

Miller himself found that “the existence of laws in the States where the newly emancipated negroes reside, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied” —that is, the Black Codes.39 The “one pervading purpose,” he stated, was “protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.” 40 Consequently, the Amendment did not encompass “all legislation,” 41 but only discriminatory legislation with respect to specified rights, as Justice Field pointed out: “What, then, are the privileges and immunities which are secured against abridgment by State legislation? In the first section of the Civil Rights Act Congress has given its interpretation of these terms [which] . . . include the right ‘to make and enforce contracts . . .’ ” 42 The correction of discriminatory laws with respect to the enumerated “fundamental rights” would hardly constitute the “court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens.” 43 When Miller held that “the citizen of a State” must look to the State for protection,44 he aborted what he himself had declared to be the “pervading purpose”: to protect the Negro from the “evil” of the Black Codes, Codes that handed the Negro back to his oppressors.

Paradoxically, Justice Miller was ready to protect Negroes from “gross injustice and oppression” by resort to the equal protection clause.45 How, one wonders, did “equal protection” escape the blight that struck down “privileges or immunities”? It equally “degrad[ed] the State governments by subjecting them to the control of Congress”; it too constituted a “great departure from the structure and spirit of our institutions.” 46 And whereas the limits of “privileges or immunities” can be discerned in the rights specified in the Civil Rights Act which §1 incorporated, there is no clue whatever to the rights comprehended by the Miller formula—equal protection against “gross injustice and hardship.” One of the ironies that bestrews the path of the Court is that the censorship abjured by Miller under “privileges or immunities” really became unlimited under the converted due process clause.47

No discussion of Slaughter-House may fail to take account of Justice Bradley’s dissent. Where Field won the concurrence of three associates, Bradley stood alone; where Miller held that protection of the citizen was for the State, Bradley propounded a theory of “absolute” rights that neither State nor nation may invade.48 That theory, as will hereinafter appear, can draw small comfort from the intention of the framers; and he himself stated with respect to the preexisting Article IV, §2: “It is true that courts have usually regarded [it] . . . as securing only equality of privileges with the citizens of the State in which the parties are found.” 49 In holding that the Amendment was designed to assure similar equality with respect to specified rights among residents of a State, Justice Field staked out a position midway between the extremes of Miller and Bradley, one that honestly reflected the intention of the framers.

There remain some remarks by Senator Trumbull in 1871, which Graham reads as a denial “that the Fourteenth Amendment authorized Congress to protect citizens in their rights of person and property in the States. Such an interpretation [Trumbull] declared, would mean ‘annihilation of the States.’ ” 50 Little weight has been attached by the Supreme Court to postenactment remarks, even of the Congress itself.51 When they contradict representations made by the speaker during the enactment process, upon which others have been led to rely, they should be treated with special reserve.52 Consider, too, the circumstances that gave rise to Trumbull’s 1871 remarks. President Grant, Graham recounts, “had just called for a second Force Bill to cope with extralegal suppression of Negro rights. The problem . . . had risen not in the contemplated or familiar form of discrimination by carriers, theaters and inns but in the infinitely more tangled context of Southern whites fighting misrule and military government.” Trumbull “flatly declined to go along with the latest proposal”; the tug of new political considerations shaped his version of the past. Now he maintained that the protection afforded by the Fourteenth Amendment was no greater than that accorded by Article IV, §2, that that section “did not have reference to the protection of those persons in individual rights in their respective States, except so far as being citizens of one State entitled them to the privileges and immunities of citizens in every other”; and that the “fourteenth amendment does not define the privileges and immunities of a citizen of the United States any more than the Constitution originally did.” 53

This was only half the story. Trumbull did not mention his rejection of that very argument by Garrett Davis, that he had read the judicial definitions of the Article IV, §2, privileges and immunities to the framers and patterned the Civil Rights Bill on Corfield v. Coryell, that he adapted the Article IV, §2, conception—a migrant citizen was entitled to the same fundamental rights as a resident citizen—to the transmigrant black so suddenly released from slavery, named him a citizen of the United States to assure him of the same rights the migrant enjoyed under Article IV. To say in these circumstances that the Fourteenth Amendment “does not define the privileges and immunities” is therefore a half-truth. The terms, in lawyers’ jargon, had become “words of art”; in borrowing them (with the exclusion of suffrage), Trumbull expressly gave them the meaning which courts had given under Article IV and which he had carefully spelled out in the Civil Rights Bill. It follows that Trumbull’s 1871 argument that “the privileges and immunities belonging to a citizen of the United States as such are of a national character,” that “National citizenship is one thing and State citizenship another” 54 —the precursor of the Slaughter-House dichotomy—was a repudiation of his own explanation to the framers, his enumeration of specific rights in the Bill that were to belong to “citizens of the United States.” He could change his mind but he could not change that of the 39th Congress which had adopted the Civil Rights Act on the strength of his representations and then went on to incorporate the Act in the Amendment.

4

Negro Suffrage Was Excluded

No area of Negro rights considered by the 39th Congress was so extensively discussed as Negro suffrage.1 The issue was crucial to the maintenance of Republican ascendancy, a goal boldly proclaimed by Stevens at the very outset. Such ascendancy, the mass of Republicans believed, was to be assured through the reduction of Southern representation in the House of Representatives in proportion as a State denied or abridged suffrage, the device embodied in §2 of the Amendment.2 Some strongly doubted whether the rebel ruling class, outnumbered by blacks, could be induced to “divest itself of the government and hand it over to a subject and despised caste.” 3 But it was more important, Senator George H. Williams of Oregon, member of the Joint Committee, candidly avowed, to limit Southern representation than to provide “that negroes anywhere should immediately vote.” 4 The fact that Negro suffrage was unmistakably excluded from the ambit of the Civil Rights Bill, which proceeded on a parallel track with debate on “representation,” lends substance to his avowal. The intention to exclude suffrage from the Amendment as well5 need not rest entirely on its incorporation of the Civil Rights Act, for there is ample affirmative evidence of that purpose.

Chief Justice Warren held in Reynolds v. Sims, a State reapportionment case, that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” The premise, he said, that a State may not deny suffrage was derived from a “conception of political equality . . . [that] can mean only one thing—one person, one vote.” 6 Equality, however, did not carry that meaning for the framers;7 and in a powerful dissent, Justice Harlan reproached the Court “for its failure to address itself at all to the Fourteenth Amendment as a whole or to [its] legislative history.” 8 Even one who regards the reapportionment decisions with favor, Carl Auerbach, lamented that “the failure of the Court to mention, let alone deal with, [Harlan’s] argument is indeed, as he charged, remarkable and confounding.” 9 Another proponent of those decisions, William Van Alstyne, states that “the majority seems tacitly to have conceded the argument.” 10 In 1970 Justice Harlan amplified his dissent in Oregon v. Mitchell;11 both of his dissents are models of scholarly exactitude. Having combed the debates for myself, I can confirm his accuracy and scrupulousness in drawing inferences from the facts; one can only complain that he left so few gleanings for those who came after. Since his discussion in the two opinions covers many pages, and since it is contained in law reports that only scholarly specialists are likely to consult, I have undertaken to compress the materials into smaller compass, particularly because they furnish the springboard for much that is to follow.

The Grant of Suffrage Was Excluded From §1

Senator Sumner labeled the right to vote “the Great Guarantee; and the only sufficient Guarantee,” 12 without which, said Senator Samuel C. Pomeroy of Kansas, the Negro “has no security.” 13 Similar sentiments were expressed by James A. Garfield and James M. Ashley of Ohio, George S. Boutwell of Massachusetts, Ignatius Donnelly of Minnesota, and William A. Newell of New Jersey—Republicans all.14 Nevertheless, as Senator Trumbull emphasized, it was not included in the Civil Rights Bill. Why not? Because, in the words of David Donald, it was “political dynamite.” 15 The reasons have been so admirably compressed by Professor Van Alstyne as to bear quotation in extenso. He notes that the Joint Committee considered a forthright proposal to abolish “any distinctions in political or civil rights . . . on account of race” and states,

Indeed they had! They explain why the framers rejected Negro suffrage, as may immediately be gathered from two statements among many. Senator Pomeroy stated: “This nation . . . has not yet reached the point of giving all men their rights by a suffrage amendment; three-fourths of the States are not ready.” 17 In opening the debate on the Amendment, Senator Jacob Howard stated on behalf of the Joint Committee, “it was our opinion that three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race.” 18 These views were repeated in the Final Report of the Joint Committee on Reconstruction.19

If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general terms “equal protection” the very grant they could not swallow? Van Alstyne also notes a number of proposals that would expressly abolish distinctions “in the exercise of the legislative franchise on account of race or color” (including one by Sumner that was rejected by a vote of 38 to 8),20 and explains that “there was not sufficient prospect that the necessary number of States would ratify such an amendment.” Are we to impute to the framers an intention to shroud in ambiguity the Negro suffrage they dared not “advertise” by a “blunt,” unequivocal proposal? Something of the sort is suggested by Van Alstyne,21 but there is no evidence of representations that the Fourteenth would mean one thing in 1866 and the very thing then “feared” in the future. A legislative intention to have words mean one thing in 1866 and the opposite in the future is so remarkable as to call for strict proof, not speculation, particularly when disclosure spelled political disaster.22 But let me defer comment on this “open-ended” theory, fathered by Alexander Bickel, embraced by Alfred Kelly and Van Alstyne, and then picked up by Justice Brennan, to a later chapter, and for the moment permit the framers to speak for themselves. Because the suffrage issue is so vital for my subsequent discussion of the scope of judicial review, because in the eyes of Justice Brennan the historical record is “vague and imprecise,” 23 it is essential by copious documentation to establish firmly the deliberate exclusion of Negro suffrage.

Negro Suffrage Was Unacceptable

With but “6% of the Negro population,” New England’s advocacy of Negro suffrage, Senator Edgar Cowan of Pennsylvania acidly lectured Sumner, came cheap: “he simply had no understanding of what it is to live in a community surcharged with an idle, dissolute, vicious, ignorant negro population just emerged from slavery.” 24 At the other end of the political spectrum, the Radical leader Thaddeus Stevens, also of Pennsylvania, wrote, “In my county are fifteen hundred escaped slaves. If they are specimens of the negroes of the South, they are not qualified to vote.” 25 Stevens told Robert Dale Owen, “We haven’t a majority, either in our committee or in Congress, for immediate suffrage; and I don’t believe the States have yet advanced so far that they would ratify it.” 26 William Lloyd Garrison, the indomitable abolitionist, “came out against the forcing of Negro suffrage upon the South.” 27

The Republicans were keenly alive to the situation. Very early in the session, Roscoe Conkling explained,

Senator Fessenden, chairman of the Joint Committee, said of a suffrage proposal, there is not “the slightest probability that it will be adopted by the States . . . [it] would not commend itself to anybody.” 29 Sumner’s own Massachusetts colleague, Senator Henry Wilson, a leading Radical, commented on Senator Henderson’s proposal of suffrage without distinction of race, “I cannot think . . . there is any hope of adoption after the indications of the last six months.” 30 Another Senator who favored Negro suffrage, Doolittle of Wisconsin, said, “out of New England there are not three States in this Union, neither Nevada nor Colorado, nor any of the new States or the old States that will vote for an amendment . . . by which negro suffrage shall be imposed upon the States.” 31 Similar remarks were made by still others.32 On July 21, 1866, shortly after the Amendment passed the Congress, Sumner proposed an amendment to a bill for admission of Tennessee that “there shall be no denial of the electoral franchise, or of any other rights, on account of color or race, but all persons shall be equal before the law.” It was voted down without debate, 34 to 4.33 This background lends meaning to Senator Howard’s assurance that “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured” 34 —an echo of assurances during debate on the Civil Rights Bill. Bingham likewise stated that “The amendment does not give . . . the power to Congress of regulating suffrage in the several States.” 35 In any event, how can we attribute to the ratifiers approval of Negro suffrage when midway in the course of ratification, in the elections of April 1867, Bingham’s own State, Ohio, “overwhelmed a negro suffrage amendment by 40,000? In every state where the voters expressed themselves on the Negro suffrage issue they turned it down.” 36

attachment to state sovereignty

Notwithstanding that the States’ Right doctrine had been badly tarnished by its association with secession, a potent factor in the exclusion of Negro suffrage was a deep-seated attachment to State sovereignty. That this was no mere rationalization for Negrophobia may be gathered from the objection of Senator James W. Grimes of Iowa to a national livestock quarantine measure: “Let us go back to the original condition of things, and allow the States to take care of themselves.” 37 On the eve of the Civil War, Lincoln stated in his First Inaugural Address, “The right of each State to order and control its own domestic institutions according to its own judgment exclusively is essential to the balance of powers on which the perfection and endurance of our political fabric depends.” 38 So Story had earlier stated,39 and this view was reiterated by Republicans like Thomas T. Davis, Robert S. Hale, and Giles W. Hotchkiss of New York40 and Latham of West Virginia. Congress, Latham said, “has no right to interfere with the internal policy of the several states.” 41 “The proposition to prohibit States from denying civil or political rights to any class of persons,” said Conkling, “encounters a great objection on the threshold. It trenches upon the principle of existing local sovereignty . . . It takes away a right which has been always supposed to inhere in the States.” 42 Bingham, a leader in the Negro cause, stated that “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” 43 It was because of the prevalence of such sentiment that Trumbull, defending the Civil Rights Bill after President Johnson’s veto, felt constrained to reassure the Senate that the Bill “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property.” 44

This sentiment emerges even more sharply when suffrage is in issue, as when Conkling stated that interference therewith “meddles with a right reserved to the States . . . and to which they will long cling before they surrender it.” 45 Early in the session, the Radical leader Stevens said of a proposed amendment to reduce State representation in proportion to a denial of Negro suffrage: “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualification of their voters? . . . You could not get five in this Union.” 46 In the Senate, Chairman Fessenden stated, “everybody has admitted from the foundation of the Government down to the present day that the power to fix the qualifications of voters rested with the States,” and that the proposed “representation” provision “leaves it just as it was before, and does not change it.” 47 After stating his preference for Negro suffrage, Senator Doolittle said that “the Federal Government had no right or constitutional power to impose on a State negro suffrage . . . the right of a State to determine that question was one of the reserved rights of every State.” Like Stevens, he averred that “out of New England” no three States would vote for an amendment “by which negro suffrage shall be imposed upon the States.” 48 Although Senator Henderson of Missouri was an advocate of Negro enfranchisement, he too stated that he was “not now ready to take away from the States the long-enjoyed right of prescribing the qualifications of electors in their own limits.” 49 “The Radical leaders,” Flack stated, “were aware as any one of the attachment of a great majority of the people to the doctrine of States rights . . . the right of the States to regulate their own internal affairs.” 50 These sentiments were accurately summarized by Justice Miller in 1872, shortly after adoption of the Fourteenth and Fifteenth Amendments:

This “commitment to traditional state-federal relations meant,” in the words of Alfred Kelly, that “the radical Negro reform program could be only a very limited one.” 52 That it was in fact a program “limited” to a ban on discrimination with respect to “fundamental rights” from which suffrage was excluded is confirmed by §2.

The Effect of §2

The framers’ intention to leave control of suffrage in the States, untouched by §1, is confirmed by §2 of the Amendment. That section provides,

The denial is not prohibited, it is not declared void, but as Eckley of Ohio put it, if a State “persists in withholding the ballot” from blacks, she will be “confine[d] . . . to the white basis of representation.” 54 It is difficult to dispute Justice Harlan’s conclusion that §2 “expressly recognizes the State’s power to deny ‘or in any way’ abridge the right . . . to vote.” 55 Were this doubtful, doubts are dispelled by the “blinding light” of the legislative history.56 Since that is disputed by Van Alstyne and Justice Brennan, the evidence must be permitted to speak for itself, unfiltered by a commentator’s paraphrase.

Bingham, a leading Republican member of the Joint Committee, the pillar of the neoabolitionists, said, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” 57 Instead, as he said of a predecessor proviso, it “offers an inducement to those States . . . to make the franchise universal.” 58 On the Senate side, Chairman Fessenden said of an earlier provision, H.R. No. 51, couched in terms of racial discrimination respecting suffrage, “It takes the Constitution just as it finds it, with the power in the States to fix the qualifications of suffrage precisely as they see fit . . . If in the exercise of the power you [States] have under the Constitution you make an inequality of rights, then you are to suffer such and such consequences.” 59 When illness prevented Fessenden from explaining §2, Senator Howard stated: “The second section leaves the right to regulate the elective franchise with the States, and does not meddle with that right.” Later he added: “We know very well that the States retain the power which they have always possessed of regulating the right of suffrage . . . the theory of this whole amendment is to leave the power of regulating the suffrage with . . . the States.” 60 Senator Yates of Illinois recognized that “we do not obtain suffrage now”; Senator Doolittle of Wisconsin stated, the “amendment proposes to allow the States to say who shall vote”; Senator Poland of Vermont would have preferred that “the right of suffrage had been given at once,” but realized it was not “practicable”; Senator Howe of Wisconsin likewise preferred to say “no man shall be excluded from the right to vote” to saying “hereafter some men may be excluded from the right of representation.” 61

In the House, Blaine of Maine stated, “The effect contemplated . . . is perfectly well understood, and on all hands frankly avowed. It is to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that people shall be denied political rights. Give them the vote or lose representation.” 62 Conkling stated that the Joint Committee rejected proposals “to deprive the States of the power to disqualify or discriminate politically on account of race or color” and preferred “to leave every State perfectly free to decide for itself . . . who shall vote . . . and thus to say who shall enter into its basis of representation.” “ [E]very State,” he reiterated, “will be left free to extend or withhold the elective franchise on such terms as it pleases, and this without losing anything in representation if the terms are impartial to all.” And he summed up, “every State has the sole control, free from all interference, of its own interests and concerns,” spelling out that if New York chose to withhold suffrage, “her right cannot be challenged.” 63 Stevens, co-chairman of the Joint Committee, stated that the right of a State to disfranchise “has always existed under the Constitution” and the proposed “representation” provision “acknowledges it.” He repeated that “the States have the right . . . to fix the elective franchise” and that the proposed representation provision “does not take it from them.” In fact, he preferred the reduction of representation to an “immediate declaration” that “would make them [Negroes] all voters”; he did not “want them to have the right of suffrage” until they had been educated in “their duties . . . as citizens.” 64 Although Garfield expressed his “profound regret” that the Joint Committee had been unable to “imbed . . . [suffrage] as a part of the fundamental law of the land,” he stated, “I am willing . . . when I cannot get all I wish to take what I can get.” 65 Similarly, John F. Farnsworth of Illinois stated, “I should prefer to see incorporated into the Constitution a guarantee of universal suffrage; as we cannot get the required two-thirds for that, I cordially support this proposition as the next best.” 66

Nathaniel P. Banks of Massachusetts congratulated the Joint Committee for “waiv[ing] this matter in deference to public opinion,” and George F. Miller of Pennsylvania stated, “This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself.” 67 Against this mass three Democrats raised the possibility in the House that the amendment might affect suffrage qualifications.68 On the other hand, leading Democrats—Senators Reverdy Johnson and Garrett Davis—better understood that it left suffrage to the States.69 These historical materials, which by no means exhaust the quotable statements,70 seem to me, as to Robert Dixon and Ward Elliott, “overpowering,” “overwhelming.” 71 In discreetly skirting the issue the Court tacitly acknowledged their unimpeachability. The rebuttal thus eschewed by Chief Justice Warren was undertaken by Professor Van Alstyne, and it emboldened Justice Brennan to pick up the cudgels in a later case, Oregon v. Mitchell.

Before examining the Warren and Brennan opinions it is desirable to consider in this setting the argument against reapportionment and its relation to suffrage.

Supplementary Note on Suffrage

Howard is confirmed by the Report of the Joint Committee, which drafted the Amendment: “It was doubtful . . . whether the States would surrender a power they had always exercised, and to which they were attached.”

5

Reapportionment

BAKER v. Carr (1962), the unprecedented reapportionment decision, said Paul Kauper, opened a “new chapter of judicial adventurism.” 1 When the issue was once again presented in Reynolds v. Sims, Justice Harlan wrote a dissent that to my mind is irrefutable. The majority of the Court made no pretense of meeting his historical demonstration; it remained for William Van Alstyne to essay a rebuttal. Harlan’s reliance on the legislative history to establish the “original understanding,” Van Alstyne writes, pertains solely to “exclusive state power over suffrage qualifications” and has no bearing on “the separate issue of malapportionment”; “there was almost no mention of the subject.” 2 That fact alone gives one pause: how can a revolution in Northern apportionment be based on nonmention?

The dominant purpose of the 39th Congress was to maintain Republican hegemony by reducing Southern representation; and only secondarily did they think to secure the “person and property” of the Negro from oppression.3 There were repeated disclaimers of any intention to interfere with State sovereignty beyond those objectives. Moreover, while Negro suffrage was predominantly a Southern problem, reapportionment would invade long-established State practices with respect to white voters in the North.4 But Van Alstyne argues that to read malapportionment in the equal protection clause “is to say only that among the enfranchised [white] elite,” qualified by the State to vote, “no invidious distinction shall be permitted. The States may be as capricious as they please in withholding the ballot but not in perpetuating elites within the elite.” 5 That is a tremendous “only.” Republicans who shrank from interfering with State control of Negro suffrage in the South would scarcely have dared to impose on the North a radical reconstruction of white apportionment patterns.6 Certainly there was no disclosure that such intrusion was contemplated;7 there is in fact striking evidence that malapportionment was an accepted practice. Speaking with respect to reduced representation, Blaine of Maine said,

Not a hint that this would be unlawful, but, rather, clear recognition that States were free to apportion representation to suit themselves. Although, as Van Alstyne notices, this would leave “areas populated by non-voters without representation (and not merely without a vote in the choice of ‘their’ representatives),” 9 Bingham replied, “no possible amendment . . . will answer the purpose unless it is followed by further legislation.” 10 Bingham thus confirms Blaine’s recital of the plenary State power over apportionment and implies that the “representation” (§2) proposal was not designed to meet this situation. Van Alstyne’s comment that “Blaine’s remarks were directed only to the apportionment of congressional rather than state representation” implausibly suggests that the States would be readier to surrender control over their own internal patterns—a suggestion that is incompatible with the pervasive attachment to State sovereignty.

Blaine’s remarks did not reflect a fleeting improvisation, but responded to established practice. Earlier he had stated: “As an abstract proposition no one will deny that population is the true basis of representation; for women, children and other nonvoting classes may have as vital an interest in the legislation . . . as those who actually cast the ballot.” But, he noted, recognizing existing practice, as had Federalist No. 54 and James Wilson long before,11 “the ratio of voters to population differs very widely in different sections, from a minimum of nineteen per cent to a maximum of fifty-eight per cent.” 12 Even that uncompromising abolitionist Charles Sumner was reconciled to such practices because they reflected “custom and popular faith,” and could not be changed “unless supported by the permanent feelings and conditions of the people.” 13 Then, too, in the congressional debate of June 1868 (that is, prior to ratification of the Fourteenth Amendment), on the readmission of the rebel States, Farnsworth pointed out that the Florida apportionment provision gave “to the sparsely populated portions of the State the control of the Legislature.” But Ben Butler responded that the Senate Judiciary Committee “have found the [Florida] constitution republican and proper,” as did the Senate, the House Committee on Reconstruction,14 and the House itself, thus reaffirming that such malapportionment did not violate the guarantee of a “republican form of government,” nor the equal protection clause which was the work of Butler and his fellows. The Blaine, Sumner, and Butler statements constitute hard evidence which is not overcome by mere speculation.15 Since, moreover, most of the States were malapportioned, it is a strained assumption that by ratification they surrendered a right they had excercised from the outset, and of which surrender they were totally unapprised.16

When Van Alstyne dismissed Harlan’s reading of the §2 phrase “or in any way abridged” because “once the congressional history” of this phrase is “canvassed . . . it becomes clear that the phrase had nothing at all to do with malapportionment,” he scuttled his whole case. For, by the same token, the history of the equal protection clause likewise “had nothing at all to do with malapportionment.” “There is,” he states, “no evidence that §2 was applicable to abridgment of the right to vote resulting from malapportionment of state legislatures.” “It is even likely,” he avers, “that had the subject been discussed there might have been a disavowal of an intention to apply the Equal Protection Clause to malapportionment.” But “hypothetical answers to hypothetical questions . . . would be a most dubious basis for expounding the content of ‘equal protection’ one hundred years later.” 17 There is no need to speculate because Blaine and others plainly recognized malapportionment as an existing practice that was left untouched. I, too, prefer to eschew speculation, particularly when it is unnecessary. One who would bring an unmentioned departure from settled practice within the perimeter of the Amendment has the burden of proof, made heavier here by (1) the fact that Negro suffrage, on which the Court rested its case for reapportionment, was unmistakably excluded; (2) the plainly expressed attachment of the framers to State sovereignty and their intention to intrude no further than the limits of the Civil Rights Act; and (3) the presumption that a diminution of powers reserved to the States by the Tenth Amendment will be clearly stated.18

In one form or another, Van Alstyne would put asunder what the Warren Court hath joined; he would jettison the Court’s “one man, one vote” postulate. Granting arguendo State power “with respect to outright denials of the right to vote,” he asks, “is it equally so with respect to partial disfranchisement through malapportionment?” 19 The simple answer is that the greater includes the less.20 If a State may altogether deny the vote, it may dilute it. It was in these terms that Chief Justice Warren rationalized reapportionment: the Constitution, he held, protects the right to “vote,” the “right to have one’s vote counted.” And “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” 21 His premise—that the Constitution, that is, the Fourteenth Amendment, protects the right to vote—is contradicted by historical facts. But his logic is impeccable and may be stated inversely: given a right to deny suffrage, it follows that there is a right to dilute it.

Republican Form of Government

One of the “other” powers invoked by radical extremists was the guarantee of a “republican form of government.” 22 Senator Sumner, its leading advocate, could do no better than to find it “obscure” and to write in 1865 that “the time has come to fix meaning to those words.” 23 They were not wrapped in obscurity by the Founders. In the Federal Convention, Edmund Randolph stated that “a republican government must be the basis of a national union; and no state in it ought to have it in their power to change its government into a monarchy.” 24 This was echoed by Madison in Federalist No. 43: “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations . . . [the members of the Union have] the right to insist that the forms of government under which the compact was entered should be substantially maintained.” The guarantee “supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States they are guaranteed by the federal Constitution.” 25 Although Federalist No. 52 stated that the “definition of the right of suffrage is very justly regarded as a fundamental act of republican government,” it concluded that the right must be left to the States because “the different qualifications in the different States [could not be reduced] to one uniform rule.” 26 Finally, Federalist No. 54, alluding to the allocation of representation according to the number of inhabitants, added, “the right of choosing their allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate . . . In every State, a certain proportion of inhabitants are deprived of this right by the Constitution of the State.” 27

Fessenden therefore stood on solid ground when he rebutted Sumner’s reliance on the guarantee, saying, “in the very instrument in which the fathers provided that the United States should guaranty to every State a republican form of government they recognized the existence of slavery unmistakably . . . Did they then consider that the obligation to guaranty a republican form of government extended thus far, giving Congress the right to interfere in Virginia to examine her constitution?” When Sumner argued that the guarantee places Congress under a duty to “see that every man votes who ought to vote,” said Fessenden, “he goes considerably further than those who made the Constitution ever intended to go.” If a State “should choose to have a monarchy, or the controlling portion of the people should choose to have an oligarchy, it then becomes the duty of Congress to interfere.” 28 Such was the view of the Fathers, and it was reiterated by other leaders in the 39th Congress. Meeting a query whether a State would “cease to be republican” if it excluded a race from the franchise, Conkling responded that this “has always been permitted with universal acquiescence by the courts and the nation.” 29 On the admission of Tennessee without provision for Negro enfranchisement, Bingham said in July 1866 that if this was in violation of the guarantee, then Tennessee was in the company of many Northern States. His critics were defeated by a vote of 125 to 12.30 In the Senate, Trumbull stated, “most of us are here under republican forms of government, just like this in Tennessee.” 31

One of the dissentients, William Higby of California—whom Van Alstyne quotes as saying that no “State which excludes any class of citizens [from voting] on account of race or color is republican in form,” and that he was opposed to H.R. No. 51 because “it gives a power to the States to make governments that are not republican in form,” 32 —revealed tellingly that he was merely engaged in wishful thinking. He admitted that by his disenfranchisement test his own State of California is “not republican in form”: “I do not believe there is a single State in the Union, except it may be one of the New England States, which is an exception to that general rule . . . Now, sir, I am aware that the practice has been very different . . . from the establishment of the Government.” 33 When Ralph Hill of Indiana stated that, in placing the guarantee in the Constitution, the Framers “spoke with reference to such governments as then existed, and such as these same framers recognized for a long time afterwards as republican governments,” Higby replied: “that is a very good answer. It is an answer from a standpoint of seventy-five years ago. I speak from the standpoint of the present time.” 34 Like our contemporary apologists for a judicial revisionary power, Higby would displace the established, original meaning with his own new one. Given that the Northern States discriminated against voting by blacks, “they were as subject to reconstruction by the federal authority” as was the South. For Radicals, “this whole argument contained political dynamite”;35 and Higby himself admitted, “I do not know that there are half a dozen in this House who will sustain me.” 36 Like the 125 to 12 vote on the admission of Tennessee, Higby’s concession underscores the framers’ indifference to the dissentient views on which Van Alstyne largely pitches his case.

Is it to be wondered that the Court, as Carl Auerbach noted, “agreed in Baker v. Carr that ‘any reliance’ on the Guarantee clause would be futile?” Auerbach pointed out that the Court “never adequately answered Mr. Justice Frankfurter’s argument that the equal protection claim it held to be justiciable was ‘in effect a Guarantee Clause claim masquerading under a different label.’ In fact the Court was being asked ‘to establish an appropriate form of government . . . for all the States in the Union.’ ” 37 Congress, as Auerbach noticed, had expressed its judgment, in one form or another, “as to the nature of a republican form of government,” and it is Congress, not the Court, Luther v. Borden held, to whom that function is confided.38 Where is the evidence that the framers who rejected the argument that Congress had power over State suffrage by virtue of the “republican form of government” guarantee meant to confer that power by the “equal protection” clause? It speaks volumes that Sumner, who employed “equality before the law” in a school desegregation case (wherein Chief Justice Shaw held against him),39 should have turned to the “republican form of government” guarantee in the 39th Congress. After passage of the Amendment he proposed that the admission of Tennessee and Nebraska be conditioned upon no denial of suffrage, a confession that the “equal protection” clause did not preclude such denials.40

Van Alstyne attaches considerable weight to Bingham’s “unusually rewarding” appeal to “a republican form of government,” which Bingham translated as a guarantee of the “right of franchise.” 41 His view was not shared by influential Republicans, and in the course of the debates he shifted his position, stating, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States.” 42 Shortly thereafter he changed course on the very “republican form” guarantee. He had moved for the admission of Tennessee, and Boutwell proposed “a condition precedent” that would require Tennessee to establish “suffrage for all male citizens,” without which, he argued, Tennessee would not have a “republican form of government” because of the exclusion of 80,000 blacks.43 Boutwell was twitted by Bingham: “Why does not the gentleman move for an expulsion of Missouri from representation?” “When [the blacks] shall vote rests with the people of the State. There I leave it.” And, he concluded, with respect to the exclusion of Negroes, “So does Ohio, so does Pennsylvania, and so, also, do a majority of the States.” Boutwell was voted down 125 to 12.44

Bingham is invoked still again by Van Alstyne:

Although Van Alstyne finds this statement “puzzling,” it suffices to read the words in their ordinary sense: §2 shows that Congress was given no control of suffrage by §1, except in a case of a treasonable shift to a despotic government which does away with all voting. Manifestly, a change from representative government to a dictatorship calls for effectuation of the guarantee. But what light does this shed on the general control of suffrage? No subtle elucidation of this passage can cancel out Bingham’s flat-footed statement that “the exercise of the elective franchise is exclusively under the control of the States,” at a time when he completely abandoned the “guarantee” as a limitation on State control of suffrage.46 The Supreme Court confirmed the views of the framers in 1874: “All the States had governments when the Constitution was adopted . . . These governments the Constitution did not change. They were accepted precisely as they were . . . Thus we have unmistakable evidence of what was republican in form.” 47 Unless some special magic was deemed to inhere in the words “equal protection” —a supposition hereinafter examined—the evidence, to my mind, that suffrage was excluded from the Amendment is all but incontrovertible.48

The Report of the Joint Committee on Reconstruction, which Stevens, Boutwell, and Bingham signed, furnishes a conclusive summation:

To “leave the whole question with the people of each State” is to say that §1 left suffrage untouched and that §2 was merely “an inducement [to the States] to allow all to participate in its exercise.”

Chief Justice Warren’s Opinion in Reynolds v. Sims

Chief Justice Warren made no allusion to Justice Harlan’s historical demonstration of the limited scope of the Fourteenth Amendment, and instead struck off a new version of constitutional principle and history. He premised that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” 50 Were Warren drafting a new Constitution that principle would be unexceptionable. But that was not the established principle at the adoption of the Constitution; nor was it embodied therein. On the contrary, Federalist No. 54 recognized that “in every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State.” 51 In the 39th Congress itself, Fessenden said that “everybody has admitted from the foundation of the Government down to the present day that the qualification of voters rested with the States.” 52 Such was the clear consensus in the 39th Congress.

Warren postulated that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth and Nineteenth Amendments can mean only one thing—one person, one vote.” 53 But Lincoln also bowed to “the right of each State to order and control its own domestic institutions,” 54 and reminded a Negro delegation of the ineradicable prejudice toward blacks, who were “far removed from being placed on an equality with the white man.” 55 And if we are to extract a principle from the Fifteenth and Nineteenth Amendments it is that Congress and the people considered that express Amendments were needed to confer suffrage on Negroes and women, that absent these Amendments neither enjoyed “political equality.” 56 The point was made by the Court itself in Minor v. Happersett (1874), wherein a woman claimed that the Fourteenth Amendment endowed her with suffrage: “after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth . . . If suffrage was one of the privileges and immunities [of the Fourteenth], why amend the Constitution to prevent its being denied on account of race.” 57

The Seventeenth Amendment likewise speaks against Warren, for it provides, with respect to the popular election of Senators, that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature,” qualifications, it will be recalled, that were under exclusive State control from the beginning and were left in place by the Fourteenth Amendment.

Reliance upon the Declaration of Independence, to which the Radical left frequently appealed in the 39th Congress, might be dismissed with the remark of neoabolitionist tenBroek: “ ‘All men are created equal’ proclaimed the Declaration of Independence. All men? Well not quite all—not negro slaves like those owned by Jefferson, among others.” 58 To import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the “excesses” of popularly controlled legislatures.59 Men of substance felt threatened and, in the words of John Dickinson, sought to protect “the worthy against the licentious.” 60 TenBroek noted that “Equality was the dominant note in the Declaration,” whereas a “stronger position” was accorded in the Constitution to “property,” 61 including property in slaves as the fugitive slave clause testifies. There is no blinking the fact, as Kent Newmeyer recently reminded us, that the Constitution was “racist.” 62 Jefferson himself, author of the Declaration, predicted emancipation, but wrote: “it is equally certain that the two races will never live in a state of equal freedom . . . so insurmountable are the barriers which nature, habit and opinions have established between them.” 63 Stevens powerfully summarized this history at the outset of the 39th Congress:

It needs also to be borne in mind that the Declaration was drawn by the Continental Congress, a league of independent States, each of which jealously guarded its independence.65 One of the reasons advanced by Senator Poland for §1 of the Fourteenth Amendment was doubts as to Congress’ power to “destroy all such partial State legislation” as violated the “principles” of the Declaration of Independence.66 Senator Howard, a favorite of the neoabolitionists, stated that he could not discover the Negro right to vote in the Declaration of Independence and that, “notwithstanding the Declaration of Independence, it is the right of every organized political community to regulate the right of suffrage.” 67 Manifestly, Warren’s appeal to the Declaration as a guiding principle of constitutional construction is out of tune with the historical facts.

A word about his appeal to James Wilson’s 1791 Lectures in Philadelphia: “all elections ought to be equal. Elections are equal, when a given number of citizens, in one part of the State, choose as many representatives, as are chosen by the same number of citizens, in any other part of the state.” 68 This stated an ideal, not a constitutional requirement. When Wilson turned to the Article I, §2, provision that “the Electors in each state shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature,” he said, “the regulation is generous and wise. It is generous for it intrusts to . . . the several states, the very important power of ascertaining the qualifications” of the Electors. It was evidence of confidence, “that this foundation should be continued or altered by the States themselves.” 69 Wilson was thoroughly aware of the disparate State exclusions from suffrage, having made a survey of the different State constitutions, even noticing that Connecticut provided power to exclude freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” And he praises “the wisdom . . . which rested one of the principal pillars of the national government upon the foundations prepared for it by the governments of the several states.” 70 Warren’s use of Wilson affords striking illustration of the “lawyers history” so justly condemned by Alfred Kelly.

Warren’s pervasive error, to my mind, is to substitute twentieth-century logic for the framers’ intention, so clearly expressed in the legislative history: “Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people in a State would elect a majority of that State’s legislators.” 71 “Ostensibly grounded” refuses to come to terms with the historical fact that suffrage and apportionment were the province of the States. Once again is demonstrated the wisdom of Holmes’ aphorism, “a page of history is worth a volume of logic.” 72 That history was summarized with crystal clarity in the Report of the Joint Committee on Reconstruction.73

Justice Brennan’s Opinion in Oregon v. Mitchell

Justice Brennan recognized that “racial prejudice in the North” was a most “significant” obstacle in the path of equal suffrage:

Why could not the Republicans in Congress tell their constituents that unless Negro suffrage was granted Republican hegemony was doomed? Unless Northern voters preferred Democratic resurgence to Negro suffrage, the interests of Republican voters and members of Congress were one and the same. In fact the framers shared the prejudices of their Northern constituency, to recall only George W. Julian’s statement in the House: “The real trouble is we hate the Negro.” 75 If the Republicans entertained a secret design to slip suffrage into the Amendment over voter opposition in order to hang on to office, they were betraying their constituency, and for this firm evidence needs to be adduced.

Given the framers’ awareness of voter antipathy to suffrage, one would expect Justice Brennan to resolve all doubts in favor of those sentiments. Instead he substitutes twentieth-century speculation for historical fact to effectuate his own predilections and commits the very sin he incorrectly lays at Harlan’s door: “historical analysis is flawed by ascription of 20th century meanings to the words of 19th century legislators.” 76 For example, Harlan’s “view would appear to allow a State to exclude any unpopular group on the basis of its political opinions.” 77 But if State control over suffrage was plenary, if the Amendment left States free to exclude Negroes on account of their color, they were equally free to exclude others for their “political opinions,” unpalatable as that appears to twentieth-century thinking. It will be recalled that James Wilson noticed the Connecticut provision for exclusion of freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” Historical analysis must proceed from the 1866 facts, not reason backward from 1970 predilections. Justice Brennan would substitute his choices for those of the framers; because we dislike a policy today, it does not follow that it is unconstitutional. That standard was rejected both by the Founders and by Chief Justice Marshall.78

Justice Brennan’s opinion runs to some 38 pages; refutation, as is well known, requires more space than bare assertion; hence only a sampling of the Brennan opinion can here be analyzed. A few examples, however, should suffice to disclose Justice Brennan’s preference for speculation over fact. Section 1 began, he notices, as a “provision aimed at securing equality of ‘political rights and privileges’ ”; but the Joint Committee rejected an express reference “to political and elective rights”; it dropped all references to “political rights” and spoke in terms of “privileges and immunities” and equal protection of “life, liberty, and property” by a vote of seven to six. Commenting on these facts, Justice Brennan stated, “the breakdown of the committee vote suggests that . . . no change in meaning was intended,” because the “substitute was supported by men of all political views,” among them Howard and Boutwell, “who had earlier sought to make the section’s coverage of suffrage explicit,” and Stevens and Fessenden.79 But Boutwell, Fessenden, Howard, and Stevens later agreed that the Amendment did not grant suffrage and signed the Joint Committee Report that so stated. To deduce that Bingham merely “sought to do no more than substitute for his earlier specific language more general language” 80 ignores the repeated rejection of the specific proposals. General language may be construed to comprehend specific language that was earlier approved; but when specific language was rejected, evidence is required to explain why the rejected specific was now embodied in the general, evidence, not speculation. Then, too, Bingham cannot be lifted out of the mainstream of Republican statements that the Amendment did not confer suffrage; in fact he himself so stated.81

At the instigation of Robert Dale Owen, a reformer, Stevens had submitted a proposal that after July 4, 1876, “no discrimination shall be made . . . as to . . . the right of suffrage because of race.” This provision was deleted by the Joint Committee, Justice Brennan notes, but “the reasons for the rewriting are not entirely clear.” He notices, however, that in 1875 Owen furnished Stevens’ explanation: “several state delegations held caucuses which decided that the explicit references to ‘negro suffrage,’ in any shape, ought to be excluded from the platform.” 82 Is this not a “clear” explanation? By Brennan’s own testimony the Republicans feared to endanger the Fall elections by the submission of Negro suffrage. He reasons, however, “Perhaps the changes in §1 of the Amendment were thought by the Committee to be mere linguistic improvements which did not substantially modify Owen’s meaning.” 83 The fact is that the 1876 provision was dropped to avoid alienating the electorate. That the “changes” were not “thought by the Committee to be mere linguistic improvements” is once more demonstrated by the unequivocal statement in its Report that suffrage had proven impossible of achievement and was left in the control of the States.

At “the very least,” states Justice Brennan, “the Committee must have realized that it was substituting for Owen’s rather specific language Bingham’s far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” 84 Because, Brennan amplified, “political considerations militated against clarification of issues and in favor of compromise,” because “much of the North . . . opposed Negro suffrage, and many Republicans in Congress had to seek reelection from constituencies where racial prejudice remained rampant,” “what Republicans needed, in the words of Wendell Phillips . . . was ‘a party trick to tide over the elections and save time.’ ” 85 This is the Bickel “open-ended” theory which I shall hereafter examine; and I shall also collate the evidence which repels the conclusion that the framers purposely employed “elastic language” to dupe the voters.

For Justice Brennan “the purpose of §1 in relation to the suffrage emerges out of the debates . . . with an equal obscurity.” 86 As exhibit #1 he instances Howard’s statement that “the first section of the proposed amendment does not give to either of these classes the right of voting,” which is “not as unambiguous as [it] initially appear[s].” This is because after stating that “the right of suffrage was not one of the privileges and immunities protected by the Constitution . . . he read into the record an excerpt from . . . Corfield v. Coryell . . . which listed the elective franchise as among the privileges and immunities.” 87 But Senator Trumbull, after calling attention to this Corfield listing, had pointed out that suffrage was not included in the Civil Rights Bill.88 One might deduce that Howard felt no need to repeat such a statement after twice stating that the Amendment did not grant suffrage. Moreover, if an ambiguity be assumed, it was cured by his final statement: “the theory of this whole amendment is to leave the power of regulating the suffrage . . . with the States . . . and not to assume to regulate it.” 89

For exhibit #2, Justice Brennan turns to Bingham’s “completely incongruous statement”: “the exercise of the elective franchise though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” 90 Now Bingham was a confused thinker, as I shall show, but on one thing he was clear: the Amendment did not confer suffrage. At a later point he said: “We all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” He further stated, “the second section excludes the conclusion that by the first section suffrage is subjected to congressional law.” 91 Thereafter Bingham vigorously defended the exclusion of Negro suffrage from the Tennessee Constitution. When Boutwell objected during the debate on the readmission of Tennessee that in consequence it did not have a “republican form of government,” Bingham replied that whether a black “shall vote rests with the people of [Tennessee]. There I leave it . . . I ask the gentlemen to weigh well the question when they come to vote, whether Tennessee shall be rejected only because the majority exercises the same power as to colored suffrage claimed for and exercised by all the other States.” 92 This was after Congress submitted the Amendment with its “equal protection” clause to the people, and Bingham was upheld by a vote of 125 to 12,93 an irreducible fact that speaks more loudly than all of Justice Brennan’s speculations. Here were materials that cured the “ambiguity,” 94 that dissipated the “obscurity” conjured up by Justice Brennan, of which he took no notice. And why lean so heavily on the alleged “ambiguities” of two leaders when the vast majority of the leadership and rank and file affirmed or recognized that suffrage was excluded from the Amendment?

Then there is Brennan’s citation of Sumner, who was all but ostracized in the Senate, whose proposals were regularly voted down by very large majorities;95 and his appeal to Stevens’ statement that the Amendment “merely allowed ‘Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.’ ” 96 Stevens sought equality with respect to the rights enumerated in the Civil Rights Act, from which suffrage was excluded. But on the issue of suffrage, he stated, “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this [ “representation” proposal] does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualifications of their voters . . . You could not get five in this Union.” 97 It was on Stevens’ motion that the Joint Committee adopted a reduction of representation proposal; and it rejected Boutwell’s motion to “abolish” any distinction.98

Justice Brennan also refers to three Democratic opponents of the Amendment who, more or less clearly, saw in it a grant of suffrage.99 Opponents of a measure, particularly those who seek to discredit it, are given slight credence, as I shall show; their testimony is not employed to define its scope.100 What are we to think of Brennan’s reference to Senator Stewart, who, “while unhappy that the Amendment did not directly confer suffrage, nevertheless could ‘support this plan’ because it did ‘not preclude Congress from adopting other means by a two-thirds vote’ ”?101 Of course Congress could later propose another amendment by a “two-thirds vote”; Stewart plainly had no reference to congressional implementation by statute, for that could be done by majority vote, given authorization by the Amendment.

Finally, Justice Brennan takes over Van Alstyne’s critique of Harlan’s alleged view that “ §2 is specifically concerned with voting rights, and it provides an exclusive remedy that precludes or preempts application of §1.” 102 Apparently this is based on Harlan’s reference to the “Court’s utter disregard of the second section which expressly recognized the State’s power to deny the right . . . to vote and its express provision of a remedy for such denial or abridgment.” 103 This unduly exalts a loose, passing reference to “remedy.” Remedies are given for “wrongs”; it is no “wrong” to exercise the “recognized . . . power to deny the right . . . to vote.” Then, too, since §1 conferred no suffrage, §2 obviously created no remedy for a nonexistent right. Certainly it gave no “remedy” to the black who was denied a vote. Senator Stewart, a Republican, sardonically commented that §2 relieves the Negro “from misrepresentation in Congress by denying him any representation whatever.” 104 Justice Brennan explains that §2 “was of critical importance in assuring that, should the Southern States deny the franchise to Negroes, the Congress called upon to remedy that discrimination would not be controlled by the beneficiaries of discrimination themselves.” 105 The truth is that §2 was the core of the Republican program because, as Brennan himself states, the Republicans needed to “prevent total [Democratic] resurgence,” “massive electoral gains in the North.” Reduction of representation when Negro suffrage was denied was deemed more important than endowing blacks with the vote; perceptive Republicans doubted whether the South would be “induced” to enfranchise Negroes and thus lose control.106 Section 2, therefore, was not so much a “remedy” to enforce rights which §1 had not granted as a mechanism to preserve Republican hegemony. Forlorn hopes that the South could thereby be “induced” to confer suffrage were doomed to disappointment.

Enough has been set forth to exhibit Justice Brennan’s strange preference for minority Democrats and dissentient radicals like Sumner over the Republican leadership and its followers who enacted the measure and whose utterances are virtually ignored by him, his preference for “ambiguous” utterances rather than the crystal-clear explanations of the self-same speakers, and for speculation over the mass of stubborn evidence to the contrary.107 Future historians, I confidently predict, will not prefer the “history” of Brennan to that of Harlan.

6

The “Open-Ended” Phraseology Theory

The “open-ended” theory, shortly stated, is that the framers dared not submit Negro suffrage and the like to the electorate in 1866 and therefore discarded “specific” terms, as Justice Brennan put it, in favor of “far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” 1 This is the classic invocation to extraconstitutional power,2 power to revise the Constitution under the theory that the framers gave a “blank check to posterity.” 3 Bickel had cautiously advanced the theory as a hypothesis; it found favor in scholarly circles,4 and more positively formulated variants were proffered by Alfred Kelly and William Van Alstyne. It has since been enshrined in an opinion by Justice Brennan; and Justice Black, jumping off from Brennan’s paraphrase, announced that it made “the history of the Fourteenth Amendment . . . irrelevant to the present problem.” 5 The theory is therefore deserving of close analysis.

alexander bickel

At the time the “desegregation” case, Brown v. Board of Education,6 was first argued before the Supreme Court, Bickel was a law clerk of Justice Frankfurter, who assigned to him the task of compiling the legislative history of the Fourteenth Amendment, a task he performed brilliantly. When he delivered his memorandum in August 1953, he stated in a covering letter:

In 1962 he again wrote:

Upon the termination of his clerkship Bickel wrote a farewell letter to Frankfurter in which he adverted to the “living Constitution” dictum of Marshall.9 But when he revised his memorandum for publication in 1955 he sought more solid footing. Were the amendment a statute, he concluded, a “Court might very well hold” on the basis of the evidence “that it was foreclosed from applying it to segregation in the public schools.” Apart from the “immediate effect of the enactment,” he asked, “what if any thought was given to the long-range effect” in the future—a possibility he had labeled “impossible” in 1953. Noting the shift from “equal protection in the rights of life, liberty and property” to “equal protection of the laws, a clause which is plainly capable of being applied to all subjects of state legislation,” 10 he asked,

So, too, Reverdy Johnson, a Democrat, “confessed his puzzlement about the same clause.” 11 How does the Howard-Johnson “puzzlement” about “privileges or immunities” advance the argument that “due process” and “equal protection” were understood to be open-ended? Neither Johnson nor Howard expressed uncertainty as to the meaning of those terms, and the implication is that there was none, an implication I shall flesh out in subsequent chapters. And given the Republican commitment to a “limited” program of protection for “enumerated” rights,12 why did Bingham, who had insisted on deletion from the Civil Rights Bill of the words “civil rights” as “oppressive,” too “latitudinarian,” 13 now, as author of the Amendment’s §1, resort to phraseology that was “roomier, more receptive to ‘latitudinarian’ construction?” No explanation of his turnabout has been offered, and when we descend from speculation to the facts we shall find that they offer no support for the Bickel hypothesis.

Bickel states that some Republicans referred to “the natural rights of man,” 14 but those rights had been specified in the Civil Rights Act, and the Act was understood to exclude suffrage and desegregation of schools, as Bickel himself noted.15 The Act, with its restrictive “enumeration” of the rights to be protected, was represented to be embodied in the Amendment. A repudiation of such representations by the framers, in the teeth of their attachment to State sovereignty, their respect for the rights reserved to the States by the Tenth Amendment, needs to be proved, not assumed. And as will appear, the words “equal protection of the laws” evolved side by side with the framers’ limited objectives and gave perfect expression to their central goal: to prevent discriminatory legislation with respect to the enumerated rights, and those alone.

Howard knew well enough what “privileges or immunities” comprised. He stated, “we may gather some intimation of what probably will be the opinion of the judiciary by referring to . . . Corfield v. Coryell.” He quoted therefrom the reference to those “privileges and immunities which are in their nature fundamental . . . They may be comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire property” and so on.16 The correlation between these rights, the “privileges and immunities” of Article IV, §2, and the Civil Rights Act had been explained by Trumbull. After Howard’s speech, Reverdy Johnson moved to strike the “privileges or immunities” clause because he “did not understand what will be the effect of that”; but his motion fell to the ground,17 testimony that the Senate did not share his doubts. The “puzzlement” of Howard and Johnson cannot cancel out the repeated association of “privileges or immunities” with “security of person and property”; it cannot vitiate the all but universal understanding that the Amendment was to embody the Civil Rights Act, reiterated after Howard spoke. The Act, said Latham, “covers exactly the same ground as this amendment.” Senator Doolittle said it “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward,” a view also expressed by Henry Van Aernam of New York.18 The “privileges or immunities” clause, Senator Poland stated, “secures nothing beyond what was intended by the original provision [Article IV, §2] of the Constitution.” 19 In fact, Senator Howard undercuts Bickel, for toward the close of the debates he stated, “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not in law, one of the privileges . . . thus secured.” 20 With respect to suffrage, the “Great Guarantee,” Howard was quite clear that it was excluded; that concept, at least, could not in future change its skin.

Bickel noticed that the “no discrimination in civil rights” sentence of the Act had been deleted because Republicans “who had expressed fears concerning its reach . . . would have to go forth and stand on the platform of the fourteenth amendment.” “It remains true,” he said, “that an explicit provision going further than the Civil Rights Act would not have carried in the 39th Congress.” And he noted that the Republicans drew back from “a formulation dangerously vulnerable to attacks pandering to the prejudice of the people.” But, he asked, “may it not be that the Moderates and Radicals reached a compromise permitting them to go to the country with language which they could, where necessary, defend against damaging alarms raised by the opposition but which at the same time was sufficiently elastic to permit reasonable future advances?” 21 Talk of a “compromise” between Moderates and Radicals on “vague” language is without factual basis. Consider the “radical” opposition to readmission of Tennessee because its constitution excluded Negro suffrage, voted down by 125 to 12; or the rejection of Senator Sumner’s suffrage proposal by 34 to 4.22 What need was there to “compromise” with so insignificant a group? Senator Sherman told a Cincinnati audience in September 1866, while the Amendment was up for ratification, “we defeated every radical proposition in it.” 23

Bickel’s theory, to speak plainly, is that the compromisers concealed the future objectives that they dared not avow lest the whole enterprise be imperiled; it is an elegant reformulation of conspiratorial purpose. To begin with, this theory posits that the 39th Congress harbored designs not shared by the voters, when, in fact, as Morton Keller remarks, “most congressional Republicans were aware of (and shared) their constituents’ hostility to black suffrage.” 24 Anticipating that his hypothesis might be “disparaged as putting forth an undisclosed, conspiratorial purpose such as has been imputed to Bingham and others with regard to the protection of corporations,” 25 Bickel invoked statements by Stevens and the Joint Committee Report to the effect that the Amendment’s “imperfections” may be cured by “further legislation, enabling acts,” by “legislative wisdom” 26 —hardly a warrant for judicial changes! What member of the 39th Congress would conclude that by such words was meant that Congress had conferred sub rosa for the future the suffrage it dared not propose in the present? Bickel himself torpedoed that inference.

Observing that Stevens stated the Amendment “falls far short of my wishes . . . but . . . is all that can be obtained in the present state of public opinion . . . I . . . leave it to be perfected by better men in better times, ” Bickel states; “In all probability, the disappointment of Thaddeus Stevens centered on failure to make any provision for negro suffrage, immediate or prospective.” 27 Disappointment over failure to provide for prospective suffrage rules out an open-ended design to authorize such provision in the future. What Stevens meant by “further legislation” does not need construction. As Senator Stewart stated, the Amendment “does not preclude Congress from adopting other means by a two-thirds vote [another amendment] when experience shall have demonstrated . . . the necessity for a change of policy,” 28 as it did before long in recommending the Fifteenth Amendment. Studied ambiguity also collides with Fessenden’s suggestion of a change because “there is a little obscurity or, at any rate, the expression in section 4 might be construed to go further than was intended.” 29 A “blank check to posterity” is likewise refuted by Chairman Wilson’s statement: “I fear that comprehensive statesmanship which cares for posterity as well as for itself will not leave its impress upon the measure we are now considering.” 30

There are also several disclaimers of concealed objectives, of playing a trick upon an unsuspecting people.31 Charged with “indirection,” Fessenden said:

Shortly after congressional approval of the Amendment, and during the warm-up for the elections of 1866, a leading Radical, Congressman Robert C. Schenck of Ohio, averred the Democrats “are afraid that it may have some concealed purpose of elevating negroes . . . [to] make them voters. It goes to no such length.” 33

“Equal protection,” as will appear, emerged from the framers’ intention to outlaw laws which discriminated against blacks with respect to the “coverage of the Civil Rights Act.” “Indeed,” Bickel himself concluded, “ no specific purpose going beyond the [limited] coverage of the Civil Rights Act is suggested; rather an awareness on the part of the framers that it was a constitution they were writing, which led to a choice of language capable of growth.” 34 His appeal to the “awareness” of the framers assumes what needs to be proved—that there was in fact such a “choice.” Such speculation is rebutted by the very limited objectives of the Civil Rights Act, embodied in the Amendment, the absence of explanation for a change of direction, and the fact that “due process” and “privileges or immunities” were deemed to be used in their established sense. If there was such a “choice,” 35 it cannot harbor a purpose they confessedly dared not submit. Senator Howard, who has been regarded as “one of the most reckless of the radicals,” one who “served consistently in the vanguard of the extreme negrophiles,” 36 explained to the Senate that he would have preferred to

How is Bickel’s “undisclosed” purpose to be reconciled with the fact that an attempt to provide for Negro suffrage after 1876 was rejected? Robert Dale Owen, a pro-suffrage reformer, had brought a proposal which Stevens placed before the Joint Committee. Section 2 of the proposal provided that after July 4, 1876 (a fitting anniversary for enfranchisement), “no discrimination shall be made . . . as to . . . the right of suffrage.” 38 Owen’s reason for the “prospective suffrage,” he explained to Stevens, was that “the negro is, for the present, unprepared wisely to use the right of suffrage.” 39 When this provision was noised about, Stevens told Owen,

In consequence, the 1876 proposal was dropped and the Committee substituted a “new section simply eliminating from the basis of representation persons to whom the vote was denied,” 41 the present §2. Add to this Senator Howard’s statement of the Joint Committee’s opinion that “three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race,” 42 and we have solid evidence which overcomes speculation that there was an unrevealed purpose to confer broader powers in the future.

alfred kelly

Kelly does not follow Bickel’s theory of a behind-the-scenes “compromise” between Radicals and Moderates, but suggests that the Radicals attempted, baldly stated, to hoodwink the Moderates. He regards it as “highly probable” that the Civil Rights Act “was not intended to bar racial segregation and classification laws.” But he finds that

A Constitution, Chief Justice Marshall stated, cannot have “the prolixity of a code”;44 there the drive is for the most compressed utterance. Moreover, the terms of §1 were far from “vague and amorphous.” 45 “Privileges or immunities” was drawn from Article IV, §2, via the Civil Rights Bill, which adopted the established judicial construction.46 An abolitionist departure needs to be proved, not assumed by reference to “expansive” language. Bingham himself repudiated such notions when he declared that the meaning of “due process” was to be found in the decisions of the courts.47 That his conception of “equal protection” did not go beyond the ban on discriminatory laws with respect to the enumerated “fundamental rights” is again demonstrated by his defense of Tennessee’s disenfranchisement of blacks, regretting that though “We are all for equal and exact justice . . . justice for all is not to be secured in a day.” 48

Next Kelly notices a “curious ambiguity . . . in the Radicals’ advocacy of the measure . . . It was as though the Radical leaders were avoiding a precise delineation of legal consequences,” this on the basis of their resort to the “technique of lofty, expansive and highly generalized language.” 49 Why such avoidance? He explains that

Stripped of fig leaves, the Kelly rationale would give the Amendment a meaning which the radicals had concealed even from their Moderate confreres! In truth, there is no evidence of a concealed purpose. How did Bingham’s “lofty generalizations” become freighted with a cargo he had severely condemned as “oppressive” and “unjust” when he insisted upon deletion of the words “civil rights” from the Civil Rights Bill?50a Although Bingham was given to windy oratory,51 his own words show that he did not regard “due process,” “equal protection,” and “privileges or immunities” as “lofty generalizations,” but rather as terms of known and limited content. For example, he explained that “privileges or immunities” was drawn from Article IV, §2, that “due process” had been judicially defined. Then, too, Bingham and Stevens are an odd couple to conspire to pull the wool over the eyes of their colleagues. On the floor of the House in the 39th Congress, Stevens said of Bingham: “In all this contest about reconstruction I do not propose either to take his counsel, recognize his authority, or believe a word he says.” 52

william van alstyne

After downgrading some statements in the debates, Van Alstyne nevertheless concludes that “the case can safely be made that there was an original understanding that §1 of the proposed Fourteenth Amendment would not itself immediately invalidate state suffrage laws severely restricting the right to vote.” But, he states, “we cannot safely declare that there was also a clear, uniform understanding that the open-ended phrases of §1 . . . would foreclose a different application in the future [because invalidation of State Negro suffrage laws] was avoided . . . from fear that such an amendment would not be ratified and that its Republican sponsors would be turned out of office at the next congressional election.” 53 Van Alstyne reverses the normal order of proof, that a departure from the norm was intended, that what was unmistakably excluded in 1866 was to be embraced in 1966. For such extraordinary drafting proof, not speculation, is required.

In an attempt to offer some proof Van Alstyne argues that Congress had based its authority to enact the Civil Rights Act on the fact that it was “appropriate legislation to enforce the mere ban on ‘slavery’ in §1 of the Thirteenth Amendment.” He continues: “fresh from their own experience in developing new applications of the Thirteenth Amendment . . . the Radicals could scarcely have failed to foresee that the still broader contours of the Fourteenth Amendment would offer greater possibilities for the future.” 54 Undeniably some appealed to the Thirteenth Amendment for constitutional authority to enact the Civil Rights Act. But there was vigorous opposition. Conkling declared that “Emancipation vitalizes only natural rights, not political rights.” 55 And most Republicans held that natural rights did not include the right to vote. Senator Henry Wilson, a Massachusetts Radical, stated that the Thirteenth Amendment “was never understood by any man in the Senate or House to confer upon Congress the right to prescribe or regulate the suffrage in any State . . . If it had been supposed that it gave that power the amendment would never have passed the Congress, never have received the sanction of the States.” 56 Considerable impetus to the Fourteenth Amendment was given by Bingham’s insistence that there was no constitutional authority for the Civil Rights Bill and that an amendment was required.57 And the fact that Congress went on to enact the Fourteenth Amendment refutes the view that the Thirteenth was conceived to be “open-ended,” to authorize legislation going beyond emancipation.

Even “more significance” is attached by Van Alstyne to what he views as an important parallel between the Civil Rights Act and the Fourteenth Amendment.58 When Bingham objected that the “no discrimination in civil rights” sentence of the Act was oppressive and invaded States’ Rights,59 the Committee deleted the sentence, and Chairman Wilson explained, “I do not think it materially changes the bill, but some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.” 60 In contrast, Van Alstyne points out, although “several of the Democrats declared . . . that the Privileges and Immunities Clause would eventually be applied to suffrage . . . the Republicans declined to limit the language of §1 [of the Amendment] to avoid such application.” The moral he draws is that the “Civil Rights Act was, of course, a statute; a law not expected to ‘endure for ages to come.’ The Fourteenth Amendment was something else again.” 61 A more prosaic explanation can serve. Bingham was an influential Republican with a following, and the deletion of the “civil rights” sentence, regarded as gratuitous, was a small price to pay for bringing him into camp; whereas the objections of “several Democrats” could safely be ignored because their votes could be written off.62 The Republicans, who had been assured both during enactment of the Civil Rights Bill and consideration of the Amendment that neither purported to grant suffrage, needed no express exception to make that plain. The established rule is that if a thing is within the intention of the framers, it is as good as written in the text.63

The hypotheses of Bickel, Kelly, and Van Alstyne seem to me a speculative fabric that collapses under the fact, made so clear by the framers, that they did not mean to confer Negro suffrage, present or prospective. And the theory runs into another formidable obstacle. During the ratification process, in the summer election campaign of 1866, the Republicans repeatedly assured the people that, in the words of Senator John Sherman of Ohio, the Amendment “was an embodiment of the Civil Rights Bill,” itemizing several of its provisions. A similar assurance was given by Senator Lane of Indiana.64 Congressman Schenck of Ohio repudiated “a concealed purpose” to confer Negro suffrage; his Ohio colleague Columbus Delano stressed that the Amendment was designed to make citizens “safe in the South.” 65 Logan of Illinois said it was meant to permit the citizen “to sue and be sued, to own property, to have process of court,” a reminder of the limited objectives of the Civil Rights Act, accompanied by a specific disclaimer that §1 “gives the negro the right of suffrage.” 66 These and still other representations collected by Charles Fairman militate against a concealed purpose to go beyond the confines of the Act.

Finally, be it assumed that there was an undisclosed purpose, the question arises whether “ratification” extends to objectives that were not disclosed, that were in fact expressly disclaimed. The doctrine of ratification premises that the principal knows what he is ratifying; without full disclosure there can be no ratification.67 And there is the larger issue of political morality. Ours is a generation insistent on full disclosure, for example, in the marketing of corporate securities. To accept dissimulation as a means of obtaining a constitutional amendment would be to condone lower morals in the halls of Congress than is demanded in the marketplace.68

7

Segregated Schools

The “desegregation” decision in Brown v. Board of Education1 was, as Richard Kluger called it, an act of “Simple Justice,” 2 a long overdue attempt to rectify the grievous wrongs done to the blacks. For the legal historian, however, the question is whether the Fourteenth Amendment authorized the Supreme Court to perform that act.3 For the Court, like every agency of government, may act only within the limits of its constitutional powers. As Lee stated in the Virginia Ratification Convention, “When a question arises with respect to the legality of any power, exercised or assumed,” the question will be, “ Is it enumerated in the Constitution? . . . It is otherwise arbitrary and unconstitutional.” 4

In his illuminating study of the way in which the desegregation case was handled in the Supreme Court, Kluger asks, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under that amendment?” 5 Given the rampant racism in the North of 1866—which still has to loose its grip—it needs to be explained how a North which provided for or mandated segregated schools6 was brought to vote for desegregation in the Amendment.

When the “desegregation” case came to the Court in 1952, Justice Frankfurter assigned the task of compiling the legislative history of the Amendment to his brilliant clerk, Alexander Bickel,7 who was destined to become one of the foremost authorities in the field of constitutional law. Upon completing the assignment, in August 1953, Bickel delivered his memorandum to Frankfurter with a covering letter in which he stated: “it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” 8 When he later published a revision of that memorandum, he concluded: “there is no evidence whatever showing that for its sponsors the civil rights formula had anything to do with unsegregated schools. Wilson, its sponsor in the House, specifically disclaimed any such notion.” 9 Wilson, chairman of the House Judiciary Committee and the House Manager of the Bill, who could therefore speak authoritatively, had advised the House that the words “civil rights . . . do not mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights.” 10 Wilson’s statement is proof positive that segregation was excluded from the scope of the bill.

Another piece of evidence, which Alfred Kelly, one of the historians drawn into the case by the NAACP,11 considered “very damning,” was the “removal of the ‘no discrimination’ clause from the Civil Rights Bill.” The Bill, he stated, “was amended specifically to eliminate any reference to discriminatory practices like school segregation . . . it looked as if a specific exclusion had been made.” 12 The deletion was made at the insistence of John A. Bingham, the architect of the Fourteenth Amendment, whom neoabolitionists regard as the conduit through which abolitionist concepts of substantive due process and equal protection were poured into the Amendment.13 Roughly speaking, he moved for instructions to the Judiciary Committee to strike the “no discrimination” sentence of the Bill,14 in order to render it “less oppressive and therefore less objectionable.” The enactment of laws “for the general government of the people” was reserved to the States; “civil rights,” he continued, “include and embrace every right that pertains to a citizen as such,” including “political rights.” On this view the Bill, according to Bingham, proposed “simply to strike down by congressional enactment every state constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen.” With “some few exceptions every state in the Union does make some discrimination . . . in respect of civil rights on account of color.” Hence the “no discrimination” sentence “must be striken out or the constitutions of the States are to be abolished by your act.” Deletion of this sentence would remove what he considered the Bill’s “oppressive and I might say its unjust provisions,” all of which adds up to a States’ Rights manifesto. Bingham’s censure, however, does not extend to the enumerated rights that follow the “no discrimination” clause; these he quotes with approval, but asserts that the needed reform should be accomplished “not by an arbitrary assumption of power, but by amending the Constitution . . . expressly forbidding the States from any such abuse [that is, denial of said specified rights] in the future.” 15 In short, the enumerated rights should be protected by Amendment against State abuse, whereas the “civil rights,” which embraced any and every right, should be excised because “oppressive.” In this Bingham was in accord with the restricted objectives of almost all of his Republican colleagues who spoke to the measure.16 Bickel therefore correctly concluded that Bingham, “while committing himself to the need for safeguarding by constitutional amendment the specific rights enumerated in the body of section 1, was anything but willing to make a similar commitment to ‘civil rights’ in general.” 17

Not without cause was this regarded gloomily in the camp of the NAACP. Kluger relates:

Finally, a “light” broke through, “a really plausible interpretation” dawned on Kelly: “Bingham’s objection to the ‘no discrimination’ was based solely on the apparent lack of constitutional authority for so sweeping a congressional enactment.” 19 This was a “light” that failed. Kelly completely overlooked Bingham’s separation between the too-inclusive “civil rights,” which were deleted, and the enumerated rights, which, because they also trenched on traditional State governance, required an amendment. Justice Black understood this if Kelly did not.20

More important, Chairman Wilson confirms that the deletion was merely designed to repel a “latitudinarian” construction:

The deletion, Wilson further explained, was made because “some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.” 21

To Kelly, who later defended the desegregation decision, Bickel’s view “seems a very doubtful reading of Bingham’s position. It ignores his extensive extremist antislavery background as well as his position in Congress as one of the strong Radical Republicans.” 22 But neither Bingham’s background nor his position had dissuaded him from opposition to Negro suffrage.23 Moreover, as Bickel informed Justice Frankfurter, “It was doubtful that an explicit ‘no discrimination’ provision going beyond the enumerated rights in the Civil Rights Bill as finally enacted could have passed in the Thirty-Ninth Congress.” 24 At this time “Eight [Northern] states either provided for separate schools or left it up to local communities to adopt that practice if they wished. Five states outside the old Confederacy either directly or by implication excluded colored children entirely from their public schools.” 25 Kluger comments, “If Congress and state legislatures had understood that the amendment was to wipe away the practices, surely there would have been more than a few howls.” 26 With suffrage unequivocally barred there was no reason to infer that desegregation, a far more touchy matter, was required.

Then there was another thorny fact: “Congress had permitted segregated schools in the District of Columbia from 1864 onward.” 27 Sumner’s “long fight to abolish segregated Negro schools in the District of Columbia” had been “unavailing.” 28 With good reason did Judge E. Barrett Prettyman hold in Carr v. Corning29 that congressional support for segregated schools in the District of Columbia contemporaneously with the adoption of the Amendment (and the Civil Rights Act) was conclusive evidence that Congress had not intended §1 of the Amendment to invalidate school segregation laws. Kelly too lightly dismissed this: “technically the parallel is not constitutionally precise or apposite.” 30 To the contrary, the parallel is both “precise and apposite.” It has long been the rule that laws dealing with the same subject—in pari materia—must be construed with reference to each other, “as if they were one law.” 31 The Amendment originated as a congressional Joint Resolution, so it is entirely appropriate to look to the light shed contemporaneously by the District of Columbia bills on the meaning of the Resolution. In truth, it is unrealistic to presume that a Congress which has plenary jurisdiction over the District and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States. The difference was fully appreciated by Senator Henry Wilson, a Radical Republican from Massachusetts, who introduced a bill providing for suffrage in the District of Columbia, but lamented that in “dealing with the States,” State “constitutions block up the way and we may not overleap the barriers.” 32

The relation of mixed schools to the limited objectives that were expressed in the Civil Rights Act was lucidly summarized by John L. Thomas of Maryland:

There is yet other evidence that the framers had no intention of striking down segregation. The Senate gallery itself was segregated, as Senator Reverdy Johnson mordantly remarked.34 The Carl Schurz report Education of the Freedmen spoke throughout of “ ‘colored schools,’ ‘school houses in which colored children were taught.’ There were no references to unsegregated schools, even as an ultimate objective.” 35 Instead there was a pervasive assumption that segregation would remain. Referring to the burning of black schools in Maryland, Josiah B. Grinnell of Iowa said, give them schoolhouses and “invite schoolmasters from all over the world to come and instruct them.” Senator Daniel Clark of New Hampshire stated, “you may establish for him schools.” Ignatius Donnelly of Minnesota stated, “Educate him and he will himself see to it that the common schools shall forever continue among his people.” 36 Senator William P. Fessenden said of the “representation” proposal that was to become §2 of the Fourteenth Amendment: it “should serve as an inducement to the southern States to build school houses . . . and educate their colored children until they are fit to vote.” 37 In vetoing the antecedent Freedmen’s Bureau Bill, President Johnson noted that it provided for the “erection for their benefit of suitable buildings for asylums and schools,” and objected that Congress “has never founded schools for any class of our own people.” 38 Thaddeus Stevens “did not publicly object to the separation of the races in the schools although he was against segregation in theory . . . But he never pressed for legal enforcement of this kind of equality, as Charles Sumner did, believing it achievement enough that the South would have free schools at all.” 39

Additional light may be gathered from post–Fourteenth Amendment developments, part of Sumner’s continuing campaign for desegregated schools. On March 16, 1867, Sumner moved to amend a Supplementary Bill to require “that State constitutions provide for a system of non-discriminatory public schools.” The motion failed; it “went beyond what majority sentiment would sustain.” 40 Let an impassioned apostle of the incorporation of abolitionist ideology—Howard Jay Graham—sum up:

The “imperfect” “understanding of equal protection” in 1866 means that the framers did not conceive it in the vastly broadened terms given to the phrase by the Warren Court. How did this history fare in the Warren Court?

In his painstaking reconstruction of the progress of Brown v. Board of Education, Richard Kluger has furnished some fascinating glimpses behind the portals of the Supreme Court.42 The case was first argued before the Vinson Court; Chief Justice Vinson “found it ‘Hard to get away’ from the contemporary view by its framers that the Fourteenth Amendment did not prohibit segregation.” Jackson noted, “For 90 years segregated schools [existed] in the city [Washington].” 43 Frankfurter, “a keen observer of his colleagues’ voting inclinations,” listed Clark—along with Vinson, Reed, and Jackson—as “probable dissenters if the Court voted to overturn Plessy in the spring of 1953.” 44 If they were to be brought about, time was needed; a decision outlawing segregation by a divided Court would have produced tremendous shock waves.45 With Bickel’s aid Frankfurter framed five questions for reargument, which the Court submitted to counsel and put the case over to the next term.46 The Frankfurter tactic paid off in an unexpected way: the sudden demise of Chief Justice Vinson just before the Brown reargument. How much that mattered may be gathered from Frankfurter’s remark: “This is the first indication I have ever had that there is a God.” 47 And that remark also reveals that men and votes, not the impalpable “consensus of society” picked up by judicial antennae, are what count.

The most interesting figure was Frankfurter himself. According to William Coleman, who had clerked for him a few years earlier and was the coordinator of research for the NAACP in the various States, Frankfurter “was for ending segregation from the very start.” 48 A remarkable fact: Frankfurter, the sworn foe of subjective judgment, who disclaimed enforcement of his own “private view rather than the consensus of society’s opinion,” 49 had made up his mind “from the day the cases were taken” 50 that segregation must go! This was before hearing argument or reading briefs in a case of extraordinary national importance.51 Not that he was unaware of the constitutional obstacles. Kluger recounts that Frankfurter “had studied the history of the Fourteenth Amendment” and concluded that “in all likelihood, the framers of the amendment had not intended to outlaw segregation.” 52 His conclusion must have been greatly strengthened by the Bickel memorandum, which he found so impressive that “he had it set up in type in the Court’s basement print shop and distributed among the Justices a few days before the Brown reargument.” 53 Bickel showed, and his demonstration is yet to be successfully controverted, that the 39th Congress meant to leave segregation “as is” —to the States. After the distribution of the Bickel memorandum, Jackson wrote a file memorandum dated February 15, 1954, in which he stated: “despite my personal satisfaction with the Court’s [forthcoming] judgment, I simply cannot find, in surveying all the usual sources of law, anything which warrants me in saying that it is required by the original purpose and intent of the Fourteenth or Fifth Amendment.” 54 He told the Conference that he would “file a separate concurring opinion” if the “Court feigned that the Justices were doing anything other than declaring new law for a new day.” 55 This, Kluger comments, was asking the majority to admit that “there was no judicial basis for its decision,” that “it was acting in a frankly unjudicial way.” 56 Kluger considers it “a scarcely reasonable request to make of the brethren.” 57 Why not? What kind of “consensus of society” (which the Court purportedly effectuates) is it that cannot withstand the truth—that effectuation required “new law for a new day”? An adult jurisprudence for an age of “realism” surely called for an end to the pretense that it was the Constitution, not the Justices, who spoke.58 Concealment suggests there may in fact have been no consensus.59 Perhaps Jackson’s insistence impelled Chief Justice Warren—after labeling the history “inconclusive” 60 —to state that “we cannot turn back the clock to 1868,” 61 a veiled declaration that the intention of the framers was irrelevant and that the Court was revising the Constitution to meet present-day needs.62

Justice Frankfurter, the professed devotee of “self-restraint,” reached a similar conclusion, but in different rhetoric. He had asked, Justice Burton noted, “What justifies us in saying that what was equal in 1868 is not equal now?” 63 and in a file memorandum he formulated his own answer:

Although the framers were well aware of the nation’s “expanding future,” they nonetheless, for example, rejected suffrage, “present or prospective.” They knew that Article V provided the means to avoid “congealment,” 65 as was before long evidenced by adoption of the Fifteenth Amendment. The real issue, therefore, was not whether the Constitution must be “congealed,” but rather who was to make the change—the people or the Justices. Buried in Frankfurter’s fine phrases is a confession that the people could not be trusted to reflect the “changes in men’s feelings” by an amendment, and that in consequence the Justices had to rewrite the Constitution. Even in a memorandum for his own use, Frankfurter could not bring himself to admit that he was “making new law for a new day,” but sought to disguise the fact with “majestic generalities.”

In Chapter 10 I shall show that the framers employed “equal protection of the laws” to express their limited purpose: to secure the rights enumerated in the Civil Rights Act, and those only, against discriminatory State legislation. With respect to those rights there could no longer be one law for whites and another for blacks. The limitless objectives that Frankfurter read into the phrase were utterly beyond the contemplation of the framers. For the stubborn fact is that racism was, and still remains, an ugly fact of American life;66 as Jackson’s file memorandum stated, “Neither North nor South has been willing to adapt its racial practices to its professions.” 67 “It was into this moral void, ” Kluger states, “that the Supreme Court under Earl Warren now stepped,” 68 not to give effect to a national consensus, still less to the Fourteenth Amendment, but to revise it for the people’s own good. But “the criterion of constitutionality,” said Justice Holmes, “is not whether we believe the law to be for the public good.” 69

Supplementary Note on Segregated Schools

brown v. board of education

8

Incorporation of the Bill of Rights in the Fourteenth Amendment

Invocation of the Bill of Rights against the States is of fairly recent origin,1 whether it be regarded within the older framework of “adoption” or the more recent theory of “incorporation.” 2 From the First Amendment’s “Congress shall make no law” may be gathered that it was to apply exclusively to Congress, and it was held in Barron v. Baltimore3 that the Bill of Rights had no application to the States, as in fact the First Congress, which drafted the Bill, had earlier made clear.4 Justice Harlan spoke truly in stating that “every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.” 5 And for a long time the Supreme Court found that the Fourteenth Amendment had made no change in this respect.6 By means of “selective” incorporation or adoption the Court has worked “a revolutionary change in the criminal process” 7 of the States. Some consider that the Court was “trying to legislate a detailed criminal code for a continental country.” 8

Historically the citizenry have relied upon the States for protection, and such protection was afforded before the Constitutional Convention by a Bill of Rights in virtually every state Constitution. It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State Constitutions already provided against the States. This was understood by the framers of the Fourteenth Amendment,9 and their own attachment to State sovereignty led them to refrain from intruding beyond the ban on discrimination against blacks with respect to certain rights. All else, including suffrage, was left to the States. In particular, Chairman Wilson emphasized during the debates on the Civil Rights Bill, “We are not making a general criminal code for the States.” 10 Since the Amendment indisputably was designed to “incorporate” the guarantees of the Civil Rights Act, evidence is required to show that the framers had moved beyond the limited purposes of the Act.

The architect of the “incorporation” theory, Justice Black, invoked some fragmentary history—utterances in connection with an explanation of “privileges or immunities” by two leading Republican spokesmen, Bingham, author of §1, and Senator Jacob M. Howard, who purported to express the views of the Joint Committee.11 Such statements are not lightly dismissed, after the manner of Justice Frankfurter, because “Remarks of a particular proponent of the Amendment, no matter how influential, are not to be deemed part of the Amendment.” 12 Accepted canons of construction are to the contrary; the paramount consideration is to ascertain the intention of the legislature. That intention may be evidenced by statements of leading proponents,13 and, if found, is to be regarded as good as written into the enactment: “the intention of the lawmaker is the law.” 14 But Black’s history falls far short of the “conclusive demonstration” he thought it to be in his famous Adamson dissent.15 The contrary, it may fairly be said, was demonstrated in Charles Fairman’s painstaking and scrupulous impeachment of Black’s history,16 buttressed by Stanley Morrison’s telling companion article.17

Absorption of one or another portion of the Bill of Rights—free speech, for example—antedated Adamson,18 but this was on a selective basis, under cover of due process. To Black this was an abhorrent claim to “boundless power under ‘natural law’ periodically to expand and contract constitutional standards to conform to the court’s conception of what at a particular time constitutes ‘civilized decency’ and ‘fundamental liberty and justice.’ ” Why, he asked, should the Bill of Rights “be ‘absorbed’ in part but not in full?” 19 The cure, he maintained, was “incorporation” en bloc. His condemnation was not, however, wholehearted, for he was ready to accept “selective” adoption if he could not obtain wholesale incorporation, suggesting that sacrifice of a desired result was more painful than “boundless power to expand or contract constitutional standards.” 20 The words “privileges or immunities” seemed “an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.” 21 The two concepts, however, are of entirely different provenance and deal with quite different matters. “Privileges or immunities” has its roots in Article IV, §2, which requires States to accord certain privileges to citizens of a sister State; the Bill of Rights, on the other hand, was designed to protect certain rights against the federal government. The debates in the First Congress contain not the faintest intimation that the “privileges and immunities” of Article IV were being enlarged or, indeed, that the Bill of Rights was in any way related to “privileges and immunities.” And, when Justice Bushrod Washington later enumerated those “privileges and immunities,” he too made no reference to the Bill of Rights. To read the Bill of Rights into “privileges or immunities” is therefore no more “reasonable” than to read a “bill of attainder” into “habeas corpus.”

In Adamson, Black appealed to “the original purpose of the Fourteenth Amendment.” 22 as disclosed by the Bingham-Howard statements. These statements had reference to the “privileges or immunities” clause, but that clause had been emasculated in the Slaughter-House Cases.23 Hence Black relied on “the provisions of the Amendment’s first section, separately, and as a whole” for incorporation of the Bill of Rights.24 The “privileges or immunities” clause gains no fresh vitality as a component of the “whole” of §1. Reliance on the due process clause runs afoul of Black’s statement in the Adamson case that in Chicago, M. & St. P. R. Co. v. Minnesota (1890)25 the Court “gave a new and hitherto undisclosed scope for the Court’s use of the due process clause to protect property rights under natural law concepts.” 26 Substantive due process was fashioned in Wynehamer v. The People (1856) to bar abolitionist natural law claims and confine protection to property; and libertarian due process came long after economic substantive due process. No one in the 39th Congress intimated that the due process clause would incorporate the Bill of Rights; Bingham looked to the judicial decisions for the scope of due process, then purely procedural.27 Speaking to the Bingham amendment, Chairman Wilson indicated that the due process clause was considered to furnish a “remedy” to secure the “fundamental rights” enumerated in the Civil Rights Act.28 To transform it into a “source” of other unspecified rights is to set at naught the careful enumeration of rights in the Act, “constitutionalized” by the Amendment, which is incompatible with Black’s invocation of the original purpose. In truth, expansion of due process to libertarian claims is largely a product of the post-1937 era; and “substantive equal protection” is a very recent concept indeed. Black’s reliance on §1 “as a whole” can therefore be met with the adage “when nothing is added to nothing, the sum is and remains the same—nothing.”

Bingham’s remarks were addressed to H. R. No. 63, the antecedent Bingham amendment: “The Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States (Art. IV, §2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th amendment).” This proposal, said Bingham, “stands in the very words of the Constitution . . . Every word . . . is today in the Constitution.” 29 It is a mark of Bingham’s sloppiness that “every word” was not “in the Constitution”: “equal protection” was missing altogether. “ [T]hese great provisions of the Constitution,” he continued, “this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.” 30 As Fairman pointed out, the antecedent of his remark was Article IV, §2, and the Fifth Amendment due process clause which Bingham equated with “equal protection.” 31 There is no reason to believe that his subsequent references to the Bill of Rights had broader compass.32 Certainly his fellow Republicans did not so read his proposed amendment. The radical William Higby of California thought that the Article IV, §2, clause and the Fifth Amendment due process clause constituted “precisely what will be provided” by the Bingham amendment.33 Another radical, Frederick E. Woodbridge of Vermont, stated: “It is intended to enable Congress by its enactments when necessary to give a citizen of the United States in whatever State he may be, those privileges and immunities which are guarantied to him under the Constitution [Article IV] . . . that protection to his property which is extended to other citizens of the State [due process clause].” 34 Bingham’s reference to “the enforcement of the bill of rights, touching the life, liberty, and property . . . within every organized State . . .” 35 would convey to his fellows the technical meaning that had been attached to “life, liberty, and property” in the Civil Rights Bill debate.

Bingham, it will be recalled, had proposed his amendment to avoid doubts as to the constitutionality of the Civil Rights Bill. Wilson, chairman of the Judiciary Committee, joined issue: “in relation to the great fundamental rights embraced in the bill of rights, the citizen . . . is entitled to a remedy. The citizen is entitled to the right of life, liberty and property. Now if a State intervenes, and deprives him, without due process of law, of those rights . . .” And he said, “I find in the bill of rights which the gentleman desires to have enforced by an amendment . . . that ‘No person shall be deprived of life, liberty and property without due process of law.’ I understand that these constitute the civil rights . . . to which this bill relates.” 36 Implicit in Wilson’s formulation is the assumption that no more is needed; and that is likewise the implication of the Higby and Woodbridge remarks about the Bingham amendment.

Far from accepting every word that fell from Bingham as gospel, the framers gave his proposal a chilly reception. According to Kendrick, he “stood almost alone . . . a great many Republicans, including particularly the entire New York delegation, were opposed to the amendment.” 37 He tried to soften the opposition by arguing that to oppose his amendment was “to oppose the grant of power to enforce the bill of rights,” to perpetuate statutes of confiscation, of banishment, of murder.38 Bickel considers that Bingham “was suggesting to those members who were alarmed that he had some definite evils in mind, limited and distinct in nature.” 39 When we add: (1) the fact that Bingham’s amendment was shelved argues against adoption of his views;40 (2) the fact that the Joint Committee’s subsequent rejection of Bingham’s motion to add to Owen’s proposed amendment the phrase “nor take private property for public use without just compensation” 41 is incompatible with blanket adoption of the first eight Amendments; (3) the fact that Bingham made no reference to inclusion of the Bill of Rights during debate on the final proposal which became §1 of the Amendment; (4) Wilson’s emphasis during debate that the Civil Rights Bill embodied the very civil rights embraced by due process protection of life, liberty, and property; and (5) Wilson’s assurances during that debate that “we are not making a general criminal code for the States” 42 (suggesting that what was unpalatable in the Bill would be no more acceptable in the Amendment)—it becomes apparent that beyond due process the framers had no intention to adopt the Bill of Rights.

Bingham was in fact utterly at sea as to the role of the Bill of Rights. At first he considered it to be binding upon the States. Thus, after reading the due process clause of the Fifth Amendment as the source of his own proposed amendment, he stated: “this proposed amendment does not impose upon any State . . . an obligation which is not now enjoined upon them by the very letter of the Constitution.” 43 For this he appealed to the “supremacy clause” of Article VI, which makes the Constitution binding,44 hurdling the preliminary question whether the Constitution made the Fifth Amendment binding on the States. Although he noted that Barron v. Baltimore45 held that the Bill of Rights is “not applicable to and do[es] not bind the States,” 46 he stated on February 28: “A State has not the right to deny equal protection . . . in the rights of life, liberty, and property.” On March 9 he stated:

Reservation of “protection” to the States runs counter to rejection of a State’s denial of an existing “right to equal protection”; it is incompatible with State “violations” of the Bill of Rights. Apparently unaware that Article IV, §2, protected nonresident migrants, not residents,48 Bingham said: “No State ever has the right . . . to abridge . . . the privileges and immunities of any citizen of the Republic.” Shifting again, he stated: “we all agree . . . that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” 49 “Exclusive control” authorizes a State to “abridge” the privilege. In truth, as Morrison, concurring with Fairman, stated, Bingham’s “many statements . . . are so confused and conflicting as to be of little weight.” 50 This goes beyond the issue of credibility, which courts test by inconsistent statements. It poses the question: upon which of his conflicting explanations did the framers rely? How can “conclusive” legislative history rest on shifting sands?51

In the eyes of Justice Black, “Bingham may, without extravagance be called the Madison of the first section of the Fourteenth Amendment.” 52 Shades of Madison! Bingham was a muddled thinker,53 given to the florid, windy rhetoric of a stump orator, liberally interspersed with invocations to the Deity,54 not to the careful articulation of a lawyer who addresses himself to great issues. Recall his location of the words “equal protection” in the Constitution from which they were notably absent. Hale attributed to Bingham the view that “there had been from first to last, a violation of the provisions of this bill of rights by the very existence of slavery itself,” 55 thereby, as Judge Hale doubtless was aware, converting the Bill into a repealer of several existing provisions that sanctioned slavery—and this in the teeth of the First Congress’ express intention to exclude the States from the ambit of the Bill of Rights.56

Presumably the framers who listened to Bingham found his frequent shifts of position no less perplexing than they seem to us; consequently, they had an added incentive to cling to the vastly preponderant view that they were merely incorporating the limited provisions of the Civil Rights Act in the Amendment. Whatever be the weight that attaches to Bingham’s utterances, it needs to be noted that even his admirers read them restrictively. So, Kelly states that his speech of February 29 “makes it clear that by ‘bill of rights’ Bingham meant both the guarantees of the comity clause and the guarantee of due process in the Fifth Amendment.” 57 And tenBroek asks, “What Bill of Rights? Certainly not the first eight amendments to the Constitution. The answer is not left open to conjecture: the Bill of Rights that contain (1) the comity clause . . . which guarantees the privileges and immunities of citizens of the United States; (2) the due process clause of the Fifth Amendment; and (3) the requirement that all shall be protected alike in life, liberty, and property, not explicitly mentioned in either body or amendments . . . this was the ‘immortal Bill of Rights’ of John A. Bingham.” 58 Among the abolitionists themselves there was general agreement only about the due process clause and the First and Fourth Amendments; the “rights in the other amendments,” tenBroek says, “received only casual, incidental, and infrequent reference.” 59 Justice Black, therefore, would impute to Bingham views which far outran the abolitionist program that allegedly was the source of his inspiration. Before we marshall the evidence which further undermines attribution of Bingham’s views to the framers, let us consider the companion remarks of Senator Jacob M. Howard.

By a caprice of fortune—the sudden illness of Chairman Fessenden—it fell to Senator Howard to act as spokesman for the Joint Committee in explaining the Amendment. Up to this point his participation in the debates on the Civil Rights Bill and the several aspects of the Amendment had been negligible. Poles removed from Chairman Fessenden, who “abhorred” extreme radicals, Howard, according to Kendrick, was “one of the most . . . reckless of the radicals,” who had “served consistently in the vanguard of the extreme Negrophiles.” 60 He had expended “fruitless efforts” to include the right to vote; he and Elihu B. Washburne of Illinois “had been the only Republicans to hold out for black suffrage to the end, all the others proved willing to abandon it.” 61 That such a man should speak “for” a Committee in which the “non-radicals clearly outnumbered the radicals,” in which, by the testimony of the co-chairmen Fessenden and Stevens, there “was very considerable difference of opinion,” 62 needs to be taken, in the words of the “immortal” Samuel Goldwyn, with “a bushel of salts.”

On May 23 Senator Howard rose in the Senate, alluded to Fessenden’s illness, and stated that he would present “the views and the motives which influenced the committee, so far as I understand [them].” After reading the privileges and immunities listed in Corfield v. Coryell, he said, “to these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments.” 63 That is the sum and substance of Howard’s contribution to the “incorporation” issue. Justice Black assumed without more ado that Howard “emphatically stated the understanding of the framers.” 64 No one, to be sure, rose to challenge Howard’s remark, casually tucked away in a long speech.65 “The argument from silence,” as Alfred Kelly observed, “is always more than a little dangerous.” 66 But was there really silence? Consider Senator Poland’s subsequent statement: “Great differences have existed among ourselves; many opinions have had to yield to enable us to agree upon a plan.” A similar statement had been made by Fessenden and repeated by the radical leader Senator Benjamin Wade.67 Now, after the compromise of such differences about known objectives, we are asked to infer that there was unquestioning acceptance of a sweeping, brand-new element, which had received no consideration whatever! Then too, others who spoke after Howard, repeated that the goal was legitimation of the Civil Rights Act. So, Senator Poland observed, “The clause . . . that ‘no State shall . . . abridge the privileges and immunities of citizens of the United States’ rsecures nothing beyond what was intended by the original [Article IV, §2] provision in the Constitution.” 68 If this be not regarded as a delicately phrased repudiation of Howard’s addition, at the very least it exhibits a more limited view than that of Howard by a respected Republican.69 Senator Doolittle stated that the Civil Rights Bill “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward.” 70 Such reminders of known and limited objectives were designed to reassure those whose consent had thus far been won; and they rob Howard’s remark of uncontroverted standing.71

Account must also be taken of expressions in the House after Howard’s speech, for even if his words be taken to express the sentiment of the Senate, it must not be facilely assumed that it was shared by the House. Nothing was said about the Bill of Rights upon return of the measure to the House72 —surely a remarkable silence about an extraordinary expansion of jointly accepted goals! Instead, George R. Latham, a West Virginia Republican, remarked, “The ‘civil rights bill’ which is now a law . . . covers exactly the same ground as this amendment.” 73 Henry Van Aernam of New York said that the Amendment gives “constitutional sanctions and protection to the substantial guarantees of the civil-rights bill.” 74 The Latham–Van Aernam remarks, parenthetically, afford additional proof that the earlier Bingham remarks did not represent the thinking of the House. Also significant are Stevens’ final remarks lamenting his failure to abolish “all” “inequality” and “distinctions” and explaining that he was constrained to accept so “imperfect a proposition” because he lived “among men and not among angels . . . who . . . do not choose to yield their opinions to mine.” 75 It strains credulity to attribute to “men” who had rejected abolition of “all” distinctions readiness to swallow whole-hog reconstruction of their Northern institutions which had not even been discussed. Instead, the specific incorporation of one portion of the Bill of Rights—the due process clause—and the rejection of another—the just compensation clause—gave the framers ample reason to conclude that “due process” alone was to be “incorporated.” 76

Flack’s canvass of “speeches concerning the popular discussion of the Fourteenth Amendment” led him to conclude:

Senator Sherman, for example, told Cincinnati during the campaign for adoption that “the first section was an embodiment of the [Civil Rights] Act.” 78 Fairman has collected remarks by five Senators and five Representatives, not one of whom “said that the privileges and immunities clause would impose Articles I to VIII upon the States.” 79 We must assume that they knew of no such purpose; men of Sherman’s stature may not be charged with a conspiracy to conceal the proposed imposition from the people—certainly not without substantial proof. There is no need to retrace Fairman’s examination of the State ratification proceedings;80 let it suffice that there is no intimation therein that ratification would produce radical changes in the States’ judicial machinery, for example, the replacement of an information by a grand jury indictment, of a six-man jury by a jury of twelve.81 If this was in fact the purpose of the framers, honesty required disclosure.82 None was made, and the reason, I suggest, is that no such purpose was entertained.

Then there is the remarkable fact that the cases which followed on the heels of the Fourteenth Amendment continued to hold the Bill of Rights inapplicable to State action, without mentioning the Amendment.83 Oversight will not account for the omission; the Amendment had been widely discussed; bench and bar are alert to every new and relevant enactment; they would not be oblivious to the revolution worked by the alleged incorporation of the Bill of Rights.84

In sum, the framers were motivated by discriminatory denials of “fundamental rights” to the blacks.85 No trace of a purpose to reconstruct Northern institutions for the protection of white inhabitants against the State will be found in the debates; the frequent expressions of jealous regard for State sovereignty repel such a purpose. When Judge Robert Hale insisted that “the American people have not yet found their State governments are insufficient to protect the rights and liberties of the citizen,” 86 Bingham translated this as “the citizens must rely upon the State for their protection,” and added, “I admit that such is the rule under the Constitution as it now stands.” 87 It cannot be presumed that the States which, in Stevens’ words, would not “allow Congress to come within their jurisdiction to fix the qualifications of their voters,” 88 would tolerate a federal overhaul of their judicial processes that went beyond making them available to Negroes. Such a presumption runs counter to Senator Trumbull’s assurance that the “provisions of the [Freedmen’s Bureau] bill in regard to holding courts . . . are confined entirely to the rebellious States.” “Certainly nobody has ever complained,” Senator Cowan said, “that a full and exact measure of justice has not been meted out to him in all our courts . . . I do object to extending it to the loyal States of the North.” 89 Subsequently, Trumbull twice stated that the Civil Rights Bill had no application to a State that did not discriminate between its citizens.90 The constant reiteration that the purpose of the Amendment was to constitutionalize the Civil Rights Act, the frequent tributes to State sovereignty, and recognition of powers reserved to the States by the Tenth Amendment, in which Bingham joined,91 unite to repel an inference that the framers intended to interfere with State conduct of its own affairs otherwise than is described in that Act. The pervasive attachment to federalism—State control of local institutions—Phillip Paludan repeatedly emphasizes, was “the most potent institutional obstacle to the Negroes’ hope for protected liberty” 92 —and even more of an obstacle to federal encroachment on Northern States’ control of their own white citizens. If there was a concealed intention to go beyond the Civil Rights Act, it was not ratified because, first, ratification requires disclosure of material facts,93 whereas there was no disclosure that the Amendment was meant to uproot, for example, traditional State judicial procedures and practices; and, second, a surrender of recognized rights may not be presumed but must be proved. In truth, the Fourteenth Amendment “was presented to the people as leaving control of suffrage in state hands, as representing no change in previous constitutional conditions so far as protection of rights was concerned [beyond banning discrimination], as stripped of radical character.” 94

Let Justice Black himself, the unremitting champion of “incorporation,” sum up, substituting for his word “corporations” the words “judicial processes”:

Supplementary Note on Incorporation

He was ever intoxicated by his own rhetoric. Webster, of course, would not conceive that his statement would override a Supreme Court decision. And the “grand utterance” cited by Bingham had no more to do with the case than the flowers that bloom in the spring.

modern rights

9

Opposition Statements Examined

The case for a broad reading of the Fourteenth Amendment has been rested in large part on statements by those who opposed both the Civil Rights Bill and the Amendment. That is a sharp departure from traditional canons of interpretation voiced by Thomas Jefferson; he looked for the “meaning” of the Constitution to the “explanations of those who advocated, not those who opposed it.” 1 Like Jefferson, courts look to statements by the advocates of a measure and give short shrift to its opponents.2 There are sound reasons for that view.

It beclouds analysis merely to identify Senators Willard Saulsbury, Garrett Davis, Thomas A. Hendricks, and Peter G. Van Winkle as “Conservatives,” 3 without adding that they were Democrats adamantly opposed to the Reconstruction measures, who wanted to keep the Negroes in subjection, and of whom Davis and Saulsbury were in the front rank of the assault. Among the opponents was Lovell H. Rousseau of Kentucky, an unabashed racist, who charged that the Freedmen’s Bureau Bill “gave negroes the same privileges in railway cars and theaters, and there would be mixed schools.” 4 Horace Flack comments that “no one questioned [Rousseau’s] statements in regard to these things,” and concludes: “Many believed that the negro would be entitled to sit on juries, to attend the same schools . . . It does not appear that all of these contentions were specifically contradicted. It would seem reasonable to suppose that . . . these rights could not be legally denied to them.” 5 To begin with, there were, for example, a number of specific denials by proponents of the Bill that it provided for Negro service on a jury;6 it was hardly necessary to pop up like a jack-in-the-box with a retort to each such remark, particularly when the sponsors repeatedly underscored the limited objectives of the Bill. Why should any weight be given to the insistence by Andrew J. Rogers, Democrat of New Jersey, that the Bill would nullify school segregation, coming on the heels of Chairman Wilson’s categorical denial, later reiterated, of any such effect?7

The length to which the approach of Flack has been carried is illustrated by Alfred Kelly. After noting the various references to constitutionalization of the Civil Rights Act by the Fourteenth Amendment, he states: “All this might well imply that the first section of the proposed amendment was intended to be merely declaratory of the Civil Rights Act, and would not go beyond its rather restrictive guarantees. But a second theme was present in the House debates—the argument that the phraseology of the first section was expansive and ‘revolutionary’ in character, so that its precise meaning was susceptible to indefinitely broad interpretation.” And who are the Congressmen avouched for this “revolutionary” reading? A group of Democratic worthies, Benjamin M. Boyer and Samuel J. Randall of Pennsylvania, and Rogers, the “ ‘bete noire’ of the Radicals,” says Kelly himself8 —a man so far out that he was actually embarrassing to his more practiced Democratic colleagues.9 It is astonishing to derive “revolutionary” principles from the argumentative statements of the very foes who fought even moderate proposals tooth and nail.

Now the Democrats well knew that a broad segment of the Northern electorate was opposed to Negro equality, so their statements, as Charles Fairman noted, were calculated to render the bill “odious.” 10 They sought to discredit it, not to make it the instrument of a “revolution” in Negro rights. For the Democrats, color prejudice, Eric McKitrick remarks, “was their greatest asset. All they needed to do was to keep it alive and exploit it in every way.” 11 Fairman’s admonition against “drawing inferences from a failure to deny such statements in such unreasonable partisan harangues” 12 reflects established interpretive practice most recently restated by the Supreme Court: “ [remarks] made in the course of legislative debate or hearings other than by persons responsible for the preparation or the drafting of a bill are entitled to little weight . . . This is especially so with regard to the statements of legislative opponents who ‘ [i]n their zeal to defeat a bill . . . understandably tend to overstate its reach.” ’ 13 Or, as it stated on another occasion: “An unsuccessful minority cannot put words into the mouths of the majority.” 14

Several broad constructions cannot, however, quickly be dismissed as calculated partisanship. Senator Edgar Cowan, a conservative Republican of Pennsylvania, read the Bill to mean “that there shall be no discrimination made . . . none in any way,” so that Pennsylvania officials could be punished for enforcing its school segregation laws.15 The Bill, however, was restricted to “civil rights,” whose narrow scope was repeatedly emphasized. Then, too, the “no discrimination in civil rights” phrase was later deleted, in order, Chairman Wilson explained, to obviate a “latitudinarian” construction.16 Another statement, that of Senator Reverdy Johnson, a Democrat of Maryland and respected veteran lawyer, merits notice. He urged that because a Negro would now be authorized to enter into a contract, he could enter into a “contract of marriage” with a white woman and thereby the State miscegenation laws would be invalidated.17 Tocqueville recorded that “in the North of the Union, marriages may be legally contracted between negroes and whites; but public opinion would stigmatize a man who should connect himself with a negress as infamous.” 18 That attitude persisted; Stevens’ Negro mistress horrified the abolitionists.19 Few of the most ardent abolitionists would have dared argue for intermarriage at this time, because it would have wrecked their hope of securing the indispensable “fundamental rights” to blacks.20 To attribute to the framers an intention by the word “contract” to authorize intermarriage runs counter to all intendments. In the House, Samuel W. Moulton of Illinois flatly denied “that it is a civil right for a white man to marry a black woman or for a black man to marry a white woman.” 21 Although a contract of marriage, strictly speaking, is a contract, marriage is not in ordinary usage conceived in terms of contract. Given the stated purposes of the Bill, the association of contracts with other property rights, authority to contract could be read as a license for intermarriage only by a strained construction. Senator Johnson himself stated to Fessenden, “you do not mean to do that. I am sure that the Senator is not prepared to go to that extent.” 22 Nevertheless, to forestall the possibility that a court might thus broadly construe the Bill, he urged specific exclusion of intermarriage. It would be straining at a gnat to deduce from the omission to make such an exclusion that the Bill contemplated the abolition of miscegenation laws. No court which, like Senator Johnson, would perceive that Congress did “not mean to do that,” should so read the Act; for from the bloodletting case in Bologna in the Middle Ages, courts have striven to ascertain and effectuate the intention of the lawmaker.23 Although President Johnson vetoed the Civil Rights Bill, he referred to “the enumeration of the rights to be enjoyed” and noted that it did not repeal “State laws on the subject of marriage between the two races.” 24

A similar objection, that of Columbus Delano, an Ohio Republican, was that the “equal benefit of all laws and proceedings for the security of person and property” would extend to the “right of being jurors.” Mark that an Ohio Republican said to Chairman Wilson, “I presume that the gentleman himself will shrink from the idea of conferring upon this race now, at this particular moment, the right of being jurors.” Wilson countered, “I do not believe it confers that right,” 25 and he reiterated that the limited objectives of the Bill did not extend to “setting aside the school and jury laws.” 26 Moulton also denied “that it is a civil right for any one to sit on a jury”; and Ohio Republican William Lawrence stated that the Bill “does not affect any political rights, as that of suffrage, the right to sit on juries . . . That it leaves to the States to be determined each for itself.” 27

The positive explanations that the bill had restricted objectives are fortified by the fact that sweeping proposals to abolish all discriminatory classifications28 repeatedly fell by the wayside, confirming that Congress with open eyes rejected a comprehensive ban against all discriminations. For example, early in the session, on January 12, 1866, Stevens submitted to the Joint Committee on Reconstruction that “ All laws, state or federal, shall operate impartially and equally on all persons without regard to race or color.” 29 On February 19, 1866, Senator Richard Yates of Illinois proposed that “No State shall . . . in any manner recognize any distinction between citizens of the United States or any State . . . on account of race,” and renewed the proposal on March 9, 1866, at which time it was decisively voted down, 38 to 7.30 Senator Sumner proposed that in the rebel States “there shall be no denial of rights, civil or political, on account of race.” This, too, was rejected, 39 to 8;31 a similar proposal was made by Senator Henderson, and there were others.32 One and all came to naught.33 At Bingham’s insistence, it will be recalled, the phrase “There shall be no discrimination in civil rights” was deleted from the Civil Rights Bill, leaving the express enumeration of protected privileges and immunities.34 The plain fact, as Senator Fessenden, the respected chairman of the Joint Committee said, was that “we cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.” 35

In the teeth of this history, to import into the Civil Rights Act views of abolitionists and opponents36 that so plainly had been rejected, is to thwart, not to effectuate, the intention of its framers. Bickel fairly summarizes the evidence: “The Senate Moderates, led by Trumbull and Fessenden, who sponsored this [civil rights] formula, assigned a limited and well-defined meaning to it,” namely, “the right to contract” and so on, “also a right to equal protection in the literal sense of benefiting equally from the laws for the security of person and property. ” 37 Even so, James G. Blaine recorded, “it required potent persuasion, reinforced by the severest party discipline, to prevent a serious break in both Houses against the bill” 38 —and this in spite of repeated assurances as to its limited scope. Subsequently, four defectors in the Senate could have defeated the Amendment.39

10

“Equal Protection of the Laws”

It has long been the habit of the Supreme Court to say that the Fourteenth Amendment “speaks in general terms, and those are as comprehensive as possible.” 1 Its opinions are replete with references to the “majestic generalities” of the Fourteenth Amendment,2 to the “vague contours” of the due process clause,3 and the like. Even Judge Learned Hand, though later dubious whether the Amendment authorized the desegregation decision, had said, “history is only a feeble light, for the rubrics were meant to answer future problems unimagined and unimaginable.” 4 And, though Negro suffrage was unmistakably excluded from the Amendment, no less a figure than Justice Holmes held that the equal protection clause self-evidently requires admission of Negroes to a Texas primary: “it seems hard to imagine a more direct and obvious infringement of the Fourteenth. That amendment . . . was passed . . . with a special intent to protect blacks from discrimination against them.” 5 Yet, as we have seen, the framers meant to outlaw discrimination only with respect to enumerated privileges. Even the abolitionists shrank from complete equality. Derrick Bell points out that “few abolitionists were interested in offering blacks the equality they touted so highly. Indeed, the anguish most abolitionists experienced as to whether slaves should be granted social equality as well as political freedom is well documented.” 6

It is the object of this and the succeeding chapter to show that the framers chose words which aptly expressed, and throughout were wedded to, their limited purposes; that there is virtually no evidence that the framers meant by resort to those words to open goals beyond those specified in the Civil Rights Act and constitutionalized in the Amendment.7 If the terms of the Amendment are “vague,” it is because the Court made them so8 in order to shield the expanding free enterprise system from regulation.

Analysis will be facilitated by a breakdown into subsidiary questions: What privileges were to be protected? Was the protection to be absolute, that is, to guarantee certain rights to all, or comparative, only to secure freedom from discrimination if those rights were granted? Do the words confer upon Congress a general power to legislate for the States or merely a power to correct State violations? The materials that bear upon these questions are so intermingled that it is not easy to disentangle them for separate discussion. Some repetition is therefore unavoidable, but an effort to isolate the several issues is well worth the cost.

“Equal protection,” it has been said, “had virtually no antecedent history.” 9 Sumner believed that he may have been “the first to introduce the words ‘equality before the law’ into American jurisprudence.” 10 In truth, the concept that laws should be general, nondiscriminatory in their application, is of long standing. As Locke put it, rulers “are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor.” 11 A note to Blackstone stated generality in more limited terms: “ restraints introduced by the law should be equal to all.” 12 Nor was selection of those entitled to equal protection ruled out, as the very exclusion of black slaves from the society attested. The Massachusetts Constitution of 1780 provided that Christians “demeaning themselves peaceably shall be equally under the protection of law”; and, like the Civil Rights Act of 1866, that Constitution confined protection to “the enjoyment of his life, liberty and property according to standing laws.” 13 As slaves, blacks were chattels, nonpersons singled out for grossly discriminatory treatment and oppression at every step. It would be little exaggerated to say that they were all but unprotected. Declared free by the Thirteenth Amendment, they continued to be treated like slaves,14 so it was essential to insure that the laws which protected whites would also protect blacks from oppression. In the words of Senator James W. Nye of Nevada, the Negroes “have equal rights to protection—equalized protection under equalized laws.” 15 This “equalized protection,” it can not be overemphasized, was limited to the rights enumerated in the Civil Rights Act of 1866, as will now appear.

What Was Equal Protection to Protect?

The Civil Rights Act, it will be recalled, secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the “ equal benefit of all laws for security of person and property. ” “Political rights” were excluded.16 In describing these aims the framers interchangeably referred to “equality,” “equality before the law,” and “equal protection” (but always in the circumscribed context of the rights enumerated in the Bill), so that it is reasonable to infer that the framers regarded these terms as synonymous. What is required, said Moulton of Illinois, is “that each State shall provide for equality before the law, equal protection to life, liberty, and property, equal right to sue and be sued.” 17 A leading Radical, Samuel Shellabarger of Ohio, said, of the Civil Rights Bill, “whatever rights as to each of these enumerated civil (not political) matters the State may confer upon one race . . . shall be held by all races in equality . . . It secures . . . equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” 18 So it was understood by Senator Hendricks, an Indiana Democrat: “To recognize the civil rights of the colored people as equal to the civil rights of the white people, I understand to be as far as Senators desire to go; in the language of the Senator from Massachusetts [Sumner] to place all men upon an equality before the law; and that is proposed in regard to their civil rights.” He objected that “in the State of Indiana we do not recognize the civil equality of the races.” 19 When Andrew Johnson combed the Bill for objections and vetoed it, he noted that §1 “contains an enumeration of the rights to be enjoyed” and that “perfect equality” was sought with respect to “these enumerated rights.” 20 Thomas T. Davis, a New York Republican, expressed a widely shared feeling in stating, Negroes “must be made equal before the law, and be permitted to enjoy life, liberty, and the pursuit of happiness [property],” but he was against “the establishment of perfect equality between the colored and the white race of the South.” 21 While James W. Patterson of New Hampshire was “opposed to any law discriminating against [blacks] in the security and protection of life, liberty, person and property,” “beyond this,” he stated, “I am not prepared to go,” explicitly rejecting “political and social equality.” 22 Windom declared that the Civil Rights Bill conferred an “equal right, nothing more . . . to make and enforce contracts,” and so on, but no “social privileges.” 23 Thus, the concept of “equal protection” had its roots in the Civil Rights Bill and was conceived to be limited to the enumerated rights.

What reason is there to conclude that when the words “equal protection of the laws” were embodied in the Amendment they were freighted with a new cargo of meaning—unlimited equality across the board? The evidence points the other way. In an early version of the Amendment, provision was made for both “the same political rights and privileges and . . . equal protection in the enjoyment of life, liberty and property,24 an indication that “equal protection” did not include “political rights and privileges,” but was confined to “life, liberty, or property.” Bingham proposed a substitute, H.R. No. 63, that would empower Congress “to secure . . . all privileges and immunities . . . (Art. IV, Sec. 2); and . . . equal protection in the rights of life, liberty and property (5th Amendment).” 25 “Political rights and privileges” had disappeared; in its place was “privileges and immunities.” Neither “privileges and immunities,” nor its antecedent, “civil rights,” had included “political privileges.” 26 Bingham explained that his proposal was aimed at “confiscation statutes . . . statutes of unjust imprisonment” of the “rebel states,” the objects of the Civil Rights Bill. It would enable Congress to insure “that the protection given by the laws of the States shall be equal in respect to life, liberty and property to all persons.” 27 Hale of New York asked him to point to the clause “which contains the doctrine he here announces.” Bingham replied, “The words ‘equal protection’ contain it, and nothing else.” 28

Among the statements indicating that §1 was considered to embody the objectives of the Civil Rights Act is that of Latham of West Virginia: “The ‘civil rights bill,’ which is now a law . . . covers exactly the same ground as this amendment.” 29 Stevens explained that the Amendment

As Bickel noted, the “evils to which the proposal was directed” hark “back to those which had been pointed to in support of the Civil Rights Bill.” 31 In attributing to Stevens the view that the Amendment proposed “a congressional guarantee of equality with respect to all state legislation,” 32 Alfred Kelly misconceived Stevens’ position. Very early in the session he had proposed that “ all national and State laws shall be equally applicable to every citizen . . . that is the one I love . . . But it would not be wise to entangle the present proposition with that one. The one might drag down the other.” 33 And when Stevens summed up his views on the Amendment, he said he had hoped that the people “would have so remodeled all our institutions as to have freed them from every vestige of . . . inequality of rights . . . that no distinction would be tolerated . . . This bright dream has vanished . . . we shall be obliged to be content with patching up the worst portions of the ancient edifice.” 34 Those patches went only to discriminatory punishments, deprivation of judicial redress and the like.

Senator Howard, a far less acute and careful lawyer than Stevens, delivered himself of a looser statement, but even he went on to qualify the general by his enumeration of particulars:

By “fundamental rights” Howard was employing the familiar shorthand for the incidents of “life, liberty, or property,” repeatedly so identified during the course of the Civil Rights Bill. That by “all legislation” he did not really mean “all” is demonstrated by his statement that §1 “does not . . . give . . . the right of voting”; it is not, he said, “one of the privileges or immunities.” 36 One who confessed that suffrage was not granted can hardly have held out in the same breath that “all class legislation” would now be banned, including some for which even greater distaste had been exhibited—desegregation, miscegenation. Reflecting earlier comments on the Civil Rights Bill, Howard stated in the same context that the Amendment “establishes equality before the law,” that it will prevent States from “trenching upon these rights and privileges,” and will give blacks the “same rights and the same protection before the law” as it gives whites.37 Patently both Stevens and Howard were addressing themselves to the oppressive discriminations perpetuated by the Black Codes.

Bingham himself contributed a telling bit of evidence against an interpretation of equal protection in unlimited terms. He it was who imported “equal protection” into the Amendment; speaking toward the close of the session in behalf of the admission of Tennessee despite its whites-only suffrage provision, he said: “One great issue has been finally . . . settled . . . [by the Amendment] the equality of all men before the law.” 38 Manifestly an equality that excluded Negro suffrage was not unqualified as he recognized: “We are all for equal and exact justice . . . [but] justice for all is not to be secured in a day.” When Joseph H. Defrees of Indiana, like Stevens, said that §1 of the Amendment “places all persons on an equality . . . so far as equal protection of the laws is concerned,” 39 he distinguished between full-scale equality and “equal protection of the laws.” That distinction was underlined by Samuel Shellabarger, who, speaking to the Civil Rights Bill, confined “equality of protection [to] the enumerated civil rights,” if conferred upon whites. Similar remarks were made by Wilson and Moulton.40 Limited equality was adopted because, as Senator Henderson of Missouri declared early in the session: “A bold declaration of man’s equality cannot be carried.” 41 His prediction was fulfilled by repeated rejection of proposals to require “all laws” to operate “impartially and equally,” to abolish “any distinctions between citizens.” 42

But, it may be asked, does not the differentiation in §1 between “due process” protection of “life, liberty, and property” and “equal protection of the laws” indicate that “equal protection” was now divorced from the earlier limitation to “life, liberty, and property”? Nothing in the debates indicates such a purpose.42a “Equal protection of the laws” expressed the central object of the framers: to prevent statutory discrimination with respect to the rights enumerated in the Civil Rights Act. That purpose had been loosely expressed in Bingham’s earlier formulation: “equal protection in the rights of life, liberty, and property,” which he mistakenly identified with the “5th Amendment.” Possibly some more perceptive lawyer restored the words “life, liberty, and property” to their Fifth Amendment association with due process, thus insuring access to the courts. At the same time, the established association of due process with judicial procedure made it necessary to block what Stevens denominated “partial and oppressive laws,” a purpose succinctly expressed by “equal protection of the laws” to which reference had been made during the debate on the Civil Rights Bill.

Freedom From Discrimination vs. Absolute Rights

The framers sought only to secure to blacks the same specified rights as were enjoyed by whites; if whites did not have them there was no State duty to supply them to anyone, still less a congressional power to fill the gap. So much appears from Shellabarger’s explanation that the Civil Rights Bill secures “equality of protection in these enumerated civil rights which the States may deem proper to confer upon any race.” 43 Before considering further evidence, let us examine tenBroek’s argument to the contrary. His was the most sustained effort to give “equal protection” an “absolute” as distinguished from a nondiscriminatory content. The heart of his argument is:

Even on the level of verbal analysis the argument is vulnerable. A “condition” is a “restriction or qualification”; it was therefore not “protection unlimited” —the full protection of which laws are capable—that was mandated, but only that such laws as were enacted should be impartial. If the laws supplied no protection, to whites or blacks, there was nothing to which the “equal” condition could attach. To state in this context that “ ‘equal’ protection of the laws and the ‘full’ protection of the laws are virtually synonyms” 45 departs from a decent respect for words—a half-glass given to all is “equal” though it is not “full.”

TenBroek’s argument is further flawed by the assumption that the “basic idea” of the equal protection clause is that “protection of the laws . . . must be supplied.” That may be well enough as a jural postulate,46 but emphatically it was not the premise of the framers. Translating a remark of Hale as “the citizens must rely upon the State for their protection,” Bingham said, “I admit that such is the rule as it now stands.” 47 Later he explained that in his proposed amendment, “the care of the property, the liberty, and the life of the citizen . . . is in the States, and not in the Federal Government. I have sought to effect no change in that respect.” 48 Because the rule was dear to the framers, Trumbull reassured the Senate that “if the State of Kentucky makes no discrimination in civil rights between its citizens, this bill has no operation whatever in the State of Kentucky.” 49 Protection, if given, must be impartial, but the absence of all protection would afford no ground for federal intervention. It does not advance tenBroek’s argument that, in the remarks of the radical extremists Higby-Kelley-Woodbridge, “the qualifying word ‘equal’ was almost entirely forgotten and ‘protection’ treated as if it stood alone.” 50 Against this unrepresentative fringe there is first the fact that a subcommittee of the Joint Committee had proposed that “Congress shall have power to make all laws . . . to secure all persons . . . full protection in the enjoyment of life, liberty and property.” 51 Here was a proposal—there were others—that embodied precisely what tenBroek argues for, and its demise demonstrates that the framers had no stomach for “full” protection at the hands of Congress. Their objectives were narrower.

Again and again the framers stated that their purpose was to prevent one law for blacks, another for whites. It was a ban on such discrimination that was expressed in “equality before the law” and “equal protection” —not a mandate that the States must confer rights not theretofore enjoyed by any citizen. In the beginning the Civil Rights Bill had provided:

The word “immunities” carried over into the Amendment, hence Wilson’s explanation is germane: “It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . One race shall not be favored in this respect more than another . . . This is the spirit and scope of the bill, and it does not go one step beyond.” 53 Although the “no discrimination” clause had been deleted at Bingham’s insistence that the words “civil rights” were too broad and “oppressive,” the provisions for the “same” rights and immunities remained untouched. It was understood by the framers that discrimination remained the target as Shellabarger illustrates; the Bill would require that whatever of these “enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinction based upon race”; such rights “shall be held by all races in equality.” 54

That persisted as the ground bass of the Amendment; Stevens explained that it required that a State law “shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree.” 55 “Equal protection,” said Senator Howard, “does away with the injustice of subjecting one caste of persons to a code not applicable to another”; the Amendment “establishes equality before the law.” 56 In short, the framers struck at discrimination against the blacks with respect to enumerated privileges and immunities that were accorded to whites; and they chose a word perfectly suited to the purpose. Among the definitions of “equal” are “uniform in effect or operation; neither less nor greater; having the same rights or privileges; impartial.” A State provision may be substandard when measured by more enlightened federal or State criteria; but if it is impartial, uniformly applied to all within the State, it satisfies the meaning of “equal.” 57

True it is that Bingham and Lawrence of Ohio maintained that the “fundamental,” “natural” rights were “absolute,” and could not be withheld.58 But the Republican majority was content to correct discriminations with respect to those rights. Bingham, on whom tenBroek so often relies, is, we have seen, a confused, imprecise, and vacillating witness.59 Even so, when pressed by Hale whether his proposal “confers upon Congress a general power of legislation” in regard to “protection of life, liberty and property,” he replied that it was designed “to see to it that the protection given by the laws of the State shall be equal in respect to life, liberty and property to all persons.” 60 Faced with opposition, Bingham once more retreated—Congress was only to correct discrimination.61 Nevertheless, tenBroek adopts Bingham’s teetering statement that the States were under an absolute duty to protect those privileges. After remarking on Bingham’s “immortal Bill of Rights,” he loftily dismisses Barron v. Baltimore, wherein Chief Justice Marshall held that the Bill of Rights had no application to the States:

What tenBroek regards as axiomatic runs counter to statements in the First Congress that the Bill of Rights was to have no application to the States, and in spite of Madison’s urging that freedom of speech and press stood in greater need of protection against the States than against the federal government, to the rejection of his proposal that they be made applicable to the States.63 In 1789 men were more devoted to their States than to the nascent federal government; they feared the centralized, remote power of the newcomer,64 hence the limitations imposed on the federal government by the Bill of Rights. There is no inkling that in the intervening 75 years the North had become dissatisfied with the protection they were given by the States. On the contrary, they reaffirmed their attachment to State sovereignty in the 39th Congress.65 They believed that State governments would be more responsive to their needs, more controllable than the federal regime; and they sought to limit federal intrusions to the minimum necessary to protect the personal security of the blacks.

The present generation would read back into the Amendment views that the framers clearly perceived the North would not accept. Much closer to the intention of the framers,66 the Supreme Court said in 1875, with respect to the First Amendment protection of the right to assemble against “encroachment by Congress”: “For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.” 67

Congressional Power: Corrective or General

Does the §1 provision “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws” empower Congress to enact laws for direct enforcement thereof? Justice Bradley answered, “How can a prohibition, in the nature of things, be enforced until it is violated?” 68 To convert “No State shall deny” into “Congress shall make” does violence to the text. The distinction between a prohibition of action and a grant of power was well understood by the 39th Congress. Even with respect to the prohibitions directed to Congress by the Bill of Rights, Hale said that the several amendments “do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power.” 69 In addition, there is the fact that “the equality ordained” is, as Dean Phil Neal put it, “a Statewide equality, encompassing the persons ‘within its jurisdiction’ and not a nationwide or external equality.” 70 For it is the “laws” of the State, not of the nation, that are required to afford “equal protection.”

Textual analysis is richly confirmed by the legislative history. Shellabarger, an Ohio Radical, argued on behalf of the Civil Rights Bill that “if this section did in fact assume to confer or define or regulate these civil rights which are named . . . then it would . . . be an assumption of the reserved rights of the States . . . Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall . . . be without distinction based on race.” 71 Shellabarger’s assurance to fellow Republicans that State sovereignty was displaced only insofar as corrective measures would require was echoed by his colleagues. Speaking to the final form of the Amendment, Bingham stated: “That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this Amendment. That is the extent it hath; no more.” 72 Stevens said of the same draft that the Amendment “allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” 73 In the Senate, Howard said that “section one is a restriction upon the States, and does not, of itself, confer any power upon Congress”;74 and that §5 “enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional amendment.” 75

Powerful confirmation of such expressions is furnished by the jettisoning of the Bingham amendment (H.R. No. 63), cast in terms of a grant to Congress:

Judge Hale justifiably protested that this “is not a mere provision that when the States undertake to give protection which is unequal Congress may equalize it; it is a grant of power in general terms—a grant of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.” 77 Hale’s Republican colleague from New York, Giles W. Hotchkiss, added:

Stevens staged a rescue attempt in the form of a rhetorical question addressed to Hale: “is it not simply to provide that where any State makes a distinction in the same law between different classes of individuals, Congress shall have power to correct such discrimination and inequality?” 79 But this put too great a strain on the broader Bingham phraseology, and his approach was abandoned.

That Hale and Hotchkiss voiced the pervasive distrust of a general grant of power to Congress to legislate in the premises may also be gathered from the statement by James F. Wilson of Iowa, chairman of the House Judiciary Committee, that the Bingham proposal was “the embodiment of our greatest danger.” 80 Let Henry J. Raymond, an influential New York Republican who voted for the Fourteenth Amendment, sum up: the Bingham amendment “giving to Congress power to secure an absolute equality of civil rights in every State of the Union . . . encountering considerable opposition . . . it was finally postponed” —and never resuscitated.81 Bingham himself joined ranks when he urged the people, in support of the final draft, to protect “the privileges and immunities of all the citizens of the Republic . . . whenever the same shall be abridged or denied by the unconstitutional acts of any State.” 82

Flack comments on this shift from “Congress shall have power” to “no State shall make” that, though the former “was not incorporated into the fundamental law . . . it may properly be asked whether it really did not become a part of it with a mere change in dress but not in meaning.” 83 Such flabby analysis that can translate “no” as “yes” has clogged understanding of the Fourteenth Amendment. TenBroek likewise transforms “no State shall make” into the “obligation of the states to ‘make or enforce laws’ protecting” men in their “natural rights.” There “never would have been any historical question about the revolution in federalism worked or confirmed by the Fourteenth Amendment,” he maintained, “were it not for the shift from the positive to what at first glance appears to be a negative form of the amendment.” 84 That “first glance,” as we have seen, is buttressed by the plainly expressed intention of the framers.

TenBroek attempts to torpedo what he considers the three “mainstays” of the “narrow” construction based on a changeover from grant to prohibition, and begins with Stevens’ explanation of the final draft, in which he said that it “fell far short of [his] wishes.” 85 This, tenBroek argues, referred solely to Negro suffrage, which was not treated in §1 but only in §2 and §3. The argument grasps at straws. Suffrage was a central concern; it had unmistakably been excluded from the Civil Rights Act, the antecedent of §1, so if Stevens was troubled by the failure to provide for suffrage in §2 inferably he considered it also was unprovided for in §1, thus undermining tenBroek’s inference that §1 could “hardly [have been] a source of dissatisfaction to him.” Such speculation is beside the point. Stevens had disclaimed a grant of original power to Congress, first, by seeking to save the Bingham amendment by reading it merely to confer “power to correct such discrimination,” 86 and later by stating that the final draft “allows Congress to correct the unjust legislation of the States.” 87

The second “mainstay” is that after the shift to the prohibition on States, Andrew J. Rogers, a Democrat and bitter opponent of the several Reconstruction measures, charged that §1 “consolidates everything into one imperial despotism” and “annihilates” States’ Rights. TenBroek reinforces this by the testimony of two other Democrats, Aaron Harding and George S. Shanklin of Kentucky, and asks, “Since the amendment was adopted in the teeth of this criticism, might not we as reasonably conclude . . . that the amendment was intended to do the very thing objected to.” 88 There is no need to recapitulate the weakness of reliance on opposition obstructiveness designed to inflame the electorate. It is a singular approach to legislative history, shared by other proponents of the tenBroek view, to exalt the opposition and all but ignore the statement of objectives by the Republican leadership who carried the day.

Comes now the third “mainstay”:

TenBroek proves too much; on his reasoning a court equally could proceed without waiting for a general (as distinguished from a corrective) congressional law.90 The “nugatory” test, therefore, does not clarify whether the congressional power is “corrective” or “general.”

James A. Garfield’s statement in the 1871 debates, made by a framer in the 39th Congress and faithful to the historical record, is entitled to greater respect than present-day speculation: “soon after the ratification of the Amendment,” tenBroek states, Garfield explained that Congress had rejected “a clear grant of power to Congress to legislate directly for the protection of life, liberty, and property within the States” in favor of the present form that “limited but did not oust the jurisdiction of the state over the subjects.” 91 Justice Bradley’s opinion in the Civil Rights Cases, therefore, does not betray, but rather responds to, the intention of the framers. The Amendment, he declared,

In sum, the words “equal protection of the laws” were meant to obviate discrimination by laws—that is, statutes—so that with respect to a limited group of privileges the laws would treat a black no differently than a white. If no privilege was accorded to a white, a State was not required to furnish it to anyone. Hence Justice Douglas, in invalidating a State poll tax, was wide of the mark when he based his conclusion, “not on what we think governmental policy should be, but on what the Equal Protection Clause requires.” The truth is, as he stated in a preceding sentence, “we have never been confined to historic notions of equality . . . Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” 93 In plain words, Douglas laid claim to power to revise the historic meaning in accord with his own preferences. For Chief Justice Marshall, on the other hand, the words of the Constitution were not to be “extended to objects not . . . contemplated by the framers” 94 —let alone unmistakably excluded. As Herbert Packer points out, “the new ‘substantive equal protection’ has under a different label permitted today’s justices to impose their prejudices in much the same manner as the Four Horsemen [of the pre-1937 Court] once did.” 95

11

“Due Process of Law”

To this day,” Arthur Sutherland wrote in 1965, “no one knows precisely what the words ‘due process of law’ meant to the draftsmen of the fifth amendment, and no one knows what these words meant to the draftsmen of the fourteenth amendment.” 1 True it is that after the 1880s the phrase was transformed by the Court into one of “convenient vagueness”;2 and such “vagueness” has become the reigning orthodoxy.3 Whether one can determine “precisely” what due process meant, however, is not nearly so important as the fact that one thing quite plainly it did not mean, in either 1789 or 1866; it did not comprehend judicial power to override legislation on substantive or policy grounds. There is first the unmistakable testimony of Alexander Hamilton. Speaking in the New York Assembly in 1787, almost on the eve of the Convention, he stated:

No statement to the contrary will be found in any of the constitutional conventions, in the First Congress, nor in the 1866 debates.

Hamilton summed up the English and colonial usage, and it is that usage that defines the content of the words “due process of law.” It has long been a canon of construction that when the draftsmen employed common law terms, the common law “definitions,” as Justice Story stated, “are necessarily included as much as if they stood in the text” of the Constitution.5 But when so great a master as Judge Learned Hand concludes that the prohibitions of the Fifth and Fourteenth Amendments are cast “in such sweeping terms that history does not elucidate their contents,” 6 I may be indulged for piling proof on proof to the contrary.

Our conceptions of due process are traceable to the twenty-ninth chapter of Magna Charta, which, roughly speaking, provided that no man should be deprived of his life, liberty, or property, except by the judgment of his peers or the law of the land.7 Coke stated that “by the law of the land” was meant “by the due course and process of law.” 8 Whether due process and “law of the land” were identical in English law9 need not detain us; for present purposes it may suffice that both related to judicial procedures preliminary to the described forfeitures. Prior to 1789 the several State constitutions employed the “law of the land” terminology, usually in the context of other safeguards for those charged with crimes, suggesting that it was viewed in terms of judicial procedure.10 That the “law of the land” was understood in Coke’s sense is illustrated by Hamilton’s 1787 statement.11 The members of the First Congress, who employed the words “due process” in the Fifth Amendment instead of the “law of the land” contained in the extant State constitutions, presumably intended no departure from prevalent State usage. Given the great respect Coke enjoyed in the colonies, it is reasonable to infer that, like Hamilton, they accepted Coke’s identification of the two phrases.12

It has been convincingly shown that due process was conceived in utterly procedural terms, specifically, that a defendant must be afforded an opportunity to answer by service of process in proper form, that is, in due course. Starting with an early statute, 28 Edw. III, ch. 3 (1354), which provided that “no man . . . shall be put out of land or Tenement . . . nor put to death, without being brought in to answer by due process of law,” 13 Keith Jurow concluded from a comparison with chapter 10 of the same statute that the due process provision “seems merely to require that the appropriate writ be used to summon the accused before the court to answer the complaint against him.” 14 An earlier statute, 25 Edw. III (1352), had provided that because the “law of the land” required that “none shall be imprisoned, nor put out of his freehold” and so on, henceforth “none shall be taken . . . unless it be by indictment or presentment . . . or by process made by writ original at the common law [and] unless he be duly brought to answer.” Jurow concludes that “the word ‘process’ itself meant writs . . . those writs which summoned parties to appear in court.” 15 His reading harmonizes with that of Coke, who, referring to a later statute, 37 Edw. III, ch. 3 cap. 8, explains “without due process of the law” thus: “that is by indictment . . . or by writ originall of the common law. Without being brought in to answer but by due process of the common law. No man may be put to answer without presentment . . . or by writ originall, according to the old law of the land.” 16 A Massachusetts measure of 1692, duplicated in the colonies of Connecticut and New York, “ordained . . . no person should suffer . . . without being brought to answer by due course and process of law.” 17 Blackstone later recurred to 28 Edw. III for the proposition that “no man shall be put to death without being brought to answer by due process of law.” 18 Finally, among the Declarations and Resolves of the First Continental Congress, October 14, 1774, was “the respective colonies are entitled to the common law . . . and . . . to the . . . privilege of being tried by their peers . . . according to the due course of that law.” 19 “Process,” accordingly, was by indictment or writ; it was in “due course,” that is, in regular course, if the “appropriate” writ was employed.20 “ Due process ” should therefore be regarded as shorthand for Coke’s “by the due course and process of law” in judicial proceedings.21 These materials demonstrate, parenthetically, that due process was not a catchall for all the other safeguards the Bill of Rights provided to a defendant; it had a special and limited function: to insure through service of proper, that is, “due,” process that a defendant would be given a chance to answer.22

In the interval between 1789 and 1866, the procedural nature of due process received the imprimatur of Kent and Story, who relied on Coke.23 Because lawyers habitually look to judicial decisions for “constitutional law” they have largely overlooked that in virtually all of the State constitutions extant in 1866 the words “due process of law” and “law of the land” were, as Charles E. Shattuck pointed out more than 85 years ago, almost always found “in a section of the Constitution dealing exclusively with the conduct of criminal trials, with the privileges of the accused, with a process in which the whole question is whether the person concerned shall be deprived of one or another of certain rights; that is of life, or personal liberty, or property as a penalty for a crime; and it is declared that he shall not without due process of law.” 24 The lawyers who framed the Fourteenth Amendment undoubtedly were familiar with this association of due process with judicial procedure,25 and a departure from this all but universal connotation must be based on more than bare conjecture; the rule is that it must be proved.26 What Charles P. Curtis, an ardent proponent of judicial “adaptation” of the Constitution, said of the Fifth Amendment could even more truly be said of the Fourteenth. When the framers put due process “into the Fifth Amendment, its meaning was as fixed and definite as the common law could make a phrase. It had been chiseled into the law so incisively that any lawyer, and a few others, could read and understand. It meant a procedural process, which could be easily ascertained from almost any law book.” 27

The 39th Congress

In light of the prominence to which the due process clause has been elevated by the Supreme Court, it is surprising how scanty were the allusions to the clause in the debates of the 39th Congress. It was altogether unmentioned in the Civil Rights Bill; instead the Bill spelled out the concrete rights “to sue, be parties and give evidence”; and it inclusively provided for the “equal benefit of all laws and proceedings for the security of person and property.” But the debates show plainly enough that by “proceedings” the framers intended to supply judicial protection to Negroes. Senator Daniel Clark of New Hampshire had stated that the Negro “was denied access to the courts, because he had no rights which a white man was bound to respect; he was not permitted to testify because he might tell of the enormities practiced upon him.” 28 Samuel McKee of Kentucky asked, “Where is your court of justice in any Southern State where the black man can secure protection?” 29 Senator Henry S. Lane of Indiana stated, “we legislate upon this subject now . . . simply because we fear . . . that the emancipated slaves would not have their rights in the courts of the slave States.” 30

Although due process found no mention in the text of the Bill, its proponents made quite clear that they considered it to be associated with judicial proceedings. John M. Broomall of Pennsylvania explained that blacks were “denied process of law to enforce the right and to avenge the wrong,” that is, “denied remedy in the courts.” 31 The intention to supply a judicial “remedy” by means of “due process” was more sharply articulated by Chairman Wilson: “the citizen . . . is entitled to a remedy . . . The citizen is entitled to the right of life, liberty and property. Now if a State intervenes, and deprives him without due process of law of those rights [which had been enumerated in the Bill] . . . can we not provide a remedy?” 32 Here is the traditional protection afforded by “due process” against the deprivation of life, liberty or property which was later to be expressed in the due process clause of §1. There is no evidence whatsoever that the §1 resort to the due process clause signaled a shift from this intention to furnish a judicial remedy. Evidence to the contrary is furnished by Senator Cowan. Speaking to the Amendment, he said he was opposed to “punishment of any kind upon any body unless by a fair trial where the party himself is summoned and heard in due course of law,” the basic conception of due process of law.33

The due process clause made its appearance belatedly, almost in a fortuitous manner, deriving from the framers’ absorption with equality before the law.34 At the opening of the session Bingham proposed to “secure to all persons . . . equal protection in the rights [of] life, liberty, and property.” Later he explained that the Fifth Amendment contained the very words “equal protection in the rights of life, liberty, and property.” “Apparently,” Joseph B. James comments, “the words ‘due process’ did not strike him as outstandingly significant” 35 —and, it may be added, they played no great role in the thinking of his contemporaries. Possibly some more acute lawyer in the Joint Committee, perceiving Bingham’s mistaken joinder of “life, liberty, or property” in the Fifth Amendment with “equal protection,” restored the original conjunction of “due process” with “life, liberty, or property,” thus assuring nondiscriminatory protection by the courts, one of the Civil Rights Act’s objectives, and went on to articulate the primary objective of the framers—to prevent discriminatory laws, that is, statutes—by the words “equal protection of the laws.” Thus were fashioned the complementary “equal protection” and “due process” clauses, which, as we have seen, were foreshadowed by Blackstone if not by Coke.

Bingham left no room for speculation as to what he meant by “due process.” When asked by Rogers, “what do you mean by ‘due process of law,’ ” he curtly replied, “the courts have settled that long ago, and the gentleman can go and read their decisions” —a reply that showed he deemed the question frivolous.36 As James states, Bingham gave due process the “customary meaning recognized by the courts,” 37 and that meaning was all but universally procedural. Because Bingham “appears to have associated ‘equal protection’ with ‘due process of law,’ ” Graham concludes that he “probably had a substantive conception of due process.” 38 That is like arguing that because “equal protection” outlawed discriminatory statutes, “due process” designed for judicial procedure likewise applied to regulatory statutes. If Bingham entertained that conception, he never expressed it in the debates. According to Graham, “no other member of Congress appears to have used the clause as Bingham [allegedly] did”; and “no other member of the Joint Committee or of Congress . . . manifested his partiality for the due process clause” 39 —a strange inference from his confusion of “equal protection” with the Fifth Amendment! When Stevens explained the Amendment to the House, he made no mention of the clause, but said that the Amendment “allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one shall operate equally upon all,” thus exemplifying that freedom from discriminatory laws remained the overriding concern to the end.40 One of the very few remarks directed to the due process clause, that of Jehu Baker of Illinois, confirms that it was viewed in existing procedural terms: “The Constitution already declares generally that no person shall ‘be deprived of life, liberty, or property without due process of law.’ This declares particularly that no State shall do it.” 41

Before his conversion,41a Graham noted that at this time due process was “merely a limitation upon procedure” and stated that the substantive theory “presupposes what was really an extraordinary viewpoint.” He himself wrote, “so long as these were the prevailing usages down to 1866 one is hardly warranted in attributing a more subtle or comprehensive purpose without definite, positive evidence.” 42 Graham’s discovery of abolitionist ideology led him to mute these views but, as we shall see, he failed to offer “definite, positive evidence” that that ideology was adopted by the framers. The truth is that it was anathema to the centrist-conservative coalition which was in control.43

Bingham himself adhered to a procedural view of due process; in mid-August 1866, just two months after passage of the Amendment, he stated in Ohio that §1 “gave ‘any citizen’ the power to correct wrong by judicial process,” thus identifying it with due process.44 Telling confirmation that “due process” was not conceived in substantive terms is furnished by the fact that Senator Reverdy Johnson, probably the foremost lawyer in the 39th Congress and a member of the Joint Committee, “had not used due process, neither Fifth Amendment due process in Veazie v. Fenno nor (apparently) Fourteenth Amendment due process after 1868.” 45 “ [I]s it conceivable,” Graham asked, “that if Reverdy Johnson, for example, had clearly understood and intended in 1866 that an added due process limitation against the states would constitute a valuable judicial safeguard for business fighting state regulation, that he himself would fail, as he did in 1869 when arguing the hard-fought case of Veazie v. Fenno, to employ the due process clause of the fifth amendment in behalf of a corporate client fighting against a drastic federal law?” 46 Since the due process of the Fifth and Fourteenth Amendments were regarded as identical, Graham’s rhetorical question suggests that no intimation of substantive content had been voiced in the Joint Committee. And after his review of the railroad battles of the mid-sixties, directed by Reverdy Johnson, which moved from the courts to the Pennsylvania legislature and the halls of Congress, Graham observes: “we find no explicit references in the legislative and congressional debates on the repealers [by the legislature] to violation of due process as such . . . [T]hese repealers were regarded only as impairing obligations of contracts, and as having been ‘passed without any hearing or judicial determination of the fact of misuse or abuse’ . . . What we have to remember is that in 1866 the due process tradition was still on the make.” 47

What is the impact of neoabolitionist theorizing on the foregoing facts? The abolitionist theory of racialized substantive due process, Graham tells us, “had gained its original impetus . . . extra-judicially, and almost wholly ante-judicially . . . Extra-judicial due process and antebellum equal protection were rankly, frankly heretical.” 48 One who maintains that heresy supplanted orthodoxy, and this through the medium of congenitally conservative lawyers in Congress, carries a heavy burden of proof, not at all met by neoabolitionist reliance on Bingham as the instrument of change.49 The abolitionists themselves by no means saw eye to eye on the subject. Two of their renowned theorists, Lysander Spooner and Joel Tiffany, “refused to rely upon due process” or “thought of it almost entirely as a formal requirement.” 50 In Massachusetts, Graham writes, “even abolitionists remained comparatively earthbound . . . Charles Sumner . . . the outstanding black-letter scholar of the movement . . . relied rather on the Republican form of government clause and Equality Before the Law.” 51 Such divisions indicate that substantive due process was not an idea whose time had come.52

Although Graham perceived that evidence of “substantive” intent is lacking when due process is viewed in the frame of corporate protection, he failed to apply the lesson to employment of due process for libertarian purposes. To be sure, the Supreme Court has now dichotomized due process; in the economic sphere the words have become a “dirty phrase,” 53 whereas certain libertarian claims have been given a “preferred position.” 54 But support for that distinction will not be found in the history of the Fourteenth Amendment. Rather there was an unmistakable rejection of that most crucial of libertarian rights—the right to vote—and with it the right to attend unsegregated schools.

The extraordinary transformation of due process by the Court55 has turned the Fourteenth Amendment topsy-turvy. The original design was to make the “privileges or immunities” clause the pivotal provision in order to shield the “fundamental rights” enumerated in the Civil Rights Act from the Black Codes. Intertwined with that enumeration was repeated emphasis on the enjoyment of the “same rights,” and “equal benefit of all laws and proceedings for the security of person and property.” 56 Trumbull stated, for example, that the Civil Rights Bill “contains but one single principle . . . to establish equality in the civil rights of citizens,” 57 among them access to the courts. Throughout the “basic idea,” as tenBroek stresses, was that of “equal protection.” 58 Farnsworth stated that the Amendment “might as well in my opinion read, ‘No State shall deny to any person within its jurisdiction the equal protection of the laws’ ”; the rest he regarded as “surplusage.” 59

For the framers the three clauses of the Amendment were a trinity, three facets of one and the same purpose. This clearly appears from President Johnson’s statement, which accompanied his veto of the Civil Rights Act, that he would cooperate “to protect [1] the civil rights of the freedmen [2] by judicial process [3] under equal and impartial laws.” 60Those objectives were acceptable to him. In lawyers’ parlance, the privileges or immunities clause conferred substantive rights which were to be secured through the medium of two adjective rights:61 the equal protection clause outlawed statutory, the due process clause judicial, discrimination with respect to those substantive rights. This adjective duality had been expressed in a Massachusetts measure of 1692 ordaining that “no person should suffer [1] without express law . . . [2] nor without being brought to answer by due course and process of law,” a measure duplicated in the colonies of Connecticut and New York.62 And it found expression in the Fourteenth Amendment, as may be gathered from Senator Howard’s explanation that “without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government.” Senator Clark made the point more clearly: “You admit that the courts should be open to the black man, and that he should have the protection of the laws as fully as the white man.” 63 TenBroek remarks that Bingham “accepted the [abolitionist] amalgamation of natural rights, due process and equal protection.” 64 “A common theme of the discussion of the amendment’s supporters,” Harris comments, “was the mutual interdependence of the privileges and immunities, due process, and equal protection clauses.” 65 And in answer to the question “equal protection of what?” he replies: “when the three clauses are read together as they ought to be, it is equal protection by equal laws pertaining to the rights of life, liberty and property, and the privileges and immunities of citizenship. Or, as expressed by Justice Washington, those rights which are in their nature fundamental.” 66 But, like tenBroek, Harris does not come to grips with the limited meaning that “natural,” “fundamental” rights, that “life, liberty, or property,” had for the framers.67 Trumbull drew that limited meaning from Justice Washington in drafting the Civil Rights Bill, and it was then embodied in the “privileges or immunities” clause. It is striking evidence of the centrality of the privileges or immunities clause for its contemporaries that hard upon the adoption of the Amendment, in the Slaughter-House Cases, equal protection and due process, in the words of Justice Miller, had “not been much pressed,” 68 but that the case was almost entirely pitched on the privileges or immunities clause. For it was that clause that contains the substantive rights the Amendment was designed to protect.

As in the case of the “equal protection” clause, the framers were content to bar discrimination, to assure blacks that they would have judicial protection on the same State terms as whites, no more, no less. It should be apparent from the foregoing that the due process clause was not meant to create a new, federal criterion of justice. Like State laws at which “equal protection” was aimed, State justice had to be nondiscriminatory. It was “equal justice to all men and equal protection under the shield of law” of which Howard spoke.69 “ [E]quality in the protection of these fundamental rights . . . was the common refrain throughout,” as is exemplified by Stevens’ “Whatever means of redress is afforded to one shall be afforded to all,” 70 by Howard’s “equal justice to all,” and by Trumbull’s assurance that the Civil Rights Bill “will have no operation in any State where the laws are equal, where all persons have the same civil rights.” 71 Just as the framers disclaimed an intention to displace nondiscriminatory State laws by a general federal code and were content to “correct” discriminatory State laws, so their parallel aim was to secure impartial access to State judicial proceedings,72 not to write a judicial code for the nation. All this was summed up by Justice Matthews in Hurtado v. California: the due process clause of the 14th Amendment “refers to that law of the land in each State . . . ‘Each State prescribes its own mode of judicial proceeding.’ ” 73

Even less were the framers minded in requiring nondiscriminatory laws and equal judicial process to create a fresh congeries of rights that ranged beyond those enumerated.74 Having in mind that the Amendment was designed to constitutionalize the Civil Rights Act, it is clear that the “equal protection” and “due process” clauses were merely a compressed version of the original design. All three clauses, tenBroek states, “refer to the protection or abridgment of natural rights,” 75 rights that had been so carefully spelled out in the Civil Rights Act. There is evidence that these clauses simply echoed the Blackstonian formula that the “fundamental rights” could be diminished only by “due course of law” or by the “laws of the land,” by which was meant general laws that would apply to all alike. Wilson had quoted Blackstone’s pairing of “due process of law” and by the “laws of the land” in commenting on the Civil Rights Bill, exhibiting awareness that Blackstone regarded them as the sole means of curtailing the specified rights. He emphasized that the Bill “does not go one step beyond” protection from discrimination with respect to designated “immunities,” that “it is not the object of this bill to establish new rights,” but to declare “the equality of all citizens in the enjoyment of civil rights and immunities.” 76 For the protection of those enumerated rights, “fundamental rights,” the framers fashioned impartial access to judicial process and nondiscriminatory legislation. They did not seek to supplant State proceedings and lawmaking, but only to insure, in the words of the Judiciary Committee’s interpolation, that an oppressed race should have the “equal benefit of all laws for security of person and property” “ as is enjoyed by white citizens.” 77 This was the purpose constitutionalized by the Fourteenth Amendment.

It is therefore contrary to historical fact to say, as did Justice Black, that “in view of its historical setting and the wrongs which called it into being, the due process provision of the Fourteenth Amendment—just as that in the Fifth . . . was intended to guarantee procedural standards adequate and appropriate, then and thereafter.” 78 And it testifies to the potency of unremitting reiteration that even so perspicacious a judge as Justice Harlan could state that “The Due Process Clause of the Fourteenth Amendment requires that those [State] procedures be fundamentally fair in all respects.” 79 That is a judicial construct pure and simple; no such mandate can be drawn from the history of the Amendment.

It has been my purpose in this and the preceding chapter to show that the terms “equal protection of the laws” and “due process of law” grew out of the framers’ intention to supply, with respect to a selected group of privileges, protection against discrimination either by legislation or by a bar to judicial succor, that these adjective conceptions were intertwined throughout with the framers’ solicitude to guarantee those selected substantive rights. Even if I have failed in that purpose, Robert H. Bork’s conclusion seems to me controlling:

The Court, in short, was not empowered to substitute its policy choices for those of the framers.

Person or Citizen

Few, if any, historical reconstructions can tidily accommodate all the unruly facts. The triune analysis does not fit neatly with the fact that the privileges or immunities clause refers exclusively to “citizens,” whereas the equal protection and due process clauses refer to “persons.” “In constitutionally defining who is a citizen of the United States,” Justice Rehnquist stated, “Congress obviously thought it was doing something, and something important . . . The language of that Amendment carefully distinguishes between ‘persons’ who, whether by birth or naturalization, had achieved a certain status, and ‘persons’ in general.” 81 That distinction, I suggest, was not carefully considered, and it raises a number of perplexing problems. Were the rights of “persons” intended to be broader than those of “citizens”? If so, the unremitting labor to make citizens of blacks was superfluous, especially since suffrage was denied them; for they could have enjoyed as “persons” rights withheld from them as “citizens.” Or were “persons,” like “citizens,” only to receive protection for the “fundamental rights” expressed in the due process words “life, liberty, or property,” words Bingham originally had coupled with equal protection. This too would render the privileges or immunities clause supererogatory save as an additional cue to the nature of what was sought to be protected. Nor is it reasonable to conclude that the framers were more solicitous for “persons” than for “citizens.” To the contrary, they were almost constantly preoccupied with the plight of the former slaves, who were made citizens for their better protection. All in all, it will not do to read the rights of “persons” more broadly than those that were conferred on “citizens.”

Little notice has been taken of the relation in this context between “citizens” and “persons,” 82 and it may be useful to pull the historical threads together. So far as regards the Civil Rights Bill it is plain, as Wilson stated, that “the entire structure of this bill rests on the discrimination relative to civil rights and immunities . . . on account of race.” 83 Originally §1 of the Bill had banned discrimination “in civil rights and immunities among the inhabitants of any State . . . on account of race”; §2 penalized any person who “subjected any inhabitant . . . to the deprivation of any right secured or protected by this act.” 84 At the instruction of the Judiciary Committee, Chairman Wilson offered an amendment to §1: “to strike out the words ‘but the inhabitants’ and insert in lieu the words ‘and such citizens,’ ” so that it would read “no discrimination in civil rights or immunities among the citizens of the United States.” He explained that it was “intended to confine the operation of this bill to citizens of the United States, instead of extending it to the inhabitants of the several States, as there seems to be some doubt concerning the power of Congress to extend this protection to such inhabitants as are not citizens.” 85 Presumably the doubt was engendered by the fact that the Thirteenth Amendment, the chief reliance for the constitutionality of the Bill, was restricted to enslaved blacks; but the original “discrimination . . . on account of race” adequately responded to that restriction. Later Bingham, apprised by Wilson that the surviving word “inhabitant” in §2 was “in mistake for ‘citizen,’ ” expostulated against the “terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates.” That, he said, “is forbidden by the Constitution,” citing the association in the Fifth Amendment of “No person” with “life, liberty, and property” and asserting that “this bill . . . departs from that great law. The alien is not a citizen. You propose to enact this law, you say, in the interests of the freedmen. But do you propose to allow these discriminations to be made . . . against the alien and stranger?” 86 Although the word “inhabitants” was not replaced by “citizens” in §2, Wilson continued to refer to the Bill in terms of “citizens,” and objected to a proposal to “declare all persons, negroes included, citizens.” 87 His understanding that the Bill pertained to “citizens” was shared by William Lawrence and Samuel Shellabarger.88

When we turn to the Amendment we find that Bingham pretty consistently sought protection for “persons.” In contrast to Stevens, who at the very outset had introduced an amendment requiring all laws to be equally applicable to “citizens,” Bingham had proposed to “secure to all persons . . . equal protection in their rights of life, liberty, and property”;89 and this, alongside of a privileges and immunities clause, was later embodied in his prototype amendment.90 But when challenged, Bingham hedged. Robert S. Hale said, “It is claimed that this constitutional amendment is aimed simply and purely toward the protection of ‘American citizens of African descent’ . . . I understand that to be the whole intended practical effect of the amendment.” Bingham replied, “It is due to the committee that I should say that it is proposed as well to protect the thousands . . . of loyal white citizens . . . whose property . . . has been wrested from them.” 91 He recurred, however, to a broader statement: “all persons, whether citizens or strangers . . . shall have equal protection . . . in the rights of life, liberty, and property.” Were the word “citizens” used, he stated, “aliens” who were protected by existing constitutional guarantees to “persons” would be excluded.92 On the other hand, his fellow Republicans—Hiram Price, Thomas T. Davis, Frederick E. Woodbridge, and Giles W. Hotchkiss—before and after he spoke, understood his amendment to apply to discrimination between “citizens.” 93

Bingham also described the final version of the Amendment in terms of the “privileges and immunities of all the citizens . . . and the inborn rights of every person.” 94 But once again his view apparently did not filter into the minds of his colleagues. The Amendment, as we have seen, was understood to constitutionalize the Civil Rights Bill, which, in the words of M. Russell Thayer, incorporated the Bill’s protection of the “fundamental rights of citizenship.” Ephraim R. Eckley approved it because it secured “life, liberty, and property to all the citizens.” 95 Senator Howard declared, “we desired to put . . . the rights of citizens and freedmen under the civil rights bill beyond the legislative power” of those who would “expose the freedmen again to the oppression of their old masters,” and Broomall also referred to the Amendment in terms of “citizens.” 96 These references suggest that the minds of most framers were concentrated on the protection of citizens, that they may not have appreciated that the word “persons” was carrying them further. Are so many statements to be viewed as reflecting agreement to use a shorthand version, or do they indicate that Congress did not really grasp that the Amendment applied both to citizens and noncitizens? Bingham never gave thought to the anomalies created by his coupling of the privileges or immunities of “citizens” with the protection of “persons,” the fact that he rendered the drive for Negro citizenship and the antecedent specification of the rights epitomized in the privileges or immunities clause superfluous.

Notwithstanding his inept midwifery, the object of the Amendment, whether viewed in the frame of “citizen” or of “person,” remains one and the same—the protection of the “fundamental rights” of “life, liberty, or property,” which first had been specified in the Civil Rights Bill and then embodied in the privileges or immunities clause.97 Due process is expressly tied to those rights; the derivation of the equal protection clause shows that it too was designed to shield the same rights against discriminatory laws. As John F. Farnsworth asked, how can a subject “have and enjoy equal rights of ‘life, liberty, and the pursuit of happiness’ without ‘equal protection of the laws’?” 98 Not only is there not the slightest intimation that “persons” were to enjoy broader rights than those that had been so carefully enumerated for “citizens,” but those self-same rights of “life, liberty, and property” were repeatedly associated with “persons.” One may conclude with tenBroek that “the ‘citizen and stranger’ are again on the same footing: ‘the inborn rights of every person’ and ‘the privileges and immunities of citizens’ are coupled together [by Bingham] and refer to the same rights.” 99 Whether the three clauses of §1 be viewed as a trinity, or whether the equal protection and due process clauses be separated from the privileges or immunities clause by virtue of the differentiation between “citizens” and “persons,” the practical effect is the same: protection for the fundamental rights of “life, liberty, and property.”

12

Section Five: “Congress Shall Enforce”

Section 5 of the Amendment provides that “The Congress shall have power to enforce by appropriate legislation the provisions of this article.” In 1879 the Court declared:

One might read this to mean that the courts are without authority to enforce the Fourteenth Amendment except as Congress empowers them to do so. Nevertheless, Justice Brennan stated in 1970, “we have consistently held that the Amendment grants power to the Court” and brushed the issue aside as “of academic interest only.” 2 It is a fact that the Court has exercised the power, but it has never grappled with the questions posed by the text of §5 and by the 1879 opinion. It is never “academic” to inquire into the constitutional authority for action by any branch of the government. Patently the Court does not derive its power from the text of §5. Whence is it derived? Why did the framers confer the power on Congress rather than the Court?

The preference for Congress over the courts, exhibited by the face of §5, is readily explicable: “Slavery was deeply entrenched in the courts.” 3Dred Scott had been so bitterly etched into abolitionist memory that Senator Sumner even sought to bar the customary memorial, placement of Chief Justice Taney’s bust in the Supreme Court Chamber, and insisted that his name should be “hooted down in the pages of history.” 4 Earlier the fugitive slave decision Prigg v. Pennsylvania5 had incensed the North, and such feelings were exacerbated on the very eve of the Civil War by Ableman v. Booth, where an order of the Supreme Court of Wisconsin setting aside a federal commitment of a fugitive slave was reversed.6 In consequence, Bingham, Stevens, “and others were among the severest critics of the Supreme Court and judicial review . . . [and] viewed it with a profound and ever growing mistrust.” 7 James F. Wilson of Iowa rejected “judicial pronouncements” on the “unity of this Republic.” 8 Not long after congressional approval of the Amendment, Samuel L. Warner, a Connecticut Republican, said he had “learned to place but little reliance upon the dogmas of [the] Court upon any question touching the rights of humanity.” 9

Such statements and sentiments might suggest that the framers intended the §5 grant of enforcement power to be exclusive, an inference apparently drawn by Judge Learned Hand: “Judicial encroachments upon legislative prerogatives in segregation decisions appeared to Hand to be directly contrary to the intent of the Fourteenth Amendment, which gives Congress power to enforce it through appropriate legislation.” 10 Hand could draw on the established canon that the express grant to Congress indicates an intention to withhold the enforcement power from the courts.11

It needs to be noticed that in 1866 the lower federal courts had no general jurisdiction of cases alleging a deprivation of rights secured by the Constitution. Although Article III confers jurisdiction of “cases arising under this Constitution,” it places creation of the “inferior courts” in the discretion of Congress. Consequently, the Supreme Court held, “Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies.” 12 General jurisdiction of such cases, involving so-called “federal questions,” was withheld by Congress from the lower courts until the 1870s.13 Two related factors also require preliminary notice: the existence of the “diversity” jurisdiction of controversies “between citizens of different states,” and of appeals to the Supreme Court from State court denials of rights claimed under the Constitution or laws of the United States.14 But, as the face of the Civil Rights Act discloses, the framers little trusted the State courts to enforce Negro rights;15 and to have insisted that an impoverished black should pursue his rights in the Supreme Court would have reduced judicial enforcement to an empty promise. The diversity jurisdiction of course was virtually useless to almost all blacks, for their oppressors normally would be residents of the same State.

The framers, however, had made express provision in the Civil Rights Act for federal court jurisdiction to enforce the Act. Section 3 gave (1) the district courts jurisdiction, exclusive of State courts, of all crimes and offenses against the Act; and (2) concurrent jurisdiction with the circuit courts of all causes, civil and criminal, affecting persons who are denied or cannot enforce rights secured by §1 in State courts; plus (3) rights of removal of criminal or civil actions against persons whose rights were secured by the Act.16 Nothing in the history of the Amendment suggests an intention to repeal this provision. Instead the question arises: did “incorporation” of the Act in the Amendment carry the enforcement provisions with it? It is unreasonable, however, to attribute to the framers an intention to freeze enforcement provisions—the §2 fine of $1,000, for example—into the Constitution. Such provisions are generally subject to change in the light of experience, and the need to preserve flexibility with respect to penalties counsels against such an interpretation. On established canons of construction an unreasonable interpretation is to be avoided. Then too, there is no reason to attribute to Congress an intention to surrender any part of its Article III control of the “inferior courts” 17 by a grant of untouchable jurisdiction in the Fourteenth Amendment, particularly at a time when Congress distrusted the courts. Such a surrender calls for more than references to “incorporation”; in an analogous situation the Court has required a specific provision for the change.18

In light of the jurisdiction conferred by §3 of the Act, why was there a need for express congressional “power to enforce”? For it is a puzzling fact that the “necessity” of the §5 authorization was stressed. That §5, said George F. Miller of Pennsylvania, “is requisite to enforce the foregoing sections . . . is not contested.” 19 Justice Brennan explained that by “including §5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause.” 20 That leaves the tautology to be accounted for. Prigg v. Pennsylvania,21 a cause célèbre, had decided with respect to the Fugitive Slave Act that Congress has implied power to protect a right derived from the Constitution. Of Prigg and the subsequent Ableman v. Booth,22 the abolitionists, we may be sure, were well aware. Practiced lawyers like Senator Reverdy Johnson, Thaddeus Stevens, Judge Robert S. Hale, and Judge William Lawrence would be familiar with those cases, and one hesitates without more to attribute to the framers an intention merely to confirm such judicial interpretations by express constitutional provision. The “necessity” is perhaps better explained by Laurent B. Frantz: Prigg and Ableman gave Congress implied power to protect constitutional rights from interference by private individuals, whereas Kentucky v. Dennison had denied “implied power to exercise any control over a state’s officers and agencies.” 23 Since Dennison held, and Bingham considered, that no branch of the government enjoyed such power over State officers,24 a grant of power to the judiciary arguably was equally “necessary.” No such grant was made in the Amendment. The 1866 congressional grant to the judiciary in the Civil Rights Act was by the Dennison test of dubious constitutionality; it could and can be supplemented by delegation from Congress under its §5 “power to enforce.” Derived from Congress, the judicial enforcement power can be withdrawn by it from the “inferior courts.”

The debates indicate that the framers meant Congress to play the leading role, that they regarded Congress “as the primary organ for the implementation of the guarantees of privileges and immunities, due process, and equal protection.” 25 It was “necessary,” said Senator Poland, that Congress “enforce the provision . . . and compel its observance.” 26 Stevens explained that the Amendment “allows Congress to correct the unjust legislation of the States”; and Charles Fairman observed that “Stevens’ thought ran to political rather than judicial action.” 27 Other framers also looked to Congress to undertake “corrective” action.28 The overtones of such expressions were amplified by Senator Howard: section 5

Some explanation is required why this “responsibility” to “carry out the principles” of the Amendment did not contemplate congressional rather than judicial initiatives. Why did Hotchkiss protest that §5 “proposes to leave it to the caprice of Congress” whether or not to enforce antidiscrimination,30 if it was assumed that the courts could act in the face of congressional inaction? At the outset Conkling stated that all questions “arising upon the construction” of the Amendment would go to the “appropriate forum . . . the forum would be Congress, and also, perhaps the courts.” 31 But §5 made no provision for enforcement by the courts.

Justice Douglas, apparently unaware of the implications of his statement for judicial review, stated that “the manner of enforcement involves discretion; but that discretion is largely entrusted to Congress, not to the courts.” 32 The face of §5 indicates that the “discretion” was entirely confided to Congress, and the debates confirm that the “responsibility” for enforcement was imposed upon Congress, thus confirming the maxim that a direction to act in one mode excludes another.33 Judge Learned Hand’s inference that the grant to Congress was exclusive is strengthened by the legislative history. So far as I could find that history affords no basis for reading into §5 the judicial power of enforcement it so plainly withheld. Minimally the legislative history indicates that where Congress has spoken, that policy ought to be respected.34

A reasoned argument for a judicial power of enforcement of the Fourteenth Amendment—apart from that derived from the grant in the Civil Rights Act of 1866, which Congress is free to withdraw—has yet to be made. Section 5, I would insist, raises questions which go to the heart of judicial enforcement of the Amendment, questions which the Court has never attempted to answer, which have been neglected by scholars, and to which they might well devote further study.

13

Incorporation of Abolitionist Theory in Section One

Enough has been set forth to raise considerable doubt about the Graham-tenBroek theory that §1 of the Fourteenth Amendment embodies the substantive due process-equal protection concepts forged by certain abolitionists in the antislavery crusade of the 1830s-1860s.1 The abolitionist theorists upon whom Graham and tenBroek relied by no means represented the mainstream of abolitionist theorizing; they were a “handful of relatively unimportant anti-slavery thinkers,” overshadowed by the William Lloyd Garrison-Wendell Phillips wing, for whom the natural law of Graham’s theologians held no charms.2 But the fact that a respected historian, Alfred Kelly, considered that Graham and tenBroek “have established quite conclusively that the Fourteenth Amendment both in general ideology and legal phrase was a product of pre-war antislavery theory” and that that view is also taken, albeit less emphatically, by Leonard Levy,3 calls for further elucidation.

At the outset, it will be recalled, Graham considered that Bingham may have used “due process” in its procedural sense. But on May 4, 1942—he has recorded the date exactly—through a providential “chance Law Library order” for a work by the abolitionist Theodore Weld, a shining new world opened up before him.4 What Graham found is best summed up in his own words:

This “inchoate” mass allegedly was incorporated in the Fourteenth Amendment largely through the instrumentality of Bingham, himself an imprecise thinker who exhibited little more understanding of the Bill of Rights than Graham credits the abolitionists with.6

The Graham-tenBroek theory was spread before the Supreme Court in Brown v. Board of Education, in a brief for which Kelly takes responsibility, and in which Graham collaborated.7 TenBroek plaintively comments that “it is little short of remarkable that the Chief Justice should have cut himself off from these historical origins and purposes, casually announcing, as he did, that ‘at best, they are inconclusive.’ ” 8 It is more than a little remarkable, it is astounding! Here was a Court that had invited briefs on the “original understanding”;9 doubtless it would have rejoiced to base its decision thereon, yet it preferred “political and judicial ethics, social psychology,” to their abolitionist history.10 Such renunciation by a Court eager to believe suggests a large doubt about the soundness of that history.

Let us begin with Bingham, author of §1 and alleged conduit of abolitionist theology.11 He inflicted a gaping wound on the conduit theory when he stated, in reply to Rogers, that “the courts have settled [the meaning of due process] long ago.” 12 Graham himself wrote that due process “at this time, with a few striking [but uninfluential] exceptions [was] merely a limitation upon procedure.” 13 To attribute to Bingham an intention to embody substantive due process in §1, in the face of this statement, it is necessary to charge him with a purpose to conceal his real intention; for if he harbored such an intention, he never revealed it to the 39th Congress. What boots it that Bingham stated in the House, in January 1857, that “absolute equality of all” is a “principle of our Constitution” 14 when he took a firm stand against Negro suffrage in 1866? What matters it that his Ohio district “had been thoroughly abolitionized by the antislavery evangelists in 1835–1837”;15 when Ohio remained a hotbed of Negrophobia; when its Senator Sherman could say in the Senate in 1867, “we do not like Negroes. We do not conceal our dislike”;16 when the Radical George W. Julian of neighboring Indiana could tell the House in 1866, “the real trouble is that we hate the negro ”?17 What matters it that “antislavery idealists were backing judicial assault upon segregated schools” when not long before the Civil War they were rebuffed by the Supreme Courts of Massachusetts and Ohio;18 when Bingham could acknowledge in the 39th Congress that the Ohio Constitution excluded Negroes from voting;19 when fellow Republican Columbus Delano shrank from the idea of allowing Negroes to serve as jurors;20 when “many” Northern newspapers, among them the Cincinnati Commercial, were opposed to “equality with the Negroes”?21

Bingham’s early moral fervor had been diluted by political realities. David Donald states that he “was fully aware that his Ohio district could easily go Democratic, since his own average vote in the elections from 1862 through 1870 was only 50.6 per cent of the total. Bitterly he protested against Radical proposals for ‘universal suffrage,’ ” 22 as is exemplified by his barbed dialogue with Boutwell over the admission of Tennessee sans Negro suffrage.23 His political instinct did not betray him, for in the April 1867 elections “Ohio overwhelmed a negro suffrage amendment by 40,000.” 24 Bingham’s change of heart illustrates Russell Nye’s pithy summation: after 1865 the “Negro was no longer a problem in morality, but a problem in politics.” 25 The “chief trouble no doubt,” said Senator Sherman, after the 1867 defeat of the Republican forces in Ohio, is the Negro “suffrage question . . . it will be a burden in every election.” 26 To attribute to this selfsame Ohio an intention to embody in §1 through the medium of Bingham’s “vague” phraseology the very suffrage it resoundingly rejected borders on the absurd.

Abolitionist evangelism led Graham and tenBroek to overlook the deep-seated Northern Negrophobia and the fact, noted by C. Vann Woodward, that during the war years “the great majority of citizens in the north still abhorred any association with abolitionists” 27 —hardly fertile soil for the sowing of abolitionist ideology. Senators Fessenden and Grimes, leading Republicans, held “the extreme radicals” in “abhorrence.” 28 Senator Cowan, a Pennsylvania conservative Republican, ridiculed the notion that the “antipathy that never sleeps, that never dies, that is inborn, down at the very foundation of our natures,” is “to be swept away by half a dozen debates and the reading of half a dozen reports from certain abolitionist societies.” He bitterly excoriated the Anti-Slavery Society.29 To the Moderate leaders the radical leadership was a heavy cross. Many Republicans, reports his biographer, “hated” Stevens. In the Joint Committee, “his own measures were more voted against than voted for.” 30 Senator Stewart referred to his “destructive sentiments.” 31 Fessenden gleefully reported a tongue-lashing he gave Sumner on the Senate floor, whom he considered “by far the greatest fool of the lot.” 32 Consider Senator Trumbull’s scathing comment in 1870: “it has been over the idiosyncracies, over the unreasonable propositions, over the impractical measures of . . . [Sumner] that freedom has been proclaimed and established.” 33 “More and more Senators came to distrust,” David Donald tells us, “when they did not detest him.” 34 Stevens excoriated Sumner for halting the Amendment because it did not give Negroes the vote.35 Between such men there could be no secret protocols that “vague and amorphous” phrases would leave room for what had been rejected.36

The Graham-tenBroek theory requires us to believe that a Negrophobic, anti-abolitionist North was ready to embrace the abolitionist program or that the radicals were in a position to dictate the form of the legislation. Indeed, Kelly stated categorically that after the Civil War “a group of old antislavery enthusiasts [were] in a position to control the Thirty-Ninth Congress and to write their radical reformism into the Constitution itself.” 37 That is at a long remove from the facts. Among the first to discern that underlying political realities called on most Northern Republicans, except for a few Radicals with secure constituencies, to pursue a Moderate course was David Donald: “Moderates had to check extreme Radical proposals or be defeated in the districts they represented”; the “thirty-two Republicans . . . who formed the Moderate faction” were “constantly aware of the need to conciliate the Democrats among their constituents; they were loath to consider imposing . . . Negro suffrage . . . upon the South.” 38 Such a one, we have seen, was Bingham. In a recent attempt at more refined “scale” analysis, Michael L. Benedict has classified the Republicans as Conservatives, Moderates (Centrists), and radicals (with a small r). The radicals, he concluded, “did not dominate Congress during the Reconstruction era. More Republican Senators (scaled) consistently conservative than radical”; in the House “consistent nonradicals (Conservatives and Centrists) still outnumbered radicals.” 39 One has only to recall that Charles Sumner was not made a member of the Joint Committee and all but excluded from party councils, virtually ostracized,40 that Stevens regretfully accepted legislation which confessedly fell short of his goals, that Negro suffrage was rejected over Sumner’s plea that it was the “Central Guarantee,” to realize that Benedict speaks truly. The converse of the fact that the “radicals did not dominate” is that the Conservative-Moderate coalition did.41 In the Senate a handful of radicals opposed the Fourteenth Amendment, evidence that it did not give effect to their wishes.42 The New York Herald remarked that the Amendment “is not the platform of Thaddeus Stevens, Sumner, or any of the noisy radicals in Congress. They can do nothing. It was adopted against all their remonstrances and in spite of their threats.” 43 Senator Sherman told a Cincinnati audience in September 1866, while the Amendment was being submitted for ratification, “They talk about radicals; why we defeated every radical proposition in it.” 44 Upon the basis of his own studies, Benedict concluded that “the nonradicals had enacted their program with the sullen acquiescence of some radicals and over the opposition of many.” 45 What sustenance does this offer for the embodiment of abolitionist ideology in the Fourteenth Amendment?

To Alfred Kelly, “The debates on the passage of the Amendment reveal clearly enough how completely the constitutional ideology of the pre-war antislavery movement shaped the objectives of the Radical Republicans.” 46 To my mind, the debates show that—apart from a handful of extremist radicals and the Democratic opposition, which at every turn sought to besmirch the Republicans with advocacy of all-embracing Negro equality—the Moderate-Conservative coalition steadily adhered to limited objectives: protection of the “person and property” of the Negro against violence and oppression. The means of this protection were carefully specified in the Civil Rights Bill and Congress was repeatedly told that so-called political rights like suffrage, mixed schools, and jury participation were outside the coverage of the Bill. Again and again Congress was told that the Amendment was designed to embody the Civil Rights Act.

A number of questions call for answers by the neoabolitionists. Negro suffrage manifestly was excluded both from the Act and the Amendment. What does this exclusion of Sumner’s “Central Guarantee” do to the Graham-tenBroek theory? Why did the Republican majority leave open the door to more abrasive privileges, for example, mixed schools, when they so plainly barred it to suffrage? Why did Chairman Fessenden point out that “existing prejudices” foreclosed “an entire exclusion of all class distinctions” 47 in the Civil Rights Bill, then abruptly embrace that very exclusion in the neoabolitionist version of §1? What caused the Republican majority, who had so firmly pushed through the restricted Civil Rights Bill, suddenly to abandon it in favor of an unrestricted Amendment? Why did “radical control” of the 39th Congress fail in the former and prevail in the latter? Why did Bingham, who objected to “civil rights” as “oppressive” and an encroachment on States’ Rights lend himself to abolitionist ideology in drafting §1? It cannot be attributed to a sudden change in the climate of opinion, because Senator Wilson, the Massachusetts Radical, stated in the Senate in January 1869: “There is not today a square mile in the United States where the advocacy of the equal rights and privileges of those colored men has not been in the past and is not now unpopular.” 48

A word about the allegedly “vague and amorphous” nature of the terms used in §1, and Kelly’s summation:

It would be more accurate to say, as Bingham in fact indicated in submitting the Amendment, that two of the clauses— “due process” and “privileges or immunities” —were drawn from the Constitution,50 and under established canons of construction they were to be given their accepted meaning. Bingham himself stated that “due process” was used in its customary decisional, that is, procedural, sense. The meaning of “privileges and immunities” had been drawn to the attention of the framers by Chairman Trumbull, who showed that it paralleled—with the careful exclusion of suffrage—the gloss put upon it by the cases. These meanings are hardly to be overcome by an “inchoate” meaning favored by some abolitionists and which was never explained to the framers. There is also the fact, as Kelly notes, that §1 was presented as “intended merely to constitutionalize the Civil Rights Act.” It does not dispose of these representations to say that they were made for strategic political reasons;51 in the securities field such representations would be branded as deceptive and misleading.

Remains “equal protection of the laws.” The central preoccupation of the framers was the oppression of Negroes under Black Codes and similar discriminatory laws. “Equal protection of the laws” perfectly expressed their purpose to halt such discrimination; and the “laws” were such as gave rise to the evils the framers meant to prevent. They did not mean to prevent exclusion from suffrage, segregated schools, or miscegenation laws. For this there is evidence in the debates on the Civil Rights Bill. Where is the evidence of a change of purpose? In the case of suffrage, the intention to leave State control of suffrage untouched is plain. It will not do in the face of such facts to infer a “clear intent . . . to go beyond the restrictive enumeration of the Civil Rights Act.”

In justice to Kelly, it should be noted that a decade after publication of his article on the Fourteenth Amendment, and under the impact of an “extraordinary revolution in the historiography of Civil War Reconstruction,” he tacitly abandoned his earlier analysis.52 Now he adverted to

Even less than integration in the South were whites prepared for reconstruction of their institutions to accommodate total Negro integration in the North. It needed no revolution in historiography to learn that the framers were strongly attached to State sovereignty, that they had “a very limited” program in mind, as was heavily stressed during the debates on the Civil Rights Bill. Fessenden made that plain when he stated that “existing prejudices” barred “an entire exclusion of all class distinctions.” 54 A lawyer not committed to the revisionist or any other school, and who holds no brief for “lawyer’s history,” may be permitted to say that all that was needed was some familiarity with established rules for the interpretation of legislative history, among them to discount heavily oppositionist obstructionism, to read the terms “natural rights” and “fundamental rights” as they had been understood from Blackstone through Kent, as they, so explained Trumbull, were embodied in the Civil Rights Bill, to indulge in something like a presumption that the powers reserved to the States are not diminished by a subsequent amendment in the absence of a clear intention to do so. And above all, to substitute undiluted realism in the appraisal of what happened in 1866 for twentieth-century idealistic fervor, which all too often leads to wishful thinking.55

Against this background it is now possible to measure Chief Justice Warren’s statement in Brown v. Board of Education that the historical evidence is “inconclusive”:56

This sets up an irrelevant antithesis—between the Democrats and “the most avid proponents,” the extremist radicals—neither of whom really influenced the outcome. In fact, Democrats often voted with a leading extremist, Sumner, in order “to kill moderate reconstruction proposals.” 58 What “others,” the decisive Conservative-Moderate coalition, “had in mind” can be determined with considerable “certainty.” Chairman Wilson, for example, stated that the terms “civil rights and immunities” in the Civil Rights Bill did not mean that all “children shall attend the same schools,” and the evidence demonstrates that he spoke for the framers.59 On the score of Negro suffrage, the proof that it was deliberately left to the States is indeed “overwhelming.” Warren’s summation, therefore, hardly does justice to the facts; but it was merely window-dressing for the rationale of his opinion:

Stated baldly, what the framers meant by the words they employed is not binding on the Court; the Court lays claim to power to revise the Constitution to meet present needs. A celebrant of the Warren Court, Paul Murphy, commented that Brown disclosed Chief Justice Warren’s “unabashed and primary commitment to justice and his willingness to shape the law to achieve it.” 61 He did not merely “shape” the law, he upended it; he revised the Fourteenth Amendment to mean exactly the opposite of what its framers designed it to mean, namely, to leave suffrage and segregation beyond federal control, to leave it with the States, where control over internal, domestic matters resided from the beginning.

Supplementary Note on Abolitionist Influence

[*]T. H. Huxley, Man’s Place in Nature (1863), quoted in Homer W. Smith, Man and His Gods 372 (1953).

[1.]Reynolds v. Sims, 377 U.S. 533, 591 (1964).

[2.]Felix Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev. 217, 229 (1955).

[3.]For example, Anthony Lewis hailed the Warren Court as the “keeper of the national conscience,” in “Historical Change in the Supreme Court,” The New York Times Magazine, June 17, 1962, at 7, reprinted in Supreme Court Under Earl Warren 73, 79, 81 (L. Levy ed. 1972). See also A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 686, 689 (1960).

[4.]Chief Justice Marshall stated in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.” “The theory of our governments,” said Justice Samuel Miller, “is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.” Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 663 (1874). “ [W]ritten constitutions,” and Justice Stanley Matthews, “were limitations upon all the powers of government, legislative as well as executive and judicial.” Hurtado v. California, 110 U.S. 516, 531–532 (1884).

[5.]In The Constitution of the United States (1922), Beck compared “the work of the Supreme Court to that of a ‘continuous constitutional convention’ which adapts the original charter by reinterpretation.” Quoted in Leonard W. Levy, Judgments: Essays in American Constitutional History 18 (1972). In his recent critique of the “Nixon Court,” Levy states that the “Court is and must be for all practical purposes a ‘continuous constitutional convention’ in the sense that it must keep updating the original charter by reinterpretation.” L. Levy, Against the Law 29, 30 (1974). “Adaptation” and “reinterpretation” are euphemisms for “revision” or “rewriting” the Constitution, the function of a constitutional convention, not the Court. See Louis Lusky, By What Right? 21 (1975); Louis Henkin, “Some Reflections on Current Constitutional Controversies,” 109 U. Pa. L. Rev. 637, 658–659 (1961).

Solicitor General Robert H. Jackson, later a Justice of the Court, did not share Beck’s enthusiasm; the pre-1937 Court, he said, “sat almost as a continuous constitutional convention which, without submitting its proposals to any ratification or rejection, could amend the basic law.” R. Jackson, The Struggle for Judicial Supremacy x-xi (1941). Ward Elliott reports that Anthony Lewis (who was a leader in the drive that led to the “reapportionment” decision) asked Solicitor General Archibald Cox (who had filed a brief amicus for reapportionment in Reynolds v. Sims, supra note 1) when the Court announced its decision, “ ‘How does it feel like to be present at the second American Constitutional Convention?’ Cox retained enough of his old perspective to answer, ‘It feels awful.’ ” Ward Elliott, The Rise of a Guardian Democracy 370 (1974). See infra Chapter 5 note 1.

[6.]See infra Chapter 16 at notes 20–28.

[7.]9 James Madison, The Writings of James Madison 191 (G. Hunt ed. 1900–1910).

[8.]Joseph H. Choate comprehended that he could rely on the Court to react to the red flag of communism which he waved in Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, 532 (1895). Justice Stephen Field responded in a concurring opinion: “The present assault upon capital is but the beginning. It will be but the stepping stone to others, larger and more sweeping, till our own political contests will become a war of the poor against the rich.” Id. 607. On rehearing, Justice Henry B. Brown dissented, saying, “the decision involves nothing less than a surrender of the taxing power to the moneyed class . . . Even the spectre of socialism is conjured up.” 158 U.S. 601, 695 (1895). In 1893 Justice David J. Brewer referred to “ ‘the black flag of anarchism, flaunting destruction to property,’ and ‘the red flag of socialism, inviting a redistribution of property.’ ” XVI Proceedings of the N.Y. State Bar Association 37, 47 (1893), quoted in A. T. Mason, “Myth and Reality in Supreme Court Drama,” 48 Va. L. Rev. 1385, 1393 (1962). Such citations can be multiplied.

Justice Black reminded the Court of “the extent to which the evanescent standards of the majority’s philosophy have been used to nullify state legislative programs passed to suppress evil economic practices.” Rochin v. California, 342 U.S. 165, 177 (1952), concurring opinion.

[9.]Oliver Wendell Holmes, Jr., Collected Legal Papers 184 (1920).

[10.]Herbert Packer, “The Aim of the Criminal Law Revisited: A Plea for a New Look at ‘Substantive Due Process,’ ” 44 S. Cal. L. Rev. 490 (1971). See infra Chapter 14 at notes 64, 77–78.

[11.]See infra Chapter 14 at notes 80–90; and see Robert G. McCloskey, “Due Process and the Supreme Court: An Exhumation and Reburial,” 1962 S. Ct. Rev. 34, 44–45. Although McCloskey was very sympathetic to the Warren Court’s goals, he concluded that the distinction does not stand up. Id. at 51. Chief Justice Stone, wrote Learned Hand, “could not understand how . . . when concerned with interests other than property, the courts should have a wider latitude for enforcing their own predilections than when they were concerned with property itself.” Learned Hand, “Chief Justice Stone’s Conception of the Judicial Function,” 46 Colum. L. Rev. 696, 698 (1946).

[12.]One reads with horror of the Negro lynchings and torture that found their way into the courts as late as 1938. Paul Murphy, The Constitution in Crisis Times, 1918–1969 95, 123 (1972).

[13.]Raoul Berger, “Constructive Contempt: A Post Mortem,” 9 U. Chi. L. Rev. 602, 604–605, 642 (1942).

[14.]For a withering condemnation of the Court’s antidemocritarian course before 1937, see Henry Steele Commager, “Judicial Review and Democracy,” 19 Va. Quarterly Rev. 417 (1943).

[15.]W. R. Brock, Eric L. McKitrick, C. Vann Woodward, David Donald, Harold M. Hyman, Michael L. Benedict. Their works are listed in the bibliography.

[16.]Alfred H. Kelly, “Comment on Harold M. Hyman’s Paper” in New Frontiers of the American Reconstruction 40 (Harold M. Hyman ed. 1966).

[17.]C. Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stan. L. Rev. 5 (1949); Alexander Bickel, “The Original Understanding and the Segregation Decision,” 69 Harv. L. Rev. 1 (1955).

[18.]See Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 132, 134–135; A. H. Kelly, “The Fourteenth Amendment Reconsidered: The Segregation Question,” 54 Mich. L. Rev. 1049, 1081 (1956); Howard J. Graham, Everyman’s Constitution 314 (1968); William W. Van Alstyne, “The Fourteenth Amendment, The ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” 1965 S. Ct. Rev. 33; Robert J. Harris, The Quest for Equality 55–56 (1960).

[19.]The leading article, D. O. McGovney, “Privileges and Immunities Clause, Fourteenth Amendment,” 4 Iowa L. Bull. 219 (1918) states (at 222 note 2), “this essay . . . might have been entitled the Rule of the Slaughter-House Cases.”

[20.]In Justice Holmes’ words, a “party’s conduct” may “consist in uttering certain words.” Oliver Wendell Holmes, Jr., The Common Law 132 (1923).

[21.]“A Better Theory of Legal Interpretation,” 3 Vand. L. Rev. 407, 409 (1950).

[22.]H. M. Hart and A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1266 (1958). Justice Frankfurter stated, “It has never been questioned in this Court that Committee reports, as well as statements by those in charge of a bill or of a report, are authoritative elucidations of the scope of a measure.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 399–400 (1951), dissenting opinion. See also Lusky 45.

[23.]Oregon v. Mitchell, 400 U.S. 112, 200 (1970), dissenting opinion. Van Alstyne, who is critical of Justice Harlan’s view in Reynolds v. Sims (supra note 1), states: “in none of the other kinds of cases where it was brought to bear did it [the historical record] cast the kind of blinding light that Mr. Justice Harlan sees here.” Van Alstyne 36.

[24.]“A thing may be within the letter of a statute and not within its meaning, and within its meaning though not within its letter. The intention of the lawmaker is the law.” Hawaii v. Mankichi, 190 U.S. 197, 212 (1903); United States v. Freeman, 44 U.S. (3 How.) 556, 565 (1845); United States v. Babbitt, 66 U.S. 55, 61 (1861); Matthew Bacon, A New Abridgment of the Laws of England, “Statutes” 1 (5) (7th ed. 1832); infra Chapter 9 note 22.

[25.]“Parliament and Great Councils in Medieval England,” 77 L. Q. Rev. 213, 224 (1961). Miller and Howell label it an “historicist fallacy” to “appraise a former historical era by the criteria of values that have become important since.” Supra note 3 at 673.

[26.]Ware v. Hylton, 3 U.S. (3 Dall.) 199, 267 (1796). In “the construction of the language of the Constitution . . . as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.” Ex parte Bain, 121 U.S. 1, 12 (1887).

[27.]It is unsatisfying to have the fastidiously detailed study of Fairman dismissed with the phrase that it is “in the opinion of this writer against the weight of the evidence.” Kelly, Fourteenth 1081 note 106. As will develop, Kelly was altogether wrong.

[28.]Sir Herbert Butterfield, George III and the Historians 225 (1969).

[29.]See Bickel; Joseph B. James, The Framing of the Fourteenth Amendment (1956); and Horace Flack, The Adoption of the Fourteenth Amendment (1908). Walter Bagehot considered that “history should be like a Rembrandt etching, casting a vivid light on important causes and leaving all the rest unseen, in shadow.” Quoted in Van Wyck Brooks, Days of the Phoenix 135 (1957).

[30.]Graham; Jacobus tenBroek, Equal Under Law (1965). For discussion of the Graham-tenBroek neoabolitionist theory, see infra Chapter 13.

[31.]4 Arnold Hauser, The Social History of Art 76 (Vintage Books, undated). Hauser states that Flaubert’s view was shared by the Goncourts, Maupassant, Gide, Valéry, and others. “To get at the truth of our system of morality (and equally of the law),” said Holmes, “it is useful to omit the emotion and ask ourselves [how far] those generalizations . . . are confirmed by fact accurately ascertained.” Oliver Wendell Holmes, Jr., Collected Legal Papers 306 (1920).

[32.]The Burden of Southern History 87 (1960).

[33.]David Donald, Charles Sumner and the Coming of the Civil War 29 (1960).

[34.]“ [W]e can scarcely acknowledge the common features of mankind in this child of debasement whom slavery has brought among us. His physiognomy to our eyes is hideous, his understanding weak, his tastes low; and we are almost inclined to look upon him as a being intermediate between man and the brutes.” 1 Alexis de Tocqueville, Democracy in America 363 (1900). In the 39th Congress, Robert Hale of New York stated that the District of Columbia “contains a black population which, undoubtedly, approaches to the very extreme of ignorance and degradation . . . a population that has come into this District suddenly, just freed from slavery, with all the marks and burdens upon them that a state of slavery necessarily fixes upon its victims.” Cong. Globe, 39th Cong. 1st Sess. 280 (1865–1866), hereinafter cited as Globe. In citations to the Globe, Senators will be identified as such; all others are representatives.

Even one sympathetic to the Negro cause, Senator Henry Wilson of Massachusetts, was constrained to hope in 1864 that “the school house will rise to enlighten the darkened intellect of a race imbruted by long years of enforced ignorance.” Quoted in tenBroek, 164.

[35.]Tocqueville, supra note 34 at 365, 364.

[35a.]“ [T]he abolitionists were regarded throughout most Northern circles as disagreeable and intemperate radicals and were heckled, harrowed, assaulted and even killed by Northern mobs.” Dan Lacy, The White Use of Blacks in America 54 (1972).

[36.]Woodward, supra note 32 at 81. “In virtually every phase of existence Negroes found themselves systematically separated from whites [in the North, 1860] . . . in most places he encountered severe limitations to the protection of his life, liberty, and property.” Leon Litwack, North of Slavery: The Negro in the Free States 91–97 (1961), quoted in C. Vann Woodward, “Seeds of Failure in Radical Race Policy” in Hyman supra note 16 at 126.

[37.]Woodward, “Seeds,” supra note 36 at 127, 128, 131, 132. Senator Thomas A. Hendricks of Indiana stated, “The policy of the State has been to discourage their immigration . . . to protect white labor. The presence of negroes in large numbers tends to degrade and cheapen labor, and the people have been unwilling that the white laborer shall be compelled to compete for employment with the Negro.” Globe 2939. The Freedmen’s Bureau and Civil Rights Acts “were intended not only to protect the freedmen but also to secure a contented black labor force who . . . stayed in the South.” Morton Keller, Affairs of State 65, 143 (1977).

[38.]Woodward, supra note 32 at 82, 83. Senator James R. Doolittle of Wisconsin reported that “four out of five” Wisconsin soldiers “voted against Negro suffrage.” Globe 2165.

[39.]Donald, Sumner II 156–157. An Illinois Radical, John F. Farnsworth, said,“ ‘Negro equality’ is the everlasting skeleton which frightens some people.” Globe 204. William E. Niblack of Indiana reminded the Congress that in 1851 Indiana ratified a Constitution that excluded Negroes from the State by a vote of 109,976 to 21,084. Globe 3212.

“A belief in racial equality,” said W. R. Brock, “was an abolitionist invention”; “to the majority of men in the midnineteenth century it seemed to be condemned both by experience and by science.” “Even abolitionists,” he states, “were anxious to disclaim any intention of forcing social contacts between the races.” Brock, An American Crisis: Congress and Reconstruction 285, 286 (1963). See infra, Derrick Bell, Chapter 10 at note 6. Racism, Phillip Paludan states, was “as pervasive during Reconstruction as after. Americans clung firmly to a belief in the basic inferiority of the Negro race, a belief supported by the preponderance of nineteenth-century scientific evidence.” Phillip S. Paludan, A Covenant with Death 54 (1975). See also Keller, supra note 37. Many Republican newspapers in the North opposed “equality with the Negroes.” Flack 41. See also Keller, id. 51, 58, 65.

[40.]Globe 257, 739, 911, 2799, 2948.

[41.]John W. Chanler of New York, Globe 48, 218; Senator James W. Nesmith of Oregon, id. 291; Aaron Harding of Kentucky, id. 448; Senator Hendricks of Indiana, id. 880; Senator Garrett Davis of Kentucky, id. 246–250. The sympathetic reformer, Senator William M. Stewart of Nevada, stated, the “white man’s government . . . should not be scoffed at; that it was a prejudice in the country that no man has a right to disregard.” Id. 1437.

[42.]Id. 935.

[43.]Butterfield, supra note 28 at 226; cf. Stewart, supra note 41.

[44.]For Indiana see supra note 39; for Oregon see Fairman, Stanford 32 note 58.

[45.]See Van Alstyne’s summary, infra Chapter 4 at note 16.

[46.]See infra Chapter 7 at note 41. As late as 1859 the Ohio Court rejected an attack on segregated schools. Van Camp v. Board of Education, 9 Ohio 407.

[47.]For additional details see infra Chapter 13.

[48.]Donald, Sumner II 232–233; see also id. 158.

[49.]Woodward, supra note 32 at 79; see infra Chapter 10 at note 6.

[50.]David Donald, The Politics of Reconstruction 12–13, 61–62 (1965).

[51.]Speaking on June 4, 1866, James Wilson of Iowa said, “I know that many look forward to the fall elections and shiver in the presence of impartial suffrage.” Globe 2948.

[52.]Donald, Sumner II 158.

[53.]Thaddeus Stevens: Scourge of the South 287 (1959).

[54.]See James 71.

[55.]Globe 74; Samuel E. Morison, The Oxford History of the American People 714 (1965). Senator John Sherman of Ohio said, “never by my consent shall these rebels gain by this war increased political power, and come back here to wield that political power.” Globe 745. “I would no more admit the rebels to control these States,” said Senator Daniel Clark of New Hampshire, “than I would sail a ship with the mutinous part of a crew, and confine those who were faithful to the captain in the hold or put them in irons.” Id. 835.

[56.]“Comment on C. V. Woodward’s Paper,” in Hyman, supra note 16 at 148, 151.

[57.]The governing rule was laid down by Chief Justice Marshall: “an opinion which is . . . to establish a principle never before recognized, should be expressed in plain and explicit terms.” United States v. Burr, 25 F. Cas. (No. 14,693) 55, 165 (C.C. Va. 1807). Long before it was stated, “statutes are not presumed to make any alteration in the com mon law, farther or otherwise than the act expressly declares: therefore in all generalmatters the law presumes the act did not intend to make any alteration; for if the parliament had had that design they would have expressed it in the act.” Bacon’s Abridgment, supra note 24, “Statutes” I (4). An analogous rule was applied to the Constitution in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 78 (1872).

Such views were given striking reaffirmation in Pierson v. Ray, 386 U.S. 547, 554–555 (1967). After adverting to the common law immunity of judges from suits for acts performed in their official capacity, the Court stated, “We do not believe that this settled principle was abolished by §1983, which makes liable ‘every person’ who under color of law deprives another person of his civil rights . . . The immunity of judges [is] well established and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” Thus the all-inclusive “every person” was curtailed because of an existing common law immunity; the express reservation of power to the States by the Tenth Amendment demands an even more exacting standard.

[58.]The Legitimacy of the Business Corporation in the Law of the United States 140 (1970).

[59.]Baldwin v. Missouri, 281 U.S. 586, 595 (1930), dissenting opinion.

[60.]The Supreme Court: Law and Discretion 16 (1967).

[61.]Globe 675.

[1.]Act of April 9, 1866, ch. 21, 14 Stat. 27.

[2.]Edward S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” 42 Harv. L. Rev. 149, 365, 383 (1928).

[3.]1 William Blackstone, Commentaries on the Laws of England 129, 134, 138 (1765–1769). These “rights” were read to the House by James F. Wilson, chairman of the House Judiciary Committee, in his exposition of the Civil Rights Bill. Globe 1118.

[4.]Documents of American History 83 (Henry Steele Commager ed. 7th ed. 1963).

[5.]1 James Kent, Commentaries on American Law 607 (9th ed. 1853): “The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to enjoy and acquire property.” This too was quoted by Wilson, supra note 3.

[6.]6 F. Cas. (No. 3230) 546 (C.C.E.D. Pa. 1823); the full quotation is set forth infra at notes 41–43.

[7.]TenBroek, 108, 110.

[8.]Globe 474–475, 1118, 2765.

[9.]Id. 1034.

[10.]Fairman, Stanford 44. It “was in these debates,” said Alfred Kelly, that “the Radical [?] ideas as to how far federal guarantees of civil rights as against state action might properly extend, both by legislation and by constitutional amendment, were first clearly set down. The debates on the Civil Rights Act are also important . . . because the Civil Rights Act bore an extremely close relationship to the passage of the Fourteenth Amendment itself.” Kelly, Fourteenth 1057.

[11.]Globe 2883.

[12.]Stevens, id. 2459; Kelly, Fourteenth 1071. Bingham strongly doubted the “power of Congress to pass” the Civil Rights Bill and insisted upon proceeding by amendment, id. 1291–1292; his doubts were shared by Henry J. Raymond, id. 2502, presumably, as Senator Henderson explained, because the Thirteenth Amendment went no further than to free the slaves, Appendix to Globe 122 (hereinafter Globe App.). John M. Broomall of Pennsylvania, Thomas D. Eliot of Massachusetts, and Senator James R. Doolittle of Wisconsin also thought it designed to remove constitutional doubts, id. 2498, 2511, 2896. Others like Stevens, James A. Garfield and Rufus P. Spalding of Ohio, and Senator Howard wanted to make the Act secure against repeal by a successor Congress, id. 2459, 2462, 2509, 2896. See also Henry Van Aernam of New York, id. 3069, Thayer, id. 2465. See also infra Chapter 6 at notes 18–19. For additional citations, see tenBroek 244 note 11.

[13.]Graham 291 note 73; Bickel 47; tenBroek 201, 203, 224; Benjamin Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 350 (1914). Flack, a devotee of a broad construction of the Fourteenth Amendment, states, “nearly all said that it was butan incorporation of the Civil Rights Bill . . . there was no controversy as to its purpose and meaning.” Flack 81, id. 54, 79.

[14.]Section 1 of the Bill is set out in Globe 474 (emphasis added); see also supra note 1. It was anticipated by the Missouri Constitution of 1865: “no person can, on account of color, be disqualified as a witness, or be disabled to contract otherwise than as others are disabled, or be prevented from acquiring . . . property, or be liable to any other punishment for any offense than that imposed upon others for a like offense . . . or be subjected in law, to any other restraints or qualifications in regard to any personal rights other than such as are laid upon others under like circumstances.” 2 Ben P. Poore, Federal and State Constitutions, Colonial Charters 1136 (1877).

“The master class looked upon any offense as more reprehensible (and therefore subject to more severe penalties) when committed by a slave than when committed by a white man.” Kenneth M. Stampp, The Peculiar Institution 124 (Vintage Books, 1956).

[15.]Globe 42. In a letter to Sumner in 1865, Justin Morrill, soon to be Senator, doubtful whether his suggested words “civil rights, immunities, privileges [have] such a precise and definite meaning as to be practicable,” asked “must we specify, rights . . . to hold property, be a party and witness.” James 30.

A significant shift from the phraseology of the predecessor Freedmen’s Bureau Bill was made in the Civil Rights Bill; the former referred to “civil rights or immunities . . . including the right to make and enforce contracts,” etc., Bickel 8 (emphasis added); but the Civil Rights Bill phrase “no discrimination in civil rights” was deleted (see infra Chapter 7 at notes 11–15), leaving the provision that blacks should “have the same right to make and enforce contracts,” etc., a specific and exclusive enumeration. See infra at notes 15–17.

[16.]Globe 1833 (emphasis added). Senator Sherman said the Bill “defines what are the incidents of freedom.” Id. 744. A leading Republican, Samuel Shellabarger of Ohio, explained that “those rights to contract, sue,” etc., are “necessary . . . [for] the protection of the rights of person and property of a citizen.” Id. 1293.

[17.]Id. 1151; fully quoted infra note 39.

[18.]For citations to collections of the Codes, see Bickel 14 note 35.

[19.]Globe 603. The Codes, Wilson said, “Practically made slaves of men we have declared to be free.” Id. 39. They “set up elaborate systems of bound apprenticeship, labor restrictions, vagrancy laws, limits on property ownership and craft employment. They prescribed white supervision over almost every aspect of black lives . . . The bald declaration of Edmund Rhett of South Carolina— ‘the general interest both of the white man and of the negroes requires that he should be kept as near to the condition of slavery as possible’ . . . —sums up the purpose of the Black Codes.” Morton Keller, Affairs of State 203–204 (1977).

[20.]Globe 474.

[21.]Senator Sumner, id. 95; Senator Timothy Howe of Wisconsin, id. 443; Ignatius Donnelly, id. 588; Senator Daniel Clark, id. 833; Burton C. Cook, id. 1124; William Higby, id. 2882. See the Opelusa Ordinance, id. 516–517. Senator Clark stated, the Master “will allow him no home, that he may become a vagrant. Becoming a vagrant, he will arrest him as a vagabond, and visit him with imprisonment and stripes . . . He will shut him off from the courts, seal his mouth as a witness.” Globe 834. Cook stated, “Vagrantlaws have been passed: laws which under the pretense of selling these men as vagrants, are calculated and intended to reduce them to slavery again.” Globe 1123.

[22.]Senator Wilson, id. 603; Cook, id. 1123; James Wilson, “barbaric and inhuman,” id. 1118.

[23.]Id. 631, 1159, 2773, 833. Whether the effects of the Black Codes were exaggerated or not is not nearly as important as the aversion to them; it “is incorporated by reference into congressional statements of objectives; it plays a large part in defining those objectives, regardless of the extent to which it was founded on reality and regardless of the motives which underlay its creation.” Bickel 14.

[24.]Globe 3034.

[25.]Id. 3172, 3174.

[26.]Id. 1117. Wilson quoted Bouvier’s Law Dictionary: “Civil rights are those which have no relation to the establishment, support, or management of government.” Id. Alfred Kelly states that Wilson “declared for a narrow interpretation of the measure in unequivocal terms.” Kelly, Fourteenth 1066. But at another point he states that Wilson asserted “ vaguely that civil rights were only the ‘natural rights of man.’ ” Id. (emphasis added). Such “vagueness” is dispelled by Thayer’s explanation infra. See also infra note 55.

Josiah Grinnell of Iowa said, “A recognition of natural rights is one thing, a grant of political franchises quite another.” TenBroek 170. Senator Howard stated, the purpose of the Civil Rights Bill “is to secure to these men whom we have made free the ordinary rights of a freeman and nothing else.” Id. 504. “Wilson thus presented the Civil Rights Bill to the House as a measure of limited and definite objectives. In this he followed the lead of the majority in the Senate . . . And the line he laid down was followed by others who spoke for the bill in the House.” Bickel 17.

[27.]Globe 1117.

[28.]Id. 1151. As Madison said in Federalist No. 41: “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general powers? Nothing is more natural or common than first to use a general phrase, and to explain and qualify it by a recital of particulars. But the idea of particulars which neither explain nor qualify the general meaning . . . is an absurdity.” Modern Lib. ed. 269 (1937). Lawrence, an Ohio Radical, said “the privileges referred to in the Constitution are such as are fundamental civil rights, not political rights nor those dependent on local law.” Globe 1836.

[29.]Globe 1295. While tenBroek, 110, defines privileges and immunities as the right of a citizen to have “protection in the enjoyment of his personal security, personal liberty, and private property . . . protection against the aggression of individuals, communities . . . and domestic states against lawless violence exercised under the form of governmental authority,” and while Graham, 236, states the “abolitionist position” was to seek “protection for the fundamental rights of life, liberty, and property,” neither is really cognizant of the fact that the Civil Rights Act, and hence the “constitutionalizing” Fourteenth Amendment, had enumerated and defined these rights in restricted terms. I would also, therefore, take exception to Fairman’s statement that “vague aspirations” were hung on “privileges or immunities.” Fairman, Stanford 139.

[30.]Globe 2699. Patterson voted for the Amendment, id. 2545. Windom said that under the Civil Rights Bill, the Negro “shall have an equal right, nothing more . . . to make and enforce contracts” and so on. “It does not . . . confer the privilege of voting,” nor “social privileges. It merely provides safeguards to shield them from wrong and outrage and to protect them in the enjoyment of . . . the right to exist.” Id. 1159. [On January 25, 1858, Senator Lyman Trumbull stated, “I have never contended for giving the negro equal privileges with the white man. That is a doctrine I do not advocate.” The Reconstruction Amendments’ Debates 13 (Alfred Avins ed. 1967).]

[31.]Globe 599. As a prelude to the overriding of Johnson’s veto, Trumbull stated, “the granting of civil rights does not . . . carry with it . . . political privileges . . . The right to vote . . . depends on the legislation of the various States.” Id. 1757. He identified the rights “defined” in §1 as “fundamental rights belonging to every man as a free man.” Id. 476. Bickel, 13, states that “Radicals and Moderates alike—who spoke in favor of the bill were content to rest on the points Trumbull had made. The rights to be secured by the bill were those specifically enumerated in section 1.”

[32.]Globe 600, 474–475. Senator Henderson said that the Civil Rights Bill was “simply to carry out the provisions of the Constitution which confers upon the citizens of each State the privileges and immunities of citizens in the several States.” Id. 3035. As Lawrence stated, “It is idle to say that a citizen shall have the right to life, yet to deny him the right to labor, whereby alone he can live. It is a mockery to say that a citizen may have a right to live, and yet deny him the right to make a contract to secure the privilege and rewards of labor.” Id. 1833.

[33.]Id. 2766, 704.

[34.]Id. 599.

[35.]Id. 606.

[36.]Id. 1760.

[37.]Id. 3034–3035.

[38.]Id. 744.

[39.]Id. 1151: “the words themselves are ‘civil rights and immunities,’ not political privileges; and nobody can successfully contend that a bill guarantying simply civil rights and immunities is a bill under which you extend the right of suffrage, which is a political privilege and not a civil right . . . [W]hen those civil rights which are first referred to in general terms are subsequently enumerated, that enumeration precludes any possibility that general words which have been used can be extended beyond the particulars which have been enumerated.”

[40.]Cook, id. 1124; Moulton, id. 632; James R. Hubbell, id. 662; Lawrence, id. 1836; Shellabarger, id. 1293; for Windom, id. 1159, see supra note 30. Further details on the rejection of Negro suffrage are hereinafter set forth in the discussion of suffrage and the Fourteenth Amendment.

[41.]6 F. Cas. at 551–552.

[42.]Emphasis added. Here Justice Washington spoke too loosely. If a State might deny a nonresident the privilege to dredge for oysters in its waters, all the more might it deny him the right to practice law in its courts. Bradwell v. State, 38 U.S. (16 Wall.) 130, 139 (1872) held that “the right to admission to practice in the courts of a State” is not a privilege of a United States citizen.

[43.]The Supreme Court rejected this notion in Minor v. Happersett, 88 U.S. (21 Wall.) 162, 174 (1874): “This is more than asserting that [citizens] may change their residence and become citizens of the State and thus be voters. It goes to the extent that while retaining their original citizenship they may vote in any State.” It must be borne in mind that Article IV, §2, applies to transient as well as permanent migrants.

[44.]Emphasis added. That last sentence is at odds with Alfred Kelly’s statement that in the Corfield case “the rights incidental to national citizenship had been described in all-inclusive terms under the comity clause [Article IV, §2].” Kelly, Fourteenth 1059 (emphasis added).

[45.]Charles Fairman, Reconstruction and Reunion, 1864–1888 1122, vol. 6, pt. 1, of History of the Supreme Court of the United States (1971); see supra note 3.

[46.]Abbott v. Bayley, 6 Pick. 89, 91 (Mass. 1827); Campbell v. Morris, 3 H. & McH. 535, 554 (Md. 1797).

[47.]Globe 475; see Senator Howard, supra at note 33.

[48.]Graham 332n.

[49.]Globe 475.

[50.]83 U.S. (16 Wall.) 36, 116 (1872), dissenting opinion.

[51.]Supra note 46.

[52.]Supra note 46. The Abbott and Campbell cases were quoted by Senator Trumbull, Globe 474, and at other points in the debates.

[53.]Kelly, Fourteenth 1062–1063, emphasis added. So too, Kelly reads Bingham’s statement that “the protection given by the laws of the States shall be equal in respect to life, liberty, and property to all persons” as meaning “a very general requirement of equality on all state legislation of the most inclusive kind” (emphasis added). Id. 1074. There is also the fact that Bingham obtained the deletion of the “no discrimination in civil rights” clause because it was “oppressive.” Infra Chapter 7 at notes 13–14.

[54.]Supra at notes 31–32, 36–38, 26–30.

[55.]In his 1965 article Kelly himself stated, “Ultimately Revolutionary natural-rights theorists insisted liberty was derived from a state of nature, but it had long before been given a very positive and specific content. It was to be found . . . above all in the common law as expounded by Coke and Blackstone in all their commentaries. The ‘rights of Englishmen’ were not vacuous; instead they were quite well developed and specific. The notion of pulling new natural rights from the air to allow for an indefinite expansion can hardly be considered to be within the original spirit of the amendment.” Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 154–155. They had been crystallized by Blackstone, supra note 3. Madison, for example, stated in the First Congress that “Trial by jury cannot be considered . . . as a natural right.” 1 Annals of Congress 437.

[56.]TenBroek 122–123, 236.

[57.]Id. 231–232 (emphasis added).

[58.]Globe 3034, 3035. Like tenBroek, Graham, 276, stated that “the evidence in the debates is overwhelming that racial discrimination very broadly conceived was the framers’ target” (emphasis added). Compare his statement infra Chapter 7 at note 41.

[50.]Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1874). A Report by the House Committee on the Judiciary submitted by Bingham in 1871 stated that the “Fourteenth Amendment . . . did not add to the privileges or immunities” of Article IV. Avins, supra note 8 at 466. Senator Luke Poland of Maine explained that the privileges or immunities clause “secures nothing beyond what was intended by the original provision of the Constitution,” that is, Article IV. Avins, id. 230.

[1.]Colgate v. Harvey, 296 U.S. 404, 443 (1935), Justice Stone dissenting. D. O. McGovney showed that a goodly number of Justice Miller’s “national” privileges (infra note 3) can be enforced under some specific, direct constitutional grant. “Privileges and Immunities Clause, Fourteenth Amendment,” 4 Iowa L. Bull. 219, 223 (1918). Hence, as Stanley Morrison remarked, “the effect of the decision was to make the privileges and immunities clause practically a dead letter.” “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stan. L. Rev. 140, 144 (1949).

The clause has received little scholarly attention.

[2.]83 U.S. (16 Wall.) 36, 74 (1872).

[3.]Id. 96. Among the rights Justice Miller enumerated were the right to come to the seat of government, to assert claims against it, to have access to its seaports, courts, and offices, to have protection abroad, to assemble and petition, to use navigable waters, to become a citizen of another State by residence. Id. 79.

It is anomalous that a “citizen of the United States” is limited to these scanty rights whereas as a “citizen of a State” he may continue to invoke in a sister State the broader rights secured to him by Article IV, §2. Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907); Blake v. McClung, 172 U.S. 239, 254 (1898).

[4.]Infra Chapter 7 at notes 11–16.

[5.]Supra Chapter 2 at notes 6, 9, 32, 33; Globe 2765.

[6.]Globe 2961.

[7.]Cf. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). In the First Congress, Abraham Baldwin, a Framer, commenting on a proposed amendment that “the President should not turn out a good officer,” said that such minute regulation “would have swelled [the Constitution] to the size of a folio volume.” 1 Annals of Congress 559.

[8.]Bickel 61.

[9.]83 U.S. at 77.

[10.]Corfield v. Coryell, 6 F. Cas. (No. 3230) 546 (C. C. E. D. Pa. 1823). Abbott v. Bayley, 6 Pick. 89, 91 (Mass. 1827).

[11.]Trumbull, Globe 474, 475, 600; Senator R. Johnson, id. 505; Senator Davis, id. 595–596; Kerr, id. 1269.

[12.]Roscoe Conkling described a slave as “A man, and yet not a man. In flesh and blood alive; politically dead.” Now emancipated, “They are not slaves, but they are not, in a political sense, ‘persons.’ ” Globe 356.

[13.]Globe App. 67.

[14.]Globe 474; Globe App. 315.

[15.]Id. 1294. Wilson distinguished these “fundamental” rights from rights under State laws, like the right to attend school, to serve on a jury. Kelly labels this a “restrictive interpretation which actually anticipated the dual citizenship doctrine of the ‘privileges and immunities’ clause of the Fourteenth Amendment in the Slaughterhouse Cases. ” Kelly, Fourteenth at 1069. Compare Kelly’s own “restrictive” view, supra Chapter 2 note 52. Kelly completely misreads Wilson. In tune with the limited Republican goals, he emphasized that “citizens of the United States, as such, are entitled to . . . life, liberty, and the right of property.” Globe 1294. His object was to protect Negroes from violence and oppression whereas Justice Miller rejected even those rights, leaving blacks at the mercy of their former masters.

[16.]Globe 1266.

[17.]Id. 1124. Shellabarger also referred to “the ordinary rights of national citizenship, such as the right of . . . holding land, and of protection.” Id. 2104.

[18.]Id. 475.

[19.]Id. 595, 596.

[20.]Id. 600. The Civil Rights Bill, said Raymond, “is intended to secure these citizens against injustice that may be done them in the courts of those States within which they may reside.” Id. 1267. There were, however, some who did not appreciate the difference between Article IV, §2 and §1 of the Amendment; for example, Senator Poland stated that the privileges and immunities clause of §1 “secures nothing beyond what was intended by the original provision” of Article IV, §2. Id. 2961.

[21.]Id. 1757. Justice Field quoted Senator Trumbull’s explanation of the Civil Rights Bill (id. 474): “any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty”; he noted that the Fourteenth Amendment “was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Rights Act,” and concluded that “A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights . . . now belong to him as a citizen of the United States.” 83 U.S. at 92, 93, 95. Corfield v. Coryell, he stated, “was cited by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declared by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the fundamental rights set forth in the act.” Id. 98. What Article IV “did for the protection of the citizens of one State against hostile and discriminating legislation of other States,” Field summed up, the “Fourteenth Amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or different States.” Id. 100–101. Field was faithful to the legislative history, and it is remarkable that successor judges and scholars did not further explore the path he marked. When, however, he came to substantive due process he forgot about those limited goals.

[22.]Globe 1088.

[23.]Id. 2883.

[24.]Id. 2498.

[25.]Id. 2535.

[26.]Id. 2765. So the amended §1 was understood by Senator Stewart: “It declares that all men are entitled to life, liberty, and property, and imposes upon the Government the duty of discharging these obligations.” Id. 2964. After Howard proffered his citizenship definition, Windom summarized the privileges or immunities of §1 as meaning “Your life shall be spared, your liberty shall be unabridged, your property shall be protected.” Id. 3169. See also Bingham: “rights of every person,” id. 2542; Farnsworth: §1 “might as well read . . . ‘No State shall deny to any person within its jurisdiction.’ ” Id. 2539.

[On January 30, 1871, John Bingham submitted a Report of the House Committee on the Judiciary, stating: “The clause of the fourteenth amendment, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to the privileges and immunities of citizens of the United States other than privileges and immunities embraced in the original text of the Constitution, article 4, section 2. The fourteenth amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States.” H.R. No. 22, 41st Cong., 3d Sess. 1 (1871) (emphasis added). Reprinted in The Reconstruction Amendments’ Debates 466 (Alfred Avins ed. 1967).]

[27.]Globe 2768–2769.

[28.]Id. 2869; cf. with supra at note 26.

[29.]Referring to the Dred Scott holding that a Negro could be neither a citizen of a State nor of the United States, Justice Miller said, “To remove this difficulty primarily . . . the first clause of the first section was framed . . . That its main purpose was to establish the citizenship of the negro can admit of no doubt.” 83 U.S. 72.

[30.]Globe 1285.

[31.]Id. 2890, 2896 (emphasis added). Howard stated that his interpolation “is simply declaratory of the law already.” Id. 2890. Trumbull had quoted Chief Justice Marshall’s statement that “A Citizen of the United States, residing in any state of the Union, is a citizen of that state.” Gassies v. Ballon, 31 U.S. (6 Pet.) 761, 762 (1832); Globe 1756.

[32.]Globe 3148.

[33.]Infra at notes 39–40. “It is too clear for argument,” said Justice Miller, “that the change in phraseology was adopted understandingly and with a purpose.” 83 U.S. 75. That is quite true; but the purpose is that expressed by Trumbull, Stevens, Howard, and Fessenden, not exclusion from the benefits that had been so carefully wrought.

[34.]Howard, whose purpose Miller sought to ascertain by this rule, stated that it is “a dangerous principle of construction.” Globe 4001.

[35.]For example, “The rule of ‘ ejusdem generis’ is applied as an aid in ascertaining the intention of the legislature, not to subvert it when ascertained.” United States v. Gilliland, 312 U.S. 86, 93 (1941). The expressio unius rule “serves only as an aid in discovering the legislative intent when that is not otherwise manifest.” United States v. Barnes, 222 U.S. 513, 519 (1912).

[36.]Globe 2897.

[37.]83 U.S. 77–78 (emphasis added).

[38.]Id. 81 (emphasis added). For the “corrective” purpose of §1, see infra Chapter 10 at notes 68–92.

[39.]83 U.S. 81. Miller referred to the “black codes” and recapitulated some of their harsh provisions; id. 70.

[40.]Id. 71, 81. Miller also stated, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class . . . will ever be held to come within the purview of this [equal protection] provision.” Id. 81. If this be read as excluding protection for whites, it runs counter to the history of the Civil Rights Bill. Senator Trumbull explained that the Bill “applies to white men as well as to black men. It declares that all persons . . . shall be entitled to the same civil rights.” Globe 599; see also Globe 41, 158, 516. And the Amendment speaks in terms of “persons,” in order, Bingham stated, to include “aliens” and “strangers,” i.e., whites. Infra Chapter 11 at notes 91–92.

[41.]Justice Miller’s “all legislation” is the more surprising because he noted that “privileges and immunities” was lifted out of Article IV of the Articles of Confederation, where it was particularized— “all the privileges of trade or commerce.” Here, he commented, “we have some of these specifically mentioned, enough perhaps to give some general idea of the class of civil rights meant by the phrase.” 83 U.S. 75. Self-evidently the privileges subsumed under “trade or commerce” are but a segment of the matters embraced by “all legislation.” And his quotation of the Corfield enumeration again suggests that Miller was substituting “statesmanship” for hard-nosed legal interpretation.

[42.]Id. 96. The Court’s statement in Buchanan v. Warley, 245 U.S. 60, 77 (1917), that “The Fourteenth Amendment makes no attempt to enumerate the rights it was designed to protect. It speaks in general terms, and those are as comprehensive as possible,” overlooks the framers’ limited purposes, plainly expressed in the enumeration of the Civil Rights Act which the Amendment incorporated.

[43.]83 U.S. 78.

[44.]Id. 75.

[45.]Id. 81.

[46.]Id. 78.

[47.]Consequently I would dissent from Justice Frankfurter’s reference to the “mischievous uses to which that [privileges and immunities] clause would lend itself if its scope were not confined to that given to it by all but one of the decisions beginning with the Slaughter-House Cases.” Adamson v. California, 332 U.S. 46, 61–62 (1947), concurring opinion.

[48.]83 U.S. 114–115.

[49.]Id. 118.

[50.]Graham 133.

[51.]Rainwater v. United States, 356 U.S. 590, 593 (1958).

[52.]Cf. Raoul Berger, Congress v. The Supreme Court 48 (1969); Raoul Berger, “Judicial Review: Counter Criticism in Tranquillity,” 69 Nw. U. L. Rev. 390, 399–401 (1974).

[53.]Graham 324, 326, 325.

[54.]Id. 528.

[1.]Van Alstyne 36; James 21.

[2.]Supra Chapter 1 at notes 55–56. Roscoe Conkling of New York likewise acknowledged that the “representation” proposal “was primarily for party and sectional advantage.” Kendrick 204; see also id. 207 and infra note 4.

[3.]Donnelly remarked, “To pass this law and then hope that South Carolina, moved by the hope of future power, would do justice to the negro is absurd. She has 291,000 whites and 412,000 blacks. To pass such a law would be for the governing power to divest itself of the government and hand it over to a subject and despised caste . . . The same is true, more or less, of all the South.” Globe 378. Julian of Indiana likewise placed little hope in “representation” as an inducement to the grant of suffrage because southern “scorn of an enslaved and downtrodden race is as intense as ever. They hate the negro.” Globe 58. Boutwell of Massachusetts admitted “the possibility that ultimately those eleven States may be restored to representative power without the right of franchise being conferred [by them] upon the colored people.” Globe 2508.

[4.]Globe App. 94. Ward Elliott remarks, “The post–Civil War Radical Republicans, as a group, cared very little for the black vote until they came to believe that it would help to secure their position . . . against a Democratic resurgence. Once convinced that theywould profit from the black vote, they passed the Fifteenth Amendment.” The Rise of a Guardian Democracy 2 (1974); see also id. 204. Section 2 “was not primarily devised for the protection of Negro rights and the provision of Negro equality. Its primary purpose . . . was to put the southern states” under northern control. C. Vann Woodward, “Seeds of Failure in Radical Race Policy,” in New Frontiers of the American Reconstruction 135 (Harold M. Hyman ed. 1966). Aaron Harding of Kentucky tauntingly asked “if there is a single man among you who would vote for negro suffrage if he believed the negroes would vote the Democratic ticket? Not one, and you know it.” Globe 449. Although McKee of Kentucky favored the limitation of representation, he opposed Negro suffrage in the District of Columbia because he did not believe “that this race, coming immediately out of bondage, is fit for all rights of citizens.” Id. 452. When John Bright expressed “reservations about enfranchising this large unlettered electorate,” Sumner wrote, “Without them, the old enemy will reappear . . .” Quoted in Donald, Sumner II 201.

[5.]As Michael Les Benedict justly remarks, the §2 curtailment of representation was “necessary only if Republicans did not intend to force black suffrage on the reluctant South.” A Compromise of Principle: Conservative Republicans and Reconstruction 1863–1869 136 (1975).

[6.]377 U.S. 533, 555, 558 (1964).

[7.]See W. R. Brock, An American Crisis: Congress and Reconstruction (1963). This will be discussed infra Chapter 10.

[8.]377 U.S. at 590.

[9.]C. Auerbach, “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. Ct. Rev. 1, 75.

[10.]Van Alstyne 36.

[11.]400 U.S. 112, 152 (1970).

[12.]Globe 685.

[13.]Id. 1182. Senator Yates of Illinois declared “suffrage . . . the only remedy,” id. 3037.

[14.]Id. 2462, 2882, 310, 589, 867.

[15.]Donald, Sumner II 202. Senator Garrett Davis of Kentucky stated, “Negro suffrage is political arsenic. If it is not, why do not the free States open wide their throats and gulp down the graceful and invigorating draught?” Globe 246.

[16.]Van Alstyne 69–70. See also infra Chapter 5 at note 74. “The off-year state elections of 1867,” during which ratification of the Fourteenth Amendment was debated, “made clear the popular hostility to black suffrage in the North.” Morton Keller, Affairs of State 81 (1977).

[17.]Globe 1182.

[18.]Id. 2766.

[19.]Infra Chapter 5 at note 49.

[20.]Van Alstyne 69.

[21.]See infra Chapter 6 at note 53.

[22.]In an analogous situation Van Alstyne states, “It is even likely, by way of conjecture, that had the subject [reapportionment] been discussed there might have been a disavowal of an intention to apply the Equal Protection clause to malapportionment, at least at that time . . . [But] hypothetical answers to hypothetical questions never actually entertained at the time would be a most dubious basis for expounding the content of ‘equal protection’ one hundred years later.” Van Alstyne 85.

[23.]Oregon v. Mitchell, 400 U.S. 112, 278. Justices White and Marshall joined in this opinion.

[24.]Donald, Sumner II 158. Sumner himself had stated that “one must not assume ‘that a race, degraded for long generations under the iron heel of bondage, can be taught at once all the political duties of an American citizen’ . . . he thought that most of the negroes, free and contented, would remain in the South as ‘a dependent and amiable peasantry,’ ” Donald, Sumner I 235. But after 1864 he shifted because, as he wrote, “Without them, the old enemy [slave oligarchy] will reappear . . . and in alliance with the Northern democracy, put us all in peril again.” Donald, Sumner II 201.

[25.]Fawn M. Brodie, Thaddeus Stevens: Scourge of the South 211 (1959); C. Vann Woodward, The Burden of Southern History 92 (1960).

[26.]James 101.

[27.]Brodie, supra note 25 at 230–231.

[28.]Globe 358. Nathaniel Banks of Massachusetts stated, “The public opinion of the country is such at this precise moment [May 1866] as to make it impossible we should do it.” Id. 2532.

[29.]Id. 704.

[30.]Id. 1256.

[31.]Id. 2143. Senator Henderson stated, “the country is not yet prepared” to grant Negro suffrage. Id. 3035. Senator Sherman said, “no man can doubt . . . there was a strong and powerful prejudice in the Army and among all classes of citizens against extending the right of suffrage to negroes.” Globe App. 127.

[32.]See: Senator Lane of Kansas, Globe 1799; Garfield and Ashley of Ohio, id. 2462, 2882; Senators Howard, Poland, and Sherman, id. 2766, 2963, and Globe App. 131.

[33.]Globe 4000. His similar motion on July 27 respecting Nebraska was rejected 34 to 5, id. 4222.

[34.]Id. 2766 (emphasis added).

[35.]Id. 2542.

[36.]Woodward, supra note 4 at 137.

[37.]Globe 2446. Senator Henry Anthony of Rhode Island asserted that “he would rather have cholera itself than such a bill.” Phillip S. Paludan, A Covenant With Death 48 (1975).

[38.]Quoted in Globe 2096. Governor (soon to be Senator) Yates of Illinois stated in 1865, “I am for unlimited state sovereignty in the true sense, in the sense that the State is to control all its municipal and local legislation and I would be the first to resist all attempts upon the part of the Federal Government to interpose tyrannical usurpation of power in controlling the legislation of States.” Paludan, supra note 37 at 34.

[39.]The State “police power extends over all subjects within the territorial limits of the States and has never been conceded to the United States.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 625 (1842), quoted in Globe 1270. Samuel S. Marshall of Illinois stated, “It is a fundamental principle of American law that the regulation of the local police of all the domestic affairs of a State belong to the State itself, and not to the Federal Government.” Globe 627.

[40.]Globe 1083, 1085–1086, 1063; infra Chapter 10 at notes 77–78.

[41.]Globe 1295–1296.

[42.]Id. 358; see also Delano, Globe App. 158; Charles A. Eldredge, Globe 1154.

[43.]Globe 1292. He repeated, “I have always believed that the protection in time of peace within the State of all the rights of person and citizen was of the powers reserved to the States.” Id. 1293. Commenting earlier on Hale’s view that “the citizens must rely upon the State for their protection,” he said, “I admit that such is the rule under the Constitution as it now stands.” Id. 1093. Such reiteration testifies to pervasive uneasiness about the impairment of State sovereignty, uneasiness shared by his fellow Ohioan, Chief Justice Salmon Chase, who regretted that the Joint Committee had gone too far: “Even the loyal people in Northern states, he feared, might oppose the amendment because of its threat to state rights.” James 118. This was a man of “radical tendencies.” Id.

[44.]Globe 1761.

[45.]Id. 358; see also Thomas N. Stillwell of Indiana, id. 670; Senator Cowan, id. 1286; Shellabarger, id. 1293; Senator Poland, id. 2962.

[46.]Id. 536. Senator Lane of Indiana, who favored strong measures against the rebels, said, “the right to determine the qualifications of electors is left with the several States . . . I do not believe that Congress has a right to interfere between [Indiana] and the people and fix the qualifications of voters.” Id. 740.

[47.]Id. 1279, 1278; see also id. 704. This assurance was meaningless if §1 conferred suffrage.

[48.]Id. 2143.

[49.]Globe App. 120.

[50.]Flack 68. “One reason the Reconstruction of the South loomed so high to northerners,” Harold Hyman concluded, “was less that blacks were involved than that every one understood the pre-eminence of states . . . in affecting all their citizens’ lives.” Harold M. Hyman, A More Perfect Union 426 (1973). In “early 1865 virtually unhampered state powers were considered fundamental for liberty, federalism and democracy.” Id. 301. “A heavy phalanx of Republican politicos, including Sherman and Trumbull . . . were states rights nationalists, suspicious of any new functional path the nation travelled.” Id. 304. “No one reading the debates carefully,” said Graham at 312, “will question the framers’ devotion to federalism, even the extreme Radicals.”

[51.]The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 82 (1872).

[52.]Kelly’s remark in “Comment on Harold M. Hyman’s Paper” in New Frontiers of the American Reconstruction 55 (Harold M. Hyman ed.), written in 1966, constitutes to my mind a tacit repudiation of his earlier pieces. Hyman notes Republican unwillingness “to travel any road more rugged than the Civil Rights—Freedmen’s Bureau extension—Fourteenth Amendment route that left the states masters of their fates.” Hyman, supra note 50 at 470; see also id. 440, 448.

[53.]For earlier variants see James, Index, s.v. “Representation.”

[54.]Globe 2535.

[55.]Reynolds v. Sims, 377 U.S. 533, 594.

[56.]Van Alstyne, 36, refers to “the kind of blinding light that Mr. Justice Harlan sees here.”

[57.]Globe 2542.

[58.]Id. 432.

[59.]Id. 1279. Fessenden explained the Committee’s espousal of the “representation” provision subsequently embodied in §2: “we cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.” Id. 705. The effect of the proposed amendment, he stated, “is simply to leave the power where it is, and leave it perfectly in the power of the States to regulate suffrage as they please.” Id.

[60.]Id. 2766, 3039. Senator Wilson of Massachusetts stated that the “right to vote . . . has been regulated by the State in every State . . . from the beginning of the Government.” Id. 1255. Senator Yates of Illinois did “not deny the power of the States to regulate suffrage.” Id.

[61.]Globe 3038, 2943, 2963–2964, Globe App. 219. Senator Henderson had proposed an amendment to the “representation” proposal, prohibiting discrimination with respect to suffrage (id. 702), but he later supported “representation” because “the country is not yet prepared” for Negro suffrage. Id. 3035. Senator Reverdy Johnson, probably the most open-minded of the Democrats, understood the Amendment to concede “to the States . . . the exclusive right to regulate the franchise” so that the United States would “be impotent to redress” exclusion of blacks. Globe 3027. Another Democrat, Senator Davis, stated that the measure “shrinks from . . . openly forcing suffrage upon the States, but attempts by a great penalty to coerce them to accept it.” Globe App. 240. See also Senator Hendricks, Globe 2939.

[62.]Id. 141. [Joint Committee on Reconstruction, Report No. 112, 39th Cong., 1st Sess. 7 (June 8, 1866), reprinted in Avins, The Reconstruction Amendments’ Debates 94 (1967), referring to the effect of emancipation upon the three-fifths representation provision, stated: “When all become free, representation for all necessarily follows. As a consequence the inevitable effect of the rebellion would be to increase the political power of the insurrectionary States . . . The increase of representation necessarily resulting from the abolition of slavery, was considered the most important element in the questions arising out of the changed condition of affairs, and the necessity for some fundamental action in this regard seemed imperative.” The answer was section 2 of the Amendment.]

[63.]Globe 357, 358, 359.

[64.]Id. 428, 536.

[65.]Id. 2462.

[66.]Id. 2540.

[67.]Id. 2532, 2510.

[68.]Niblack, Benjamin M. Boyer of Pennsylvania, and Andrew J. Rogers of New Jersey. Justice Harlan comments on these statements in Oregon v. Mitchell, 400 U.S. at 181–182.

[69.]Supra note 61.

[70.]See supra note 55 at 626–632. Samuel McKee of Kentucky, who supported the Amendment, stated, “this House is not prepared to enfranchise all men.” Globe 2505. William D. Kelley of Pennsylvania said, “Could I have controlled the report of the Committee of Fifteen, it would have proposed to give the right of suffrage to every loyal man.” Id. 2469. Boutwell of Massachusetts stated, “The proposition in the matter of suffrage falls short of what I desire . . . I demand . . . the franchise for all loyal citizens.” Id. 2508. But like others of the same persuasion, he voted for the Amendment. Broomall understood §2 “to limit the representation of the several States as those States themselves shall limit suffrage.” Id. 2498. Lawrence said that the “representation” amendment “does not propose to extend the right of suffrage to or to withhold it from any class of people . . . It does not propose to disturb the commonly received construction of the Constitution which leaves to the State the right to determine who shall or shall not be voters.” Id. 404. G. F. Miller of Pennsylvania conceded “to each State the right to regulate the right of suffrage . . . they ought not to have a representation for” excluded persons. The Amendment “leav[es] each State to regulate that for itself.” Globe 2510. See also Thayer, id. 282; Eliot, id. 2511.

[71.]Robert Dixon, “Reapportionment in the Supreme Court and Congress: Constitutional Struggle for Fair Representation,” 63 Mich. L. Rev. 209, 212 (1964); Elliott, supra note 4 at 127.

[1.]Paul Kauper, “Some Comments on the Reapportionment Cases,” 63 Mich. L. Rev. 243, 244 (1964). In more restrained diction, Archibald Cox instances the reapportionment cases as a “dramatic” example of “reading into the generalities of the Due Process and Equal Protection Clauses notions of wise and fundamental policy which are not even faintly suggested by the words of the Constitution, and which lack substantial support in other conventional sources of law.” The Role of the Supreme Court in American Government 100 (1976).

Reapportionment may have been “wise,” but did it represent the kind of emergency situation that at best arguably excuses judicial revision? Philip Kurland considers that “reapportionment of the state and local legislatures was not among the more pressing problems in post–World War II America.” Politics, the Constitution and the Warren Court 83 (1970). For an extended and persuasive demonstration that reapportionment was not necessary, see Ward Elliott, The Rise of a Guardian Democracy (1974).

[2.]Van Alstyne 78–79.

[3.]Supra Chapter 1 at note 55; Chapter 4 at note 4; Kendrick 207; cf. Van Alstyne 57.

[4.]Chief Justice Warren, Alfred Kelly states, “carefully neglected the far more important fact that every one of the state legislatures that sent delegates to Philadelphia was grossly malapportioned by any ‘one man, one vote’ standard, and the state conventions that ratified the Constitution were in every instance set up on the same rule of apportionment.” “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119 at 136–137. Justice Story, commenting on the possible introduction of a clause “to regulate the State elections of members of State legislatures” stated, “It would be deemed a most unwarrantable transfer of power, indicating a premeditated design to destroy the State governments. It would be deemed so flagrant a violation of principle as to require no comment.” 1 Joseph Story, Commentaries on the Constitution of the United States §819 (5th ed. 1905). [In the Convention Nathaniel Gorham said, “ [T]he Constitution of [Massachusetts] had provided that the [representatives of the] larger districts should not be in an exact ratio of their numbers. And experience he thought had shewn the provision to be expedient.” 1 The Records of the Federal Convention of 1787 405 (Max Farrand ed. 1911). In the First Congress, Representative Michael Stone of Maryland said, “the representatives of the States were chosen by the States in the manner they pleased.” 1 Annals of Congress 765 (1834).]

[5.]Van Alstyne 80. Stevens stated that “This section [2] allows the States to discriminate among the same class, and receive proportionate credit in representation.” Globe 2460 (emphasis added). So too, the antecedent Civil Rights Bill, Shellabarger stated, “does not prohibit you from discriminating between citizens of the same race . . . as to what their rights to testify, to inherit . . . shall be.” Globe 1293.

[6.]With reference to a bill introduced by Sumner in March 1867, David Donald states, “Disturbed by the revolutionary changes Sumner hoped to bring about in the South, Republican Congressmen were horrified that he proposed to extend them to the North as well,” among them to secure “the elective franchise to colored citizens.” Donald, Sumner II 299. Bickel, 16 note 40, states that “Conservative Republicans who considered the Freedmen’s Bureau Bill [applicable only in the South] an appropriate concession to offer to the Radicals, evidently felt quite differently about a statute which might be applied in their constituencies.” “ [N]ational enfranchisement of the Negro—which meant Negro voting in the North—was out of the question.” William Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 32 (1965). See also Harold M. Hyman, A More Perfect Union 470 (1973).

[7.]When the Amendment was submitted to the States for ratification, “the northern press,” states Flack at 145, “with few exceptions, if any, took the view that the first section of the Amendment re-enacted or gave authority for, the Civil Rights Bill.” He quotes a speech of Trumbull in Chicago: §1 “was a reiteration of the Civil Rights Bill”; and one of Sherman in Cincinnati: “the first section embodied the Civil Rights Bill”; id. 148.

Justice Black, that fervent advocate of reapportionment (Wesberry v. Sanders, 376 U.S. 1 [1964]), stated in his earlier attempt to read corporations out of the Fourteenth Amendment that “the people were not told they [were ratifying] an amendment granting new and revolutionary rights to corporations.” Connecticut General Ins. Co. v. Johnson, 303 U.S. 77, 86 (1938), dissenting opinion. Compare supra Chapter 1 note 57. Justice Field, dissenting in Ex parte Virginia, 100 U.S. 339, 362–363 (1879), stated that the provision for Negro jurors was “a change so radical . . . [as] was never contemplated by the recent amendments. The people, in adopting them did not suppose they were altering the fundamental theory of their dual system of government.” As we have seen, the framers actually contemplated the continued exclusion of Negro jurors. But the selfsame Field had no difficulty in advocating the tremendous alteration embodied in substantive due process.

[8.]Globe 377. Malapportionment was fastened on the Constitution from the outset by the compromise which permitted three-fifths of the voteless Negro population to be counted for purposes of representation in the House of Representatives. Thereby, as John Quincy Adams remarked, “Every planter South of the Potomac has three votes in effect for every five slaves he keeps in bondage; while a New England farmer who contributes ten-fold as much to the support of the Government has only a single vote” (Nov. 8, 1804). Quoted in Samuel F. Bemis, John Quincy Adams and the Foundation of American Foreign Policy 123 note 37 (1949). The result was to give the South twenty-five additional members and to “enable the slave power to keep its grip on the nation.” Samuel F. Bemis, John Quincy Adams and the Union 417, 446 (1956). Malapportionment was also embedded in the Constitution by the provision for two Senators from each State, although, as Thomas Hartley remarked in the First Congress, “their proportions are as ten to one.” 1 Annals of Congress 481.

[9.]Van Alstyne 79 note 142.

[10.]Id.

[11.]Infra at notes 26–27, 69–70.

[12.]Globe 141.

[13.]“The true basis for representation, Sumner declared in a speech to the [Massachusetts] convention on July 7 [1853], should ideally be founded ‘absolutely upon equality’ so as to make all men, in the enjoyment of the electoral franchise, whatever their diversity of intelligence, education or wealth, and wheresoever they may be within the Commonwealth, whether in small towns or populous city, ‘absolutely equal at the ballot box.’ But, he swiftly backtracked, this system of equal representation could not be advantageously instituted ‘unless supported by the permanent feelings and conditions of the people.’ As the practice of giving Massachusetts small towns disproportionate influence had sprung ‘from custom and popular faith, silently operating with internal power, not from the imposed will of a lawgiver’ . . . no radical change in the admittedly inequitable system should be tried at present, but instead the rural towns should be given more representation so as to protect the Commonwealth against the ‘commercial feudalism’ of the big cities.” Donald, Sumner I 246, quoting 3 Sumner, Works 229–258. See supra note 4.

[14.]Quoted in Reynolds v. Sims, 377 U.S. 533, 605 (1964). Stevens likewise stated that the several constitutions had been pronounced “republican in form.” Id. 604 note 42.

[15.]See Van Alstyne, quoted infra at note 17. “ [T]o quarrel with the records without abundant cause is to engage in a desperate cause.” H. G. Richardson and G. O. Sayles, “Parliament and Great Councils in Medieval England,” 77 L. Q. Rev. 213, 235–236 (1961). Roughly speaking, unless testimony is inherently incredible it must be countered by evidence, not speculation. Phillips v. Gookin, 231 Mass. 250 , 251, 120 N.E. 691 (1918); Messon v. Liberty Fast Freight Co. 124 F.2d 448, 450 (2d Cir. 1942); Eckenrode v. Pennsylvania R. Co., 164 F.2d 996, 999 note 8 (3d Cir. 1947); cf. Miller v. Herzfeld, 4 F.2d 355, 356 (3d Cir. 1925); Magg v. Miller, 296 F. 973, 979 (D.C. Cir. 1924).

[16.]After cataloging the “malapportioned” States, Justice Harlan asked, “Can it be seriously contended that the legislatures of the States, almost two-thirds of those concerned, would have ratified an amendment which might render their own State constitutions unconstitutional?” 377 U.S. at 603.

[17.]Van Alstyne 80, 81, 85. Alfred Kelly also dismisses Harlan’s argument; “it neglected one embarrassing fact: both the provision of §2 and the extensive debate . . . were directed at the possibility of a state’s limiting Negro franchise and not to the problem of district legislative apportionment, an entirely different historical question.” Kelly, “Clio,” supra note 4 at 137. Notwithstanding the difference, Chief Justice Warren built his reapportionment case on “one man, one vote.” Because of this “embarassing fact” Kelly charges that Harlan “indulged in a bit of law office history of his own.” Id. That charge, as the above analysis of the same argument by Van Alstyne demonstrates, is without foundation. Nor is Kelly the man to cast stones.

He recorded that when he was retained in the desegregation case to file a historical brief for the NAACP (Kelly, Fourteenth, 1049n), he “manipulated history in the best tradition [?] of American advocacy, carefully marshalling every scrap of evidence in favor of the desired interpretation and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible.” Kelly, “Clio,” supra note 4 at 144. That is an astonishing admission from a scholar who upbraids the Court because it “carefully selected the materials designed to prove the thesis at hand, suppressing all data that might impeach the desired historical conclusion.” Kelly, “Clio,” supra note 4 at 126.

[18.]See supra Chapter 1 note 57. “An alleged surrender . . . of a power of government . . . must be shown by clear and unequivocal language; it cannot be inferred from . . . any doubtful or uncertain expressions.” Belmont Bridge v. Wheeling Bridge, 138 U.S. 287, 292–293 (1891).

Even where States were forbidden to legislate with respect to a particular subject and Congress was empowered to enforce the prohibition, Justice Bradley rejected the assumption that “this gives Congress power to legislate generally upon that subject” as “repugnant to the Tenth amendment.” Civil Rights Cases, 109 U.S. 3, 15 (1883). In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 78 (1872), Justice Miller rejected a construction which would subject States “to the control of Congress, in the exercise of powers heretofore universally conceded to them” in the absence of “language which expresses such a purpose too clearly to admit of doubt.” One may differ with his construction of the Fourteenth Amendment, but the fact remains that he was neither the first nor last to state that rule.

[In United States v. Darby, 312 U.S. 100, 124 (1941), Justice Stone stated, “(the Tenth Amendment) states but a truism that all is retained which has not been surrendered.” It was merely “declaratory of the relationship between the national and State governments”; its purpose was “to allay fears that the new federal government might seek to exercise powers not granted, and that the States might not be able to exercise fully their reserved powers.” ]

[19.]Van Alstyne 80.

[20.]“Nothing is more evident than that the greater must include the less.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175 (1874).

[21.]Reynolds v. Sims, 377 U.S. 533, 554, 555. “The fundamental issue, as [Solicitor General Archibald Cox] puts it, is whether the State law ‘arbitrarily and unreasonably apportions its legislature so as to deny the real meaning of the right to vote, i.e., effective participation in democratic government.’ ” Phil C. Neal, “Baker v. Carr: Politics in Search of Law,” 1962 S. Ct. Rev. 252, 285.

My study of the “republican form of government” guarantee, infra at notes 22–47, persuaded me that the Founders had no intention of interfering with State control of suffrage. Justice Stewart’s opinion (concurring and dissenting in part) in Oregon v. Mitchell, 400 U.S. 112, 288–290 (1970), pulls together the other textual and historical materials that confirm me in that view.

[22.]Van Alstyne 49–51.

[23.]Hyman, supra note 6 at 469. Sumner early invoked the “republican form of government” guarantee to secure blacks against “denial of rights, civil or political,” and to make them “equal before the law.” Globe 92.

[24.]1 Max Farrand, The Records of the Federal Convention of 1787 206 (1911) (emphasis added).

[25.]Federalist 282, 283 (emphasis added).

[26.]Id. 341–342.

[27.]Id. 356.

[28.]Globe 706. David Donald comments that Sumner’s program met with little favor in his own Massachusetts, that it “was not taken seriously,” and that his “Republican colleagues greeted his resolutions and bills” with “total silence.” Donald, Sumner II 234, 235, 240, 243.

[29.]Globe 358–359.

[30.]Id. 3980. Two of Van Alstyne’s dissentients, Higby and Kelley, were among the twelve who voted against the admission.

[31.]Id. 3988.

[32.]Van Alstyne 50.

[33.]Globe 427.

[34.]Id. Shellabarger admitted that although the Southern States disenfranchised blacks, they have “been by common consent regarded as republican and constitutional.” Id. 405. See also Thomas A. Jenckes of Rhode Island, id. 387. Replying to Sumner’s argument that the limitation of suffrage to whites in the Colorado constitution violated the “republican form of government,” Senator Stewart stated, “Nineteen of the free States now exclude blacks from the franchise.” Id. 1330–1331.

[35.]Donald, Sumner II 202.

[36.]Globe 427.

[37.]Auerbach, “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. Ct. Rev. 1, 85. “Yet to rest the Reapportionment Cases on the Guarantee Clause creates difficulties of its own which must be evaluated . . . Historically the system of legislative representation prevailing in a State was intended to be subject to the requirements of the Guarantee Clause while, as we saw, the Equal Protection Clause was not originally intended to deal with this matter.” Id. Paul Kauper likewise was critical of the conversion of equal protection to the guarantee of a republican form of government. “This is the central issue in these cases—what form of government is compatible with a representative form of government—and the guarantee of a republican form of government is the explicit constitutional provision relevant to the problem.” Kauper, supra note 1 at 244.

[38.]Auerbach, supra note 37 at 86; 48 U.S. (7 How.) 1 (1849). Auerbach notices the “serious difficulty” posed by the fact that “Congress has admitted states into the Union and declared their forms of government to be ‘republican,’ even though their constitutions authorized systems of apportionment that the Court would now declare unconstitutional. It would be awkward for the Court to say not only that it has a role in enforcing the Guarantee Clause but that it also may overrule the expressed judgment of Congress as to the nature of a republican form of government” (in an area which Luther v. Borden held was not for the Court but for Congress). “The Court,” Auerbach continues, “thinks it has avoided this contradiction of Congress by resting on the Equal Protection Clause . . . but the Court’s explanation is not very satisfactory.” Id. 86.

Auerbach finds solace in Justice Frankfurter’s statement that “if the ‘changing circumstances of a progressive society’ for which the Constitution was designed ‘yield new and fuller’ import to the language of the Equal Protection Clause, they also yield new and fuller import to the language of the Guarantee Clause.” Id. 87. Yet Frankfurter could not extend the “new and fuller import” to the reapportionment cases.

[39.]Cf. Donald, Sumner I 180; Kelly, Fourteenth 1056.

[40.]Senator Sumner proposed as a condition upon the admission of Tennessee that there should be no denial of suffrage; the proposal was rejected by a vote of 34 to 4. Several days later a similar Sumner proposal respecting the admission of Nebraska was defeated by a vote of 34 to 5. Globe 4000, 4232.

[41.]Van Alstyne 51–52; Globe 431.

[42.]Globe 2542.

[43.]Globe 3950, 3975–3976.

[44.]Id. 3978–3979, 3980.

[45.]Van Alstyne 62–63; Globe 2542; emphasis added; see supra at note 25.

[46.]Globe 2542; and supra at notes 43–44.

[47.]Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175–176.

[48.]“It is clear,” said the Court in Minor v. Happersett, id. 171, “that the Constitution [Fourteenth Amendment] has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted.”

[49.]Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (undated, 1866) xiii (emphasis added). At an early stage Conkling stated that the Committee rejected a proposal “To deprive the States of the power to disqualify or discriminate politically on account of race” and instead approved a proposal. “To leave every State perfectly free to decide for itself, not only who shall vote, but who shall belong to the political community in any way.” Globe 357. Chairman Fessenden stated that §2 “leaves the power where it is,” i.e., with the States. Globe 705. When James M. Ashley of Ohio was asked by his Ohio colleague, Francis LeBlond, “why the gentleman yields the question of suffrage, as he does, in supporting the [representation] proposition of the Committee,” he replied, “Because I cannot get it.” Id. 2882.

[50.]377 U.S. at 555.

[51.]Federalist 356; see supra at notes 26–27; infra at notes 69–70.

[52.]Globe 1279.

[53.]377 U.S. at 558. This was quoted from the opinion of Justice Douglas in Gray v. Sanders, 372 U.S. 368, 381 (1963).

[54.]Supra Chapter 4 at note 38.

[55.]Supra Chapter 1 at note 36.

[56.]As Justice Harlan stated, “the very fact that constitutional amendments were deemed necessary to bring about federal abolition of state restrictions on voting by reason of race (Amendment XV), sex (Amendment XIX) . . . is itself forceful evidence of the common understanding in 1869, 1919 . . . that the Fourteenth Amendment did not empower Congress to legislate in these respects.” Oregon v. Mitchell, 400 U.S. at 202, dissenting and concurring in part.

[57.]88 U.S. (21 Wall.) 162, 175. In United States v. Cruikshank, 92 U.S. 542, 555 (1875), Chief Justice Waite reaffirmed that “the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race. From this it appears that the right of suffrage is not a necessary attribute of national citizenship” (emphasis added).

After indicating that “the 15th and 19th amendments prohibit a State from overweighting or diluting votes on the basis of race or sex,” Chief Justice Warren, quoting a prior opinion, asked, “How then can one person be given twice or ten times the voting power of another person . . . merely because he lives in a rural area.” 377 U.S. at 557. Given that discrimination in favor of “rural areas” is historically deep-rooted, orthodox analysis would conclude: because the Fifteenth and Nineteenth govern only “race and sex,” not “rural areas.” My citation of old cases does not betray a weakness for ancient vintages but responds rather to the weight long given to interpretations contemporary with or close to the event, particularly when they confirm the intention of the framers as disclosed by the legislative history. See infra Chapter 10 note 66.

[58.]TenBroek 14.

[59.]Raoul Berger, Congress v. The Supreme Court 10–11 (1969).

[60.]Quoted in Gordon Wood, The Creation of the American Republic 1776–1787 475 (1969).

[61.]TenBroek 16.

[62.]“Book Review,” 19 Am. J. Legal Hist. 66, 67 (1975). Kelly, however, regards efforts to prove that “the Constitution was exclusively a ‘white man’s document’ ” and “to discount the Declaration of Independence” as a lapse into “a priori, fiat technique.” Kelly, “Clio,” supra note 4 at 126 note 26.

[63.]Quoted in 1 Alexis de Tocqueville, Democracy in America 378n (1900).

[64.]Globe 536.

[65.]See Raoul Berger, Executive Privilege: A Constitutional Myth 103–107 (1974).

[66.]Globe 2961.

[67.]Id. 2175.

[68.]Quoted in 377 U.S. at 564 note 41 (emphasis added). The quotation appears at 1 James Wilson, The Works of James Wilson 406 (R. G. McCloskey ed. 1967).

[69.]1 Wilson, supra note 68 at 407 (emphasis added).

[70.]Id. 409, 411.

[71.]377 U.S. at 565 (emphasis added). Ward Elliott justly states that in Reynolds v. Sims the Court fabricated a “fundamental principle of ‘one person, one vote’ that was exactly the reverse of text and stated intent of the equal protection clause.” Elliott, supra note 1 at 129. As a professor, Solicitor General Robert J. Bork wrote, “Chief Justice Warren’s opinions in this series of [state legislative apportionment] cases are remarkable for their inability to muster a single respectable supporting argument. The principle of one man, one vote . . . runs counter to the text of the fourteenth amendment, the history surrounding its adoption and ratification and the political practice of Americans from Colonial times up to the day the Court invented the new formula.” “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 18 (1971).

[72.]New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). Dissenting in a reapportionment case, Justice Stewart stated, “these decisions mark a long step backward into that unhappy era when a majority of the members of this Court . . . convinced themselves and each other that the demands of the Constitution were to be measured not by what it says, but by their own notions of wise policy . . . What the Court has done is to convert a particular political philosophy into a constitutional rule.” Lucas v. Colorado General Assembly, 377 U.S. 713, 747–748 (1964).

[73.]Supra at note 49.

[74.]Oregon v. Mitchell, 400 U.S. at 255–256, dissenting in part.

[75.]Globe 257. Similar statements are collected supra Chapter 1 at note 40.

[76.]400 U.S. at 251.

[77.]Id. 252 note 4.

[78.]See infra Chapter 14 at notes 103–104.

[79.]400 U.S. 257–260.

[80.]Id. 260.

[81.]See infra at notes 91–93.

[82.]400 U.S. at 260–262. This incident is more fully discussed infra Chapter 6 at notes 38–41.

[83.]400 U.S. at 263.

[84.]Id.

[85.]Id. 272, 273.

[86.]Id. 263.

[87.]Id. 263–264.

[88.]Supra Chapter 2 at notes 47, 31.

[89.]Globe 3039; and see supra Chapter 4 at note 34.

[90.]400 U.S. at 264.

[91.]Globe 2542.

[92.]Id. 3978, 3979.

[93.]Id. 3980.

[94.]400 U.S. at 264.

[95.]Supra note 40; infra Chapter 7 at note 40. For rejection of another Sumner proposal, see supra Chapter 4 at note 20. A “deep estrangement . . . existed between Sumner and his Republican colleagues . . . More and more Senators came to distrust, when they did not detest, him.” Donald, Sumner II 248. See also supra notes 6 and 28.

[96.]400 U.S. at 266.

[97.]Globe 536.

[98.]Kendrick 51, 55.

[99.]400 U.S. at 267. Brennan also cites two other Democrats, Boyer of Pennsylvania and Senator Hendricks of Indiana, id. 274.

[100.]Infra Chapter 9.

[101.]400 U.S. at 268.

[102.]Id. 276–277; Van Alstyne 39.

[103.]Reynolds v. Sims, 377 U.S. at 594.

[104.]Globe 2801. See also Senator Reverdy Johnson, supra Chapter 4 note 61.

[105.]400 U.S. at 277.

[106.]Supra Chapter 4.

[107.]Unless evidence is inherently incredible, it must be countered by evidence, not speculation. Supra note 15.

[*]Globe 705. Fessenden was co-chairman of the Joint Committee on Reconstruction, which drafted the Amendment.

[1.]Oregon v. Mitchell, 400 U.S. 112, 263 (1970). [ “Vague and uncertain laws, and more especially Constitutions, are the very instrument of slavery.” 3 Samuel Adams, The Writings of Samuel Adams 262 (Harry A. Cushing ed. 1904).]

[2.]Cf. T. C. Grey, “Do We Have an Unwritten Constitution?” 27 Stan. L. Rev. 703, 712–713, 709 (1975); see infra note 9.

[3.]“The Constitution is not a blank check to posterity.” Ward Elliott, The Rise of Guardian Democracy viii (1974). For a similar statement by Justice Black see infra Chapter 11 note 27.

[4.]Dean Francis Allen stated, “There is evidence that those who drafted Section 1 intended that the meanings of these phrases should evolve and expand with the passage of time and changes of circumstance.” “The Constitution: The Civil War Amendments: XIII–XV,” in American Primer 161, 165 (Daniel J. Boorstin ed. 1966). Carl Auerbach likewise noticed general agreement that the original understanding did not comprehend “immediate” suffrage but that Congress wittingly chose “language capable of growth.” “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. Ct. Rev. 1, 75–76. Wallace Mendelson said that due process and equal protection “doubtless were designed to have the chameleon’s capacity to change their color with changing moods and circumstances.” Justices Black and Frankfurter: Conflict in the Court viii (1961).

[5.]400 U.S. at 139–140.

[6.]347 U.S. 483 (1954).

[7.]Richard Kluger, Simple Justice 654 (1976) (emphasis added).

[8.]Alexander Bickel, The Least Dangerous Branch 100 (1962). [In The Supreme Court and the Idea of Progress 48 (1978) Bickel stated: “The Framers of the Fourteenth Amendment explicitly rejected the option of an open-ended grant of power to Congress freely to meddle with conditions within the States, so as to render them equal in accordance with Congress’s own notions. Rather, federal power, legislative as well as judicial, was to be limited by the terms of the Amendment.”

James Wilson, chairman of the House Judiciary Committee, stated, “I fear that comprehensive statesmanship which cares for posterity as well as itself will not leave its impress upon the measure we are now considering.” Globe 2947. Michael Perry considers that Berger has “devastated the notion that the framers of the Fourteenth Amendment . . . intended it to be open-ended.” Michael Perry, “Book Review,” 78 Colum. L. Rev. 685, 695 (1978).]

[9.]Kluger, supra note 7 at 655. Professor Robert McKay “finds the answer in the fact that it is not a statute but in Chief Justice Marshall’s words, ‘a constitution we are expounding.’ ” Quoted in Louis Pollak, “The Supreme Court Under Fire,” 6 J. Pub. L. 428, 440 (1950). That Marshall has been utterly misconstrued down the years is shown infra Chapter 21 at notes 1–28. Here it may be noted that the plea for “growth” is in truth a claim for judicial power to revise the Constitution. In one of the great paradoxes of our time, Justice Black, that supreme “revisionist,” dismissed “rhapsodical strains, about the duty of the Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with the duty to make those changes . . . The Constitution makers knew the need for change and provided for it” by the amendment process of Article V. Griswold v. Connecticut, 381 U.S. 479, 522 (1965), dissenting opinion.

[10.]This shift is discussed infra Chapter 11 at note 35.

[11.]Bickel 60–61.

[12.]See Kelly infra Chapter 13 at note 53; Thayer supra Chapter 2 at note 28.

[13.]See infra Chapter 7 at notes 11–17, and 21. [In 1968 Alexander Bickel testified before the Senate Subcommittee on the Separation of Powers in Hearings on the Supreme Court that the “open-ended” Bingham amendment was voted down because “it left Congress too free.” The framers thought that section 1 “limited, imposed limits on what Congress could do.” An “open-ended power also means that Congress can go there in those States and simply rearrange the social scene, and the legal order in those States, and we don’t want that either.” Hearings on the Supreme Court Before the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., at 44–45 (June 1968).]

[14.]Bickel 61.

[15.]“Natural rights” had acquired a settled common law meaning; supra Chapter 2 note 55. “The obvious conclusion, to which the evidence, thus summarized, easily leads is that section 1 of the fourteenth amendment, like section 1 of the Civil Rights Act of 1866, carried out the relatively narrow objectives of the Moderates, and hence, as originally understood, was meant to apply neither to jury service, nor suffrage, nor miscegenation statutes, nor segregation.” Bickel 58.

[16.]Globe 2765.

[17.]Id. 3041. Just before Johnson spoke, Senator James A. McDougall of California stated that the Civil Rights Act “was simply to carry out the ‘privileges and immunities’ ” provision of Article IV, §2. Id. 3035.

[18.]Id. 2883, 2896. Van Aernam stated the Amendment gives “constitutional sanction and protection to the substantial guarantees of the civil rights bill.” Id. 3069.

[19.]Id. 2961.

[20.]Id. 2766.

[21.]Bickel 61–62. Earlier Flack had put the matter more bluntly: the “main purpose [of the Radical leaders] in proposing the first section of the Amendment was to increase the power of the Federal Government very much, but to do so in such a way that the people would not understand the great change intended to be wrought in the fundamental law of the land.” Flack 69. But, he observed, “had the people been informed of what was intended by the Amendment, they would have rejected it.” Flack 237. [In 1830 Madison wrote, “it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.” 3 Records of the Federal Convention of 1787 483, 488 (Max Farrand ed. 1911).]

[22.]Supra Chapter 5 at note 30; Chapter 4 at note 33.

[23.]James 167; see also infra Chapter 13 at notes 38–45.

[24.]Morton Keller, Affairs of State 67 (1977); and see infra Chapter 13 at notes 16–17.

[25.]Bickel 63.

[26.]Id. “Perhaps the passage of the Civil Rights Act of 1875 ultimately is the most decisive indication of the conviction of a large majority of the Radicals that Congress might properly forbid state caste and segregation legislation under the amendment [ §5], but again this law implied congressional power and discretion, not necessarily the existence of prior mandatory rights enforceable under the amendment alone.” Kelly, Fourteenth 1085 (emphasis added). See infra Chapter 12.

[27.]Bickel 45–46 (emphasis added); cf. Globe 2459. Stevens stated “prospective” suffrage would be unacceptable; infra at notes 27, 38–41. In explaining §2, Stevens stated, “True it will take two, three, possibly five years before they [Southern States] conquer their prejudices sufficiently to allow their late slaves to become their equals at the polls.” Globe 2459 (emphasis added). This speaks against a §1 power in the future to compel States to grant suffrage; and it is confirmed by Stevens’ statement that “The large stride which we in vain proposed is dead.” Globe 2460.

[28.]Globe 2964.

[29.]Id. 2941.

[30.]Id. 2947.

[31.]In his famous attempt to read corporations out of the Fourteenth Amendment, Justice Black said, “A secret purpose on the part of the members of the Committee, even if such would be the fact, however, would not be sufficient to justify any such construction.” Connecticut General Ins. Co. v. Johnson, 303 U.S. 77, 87 (1938), dissenting opinion. Cf. infra Chapter 8 at notes 77 and 95.

[32.]Globe 1275.

[33.]Fairman, Stanford 74–75.

[34.]Bickel 63 (emphasis added). Yet Bickel noted that “equal protection” had a limited meaning for the “Moderates, led by Trumbull and Fessenden,” the right “of benefitting equally from the laws for the security of person and property.” Id. 56.

[35.]Bickel also builds on the fact that §1 of the Fourteenth Amendment deals with discrimination “whether or not based on color” and “this feature of it could not have been deemed to be included in the standard identification of section 1 with the Civil Rights Act,” an indication of future breadth. Id. 60. But §1 of the Civil Rights Act likewise provided that “the inhabitants of every race and color . . . shall have the same right,” and the debates show that its coverage extended to whites. As Bickel noticed, Senator Trumbull stated that “this bill applies to white men as well as black men. It declares that all persons . . . shall be entitled to the same civil rights.” Globe 599; Bickel 14 note 36. In any event, inclusion of whites does not broaden the protection for property and personal security which the Act provided for both blacks and whites.

[36.]Kendrick 192.

[37.]Globe 2766.

[38.]Bickel 41–42; Kendrick 83–84.

[39.]Kendrick 298. This view was shared by Senator Fessenden, Globe 704; William A. Newell of New Jersey, id. 867; and Stevens himself, supra Chapter 4 at note 64. See also C. Vann Woodward, The Burden of Southern History 92 (1960).

[40.]Kendrick 302 (emphasis added).

[41.]Bickel 43.

[42.]Globe 2766 (emphasis added).

[43.]Kelly, Fourteenth 1069, 1071 (emphasis added).

[44.]“A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit . . . would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.” M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819); cf. Bickel 61.

[45.]Kelly, Fourteenth 1071.

[46.]Andrew J. Rogers charged that §1 “is no more nor less than an attempt to embody in the Constitution . . . that outrageous and miserable civil rights bill”; later he stated that it “simply embodied the gist of the civil rights bill.” Globe 2538; Globe App. 229; quoted in Bickel 48, 54. This was the all but universal view; supra Chapter 2 at notes 10–13.

[47.]Infra Chapter 11 at notes 36–37.

[48.]Globe 3979.

[49.]Kelly, Fourteenth 1077.

[50.]Id. 1084.

[50a.]Infra Chapter 7 at notes 11–21.

[51.]For example, by way of prelude to a quotation from Kent, who had frequently been cited without florid panegyrics, Bingham must needs gild the lily: “one of those grand intellects who during life illustrated the jurisprudence of our country, and has left in his works a perpetual monument of his genius, his learning, and his wisdom.” Globe 1292. It is instructive to compare the flow of such effusions with the spare, lean style of Fessenden, Trumbull, and Hale. See also infra Chapter 8 note 54.

[52.]Cong. Globe, 39th Cong., 2d Sess. 816 (Jan. 28, 1867). See also infra Chapter 13 at notes 30–36; Kluger, infra Chapter 7 note 20.

[53.]Van Alstyne 72 (emphasis added).

[54.]Id. 74–75.

[55.]Globe 356.

[56.]Id. 1255. “George Ticknor Curtis typified a large stream of conservative constitutionalism in his argument that the Thirteenth Amendment diminished states’ powers not one whit beyond abolition.” H. M. Hyman, A More Perfect Union 428 (1973). Senator Cowan, a Conservative Republican from Pennsylvania, stated that the Thirteenth Amendment was understood merely “to liberate the negro slave from his master.” Globe 499. On the other hand, Senator Howard, a member of the Judiciary Committee that drafted the Thirteenth Amendment, understood it to authorize the Civil Rights Bill. Globe 503. [United States v. Harris, 106 U.S. 629, 643 (1882) rejected the notion that “under a provision of the Constitution which simply abolished slavery and involuntary servitude, we should with few exceptions invest Congress with power of the whole catalog of crimes.” ]

[57.]Globe 1291.

[58.]Van Alstyne 75.

[59.]Globe 1291; see Chapter 7 at notes 12–15. Van Alstyne, 76, states that “In spite of the declarations that the bill would not affect voting rights, even Bingham was not satisfied. He moved to strike out the opening general phrase . . . he doubted both the wisdom and constitutionality of legislating with respect to the franchise” (emphasis added). Since Bingham was the architect of §1 of the Amendment, how did he become the vehicle of smuggling an undisclosed provision for suffrage into the section?

[60.]Globe 1366; Van Alstyne 77.

[61.]Van Alstyne 73, 77.

[62.]Democratic Senator Saulsbury’s proposal to add to the Civil Rights Bill “except the right to vote in the State” was rebuffed by Senator Trumbull: “This bill relates to civil rights only, and I do not want to bring up the question of negro suffrage in the bill.” Globe 606; Van Alstyne 76; cf. supra at note 17.

[63.]Supra Chapter 1 note 24.

[64.]Fairman, Stanford 77, 74.

[65.]Id. 74, 75.

[66.]Id. 70. James, 179, said, “statements of congressmen before their constituents definitely identify the provisions of the first section of the amendment with those of the Civil Rights Bill.”

[67.]Infra Chapter 8 at note 93. See supra note 21.

[68.]Justice Douglas wrote, “The principle of full disclosure has as much place in government as it does in the market place,” William O. Douglas, “Stare Decisis,” 49 Colum. L. Rev. 735, 754 (1949).

[1.]347 U.S. 483 (1954).

[2.]Richard Kluger, Simple Justice (1976); hereinafter Kluger.

[3.]“The result,” Archibald Cox stated, “can only be described as a revolution in constitutional law.” The Role of the Supreme Court in American Government 57 (1976).

[4.]3 Jonathan Eliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 186 (1836); Berger, Congress v. The Supreme Court 13–16.

[5.]Kluger 635.

[6.]Infra at notes 24–25.

[7.]Kluger 599, 653.

[8.]Id. 654. Kluger states that the Bickel memorandum held that “the legislative history, while revealing no evidence that the framers of the amendment had intended to prohibit school segregation, did not foreclose future generations from acting on the question, either by congressional statute or by judicial review.” Id. 655; see also 634. But this is at odds with Bickel’s covering letter, supra Chapter 6 at note 7. In fact, as will shortly appear, the framers deliberately excluded school segregation from the ambit of the Civil Rights Bill and therefore of the Amendment.

[9.]Bickel 56.

[10.]Globe 1117. Wilson’s statement is more fully quoted supra Chapter 2 at note 26. He later reiterated that the limited objectives of the bill did not extend to “setting aside the school laws and jury laws.” Globe 1294.

[11.]Kluger 626.

[12.]Id. 635. Among the legal historians drawn into preparation of the briefs by the NAACP was Howard Jay Graham. Id. 625–626. “He was particularly troubled by Representative Wilson’s insistence during the phase of the debates dealing with the ‘no discrimination’ clause that the Civil Rights Bill was not intended to outlaw separate schools. That negative reference, Graham reported, was unfortunate, particularly since he was House Manager of the . . . bill.” Id. 634–635.

The “key session” of the NAACP “giant conference running for three days and nights” was “devoted to the papers of [Howard] Jay Graham and Alfred Kelly on the troubling relationship between the Civil Rights Act of 1866, which had been specifically stripped of its broad ‘no discrimination’ language, and the Fourteenth Amendment, created in its immediate aftermath and conceived, as many historians believed, simply to constitutionalize the rights act.” Id. 637. The paper Kelly delivered was on “the damning modification of the Civil Rights Bill in the House and its apparent identity in purpose with the Fourteenth Amendment.” He recounted that he “didn’t understand the relationship between advocacy and history at that point” and considered the problem “nearly insurmountable.” Id. 637.

[13.]TenBroek 145–148; Graham 280, 283.

[14.]The Bill is set out in pertinent part supra Chapter 2 at note 14. [Justice Harlan pointed out that Bingham, in the meetings of the Joint Committee on Reconstruction, was “successful in replacing section 1 of Owen’s proposal, which read ‘No discrimination . . . as to the civil rights,’ with the ‘abridge the privileges or immunities of citizens.’ ” Oregon v. Mitchell, 400 U.S. 112, 172 (1970) (emphasis added).]

[15.]Globe 1291–1293 (emphasis added).

[16.]E.g., Wilson, supra at note 10.

[17.]Bickel 24.

[18.]Kluger 640–641. The noted historian Henry Steele Commager had advised the NAACP that “The framers of the amendment did not, so far as we know, intend that it should be used to end segregation in schools.” Id. 620.

[19.]Id. 641.

[20.]Justice Black, for whom Bingham is the authoritative expositor, recognized that Bingham objected to the Civil Rights Bill because “it would actually strip the states of power to govern, centralizing all power in the Federal Government. To this he was opposed.” Adamson v. California, 332 U.S. 46, 100 (1947), dissenting opinion.

Kluger 641, relates, “One hurdle in the way of [Kelly’s] reading of Bingham’s intention was a later speech of Thaddeus Stevens, the most powerful man in the House and a strong ally of Bingham. Among other things, Stevens said that a principal purpose of the Fourteenth Amendment had indeed been to re-enact and therefore insure the constitutionality of the Civil Rights Act (even shorn of its broad ‘no discrimination’ language)—an apparent concession to those who wished to interpret the amendment narrowly. But Kelly concluded that the apparently damaging portion of Stevens’ speech had to be considered against the larger political picture and the clear drift of Stevens’ generally radical utterances.” One thing he was plainly not so radical about was desegregation in the schools. See infra at note 39.

[21.]Globe 1366.

[22.]Kelly, Fourteenth 1068 note 73. In this very article, however, Kelly concluded, “It seems highly probable, then, that the Civil Rights Act, as finally passed, was not intended to ban state racial segregation and classification laws. The main force of the Conservatives’ attack on the ‘no discrimination’ clause was that it would indeed destroy all race classification laws.” Id. 1069–1070.

Bingham’s remarks have been subject to varying interpretations, see Bickel 27 note 54; Kelly, Fourteenth 1068. Bickel sums up, “Whatever the ambiguities of his speech, one thing is certain. Unless one concludes that Bingham entertained apprehensions about the breadth of the term ‘civil rights’ and was unwilling at this stage, as a matter of policy, not constitutional law, to extend a federal guaranty covering all that might be included in that term, there is no rational explanation for his motion to strike it.” Bickel 25–26. Certainly Wilson so understood; supra at note 21.

[23.]E.g., supra Chapter 5 at notes 42–43.

[24.]Kluger 654–655.

[25.]Id. 633–634.

[26.]Id. 635.

[27.]Id. The problem also troubled Justice Jackson, infra at note 43.

[28.]Kelly, Fourteenth 1085. For example, when Senator Wilson proposed to allocate funds for the public schools in the District of Columbia, explaining that existing law provided “for the establishment of colored schools” in the District, and the funds would be divided pro rata, Reverdy Johnson asked for and received assurance that “there is no authority to have a mixture of children in any one school.” Globe 708–709.

[29.]182 F.2d 14, 17 (D.C. Cir. 1950).

[30.]Kelly, Fourteenth 1085.

[31.]United States v. Freeman, 44 U.S. (3 How.) 556, 564 (1845). See also infra Appendix A note 46.

[32.]Phillip S. Paludan, A Covenant With Death 50 (1975).

[33.]Globe 263–264. For a similar expression by Patterson of New Hampshire, see supra Chapter 2 at note 30. So, too, Republican Senator Cowan of Pennsylvania was willing to secure to blacks “their natural rights” but not to desegregate the schools. Globe 500. See also Republican Thomas T. Davis of New York, infra Chapter 10 at note 21.

[34.]Globe 766: “Why is it that [you have] separate places for the respective races even in your own chamber? Why are they not put together?”

[35.]Bickel 10 note 29.

[36.]Globe 652, 834, 590; cf. Donnelly, id. 513. Recall Lawrence’s exclusion of “political rights [and] those dependent on local law,” as was the privilege of attending public schools, supra Chapter 2 note 28, and Windom’s statement that the Civil Rights Bill does not confer “the privilege of voting” nor “social privileges.” Supra Chapter 2 note 30.

John F. Farnsworth feared that enfranchisement alone might not suffice if it were dependent on reading and writing qualifications, for the States may “exclude him from the schools.” Globe 383. See also Frederick Pike of Maine, id. 407. Enfranchisement failed, as did attempts to open the schools. See infra note 40.

[37.]Kendrick 206.

[38.]Globe 916.

[39.]Fawn Brodie, Thaddeus Stevens: Scourge of the South 320 (1959). Stevens assured the electorate in September 1866 that the Amendment “does not touch social or political rights.” James 201. Perhaps the reason, as Rogers noted, was that in “Pennsylvania there is a discrimination between the schools for white children and the schools for blacks. The laws there provide that certain schools shall be set aside for black persons,” and inquired whether Congress has a right to “interfere with these statutes.” Globe 1121. Senator Cowan of Pennsylvania objected to such interference. Id. 500.

[40.]Fairman, History 329. Sumner “placed little stress upon the Fourteenth Amendment guarantee of equal protection of the laws; too many of his colleagues who had helped draft that ambiguous document would reply that they had never intended to outlaw segregation . . . When Senator Morrill insisted upon learning exactly where in the Constitution the federal government was given control ‘over matters of education, worship, amusement . . .’ Sumner discovered authorization in the Sermon on the Mount and in the Declaration of Independence.” Donald, Sumner II 532.

As late as December 1871 Sumner reintroduced a bill which had been adversely reported in 1870–1871: “He maintained that hotels, public conveyances and schools . . . should be opened equally to all.” Flack 250. “Without this complementary bill,” the Civil Rights Act “was imperfect, he declared,” Flack 251. Though there was some contrariety of opinion, id. 253–265, the House, by a vote of 128 to 48, insisted on an amendment “striking out all reference to common schools,” id. 275. Senator Morrill opposed the Sumner bill because the “Federal Government had no right to take cognizance of matters of education, amusement . . . it is without warrant in the Constitution,” i.e., the Fourteenth Amendment. Id. 252–253.

[41.]Graham 290 note 70. Nevertheless Graham stated that “no one is obliged or disposed to grant—that an outright majority of 1866–1868 did regard race segregation in their public schools, as a peculiar form of race discrimination—as one which in their judgment, would remain unaffected by the Fourteenth Amendment.” Id. 291.

Compare with the foregoing history, in considerable part earlier set forth by Alexander Bickel, Charles Black’s recent statement: “I started, virtually [as of NAACP counsel], with Brown v. The Board of Education, a case which seemed to me then and still seems to me to have been as nearly syllogistic as a real law case can be. The Fourteenth Amendment, in the clear light of its history, and without any straining or special pleading, forbade all discrimination against black people as such, however euphemized and however daubed with cosmetics.” C. Black, “The Judicial Power as Guardian of Liberties,” statement prepared for delivery at a Symposium on Constitutional Liberties in Modern America, Wayne State University, Detroit, Michigan, October 16, 1976, 2 (emphasis added). Chief Justice Warren’s “syllogisms” are examined infra Chapter 13 at notes 56–60. Black’s “clear . . . history” seemed “inconclusive” to Chief Justice Warren, who chose rather not to “turn back the clock to 1868.” See infra at note 61.

[42.]Among other things, Kluger consulted the notes of Justices Burton, Frankfurter, and Jackson, and interviewed several of the Justices and the Justices’ clerks. Kluger 788–789.

[43.]Id. 590.

[44.]Id. 612, 614; Plessy v. Ferguson, 163 U.S. 537 (1896), the “separate but equal” decision.

[45.]Kluger 600. “Nothing could have been worse, for the Court or the nation itself, than a flurry of conflicting opinions that would confuse and anger the American people.” Id. 696. Desegregation could hardly have been imposed upon the nation by a divided Court; the stakes simply were too high. Frankfurter “played a pivotal role in bringing about a unanimous Court” in Brown. Joseph P. Lash, From the Diaries of Felix Frankfurter 83 (1975).

[46.]Kluger 614–616.

[47.]Id. 656. As Justice Frankfurter was dressing for the Vinson funeral, Bickel overheard him murmuring, “An act of Providence, an act of Providence.” Lash, supra note 45 at 83. Compare this with his condemnation of “Law” that turns on “contingencies in the choice of successors.” Infra Chapter 17 note 44.

[48.]Kluger 624, 601. “When President Eisenhower appointed Earl Warren to the Chief Justiceship, Frankfurter took him to school on the issues in the Brown case in lengthy talks.” Lash, supra note 45 at 83–84. [Alexander Bickel, who was a clerk to Justice Frankfurter at the time Brown v. Board of Education was decided, wrote, “(W)hen the inner history of that case is known, we may find that he was a moving force in its decision.” Alexander Bickel, The Supreme Court and the Idea of Progress 33 (1978).]

[49.]Infra Chapter 14 at note 50. In a file memorandum, the essence of which Frankfurter communicated to his brethren at a conference, he emphasized, “it is not our duty to express our personal attitudes towards these issues however deep our individual convictions may be. The opposite is true.” Kluger 684. [Justice Frankfurter stated, “Nor should resentment or injustice displace the controlling history in judicial construction of the Constitution.” United States v. Lovett, 328 U.S. 303, 323 (1946), concurring opinion.]

[50.]Kluger 601. Bickel justly remarked that were the ultimate “reality” that judicial review spells nothing more than “personal preference,” the judicial “authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy.” The Least Dangerous Branch 80 (1962).

[51.]Justice Jackson “was worried about how a Court decision outlawing segregation could affect the nation’s respect for ‘a supposedly stable organic law’ if the Justices were now, overnight, as it were, to alter an interpretation of the Fourteenth Amendment which had stood for more than three-quarters of a century.” Kluger 604.

[52.]Id. 598. Justice Tom Clark “had been surprised by the legislative history, since he had always thought that one of the avowed purposes of the Fourteenth Amendment had been to abolish segregation.” Id. 682.

[53.]Id. 653.

[54.]Id. 688–689.

[55.]Id. 681, 609.

[56.]Id. 690, 683.

[57.]Id. 683.

[58.]A deterrent, in Justice Frankfurter’s words, was that the decision required “the adjustment of men’s minds and actions to the unfamiliar and unpleasant.” Id. 615. See infra Chapter 14 notes 140, 143, Chapter 23 at notes 30–34.

[59.]Edmond Cahn welcomed judicial intervention precisely because no amendment could have been obtained. Infra Chapter 15 at note 14.

[60.]It had not seemed “inconclusive” to Vinson, supra at note 43; Frankfurter, supra at note 52; Jackson, supra at note 54; Clark, supra note 52; and probably not to Reed, Kluger 595–596, 680–692.

[61.]347 U.S. at 489, 492. Brown told about Warren’s “unabashed and primary commitment to justice and his willingness to shape the law to achieve it.” Paul Murphy, The Constitution in Crisis Times, 1918–1969 312 (1972). For analysis of Warren’s opinion, see infra Chapter 13 at notes 56–61.

[62.]As Graham, 269, stated, Brown v. Board of Education was “decided with scant reference to the historical rebriefings or to framers’ intent or original understanding. Rather, political and judicial ethics, social psychology—what the equal protection of the laws means, and must mean in our time, whatever it may have meant to whomsoever in 1866–1868—these were the grounds and the essence of Chief Justice Warren’s opinion.” “What it must mean in our time” is one way of saying that the Justices may revise the Constitution. Sumner did not rely on equal protection because he knew that many of the draftsmen would affirm “that they had never intended to outlaw segregation.” Supra note 40.

[63.]Kluger 601.

[64.]Id. 685. But compare Hamilton, infra Chapter 17 at note 15. Frankfurter’s pronouncement that the clearly expressed intention of the framers cannot be regarded as “a fixed formula,” cannot be “congealed,” is incompatible with his insistence that “very specific provisions” such as the prohibition of “bills of attainder” must be read as “defined by history.” Infra Chapter 21 at note 46. Why should an historical definition deserve more respect than the framers’ own explanation of their intention? Courts, Frankfurter had stated, “are not designed to be a good reflex of a democratic society.” Dennis v. United States, 341 U.S. 494, 525 (1951), concurring opinion.

[65.]In “recalling that it is a Constitution ‘intended to endure for ages to come,’ ” Justice Black stated, “we also remember that the Founders wisely provided the means for that endurance: changes in the Constitution, when thought necessary, are to be proposed by Congress or conventions and ratified by the States. The Founders gave no such amending power to this Court.” Bell v. Maryland, 378 U.S. 226, 342 (1964). See infra Chapter 17 at notes 15–22.

[66.]For 1866 see supra Chapter 1 at notes 36–46; for the present day, see infra Chapter 17 at note 55, and note 55.

[67.]Kluger 688.

[68.]Id. 710, emphasis added.

[69.]Adkins v. Children’s Hospital, 261 U.S. 525, 570 (1923), dissenting opinion.

[1.]Henkin, “Some Reflections on Current Constitutional Controversies,” 109 U. Pa. L. Rev. 637, 644; Lusky 159.

[2.]For the difference between “incorporation” and “absorption,” see Felix Frankfurter, “Memorandum on ‘Incorporation’ of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment,” 78 Harv. L. Rev. 746, 747–748 (1965). For “adoption” see infra Chapter 14 at notes 99–122.

[3.]32 U.S. (7 Pet.) 243 (1833).

[4.]It has been little noticed that, as Egbert Benson, speaking with reference to freedom of speech and press, said, all the Committee of Eleven to whom the amendments had been referred “meant to provide against was their being infringed by the [federal] Government.” 1 Annals of Congress 732. Madison urged that “the State governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.” Id. 441. But his attempt failed. Charles Warren, “The New ‘Liberty’ under the Fourteenth Amendment,” 39 Harv. L. Rev. 431, 433–435 (1926). The drive was for protection against the federal government; as Thomas Tucker said, “Five important States have pretty plainly expressed their apprehensions of the danger to which the rights of their citizens are exposed.” 1 Annals of Congress 757. Elbridge Gerry observed: “This declaration of rights, I take it, is designed to secure the people against the maladministration of the [federal] Government.” Id. 749. Earlier James Jackson asked, “Who are Congress, that such apprehensions should be entertained of them?” Id. 442. In presenting the amendments Madison explained that “the abuse of the powers of the General Government may be guarded against in a more secure manner.” Id. 432. He added, “If there was reason for restraining the State Governments [by State constitutions] from exercising this power, there is like reason for restraining the Federal Government.” Id. 439. The view that prevailed was that of Thomas Tucker: “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.” Id. 755.

[5.]Duncan v. Louisiana, 391 U.S. 145, 173 (1968), dissenting opinion in which Justice Stewart concurred.

[6.]The cases are discussed in Stanley Morrison, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stan. L. Rev. 140 (1949).

[7.]Lusky 161.

[8.]Anthony Lewis, “A Man Born to Act, Not to Muse,” in Levy, Warren 151, 159.

[9.]See infra at notes 86–88. It can hardly be gainsaid that “The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their peculiar circumstances.” Justice Harlan, 391 U.S. at 172. Cf. Justice Miller, supra Chapter 4 at note 51. For a century the federal system “permitted States, but forbade Washington, to protect and defend the civil and political rights of citizens.” Phillip S. Paludan, A Covenant With Death 12 (1975).

[10.]Globe 1120.

[11.]Fairman states that “The rest of the evidence bore in the opposite direction, or was indifferent.” Fairman, Stanford 65. I found no additional confirmation for Black.

[12.]Adamson v. California, 332 U.S. 46, 64 (1947), concurring opinion. Frankfurter himself later spoke to the contrary, supra Chapter 1 note 22.

[13.]Wright v. Vinton Branch, 300 U.S. 440, 463 (1937); Wisconsin R.R. Comm. v. C. B. & Q.R.R. Co., 257 U.S. 563, 589 (1922); United States v. Federal Power Commission, 191 F.2d 796, 802 (4th Cir. 1951): “great weight must be accorded . . . to opinions expressed by members of the committees having the legislation in charge.”

[14.]Supra Chapter 1 note 24.

[15.]Adamson v. California, 332 U.S. at 74.

[16.]Fairman, Stanford.

[17.]Supra note 6; Lusky 162. Fairman “conclusively disproved Black’s contention, at least, such is the weight of opinion among disinterested observers.” Alexander Bickel, The Least Dangerous Branch 102 (1962). Levy states, however, that “Fairman’s findings were basically negative. He did not disprove that the Fourteenth incorporated the Bill of Rights; he proved, rather, that there is very little evidence either that its framers intended that result or that the country understood that intention.” Levy, Judgments: Essays in American Constitutional History 70 (1972). The proposition that “the Fourteenth Amendment incorporated the Bill of Rights” constitutes an invasion of rights reserved to the States by the Tenth Amendment, an invasion of such magnitude as to demand proof that such was the framers’ intention. Levy would shift the burden of proof and require Black’s critics to prove the negative before he proved the intention to incorporate. He himself stated that “Black did not merely misread history . . . he mangled or manipulated it.” Levy, Judgments, id. 68.

But Justice Black remained unconvinced. Duncan v. Louisiana, 391 U.S. 145, 165, concurring opinion. The Court itself, as Thomas Grey remarked, “clearly has declined” to accept “the flimsy historical evidence” mustered by Black for incorporation. “Do We Have an Unwritten Constitution?” 27 Stan. L. Rev. 703, 711–712 (1975).

[18.]In Gitlow v. New York, 268 U.S. 652, 666 (1925), the Court “assumed” arguendo that the free speech of the First Amendment is protected by the due process of the Fourteenth. From that assumption grew the absorption of free speech into due process. See infra Chapter 14.

[19.]332 U.S. at 69, 86. So too, “When the Court declares that one or the other of the Bill of Rights provisions is ‘fundamental’ and therefore incorporated, it draws only upon its own sense of what the Fourteenth Amendment ought to say.” Lusky 163; see also id. 266.

[20.]332 U.S. at 89. Black confirmed his compromise in Duncan v. Louisiana, 391 U.S. at 171, concurring opinion. For discussion of the legal consequences presented by the differentiation between “selective” and “full” incorporation, see Louis Henkin, “ ‘Selective Incorporation’ in the Fourteenth Amendment,” 73 Yale L.J. 74 (1963).

[21.]Duncan v. Louisiana, 391 U.S. at 166, concurring opinion.

[22.]332 U.S. at 90.

[23.]See supra Chapter 3.

[24.]332 U.S. at 71.

[25.]134 U.S. 418.

[26.]332 U.S. at 79. Historically, due process meant service of process (e.g., a writ or summons) in due, i.e., proper, course. Infra Chapter 11 at notes 13–22. Dissenting in Harper v. Virginia Board of Elections, 383 U.S. 663, 675 (1966), Justice Black found “no constitutional support whatever” for the use of the due process clause as “a blank check to alter the meaning of the Constitution as written.” For the 39th Congress’ narrow view of due process, see infra Chapter 11 at notes 48–52.

[27.]13 N.Y. 378; infra Chapter 11 at notes 23–27, 36–37; Chapter 14 at notes 34–35.

[28.]Infra at note 36.

[29.]Kendrick 61; Globe 1034. Kendrick comments that when the Bingham amendment was reported to the House, “That body did not receive it with wild enthusiasm, and even denied it the privilege of being considered as a special order. Since to have placed it on the regular calendar would have meant its indefinite postponement, it was recommitted” in the hope of returning on a “more propitious occasion.” Bingham “stood almost alone as its champion and defender” when he introduced it. Kendrick 215.

[30.]Globe 1034.

[31.]Fairman, Stanford 26.

[32.]“No one in debate ever runs down the list of the federal Bill of Rights.” Id. 44; see also infra at notes 57–59.

[33.]Globe 1054.

[34.]Id. 1088. Price of Iowa understood the Bingham amendment “to give the same rights, and privileges, and protection to the citizen of one State going into another that a citizen of that State would have who had lived there for years,” i.e., under Article IV, §2; Globe 1066.

[35.]Id. 1291.

[36.]Id. 1294.

[37.]Kendrick 214–215; cf. Bickel 42–43; cf. Flack 59.

[38.]Globe 1090–1091.

[39.]Bickel 39.

[40.]Id. 40.

[41.]Id. 42; this was drawn from the Fifth Amendment.

[42.]Globe 1120.

[43.]Id. 1034. The Bill of Rights, he said, is “to be enforced by State tribunals.” Id. 1291.

[44.]Id. 1034.

[45.]32 U.S. (7 Pet.) 243 (1833).

[46.]Globe 1089–1090.

[47.]Globe 1089, 1292–1293 (emphasis added). On February 28 he commented on Hale’s statement “that the citizens must rely upon the State for their protection. I admit that such is the rule under the Constitution as it stands.” Globe 1093. Consider too his statement, “although as ruled the existing amendments . . . do not bind the States, they are nevertheless to be enforced and observed in the States.” Globe 1090 (emphasis added). As Fairman, History 334, pointed out, “civil status had been entirely a matter of State concern. Thus when Chancellor Kent discussed the ‘Rights of Persons’ to ‘Personal Liberty and Security’ . . . he told of State constitutions and laws.” See also Fairman, id. 1368. Speaking of the First Amendment “right . . . to assemble,” Chief Justice Waite stated, “For their protection in its enjoyment . . . the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.” United States v. Cruikshank, 92 U.S. 542, 552 (1875).

[48.]See supra Chapter 3 at notes 19–20.

[49.]Globe 2452. But earlier he stated, “I do not admit . . . that any State has a right to disfranchise any portion of the citizens of the United States.” Globe App. 57.

[50.]Morrison, supra note 6 at 161; Fairman, Stanford 34–36.

[51.]Or, as Fairman stated, “When other members were unable to find out what he meant, they can hardly be charged with consenting to his words.” Fairman, id. 66.

[52.]332 U.S. at 74. The “implied comparison seems a slur upon the sharp-minded Father of the Constitution. For Bingham is one who used ringing rhetoric as a substitute for rational analysis.” Wallace Mendelson, “Mr. Justice Black’s Fourteenth Amendment,” 53 Minn. L. Rev. 711, 716 (1969).

[53.]Bickel charitably states Bingham was “not normally distinguished for precision of thought and statement.” Bickel 25. Fairman considers him “an ardent rhetorician, not a man of exact knowledge or clear conception or accurate language.” Fairman, History 462; see id. 1289.

[54.]Three specimens must suffice: late in a debate which had frazzled men’s patience, he dwelt on “the departing sun shall have gilded with its last rays the dome of the capitol”; again, “I humbly bow before the majesty of justice, as I bow before the majesty of that God whose attribute it is.” Globe 2542, 1293.

When he grasped that Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), held the Bill of Rights inapplicable to the States, he stated, “they are nevertheless to be enforced and observed in the States by the grand utterance of that immortal man, who, while he lived, stood alone in his intellectual power among the living men of his country, and now that he is dead, sleeps alone in his honored tomb by the sounding sea,” namely, Daniel Webster. Globe 1090.

[55.]Quoted in Fairman, History 1277; Globe 1065; compare this with Chapter 5 supra at notes 58–64. For Bingham, enfranchisement of the blacks conformed “exactly to the spirit of the Constitution and according to the declared intent of its framers.” Globe 430. Yet he stated that “the grant of power” to “secure the enforcement of these provisions of the bill of rights in every State” “would have been [in the Constitution] but for the fact that its insertion . . . would have been utterly incompatible with the existence of slavery in any State.” Globe 1090. Engulfed by a sea of rhetoric, he never paused to sort out his ideas.

[56.]The legislative history of the Bill of Rights leaves no doubt that the First Congress designedly excluded States from its operations. Supra note 4.

[57.]Kelly, Fourteenth 1073 note 88. Graham, 265, states, “no one even pretended that all the clauses and guarantees of the Bill of Rights ever could or would be enforced against the States.” He concluded that the “odds appear heavily against” imputing to Bingham an intention to include “every clause of each of the eight Amendments,” and accepts Fairman’s proof that “the entire Bill of Rights was not incorporated,” Graham 315 note 80, as does Bickel 5 note 13. What are the criteria for selection?

[58.]TenBroek 214.

[59.]Id. 127; cf. infra Chapter 11 at notes 48–52.

[60.]Kendrick 257, 192.

[61.]James 82; M. L. Benedict, A Compromise of Principle 170 (1975).

[62.]Benedict, id. 34; Globe 2332, 3148; James 59.

[63.]Globe 2764, 2765.

[64.]332 U.S. at 73.

[65.]Flack once more relies on the argument from silence: “Howard’s interpretation of the amendment was not questioned by any one . . . this interpretation must be accepted as that of the Committee, since no member of the Committee gave a different interpretation or questioned his statements in any particular.” Flack 87. But see Trumbull infra p. 191.

[66.]Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 147. Fairman, Stanford 68–69, points out that no newspaper reported Howard’s remarkable expansion of the privileges and immunities clause, notwithstanding that application of the Bill of Rights would cut a wide swath through State self-rule. He rightly remarks, “If Senator Howard’s statement about Amendments I to VIII had really been accepted at the time, surely one would find it caught up and repeated in contemporary discussion.” Id. 137.

[67.]Globe 2964, 2332, 2769–2770.

[68.]Id. 2961 (emphasis added). From Poland’s statement, “the last two clauses were . . . in the Declaration of Independence and in the Constitution,” Flack distills, “evidently meaning some or all of the first eight Amendments, since one of the clauses [due process] was taken from the Fifth Amendment.” Flack 91. Reference to one Amendment does not warrant a deduction that all were intended; to the contrary the rule is that to enumerate one is to exclude others.

[69.]Fairman, Stanford 61, regards Poland’s remarks as “quite inconsistent with Howard’s speech.”

[70.]Globe 2896. On January 30 Howard assured the Senate that the purpose “is to secure” to the blacks “the ordinary rights of a freeman and nothing else . . . There is no invasion of the legitimate rights of the States.” Id. 504. Later, after his explanation of the Amendment, he stated that the Committee desired to put the rights conferred by the “civil rights bill beyond the legislative power [to repeal].” Id. 2896. Compare Senator Howe’s approval of the Amendment on June 5 because it enumerated the rights of citizenship: to hold land, collect wages, sue, and testify. Globe App. 219.

[71.]To convert the loose statements of Bingham and Howard, as Justice Black did, into the proposition “that one of the chief objects” of §1 “was to make the Bill of Rights applicable to the States,” 332 U.S. at 71–72, suggests that Black did not really take time to study the record but relied on the feeble and unsophisticated analysis of Flack. Id. 72 note 5.

Kelly stated that among the “argument[s] for the Black thesis,” which Fairman allegedly “ignores,” is that Senator Trumbull talked “constantly about ‘nationalizing’ an already existing ‘Bill of Rights’ for the states, which he repeatedly asserted to be implicit in the Privileges and Immunities Clause of Article IV of the ‘Old Constitution.’ ” Kelly, “Clio,” supra note 66 at 132–133. Kelly’s citation to Globe 474–475 does not sustain him. Trumbull made no reference to the Bill of Rights, confined his citations to Article IV, §2, and explained that the purpose of the Civil Rights Bill was “to destroy all these [enumerated] discriminations” against the Negroes. The Bill, he stated, “will have no operation in any State where the laws are equal, where all persons have the same civil rights without regard to color or race,” Globe 476 (emphasis added), a statement that spells “hands off” internal State laws that are nondiscriminatory and do not touch “civil rights.”

[72.]Fairman, Stanford 65.

[73.]Globe 2883 (emphasis added).

[74.]Id. 3069.

[75.]Id. 3148.

[76.]In his Adamson concurring opinion, Justice Frankfurter stated that adoption of the due process clause would be “a strange way of saying” that “every State must thereafter initiate prosecutions through indictment by a grand jury, must have a trial by a jury of twelve in criminal cases . . . after all, an amendment to the Constitution should be read in a ‘sense most obvious to the common understanding at the time of its adoption,’ ” quoting Justice Holmes (emphasis added). Those “conversant with the political and legal history of the concept of due process . . . would hardly recognize the Fourteenth Amendment as a cover for the various explicit provisions of the first eight Amendments.” 332 U.S. at 63. But no more would such readers guess that the due process clause would authorize judges to select “such provisions of the Bill of Rights as were ‘implicit in the concept of ordered liberty.’ ” Id. 54. Even less would they guess that it would be a “cover” for substantive due process, which was all but unknown to the “common understanding.” See infra Chapter 11. “It ought not to require argument,” Frankfurter stated, “to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth.” Id. 66. Apart from such considerations, the courts were too little trusted by the framers of the Fourteenth Amendment to be entrusted with such vast discretion. Infra Chapter 12.

Although Frankfurter inveighed against a “selective incorporation” without a “calculus for determining which go in and which stay out” as throwing us “back to a merely subjective task,” id. 65, he did not really appreciate that his “canons of decency and fairness which express the notions of justice of English-speaking . . . peoples,” id. 67, were no less “subjective.” Nowhere were those “canons” catalogued with even the specificity of the Bill of Rights, as Frankfurter himself acknowledged: “These standards of justice are not authoritatively formulated anywhere as though they were prescriptions in a pharmacopoeia.” Id. 68. For comparison of the Black and Frankfurter approaches, see infra Chapter 14 at notes 44–73.

Writing in 1960, Miller and Howell prophetically stated that Justices Black and Douglas “fail either to realize or be concerned about the fact that if the fourteenth amendment should embrace the procedural rights of the Bill of Rights, the criminal jurisdiction of the fifty states might be entirely disrupted.” “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 680 note 76.

[77.]Flack 153. This was quoted by Justice Black, 332 U.S. at 118, but he appeared oblivious to its implications.

[78.]Fairman, Stanford 77; see also supra Chapter 6 at notes 64–66.

[79.]Id. 78.

[80.]Id. 81 et seq. See Justice Harlan’s dissent in Oregon v. Mitchell, 400 U.S. 112, 196 (1970).

[81.]Fairman collected examples of State constitutional provisions which “incorporation” would have abrogated and of which, of course, no intimation was given to the State ratifying conventions. Fairman, Stanford 81 et seq. As Justice Frankfurter stated in his concurring Adamson opinion, 332 U.S. at 64, “It could hardly have occurred to these States [which had no rigorous grand jury requirement] that by ratifying the Amendment they uprooted their established methods for prosecuting crime and fastened upon themselves a new prosecutorial system.” For a similar expression by Justice Black in a corporate context, see infra at note 95. See also Justice Jackson, dissenting in Beauharnais v. Illinois, 343 U.S. 250, 292–293 (1952), quoted infra note 95.

[82.]After listening in 1871 to broad claims as to the scope of the Fourteenth Amendment, John B. Storm of Pennsylvania stated, “If the monstrous doctrine now set up as resulting from the provisions of the Fourteenth Amendment had ever been hinted at that Amendment would have received an emphatic rejection at the hands of the People.” Quoted in Flack 236–237. Flack, who searched the newspapers of the period quite thoroughly, 332 U.S. at 109, comments, “no doubt [Storm] was right in saying that had the people been informed of what was intended by the Amendment, they would have rejected it.” Flack 237, a point unnoticed by Justice Black.

[83.]Fairman, Stanford 132 et seq.

[84.]The point was made by Justice Frankfurter with respect to Twichell v. Pennsylvania, 74 U.S. (7 Wall.) 321 (1868), decided only a few months after adoption of the Fourteenth Amendment. Frankfurter, “Memorandum,” supra note 2 at 750. See also Mendelson, supra note 52 at 721.

[85.]The “major inspiration for the 1866 law,” says Kelly, “was the resentment and alarm that the enactment of the Black Codes . . . had produced among Radical Republicans.” Kelly, “Clio,” supra note 66 at 147. “All agree, however, regarding the racial motivation of the Amendment.” Graham 274. This view was expressed in the Slaughter-House Cases, supra Chapter 3 at notes 39–40.

[86.]Globe 1064–1065.

[87.]Id. 1093.

[88.]Id. 536; to the same effect see Conkling, id. 358. What Howard said, “The Committee were of the opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of suffrage to the colored race,” id. 2766, which would have its greatest impact in the South, is even more applicable to wholesale revision of internal practices affecting whites in the North. Latham, a West Virginia Republican, “denied that Congress had a right to interfere with the internal policy of the States so as to define and regulate the civil rights and immunities of the inhabitants thereof.” Id. 1295–1296. The requirement that State laws must not discriminate with respect to certain enumerated rights was an enclave cut out of this general policy. See also the remarks of Hotchkiss, infra Chapter 10 at note 78.

[89.]Globe 334–335.

[90.]See Trumbull, supra note 71; infra, Chapter 10 at note 49. Bingham insisted on the deletion of no discrimination in “civil rights” because of its “oppressive” invasion of State sovereignty. Supra Chapter 7 at notes 11–17.

[91.]We need to recall Chief Justice Stone’s statement that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.” Its purpose was “to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.” United States v. Darby, 312 U.S. 100, 124 (1941).

[92.]Paludan, supra note 9 at 15, 13, 51, 54.

[93.]To bind a principal, ratification must be “with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid.” Owings v. Hull, 34 U.S. (9 Pet.) 606, 628 (1835), per Justice Story. See also Bennecke v. Insurance Co., 105 U.S. 355, 360 (1881). There must be “an intention . . . to ratify.” Flournoy v. Hewgley, 234 F.2d 213, 216 (10th Cir. 1956). To find ratification by implication, “the implication to ratify must be clear.” United States v. Pan-American Petroleum Co., 55 F.2d 753, 771 (9th Cir. 1932); “implied ratification is not to be presumed.” Id. 772.

[94.]Paludan, supra note 9 at 52.

[95.]Connecticut General Ins. Co. v. Johnson, 303 U.S. 77, 89 (1938), dissenting opinion. It is a profound irony that Black should go on to broaden the Fourteenth Amendment and curtail States’ Rights beyond the wildest conceptions of the framers and ratifiers. Or should we rather regard “interpretation” like a meandering river that conforms to a Justice’s wandering predilections?

My study of the debates and the history of the period leads me fully to concur with Fairman: “The freedom that states traditionally have exercised to develop their own systems of administering justice, repels any thought that the federal provisions on grand jury, criminal jury, civil jury were fastened upon them in 1868. Congress would not have attempted such a thing, the country would not have stood for it, the legislatures would not have ratified.” Fairman, Stanford 137. As Justice Jackson said in a comparable situation, “We are justified in assuming that the men who sponsored the Fourteenth Amendment in Congress, knew of such provisions then in many of their State Constitutions. Certainly they were not consciously cancelling them or calling them into question, or we should have some evidence of it.” Beauharnais v. Illinois, 343 U.S. at 292–293, dissenting opinion.

[1.]4 Elliot 446.

[2.]Statements by “opponents” of a bill “cannot be relied upon as indicative of legislative intent.” National Labor Relations Board v. Thompson Products, 141 F.2d 794, 798 (9th Cir. 1944). “If resort to legislative history is had, the statements of those who supported the legislation and secured its passage will be accepted in determining its meaning.” Union Starch & Refining Co. v. National Labor Relations Board, 186 F.2d 1008, 1012 (7th Cir. 1951). See also Duplex Co. v. Deering, 254 U.S. 443, 474–475 (1921), and infra at notes 13 and 14.

[3.]Kelly, Fourteenth 1063, 1070.

[4.]Cited in Flack at 16. A similar statement was made by John L. Dawson of Pennsylvania, Globe 541.

[5.]Flack 16–17, 40 (emphasis added).

[6.]Infra at notes 25–27.

[7.]Supra Chapter 7 at note 10. Rogers continued to insist that suffrage was a “civil right” within the meaning of the Civil Rights Bill, Globe 1122, although it had been carefully explained by Wilson and Trumbull that it was excluded. Thayer, who followed Rogers, stated, “nobody can successfully contend that a bill guarantying simply civil rights and immunities is a bill under which you could extend the right of suffrage, which is a political and not a civil right.” Id. 1151. Rogers illustrates why opposition statements are unreliable. Speaking to §1 of the Amendment, he said, “This section . . . is . . . an attempt to embody in the Constitution . . . that outrageous and miserable civil rights bill,” and that the “privileges or immunities” clause embraced the right to vote . . . to marry . . . to be a juror,” Globe 2538, all of which had been specifically denied by proponents of the bill and, with respect to suffrage, of the Amendment.

Senator Trumbull explained at one point that he did not reply to opposition assertions “because I thought we should soonest get action on the bill by voting silently upon them.” Id. 399.

[8.]Kelly, Fourteenth 1078–1079. For similar reliance on an array of Democrats, see tenBroek 218–219. In Bell v. Maryland, 378 U.S. 226, 295 (1964), Justice Goldberg stated in a concurring opinion, “opponents . . . frequently complained, without refutation or contradiction, that these measures [Freedmen’s Bureau Bill and Civil Rights Bill] would grant negroes the right of equal treatment in places of public accommodation,” citing Senator Garrett Davis (Globe 936). On the same page, however, Senator Trumbull stated, “The original act [FBB] and this amendatory bill together were simply designed to protect refugees and freedmen from persecution.” Shortly thereafter Chairman Wilson reiterated in the House that the Civil Rights Bill had limited aims, which did not, for example, extend “to setting aside the school laws and jury laws.” Globe 1294.

[9.]Samuel S. Marshall, a fellow Democrat, said, “in many of the extreme views expressed by . . . [Rogers] . . . he does not . . . represent the Democratic portion of this House.” Globe 1172. To which Rogers added, “I know that my views are somewhat in advance of those of some members on this side of the House.” Id. See also Marshall, id. 1157; William E. Niblack of Indiana, id. 1158.

[10.]Fairman, Stanford 138.

[11.]Eric McKitrick, Andrew Johnson and Reconstruction 58 (1960).

[12.]Fairman, History 1236.

[13.]Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 note 24 (1976). See also Justice Frankfurter, quoted in Kluger 668.

[14.]Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 288 (1956).

[15.]Globe 500.

[16.]Globe 1366; see Wilson, supra note 8.

[17.]Globe 505–506.

[18.]1 Tocqueville, Democracy in America 364 (1900).

[19.]Fawn M. Brodie, Thaddeus Stevens: Scourge of the South 20 (1959).

[20.]Recall Stevens’ perturbation upon learning that Theodore Tilton had walked arm-in-arm with ex-slave Frederick Douglass. Supra Chapter 1 at note 53; see also infra Chapter 10 at note 6. Rhode Island enacted a miscegenation statute in 1844. Globe 201. Lincoln stated in an address at Columbus, Ohio, September 1859, “I am not . . . in favor of bringing about in any way social and political equality of the white and black races . . . I am not . . . in favor of making voters or jurors of negroes, nor of qualifying them . . . to intermarry with white people.” Id. 3214–3215. He faced up to the realities as President, supra Chapter 1 at note 36. Farnsworth of Illinois, replying to fears of intermarriage expressed by Rogers, said he would “very cheerfully join him in voting the restraining influence of a penal statute.” Globe 204. Julian of Indiana expressed himself to the same effect. Id. 258. In 1867—while the Fourteenth Amendment was in the course of ratification—the Pennsylvania Supreme Court stated, “The natural law which forbids their intermarriage and that social amalgamation which leads to a corruption of races, is as clearly divine as that which imparted to them different natures.” West Chester & Philadelphia Railroad Co. v. Miles, 55 Pa. at 209, 213. See also Morton Keller, Affairs of State 150 (1977).

[21.]Globe 632.

[22.]Id. 506.

[23.]The question that underlies all “rules for the interpretation of statutes [or Constitutions] . . . is, what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute . . . The intention of the lawmaker is the law.” Hawaii v. Mankichi, 190 U.S. 197, 212 (1903). Blackstone refers to “the Bolognian law . . . ‘that whoever drew blood in the streets should be punished with the utmost severity,’ ” which was held “not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.” 1 William Blackstone, Commentaries on the Laws of England 60.

[24.]Globe 1679–1680. The veto was overridden in both Houses. Id. 1809, 1861.

[25.]Globe App. 156–157. [Mark Tushnet, “Civil Rights and Social Rights: The Future of the Reconstruction Amendments,” 25 Loyola L.A. L. Rev. 1207, 1209 (1992): “during the congressional debates on the adoption of the Fourteenth Amendment, the right to serve on a jury was routinely described as a political right, and the audience was repeatedly assured that the Fourteenth Amendment would not guarantee African Americans that right.” ]

[26.]Globe 1294.

[27.]Id. 632, 1832. Madison stated, “Trial by jury cannot be considered as a natural right, but a right resulting from a social compact.” 1 Annals of Congress 437.

[28.]TenBroek at 205 collected some proposals.

[29.]Kendrick 46 (emphasis added).

[30.]Globe App. 98; Globe 1287 (emphasis added).

[31.]Globe 1287 (emphasis added). Alfred Kelly said of these measures introduced by “the more enthusiastic Radicals” that the “significant” fact is they all “resorted to sweeping and all-inclusive prohibitory language and not mere enumeration alone.” Kelly, Fourteenth 1060. Their “significance” resides, rather, in the fact, to use his own words, that “all died early deaths,” demonstrating that they were unacceptable to the dominant Republicans.

[32.]Globe 702; supra note 28.

[33.]As Frederick A. Pike of Maine said of Thomas Eliot’s proposal that “the elective franchise shall not be denied or abridged in any State on account of race,” “no amendment of that character can pass . . . It is useless to submit such a one to the States when it is sure of rejection.” Globe 406, 407.

[34.]Supra Chapter 7 at notes 13–17; supra at note 16.

[35.]Globe 705. A similar statement was made by Stevens, id. 537; see also supra note 32.

[36.]Kelly tells us that the “mood of the Radicals . . . was ‘revolutionary,’ ” they projected “changes in the southern social order going far beyond the mere destruction of slavery”; “both the Civil Rights Act of 1866 and the Fourteenth Amendment were products of” this “general ‘revolutionary’ mood.” Kelly, Fourteenth 1060–1061. It would also have required “something of a revolution” in the Northern “social order,” for which the Republicans were totally unprepared. As we have seen, the “revolutionary” proposals were beaten back time after time. Supra at notes 29–35.

[37.]Bickel 56 (emphasis added).

[38.]2 Blaine, Twenty Years of Congress 171, quoted in Flack 19 note 22.

[39.]James 150.

[1.]Strauder v. Virginia, 100 U.S. 303, 310 (1879).

[2.]Katzenbach v. Morgan, 384 U.S. 641, 649 (1966).

[3.]Infra Chapter 11 at notes 2–3; Chapter 14 at notes 40–43.

[4.]The Spirit of Liberty 172–173 (Irving Dillard ed. 1952). Yet he could say of the Court’s resumption of the “role of a third legislative chamber” in the context of the “desegregation” case, “I have never been able to understand on what basis it does or can rest except as a coup de main.” Hand, The Bill of Rights 55 (1962).

[5.]Nixon v. Herndon, 273 U.S. 536, 541 (1927). Justice Matthews had earlier cited “the political franchise of voting” as a “self-evident” illustration of “fundamental rights” “because preservative of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), a position that had been pressed by Sumner and others but had been rejected. Supra Chapter 4 at notes 12–14 et seq.

In the same opinion wherein Justice Frankfurter finds it impossible to swallow reapportionment, he states that “the controlling command of Supreme Law is plain and unequivocal” on the issue of Negro disfranchisement: “An end of discrimination against the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth.” Baker v. Carr, 369 U.S. 186, 285–286 (1962), citing Nixon v. Herndon, dissenting opinion. The invocation to Holmes cannot overcome the fact that the Fourteenth Amendment designedly withheld suffrage.

Holmes himself construed a statute “not to include a case that indisputably was within its literal meaning, but was believed not to be within the aim of Congress.” American Security Co. v. District of Columbia, 224 U.S. 491, 495 (1912). There he inferred that “Congress meant no such result”; here we have proof positive that the framers meant to exclude suffrage.

[6.]Derrick A. Bell, Jr., “Book Review,” 76 Colum. L. Rev. 350, 358 (1976). See Chapter 1 at notes 38, 39, 53.

[7.]See supra Chapter 5.

[8.]See infra Chapter 14 at notes 40–43.

[9.]Kelly, Fourteenth 1052.

[10.]Donald, Sumner II 149.

[11.]Quoted in R. J. Harris, The Quest for Equality 10 (1960).

[12.]1 William Blackstone, Commentaries on the Laws of England 127n. The Blackstone note was called to the attention of the 39th Congress by Senator Trumbull. Globe 474.

[13.]Articles III and X; 1 Poore 957–958.

[14.]Supra Chapter 2 at notes 18–24; Conkling, Globe 356; Kenneth M. Stampp, The Peculiar Institution 124, 192–236 (1956).

[15.]Globe 1073, 1074.

[16.]Supra Chapter 2 at note 26 et seq. In 1797 Judge Samuel Chase had decided that the privileges and immunities clause of Article IV required a State to accord an out-of-state citizen the “same” protection for property and “personal rights” and the “same” exemptions from taxes and burdens it afforded to its own citizens. Campbell v. Morris, 3 H. & McH. 535, 554 (Md.).

[17.]Globe 1622.

[18.]Id. 1293 (emphasis added). Wilson called for a stop to “inhuman” discriminations and for “equality in the exemptions of the law.” Globe 1118.

[19.]Id. 601–602.

[20.]Id. 1679–1680. Bickel concluded that the Moderate leadership—Trumbull and Fessenden—had in mind a “limited and well-defined meaning . . . a right to equal protection in the literal sense of benefitting equally from the laws for the security of person and property.” Bickel 56.

[21.]Id. 1085.

[22.]Id. 2699.

[23.]Id. 1159. See also John Thomas, supra Chapter 7 at note 33.

[24.]Bickel 31.

[25.]Id. 33; Kendrick 61.

[26.]Supra Chapter 2 at notes 26–40.

[27.]Globe 1091, 1094 (emphasis added).

[28.]Id. 1094 (emphasis added). This interchange with Hale about a provision described by Bingham as “equal in respect to life, liberty, and property” (emphasis added), is rendered by Kelly thus: “In other words, the amendment was to impose a very general requirement of equality on all state legislation of the most inclusive kind”! Kelly, Fourteenth 1074. “Life, liberty, and property,” we have seen, had a limited connotation for the framers.

[29.]Globe 2883; see also supra Chapter 1 at notes 10–13; Chapter 8 at notes 68–70.

[30.]Globe 2459 (emphasis added). Van Alstyne comments on this passage, “Surely the right to vote is one essential protection that white men enjoyed and surely equal protection would require that black men enjoy it to the same extent.” Van Alstyne 56. He substitutes twentieth-century logic for the intention of the framers, including Stevens, to exclude suffrage from both the Civil Rights Bill and the Fourteenth Amendment. See infra Appendix A at notes 21–33.

[31.]Bickel 47. Referring to an earlier Stevens interpellation in a Hale-Bingham colloquy, Kelly states that Stevens “made it clear” he proposed to go “far beyond the scope of the Civil Rights Bill.” Kelly, Fourteenth 1073. That concerned a Bingham proposal that “Congress shall have power to make all laws . . . to secure equal protection in the rights of life, liberty, and property.” Hale objected, and Stevens asked whether he meant Congress “could interfere in any case where the legislation of a State was equal, impartial to all? Or is it not simply to provide that, where any State makes a distinction in the same law between different classes of individuals Congress shall have power to correct such inequality.” Globe 1063. The proposal really embodied the former alternative (see infra at notes 76–81 for discussion), and it had to be abandoned. For present purposes, the important thing is that equal protection was limited to “life, liberty, and property,” and as the later Stevens statement, quoted supra at note 30, shows, he did not go beyond the rights enumerated in the Civil Rights Act.

[32.]Kelly, Fourteenth 1073. Apparently Kelly changed his views. In a 1965 article he stated that “so far as I know, there is no instance of any discussion on the floor of either House in terms of anything other than a proposal to guarantee against certain forms of discriminatory state action.” Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 147 (emphasis added).

[33.]Globe 537.

[34.]Id. 3148 (emphasis added).

[35.]Id. 2766 (emphasis added).

[36.]Id.

[37.]Id. To read Howard’s “all legislation” literally is also to ignore the proposals to that effect that perished. Supra Chapter 9 at notes 28–35. These facts refute Kelly’s statement that Howard “presented in no uncertain terms a powerful and convincing ‘broad construction’ of the force and scope of the first section,” an “extremely latitudinarian interpretation of the due process clause, which he asserted would destroy all class legislation entirely.” Kelly, Fourteenth 1081; cf. supra note 32.

[38.]Globe 3979.

[39.]Globe App. 227 (emphasis added).

[40.]Supra Chapter 2 at note 26; supra at notes 17–18, 21–23.

[41.]Globe App. 119. See Senator Fessenden, supra Chapter 6, Epigraph. “One is driven by the evidence,” Woodward states, to conclude that “popular convictions were not prepared to sustain” a “guarantee of equality.” The Burden of Southern History 83 (1960); see also Chapter 1 at notes 38–39, 52–53.

[42.]Supra Chapter 9 at notes 28–35.

[42a.]Evidence to the contrary is furnished by Farnsworth, infra Chapter 11 at note 98.

[43.]Supra at note 18.

[44.]TenBroek 222.

[45.]Id. 193.

[46.]That is likewise Harris’ view, supra note 11 at 22, 42.

[47.]Globe 1093. Hale had stated that the “American people have not yet found their State governments are insufficient to protect the rights and liberties of the citizen.” Id. 1064–1065. After concurring, Bingham quoted Federalist No. 45: “The power reserved to the Federal States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.” Globe 1093.

Shellabarger referred to the “rights which the States may deem proper to confer upon any races,” supra at note 18. And Senator Fessenden stated, “The power exists now at the present time in all these States to make just such class or caste distinctions as they please. The Constitution does not limit them.” Id. 704.

[48.]Id. 1292.

[49.]Id. 600. After the Johnson veto of the Civil Rights Bill, Trumbull reiterated that the Bill “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person or property.” Id. 1761.

Contrast this with tenBroek’s deduction from Trumbull’s statement, “I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment” (emphasis added). TenBroek asks, “ ‘secured’ how? By the only method by which rights can be secured, namely, by supplying protection . . . Hence, deprivation or denial of laws ‘not equal to all’ will occur just as much by failure to supply the protection . . . as by the Black Codes imposing special burdens on a selected class”! TenBroek 188.

[50.]TenBroek 211. But Woodbridge understood the purpose was to strike at discrimination. Infra note 55. Higby is a poor witness for “absolute” protection, for his “extremely anti-Chinese” views led him to maintain that “the Chinese were ‘a pagan race’ of no virtue and incapable of citizenship,” Harris, supra note 11 at 40, and therefore not entitled to equal protection.

[51.]January 27, 1866, TenBroek 205 (emphasis added).

[52.]Globe 474, 1366.

[53.]Id. 1117 (emphasis added). The word “immunity,” said Bingham, means “exemption from unequal burdens.” Id. 1089.

[54.]Id. 1293; see supra at note 18.

[55.]Globe 2459, more fully quoted supra at note 30. Woodbridge read the Bingham prototype amendment to give “to every citizen . . . that protection to his property which is extended to the other citizens of the State.” Id. 1088.

[56.]Id. 2766.

[57.]In the 1871 debates on the Ku Klux Klan Act, James Garfield, destined before long to become President, “reviewed fully the legislative history of the first section,” and stated that “It is not required the laws shall be perfect. They may be unwise, injudicious, even unjust; but they must be equal in their provisions . . . resting upon all with equal weight.” Cong. Globe, 42d Cong., 1st Sess. App. 153, April 4, 1871.

[58.]Globe 1089–1090, 1832.

[59.]Supra Chapter 8 at notes 43–56.

[60.]Globe 1094 (emphasis added).

[61.]“By the Fourteenth Amendment’s terms the legal processes (procedures) due equally as protection and remedy to each national citizen were the laws and procedures of a citizen’s State. Instead of formulating positively national civil-rights minima, as some Republican Radicals preferred to do, the amendment forbade unequal deprivation of the broad, uncodified mass of civil rights protections which a state professed to afford equally to the generality of its citizens.” Harold M. Hyman, A More Perfect Union 467–468 (1973).

In 1872 Justice Miller stated, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class . . . will ever be held to come within the purview of this [equal protection] provision.” Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81. In 1884, Justice Field stated that the Fourteenth Amendment “only inhibits discriminating and partial enactments, favoring some to the impairment of the rights of others,” and does not transfer “to the federal government the protection of all private rights . . .” Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 759, concurring opinion.

[62.]TenBroek 214–215; Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[63.]Supra Chapter 8 note 4.

[64.]Raoul Berger, Congress v. The Supreme Court 260–263 (1969).

[65.]E.g., Hale, supra note 47; Chapter 4 at notes 51–52.

[66.]As long ago as 1454, stated Chief Justice Prisot, “the judges who gave these decisions in ancient times were nearer to the making of the statute than we now are, and had more acquaintance with it.” Windham v. Felbridge, Y.B. 33 Hen. 4, f.38, 41, pl. 17, quoted in C. K. Allen, Law in the Making 193 (6th ed. 1958). For early American statements to the same effect, see Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 290 (1827). Such cases antedate modern access to legislative history, and I would not suggest that such judges can displace the clearly revealed intention of the framers as disclosed by that history, but would point out that their confirmation of that history lends it added weight.

[67.]United States v. Cruikshank, 92 U.S. 542, 552 (1875). That plainly appears in the history of the Bill of Rights, supra Chapter 8 note 4. Chief Justice Parker declared in Abbott v. Bayley, 6 Pick. 89, 93 (Mass. 1827) that “protection of the persons of those who live under this jurisdiction” was left by the Constitution in the States. See also supra Chapter 8 at notes 86–87.

[68.]United States v. Cruikshank, 25 F. Cas. (No. 14, 897) 707, 714 (C.C.D. La. 1874).

[69.]Globe 1064. Michael C. Kerr of Indiana also rejected the argument that the first ten amendments “are grants of power to Congress . . . Hitherto these amendments have been supposed . . . to contain only limitations on the powers of Congress.” Id. 1270.

[70.]Phil C. Neal, “Baker v. Carr: Politics in Search of Law,” 1962 S. Ct. Rev. 252, 293. In Missouri v. Lewis, 101 U.S. 22, 31 (1879), the Court held, “The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line . . . Each State prescribes its own modes of judicial proceeding.”

[71.]Globe 1293.

[72.]Id. 2543; see also supra at note 48. Earlier Bingham stated, “The adoption of the proposed amendment will take from the States no rights that belong to the States . . . but in the event they . . . enact laws refusing equal protection to life, liberty or property” Congress can act. Globe 1090.

[73.]Globe 2459; see also Trumbull supra at note 49.

[74.]Globe 2766.

[75.]Id. 2768. Howard also stated, “The great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them to respect these great fundamental guarantees.” Section 5, he continued, constitutes “a direct affirmative delegation of power to Congress to carry out all the principles of these guarantees,” i.e., to enforce the “negative” terms of §1. Id. 2766 (emphasis added).

TenBroek would make Howard the exponent of as “ ‘direct’ and ‘affirmative’ a delegation of power to Congress as could be made” rather than a mere “power to correct state legislation.” He argues that if § §1 and 5, in Howard’s words “ ‘establish equality before the law’ and ‘give to the humblest . . . the same protection before the law as . . . to the most powerful’ . . . then certainly the power of Congress may be exercised whenever there is not equality before the law.” TenBroek 230 (emphasis added). Here Howard was speaking of the substantive grant, the “discrimination” that would trigger congressional action, not of the time and corrective nature of that action, about which Howard spoke plainly enough, supra, and which statements tenBroek, 230, overlooked.

[76.]Globe 813, 1034; Bickel 33.

[77.]Globe 1063–1064. When tenBroek, 216, stated that “Bingham and Hale thus completely agree that the equal protection clause was ‘a grant of the right to legislate for the protection of life, liberty, and property simply qualified with the condition that it shall be equal legislation,’ ” he was quoting Hale’s criticism of the “positive” grant to Congress of the Bingham amendment, which did not survive. See infra at note 81.

[78.]Globe 1095. Another New York Republican, Davis, who represented “a radical constituency,” also opposed the Bingham proposal as an “infringement on the reserved rights of the States” that would “centralize power in the Federal Government,” though he was pledged to measures “essential to the protection of their [blacks’ ] just right.” Id. 1086, 1083, 1085. But he rejected the proposal as a “grant of original legislation by Congress.” Id. 1087.

[79.]Id. 1063.

[80.]TenBroek 217, notes that when the “Congress shall have formula” was reported out by the Joint Committee, “it was recommitted by a vote of 110 to 37, after a debate in which not only Democrats but also conservative Republicans sharply criticized it as effecting a radical redistribution of powers of the states and the national government.”

[81.]Globe 2502.

[82.]Id. 2542 (emphasis added).

[83.]Flack 64. Yet he notes that “The Radical leaders were as aware as any one of the attachment of a great majority of the people to the doctrine of State Rights . . . the right of the States to regulate their own internal affairs.” Id. 68.

[84.]TenBroek 223, 216.

[85.]Id. 217–218.

[86.]Supra at note 79. TenBroek, 212 note 8, rightly stated that Stevens’ rhetorical question to this effect represented his own view: “The latter half of the sentence shows . . . that Stevens has a mind fixed primarily on the narrower interpretation of equal protection,” i.e., the “corrective” role of Congress.

[87.]Supra at note 73.

[88.]TenBroek 218–219.

[89.]Id. 220–221.

[90.]For discussion of the §5 enforcement power, see infra Chapter 12.

[91.]TenBroek 216–217. See Hyman, supra note 61. Benedict likewise concludes that the Fourteenth Amendment “in no way challenged the tradition that the states had primary jurisdiction over citizens in matters of police regulation . . . Instead, its first and fifth sections gave Congress power to assure that the police regulations would not discriminate against citizens on account of race . . . where the regulation involved some ‘fundamental right’ of United States citizens . . . it did not transfer to the national government the power to frame all laws touching on these rights. National jurisdiction could arise only through the states prior wrongdoing.” M. L. Benedict, A Compromise of Principle 170 (1975).

[92.]Civil Rights Cases, 109 U.S. 3, 11, 13 (1883); see also id. 19. Ten years earlier Justice Bradley had stated on circuit that “there can be no constitutional legislation of congress for directly enforcing the privileges and immunities . . . where the State has passed no laws adverse to them . . .” United States v. Cruikshank, 25 F. Cas. at 714.

[93.]Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 669 (1966), but cf. Hamilton, infra Chapter 17 at note 15.

[94.]Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827), dissenting opinion. In Church of the Holy Trinity v. United States, 143 U.S. 457, 472 (1891), the Court held that though a rector “is within the letter [he] is not within the intention of the legislature, and therefore cannot be within the statute.” For a similar holding by Justice Holmes, see supra note 5; see also Robert Bork, infra Chapter 11 at note 80; and see infra Chapter 20.

[95.]“The Aim of the Criminal Law Revisited: A Plea for a New Look at ‘Substantive Due Process,’ ” 44 S. Cal. L. Rev. 490, 491–492 (1971). Commenting on Brown v. Board of Education, Professor Lusky stated, “Plainly the Court was using the term ‘unequal’ in a new sense. The ‘inequality’ prohibited by the Constitution was no longer thought limited to unequal distribution of governmental burdens and benefits, but was held to include measures perpetuating the social isolation of minority groups,” Lusky 214, a subject excluded from the Fourteenth Amendment by its framers.

[1.]“Privacy in Connecticut,” 64 Mich. L. Rev. 283, 286 (1965).

[2.]Felix Frankfurter, Mr. Justice Holmes and the Supreme Court 7 (1938): “phrases like ‘due process of law’ are, as an able judge [Charles M. Hough] once expressed it, of ‘convenient vagueness.’ Their ambiguity is such that the Court is compelled to put meaning in the Constitution.” Earlier Frankfurter asked, “ ‘Convenient’ for whom or to what end?” Frankfurter, “The Red Terror of Judicial Reform” 40 New Republic 110, 113 (1924), reprinted in F. Frankfurter, Law and Politics 10, 14 (1938). But as Justice Frankfurter, he declared in 1949 that “Great concepts like . . . ‘due process of law’ . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact.” National Ins. Co. v. Tidewater Co., 337 U.S. 582, 646 (1949), dissenting opinion. Compare with Chapter 14 infra at notes 40–43. For the halting, post-Civil War development of substantive due process see Walton H. Hamilton, “The Path of Due Process of Law” in The Constitution Reconsidered 167 (C. Read ed. 1938); see also Justice Black, infra note 47.

[3.]“Due process of law” is among the terms that “doubtless were designed to have the chameleon capacity to change their color with changing moods and circumstances.” Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court viii (1961). So too, Leonard Levy stated that due process and equal protection are “purposely protean or undefined words.” Against the Law 27.

[4.]4 The Papers of Alexander Hamilton 35 (H. C. Syrett and J. E. Cooke eds. 1962) (emphasis added); quoted more fully infra note 11.

When Coke asserted in Dr. Bonham’s Case that an Act of Parliament could not make a man judge in his own cause, he did not invoke Magna Charta but “common right and reason,” Berger, Congress v. The Supreme Court 349, which he had identified with the “law of nature,” id. 352, 355 note 31, an identification repeated by Justice Hobart, id. 364. By negative implication, the “law of the land” clause of Magna Charta did not, in Coke’s eyes, confer authority to set a statute aside as unreasonable. True, Coke also stated in his Institutes that if any statute be made contrary to “Magna Charta it shall be holden for none,” id. 358 note 43, but this, in my judgment, merely meant, for example, that a statute which authorized the “imprisonment” of a person without the judgment of his peers would be invalid; for he regarded Magna Charta as “fundamental law,” id. 358 note 43.

[5.]United States v. Smith, 18 U.S. (5 Wheat.) 153, 160 (1820). In his Report on the Virginia Resolutions to the Virginia House of Delegates (Sess. 1799–1800), Madison stated, “It is readily admitted that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government.” 4 Elliot 563. Chief Justice Marshall gave early expression to this view in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93–94 (1807): “forthe meaning of habeas corpus resort may unquestionably be had to the common law.” So deeply anchored was this presupposition that when the Framers employed the word “treason,” they took pains to define it narrowly in order to obviate some of its harsh common law consequences that otherwise might have attached. Article III, §3(1).

[6.]The Bill of Rights 30 (1962).

[7.]4 William Blackstone, Commentaries on the Laws of England 424 (1765–1769).

[8.]2 Edward Coke’s Institutes 56, quoted in Hurtado v. California, 110 U.S. 516, 523 (1884).

[9.]Keith Jurow, “Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law,” 19 Am. J. Legal Hist. 265 (1975). [ “If we enquire what is meant by the law of the land, the best commentators will tell us that it means due process of law, that is by indictment and presentment . . . and trial and conviction in consequence.” 4 Alexander Hamilton, Works 232 (H. C. Lodge ed. 1904).]

[10.]Maryland (1776), 1 Poore 818; Massachusetts (1780), id. 958; New Hampshire (1784), 2 Poore 1282; North Carolina (1776), id. 1410; Pennsylvania (1776), id. 1541–1542; South Carolina (1778), id. 1627; Vermont (1777), id. 1860; Virginia (1776), id. 1909. See infra at notes 24 and 25.

[11.]Commenting in the New York Assembly on February 6, 1787, on the New York Constitution, Hamilton said, “In one article of it, it is said no man shall be disfranchised or deprived of any right he enjoys under the constitution, but by the law of the land, or the judgment of his peers. Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke . . . in his comment upon a similar clause in Magna Charta, interprets the law of the land to mean presentment and indictment . . . But if there were any doubt upon the constitution, the bill of rights enacted in this very session removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by ‘ due process of law,’ or the judgment of his peers. The words ‘ due process ’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.” The Act was that of January 26, 1787, II Laws of the State of New York 344–345; supra note 4.

Julius Goebel and T. R. Naughton state with respect to seventeenth- and eighteenth-century due process, “The usual and current employment of the phrase in English practice was to designate the judicial order appropriate to a particular procedure and this usage became the rule in eighteenth century New York.” Law Enforcement in Colonial New York (1664–1776) 385 (1970). In his “Letters of Phocion” Hamilton stated, “due process of law” means “by indictment or presentment.” 4 Works of Alexander Hamilton 230, 232 (H. C. Lodge ed. 1904).

[12.]A persuasive explanation of the shift from “law of the land” to “due process of law” was advanced by Justice Curtis in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). He pointed out that by the Sixth and Seventh Amendments “special provisions were separately made for that [jury] mode of trial in civil and criminal cases. To have followed, as in the state constitutions . . . the words of Magna Charta, and declared that no person shall be deprived of his life, liberty, or property but by the judgment of his peers or the law of the land, would in part have been superfluous and inappropriate. To have taken the clause ‘law of the land’ without its immediate context, might possibly have given rise to doubts, which would be effectually dispelled by using those words which the great commentator on Magna Charta had declared to be the true meaning of the phrase, ‘law of the land,’ in that instrument, and which was undoubtedly then received as their true meaning.”

Jefferson recorded that there was never “one of profounder learning in the orthodox doctrines of the British Constitution or what is called British rights” than Coke. Quoted in E. S. Corwin, The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays 31 (1914).

[13.]Supra note 9 at 266.

[14.]Id. 267.

[15.]Id. 268, 272; 25 Edw. III st. 5, ch. 4 (1352).

[16.]Quoted in Hurtado v. California, 110 U.S. at 523. Jurow remarks, “The puzzling thing is that Coke cites 3 Edw. III, ch. 8 rather than 28 Edw. III, ch. 3 to support his interpretation, and when he does cite the latter statute he renders it as ‘due process of the common law.’ ” We may assume with Jurow that “Coke was trying to show that only the common law was the law of the land.” Jurow, supra note 9 at 277. For present purposes it suffices that due process, by Jurow’s own demonstration, was altogether associated with judicial procedure. In English law, he states, “the term ‘due process of law’ and the word ‘process’ were always used in the most precise and consistent way,” Jurow, id. 279, as Hamilton clearly perceived.

[17.]2 James Kent, Commentaries on American Law 608–609 (9th ed. 1853).

[18.]4 Blackstone, supra note 7 at 318.

[19.]Documents of American History 83 (Henry Steele Commager ed. 7th ed. 1963) (emphasis added).

[20.]This original meaning of due process as affording a person the opportunity to answer through service of a writ according to established law is incompatible with the “fundamentally fair” procedure structure that the Court has built on the clause. Grey, “Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703, 711 (1975). As said by Leonard Levy, “fair trial is a principle of such abstraction, complexity and subjectivity that a judge can play on it as if it were an accordion to be squeezed and stretched to render whatever meaning he seeks to express.” Against the Law 310.

The foregoing materials cast doubt on Justice Frankfurter’s generalization: “Due process of law, as a historic and generative principle, precludes defining, and thereby confining, those standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend ‘a sense of justice.’ ” Rochin v. California, 342 U.S. 165, 173 (1952). His history has very shallow roots.

[21.]Supra at note 8. [Justice Story noted Coke’s explanation that “law of the land” means “due process of law,” that is, it requires “presentment and indictment, and being brought to answer thereto, by due process of the common law. So that this clause in effect affirms the right of trial according to the process and proceedings of the common law.” 2 Joseph Story, Commentaries on the Constitution of the United States 1789 (5th ed. 1905).

Edward S. Corwin, The Twilight of the Supreme Court 118–119 (1934): “no one at the time of the framing and adoption of the Constitution had any idea that this clause did more than consecrate a method of procedure against accused persons, and the modern doctrine of due process of law . . . could never have been laid down except in defiance of history.” See also id. 95.]

[22.]I must therefore dissent from Levy’s statement that “the history of due process shows that it did mean trial by jury and many of the other traditional rights . . . specified separately in the Bill of Rights,” and that the framers “added the due process clause itself, probably as a rhetorical flourish, a reinforced guarantee, and a genuflection towards traditional usage going back to the medieval reenactments of Magna Charta.” Levy, Judgments: Essays in American Constitutional History 66 (1972). Justice Curtis considered that the Framers carefully avoided surplusage in this respect, supra note 12. And as we have seen, the early statutes identified due process with service of proper process to assure a defendant an opportunity to answer, a guarantee contained in no other provision of the Bill of Rights, and a practice duplicated in early Massachusetts, Connecticut, and New York measures.

[23.]2 Kent, supra note 17 at 620–621: “by the law of the land [is] understood to mean due process of law, that is, by indictment . . . and this, says Lord Coke, is the true sense of these words.” See also 1 Joseph Story, Commentaries on the Constitution of the United States §1789 (5th ed. 1905).

[24.]“The True Meaning of the Term ‘Liberty’ in Those Clauses in the Federal and State Constitutions Which Protect ‘Life, Liberty and Property,’ ” 4 Harv. L. Rev. 365, 369 (1891).

In 1866 most State constitutions still adhered to the “law of the land” phraseology. A few had adopted the language of due process or due course of law: Alabama (1865), 1 Poore 49; Connecticut (1818), id. 259; Mississippi (1832), 2 Poore 1068; Nevada (1864), id. 1248; New York (1846), id. 1351–1352; South Carolina (1865), id. 1643; Texas (1866), id. 1785. Constitutions fashioned in the Southern States under Northern military occupation in 1865 and 1866‘ may be taken to reflect Northern opinion.

[25.]Before 1866, the due process clause “had been looked upon almost universally as only a procedural guarantee.” Benjamin R. Twiss, Lawyers and the Constitution 26 (1942); see infra note 48; infra at note 42.

[26.]Supra Chapter 1 note 57.

[27.]“Review and Majority Rule,” in Supreme Court and Supreme Law 170, 177 (Edmond N. Cahn ed. 1954). As Justice Black stated, “there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add substantive constitutional changes which a majority of the Court at any given time believes are needed to meet present-day problems.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 675–676 (1966), dissenting opinion. See also infra note 47. But as Alexander Bickel noted, under a “very narrow historical meaning of the Due Process Clause, much else in which Justice Black has joined would be relegated to limbo.” The Least Dangerous Branch 88 (1962). That does not so much prove his reasoning wrong as a failure to live by it.

[28.]Globe 833. A slave was a chattel and could be neither a party to a suit nor a competent witness against a white. Kenneth M. Stampp, The Peculiar Institution 197 (1956).

[29.]Globe 653.

[30.]Id. 602. Sumner stressed “Equality before the law . . . in court room,” id. 674. Raymond stated the Negro “will have access to the courts as a citizen of the United States the same as any other citizen has.” Id. 1266.

[31.]Id. 1263, 1265; see also Logan, supra Chapter 6 at note 66.

[32.]Id. 1294.

[33.]Id. 2899.

[34.]Infra at notes 56–59. Referring to the due process clause, Bingham said, “Thus, in respect to life, liberty, and property the people by their Constitution declared the equality of all men.” Globe 1292. When Chief Justice Taft held in Truax v. Corrigan, 257 U.S. 312, 332 (1921) that “Our whole system of law is predicated on the general, fundamental principle of equality of application of the law,” he overlooked that (1) Article IV, §2 provided for equality with respect to selected rights; (2) Negroes enjoyed no rights whatsoever; and (3) the Fourteenth Amendment again guaranteed them equality only with respect to selected rights, and pointedly excluded suffrage.

[35.]Globe 14, 1034; James 83. “In comparison with the concept of equal protection of the laws,” tenBroek averred, “the due process clause was of secondary importance to the abolitionists”; there was an “interchangeable” usage tied to protection of “natural rights.” TenBroek 119–120, 215. “The basic idea,” he stated, “is that of ‘equal protection’ . . . other elements were later added—privileges and immunities of citizens, due process of law, political rights. These were all either addenda to the basic notion or an elaboration of it.” Id. 207. Hence the “due process clause slipped into a subordinate, almost forgotten position, being commonly read and frequently discussed as if it were a part of the equal protection requirement” (id. 232; see also id. 119–120), as Bingham’s statement, supra at note 35, illustrates.

Justice Miller noted in 1878 as a “remarkable” fact that in the century since the Fifth Amendment, due process had “rarely been invoked.” Davidson v. New Orleans, 96 U.S. 97, 103 (1877).

[36.]Globe 1089. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857), which employed substantive due process, was scarcely among those “decisions” for it was universally execrated by the abolitionists, and also decried by Lincoln.

[37.]James 86. That is very old learning: “If a statute make use of a word the meaning of which is well known at the common law, the word shall be understood in the same sense it was understood at common law.” Matthew Bacon, A New Abridgement of the Laws of England at “Statutes” I (4) (3d ed. 1768). See also supra note 5.

[38.]Graham 52.

[39.]Id. 58, 32.

[40.]Globe 2459.

[41.]Globe App. 256. Like Bingham’s identification of due process with the judicial decisions, Baker’s statement furnishes historical footing for Justice Matthews’ “irresistible” conclusion that the due process of the Fourteenth Amendment “was used in the same sense and with no greater extent” than that of the Fifth. Hurtado v. California, 110 U.S. at 535. Later Justice Frankfurter stated, “It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth.” Adamson v. California, 332 U.S. 46, 66 (1947), concurring opinion. We may safely rely on Hamilton, supra at note 4, for its narrow procedural meaning in the Fifth Amendment, there being no evidence whatever to the contrary.

[41a.]See infra Chapter 13 at note 4.

[42.]Graham 35, 36; see also infra at note 48.

[43.]Infra Chapter 13.

[44.]James 160.

[45.]Graham 96; Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).

[46.]Graham 447.

[47.]Id. 467, 470–471, 487; see also id. 480. If, as is stated by Professor Archibald Cox, “all agree that the [due process] clause calls for some measure of judicial review of legislative enactments,” The Role of the Supreme Court in American Government 113 (1976), that belief has yet to be rooted in historical fact. The fact is, as Chapter 14 will seek to demonstrate, substantive due process was a judicial construct fashioned in the late nineteenth century to halt the regulation of big business. Justice Black stated that in Chicago, M. & St. P. R. Co. v. Minnesota, 134 U.S. 418 (1890), the Court “gave a new and hitherto undiscovered scope for the Court’s use of the due process clause to protect property rights under natural law concepts.” Adamson v. California, 332 U.S. at 79, dissenting opinion.

[48.]Graham 242. “Before there could be clear, general insight into the potentialities of . . . due process,” Graham remarked, “there had to be pretty explicit judicial use.” Substantive due process, he added, “was not yet an obvious or self-evident proposition.” Id. 487, 488. Alfred Kelly observed that in 1860 “these doctrines were outside the pale of constitutional orthodoxy, but the political upheaval incident to the Civil War put a group of old antislavery enthusiasts in a position to control the Thirty-Ninth Congress and to write their radical reformism into the Constitution itself. The debates on the passage of the amendment reveal clearly enough how completely the constitutional ideology of the pre-war antislavery movement shaped the objectives of the Radical Republicans.” Kelly, Fourteenth 1054. Chapter 13 infra will demonstrate that “control [of] the Thirty-Ninth Congress” by radical “enthusiasts” is a figment of the neoabolitionist imagination, and that abolitionist ideology fell on stony ground.

[49.]“The work of Bingham,” tenBroek stated, “was the meeting ground, in a sense that the work of no other individual was, of the three concepts and clauses that came to constitute the first section of the amendment.” TenBroek 145. Kelly states, “Bingham, principal author of the first section of the amendment, had been a leading congressional antislavery constitutional theorist.” Kelly, Fourteenth 1054.

[50.]TenBroek 121.

[51.]Graham 539.

[52.]James Garfield, a participant in the 39th Congress debates, said in discussing a bill for enforcement of the Fourteenth Amendment in 1871, that no State can “deprive any person of those great fundamental rights . . . of life, liberty, and property, except by due process of law; that is, by an impartial trial according to the laws of the land.” Cong. Globe, 42d Cong., 1st Sess. App. at 152–153, quoted by Justice Black in Adamson v. California, 332 U.S. at 111, dissenting opinion.

[53.]Supra Chapter 1 at note 10.

[54.]In a footnote to United States v. Carolene Products Co., 304 U.S. 144, 152–153 note 4 (1938), Justice Stone assigned a preferred position to certain privileges. The genesis and historical footing of that view will hereinafter be discussed.

[55.][In 1925 Felix Frankfurter wrote of the due process clauses, “whose contents are derived from the disposition of the Justices.” Alexander Bickel, The Supreme Court and the Idea of Progress 25 (1978).] Before his discovery of abolitionist ideology, Graham, 112, remarked on the “amazing judicial hybridization of due process of law with the economic tenets of laissez faire [to] which Justice Holmes objected.”

[56.]Supra note 28.

[57.]Globe 600.

[58.]TenBroek 207.

[59.]Globe 2539. Windom summarized §1 in terms of privileges or immunities and equal protection without any mention of due process. Id. 3171.

[60.]Globe 1681.

[61.]Alone among the Justices, Justice Harlan perceived that the framers expected the “privileges or immunities” clause to be “the most significant portion of §1,” and since it was “expected to be the primary source of substantive protection, the Equal Protection and Due Process Clauses were relegated to a secondary role, as the debates and other contemporary materials make clear.” Oregon v. Mitchell, 400 U.S. 112, 163, 164 (1970).

[62.]2 Kent, supra note 17 at 608–609.

[63.]Globe 2766, 833 (emphasis added). So too, Raymond stated that the Civil Rights Bill “is intended to secure those citizens against injustice that may be done to them in the courts . . . It is intended to prevent unequal legislation . . . affecting them injuriously.” Globe 1267.

[64.]TenBroek 145.

[65.]R. J. Harris, The Quest for Equality 35–36 (1960).

[66.]Id. 44. The triune analysis undercuts that of Chief Justice Warren in Bolling v. Sharpe, 347 U.S. 497, 499 (1954): “The Fifth Amendment . . . does not contain an equal protection clause as does the Fourteenth Amendment . . . But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the law’ is a more explicit safeguard of prohibited unfairness than ‘due process of law.’ ” This is sheer fantasy. Equal protection was incorporated in the Fourteenth Amendment to bar discrimination by statutes, due process to secure access to the courts; both were antidiscriminatory, but they were designed to serve quite different purposes. Only eleven years before Warren’s statement, the Court held that because of the absence of “equal protection” from the Fifth Amendment, it “provides no guaranty against discriminatory legislation by Congress.” Detroit Bank v. United States, 317 U.S. 329, 337 (1943).

[67.]Thus Harris extracts from the debates the principle “that the equal protection clause means absolute or perfect equality . . . and condemns every discrimination perpetuated by unequal laws.” Supra note 65 at 55. Although tenBroek discerned that the three clauses represented an amalgam for the “protection of natural rights,” tenBroek 145, 239, 120, he did not grasp the limited meaning that “natural,” “fundamental” rights had for the framers. Consider only his statement that the “sweeping and comprehensive meaning of the Fourteenth Amendment . . . turns simply upon the nature of the statutory plan which was sought to be made constitutionally secure by the amendment.” TenBroek 203 (emphasis added). This about an Act that painstakingly specified the limited rights to be protected!

[68.]83 U.S. (16 Wall.) 36, 80 (1872); Justice Miller, supra note 35.

[69.]Globe 2766.

[70.]TenBroek 232; Globe 2459 (emphasis added). “As Stevens saw it, discrimination was the great evil, equal protection was the dominant purpose of §1.” Fairman, Stanford 44 (emphasis added). Sumner stated that he wanted “Equality before the law, so that there shall be no ban of color in court room.” Globe 674.

[71.]Globe 476; see also supra Chapter 10 at note 49.

[72.]See supra at notes 28–30.

[73.]110 U.S. at 535; see also Walker v. Sauvinet, 92 U.S. 90, 93 (1875); cf. supra Chapter 10 at note 70.

[74.]Recall Bingham’s objection to the “oppressive” breadth of the term “civil rights,” which was deleted at his insistence. Supra Chapter 7 at notes 11–17; Globe 1366.

[75.]TenBroek 239.

[76.]Globe 1117–1118.

[77.]Id. 1366; see also supra at note 33.

[78.]Chambers v. Florida, 309 U.S. 227, 235–236 (1940).

[79.]Duncan v. Louisiana, 391 U.S. 145, 172 (1968), dissenting opinion. As late as 1894, the Supreme Court declared that the Fourteenth Amendment “conferred no new and additional rights, but only extended the protection of the Federal Constitution over rights of life, liberty, and property that had previously existed under all state constitutions.” Mobile & Ohio Railroad v. Tennessee, 153 U.S. 486, 506 (1894).

[80.]“Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 13 (1971); see also infra Chapter 21 at note 28.

[81.]Sugarman v. Dougall, 413 U.S. 634, 652 (1973), dissenting opinion.

[82.]Maxwell v. Dow, 176 U.S. 581, 595–596 (1900), presented the question whether a State may provide for criminal trials by a jury of less than twelve. Justice Peckham stated that the rights secured by the Fifth, Sixth, and Seventh Amendments are not “privileges and immunities granted and belonging to the individual as a citizen of the United States, but they are secured to all persons against the Federal Government, entirely irrespective of such citizenship.” Hence, he concluded, the privileges or immunities claim “is not protected by a clause which simply prohibits the abridgment of the privileges or immunities of citizens of the United States.”

[83.]Globe 1118. Racial discrimination was the acknowledged concern of the Bill: see Trumbull, id. 332, 605; Senator Lane, id. 602; Senator Sumner, id. 674; Senator Sherman, id. 744; Wilson, id. 1117; Senator Howe, Globe App. 217. These citations are by no means exhaustive.

But while the “one pervading purpose” as Justice Miller stated was “the freedom of the slave race,” supra note 68 at 71, white loyalists who were the victims of discrimination in the South were likewise stated to be “within the intent of the Bingham amendment.” See infra at note 91; and see Broomall, Globe 1263; Chapter 3 note 40.

[84.]Globe 474–475.

[85.]Id. 1115.

[86.]Id. 1292.

[87.]Id. 1295. There was no need to change “inhabitant” in §2 because it was limited to deprivations of rights “protected by this act” which extended to “citizens” only.

[88.]Id. 1832, 1293.

[89.]Id. 10, 537; id. 14.

[90.]Id. 813.

[91.]Id. 1065.

[92.]Id. 1090, 1292.

[93.]Id. 1066, 1087, 1088, 1095.

[94.]Id. 2452.

[95.]Id. 2465, 2535.

[96.]Id. 2896, 2498.

[97.]Id. 2465; supra Chapter 2. For Wilson, the due process clause served to identify the rights with which the Civil Rights Bill was concerned. Citing the Fifth Amendment, “No person shall be deprived of life, liberty, or property without due process of law,” he stated, “these constitute the civil rights belonging to the citizens . . . to which this bill relates.” Globe 1294.

[98.]Globe 2539.

[99.]TenBroek 228.

[1.]Ex parte Virginia, 100 U.S. 339, 345 (1879) (emphasis partially added). [During the oral argument on Brown v. Board of Education, Justice Jackson asked, “Isn’t the one thing that is perfectly clear under the Fourteenth Amendment that Congress is given the power and the duty to enforce the Fourteenth Amendment by legislation?” Alexander Bickel, The Supreme Court and the Idea of Progress 6 (1978).]

[2.]Oregon v. Mitchell, 400 U.S. 112, 264n (1970).

[3.]TenBroek 149.

[4.]Donald, Sumner II 193. In the House, Stevens referred to “the infamous sentiment that damned the late Chief Justice to everlasting fame; and I fear, to everlasting fire.” Globe 75. George Bancroft, the historian, stated in a memorial tribute to Lincoln that “The Chief Justice . . . without any necessity or occasion, volunteered to come to the rescue of the theory of slavery.” Globe 801. Almost twenty years later Justice Harlan delivered himself of more severe strictures in the Civil Rights Cases, 109 U.S. 3, 57 (1883), dissenting opinion.

[5.]41 U.S. (16 Pet.) 539 (1842).

[6.]62 U.S. (21 How.) 506 (1858). The pot had been kept boiling by a string of fugitive slave decisions, infra Chapter 14 at notes 25–26.

[7.]Graham 447–448. Courts “had not normally favored abolitionists before the war. There was consequently little inclination to bestow new powers on the judiciary, but rather to lean on an augmented power of Congress.” James 184.

[8.]Globe 2947.

[9.]Fairman, History 271. “The Radicals,” said R. J. Harris, The Quest for Equality 53–54 (1960), “did not trust the judiciary in general and the Supreme Court in particular.” “Radical Republicans sought to deny the postwar court the power to review congressional Reconstruction.” Morton Keller, Affairs of State 73 (1977).

[10.]Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 138 (1973). Hand stated respecting the desegregation decision, “It is curious that no mention was made of section 5, which offered an escape, from intervening, for it empowers Congress to ‘enforce’ all the preceding sanctions by ‘appropriate legislation.’ The court must have regarded this as only a cumulative corrective, not being disposed to divest itself of that power of review that it has so often exercised and as often disclaimed.” Hand, The Bill of Rights 55 (1962).

[11.]T.I.M.E. v. United States, 359 U.S. 464, 471 (1959); United States v. Arredondo, 31 U.S. (6 Pet.) 691, 725 (1832). The rule was familiar to the Founders. In the First Congress, Egbert Benson said, “it cannot be rationally intended that all offices should be held during good behaviour, because the Constitution has declared one office to be held by this tenure.” 1 Annals of Congress 505; and see Alexander White, id. 517.

[12.]Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850).

[13.]“The Civil Rights Act of 1871 (now 28 U.S.C. §1343) created original jurisdiction in the district courts over actions [t]o redress the deprivation, under color of any State law . . . of any right . . . secured by the Constitution . . . And the Act of March 3, 1875 (now 28 U.S.C. §1331), created general federal question jurisdiction in the district courts. The federal courts ‘ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliance for vindicating every right given by the Constitution, the laws, and treaties of the United States’ [citing Felix Frankfurter and James M. Landis, The Business of the Supreme Court 65 (1928)].” Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials 1297 (1975).

[14.]Raoul Berger, Congress v. The Supreme Court 274 (1969).

[15.]Infra at note 16.

[16.]Globe App. 316. McKee of Kentucky asked, “Where is your court of justice in any southern State where the black man can secure protection.” Globe 653. See also Senator Lane, supra Chapter 11 at note 30.

[17.]Supra at note 12.

[18.]Pierson v. Ray, 386 U.S. 547, 554–555 (1967); see also supra Chapter 1 note 57.

[19.]Globe 2511. Jehu Baker of Illinois declared that §5 “was of course necessary in order to carry the proposed article into practical effect.” Globe App. 257. See also Senator Poland, Globe 2961. Fairman comments, “Poland, like the rest, contemplated action by Congress and ignored direct enforcement by the courts.” Fairman, History 1296. For a similar comment on Howard, see Fairman, id. 1294.

“Senator Howe, a Radical Republican, went back to Wisconsin and made a major address at Madison on August 10 [1866]; ‘. . . The only effect of the amendment if adopted is to enable the National Legislature . . . to enforce equal justice, when the several States refuse to enforce it.’ ” Fairman, Stanford 73–74, quoting the Chicago Tribune, August 14, 1866.

[20.]Katzenbach v. Morgan, 384 U.S. 641, 650 (1966).

[21.]41 U.S. (16 Pet.) 539, 618–620 (1842). Justice Bradley stated on circuit, “whenever a right is guaranteed by the constitution . . . Congress has the power to provide for its enforcement, either by implication arising from the correlative duty of the government to protect, wherever a right to the citizen is conferred, or under the general power . . . to make all laws necessary and proper for carrying into execution the foregoing powers.” United States v. Cruikshank, 25 F. Cas. (No. 14,897) 707, 709 (C.C.D. La. 1874). He instanced Prigg as an example of the former power.

[22.]Supra note 6.

[23.]“Congressional Power to Enforce the Fourteenth Amendment Against Private Acts,” 73 Yale L.J. 1353, 1357 (1964). Chief Justice Taney held in Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107 (1858), with reference to power to compel a Governor to deliver a fugitive from justice to a sister State, “there is no clause or provision in the Constitution which arms the Government of the United States with this power.”

[24.]Bingham stated that “the continued construction of every department of this Government, legislative, executive and judicial . . . has conceded that no such power [to enforce the rights guaranteed to a citizen “from the beginning” ] is vested in the Federal Government,” and he therefore proposed a grant to Congress. Globe 429; see also Howard, infra at note 29.

[25.]Harris, supra note 9 at 53–54; James 184.

[26.]Globe 2961 (emphasis added). Woodbridge said the Amendment “is intended to enable Congress by its enactments” to give “protection.” Supra Chapter 8 at note 34.

[27.]Globe 2459; Fairman, History 1284. In “Stevens’ mind, it was Congress that was going to correct unjust State legislation.” Fairman, Stanford 44.

[28.]Supra Chapter 10 at notes 73, 75, 79.

[29.]Globe 2766, 2768 (emphasis added). Justice Brennan cites this passage for “congressional responsibility for implementing the Amendment.” Katzenbach v. Morgan, 384 U.S. at 648.

[30.]Globe 1095.

[31.]Id. 358.

[32.]Oregon v. Mitchell, 400 U.S. at 143. Professor Willard Hurst stated, “it is pretty plain that the actual framers thought they were delegating the rulemaking power to Congress.” “The Role of History,” in Supreme Court and Supreme Law 60 (Edmond N. Cahn ed. 1954).

[33.]Supra note 11.

[34.]Thus the Equal Educational Opportunities Act of 1974, 20 U.S.C. § §1701 et seq., undertook to “specify appropriate remedies for the orderly removal of the vestiges of the dual school system” and to establish priorities for the employment of such remedies. 20 U.S.C. §1701(b) and §1713. See also Kelly, supra Chapter 6 note 26.

[1.]Graham 155 et seq.; tenBroek 25, 29, 116, 145, 235.

[2.]Robert Cover, Justice Accused: Antislavery and the Judicial Process 155, 150–153 (1975). Cover justly remarks that Graham and tenBroek discovered in the “visions” of this minority “roots for their own constitutional aspirations.” Id. 154.

[3.]Kelly, Fourteenth 1050–1051. Leonard Levy states, “Graham and tenBroek proved that the meaning of Section One must be sought in the pre-1865 period as well as later, and that the evidence of 1866–1868 must be read in the light of a received tradition of abolitionist argument.” Judgments: Essays in American Constitutional History 70 (1972). See also Thomas Grey, infra Chapter 21 at note 74.

[4.]Graham 155–156.

[5.]Id. 543.

[6.]“That this antislavery constitutional theory was extremely heterodox is clear. It was not primarily the product of minds trained in vigorous case analysis or statutory construction. It confused moral with civil and constitutional rights. It made the Declaration of Independence the basic constitutional document . . . the Federal Bill of Rights a source rather than a limitation of federal power.” Id. 237–238.

[7.]Kelly, Fourteenth 1049; Graham 268–269.

[8.]TenBroek 25.

[9.]Bickel 6.

[10.]Graham 269. Kelly says of the Court’s reaction to his brief, “Equipped with an impressive mass of historical evidence [which he himself stated “doctor[ed] all the evidence to the contrary, either by suppressing it . . . or by distorting it . . .] . . . the Court reneged.” “As though in embarrassment,” the Court “rejected history in favor of sociology.” Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 144. The Court’s “embarrassment,” I suggest, arose from a hard-headed appraisal of the neoabolitionist theology. It also had before it Bickel’s “impressive” compilation to the contrary. Supra Chapter 7 at note 3.

[11.]Supra Chapter 11 at note 9.

[12.]Globe 1089.

[13.]Graham 35, 244; see supra Chapter 11 at notes 4–27. For the “exceptions” see infra Chapter 14 at notes 28–35.

[14.]Kelly, Fourteenth 1052.

[15.]Graham 280.

[16.]Woodward, “Seeds of Failure in Radical Race Policy,” in New Frontiers of the American Reconstruction 128 (Harold M. Hyman ed. 1966).

[17.]Globe 257. “Negrophobia tended to hold even the sparse Reconstruction institutions that the nation created at low throttle, and played a part in Reconstruction incompleteness.” Harold M. Hyman, A More Perfect Union 447 (1973).

[18.]Kelly, Fourteenth 1056.

[19.]Globe 1291.

[20.]Supra Chapter 9 at note 25.

[21.]Flack 41; see also Donald, Sumner II 158.

[22.]David Donald, The Politics of Reconstruction 46 (1965). Senator Hendricks of Indiana pointed out that “Indiana and Illinois almost continuously were Democratic States,” that in Ohio the Democratic party “for half the time had maintained an ascendancy,” that for many years it controlled Pennsylvania, and was and is a “mighty power” in New York. Globe 368.

[23.]Supra Chapter 5 at notes 43–44.

[24.]Supra Chapter 4 at note 36. Michael L. Benedict, who made a “scale” study of voting patterns, concluded that Bingham “led the Republican nonradicals in the House.” A Compromise of Principle 36 (1975). Bingham’s Ohio colleague, Finck, declared on December 21, 1865, that “while I have no ill feeling toward the negro, I shall ever oppose conferring upon him the right of suffrage in Ohio.” Globe 118.

[25.]“Comment on C. V. Woodward’s Paper” 148, 152, in Hyman ed., supra note 16. Benedict states, “the Republican committee members had eschewed ideology in favor of practicality.” Supra note 24 at 182. William Lloyd Garrison “accurately sensed the new mood when he declared that antislavery societies served no useful purpose now that slavery was abolished and closed down the Liberator.” Donald, Sumner II 233.

[26.]Benedict, supra note 24 at 273.

[27.]The Burden of Southern History 73 (1960). Justice Miller, whose “antipathy to slavery” led him to leave Kentucky, wrote in 1854, “An abolitionist has been my abhorrence all my life.” Charles Fairman, Mr. Justice Miller and the Supreme Court 16–17, 27 (1939). Writing to Harold Laski, October 24, 1930, Justice Holmes stated, “I came to loathe in the abolitionists the conviction that any one who did not agree with them was a knave or a fool.” 2 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 1291 (M. Howe ed. 1953). See also supra Chapter 1 note 36.

[28.]Kendrick 257. Consider Graham’s “the drafters of [ §1] . . . Bingham, Stevens . . . Fessenden . . . were men who in their youth and early manhood are known to have been thoroughly exposed to this doctrinal [abolitionist] system,” Graham 250, in light of Fessenden’s “abhorrence” of “extreme radicals,” Bingham’s attack upon “oppressive” invasions of States’ rights. For Stevens, see infra at notes 30, 35. Of this aspect of Graham’s argument, one may borrow his own criticism of “anachronistic thinking” that takes “simple patterns of favorable circumstance as evidence of much more than that.” Graham 453 (emphasis added). He himself undercuts the neoabolitionist theory when he states with reference to due process and equal protection, “the early antislavery usage and the racial-humanitarian expansion and coverage before the Civil War had got forgotten and eclipsed during Reconstruction.” Graham 264.

[29.]Globe 343, 344–345.

[30.]Fawn Brodie, Thaddeus Stevens: Scourge of the South 259, 268 (1959). Compare this with Kelly’s statement, “the Joint Committee was firmly under the control of the Republican Radicals, several of whom, including John A. Bingham and Thaddeus Stevens, had been prominently associated with the radical pre-war antislavery movement.” Kelly, Fourteenth 1057. “In fact,” Donald states, “the Radical wing of the Republican party had rarely exercised effective control.” Donald, Sumner II 450. TenBroek, 149, states, “Radical control of Congress hung in a precarious and fluctuating balance.” See also Benedict, supra note 24.

[31.]Globe 1106.

[32.]James 74; Eric L. McKitrick, Andrew Johnson and Reconstruction 272 (1960).

[33.]Benedict, supra note 24 at 39.

[34.]Sumner II 248.

[35.]Id. Brodie, supra note 30 at 269; Globe 2459; cf. id. 1224–1231. Sumner, his biographer remarks, “had gravely objected” to the Fourteenth Amendment, Donald, Sumner II 9, presumably because it did not accomplish his abolitionist goals.

[36.]Kelly, Fourteenth 1071. Kelly states, “the principal Radical leaders concerned with the amendment, notably Bingham, Stevens, Morrill, Fessenden and Howard deliberately sought to go far beyond the guarantees of the Civil Rights Act and to place all civil rights, in the expansive Bingham definition, under federal guarantees of equality against state law.” Id.

[37.]Id. 1054.

[38.]Donald, supra note 22 at 51–52, 61; cf. McKitrick, supra note 32 at 300; see also Benedict, supra note 24 at 56–57.

[39.]Benedict, supra note 24 at 27, 23; see Donald, quoted supra note 30.

[40.]Donald, Sumner II 149–150, 240, 241, 247–248.

[41.]“Senate Reconstruction policy after 1865 was framed by a non-radical Joint Committee on Reconstruction and a conservative Judiciary Committee.” Benedict, supra note 24 at 37; see id. 29, 146–147; cf. Donald, Sumner II 149–150. And see Morton Keller, Affairs of State 61 (1977).

Kelly, Fourteenth 1057, states that “the Joint Committee was firmly under the control of Radical Republicans,” but Benedict, on the basis of closer analysis, concluded that the “non-radicals clearly outnumbered the radicals.” Supra note 24 at 34, 37. Benedict states that “The centrists’ work centered on two committees: Fessenden’s Joint Committee on Reconstruction and Trumbull’s Senate Judiciary Committee. Between them they fashioned the conservative Reconstruction program of the 39th Congress.” Benedict, id. 146–147. Kelly’s statement, as well as Graham’s, that “Ten members of the Joint Committee . . . are known to have grown up in states which were exposed for years to antislavery theory,” Graham 313, is vitiated by the fact that the entire committee signed the report, explaining suffrage was unacceptable. Supra chapter 5 at note 49.

[42.]Cf. Donald, Sumner II 247–248.

[43.]New York Herald, September 28, 1866, quoted in Benedict, supra note 24 at 198. The New York Herald, June 11, 1866, hailed the Amendment as “an ingeniously contrived party platform for the coming fall elections . . . There is nothing here obnoxious to public opinion in the way of negro suffrage.” Quoted in Kendrick 352. “The victories Republicans won in 1866,” Benedict states, “had demonstrated popular support not for the Radical Republican program but for that of the conservatives and centrists.” Benedict, id. at 257; see id. 182, 188. Bingham stated that in the 1866 elections the Amendment was “directly in issue . . . from Maine to California.” James 167.

Criticizing the cries of a “white man’s government,” Stevens said, “I trust the Republican party will not be alarmed at what I am saying. I do not profess to speak their sentiments, nor must they be held responsible for them. I speak for myself.” Globe 74.

[44.]James 167. James states it was a “rather consistent practice . . . to disavow all Radical influence in the framing of the congressional proposal.” Id. Compare Sherman with Kelly’s statement, “The mood of the Radicals was not one of caution and restraint; on the contrary it was ‘revolutionary’ . . . It is important to understand it, for both the Civil Rights Act of 1866 and the Fourteenth Amendment were products of it.” Kelly, Fourteenth 1060–1061.

[45.]Benedict, supra note 24 at 210. Chairman Fessenden “was unwilling to allow the process of reconstruction to be controlled by the radicals.” Kendrick 174.

[46.]Kelly, Fourteenth 1054.

[47.]Globe 705; for a similar remark by Stevens, see id. 537.

[48.]Cong. Globe, 40th Cong., 3d Sess. 672. Russell Nye states, “Neither the anti-slavery controversy, nor the Civil War, nor the inconclusive maneuvering of Reconstruction made any basic changes in the prevailing attitudes towards race . . . attributes clearly reflected in the congressional politics of Reconstruction.” Nye, supra note 25 at 156.

[49.]Kelly, Fourteenth 1071 (emphasis added).

[50.]Id. 1072.

[51.]Id. 1071. Kelly states that had the Radicals pressed home the proposition that “their amendment would undoubtedly consummate the destruction of caste and class legislation in the states, an important element of moderate Republican support might be alienated . . . Political strategy called for ambiguity, not clarity.” Id. 1084. For discussion of this remarkable interpretive approach, see supra Chapter 6.

[52.]Kelly, “Comment on Harold M. Hyman’s Paper” 40, in Hyman ed., supra note 16. That tacit recantation, published in a sheaf of Reconstruction essays by others, would escape the notice of legal scholars accustomed to search for criticism of the earlier law review article in legal indices.

[53.]Id. 55 (emphasis added). Benedict comments that “the proposed amendment again demonstrated Republicans’ reluctance to expand the national government’s jurisdiction over its citizens.” Supra note 24 at 170. See also Hyman, supra note 17 at 304, 425, 426, 439, 440, 522–523. The idealistic Graham revealingly states, “The flaws and loopholes . . . were products of a Reconstruction society still willing and able to sacrifice the slave race, to defer protection during the Reconstruction crisis.” Graham 297.

[54.]Supra at note 47. Senator Doolittle of Wisconsin, who favored Negro suffrage, recognized that it could not “be imposed upon the [Northern] States.” Globe 2143; see supra Chapter 4 at notes 28–33. Desegregation of schools was even more unpalatable.

[55.]In a tacit reference to the neoabolitionist writings, Fairman stated, “some of the studies go to historical origins and through their reinterpretation, report the discovery of high moral purposes which, though lost awhile, are now offered as authentic. In some of these works of great good will it seems as though the fervor to hasten justice now has, however unwittingly, been given ascendancy over devotion to cold truth.” History 1117.

[56.]Miller and Howell consider it “rather doubtful that the historical record is so ‘inconclusive’ as Chief Justice Warren asserted in Brown v. Board of Education . . ., insofar as the framers of the fourteenth amendment had any intent regarding racially segregated schools.” “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 674 note 48 (1960). See also Thomas Grey, “Do We Have An Unwritten Constitution?,” 27 Stan. L. Rev. 703, 712 (1975).

[57.]347 U.S. 483, 489 (1954) (emphasis added).

[58.]Donald, Sumner II 248. As Senator Yates of Illinois observed, “If we do not meet the views of the Radicals on the one hand, nor the views of the pro-slavery Democracy upon the other, we at all events have the medium, the moderation which has been agreed upon.” Globe 3038. See supra at note 42.

[59.]Supra Chapter 2 at note 26; Chapter 6. One of the distinguished lawyers of our generation, Dean Acheson, testified before the Senate in 1971 that “The most complicated thing in the world, race relations, came out of the judges, who took over this problem and found in a phrase, the equal protection of the laws, the way to deal with this complicated question, which didn’t deal with it.” Hearings on Executive Privilege before the Senate Subcommittee on the Separation of Powers 266, 92d Cong., 1st Sess. (July 1971).

[60.]347 U.S. at 492–493. See infra Chapter 15 note 11.

[61.]The Constitution in Crisis Times 312 (1972).