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

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

[*]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.

[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.