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

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.

[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.