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

6

The “Open-Ended” Phraseology Theory

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

alexander bickel

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

In 1962 he again wrote:

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

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

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

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

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

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

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

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

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

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

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

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

alfred kelly

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

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

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

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

william van alstyne

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

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

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

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

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

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

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

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

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

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

[5.]400 U.S. at 139–140.

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

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

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

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

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

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

[11.]Bickel 60–61.

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

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

[14.]Bickel 61.

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

[16.]Globe 2765.

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

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

[19.]Id. 2961.

[20.]Id. 2766.

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

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

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

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

[25.]Bickel 63.

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

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

[28.]Globe 2964.

[29.]Id. 2941.

[30.]Id. 2947.

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

[32.]Globe 1275.

[33.]Fairman, Stanford 74–75.

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

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

[36.]Kendrick 192.

[37.]Globe 2766.

[38.]Bickel 41–42; Kendrick 83–84.

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

[40.]Kendrick 302 (emphasis added).

[41.]Bickel 43.

[42.]Globe 2766 (emphasis added).

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

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

[45.]Kelly, Fourteenth 1071.

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

[47.]Infra Chapter 11 at notes 36–37.

[48.]Globe 3979.

[49.]Kelly, Fourteenth 1077.

[50.]Id. 1084.

[50a.]Infra Chapter 7 at notes 11–21.

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

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

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

[54.]Id. 74–75.

[55.]Globe 356.

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

[57.]Globe 1291.

[58.]Van Alstyne 75.

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

[60.]Globe 1366; Van Alstyne 77.

[61.]Van Alstyne 73, 77.

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

[63.]Supra Chapter 1 note 24.

[64.]Fairman, Stanford 77, 74.

[65.]Id. 74, 75.

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

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

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