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 Segregated Schools

brown v. board of education

8

Incorporation of the Bill of Rights in the Fourteenth Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[4.]It has been little noticed that, as Egbert Benson, speaking with reference to freedom of speech and press, said, all the Committee of Eleven to whom the amendments had been referred “meant to provide against was their being infringed by the [federal] Government.” 1 Annals of Congress 732. Madison urged that “the State governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.” Id. 441. But his attempt failed. Charles Warren, “The New ‘Liberty’ under the Fourteenth Amendment,” 39 Harv. L. Rev. 431, 433–435 (1926). The drive was for protection against the federal government; as Thomas Tucker said, “Five important States have pretty plainly expressed their apprehensions of the danger to which the rights of their citizens are exposed.” 1 Annals of Congress 757. Elbridge Gerry observed: “This declaration of rights, I take it, is designed to secure the people against the maladministration of the [federal] Government.” Id. 749. Earlier James Jackson asked, “Who are Congress, that such apprehensions should be entertained of them?” Id. 442. In presenting the amendments Madison explained that “the abuse of the powers of the General Government may be guarded against in a more secure manner.” Id. 432. He added, “If there was reason for restraining the State Governments [by State constitutions] from exercising this power, there is like reason for restraining the Federal Government.” Id. 439. The view that prevailed was that of Thomas Tucker: “It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do.” Id. 755.

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

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

[7.]Lusky 161.

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

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

[10.]Globe 1120.

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

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

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

[14.]Supra Chapter 1 note 24.

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

[16.]Fairman, Stanford.

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

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

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

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

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

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

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

[23.]See supra Chapter 3.

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

[25.]134 U.S. 418.

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

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

[28.]Infra at note 36.

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

[30.]Globe 1034.

[31.]Fairman, Stanford 26.

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

[33.]Globe 1054.

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

[35.]Id. 1291.

[36.]Id. 1294.

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

[38.]Globe 1090–1091.

[39.]Bickel 39.

[40.]Id. 40.

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

[42.]Globe 1120.

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

[44.]Id. 1034.

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

[46.]Globe 1089–1090.

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

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

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

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

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

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

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

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

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

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

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

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

[58.]TenBroek 214.

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

[60.]Kendrick 257, 192.

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

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

[63.]Globe 2764, 2765.

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

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

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

[67.]Globe 2964, 2332, 2769–2770.

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

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

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

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

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

[72.]Fairman, Stanford 65.

[73.]Globe 2883 (emphasis added).

[74.]Id. 3069.

[75.]Id. 3148.

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

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

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

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

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

[79.]Id. 78.

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

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

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

[83.]Fairman, Stanford 132 et seq.

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

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

[86.]Globe 1064–1065.

[87.]Id. 1093.

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

[89.]Globe 334–335.

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

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

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

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

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

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

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