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 Incorporation

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

modern rights

9

Opposition Statements Examined

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

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

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

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

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

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

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

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

10

“Equal Protection of the Laws”

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

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

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

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

What Was Equal Protection to Protect?

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

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

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

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

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

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

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

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

Freedom From Discrimination vs. Absolute Rights

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

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

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

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

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

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

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

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

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

Congressional Power: Corrective or General

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

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

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

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

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

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

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

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

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

Comes now the third “mainstay”:

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

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

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

11

“Due Process of Law”

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

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

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

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

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

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

The 39th Congress

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Person or Citizen

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

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

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

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

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

12

Section Five: “Congress Shall Enforce”

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

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

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

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

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

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

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

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

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

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

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

13

Incorporation of Abolitionist Theory in Section One

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1.]4 Elliot 446.

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

[3.]Kelly, Fourteenth 1063, 1070.

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

[5.]Flack 16–17, 40 (emphasis added).

[6.]Infra at notes 25–27.

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

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

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

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

[10.]Fairman, Stanford 138.

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

[12.]Fairman, History 1236.

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

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

[15.]Globe 500.

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

[17.]Globe 505–506.

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

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

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

[21.]Globe 632.

[22.]Id. 506.

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

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

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

[26.]Globe 1294.

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

[28.]TenBroek at 205 collected some proposals.

[29.]Kendrick 46 (emphasis added).

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

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

[32.]Globe 702; supra note 28.

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

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

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

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

[37.]Bickel 56 (emphasis added).

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

[39.]James 150.

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

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

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

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

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

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

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

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

[7.]See supra Chapter 5.

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

[9.]Kelly, Fourteenth 1052.

[10.]Donald, Sumner II 149.

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

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

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

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

[15.]Globe 1073, 1074.

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

[17.]Globe 1622.

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

[19.]Id. 601–602.

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

[21.]Id. 1085.

[22.]Id. 2699.

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

[24.]Bickel 31.

[25.]Id. 33; Kendrick 61.

[26.]Supra Chapter 2 at notes 26–40.

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

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

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

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

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

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

[33.]Globe 537.

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

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

[36.]Id.

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

[38.]Globe 3979.

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

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

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

[42.]Supra Chapter 9 at notes 28–35.

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

[43.]Supra at note 18.

[44.]TenBroek 222.

[45.]Id. 193.

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

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

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

[48.]Id. 1292.

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

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

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

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

[52.]Globe 474, 1366.

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

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

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

[56.]Id. 2766.

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

[58.]Globe 1089–1090, 1832.

[59.]Supra Chapter 8 at notes 43–56.

[60.]Globe 1094 (emphasis added).

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

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

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

[63.]Supra Chapter 8 note 4.

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

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

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

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

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

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

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

[71.]Globe 1293.

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

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

[74.]Globe 2766.

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

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

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

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

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

[79.]Id. 1063.

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

[81.]Globe 2502.

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

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

[84.]TenBroek 223, 216.

[85.]Id. 217–218.

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

[87.]Supra at note 73.

[88.]TenBroek 218–219.

[89.]Id. 220–221.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[13.]Supra note 9 at 266.

[14.]Id. 267.

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

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

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

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

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

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

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

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

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

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

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

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

In 1866 most State constitutions still adhered to the “law of the land” phraseology. A few had adopted the language of due process or due course of law: Alabama (1865), 1 Poore 49; Connecticut (1818), id. 259; Mississippi (1832), 2 Poore 1068; Nevada (1864), id. 1248; New York (1846), id. 1351–1352; South Carolina (1865), id. 1643; Texas (1866), id. 1785. Constitutions fashioned in the Southern States under Northern military occupation in 1865 and 1866‘ may be taken to reflect Northern opinion.

[25.]Before 1866, the due process clause “had been looked upon almost universally as only a procedural guarantee.” Benjamin R. Twiss, Lawyers and the Constitution 26 (1942); see infra note 48; infra at note 42.

[26.]Supra Chapter 1 note 57.

[27.]“Review and Majority Rule,” in Supreme Court and Supreme Law 170, 177 (Edmond N. Cahn ed. 1954). As Justice Black stated, “there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add substantive constitutional changes which a majority of the Court at any given time believes are needed to meet present-day problems.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 675–676 (1966), dissenting opinion. See also infra note 47. But as Alexander Bickel noted, under a “very narrow historical meaning of the Due Process Clause, much else in which Justice Black has joined would be relegated to limbo.” The Least Dangerous Branch 88 (1962). That does not so much prove his reasoning wrong as a failure to live by it.

[28.]Globe 833. A slave was a chattel and could be neither a party to a suit nor a competent witness against a white. Kenneth M. Stampp, The Peculiar Institution 197 (1956).

[29.]Globe 653.

[30.]Id. 602. Sumner stressed “Equality before the law . . . in court room,” id. 674. Raymond stated the Negro “will have access to the courts as a citizen of the United States the same as any other citizen has.” Id. 1266.

[31.]Id. 1263, 1265; see also Logan, supra Chapter 6 at note 66.

[32.]Id. 1294.

[33.]Id. 2899.

[34.]Infra at notes 56–59. Referring to the due process clause, Bingham said, “Thus, in respect to life, liberty, and property the people by their Constitution declared the equality of all men.” Globe 1292. When Chief Justice Taft held in Truax v. Corrigan, 257 U.S. 312, 332 (1921) that “Our whole system of law is predicated on the general, fundamental principle of equality of application of the law,” he overlooked that (1) Article IV, §2 provided for equality with respect to selected rights; (2) Negroes enjoyed no rights whatsoever; and (3) the Fourteenth Amendment again guaranteed them equality only with respect to selected rights, and pointedly excluded suffrage.

[35.]Globe 14, 1034; James 83. “In comparison with the concept of equal protection of the laws,” tenBroek averred, “the due process clause was of secondary importance to the abolitionists”; there was an “interchangeable” usage tied to protection of “natural rights.” TenBroek 119–120, 215. “The basic idea,” he stated, “is that of ‘equal protection’ . . . other elements were later added—privileges and immunities of citizens, due process of law, political rights. These were all either addenda to the basic notion or an elaboration of it.” Id. 207. Hence the “due process clause slipped into a subordinate, almost forgotten position, being commonly read and frequently discussed as if it were a part of the equal protection requirement” (id. 232; see also id. 119–120), as Bingham’s statement, supra at note 35, illustrates.

Justice Miller noted in 1878 as a “remarkable” fact that in the century since the Fifth Amendment, due process had “rarely been invoked.” Davidson v. New Orleans, 96 U.S. 97, 103 (1877).

[36.]Globe 1089. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857), which employed substantive due process, was scarcely among those “decisions” for it was universally execrated by the abolitionists, and also decried by Lincoln.

[37.]James 86. That is very old learning: “If a statute make use of a word the meaning of which is well known at the common law, the word shall be understood in the same sense it was understood at common law.” Matthew Bacon, A New Abridgement of the Laws of England at “Statutes” I (4) (3d ed. 1768). See also supra note 5.

[38.]Graham 52.

[39.]Id. 58, 32.

[40.]Globe 2459.

[41.]Globe App. 256. Like Bingham’s identification of due process with the judicial decisions, Baker’s statement furnishes historical footing for Justice Matthews’ “irresistible” conclusion that the due process of the Fourteenth Amendment “was used in the same sense and with no greater extent” than that of the Fifth. Hurtado v. California, 110 U.S. at 535. Later Justice Frankfurter stated, “It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth.” Adamson v. California, 332 U.S. 46, 66 (1947), concurring opinion. We may safely rely on Hamilton, supra at note 4, for its narrow procedural meaning in the Fifth Amendment, there being no evidence whatever to the contrary.

[41a.]See infra Chapter 13 at note 4.

[42.]Graham 35, 36; see also infra at note 48.

[43.]Infra Chapter 13.

[44.]James 160.

[45.]Graham 96; Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).

[46.]Graham 447.

[47.]Id. 467, 470–471, 487; see also id. 480. If, as is stated by Professor Archibald Cox, “all agree that the [due process] clause calls for some measure of judicial review of legislative enactments,” The Role of the Supreme Court in American Government 113 (1976), that belief has yet to be rooted in historical fact. The fact is, as Chapter 14 will seek to demonstrate, substantive due process was a judicial construct fashioned in the late nineteenth century to halt the regulation of big business. Justice Black stated that in Chicago, M. & St. P. R. Co. v. Minnesota, 134 U.S. 418 (1890), the Court “gave a new and hitherto undiscovered scope for the Court’s use of the due process clause to protect property rights under natural law concepts.” Adamson v. California, 332 U.S. at 79, dissenting opinion.

[48.]Graham 242. “Before there could be clear, general insight into the potentialities of . . . due process,” Graham remarked, “there had to be pretty explicit judicial use.” Substantive due process, he added, “was not yet an obvious or self-evident proposition.” Id. 487, 488. Alfred Kelly observed that in 1860 “these doctrines were outside the pale of constitutional orthodoxy, but the political upheaval incident to the Civil War put a group of old antislavery enthusiasts in a position to control the Thirty-Ninth Congress and to write their radical reformism into the Constitution itself. The debates on the passage of the amendment reveal clearly enough how completely the constitutional ideology of the pre-war antislavery movement shaped the objectives of the Radical Republicans.” Kelly, Fourteenth 1054. Chapter 13 infra will demonstrate that “control [of] the Thirty-Ninth Congress” by radical “enthusiasts” is a figment of the neoabolitionist imagination, and that abolitionist ideology fell on stony ground.

[49.]“The work of Bingham,” tenBroek stated, “was the meeting ground, in a sense that the work of no other individual was, of the three concepts and clauses that came to constitute the first section of the amendment.” TenBroek 145. Kelly states, “Bingham, principal author of the first section of the amendment, had been a leading congressional antislavery constitutional theorist.” Kelly, Fourteenth 1054.

[50.]TenBroek 121.

[51.]Graham 539.

[52.]James Garfield, a participant in the 39th Congress debates, said in discussing a bill for enforcement of the Fourteenth Amendment in 1871, that no State can “deprive any person of those great fundamental rights . . . of life, liberty, and property, except by due process of law; that is, by an impartial trial according to the laws of the land.” Cong. Globe, 42d Cong., 1st Sess. App. at 152–153, quoted by Justice Black in Adamson v. California, 332 U.S. at 111, dissenting opinion.

[53.]Supra Chapter 1 at note 10.

[54.]In a footnote to United States v. Carolene Products Co., 304 U.S. 144, 152–153 note 4 (1938), Justice Stone assigned a preferred position to certain privileges. The genesis and historical footing of that view will hereinafter be discussed.

[55.][In 1925 Felix Frankfurter wrote of the due process clauses, “whose contents are derived from the disposition of the Justices.” Alexander Bickel, The Supreme Court and the Idea of Progress 25 (1978).] Before his discovery of abolitionist ideology, Graham, 112, remarked on the “amazing judicial hybridization of due process of law with the economic tenets of laissez faire [to] which Justice Holmes objected.”

[56.]Supra note 28.

[57.]Globe 600.

[58.]TenBroek 207.

[59.]Globe 2539. Windom summarized §1 in terms of privileges or immunities and equal protection without any mention of due process. Id. 3171.

[60.]Globe 1681.

[61.]Alone among the Justices, Justice Harlan perceived that the framers expected the “privileges or immunities” clause to be “the most significant portion of §1,” and since it was “expected to be the primary source of substantive protection, the Equal Protection and Due Process Clauses were relegated to a secondary role, as the debates and other contemporary materials make clear.” Oregon v. Mitchell, 400 U.S. 112, 163, 164 (1970).

[62.]2 Kent, supra note 17 at 608–609.

[63.]Globe 2766, 833 (emphasis added). So too, Raymond stated that the Civil Rights Bill “is intended to secure those citizens against injustice that may be done to them in the courts . . . It is intended to prevent unequal legislation . . . affecting them injuriously.” Globe 1267.

[64.]TenBroek 145.

[65.]R. J. Harris, The Quest for Equality 35–36 (1960).

[66.]Id. 44. The triune analysis undercuts that of Chief Justice Warren in Bolling v. Sharpe, 347 U.S. 497, 499 (1954): “The Fifth Amendment . . . does not contain an equal protection clause as does the Fourteenth Amendment . . . But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the law’ is a more explicit safeguard of prohibited unfairness than ‘due process of law.’ ” This is sheer fantasy. Equal protection was incorporated in the Fourteenth Amendment to bar discrimination by statutes, due process to secure access to the courts; both were antidiscriminatory, but they were designed to serve quite different purposes. Only eleven years before Warren’s statement, the Court held that because of the absence of “equal protection” from the Fifth Amendment, it “provides no guaranty against discriminatory legislation by Congress.” Detroit Bank v. United States, 317 U.S. 329, 337 (1943).

[67.]Thus Harris extracts from the debates the principle “that the equal protection clause means absolute or perfect equality . . . and condemns every discrimination perpetuated by unequal laws.” Supra note 65 at 55. Although tenBroek discerned that the three clauses represented an amalgam for the “protection of natural rights,” tenBroek 145, 239, 120, he did not grasp the limited meaning that “natural,” “fundamental” rights had for the framers. Consider only his statement that the “sweeping and comprehensive meaning of the Fourteenth Amendment . . . turns simply upon the nature of the statutory plan which was sought to be made constitutionally secure by the amendment.” TenBroek 203 (emphasis added). This about an Act that painstakingly specified the limited rights to be protected!

[68.]83 U.S. (16 Wall.) 36, 80 (1872); Justice Miller, supra note 35.

[69.]Globe 2766.

[70.]TenBroek 232; Globe 2459 (emphasis added). “As Stevens saw it, discrimination was the great evil, equal protection was the dominant purpose of §1.” Fairman, Stanford 44 (emphasis added). Sumner stated that he wanted “Equality before the law, so that there shall be no ban of color in court room.” Globe 674.

[71.]Globe 476; see also supra Chapter 10 at note 49.

[72.]See supra at notes 28–30.

[73.]110 U.S. at 535; see also Walker v. Sauvinet, 92 U.S. 90, 93 (1875); cf. supra Chapter 10 at note 70.

[74.]Recall Bingham’s objection to the “oppressive” breadth of the term “civil rights,” which was deleted at his insistence. Supra Chapter 7 at notes 11–17; Globe 1366.

[75.]TenBroek 239.

[76.]Globe 1117–1118.

[77.]Id. 1366; see also supra at note 33.

[78.]Chambers v. Florida, 309 U.S. 227, 235–236 (1940).

[79.]Duncan v. Louisiana, 391 U.S. 145, 172 (1968), dissenting opinion. As late as 1894, the Supreme Court declared that the Fourteenth Amendment “conferred no new and additional rights, but only extended the protection of the Federal Constitution over rights of life, liberty, and property that had previously existed under all state constitutions.” Mobile & Ohio Railroad v. Tennessee, 153 U.S. 486, 506 (1894).

[80.]“Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 13 (1971); see also infra Chapter 21 at note 28.

[81.]Sugarman v. Dougall, 413 U.S. 634, 652 (1973), dissenting opinion.

[82.]Maxwell v. Dow, 176 U.S. 581, 595–596 (1900), presented the question whether a State may provide for criminal trials by a jury of less than twelve. Justice Peckham stated that the rights secured by the Fifth, Sixth, and Seventh Amendments are not “privileges and immunities granted and belonging to the individual as a citizen of the United States, but they are secured to all persons against the Federal Government, entirely irrespective of such citizenship.” Hence, he concluded, the privileges or immunities claim “is not protected by a clause which simply prohibits the abridgment of the privileges or immunities of citizens of the United States.”

[83.]Globe 1118. Racial discrimination was the acknowledged concern of the Bill: see Trumbull, id. 332, 605; Senator Lane, id. 602; Senator Sumner, id. 674; Senator Sherman, id. 744; Wilson, id. 1117; Senator Howe, Globe App. 217. These citations are by no means exhaustive.

But while the “one pervading purpose” as Justice Miller stated was “the freedom of the slave race,” supra note 68 at 71, white loyalists who were the victims of discrimination in the South were likewise stated to be “within the intent of the Bingham amendment.” See infra at note 91; and see Broomall, Globe 1263; Chapter 3 note 40.

[84.]Globe 474–475.

[85.]Id. 1115.

[86.]Id. 1292.

[87.]Id. 1295. There was no need to change “inhabitant” in §2 because it was limited to deprivations of rights “protected by this act” which extended to “citizens” only.

[88.]Id. 1832, 1293.

[89.]Id. 10, 537; id. 14.

[90.]Id. 813.

[91.]Id. 1065.

[92.]Id. 1090, 1292.

[93.]Id. 1066, 1087, 1088, 1095.

[94.]Id. 2452.

[95.]Id. 2465, 2535.

[96.]Id. 2896, 2498.

[97.]Id. 2465; supra Chapter 2. For Wilson, the due process clause served to identify the rights with which the Civil Rights Bill was concerned. Citing the Fifth Amendment, “No person shall be deprived of life, liberty, or property without due process of law,” he stated, “these constitute the civil rights belonging to the citizens . . . to which this bill relates.” Globe 1294.

[98.]Globe 2539.

[99.]TenBroek 228.

[1.]Ex parte Virginia, 100 U.S. 339, 345 (1879) (emphasis partially added). [During the oral argument on Brown v. Board of Education, Justice Jackson asked, “Isn’t the one thing that is perfectly clear under the Fourteenth Amendment that Congress is given the power and the duty to enforce the Fourteenth Amendment by legislation?” Alexander Bickel, The Supreme Court and the Idea of Progress 6 (1978).]

[2.]Oregon v. Mitchell, 400 U.S. 112, 264n (1970).

[3.]TenBroek 149.

[4.]Donald, Sumner II 193. In the House, Stevens referred to “the infamous sentiment that damned the late Chief Justice to everlasting fame; and I fear, to everlasting fire.” Globe 75. George Bancroft, the historian, stated in a memorial tribute to Lincoln that “The Chief Justice . . . without any necessity or occasion, volunteered to come to the rescue of the theory of slavery.” Globe 801. Almost twenty years later Justice Harlan delivered himself of more severe strictures in the Civil Rights Cases, 109 U.S. 3, 57 (1883), dissenting opinion.

[5.]41 U.S. (16 Pet.) 539 (1842).

[6.]62 U.S. (21 How.) 506 (1858). The pot had been kept boiling by a string of fugitive slave decisions, infra Chapter 14 at notes 25–26.

[7.]Graham 447–448. Courts “had not normally favored abolitionists before the war. There was consequently little inclination to bestow new powers on the judiciary, but rather to lean on an augmented power of Congress.” James 184.

[8.]Globe 2947.

[9.]Fairman, History 271. “The Radicals,” said R. J. Harris, The Quest for Equality 53–54 (1960), “did not trust the judiciary in general and the Supreme Court in particular.” “Radical Republicans sought to deny the postwar court the power to review congressional Reconstruction.” Morton Keller, Affairs of State 73 (1977).

[10.]Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 138 (1973). Hand stated respecting the desegregation decision, “It is curious that no mention was made of section 5, which offered an escape, from intervening, for it empowers Congress to ‘enforce’ all the preceding sanctions by ‘appropriate legislation.’ The court must have regarded this as only a cumulative corrective, not being disposed to divest itself of that power of review that it has so often exercised and as often disclaimed.” Hand, The Bill of Rights 55 (1962).

[11.]T.I.M.E. v. United States, 359 U.S. 464, 471 (1959); United States v. Arredondo, 31 U.S. (6 Pet.) 691, 725 (1832). The rule was familiar to the Founders. In the First Congress, Egbert Benson said, “it cannot be rationally intended that all offices should be held during good behaviour, because the Constitution has declared one office to be held by this tenure.” 1 Annals of Congress 505; and see Alexander White, id. 517.

[12.]Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850).

[13.]“The Civil Rights Act of 1871 (now 28 U.S.C. §1343) created original jurisdiction in the district courts over actions [t]o redress the deprivation, under color of any State law . . . of any right . . . secured by the Constitution . . . And the Act of March 3, 1875 (now 28 U.S.C. §1331), created general federal question jurisdiction in the district courts. The federal courts ‘ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliance for vindicating every right given by the Constitution, the laws, and treaties of the United States’ [citing Felix Frankfurter and James M. Landis, The Business of the Supreme Court 65 (1928)].” Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials 1297 (1975).

[14.]Raoul Berger, Congress v. The Supreme Court 274 (1969).

[15.]Infra at note 16.

[16.]Globe App. 316. McKee of Kentucky asked, “Where is your court of justice in any southern State where the black man can secure protection.” Globe 653. See also Senator Lane, supra Chapter 11 at note 30.

[17.]Supra at note 12.

[18.]Pierson v. Ray, 386 U.S. 547, 554–555 (1967); see also supra Chapter 1 note 57.

[19.]Globe 2511. Jehu Baker of Illinois declared that §5 “was of course necessary in order to carry the proposed article into practical effect.” Globe App. 257. See also Senator Poland, Globe 2961. Fairman comments, “Poland, like the rest, contemplated action by Congress and ignored direct enforcement by the courts.” Fairman, History 1296. For a similar comment on Howard, see Fairman, id. 1294.

“Senator Howe, a Radical Republican, went back to Wisconsin and made a major address at Madison on August 10 [1866]; ‘. . . The only effect of the amendment if adopted is to enable the National Legislature . . . to enforce equal justice, when the several States refuse to enforce it.’ ” Fairman, Stanford 73–74, quoting the Chicago Tribune, August 14, 1866.

[20.]Katzenbach v. Morgan, 384 U.S. 641, 650 (1966).

[21.]41 U.S. (16 Pet.) 539, 618–620 (1842). Justice Bradley stated on circuit, “whenever a right is guaranteed by the constitution . . . Congress has the power to provide for its enforcement, either by implication arising from the correlative duty of the government to protect, wherever a right to the citizen is conferred, or under the general power . . . to make all laws necessary and proper for carrying into execution the foregoing powers.” United States v. Cruikshank, 25 F. Cas. (No. 14,897) 707, 709 (C.C.D. La. 1874). He instanced Prigg as an example of the former power.

[22.]Supra note 6.

[23.]“Congressional Power to Enforce the Fourteenth Amendment Against Private Acts,” 73 Yale L.J. 1353, 1357 (1964). Chief Justice Taney held in Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107 (1858), with reference to power to compel a Governor to deliver a fugitive from justice to a sister State, “there is no clause or provision in the Constitution which arms the Government of the United States with this power.”

[24.]Bingham stated that “the continued construction of every department of this Government, legislative, executive and judicial . . . has conceded that no such power [to enforce the rights guaranteed to a citizen “from the beginning” ] is vested in the Federal Government,” and he therefore proposed a grant to Congress. Globe 429; see also Howard, infra at note 29.

[25.]Harris, supra note 9 at 53–54; James 184.

[26.]Globe 2961 (emphasis added). Woodbridge said the Amendment “is intended to enable Congress by its enactments” to give “protection.” Supra Chapter 8 at note 34.

[27.]Globe 2459; Fairman, History 1284. In “Stevens’ mind, it was Congress that was going to correct unjust State legislation.” Fairman, Stanford 44.

[28.]Supra Chapter 10 at notes 73, 75, 79.

[29.]Globe 2766, 2768 (emphasis added). Justice Brennan cites this passage for “congressional responsibility for implementing the Amendment.” Katzenbach v. Morgan, 384 U.S. at 648.

[30.]Globe 1095.

[31.]Id. 358.

[32.]Oregon v. Mitchell, 400 U.S. at 143. Professor Willard Hurst stated, “it is pretty plain that the actual framers thought they were delegating the rulemaking power to Congress.” “The Role of History,” in Supreme Court and Supreme Law 60 (Edmond N. Cahn ed. 1954).

[33.]Supra note 11.

[34.]Thus the Equal Educational Opportunities Act of 1974, 20 U.S.C. § §1701 et seq., undertook to “specify appropriate remedies for the orderly removal of the vestiges of the dual school system” and to establish priorities for the employment of such remedies. 20 U.S.C. §1701(b) and §1713. See also Kelly, supra Chapter 6 note 26.

[1.]Graham 155 et seq.; tenBroek 25, 29, 116, 145, 235.

[2.]Robert Cover, Justice Accused: Antislavery and the Judicial Process 155, 150–153 (1975). Cover justly remarks that Graham and tenBroek discovered in the “visions” of this minority “roots for their own constitutional aspirations.” Id. 154.

[3.]Kelly, Fourteenth 1050–1051. Leonard Levy states, “Graham and tenBroek proved that the meaning of Section One must be sought in the pre-1865 period as well as later, and that the evidence of 1866–1868 must be read in the light of a received tradition of abolitionist argument.” Judgments: Essays in American Constitutional History 70 (1972). See also Thomas Grey, infra Chapter 21 at note 74.

[4.]Graham 155–156.

[5.]Id. 543.

[6.]“That this antislavery constitutional theory was extremely heterodox is clear. It was not primarily the product of minds trained in vigorous case analysis or statutory construction. It confused moral with civil and constitutional rights. It made the Declaration of Independence the basic constitutional document . . . the Federal Bill of Rights a source rather than a limitation of federal power.” Id. 237–238.

[7.]Kelly, Fourteenth 1049; Graham 268–269.

[8.]TenBroek 25.

[9.]Bickel 6.

[10.]Graham 269. Kelly says of the Court’s reaction to his brief, “Equipped with an impressive mass of historical evidence [which he himself stated “doctor[ed] all the evidence to the contrary, either by suppressing it . . . or by distorting it . . .] . . . the Court reneged.” “As though in embarrassment,” the Court “rejected history in favor of sociology.” Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 144. The Court’s “embarrassment,” I suggest, arose from a hard-headed appraisal of the neoabolitionist theology. It also had before it Bickel’s “impressive” compilation to the contrary. Supra Chapter 7 at note 3.

[11.]Supra Chapter 11 at note 9.

[12.]Globe 1089.

[13.]Graham 35, 244; see supra Chapter 11 at notes 4–27. For the “exceptions” see infra Chapter 14 at notes 28–35.

[14.]Kelly, Fourteenth 1052.

[15.]Graham 280.

[16.]Woodward, “Seeds of Failure in Radical Race Policy,” in New Frontiers of the American Reconstruction 128 (Harold M. Hyman ed. 1966).

[17.]Globe 257. “Negrophobia tended to hold even the sparse Reconstruction institutions that the nation created at low throttle, and played a part in Reconstruction incompleteness.” Harold M. Hyman, A More Perfect Union 447 (1973).

[18.]Kelly, Fourteenth 1056.

[19.]Globe 1291.

[20.]Supra Chapter 9 at note 25.

[21.]Flack 41; see also Donald, Sumner II 158.

[22.]David Donald, The Politics of Reconstruction 46 (1965). Senator Hendricks of Indiana pointed out that “Indiana and Illinois almost continuously were Democratic States,” that in Ohio the Democratic party “for half the time had maintained an ascendancy,” that for many years it controlled Pennsylvania, and was and is a “mighty power” in New York. Globe 368.

[23.]Supra Chapter 5 at notes 43–44.

[24.]Supra Chapter 4 at note 36. Michael L. Benedict, who made a “scale” study of voting patterns, concluded that Bingham “led the Republican nonradicals in the House.” A Compromise of Principle 36 (1975). Bingham’s Ohio colleague, Finck, declared on December 21, 1865, that “while I have no ill feeling toward the negro, I shall ever oppose conferring upon him the right of suffrage in Ohio.” Globe 118.

[25.]“Comment on C. V. Woodward’s Paper” 148, 152, in Hyman ed., supra note 16. Benedict states, “the Republican committee members had eschewed ideology in favor of practicality.” Supra note 24 at 182. William Lloyd Garrison “accurately sensed the new mood when he declared that antislavery societies served no useful purpose now that slavery was abolished and closed down the Liberator.” Donald, Sumner II 233.

[26.]Benedict, supra note 24 at 273.

[27.]The Burden of Southern History 73 (1960). Justice Miller, whose “antipathy to slavery” led him to leave Kentucky, wrote in 1854, “An abolitionist has been my abhorrence all my life.” Charles Fairman, Mr. Justice Miller and the Supreme Court 16–17, 27 (1939). Writing to Harold Laski, October 24, 1930, Justice Holmes stated, “I came to loathe in the abolitionists the conviction that any one who did not agree with them was a knave or a fool.” 2 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 1291 (M. Howe ed. 1953). See also supra Chapter 1 note 36.

[28.]Kendrick 257. Consider Graham’s “the drafters of [ §1] . . . Bingham, Stevens . . . Fessenden . . . were men who in their youth and early manhood are known to have been thoroughly exposed to this doctrinal [abolitionist] system,” Graham 250, in light of Fessenden’s “abhorrence” of “extreme radicals,” Bingham’s attack upon “oppressive” invasions of States’ rights. For Stevens, see infra at notes 30, 35. Of this aspect of Graham’s argument, one may borrow his own criticism of “anachronistic thinking” that takes “simple patterns of favorable circumstance as evidence of much more than that.” Graham 453 (emphasis added). He himself undercuts the neoabolitionist theory when he states with reference to due process and equal protection, “the early antislavery usage and the racial-humanitarian expansion and coverage before the Civil War had got forgotten and eclipsed during Reconstruction.” Graham 264.

[29.]Globe 343, 344–345.

[30.]Fawn Brodie, Thaddeus Stevens: Scourge of the South 259, 268 (1959). Compare this with Kelly’s statement, “the Joint Committee was firmly under the control of the Republican Radicals, several of whom, including John A. Bingham and Thaddeus Stevens, had been prominently associated with the radical pre-war antislavery movement.” Kelly, Fourteenth 1057. “In fact,” Donald states, “the Radical wing of the Republican party had rarely exercised effective control.” Donald, Sumner II 450. TenBroek, 149, states, “Radical control of Congress hung in a precarious and fluctuating balance.” See also Benedict, supra note 24.

[31.]Globe 1106.

[32.]James 74; Eric L. McKitrick, Andrew Johnson and Reconstruction 272 (1960).

[33.]Benedict, supra note 24 at 39.

[34.]Sumner II 248.

[35.]Id. Brodie, supra note 30 at 269; Globe 2459; cf. id. 1224–1231. Sumner, his biographer remarks, “had gravely objected” to the Fourteenth Amendment, Donald, Sumner II 9, presumably because it did not accomplish his abolitionist goals.

[36.]Kelly, Fourteenth 1071. Kelly states, “the principal Radical leaders concerned with the amendment, notably Bingham, Stevens, Morrill, Fessenden and Howard deliberately sought to go far beyond the guarantees of the Civil Rights Act and to place all civil rights, in the expansive Bingham definition, under federal guarantees of equality against state law.” Id.

[37.]Id. 1054.

[38.]Donald, supra note 22 at 51–52, 61; cf. McKitrick, supra note 32 at 300; see also Benedict, supra note 24 at 56–57.

[39.]Benedict, supra note 24 at 27, 23; see Donald, quoted supra note 30.

[40.]Donald, Sumner II 149–150, 240, 241, 247–248.

[41.]“Senate Reconstruction policy after 1865 was framed by a non-radical Joint Committee on Reconstruction and a conservative Judiciary Committee.” Benedict, supra note 24 at 37; see id. 29, 146–147; cf. Donald, Sumner II 149–150. And see Morton Keller, Affairs of State 61 (1977).

Kelly, Fourteenth 1057, states that “the Joint Committee was firmly under the control of Radical Republicans,” but Benedict, on the basis of closer analysis, concluded that the “non-radicals clearly outnumbered the radicals.” Supra note 24 at 34, 37. Benedict states that “The centrists’ work centered on two committees: Fessenden’s Joint Committee on Reconstruction and Trumbull’s Senate Judiciary Committee. Between them they fashioned the conservative Reconstruction program of the 39th Congress.” Benedict, id. 146–147. Kelly’s statement, as well as Graham’s, that “Ten members of the Joint Committee . . . are known to have grown up in states which were exposed for years to antislavery theory,” Graham 313, is vitiated by the fact that the entire committee signed the report, explaining suffrage was unacceptable. Supra chapter 5 at note 49.

[42.]Cf. Donald, Sumner II 247–248.

[43.]New York Herald, September 28, 1866, quoted in Benedict, supra note 24 at 198. The New York Herald, June 11, 1866, hailed the Amendment as “an ingeniously contrived party platform for the coming fall elections . . . There is nothing here obnoxious to public opinion in the way of negro suffrage.” Quoted in Kendrick 352. “The victories Republicans won in 1866,” Benedict states, “had demonstrated popular support not for the Radical Republican program but for that of the conservatives and centrists.” Benedict, id. at 257; see id. 182, 188. Bingham stated that in the 1866 elections the Amendment was “directly in issue . . . from Maine to California.” James 167.

Criticizing the cries of a “white man’s government,” Stevens said, “I trust the Republican party will not be alarmed at what I am saying. I do not profess to speak their sentiments, nor must they be held responsible for them. I speak for myself.” Globe 74.

[44.]James 167. James states it was a “rather consistent practice . . . to disavow all Radical influence in the framing of the congressional proposal.” Id. Compare Sherman with Kelly’s statement, “The mood of the Radicals was not one of caution and restraint; on the contrary it was ‘revolutionary’ . . . It is important to understand it, for both the Civil Rights Act of 1866 and the Fourteenth Amendment were products of it.” Kelly, Fourteenth 1060–1061.

[45.]Benedict, supra note 24 at 210. Chairman Fessenden “was unwilling to allow the process of reconstruction to be controlled by the radicals.” Kendrick 174.

[46.]Kelly, Fourteenth 1054.

[47.]Globe 705; for a similar remark by Stevens, see id. 537.

[48.]Cong. Globe, 40th Cong., 3d Sess. 672. Russell Nye states, “Neither the anti-slavery controversy, nor the Civil War, nor the inconclusive maneuvering of Reconstruction made any basic changes in the prevailing attitudes towards race . . . attributes clearly reflected in the congressional politics of Reconstruction.” Nye, supra note 25 at 156.

[49.]Kelly, Fourteenth 1071 (emphasis added).

[50.]Id. 1072.

[51.]Id. 1071. Kelly states that had the Radicals pressed home the proposition that “their amendment would undoubtedly consummate the destruction of caste and class legislation in the states, an important element of moderate Republican support might be alienated . . . Political strategy called for ambiguity, not clarity.” Id. 1084. For discussion of this remarkable interpretive approach, see supra Chapter 6.

[52.]Kelly, “Comment on Harold M. Hyman’s Paper” 40, in Hyman ed., supra note 16. That tacit recantation, published in a sheaf of Reconstruction essays by others, would escape the notice of legal scholars accustomed to search for criticism of the earlier law review article in legal indices.

[53.]Id. 55 (emphasis added). Benedict comments that “the proposed amendment again demonstrated Republicans’ reluctance to expand the national government’s jurisdiction over its citizens.” Supra note 24 at 170. See also Hyman, supra note 17 at 304, 425, 426, 439, 440, 522–523. The idealistic Graham revealingly states, “The flaws and loopholes . . . were products of a Reconstruction society still willing and able to sacrifice the slave race, to defer protection during the Reconstruction crisis.” Graham 297.

[54.]Supra at note 47. Senator Doolittle of Wisconsin, who favored Negro suffrage, recognized that it could not “be imposed upon the [Northern] States.” Globe 2143; see supra Chapter 4 at notes 28–33. Desegregation of schools was even more unpalatable.

[55.]In a tacit reference to the neoabolitionist writings, Fairman stated, “some of the studies go to historical origins and through their reinterpretation, report the discovery of high moral purposes which, though lost awhile, are now offered as authentic. In some of these works of great good will it seems as though the fervor to hasten justice now has, however unwittingly, been given ascendancy over devotion to cold truth.” History 1117.

[56.]Miller and Howell consider it “rather doubtful that the historical record is so ‘inconclusive’ as Chief Justice Warren asserted in Brown v. Board of Education . . ., insofar as the framers of the fourteenth amendment had any intent regarding racially segregated schools.” “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 674 note 48 (1960). See also Thomas Grey, “Do We Have An Unwritten Constitution?,” 27 Stan. L. Rev. 703, 712 (1975).

[57.]347 U.S. 483, 489 (1954) (emphasis added).

[58.]Donald, Sumner II 248. As Senator Yates of Illinois observed, “If we do not meet the views of the Radicals on the one hand, nor the views of the pro-slavery Democracy upon the other, we at all events have the medium, the moderation which has been agreed upon.” Globe 3038. See supra at note 42.

[59.]Supra Chapter 2 at note 26; Chapter 6. One of the distinguished lawyers of our generation, Dean Acheson, testified before the Senate in 1971 that “The most complicated thing in the world, race relations, came out of the judges, who took over this problem and found in a phrase, the equal protection of the laws, the way to deal with this complicated question, which didn’t deal with it.” Hearings on Executive Privilege before the Senate Subcommittee on the Separation of Powers 266, 92d Cong., 1st Sess. (July 1971).

[60.]347 U.S. at 492–493. See infra Chapter 15 note 11.

[61.]The Constitution in Crisis Times 312 (1972).