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

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

[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.