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

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

[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.