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

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.”

[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.