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

13

Incorporation of Abolitionist Theory in Section One

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supplementary Note on Abolitionist Influence

PART II

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

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

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

[4.]Graham 155–156.

[5.]Id. 543.

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

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

[8.]TenBroek 25.

[9.]Bickel 6.

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

[11.]Supra Chapter 11 at note 9.

[12.]Globe 1089.

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

[14.]Kelly, Fourteenth 1052.

[15.]Graham 280.

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

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

[18.]Kelly, Fourteenth 1056.

[19.]Globe 1291.

[20.]Supra Chapter 9 at note 25.

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

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

[23.]Supra Chapter 5 at notes 43–44.

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

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

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

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

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

[29.]Globe 343, 344–345.

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

[31.]Globe 1106.

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

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

[34.]Sumner II 248.

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

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

[37.]Id. 1054.

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

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

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

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

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

[42.]Cf. Donald, Sumner II 247–248.

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

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

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

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

[46.]Kelly, Fourteenth 1054.

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

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

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

[50.]Id. 1072.

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

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

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

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

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

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

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

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

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

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

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