The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

Supplementary Note on the Role of the Court

activist theorizing

Thus the framers of the Fourteenth Amendment were altogether unlikely to enlarge the jurisdiction of the federal courts.

20

Why the “Original Intention”?

Current indifference to the “original intention” —shorthand for the meaning attached by the Framers to the words they employed in the Constitution and its Amendments—is a relatively recent phenomenon. Those who would adhere to it are scornfully charged with “filio-pietism,” “verbal archeology,” 1 “antiquarian historicism that would freeze [the] original meaning” of the Constitution.2 We are told that the Framers intended to leave it “to succeeding generations [meaning judges] . . . to rewrite the ‘living’ constitution anew,” 3 an argument opposed to historical fact. The sole and exclusive vehicle of change the Framers provided was the amendment process; judicial discretion and policymaking were in high disfavor; all “agents and servants of the people” were to be “bound by the chains” of a “fixed Constitution.” Certainly Justice Story did not regard himself as holding a commission “to rewrite the ‘living’ constitution anew”:

Why is the “original intention” so important? The answer was long since given by Madison: if “the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers.” 5 A judicial power to revise the Constitution transforms the bulwark of our liberties into a parchment barrier. This it was that caused Jefferson to say, “Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction.” 6 Given a system founded on a dread of power, with “limits” to fence it about, those who demand compliance with those limits (pursuant to the counsel of four or five early State constitutions) are not to be charged with invoking the shades of the Framers in order to satisfy “the need for certainty . . . If we pretend that the framers had a special sort of wisdom, then perhaps we do not have to think too hard about how to solve pressing social problems.” 7 The issue rather is whether solution of those “pressing social problems” was confided to the judiciary.8

Effectuation of the draftsman’s intention is a long-standing rule of interpretation in the construction of all documents—wills, contracts, statutes—and although today such rules are downgraded as “mechanical” aids, they played a vastly more important role for the Founders. Hamilton, it will be recalled, averred: “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” 9 That Hamilton was constrained thus to reassure the ratifiers testifies to prevailing distrust of unbounded judicial interpretive discretion.10 Some fifty years later, Justice Joseph Story, perhaps the greatest scholar who sat on the Supreme Court, emphasized that such rules provided a “fixed standard” for interpretation,11 without which a “fixed Constitution” would be forever unfixed. The Constitution, in short, was written against a background of interpretive presuppositions that assured the Framers their design would be effectuated.

The rules governing “intention” reach far back in legal history; but for our purposes it suffices that English case-law emphasis on effectuation of the “original intention” was summarized in Bacon’s Abridgment (1736)12 and restated in 1756 by Thomas Rutherforth,13 in a “work well known to the colonists.” 14 Rutherforth assimilated the interpretation of statutes to that of contracts and wills and stated that “The end, which interpretation aims at, is to find out what was the intention of the writer, to clear up the meaning of his words.” 15 And he concluded that “the intention of the legislator is the natural measure of the extent of the law.” 16 The influence of these presuppositions on the Founders is no matter of conjecture. On the heels of the Convention, Justice James Wilson, a leading participant, said: “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” 17 Not long thereafter Jefferson pledged as President to administer the Constitution “according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanations of those who advocated . . . it.” 18 That view was echoed by Chief Justice Marshall, himself a participant in the Virginia Ratification Convention: if a word “was so understood . . . when the Constitution was framed . . . [t]he convention must have used it in that sense.” 19 It was reaffirmed by Justice Holmes: an amendment should be read in a “sense most obvious to the common understanding at the time of its adoption.” 20

Enchanted by judicial fulfillment of libertarian hopes, academe, on one ground or another, has endeavored to discredit “original intention,” to rid us of the “dead hand of the past.” 21 But neither has openly been repudiated by the Court. To the contrary, it has been the Court’s practice over the years to consult the intention of the Framers; the Court’s concern, as Louis Pollak remarked, “for the original intent of the framers of the Constitution remains high.” 22 An arresting example is furnished by the exchange between two “activists,” Justices Black and Goldberg, aligned on opposing sides. To Black’s condemnation of judicial “amendment,” Goldberg responded: “Of course our constitutional duty is to construe, not to rewrite or amend the Constitution! . . . Our sworn duty to construe the Constitution requires, however, that we read it to effectuate the intent and the purposes of the Framers.” 23 So, too, both Justices Black and Frankfurter, on opposite sides of the fence in Adamson v. California, invoked the original intention.24

To impeach the “original intention,” academicians sought to discredit resort to “legislative history” in general on the ground that the records are incomplete,25 that they are inconclusive because strewn with conflicting claims. Such charges are irrelevant to the records of the 39th Congress, a “complete” verbatim record of the entire debates. Insofar as there were conflicting opinions, the views of racist Democrats who sought to kill both the Civil Rights Bill and the Fourteenth Amendment carry no weight; those of a handful of radical dissentients for whom neither Bill nor Amendment went far enough are overborne by the will of the great Republican majority—for example, to leave control of suffrage to the States. That will is implicitly stated in the §2 curtailment of representation when a State denies or abridges suffrage—recognition of power to do so; it is unequivocally confirmed by the Report of the Joint Committee on Reconstruction, by those in charge of the Bill and the Amendment, and by many others in the course of the debates. On a centuries-old canon of interpretation, that intention is as good written into the text.26 When a legislature “has intimated its will, however indirectly,” Justice Holmes held, “that will should be recognized and obeyed . . . it is not an adequate discharge of duty for courts to say: ‘We see what you are driving at, but you have not said it.’ ” 27 The intention of the sovereign people, whether expressed in convention or through the amendment process, demands even greater obedience.

Another attempt to dissolve traditional bonds was by way of semantics. To demonstrate that “only present current meanings are pertinent,” 28 Charles Curtis delivered himself of a “profound discourse on the meaning of meaning,” 29 liberally sprinkled with Aristotelian essences and linguistics.30 But four years earlier, in an article giving some sage counsel to draftsmen, Curtis advised, “What the author of a legal document is trying to control is the future . . . to control this person’s conduct in the future” 31 —more graphically expressed in Jefferson’s “bind him down . . . by the chains of the Constitution.” If that be the purpose of drafting, as seems indisputable, it is aborted by a theory that leaves another person free to read his own meaning into the draftsman’s words. Commenting on Curtis’ “meaning of meaning,” Willard Hurst matter-of-factly pierced to the heart of the matter: “When you are talking about constitutional law, you are talking about the balance of power in the community and the question of how you find meaning boils down concretely here to who finds the meaning.” 32 May the Justices supplant the value-choices of the Framers with their own? An officeholder like Santarelli appreciated such realistic implications.33

If the Court may substitute its own meaning for that of the Framers it may, as Story cautioned, rewrite the Constitution without limit. But, Leonard Levy maintains: “Whatever the framers of the Fourteenth intended, there is no reason to believe that they possessed the best insights or ultimate wisdom as to the meaning of their words for subsequent generations . . . Words do not have fixed meanings. As Justice Holmes once remarked, a word is ‘the skin of living thought and may vary greatly in color and content according to the circumstances and time in which it is used.’ ” 34 Of course, were Holmes drafting he would use words in their present meaning, but that is a far cry from the view that he would feel free to substitute his own meaning in a subsisting document for that of bygone draftsmen. As we have seen, he felt bound to give effect to the intention of the legislators, and it will hereafter appear that he held that words must be given the meaning they had at the time they were set down.35 There is, moreover, a serious flaw in the Levy analysis, which appears more plainly in John Wofford’s statement that if “the meaning of a word is its use, and if its use can never be found apart from its context, then we need only add that an inseparable constituent of context is the time at which the use occurs to show that a past meaning can not bind the present.” 36 Now one who reads what another has written or seeks to interpret it does not in common usage really “use” the word. It is the writer who “used” it, and the traditional function of interpretation, as Rutherforth stated above 200 years ago, is to ascertain “what was the intention of the writer?” 37 On the Levy-Wofford analysis we are free to read Hamlet’s statement that he “can tell a hawk from a handsaw,” then meaning a heron, as if he referred to our pointed-tooth cutting tool because the meaning of “handsaw” has changed, reducing Shakespeare to nonsense.38 Even Humpty-Dumpty did not carry it so far as to insist that when Alice “used” a word he could dictate what she meant. With Willard Hurst, I would underscore that “if the idea of a document of superior authority” —the “fixed Constitution” to which the Founders were attached— “is to have meaning, terms which have a precise history filled content to those who draft and adopt the document [such as “due process” ] or to which they attach a clear meaning [such as “equal protection” ] must be held to that precise meaning.” 39 To hold otherwise is to convert the “chains of the Constitution” to ropes of sand.

Like the Constitution, the Fourteenth Amendment was written against the Bacon-Rutherforth background, clearly restated in 1860.40 Even Charles Sumner, archradical of the 39th Congress, was well aware that

A “transcript of their minds” was left by the framers in the debates of the 39th Congress, and they left abundant evidence that, for example, in employing “equal protection of the laws” they had in mind only a ban on discrimination with respect to a limited category of “enumerated” rights. Disregard of that intention starkly poses the issue whether the Court may “interpret” black to mean white, to convert the framers’ intention to leave suffrage to the States into a transfer of such control to the Supreme Court.

[1.]Myres McDougal and Asher Lans, “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale L.J. 181, 212, 214, 291 (1945).

[2.]Leonard Levy, Judgments: Essays in American Constitutional History 17 (1972).

[3.]A. S. Miller, “An Inquiry Into the Relevance of the Intentions of the Founding Fathers, With Special Emphasis Upon the Doctrine of the Separation of Powers,” 27 Ark. L. Rev. 584, 595 (1973). The Constitution was “not intended to” “freeze its original meaning.” Levy, supra note 2. Professor Miller might have cited Edward Corwin, who, in 1925, dismissed “speculative ideas about what the framers of the constitution . . . intended it should mean” because “the main business of constitutional interpretation . . . is to keep the constitution adjusted to the advancing needs of time.” American Constitutional History 108 (Mason and Garvey eds. 1964).

[4.]1 Story, Commentaries on the Constitution of the United States §426 at 325–326 (5th ed. 1905). “It is not the function of the courts or legislative bodies . . . to alter the method [for change] which the Constitution has fixed.” Hawke v. Smith, 253 U.S. 221, 227 (1920). See also supra Chapter 17 at notes 15–22.

[5.]Supra Chapter 1 note 7; see infra note 38.

[6.]See supra Chapter 17 at note 90.

[7.]Miller, supra note 3 at 595–596.

[8.]“ [S]ince the mid-1950’s the Supreme Court also has become the principal agent of change within our political order. Tackling political issues that the ‘political’ branches could not, would not, or dared not touch, the Court assumed the responsibility for political innovation, forcing changes long blocked by a Congress or by state legislatures dominated by minority elements.” Rondel G. Downing, “Judicial Ethics and the Political Role of the Courts,” 35 L. & Contemp. Prob. 94, 102 (1970). See also supra Chapter 16 note 28.

[9.]Supra Chapter 16 at note 34 (emphasis added). This conception was deeply rooted in the common law. Chief Justice Fortescue, Corwin tells us, was guided by maxims which “constituted the very substance of the peculiar science of the judges”; and Coke paid reverence to such “fundamental points of the common law,” among them, borrowed from Coke by “early American judges and lawyers,” are “the numerous rules for the construction of written instruments which were originally adapted from the same sources to the business of constitutional construction.” E. S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” 42 Harv. L. Rev. 149, 365, 370, 371 (1928).

[10.]Jefferson expressed confidence in the judiciary if “kept strictly to their own department.” 5 The Writings of Thomas Jefferson 81 (P. L. Ford ed. 1892–1899).

[11.]1 Story, supra note 4, §400 at 305. The object of such standards is to avoid “the passions and prejudices of the day.” Id.

[12.]Matthew Bacon, A New Abridgment of the Laws of England, “Statute” I (5) (1736). Citations herein are to the 3d ed. 1768. Justice Story stated that “Bacon’s Abridg. title Statute I contains an excellent summary of the rules for construing statutes.” 1 Story §400 at 305 note 2.

[13.]Institutes of Natural Law (1754–1756).

[14.]Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 12 (1975). Some of Rutherforth’s criteria are quoted in 1 Story §402.

[15.]2 Rutherforth, supra note 13 at 307, 309. Story likewise stated, “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties.” 1 Story §400.

[16.]2 Rutherforth, supra note 13 at 364.

[17.]1 The Works of James Wilson 75 (McCloskey ed. 1967).

[18.]4 Elliot 446.

[19.]Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824). See also infra note 39.

[20.]Eisner v. Macomber, 252 U.S. 189, 220 (1920), dissenting opinion.

[21.]Supra Chapter 17 at note 9. McDougal and Lans, supra note 1 at 545: the “dead cannot bind the living.”

[22.]Louis Pollak, “The Supreme Court Under Fire,” 6 J. Pub. L. 428, 441 (1957). “ [A]ll questions of constitutional construction,” Justice Horace Gray stated, are “largely a historical question.” Sparf v. United States, 156 U.S. 51, 169 (1895), dissenting opinion. Bickel brushed aside “the proposition that the original understanding is simply not relevant. For arguments based on that understanding . . . have been relied on by judges well aware that it is a constitution they were expounding.” Alexander M. Bickel, “The Original Understanding and the Segregation Decision,” 69 Harv. L Rev. 1, 3–4 (1955).

[23.]Bell v. Maryland, 378 U.S. 226 (1964). Black: “changes in the Constitution . . . are to be proposed by Congress or conventions and ratified by the States. The Founders gave no such amending power to this Court.” Id. 342, dissenting opinion; Goldberg, id. 288, concurring opinion.

[24.]332 U.S. 46, 63–64, 72–73 (1947). For Frankfurter, see also supra Chapter 14 note 44.

[25.]John Wofford, “The Blinding Light: The Uses of History in Constitutional Interpretation,” 31 U. Chi. L. Rev. 502, 504–506 (1964). The intentions of the Framers “are clothed in mystery.” Miller, supra note 3 at 596. Miller goes further: “even if that history is clear, it is really not relevant.” Id. 598. Compare with Bickel, supra note 22, and with Miller and Howell supra Chapter 1 note 25.

[26.]Bacon’s Abridgment, “Statute” I (5): “A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within the letter.” The principle has often been applied by the Supreme Court. See supra Chapter 1 note 24.

[27.]Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908); quoted in Keifer & Keifer v. R.F.C., 306 U.S. 381, 391 note 4 (1939).

[28.]“The Role of the Constitutional Text” in Supreme Court and Supreme Law 64, 68 (Edmond N. Cahn ed. 1954).

[29.]Paul A. Freund, “Discussion,” in id. 71.

[30.]Curtis, id. 68–70.

[31.]C. P. Curtis, “A Better Theory of Legal Interpretation,” 3 Vand. L. Rev. 407, 423 (1950).

[32.]Willard Hurst, “Discussion,” in Supreme Court and Supreme Law 74 (Edmond N. Cahn ed. 1954).

[33.]Supra Chapter 17 at note 59.

[34.]Levy, supra note 2 at 71 (emphasis added).

[35.]Infra Chapter 21 at notes 38–42.

[36.]Wofford, supra note 25 at 523.

[37.]Supra at note 15 (emphasis added).

[38.]Paul Brest states, “suppose that the Constitution provided that some acts were to be performed ‘bi-weekly.’ At the time of the framing of the Constitution, this meant only ‘once every two weeks’; but modern dictionaries, bowing to pervasive misuse, now report ‘twice a week’ (i.e., semi-weekly) as an acceptable definition. To construe the definition now to mean ‘semi-weekly’ would certainly be a change of meaning (and an improper one at that).” Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials 146 note 38 (1975).

That has been the accepted view: “The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now . . . ‘Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.’ ” South Carolina v. United States, 199 U.S. 437, 448, 449 (1905). See also Hawke v. Smith, 253 U.S. at 227. On the opposite view constitutional limitations are writ on water.

[39.]W. Hurst, “The Process of Constitutional Construction,” in Supreme Court and Supreme Law 55, 57 (Edmond N. Cahn ed. 1954). From the beginning the courts looked to the common law for the meaning of constitutional terms. Chief Justice Marshall declared with respect to the word “treason,” “It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning.” United States v. Burr, 25 F. Cas. (No. 14,693) 55, 159 (C.C. Va. 1807). See also Ex parte Grossman, 267 U.S. 87, 108–109 (1925); United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898). In the Convention, John Dickinson cited Blackstone to show that ex post facto means retroactivity in criminal cases. 2 Farrand 448. See also supra Chapter 11 note 5; infra Chapter 22 notes 6 and 42.

[40.]Vaughan Hawkins, “On the Principles of Legal Interpretation, With Reference Especially to the Interpretation of Wills,” 2 Jur. Socy. Papers 298 (1860): in the interpretation of written language . . . the object is a single one—to ascertain the meaning or intention of the writer—to discover what were the ideas existing in his mind, which he desired and endeavored to convey to us . . . we desire . . . to know what the writer meant by the language he used. Quoted in Curtis, supra note 31 at 407.

[41.]Globe 677.