Front Page Titles (by Subject) 23: Conclusion - Government by Judiciary: The Transformation of the Fourteenth Amendment
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23: Conclusion - Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 
Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).
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It is the thesis of this book that the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power. When Chief Justice Marshall stated that the function of the legislature is to make the law, that of the judiciary to interpret it,1 he echoed Francis Bacon’s admonition two hundred years earlier.2 Much less are judges authorized to revise the Constitution, for as Justice Black, deriding the notion that the Court was meant to keep the Constitution “in tune with the times,” stated, “The Constitution makers knew the need for change and provided for it” by the amendment process of Article V,3 whereby the people reserved unto themselves the right to change the Constitution. Having created a prepotent Congress, being well aware of the greedy expansiveness of power, and knowing that power can be malign as well as benign, the Founders designed the judiciary to keep Congress within its prescribed bounds,4 what James Bradley Thayer and Learned Hand later called “policing” the constitutional boundaries.5Within those boundaries, stated Justice James Iredell, one of the ablest of the Founders, the legislature was to be free of judicial interference.6
Unlike the academicians’ current infatuation with a revisory judiciary,7 the Founders had a “profound fear of judicial independence and discretion.” 8 They were influenced by the English Puritans’ fear that “the laws’ meaning could be twisted by means of judicial construction”; they feared the judges’ “imposition of their personal views.” 9 An important brake on such arrogation was the rule that a document is to be construed in light of the draftsmen’s explanation of what they meant to accomplish,10 the so-called original intention. Jefferson and Madison attached great weight to the rule;11 and Chief Justice Marshall declared that he could cite from the common law “the most complete evidence that the intention is the most sacred rule of interpretation.” 12 Here law and common sense coincide. Who better knows what the writer means than the writer himself?13 John Selden, the preeminent seventeenth-century scholar, stated, “A Man’s writing has but one true sense, which is that which the Author meant when he writ it.” 14 Such were the views of Hobbes and Locke.15 To maintain the contrary is to insist that the reader better knows what the writer meant than the writer himself. To recapitulate, antiactivists (originalists) maintain that judges are not authorized to revise the Constitution16 and that it is to be construed in light of the Founders’ explanations of what they meant to accomplish, no more, no less.
Leading activists Michael Perry and Paul Brest observe that no activist has come up with a satisfactory antioriginalist theory.17 There are as many theories as activist writers. Indeed, Brest pleads with academe “simply to acknowledge that most of our writings are not political theory but advocacy scholarship—amicus briefs ultimately designed to persuade the Court to adopt our various notions of the public good” —result-oriented propaganda.18 In their zeal to ameliorate social injustice, academicians undermine the constitutionalism that undergirds our democratic system.19 Their defense of the Justices’ substitution of their own meaning for that of the Founders displaces the choices made by the people in conventions that ratified the Constitution, and it violates the basic principle of government by consent of the governed. The people, said James Iredell, “have chosen to be governed under such and such principles. They have not chosen to be governed or proposed to submit upon any other.” 20 Academe has forgotten Cardozo’s wise caution: the judges’ “individual sense of justice . . . might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.” 21
When this book appeared in 1977, I anticipated that it would ruffle academic feathers, for it stood athwart the complacent assumption that constitutional limitations22 must yield to beneficial results, a result-oriented jurisprudence that is a euphemism for the notion that the end justifies the means.23 The flood of criticism—often ad hominem—surpassed my expectations.24 Scarcely a month passes without another “refutation,” 25 testimony that the corpse simply will not stay buried. Almost all activist critics turn their back on discrepant evidence; they simply will not examine, for example, my detailed demonstration that “privileges or immunities” had become words of art having a limited compass.26
Consider the “one man-one vote” doctrine. Section 2 of the Fourteenth Amendment provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionally reduced. This constitutes the sole provision for federal intervention. Senator William Fessenden, chairman of the Joint Committee on Reconstruction, explained that the Amendment “leaves the power where it is, but it tells [the States] most distinctly, if you exercise that power wrongfully, such and such consequences will follow.” 27 Senator Jacob Howard, to whom fell the task of explaining the amendment because of Fessenden’s illness, said, “the theory of this whole amendment is, to leave the power of regulating the suffrage with the people or legislatures of the States, and not to assume to regulate it.” 28 It was this “gap” which the Fifteenth Amendment was designed to fill.29 Plainly the “one man-one vote” doctrine derogates from the exclusive control of suffrage that was left to the States.30
Turn to the sacred cow of modern constitutional law, Brown v. Board of Education, whereby the Court outlawed segregated schools.31 Robert Cover of Yale chided me for engaging in a lengthy tour of the historical sources instead of starting from Brown, in short, beginning with the end, the fait accompli,32 for Brown had no popular mandate. Brown, wrote Bruce Ackerman, another advocate of activism, “did not come at [a moment] when a mobilized citizenry was demanding a fundamental change in our fundamental law.” 33 The “real significance” of Brown, he opines, “lies elsewhere, in the Court’s courage in confronting modern Americans with a moral and political agenda that calls upon them to heed the voice of their better selves.” 34 Put baldly, the Court had no popular mandate for its revolutionary decision but assumed the role of an Old Testament prophet, enhanced by the sanctions at its disposal.35
Contrast a few undeniable facts. Congress had “permitted segregated schools in the District of Columbia from 1864 onward”;36 and Senator Charles Sumner vainly fought “to abolish segregated Negro schools in the District of Columbia.” 37 How can it be maintained that Congress, after steadfastly refusing to abolish segregated schools in the District, over which it had plenary control, would cram desegregation down the throats of the States? “Negroes were barred from public schools of the North,” wrote neoabolitionist Howard Jay Graham, and were “still widely regarded as ‘racially inferior’ and ‘incapable of education.’ ” 38 Had the framers proposed to bar segregated schools in the North, such interference with state control of internal affairs would have imperiled enactment and adoption of the Fourteenth Amendment.39 Such a proposal was far from the framers’ minds, as is demonstrated by James Wilson’s (chairman of the House Judiciary Committee) assurance that the parallel Civil Rights Bill—regarded as “identical” with the Fourteenth Amendment, whose purpose was to safeguard the Bill from repeal—did not require that all “children shall attend the same schools.” 40 Prominent academicians, among them leading activists, recognize that segregation was left untouched by the Fourteenth Amendment.41
Compare with such incontrovertible facts the imaginary conversation the leading activist theoretician, Ronald Dworkin, held with a framer of the Fourteenth Amendment about segregation: “I don’t know what the right answer is to the question of what we’ve done . . . Nor do I, as it happens, have any particular preferences myself, either way, about segregated schools. I haven’t thought much about that either.” 42 To change existing practices, particularly in the internal zone left to the States, the federal draftsmen minimally must exhibit a purpose to do so.43 Ignorance of, or indifference to, such practices does not spell a purpose to alter them. Dworkin’s imaginary framer must have lived in an airtight cocoon to be oblivious to an issue that reached to the very wellsprings of the pervasive racism.44 With William James, we should worry about “the presumptuous arrogance of theories that ignore, even disdain, the concreteness of mere fact.” 45 Activist criticism of originalism is generally akin to Dworkin’s reverie: fantasizing opposed to concrete fact. Of earlier criticism Lord (Max) Beloff, an Oxford emeritus and longtime student of American constitutionalism, wrote in a review of my book in the Times of London, “The quite extraordinary contortions that have gone into proving the contrary make sad reading for those impressed by the high quality of American legal-historical scholarship.” 46
I came to my study of the Fourteenth Amendment in the service of no other cause than the integrity of constitutional construction. For that purpose I sought to ascertain what the framers sought to accomplish, being without preconceptions as to what the Amendment ought to mean.47 The Constitution, remarked Paul Brest, “lies at the core” of our “civil religion”;48 until it is changed by amendment, the people are free to govern their own destiny, not to be ruled by “Platonic Guardians” who often are creatures of political accident, virtually irremovable and irreversible. Activist fulminations have not shaken the hope, in the words of Samuel Johnson, that “the most obdurate incredulity may be shamed or silenced by facts.” 49 The facts will speak for themselves long after the present controversialists are gone.
The Fourteenth Amendment provides: “No state shall . . . abridge the privileges or immunities of citizens of the United States.” Robert Bork considers that the “intended meaning” of the clause “remains largely unknown.” 1 I beg to differ. The “intended meaning” of “privileges or immunities” can be explicated by (1) the relation between the Civil Rights Act of 1866 and the Fourteenth Amendment, and (2) by the historical derivation of the terms. We may put to one side Corfield v. Coryell,2 upon which activists beat a tattoo3 and which, I agree with Bork, is “a singularly confused opinion in 1823 by a single Justice [Bushrod Washington] of the Supreme Court,” 4 and look rather to the historical derivation of the terms. For as Justice Story stated, if the Framers used terms that had been defined at common law, that definition was “necessarily included as much as if they stood in the text,” 5 as the framers of the Amendment well knew.6
The words “privileges and immunities” first appear in Article IV of the Articles of Confederation, which specified “all the privileges of trade and commerce.” 7 The words were adopted in Article IV of the Constitution, which, according to Chief Justice White, was intended “to perpetuate [the] limitations ” of the earlier Article IV.8 White repeated Justice Miller’s statement in the Slaughter-House Cases that “There can be but little question that . . . the privileges and immunities intended are the same in each.” 9
Privileges or immunities came into the Fourteenth Amendment by way of the Civil Rights Bill of 1866, which initially referred to “ civil rights or immunities.” 10 In explaining these terms, Lyman Trumbull, chairman of the Senate Judiciary Committee, read from the Maryland (per Samuel Chase, soon to ascend to the Supreme Court) and Massachusetts cases.11 Early on these courts had construed Article IV in terms of trade and commerce.12 Chase declared, as did Massachusetts Chief Justice Parker, that the words were to be given a “limited operation.” 13 Activists ignore those opinions and build entirely on Corfield,14 notwithstanding that Trumbull did not read Corfield broadly, stating that it “enumerates the very rights set forth in the Bill” and explaining that “the great fundamental rights set forth” 15 in the Bill are “the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts,” 16 rights embodied in the Act.
A telling illustration of the “limited” scope of “privileges or immunities” was furnished by John Bingham, an activist mainstay. Despite repeated assurances that the Civil Rights Bill was limited to the specifically enumerated rights, Bingham protested vehemently:
[C]ivil Rights . . . include and embrace every right that pertains to the citizen . . . [it would] strike down . . . every State constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen . . . [it would] reform the whole civil and criminal code of every State government.17
Consequently the phrase “civil rights and immunities” was deleted, explained James Wilson, chairman of the House Judiciary Committee, in order to remove “the difficulty growing out of any other construction beyond the specific rights named in the section . . . [leaving] the bill with the rights specified.” 18 The House approved the deletion of the “oppressive” words. No activist has attempted to explain why Bingham, after strenuously protesting against the oppressive invasion of the States’ domain by “civil rights,” embraced in the lesser “privileges” of the Amendment the very overbroad scope he had rejected in the Bill.
In truth, the framers regarded “privileges or immunities” as words of art, having a circumscribed meaning. After reading to the Senate from the cases, Trumbull remarked, “this being the construction as settled by judicial decisions.” 19 Judge William Lawrence acknowledged in the House “that the courts have by construction limited the words ‘all privileges’ to mean only ‘ some privileges.’ ” 20 Although the Supreme Court noticed the Bingham incident in Georgia v. Rachel and concluded that the Bill reached only a “limited category of rights,” 21 it is ignored by activists.
That is likewise the fate of other striking evidence. On January 20, 1871, Bingham submitted a Report of the House Committee on the Judiciary, from which he did not dissent, reciting that the privileges or immunities clause of the Fourteenth Amendment
does not in the opinion of the committee, refer to privileges and immunities . . . other than those privileges and immunities embraced in the original text of the Constitution, Article IV, Section 2. The Fourteenth Amendment, it is believed, did not add to the privileges and immunities before mentioned.22
The Supreme Court likewise declared that the phrase did not add to the privileges or immunities provided by Article IV.23 What manner of scholarship is it that ignores such weighty evidence? Instead, Erwin Chemerinsky and Bruce Ackerman would attribute to the 1823 Corfield case power to expand the 1866 Bill, whose spokesman, after reading from Corfield, said it enumerated the “very rights” listed in the Bill.24
The Civil Rights Bill and the Fourteenth Amendment, activist William Nelson correctly observed, are “inextricably linked.” 25 The Amendment was designed to embody the Act in order to prevent its subsequent repeal or, in the alternative, to give it constitutional footing. The evidence that the framers deemed the Act and Amendment “identical” is unequivocal and uncontroverted.26 That identity is highly important because, as the Supreme Court stated in 1966, “The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights.” 27 The sponsor of the Act, Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, described its provisions as the “right to acquire property, the right to come and go at pleasure, the right to enforce rights, to make contracts.” 28 He is corroborated by the face of the Act.29 If Act and Amendment are “identical,” it follows that the Amendment likewise protects only a “limited category of rights,” an unpalatable conclusion that activists simply cannot bring themselves to swallow. But, as Alexander Bickel concluded, “It remains true that an explicit provision going further than the Civil Rights Act would not have carried in the 39th Congress.” 30
So, John Hart Ely rejects the “claim [that] the coverage of the two was meant to be identical.” 31 So, too, Paul Dimond dismisses the “claim that the Fourteenth Amendment dealt solely with the rights enumerated in the 1866 Act.” 32 Although Michael Zuckert considers my “unrelenting effort” to identify Act and Amendment of “greatest importance,” he rejects it on the ground that the language of the Act and that of the Amendment are different, and he asks, if the framers “merely sought to get the Civil Rights Act into the Constitution why did they not simply take the first section and use it for the amendment?” 33 By that logic the argument for incorporation of the Bill of Rights—which Zuckert endorses34 —collapses. Indeed, the argument for embodiment of the Civil Rights Act is far stronger, because the framers unmistakably and repeatedly stated that Act and Amendment are “identical.” Unlike incorporation of the Bill of Rights, there was no confusion on this score. To Zuckert’s triumphant query “Why didn’t they say so,” the answer in Justice Holmes’ words is that if “the Legislature has . . . intimated its will, however indirectly, that will should be recognized and obeyed.35
To dispose of activist caviling, herewith some additional evidence. Martin Thayer of Pennsylvania explained that “it is but incorporating in the Constitution . . . the principle of the Civil Rights Bill which has lately become a law” in order that it “shall be forever incorporated in the Constitution.” 36 On the ratification trail in August 1866, Senator Trumbull “clearly and unhesitatingly declared [Section 1 of the Amendment] to be ‘a reiteration of the rights as set forth in the Civil Rights Bill.” 37 In Indiana, Senator Henry Lane “affirmed Trumbull’s statement concerning the first section”;38 and Senator John Sherman of Ohio endorsed those views in a speech on September 29, 1866.39 Senator Luke Poland of Maine spoke to the same effect in November 1866.40 In sum, Joseph James concluded, “Statements of congressmen before their constituents definitely identify the provisions of the first section of the amendment with those of the Civil Rights Bill.” 41
Horace Flack’s canvass of “speeches concerning the popular discussion of the Fourteenth Amendment” led him to conclude that “the general opinion held in the North . . . was that the amendment embodied the Civil Rights Bill.” 42 In 1871, James Garfield emphasized that “he not only heard the whole debate [in the 39th Congress] at the time, but I have lately read over, with scrupulous care, every word of it as recorded in the Globe,” and stated “this section  of the Amendment was considered as equivalent to the first section of the Civil Rights Bill.” 43 Earlier Justice Bradley had stated, “the first section of the bill covers the same ground as the fourteenth amendment.” 44 Subsequently Justice Field, dissenting in the Slaughter-House Cases from emasculation of the “privileges or immunities” clause, stated on behalf of the four dissenters, “In the first section of the Civil Rights Act Congress has given its interpretation to those terms.” 45 Activist far-fetched inferences from generalities are no counter to such hard facts.
The modern rights extracted from the Civil Rights Act of 1866 are at a long remove from those envisioned by its framers. Some additional evidence will make that plain. Radical Senator Henry Wilson of Massachusetts urged the framers to ensure that the freeman “can go where he pleases, work when and for whom he pleases, that he can sue and be sued, that he can lease and buy and sell and own property, real and personal” 46 —measures to strike the shackles of the Black Codes. Senator William Windom of Minnesota said that the Civil Rights Bill afforded the blacks “an equal right, nothing more . . . to make and enforce contracts [etc.] . . . It merely provides safeguards to shield them from wrong and outrage and to protect them in the enjoyment of the right to exist.” 47 The framers responded to what Senator Timothy Howe of Wisconsin termed the South’s denial to blacks of “the plainest and most necessary rights of citizenship. The right to hold land . . . the right to collect wages by processes of law . . . the right to appear in the courts for any wrong done them.” 48 In 1871, Senator Trumbull reminded the Senate that the Act declared that the rights of blacks “should be the same as those conceded to whites in certain respects, which were named in the Act.” 49 And in 1874, the Supreme Court stated that “the Amendment did not add to the privileges and immunities of a citizen,” 50 which had been construed in terms of trade and commerce.51
The current preoccupation with individual rights obscures the Founders’ concern in 1787 with the rights of the community rather than the individual. For them “individual rights, even the basic civil liberties that we consider so crucial, possessed little of their modern theoretical relevance when set against the will of the people.” 52 “In the Convention and later,” wrote Alpheus T. Mason, “states’ rights—not individual rights—was the real worry,” 53 The Founders were concerned with erecting a structure of government that would diffuse and limit delegated power, not with fortifying individual rights.54 “It was conceivable,” wrote Gordon Wood, “to protect the common law liberties of the people against their rulers, but hardly against the people themselves.” 55 As Louis Henkin observed, “the Constitution said remarkably little about rights” because the federal government “was not to be the primary government . . . governance was left principally to the States.” 56
The Colonists claimed “the rights of Englishmen”; what were they? When people in the seventeenth century “talked about rights,” Sir William Holdsworth concluded, “they meant the rights which the existing laws gave them.” 57 By 1765 these had crystallized into Blackstone’s triad: personal security, personal liberty (i.e., freedom to come and go), and property.58 The opening resolve of the First Continental Congress affirmed that the Colonies by “the principles of the British Constitution . . . are entitled to life, liberty and property.” 59 In the Virginia Ratification Convention, Edmund Pendleton declared, “our dearest rights—life, liberty and property—as Virginians are still in the hands of our state legislatures.” 60 Later Justice Story wrote that “the most general rights, which belong to all mankind, may be said to be the right to life, to liberty and to property.” 61 And Chancellor Kent paraphrased Blackstone.62 In 1866, James Wilson, chairman of the House Judiciary Committee, read the Blackstone triad to the 39th Congress and commented, “Thus, sir, we have the English and American doctrine harmonising,” 63 thereby indicating that the rights conferred by the Fourteenth Amendment were confined by the triad, as its due process clause confirmed.
Manifestly the historically limited view of “fundamental rights” cannot sustain the inexhaustible activist claims. Indeed, two leading activist theoreticians admit as much. Paul Brest acknowledges that “Fundamental Rights adjudication is open to criticism that it is not authorized and not guided by the text and original history of the Constitution.” 64 And Michael Perry recognizes that the individual rights which activists champion are judicial constructs of the “modern” Court.65
Substantive due process not being as fruitful as of yore, activists have been turning to the Ninth Amendment as a fresh cornucopia of “rights.” It provides that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” 66 What is enumerated is embodied in the Constitution; what is retained is not. Reservations are not grants of power to deal with what is retained. Put differently, what is retained is excluded from the federal jurisdiction. This is made clear by Madison’s explanation in introducing the Bill of Rights: “the great object in view is to limit and qualify the power of Government by excepting out of the grant of power those cases in which the Government ought not to act.” 67 Given that the federal government “ought not to act” in the “excepted” zone, much more was federal action precluded in the “retained” zone.68 Instead of expanding federal jurisdiction, the Bill of Rights was meant to curtail it. To obviate the implication that the nonmentioned rights “were intended to be assigned into the hands of the general Government,” Madison stated, this danger would be “guarded against” by the draft precursor of the Ninth Amendment.69 Justice Black, who read the Bill of Rights into the Fourteenth Amendment, observed that the Ninth Amendment “was intended to protect against the idea that ‘by enumerating particular exceptions to the grant of power’ to the Federal Government ‘those rights which were not singled out, were intended to be assigned into the hands of the General Government.’ ” 70 The fact that Amendments One through Eight were meant to limit the powers of the federal government militates against a reading of the Ninth that would confer unlimited federal judicial power to create new “rights.” 71
The cheerleader of the cornucopian movement is Randy Barnett.72 Deploring the Supreme Court’s “neglect” of the Ninth Amendment’s expansive possibilities, Barnett proffers a “powerful method of protecting unenumerated rights,” a “presumption of liberty” that would require a State “to show that the legislation [claimed to be] infringing the liberty of its citizens was a necessary exercise of its police power.” 73 But it is for a plaintiff to set forth a cause of action before the State is called upon to prove the negative. To shift the burden of persuasion to the State by Barnett’s “presumption of liberty,” more is required than bare assertion of an unheard-of claim.74 Recent Supreme Court pronouncements are unsympathetic to “novel,” nontraditional “substantive due process” claims,75 which are the more compelling when claimants invoke the unidentified rights “retained by the people.”
My view, echoing that of Justice Harlan, is that the framers excluded suffrage from the Fourteenth Amendment. Consideration of the opposing view will be facilitated by encapsulating a few striking evidential items. Section 2 of the Amendment provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionately reduced. Senator William Fessenden, chairman of the Joint Committee on Reconstruction, explained that this “leaves the power where it is but tells them [the States] most distinctly, if you exercise the power wrongfully, such and such consequences will follow.1 Senator Jacob Howard of Michigan, to whom it fell to explain the Amendment because of Fessenden’s illness, said,
We know very well that the States retain the power . . . of regulating the right of suffrage in the States . . . the theory of this whole amendment is, to leave the power of regulating the suffrage with . . . the States, and not to assume to regulate it by any clause of the Constitution.2
In consequence the committee recommended Section 2 because it “would leave the whole question with the people of each State.” 3 It was this “gap” in the Fourteenth Amendment that led to the adoption of the Fifteenth, which prohibited discrimination with respect to voting on racial grounds.4 The Fifteenth, the Supreme Court said, testifies that suffrage was not conferred by the Fourteenth Amendment.5 Justly did Justice Harlan conclude after his own exhaustive survey of the debates that the evidence was “irrefutable and still unanswered.” 6 Commentators are widely agreed that suffrage was excluded from the reach of the Fourteenth Amendment.7
My reliance on Senator Howard and others indicates to William Nelson that I read “the intention of the authors and ratifiers of the Fourteenth Amendment narrowly,” that is, as “not intended . . . to grant blacks voting rights.” 8 Yet he notes that “the statement most frequently made in debates on the Fourteenth Amendment is that it did not, in and of itself, confer upon blacks . . . the right to vote.” 9 The saving phrase “in and of itself” presumably reflects his fondness for newspaper articles, which prompted him to criticize Alexander Bickel because “Bickel did not spend time examining newspapers systematically,” 10 as if such articles could overcome unequivocal statements in the debates.11
More noteworthy are the comments by Chief Justice Warren and Justice Brennan. “The conception of political equality,” said Warren, “can mean only one thing—one person–one vote.” 12 The framers, however, made unmistakably plain that control of suffrage was to be left to the States notwithstanding their provision for “equal protection.” Thus Warren fashioned a principle to override the unmistakable will of the framers. In the eyes of Justice Brennan, the historical record is “vague and imprecise”;13 hence he reasons that “Recognition of the principle ‘one man, one vote’ as a constitutional one redeems the promise of self-governance by affirming the essential dignity of every citizen to equal participation in the democratic process.” 14 In their exercise of actual “self-governance,” the people adopted the Fifteenth, Sixteenth, and Twenty-sixth Amendments, thereby adjudging that expansion of federal jurisdiction over suffrage required action by the people themselves, never mind the demands of “dignity.” Brennan’s attachment to “human dignity” led him to pronounce that it is offended by capital punishment, though he acknowledges that neither the majority of the people nor that of the Court share his view.15 For him the clear implication of the due process clauses that life may be taken after a fair trial is of no moment. In the face of the ineluctable facts, the conclusions of Warren and Brennan seem to me perverse.
Mention of the Fifteenth Amendment recalls John Hart Ely’s assertion that adoption of that Amendment is “extremely damaging . . . to Berger’s general claim of the dominance of ‘Negrophobia.’ ” 16 Instead of testifying to abatement of racial prejudice, the Fifteenth Amendment was a response to shifting political exigencies. The primary goal, William Gillette concluded, was enfranchisement of Negroes “outside the deep South” in order to obtain the necessary swing votes of Negroes in the North. A secondary objective, he found, “was to protect the southern Negro against future disfranchisement,” 17 for it had become apparent that military occupation must come to an end and continued control must rest on Negro voters, who would help perpetuate Republican ascendancy.18 Thaddeus Stevens, leader of the Radicals, therefore began drafting the Amendment “to save the Republican party from defeat.” 19 Senator Oliver Morton of Indiana, who had opposed Negro suffrage, now embraced it “as a political necessity.” 20 With Negro votes the Republicans could hope to stay in power, the primary aim from the very beginning.21 Contrast Ely’s denial of “the dominance of ‘Negrophobia’ ” with the 1869 statement by Senator Henry Wilson, the Massachusetts Radical: “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.” 22 So much, then, for activist denials that suffrage was excluded from the Fourteenth Amendment.
My demonstration in 1977 that the framers excluded segregated schools from the scope of the Fourteenth Amendment prompted Paul Brest to brand me as a “racist” who “persistently distorted [the historical data] to support his thesis.” 1 Aviam Soifer followed suit, emphasizing “how badly Berger misuses historical materials”;2 and William Wiecek charged me with “rap[ing] rather than respect[ing] Clio.” 3 Unmistakably, however, the North was firmly opposed to unsegregated schools.4 Many commentators, among them leading activists, now agree that the Fourteenth Amendment left segregation untouched.5 For example, Michael Perry noted that “Berger made it painfully clear that the framers of the Fourteenth Amendment did not mean to prohibit segregated public schooling, (or segregation generally) . . . [a] tragic morally indefensible consensus.” 6 Let me add some evidence.
When the District of Columbia schools were under discussion in 1860, Senator James Harlan of Iowa protested,
I know there is an objection to the association of colored children with white children in the same schools. This prejudice exists in my own State. It would be impossible to carry a proposition in Iowa to educate the few colored children that now live in the State in the same school houses with white children. It would be impossible, I think, in any one of the States in the Northwest.7
That prejudice persisted during the Civil War. Congress had “permitted segregated schools in the District of Columbia”;8 and Senator Charles Sumner vainly sought “to abolish segregated schools in the District.” 9 How can it be assumed that the self-same Congress would require the States to adopt the very desegregated schools which it refused to allow in the District?10 Such an assumption is precluded by James Wilson’s assurance that the Civil Rights Bill did not require that all “children should attend the same schools.” 11
The persistent acceptance of segregated schools in the North is further evidenced by the history of the Civil Rights Act of 1875. Although the Act prohibited discrimination with respect to inns, public conveyances, and theaters, Congress, despite Sumner’s unflagging efforts, rejected a ban against segregated schools.12 Senator Aaron Sargent of California urged that the common school proposal would reinforce “what may be perhaps an unreasonable prejudice, but a prejudice nevertheless—a prejudice powerful, permeating every part of the country, and existing more or less in every man’s mind.” 13 In the House, William Phelps of New Jersey stated, “You are trying to legislate against human prejudice, and you cannot do it. No enactment will root out prejudice, no bayonet will prick it. You can only educate away prejudice.” 14
Nor should we congratulate ourselves on greatly improved race relations. Arthur Schlesinger, Jr., considers that racism remains “the still crippling disease of American life.15 A liberal columnist, Tom Wicker, wrote that “the attitudes between the races, the fear and the animosity that exist today, are greater than, let us say, at the time of the Brown case, the famous school desegregation decision in 1954.” 16 Roger Wilkins, a black commentator, noted that “the attitude of whites towards blacks is basic in this country, and that attitude has changed for the worse.” 17 Such citations can be multiplied. They caution academe against reading back its sentiments into the minds of the 1866 framers. As Peter Gay observed, one who approaches “empirical data . . . by way of a preconceived theoretical bias” is “a poor historian.” 18
That observation and the foregoing history counsel us to reevaluate Plessy v. Ferguson.19Plessy has become a symbol of evil, but that is because we impose “upon the past a creature of our own imagining” instead of looking to “contemporaries of the events we are studying.20 “Separate but equal” was rooted in a harsh reality, noted by Alexander Bickel: “It was preposterous to worry about unsegregated schools . . . when hardly a beginning had been made at educating Negroes at all and when obviously special efforts, suitable only for the Negroes, would have to be made.” 21Plessy merely reiterated what an array of courts had been holding for fifty years.
Most post–Civil War decisions cited Roberts v. City of Boston,22 decided in 1849 by the Massachusetts Court per Chief Justice Lemuel Shaw. The school committee had ruled that the common good would be best promoted by maintaining separate primary schools for colored and for white children; the court held that the separation rule was “founded on just grounds of reason and experience.” 23 In 1850 the Ohio Supreme Court declared, “As a matter of policy it is unquestionably better that white and colored youth should be placed in separate schools.24 When the Fourteenth Amendment was invoked in 1871, the Ohio court declared that “Equality of rights does not involve the necessity of educating white and colored persons in the same school.” 25 The Nevada court held in 1872 that separate schools do not offend the Fourteenth Amendment,26 as did the California court in 1874.27 In 1874 the Indiana court held that the Constitution does not empower Congress “to exercise a general or special supervision over the states on the subject of education.” 28
These earlier cases were cited by Judge William Woods, soon to be elevated to the Supreme Court, in an 1887 Federal circuit court case which held that separate schools for blacks did not constitute a denial of “equal protection.” 29 Passing on a New York statute of 1864, the New York court noted in 1883 that separate schools obtain generally in the states of the Union, and do not offend equal protection.30 Thus Plessy was faithful to the framers’ design and rested on a long train of cases. We need to recall Huxley’s admonition that scientists “respect nothing but evidence” and believe that “their highest duty lies in submitting to it, however it may jar against their inclinations.” 31 Are we to demand less of judges?
We should not leave the issue of segregation without taking note of Robert Bork’s view that the “result in Brown is . . . compelled by the original understanding of the fourteenth amendment’s equal protection clause.” 32 That is a remarkable conclusion. He himself recounts that “no one then imagined that the equal protection clause might affect school segregation.” 33 Further, he observes that an “inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in every aspect of life.” 34 And he acknowledges “That the ratifiers probably assumed that segregation was consistent with equality, but they were not addressing segregation.” 35 “The text itself,” he argues, “demonstrates that equality under law was the primary goal, for it alone was written into the text.” 36 Thus his conclusion that “equal protection” overturned an established State institution—segregation—in the North as well as the South rests entirely on the fact that “equal protection” alone “was written into the text.” 37 There was no need, however, to write segregation into the text because confessedly “no one then imagined that the equal protection clause might affect school segregation.” Why provide against the unimagined?
To overturn the established State control of segregation, the silence of the framers is not enough; minimally there must be an express intent to do so. Pierson v. Ray makes the point.38 It arose under §1983, which provided that “every person who deprives another of his civil rights” shall be liable. At issue was whether a judge was a “person” within the meaning of the Act. To abolish the common law immunity of judges from suits for acts performed in their official capacity, the Court required a specific provision. Before a State’s control over its own residents is curtailed, an equally exacting standard should be demanded.39
There is positive evidence that there was no design to impose segregation on the States. Segregated schools were deeply entrenched in the North. The climate of opinion is reflected by the objection of Senator James Harlan in 1860, when the District of Columbia schools were under discussion, to the association of colored children with white in the same schools.40 Despite Senator Charles Sumner’s unflagging efforts to abolish segregated schools in the District,41 Congress maintained them. It can hardly be assumed that by the word equal Congress intended to require the States to adopt the very desegregated schools that it refused to institute in the District of Columbia. Indeed, James Wilson, chairman of the House Judiciary Committee, assured the House that the Civil Rights Bill did not require “that in all things . . . all citizens . . . shall be equal,” instancing that it did not require that “their children shall attend the same schools.” 42
Nor was “equal protection” conceived in all-encompassing terms. Ely considers the words “inscrutable.” 43 Bork himself remarks that to view the words “equal protection” as “general” is “to leave the judges without guidance.” 44 That is not his aim; he considers the “general” provision to be limited in terms of the primary purpose of the ratifiers—equality.45 This is circular reasoning—equal is equal. History discloses a more limited purpose. David Donald, a Reconstruction historian, wrote, “the suggestion that Negroes should be treated as equals to white men woke some of the deepest and ugliest fears in the American mind.” 46 George Julian, the Indiana Radical, reflecting widespread opinion, said, “the trouble is we hate the Negro.” 47 Although Senator Sumner maintained that suffrage was “the only sufficient guarantee,” 48 it was excluded from the Amendment; and the framers repeatedly rejected proposals to ban all discrimination.49
The fact is that the framers restricted “equality” to a few specified State-created rights. Let me begin with the Civil Rights Bill of 1866, the history of which is highly germane because the framers, without dissent, regarded the Fourteenth Amendment as “identical” with the Bill.50 It was designed to protect the Bill from repeal by embodying it in the Amendment. Justice Bradley, a contemporary, declared that “the first section of the Bill covers the same ground as the Fourteenth Amendment.” 51 Senator William Stewart explained that the Bill was designed “simply to remove the disabilities” imposed by the Black Codes, “tending to reduce the negro to a system of peonage . . . It strikes at that, nothing else.” 52 To enable the freedmen to exist, the Bill banned discrimination with respect to the right to own property, to contract, and to have access to the courts,53 rights that the Supreme Court, after canvassing the legislative history, described in 1966 as “a limited category of rights.” 54 Samuel Shellabarger explained that the Bill secures “ equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” 55 Leonard Myers stated that the Amendment was needed “to provide equal protection to life, liberty and property, to sue and be sued, to inherit, to make contracts.” 56 Thus was “equal protection” wedded to the “limited category of rights” enumerated in the Civil Rights Bill.
Because Bork overlooked the framers’ limited conception of “equality,” he concluded that “equality and segregation were mutually inconsistent,” leaving the courts free to choose between them.57 The framers, however, as Bork notes, “assumed that equality and state-compelled separation of the races were consistent,” 58 a perfectly rational assumption given their limited conception of “equal protection.”
Judge Posner and Lino Graglia agree that Bork’s version of originalism is quite flexible, and Graglia notes that Bork defines originalism “in a way that leaves judges with overly broad discretion.” 59 For my part, the framers’ incontrovertible exclusion of suffrage from the Fourteenth Amendment, for example, leaves no room for judicial “flexibility.” So too, Bork finds “majestic generalities” in the Constitution, which Graglia justifiably describes as “the first step toward an expansive view of judicial power.” 60 Neither “due process” nor “privileges or immunities” were “majestic generalities”; each had an historically limited content. And equal protection, the legislative history discloses, was also meant to have limited scope.
For William Nelson, “the puzzle of incorporation of the Bill of Rights” has “plagued Fourteenth Amendment historiography for a century.” 1 But arguments for “incorporation” are a Johnny-come-lately. For 135 years, Justices Harlan and Stewart reminded the Court, every member had agreed that the Founders exempted the States from the Bill of Rights.2 It was Justice Black who, in a dissent, relied on some remarks of John Bingham and Senator Jacob Howard in the 1866 Congress to urge that the Bill of Rights was “incorporated” into the Fourteenth Amendment.3 For a truly wild flight of fancy, however, Akhil Amar of Yale takes the prize: “both the text of Section One [of the Fourteenth Amendment] and the public gloss Congress placed upon the text made clear that what Congress was proposing was nothing less than a transformation of the original Bill of Rights.” 4 Just what in the “text” —due process, privileges or immunities, equal protection— “made clear” that Congress was importing,5 let alone “transforming,” the Bill of Rights, deponent sayeth not. As the Supreme Court stated in 1874 with respect to Negro suffrage, “So important a change . . . if intended, would have been expressly declared.” 6 Unlike “incorporation,” which has at least the flimsy basis of Bingham’s and Howard’s remarks, there is no intimation that the Fourteenth Amendment would “transform” the Bill of Rights. Then there is the fact that those remarks caused hardly a ripple. Horace Flack found no published statement that “the first eight amendments were made applicable to the States.” 7 Howard’s remark, Charles Fairman recounts, “seems at the time to have sunk without leaving a trace in public discussion.” 8 This obliviousness is remarkable, for incorporation of the Bill of Rights would drastically reduce the States’ self-rule—an unlikely surrender of States’ Rights.
The current activist icon, Michael Kent Curtis, who set out to supply an historical footing for “incorporation,” admitted that his “thesis is intensely controversial,” 9 and stated that his goal was to find the “probable Republican understanding of a question to which they had paid little direct attention.” 10 He reasoned that the key to construction of the 1866 debates is furnished by “certain unorthodox constitutional ideas held by a number of Republicans” 11 —never mind that the greatly preponderant Republican view was to the contrary.12 Amar noted that “many informed men were simply not thinking carefully about the words of Section One at all.” 13 Are we to ground a massive invasion of rights reserved to the States on a fit of absentmindedness? Not if we are to be guided by the Supreme Court.14 In the Slaughter-House Cases Justice Samuel Miller, an informed contemporary of the Fourteenth Amendment, rejected a construction of the Amendment that would subject the States “to the control of Congress, in the exercise of powers heretofore universally conceded to them,” in the absence of “language which expresses such a purpose too clearly to admit of doubt.” 15 The Federal expansion that activists urge today without a qualm led Justice Brandeis to say, “in every extension of governmental functions lurks a new danger to civil liberty.” 16
For the moment let me postpone the evidence which led Charles Fairman, and after my own minute scrutiny, myself, to reject the confused and contradictory statements of Bingham, and the remarks of Howard.17 Our view of Bingham is shared by Alexander Bickel, Leonard Levy, Wallace Mendelson,18 and even by William Nelson.19 Michael Zuckert, who regards Curtis favorably, notes that “there was much disagreement among the former abolitionists”;20 there was agreement only about the due process clause and the First and Fourth Amendments.21 The “rights in the other amendments,” wrote Jacobus tenBroek, a neoabolitionist, “received only casual, incidental, and infrequent reference.” 22 Alfred Kelly, a dedicated activist, said that Bingham “made it clear that by ‘bill of rights’ Bingham meant both the guarantees of the comity clause and the guarantees of due process in the Fifth amendment.” 23 Leonard Levy concluded that “there is no reason to believe that Bingham and Howard expressed the view of the majority of Congress.” 24 Probative legislative history cannot be distilled from such conflicting testimony, characterized by Zuckert as “ambiguity and vacillation.” 25
It bears emphasis that the claim of incorporation “constitutes an invasion of rights reserved to the States by the Tenth Amendment, an invasion of such magnitude as to demand proof that such was the framers’ intention.” 26 “Incorporation” has not won the Court’s assent. Rebuffing Black’s theorizing in Adamson v. California, the Court approved the Slaughter-House Cases saying, “It accords with the constitutional doctrine of federalism by leaving to the States the responsibility of dealing with the privileges and immunities of their citizens except those inherent in national citizenship,” 27 a meager exception indeed. In 1959 Justice Frankfurter declared on behalf of the Court:
We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first ten amendments as such. The relevant historical materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States, did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.28
The extensive researches of Fairman,29 which I confirmed, corroborate Frankfurter; our view has won assent even from activists. Michael Perry concluded that Berger’s “finding that the fourteenth amendment was not intended to make the Bill of Rights . . . applicable to the States . . . is amply documented and widely accepted.” 30 Among those who agree are Dean Alfange, Jr., Alexander Bickel, John Hart Ely, Judge Henry Friendly, Lino Graglia, Thomas Grey, Erwin Griswold, Louis Henkin, Forrest McDonald, Richard A. Posner, and Mark Tushnet.31
Let me set forth some confirmatory considerations. In seeking to read corporations out of the Fourteenth Amendment, Justice Black observed that “the people were not told that they [were ratifying] an amendment granting new and revolutionary rights to corporations.” 32 No more were the Northern States told that by the Amendment they were massively curtailing their own rights of self-government. Incorporation was not discussed in the Joint Committee on Reconstruction that drafted the Amendment; it was not debated on the floors of Congress, an extraordinary omission given the vast incursion on State sovereignty by the Bill of Rights. Indeed the North was given to understand that it was unaffected by the companion Civil Rights Bill,33 the Bill that was considered on all sides to be “identical” with Section One of the Amendment.34 Plainly the provisions for due process, privileges or immunities, and equal protection did not disclose that the Bill of Rights was incorporated therein. As Justice Frankfurter remarked of the due process clause, it would be “a strange way of saying” that “every State must thereafter initiate prosecutions through indictments by grand jury, must have a trial by a jury of twelve in criminal cases,” 35 for which the Fifth and Sixth Amendments made express provision. Even stranger is the notion that by those terms the North was surrendering its control over its own internal affairs.
The governing law in 1866 was represented by Barron v. Baltimore (1833),36 which had held that the Bill of Rights did not apply to the States. There Chief Justice Marshall demanded “plain and intelligible language” to demonstrate an intention to curtail the States’ control of their internal affairs.37 Striking reaffirmation of such requirements was furnished in Pierson v. Ray (1967),38 wherein it was held that a statute making “liable ‘every person’ who under color of law deprived another of his civil rights” did not abolish the common law immunity of judges for acts performed in their official capacity. Congress, the Court stated, “would have specifically so provided had it wished to abolish the doctrine,” 39 this notwithstanding that a judge undeniably is a “person.” The “inviolable residuary” sovereignty retained by the States ranks higher than the common law immunity of a judge. Even more does it demand clear expression of a purpose to take over control from the States of their own internal affairs.
The activist “historian” Michael Curtis observed that the framers made “explicit provision” for three distinct changes in existing law. They overruled Dred Scott and made a native born black a citizen; they provided for State due process; and they provided that no State could abridge the “privileges or immunities” of a United States citizen.40 Curtis himself was moved to ask “why ‘the Bill of Rights’ was not explicitly written into the Fourteenth Amendment, as due process and citizenship were.” 41 In the weird and wonderful way that passes for legal reasoning in activist circles, he explained: “the reason, of course, is that the rights in the Bill of Rights make up the most important . . . of the rights of a citizen.” 42 By this logic, the greater the invasion of the “residuary” sovereignty retained by the States and confirmed by the Tenth Amendment, the less need for disclosure. Put differently, omission of explicit “incorporation” of the Bill of Rights testifies to an intention to comprehend all of its provisions. Why, then, did the framers explicitly include the due process of the Fifth Amendment? Under the expressio unius rule all other provisions of the Bill were excluded.43 And how are we to reconcile with “incorporation” of the Bill of Rights the framers’ repeated rejections of proposals to bar all discrimination?44 Curtis himself says of an early draft of the Amendment “which prohibited discrimination in civil rights” that “Its general language failed to take account of and overrule the doctrine of Barron v. Baltimore that the Bill of Rights did not limit the States.” 45 Total nonmention of “incorporation” weighs more heavily than the ineffectiveness of “general language.”
Let me briefly note that the “privileges or immunities” clause was borrowed from Article IV, which had been construed to allow a visitor from one State to engage in trade or commerce in another.46 A Report of the House Committee on the Judiciary submitted in 1871 by John Bingham recited that the Fourteenth Amendment “ did not add to the privileges or immunities” of Article IV.47 The report also quoted Daniel Webster’s emphasis that Article IV put it beyond the power of any State to hinder entry “for the purposes of trade, commerce, buying and selling.” 48 And in a decision contemporary with the Amendment, the Court said in Minor v. Happersett49 that “The Amendment did not add to the privileges or immunities of a citizen.”
A word about Justice Cardozo’s statement in Palko v. Connecticut50 that there are principles—among them free speech— “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Unhappily, Madison’s proposal that the First Amendment’s “free speech” be extended to the States was rejected.51 That which the Framers rejected cannot be regarded as part of our tradition. Finally, like Marshall before him, Justice Samuel Miller, a sagacious observer of the political scene, rebuffed in the Slaughter-House Cases52 a construction of the Fourteenth Amendment that would subject the States “to the control of Congress in the exercise of powers heretofore universally conceded to them” in the absence of “language which expressed such a purpose too clearly to admit of doubt.” 53 Special force attaches to this statement with respect to “incorporation” of the Bill of Rights, for, apart from the remarks of Bingham and Howard, it is without footing in the debates and the text of the Amendment.
It is time to focus on Bingham and Howard. Justice Black declared that “Bingham may, without extravagance, be called the Madison” of the Fourteenth Amendment.54 What a comparison! Madison, the informed, precise, painstakingly analytical thinker was worlds removed from Bingham, the careless, inaccurate, stump speaker. This view of Bingham is shared by others.55 What were his fellows to make of his confused, contradictory utterances? Let me cite chapter and verse.
Bingham’s draft of the Fourteenth Amendment provided for “equal protection,” and he categorically stated that it “stands in the very words of the Constitution . . . Every word . . . stands in the very words of the Constitution.” 56 But the words “equal protection” were not in the Constitution until the Fourteenth Amendment put them there. Although he noted that under Barron v. Baltimore the Bill of Rights did not apply to the States,57 he nevertheless considered that the Bill bound State officials to enforce it against the States by virtue of their oath to support the Constitution.58 Their oath did not bind them to enforce an inapplicable provision. He located “privileges and immunities” in the Bill of Rights,59 whereas they appear in Article IV of the Constitution, not in the Bill of Rights. He affirmed that the care of life, liberty, and property of a citizen “is in the States, and not in the Federal Government. I have sought to make no change in that respect,” 60 —and then casually stated that the first eight amendments were part of the “privileges or immunities” contained in the Fourteenth Amendment, oblivious to the fact that this entailed a tremendous incursion on the States’ right to care for their own citizens. He asserted that “contrary to the express letter of your Constitution, ‘cruel and unusual punishments’ have been inflicted under State laws,” 61 unaware that the Eighth Amendment did not apply to the States. What sense did it make to inveigh against “a reform of the whole civil and criminal Code of every State” 62 and simultaneously maintain that the criminal provisions of the Bill of Rights must be enforced against the States?
Other confused and contradictory utterances could be cited, but I shall close with Bingham’s crown jewel. After noting that the first eight amendments did “not bind the States,” he declared,
They are nevertheless to be enforced and observed in the States by the grand utterance of that immortal man [Daniel Webster] who, while he lived, stood alone in his intellectual power among the living men of his country, and now that he is dead, sleeps alone in his honored tomb by the sounding sea.63
There is no need to dwell on the contrariety of opinion among the framers respecting which of the amendments should be embodied in the Fourteenth Amendment.64 Let it suffice that Thaddeus Stevens, a leader of the Republicans, said of Bingham, “In all this contest about reconstruction, I do not propose to listen to his counsel, recognize his authority, or believe a word he says.” 65 No critic of Bingham has been as excoriating. One large question remains; repeatedly I have called upon activists to reconcile Bingham’s vehement condemnation of “ civil rights and immunities” —the original words of the Civil Rights Bill—because the words would reform “the whole criminal and civil Code of every State” 66 with his incorporation of the Bill of Rights, which entailed a massive takeover of State criminal administration.
To comment on Senator Howard in similar detail would be intolerably boring. Because of Senator Fessenden’s sudden illness, he was called upon to present the Amendment to the Senate. According to Benjamin Kendrick, the editor of the journal of the Joint Committee on Reconstruction, Howard was “one of the most reckless radicals,” who had consistently been “in the vanguard of the extreme Negrophiles,” 67 wherein he was far removed from the pervasive racism of the North. How little his loose utterances are to be trusted is disclosed by his statement that the Amendment “abolishes all class legislation,” 68 despite the denial of suffrage to the blacks, and the framers’ repeated rejection of proposals to prohibit all manner of discrimination,69 in which Bingham himself joined.70
After Howard spoke, a number of speakers went the other way. Senator Luke Poland said that the Amendment “secures nothing beyond what was intended by the original provision [Article IV] of the Constitution.” 71 Senator Timothy Howe spoke of the Amendment in terms of the limited provisions of the Civil Rights Act.72 In the House, William Windom summarized the meaning of the Amendment as “your life shall be spared, your liberty shall be unabridged, your property shall be protected,” 73 remarks that are incompatible with incorporation of the Bill of Rights. And George Latham stated that the Civil Rights Act “covers exactly the same ground as the Amendment.” 74 Leonard Levy concluded, “there is no reason to believe that Bingham and Howard expressed the view of the majority of Congress.” 75
In 1949 Charles Fairman, in what even an activist regards as a “classic” study,76 thoroughly deflated Bingham and Howard. My independent study of the debates in the 39th Congress confirmed Fairman. At length an activist champion rose to the defense of Bingham and Howard in the person of Michael Curtis, a youthful practitioner in Greensboro, North Carolina, who has made a career of assailing Fairman and myself.77 That activists should prefer Curtis’s evaluation of the evidence to that of Fairman78 shows the low estate of activist scholarship. For there is a hierarchy of authority; Albert J. Nock adverted to the “great peril” posed by “the inability to appraise and grade one’s authorities, the tendency to accept whatever appears on the printed page.” 79 Let it suffice that Forrest McDonald stated that I “devastated” Curtis, but engaged in “overkill, roughly comparable to shooting rabbits with a cannon.” 80
In its transformation of the Fourteenth Amendment, the Court has soared beyond the confines of the Bill of Rights to fashion a congeries of individual rights undreamed of by the Founders. Sir William Holdsworth “continually insisted . . . that when people in the seventeenth century [to which the Founders looked] talked about fundamental rights or laws they meant the rights which the existing law gave them.” 81 When Samuel Adams claimed “the primary, absolute, natural rights of Englishmen,” he listed the Blackstonian trio, “Personal Security, Personal Liberty and Private Property,” 82 liberty being defined by Blackstone as unrestrained freedom to come and go.83 An activist, Alfred Kelly, concluded that
The “rights of Englishmen” were not vacuous; instead they were quite well defined and specific. The notion of pulling new natural rights from the air to allow for indefinite expansion can hardly be considered to be within the original spirit of the [Fourteenth] Amendment.84
It is still less within the spirit of the Founders. When the Bill of Rights was added, it largely responded to British excesses before and during the Revolutionary War—free speech, quartering of soldiers, unreasonable searches and seizures, the right to bear arms, and sundry procedural provisions to ensure fair trials. How activists can conjure out of these facts provision for illimitable individual rights passes understanding.85
Leading activists agree that the modern individual “rights” created by the Court are without foundation in the Constitution. Paul Brest acknowledged that “Fundamental rights adjudication is open to the criticism that it is not authorized and not guided by the text and original history of the Constitution.” 86 The individual rights Michael Perry champions, he admits, are constructs of the modern Court.87 Robert McCloskey, long a student of the Supreme Court, concluded that “during the past 30 years, the Court has built a whole body of constitutional jurisprudence in this field broadly called civil liberties almost out of whole cloth.” 88 Activists, Henry Monaghan observed, “outdo one another in urging the imposition of constitutional constraints on the basis of ‘rights’ whose origins cannot be traced to either the constitutional text or the structure it created.” 89
There are signs on the horizon that a new day is dawning; the talismanic “liberty” is being viewed in more Blackstonian terms. First, the Court recalled that the core of “liberty is freedom from bodily restraint.” 90 And Justice Scalia stressed that “Without that core textual meaning as a limitation, defining the scope of the Due Process Clause ‘had at times been a treacherous field for the Court,’ giving ‘reason for concern lest the only limits to . . . judicial intervention become the predilections of those who happened at the time to be Members of this Court.’ ” 91 Second, when rights have been claimed as “fundamental,” the Court has insisted that they “be an interest traditionally protected by our society.” 92 If the claim is novel, its “mere novelty . . . is reason enough to doubt that ‘substantive due process’ sustains it.” 93 Third, “the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open ended . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” 94 In sum, the Court is putting the brakes on fresh claims of rights unknown to the law.
Finally, not enough attention has been paid to the impact of “incorporation” on the North, which was led to believe that the draftsmen were aiming at the South alone. “Disturbed by the revolutionary changes Sumner hoped to bring about in the South,” his biographer recounted, “Republican Congressmen were horrified when they learned that he proposed to extend them to the North as well.” 95 There were few blacks, no Black Codes, no peonage in the North. Almost invariably references in the debates were to oppression in the South, harassment of whites who came South. Congressman William Kelley complained that “Northerners could go South but once there they could not express their thoughts as freemen.” 96 Article IV, however, conferred on visitors only the privileges enjoyed by residents, and they criticized slavery at their peril. Richard Yates asked in the Senate, “Do you suppose any of you can go South and express your sentiments freely and in safety?” 97 Columbus Delano pointed out that “the first section [of the Amendment] was made necessary by the perilous position of Northern men and loyal Southerners in the South.” 98 Michael Curtis himself observed that “Republican congressmen typically insisted on protection of individual liberty . . . in the South.” 99 A “particularly telling passage,” Michael Zuckert exclaims, is James Wilson’s statement that blacks “must have the same liberty of speech in any part of the South as they have always had in the North.” 100 This statement is indeed “telling”; what it tells us is that the authors of the Fourteenth Amendment believed that the North would not be affected by the Amendment.
There is proof positive that intervention in Northern affairs was not contemplated. Senator Trumbull said, “This bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property. It would have no operation in Massachusetts, New York, Illinois, or most of the States of the Union.” 101 John Bingham, a mainstay of the activist cause, assured the House that “under no possible interpretation can [the Fourteenth Amendment] ever be made to operate in the State of New York while she occupies her present proud position.” 102 Referring to the Southern laws that “reduce the negro to a system of peonage,” Senator William Stewart said that if all the Southern States would repeal such laws, the Civil Rights Bill would “simply be a nullity,” it would have “no operation.” 103 After sifting the ratification materials, Joseph James concluded, “wherever the framers discussed the amendment, it was presented as a necessary limitation to be placed on the South.” 104 No activist has explained why, in light of this limited purpose, the framers decided to take from the North control in large part of its internal affairs.
Activists strangely prefer what abolitionists said between 1830 and 1860 outside the halls of Congress to what the framers said in the course of the 1866 debates. The notion that abolitionist theology heavily influenced the framers of the Fourteenth Amendment was floated by Jacobus tenBroek and Howard Jay Graham in the 1960s.1 Alfred Kelly opined that Graham and tenBroek “have established quite conclusively that the Fourteenth Amendment both in general ideology and legal phrase was a product of radical pre-war anti-slavery theory.” 2 That view is shared by Leonard Levy: “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 constitutional argument.” 3 Recently William Nelson concluded that the Amendment “must be understood as the Republican party’s plan for securing the fruits . . . of the three decades of antislavery agitation preceding” the Civil War.4 It was the Courts, Nelson opines, that transformed “the vague rhetorical principles of the antebellum era . . . into a more precise and consistent body of legal doctrine.” 5 “Vague rhetorical principles” that could mean anything to anybody—for example “equality could mean almost anything” 6 —are no principles at all.
Abolitionist speeches during the 1830–1860 drive to abolish slavery did not reflect postwar sentiment in the North. The fact is, wrote Reconstruction historian David Donald, racism “ran deep in the North,” and the suggestion that blacks “should be treated as equals to whites woke some of the deepest and ugliest fears in the American mind.” 7 Phillip Paludan observed that racism was “as pervasive during Reconstruction as after. Americans clung firmly to a belief in the basic inferiority of the Negro race, a belief supported by the preponderance of nineteenth century scientific evidence.” 8 “What lies beneath the politics of the Reconstruction period so far as it touched the Negro,” Russell Nye stated, “is the prevailing racist policy tacitly accepted by both parties and the general public.” 9 Against the racial barrier the waves of prewar abolitionism broke in vain.
Abolitionism was in fact poor soil in which to root protection for emancipated blacks; it had made too many enemies. During the war, C. Vann Woodward recounts, “the great majority of citizens in the North still abhorred any association with abolitionists.” 10 Senator Edmund Cowan of Pennsylvania ridiculed the notion that the “antipathy that never sleeps, that never dies . . . [was] to be swept away by . . . the reading of half a dozen reports from certain abolitionist societies.” 11 Senator Fessenden, chairman of the Joint Committee on Reconstruction, held “the extreme radicals” in “abhorrence.” 12 The fact is that the war-weary North was far from ready to embark on fresh crusades for the realization of abolitionist goals. William Lloyd Garrison, the indomitable abolitionist who had been dragged through the streets of Boston with a rope around his neck, accurately sensed the national mood when he closed down The Liberator, declaring that antislavery societies “served no useful purpose now that slavery was abolished.” 13
The abolitionist theorists upon whom Graham and tenBroek relied by no means represented the mainstream of abolitionist thinking; they were a “handful of relatively unimportant anti-slavery thinkers.” 14 Robert Cover, himself an activist, observed that Graham and tenBroek discovered in the “vision” of this minority “roots for their own constitutional aspirations.” 15 What Graham discovered, in his own words, was “something still inchoate . . . opportunist”; he recognized that the minority theory of due process was “rankly, frankly heretical.” 16 Thus Joel Tiffany, a leading minority theorist, held that “slavery was unconstitutional.” 17 It takes a great leap of the imagination to assume that such “rankly heretical” theorizing commended itself to the hard-headed lawyers who sat in the 39th Congress, particularly when the minority’s own abolitionist brethren rejected “radical anti-slavery thought.” 18
But an activist “scholar,” Michael Curtis, triumphantly asks, “If abolitionist ideas were an anathema to most Republican Congressmen, why in the previous session of Congress had they abolished slavery in the states—the main goal of the radical political abolitionists?” 19 It escapes him that a Northerner could oppose slavery and yet remain a racist. The matter was cogently summarized by Henry Monaghan:
We forget that many mid-nineteenth century Americans, perhaps a clear majority, opposed slavery and racial equality with equal intensity. They could logically believe that emancipation required that the freedman possess certain rights to personal security and property. Simultaneously they could favor rank discrimination against blacks in political and social matters.20
In truth, a Republican conservative coalition, as Michael Les Benedict has shown, “enacted their program with the sullen acquiescence of some radicals and over the opposition of many.” 21 Benedict’s finding is confirmed by the defeat (125 to 12 in the House, and 34 to 4 in the Senate) of Radical insistence that Tennessee provide for black suffrage.22 Such action by the Congress, not what some abolitionists had said before the Civil War, illuminates the purposes of the framers.
Supplementary Note on Natural Law and the Constitution*
Charles McIlwain observed that natural law appeared “remarkably late” in English law, largely as an attempt to “account for a body of customary law which had long been in existence.” 1 Of its surfacing in the United States, cloaked in the garb of substantive due process, Justice Hugo Black justly stated that it was a notion “by which this Court frees itself from the limits of a written Constitution.” 2 It is difficult to conclude that the States, whose jealousy of a centralized federal regime moved them grudgingly to dole out enumerated powers while reserving to themselves “residuary, inviolable sovereignty,” 3 nailed down by the Tenth Amendment, left room for resort to natural law that would set their efforts at naught. For natural law little differs from a Chinese emperor’s “mandate from heaven,” which was “so vague that emperors could readily identify their own will with the will of Heaven.” 4
This was well understood by Justice James Iredell, who declared in Calder v. Bull that “the Court cannot pronounce [a statute] to be void, merely because it is in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and purest of men have differed upon the subject.” 5 True, Justice Samuel Chase invoked supraconstitutional law,6 but in what may be regarded as a more solidly rooted decision, he rejected a federal common law of crimes, saying, “the Constitution of the Union, is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power that is not expressly granted by that instrument.” 7
A pioneer student of natural law in America, Benjamin Wright, wrote of the Founders, “there were few appeals to the laws of nature . . . with a few exceptions they simply found it unnecessary to their immediate purposes.” 8 Consider Edmund Randolph’s commonsensical observation in the Convention:
[a] display of theory, howsoever proper in the first formation of state governments, (seems) is unfit here; since we are not working on the natural rights of men not yet gathered into society, but upon those rights modified by society, and (supporting) interwoven with what we call (states) the rights of the States.9
Tacitly, commented Louis Henkin, “framers of constitutions and bills of rights distinguished between rights that preexisted society and civil rights enjoyed in society.” 10 John Adams and his compeers did not “use nature . . . as a source for rules of decision.” 11
The Framers were well aware that laws might offend against natural law and yet not require enforcement. In the federal Convention, James Wilson said, “Laws may be unjust . . . may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.” 12 George Mason spoke to the same effect.13 Moreover, the Founders were hostile to the exercise of unlimited power. Justice Story, who was far closer to the Founders than are we, observed that if an English court of equity possessed the “unbounded jurisdiction . . . arising from natural law and justice” ascribed to it, “it would be the most gigantic in its sway, and the most formidable instrument of arbitrary power, that could well be devised.” 14
In what was a cruel test, natural law was rejected in proceedings for enforcement of the Fugitive Slave Act, notwithstanding that the North was aflame with resistance to Southern claimants for return of escaped slaves. When it was argued before the eminent Chief Justice of the Massachusetts court, Lemuel Shaw, that such returns offended natural rights, he declared that “an appeal to natural rights . . . was not pertinent! It was to be decided by the Constitution . . . and by the Law of Congress.” 15 In a federal case, Justice John McLean stated, “It is for the people . . . in making constitutions and the enactment of laws, to consider laws of nature . . . This is a field which judges cannot explore.” 16 Although Chief Justice Marshall had acknowledged in The Antelope that slavery was abhorrent to natural law, he held that long usage had made it legal under the “law of nations.” 17
All this is of no moment to Suzanna Sherry. Unless we are to view the Framers as “dimwitted,” she urges, we must believe that they did not distinguish between “the written judicially enforceable Constitution and the unwritten natural law.” 18 They spoke, she reasons, of the Constitution and “unwritten natural law in the same breath . . . without distinguishing between the two, strongly suggest[ing] that they thought of unwritten rights as analogous” to the “legal rights of the Constitution . . . To attribute to them any other conclusion strains credulity.” 19 Chief Justice Marshall, however, made this very distinction:
the powers of the legislature are defined, and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may at any time, be passed by those intended to be restrained?20
What is resort to natural law but the very attempt to pass the limits “by those intended to be restrained?” Not for nothing did Article VI (2) declare that “This Constitution . . . shall be the supreme law of the land.” In place of “higher law” the Constitution itself was to be the “superior, paramount law.” 21 That which is paramount—supremely controlling22 —cannot be superseded by natural law. “ [L]aw,” Robert Cover observed, “as a sovereign act clearly mandated the subordination of natural law to the constitutions.” 23
Sherry cites Thomas Grey’s attribution to the Framers of a “belief in judicially enforceable natural rights.” 24 Grey’s article deals with pre-1787 “revolutionary thought” 25 and it is studded with preindependence utterances, when “higher law” served to justify colonial resistance to Parliament’s misrule. Once independence was won, however, the Founders’ distrust of judicial hegemony reemerged, as is attested by Hamilton’s assurance in Federalist No. 78 that of the three branches the judiciary is “next to nothing.” Justice James Wilson, who had been a leading architect of the Constitution, explained in 1791 that judges had been derived from a “foreign source . . . [and] were directed to foreign purposes. Need we be surprised that they were objects of aversion and distrust?” He felt constrained to exhort his fellow citizens that it was time to “chastise our prejudices.” 26 Those prejudices militated against a roving commission to judges to transcend a Constitution which set bounds to their powers.
More cautious than Sherry, Grey acknowledges that the effect of a “written Constitution” on the idea that “judicially ascertainable fundamental law could itself have constitutional status remains to be carefully analyzed” and that it “remains to be carefully analyzed” that such judicial review was consistent with “popular sovereignty.” 27 Since judges are creatures of the Constitution, and have only such authority as it confers, it must also be shown that the Constitution—the supreme paramount law—empowers a judge to wander outside its confines. Marshall forestalled the need for further demonstration by his declaration that the written limits may not “be passed . . . by those intended to be restrained.”
Activists forget, or overlook, the framers’ exclusion of the judiciary from policymaking. A proposal for judicial participation in the president’s veto was rejected on the ground, among others, that the Justices had no special competence in the field of policy.1 Benjamin Wright stated that “the same point of view was expressed by almost every man who says anything at all on this subject at the Convention and in the ratification controversy.” The judiciary, he concluded, “would not be concerned with the policy, the reasonableness or arbitrariness, the wisdom of legislation.” 2
These views were reflected by the judiciary. In one of the earliest and strongest decisions to lay claim to the power of judicial review, Kamper v. Hawkins, Judge Henry explained:
The judiciary from the nature of the office . . . could never be designed to determine upon the equity, necessity or usefulness of a law: that would amount to an express interfering with the legislative branch . . . [N]ot being chosen immediately by the people, nor being accountable to them . . . they do not, and ought not, to represent the people in framing or repealing any law.3
This was the contemporaneous view. In Ware v. Hylton, Justice James Iredell, who anticipated Hamilton’s defense of judicial review in Federalist No. 78, declared, “These are considerations of policy, considerations of extreme magnitude, and certainly entirely incompetent to the examination and decision of a Court of Justice.” 4 For long that remained the view of the Supreme Court.5
Despite the Court’s exclusion from policymaking, activists hail it as “ conscience to the country.” 6 For Bruce Ackerman, the “real significance” of Brown v. Board of Education7 lies in “the Court’s courage in confronting modern Americans with a moral and political agenda that calls upon them to heed the voices of their better selves.” 8 This was not a mere “call” but a binding decision, notwithstanding that the citizenry did not demand “a fundamental change in our fundamental law.” 9 Ackerman reminds us of Robespierre: “If Frenchmen would not be free and virtuous voluntarily, then he would force them to be free and cram virtue down their throats.” 10
Activist Mortimer Adler gives the game away; he upbraids Robert Bork because he “find[s] no grounds for doing what must be done in the crucial cases in which the majority legislation is unjust without being unconstitutional.” 11 A philosopher may long for the freedom of a kadi to decide as he will, but as Chief Justice Marshall said, “Whatever might be the answer of a moralist . . . a jurist must search for its legal solution in those principles of action which are sanctioned by usage,” 12 and even more, by the Constitution. To determine what is “unjust” we should first ask what is “just.” Cardozo struggled to define “justice” and concluded that “when all is said and done,” it “remains to some extent . . . the synonym of an aspiration, a mood of exaltation, a yearning for what is fine and high.” 13 This offers scant support for encroachment on the “residuary and inviolable” jurisdiction of the States over personal affairs of their citizens.14 For the Founders the “unjust” was not equivalent to the “unconstitutional.” James Wilson, second only to Madison as an architect of the Constitution, flatly declared that “laws may be unjust,” even “dangerous,” and yet not be “unconstitutional,” a view likewise expressed by George Mason.15
But Suzanna Sherry maintains that we are free to make our own “moral choices.” 16 Of course; but it does not follow that they must be made for us by unelected, unaccountable judges. Nevertheless she urges that they “have some obligation to oversee the community’s moral choices.” 17 Not a shred of evidence remotely suggests that the Founders contemplated that judges would serve as arbiters of morals. Their function, Marshall pointed out, was merely to “construe,” to “interpret” laws,18 not to infuse them with moral content. Having rejected judicial participation in policymaking, the Framers were little likely to embrace judicial supervision of morals. What ground was there for attributing special competence to judges in the field of morals? Jefferson spoke powerfully to the contrary: “I cannot give up my guidance to the magistrate, because he knows no more the way to heaven than I do, and is less concerned to direct me than I am to go right.” 19 Activist John Ely remarked that perhaps judges are not “best equipped to make moral judgments, in particular that they are [not] better suited to the task than legislators.” 20 If morals are to be the guide, it is questionable “whether the Court is as competent as Congress to divine the character of . . . tradition and consensus.” 21 Rapaczynski observes the judges’ “absence of special competence . . . in matters of general morality.” 22 Then too, Perry considers that “Political-moral philosophy, after all, is in a state of serious disarray,” 23 a view shared by Larry Simon.24 But Stephen Macedo protests that preclusion of a judicial moral test will leave unreasonable legislation untouched.25 That is precisely what the Founders intended.26
Activists’ solicitude for judicial “supervision” of morals is but another aspect of their attempts to maintain the revisionary gains of the Warren Court. As Mark Tushnet notes, academe applauds Supreme Court “embodiments of principles of justice, defined as the standard political principles of the moderate left of the Democratic party.” 27 Those principles likewise are mine; but I make no pretense of identifying them with constitutional mandates.
Whether the Court may “enforce principles of liberty and justice” when they are not “found within the four corners” of the Constitution is regarded by Thomas Grey as “perhaps the most fundamental question we can ask about our fundamental law.” 1 Philip Kurland considers “the usurpation by the judiciary of general governmental powers on the pretext that its authority derives from the fourteenth amendment” as “the most immediate constitutional crisis of our present time.” 2 It is not as if the issue is wrapped in mystery. When Chief Justice Marshall stated that “The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law,” 3 he echoed Francis Bacon’s admonition two hundred years earlier that making law is not for judges,4 reiterated by Justice James Wilson in the early days of the Republic and restated down the years.5 The point was pungently made in 1767 by Chief Justice Hutchinson of the Massachusetts Court: “the Judge should never be the Legislator because then the Will of the Judge would be the Law: and this tends to a State of Slavery.” 6
In departing from the demands of the separation of powers,7 the Court, Louis Lusky has observed, engaged “in a dazzling display of seemingly free-hand constitution-making without apparent concern for the intention of the Constitutors.” 8 The result, to borrow from Abram Chayes, an admirer of the Court’s expanded role, has been “a radical transformation of the role and function of the judiciary in American life . . . Its chief function now is as a catalyst of social change with judges acting as planners and even managers of large scale intervention in social and economic life.” 9 In a familiar image, James Iredell, a pioneer advocate of judicial review, compared the constitutional delegations of power to “a great power of attorney, under which no power can be exercised but what is expressly given.” 10 Hamilton, and before him Blackstone, stated that “an agent cannot new model the terms of his commission.” 11 Plainly a power to sell a mule does not authorize sale of the barn.
Ours, as Chief Justice Marshall stated, is a government of limited powers:
That those powers may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those limits may, at any time, be passed by those intended to be restrained?12
From this it follows, as Justice Story declared, the Constitution is “to have a fixed, uniform, permanent construction.” It should be “not dependent upon the passions or parties of particular times, but the same yesterday, today, and forever.” 13 In our own time, Justice Holmes declared that it is not the function of judges to “renovate the law. That is not their province.” 14 And defending McCulloch v. Maryland, Chief Justice Marshall wrote that the exercise of the judicial power “cannot be the assertion of a right to change that instrument.” 15
Activists like to regard the Court as “conscience to the country,” and the guardian of the people16 —until it happens to go counter to a particular activist desire.17 Justice Brennan maintains that death penalties are “fatally offensive to human dignity” —never mind that they are authorized by the Fifth Amendment after a fair trial. Although he acknowledges that his view is not shared by a “majority [70 percent] of [his] fellow countrymen,” he hopes “to embody a community striving for all.” 18 This is to assume that a Justice knows better what is for the people’s good than they themselves. Sidney Hook, a hardheaded philosopher, decries those “who know better what basic needs of men and women should be, who know . . . what they require better than those who have them or should have them.” 19 The theory that government “can identify what people would really want were they enlightened” was rejected by Lord Noel Annan, then Vice-Chancellor of the University of London, for that would justify the state “in ignoring what ordinary people say they desire or detest.” 20
The Founders, it bears repetition, did not share present-day activist enthusiasm for judges. Judges, Justice James Wilson reminded his fellow Americans, had been objects of “aversion and distrust.” 21 It defies common sense to urge that the judiciary, which Hamilton was constrained to assure the Ratifiers was “next to nothing,” 22 was authorized to revise the Constitution. Such an authorization, Michael Perry commented, would “have been a remarkable delegation for politicians to grant to an institution like the Supreme Court, given the electorate’s long-standing commitment to policy making . . . by those accountable, unlike the Court, to the electorate.” 23 That no such delegation was made is attested by the historical evidence that I have set out elsewhere in voluminous detail. Here the barest summary must suffice. (1) The founders believed in a fixed Constitution of unchanging meaning.24 (2) They accorded an inferior place in the federal scheme to the judiciary, deriving from suspicion of innovations by judges theretofore regarded with “aversion and distrust.” 25 (3) They had a “profound distrust” of judicial discretion.26 (4) They were attached to the separation of powers and insisted that courts should not engage in policymaking but act only as interpreters.27 (5) Above all, judges were not to act as revisers of the Constitution, for that function had been reserved to the people themselves by Article V, the provision for amendment of the Constitution.28
In the Convention Elbridge Gerry refused to set up the judges “as the guardians of the Rights of the people,” preferring to rely “on the Representatives of the people as the guardians of their rights and interests.” 29 That belief was later echoed by Justice Brandeis, who referred to the deep-seated conviction of the American people that they “must look to representative assemblies for the protection of their liberties.” 30 Platonic Guardians have enjoyed small favor in our polity. Judge Learned Hand, one of the wisest judges, disclaimed any knowledge of how to choose Platonic Guardians and had no desire to live under their guardianship.31 And wonder of wonders, Justice Brennan declared “Justices are not platonic guardians appointed to wield authority according to their personal moral predilections.” 32 To be sure, this was said during his confirmation hearings; during his incumbency he became a veritable paragon of Platonic Guardians.
Judges are not oracles who, indifferent to the passions of the time, divine the true meaning of the Constitution. What a judge is “really discovering” on his interpretive voyage, correctly observes John Hart Ely, “are his own values.” 33 Judging in terms of personal preferences has long been condemned; Blackstone disapproved of judges whose decisions would be regulated “only by their own opinions.” 34 Marshall declared that “the judicial power is never exercised for the purpose of giving effect to the will of the judge.” 35 “Under the guise of interpreting the Constitution,” said Justice Moody, “we must take care that we do not import into the discussion our personal views of what would be wise, just, and fitting rules . . . and confound them with constitutional limitations.” 36 Recently Judge Richard Posner commented that “a judge ought not to substitute personal values for those that are part of the text, structure and history of the Constitution.” 37 Even activists acknowledge the rule,38 perhaps perceiving that the substitution “of the individual sense of justice . . . would put an end to the rule of law.” 39 Then too, as James Wilson emphasized in the Convention, laws “may be unjust” and yet be “constitutional.” 40
Activists seek to reshape the Constitution on behalf of “human rights” and of greater protection of “minorities.” We have seen that the Founders were more concerned with the rights of the community than with those of the individual,41 that they regarded the rights expressed in Blackstone’s triad as “fundamental,” 42 that this triad, the 39th Congress was told, also represented the American view.43 A leading activist theoretician, Paul Brest, acknowledges that “Many of what we have come to regard as the irreducible minima of rights are actually supra-constitutional; almost none of the others are entailed by the text or original understanding.” 44 Activists would have the courts decide, Michael Perry observes, “what rights, beyond those specified by the framers, individuals should . . . have against government.” 45
Activist efforts to enlarge judicial protection of minorities would jettison a central tenet of our democratic system—majority rule. Of course, if specific provision is made in the Constitution for such protection, it must be given effect. But, as Hamilton stated in Federalist No. 22, “To give a minority a negative upon the majority . . . [is] to subject the sense of the greater number to that of the lesser.” 46 Madison was of the same mind; criticizing a proposal that more than a majority ought to be required for a quorum, he said that it would reverse a “fundamental principle of free government,” because “It would be no longer the majority that would rule; the power would be transferred to the minority.” 47 And Jefferson concurred that the “will of the Majority should always prevail.” 48 Activists would substitute the “tyranny” of the minority for the “bugaboo” of majority “tyranny”;49 they would have the tail wag the dog. Randall Bridwell properly asks, “what makes the tyranny of the minority . . . better than the tyranny of the majority?” 50 Activists’ insistence on enlarged judicial protection illustrates once more their preference for judicial governance, as is exemplified by Robert Cover. He unabashedly thrust aside “the self-evident meaning of the Constitution” because “we” have decided to “entrust” judges with framing an “ideology” whereby to test legislation51 and, it may be added, discard the Framers’ choices.
A fellow activist, Arthur S. Miller, concluded, however, that the Justices have not been prepared “for the task of constitutional interpretation.” 52 With the exception of a few, such as Felix Frankfurter, who was a long-time student of the Court’s way with the Constitution, most appointees have been plucked from busy law practices which afforded little occasion for plumbing the depths of constitutional law. Many appointments—some astonishing—have been the fruit of political expediency. When the Court splits 5 to 4 on important issues, a swing Justice is clothed with awesome power to control our destiny.53 It needs to be borne in mind that the Constitution contains no specific provision for judicial review. What legitimacy it has largely rests on the legislative history, which contemplates no more than policing constitutional boundaries,54 limits which Chief Justice Marshall declared were not to be “transcended.” 55 Incensed by my challenge to cherished Warren dogma,56 activists launched a campaign to refute and discredit “Government by Judiciary.” Let us examine how they have dealt with the questions it raises.
A dispassionate Canadian observer commented that while “American scholars struggle to offer some theoretically valid account of the jurisprudential enterprise,” they are “energized by a growing sense of desperation.” 57 It is impossible in the limited compass of a supplement to deal with activist criticism in the comprehensive fashion of the nearly forty responses I published. There the reader will find a detailed dissection of such criticism;58 here I shall limit myself to a few activist arguments which, to my mind, reveal the untenable nature of activist analysis.
Let me begin with Stanley Kutler’s argument that “judicial policymaking fills a vacuum created when politically accountable legislatures . . . abdicate their proper policy role.” 59 But legislative power can not light on the shoulders of the Court because of congressional inaction. “ [I]t is a breach of the National fundamental law,” the Court declared, “if Congress gives up its legislative power and transfers it to . . . the Judicial branch.” 60 Rightly did Gerald Gunther reject “the view that courts are authorized to step in when injustices exist and other institutions fail to act. That is a dangerous—and I think illegitimate—prescription for judicial action.” 61 Justice Story emphasized that “the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may fairly be presumed that the mischief is less than what arises from a further extension of the power.” 62 The vacuum theory is itself vacuous.
Paul Brest adopts Owen Fiss’ suggestion that the “legitimacy” of the courts “depends not on the consent . . . of the people, but rather on [the courts’ ] competence, on the special contribution they make to the quality of our social life.” 63 Such a tenet was disclaimed by the Court; speaking by Justice Jackson, it declared,
Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs . . . But we act in these matters not by authority of our competence but by force of our commissions.64
Expertise does not confer power; it merely invites employment. “An argument for letting the expert decide,” said Judge J. Skelly Wright, “is an argument for paternalism and against democracy.” 65 Fiss’ strange reliance on judicial “competence” is highlighted by his observation that judges
are lawyers, but in terms of personal characteristics they are no different from successful businessmen or politicians. Their capacity to make a special contribution to our social life derives not from personal traits or knowledge, but . . . from the definition of the office in which they find themselves and through which they exercise power.66
Entry into office confers expertise! A seasoned judge J. Clifford Wallace observed, “I do not believe that one gains wisdom or a keener perception of social value merely by becoming a judge.” 67
Some apologists for a revisionist Court parade the horribles; thus Gerald Lynch urges that the “consequences of insisting that the ‘original intention’ be honored across the board” would be that “the States need not enforce the Bill of Rights, protect First Amendment freedoms, or abandon ‘de jure schools segregation,’ entailing, in short, the rejection of ‘virtually all of the Supreme Court’s fourteenth amendment jurisprudence.’ ” 68 He is horrified that “Berger’s theory would deny us Brown,” the “touchstone of constitutional theory.” 69 Baldly stated, if a result is benign, ergo it is constitutional; the end justifies the means. Against the “consequences” of repudiating unconstitutional decisions, however, should be weighed the cost of countenancing undeniable judicial arrogations of power, the Court’s operation as a continuing constitutional convention.70
The view that it is too late to effectuate the unmistakable intention of the Framers is tantamount to claiming that long-standing usurpation confers title. But squatter sovereignty does not run against the people. No one, the Court declared, “acquires a vested interest or protected right in violation of the Constitution by long use”;71 and Chief Justice Thomas Cooley wrote, “Acquiescence for no length of time can legalize a clear usurpation of power.” 72 A striking illustration is furnished by Erie R.R. Co. v. Tompkins, where the Court by Justice Brandeis, quoting Justice Holmes, branded the century-old Swift v. Tyson as “an unconstitutional assump[tion] of power by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.” 73 Long before, Dante wrote that “usurpation of a right does not create a right.” 74 If prior decisions represent usurpation, let our guide be Washington’s admonition in the Farewell Address: “let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” 75 To repudiate past infractions is to pledge anew to abide by the Constitution, which the Justices are sworn to support.
Brest challenges the assumption that judges are “bound by the text or original understanding of the Constitution.” 76 But Chief Justice Marshall asked, “Why does a judge swear to discharge his duties agreeably to the Constitution . . . if that Constitution forms no rule for his government?” 77 Brest reasons that “the authority of the Constitution derives from the consent of its adopters,” but they are “dead and gone” and “their consent cannot bind succeeding generations.” 78 The Court, whom Brest would free from the shackles of the Constitution, has spoken to the contrary: “Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession.” 79
Consent or no, the Justices remain bound by their oath to support the Constitution. If, moreover, the Constitution, lacking renewed consent, is not binding, what becomes of judicial authority? For judges are creatures of the Constitution and have only such authority as it confers. What, too, of the hundreds of decisions handed down by judges while the Constitution lacked fresh consent that were therefore unsanctioned? The American people, of course, do not share Brest’s opinion; indeed, he notes that “the citizenry at large habitually invoke the Constitution,” that it “lies at the core of the American ‘civil religion.’ ” 80 Every amendment the people have adopted testifies that, except for the respective changes, the Constitution was entirely satisfactory—an inferential renewed “consent.” Brest’s demand for recurrent consent is met by the rule that an enactment remains in force until superseded or repealed.
Indifference to the facts permeates the highest activist quarters. Benno Schmidt, former Dean of Columbia Law School and former President of Yale University, contended that “the Fourteenth Amendment guaranteeing of due process was deliberately cast in ‘indeterminate terms.’ ” 81 Now the due process clause of the Fourteenth Amendment, said the Supreme Court, was identical with that of the Fifth.82 Charles Curtis wrote that 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 meant a procedural process, which could be easily ascertained from almost any law book.” 83 On the eve of the Convention Hamilton stated:
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.84
Judge William Lawrence, one of the framers of the Fourteenth Amendment, quoted the Hamilton definition to the House in 1871,85 shortly after adoption of the Amendment; and in the same year, another framer, James Garfield, destined to be a martyred president, said that due process of law meant an impartial trial according to the law of the land.86 Dean John Hart Ely found no references in the legislative history that gave the due process clause of the Fourteenth Amendment “more than a procedural connotation,” 87 as my own extended delving in the records likewise found. To describe “due process” as “indeterminate,” therefore, is to fly in the face of the historical evidence. Of the same order is Schmidt’s statement that “Despite the clear probability that its authors did not intend it as such, the Amendment’s general language allowed it to be used to spur ‘a revolution in race relations.’ ” 88 “General language” cannot overcome a specific intention. A considerable body of opinion, including that of leading activists, agrees that the Fourteenth Amendment left segregation untouched.89
We must not omit an example from the hand of the Master himself. In Bolling v. Sharpe Chief Justice Warren erroneously found that the Fourteenth Amendment prohibited racial segregation in State schools,90 a prohibition rested in Brown v. Board of Education91 on the equal protection clause. Having located the State prohibition, Warren stated, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal government.” 92 But it was not the “same” Constitution; the Fifth Amendment, adopted in 1789, contained no equal protection clause. The very addition of “equal protection” in the Fourteenth Amendment argues against its inclusion in the due process of the Fifth. The interests of symmetry could not overcome the fact that Congress had rejected Senator Charles Sumner’s unremitting efforts to banish segregation from the federal enclave, the District of Columbia schools.93 John Hart Ely, to whom Warren is a “carefully” chosen “hero,” says Bolling is “gibberish both syntactically and historically.” 94 And Brest considers that it “is not supported by even a generous reading of the fifth amendment.” 95 In his adulatory biography of Warren, G. Edward White concluded that “when one divorces Warren’s opinions from their ethical premises, they evaporate.” Warren’s “justifications for a result were often conclusory statements of what he perceived to be ethical imperatives.” 96 Such was the Warren legacy; and as Mark Tushnet notes, activist theorizing is “plainly designed to protect the legacy of the Warren Court.” 97
In 1976 Abram Chayes wrote that judicial action in the two prior decades “adds up to a radical transformation of the role and function of the judiciary . . . its chief function now is as a catalyst of social change with judges sitting as planners on a large scale.” 98 Unless the Fourteenth Amendment authorizes this “transformation,” it was a naked arrogation in the teeth of the Founders’ exclusion of the Justices from policymaking,99 and of Hamilton’s assurance that of the three branches the judiciary was “next to nothing.” 100 Let us then consider whether the Amendment was intended to enlarge the Court’s jurisdiction.
To begin with, the Court was then at the very nadir of public confidence. The disastrous Dred Scott decision was so deeply etched into Northern memory that Senator Charles Sumner even sought to bar the customary placement of Chief Justice Taney’s bust in the Supreme Court chamber, stating that his name should be “hooted down in the pages of history.” 101 In fact, the framers bitterly resented the Court’s intrusion into “settlement of political questions” which, said John Bingham, “it has no more right to decide for the American people than has the Court of St. Petersburg.” 102 It was such sentiments that led Congress to withdraw jurisdiction in Ex parte McCardle,103 a case then under advisement by the Supreme Court. And this hostility found expression in §5 of the Amendment: “The Congress shall have power to enforce by appropriate legislation the provisions of this article.” The Court was under no illusions as to the meaning of §5, saying in 1879:
It is not said that the judicial power . . . shall extend to enforcing the prohibitions . . . It is the power of Congress which has been enlarged.104
The fundamental error in activist thinking is laid bare by Eric Foner. He regards Reconstruction as effecting a “revolution,” 105 and believes that the Fourteenth Amendment was not “a minor adjustment to the Constitution” but “a change in its basic structure.” 106 Phillip Paludan, whose “major concern . . . is that of the national protection for Negro rights,” 107 comes to the contrary conclusion, for reasons which are incontestable. Apart from the pervasive racism108 which clogged the way, the vast majority cherished the federal system and clung to States’ rights.109 Respect for federalism, Paludan concluded, was “the most potent obstacle to the Negroes’ hope for protected liberty.” 110 “To secure his equality,” he wrote, “the freedman would require a major constitutional upheaval,” but the populace “loved” federalism more than equal protection for blacks.111 “Federalism remained a barrier to equal rights.” 112 Thus John Bingham, draftsman of the Fourteenth Amendment, felt constrained to assure the House, “God forbid that by [the Amendment] we should strike down the rights of States.” 113 Chief Justice Thomas Cooley, the chief constitutional authority of the period, considered that the Amendment had “not been agreed upon for the purpose of enlarging the sphere of powers of the general government, or of taking from the States any of those just powers of government which . . . were ‘reserved to the States respectively.’ The existing division of sovereignty is not disturbed by it.” 114 And his compeer, John Norton Pomeroy, found that the “state police power, the power to legislate to secure the health and safety of its citizens had [not] been rescinded by the fourteenth amendment.” 115 There was “general acceptance of the constitutional views of Pomeroy and Cooley.” 116
Let me brush in some confirmatory facts. The immediately antecedent Civil Rights Act, which the Amendment was designed to embody to prevent its repeal,117 was triggered by the Black Codes, whereby the South sought to return the freedmen to serfdom.118 Both were designed to save them from oppression and to enable them to exist. Discussing the Amendment, for which he voted, Senator James Patterson of New Hampshire said, “I am opposed to any law discriminating against [blacks] in the security of life, liberty, person and property . . . Beyond this I am not prepared to go.” 119 One of the “authorities,” Harold Hyman, whom Foner believes “have greatly expanded the horizon of legal scholarship,” 120 observed that Patterson did not “want to undermine state power in any drastic fashion.” 121 Another Foner “authority,” William Nelson, describes as a “key fact” the Northern goal of imposing restraints on the South “ without altering radically the structure of the federal system or increasing markedly the power of the federal government.” 122 The North, moreover, was given good reason to believe that the “alterations” in the South did not extend to the North.123 Then too, a war-weary North was little minded to embark on fresh crusades for abolitionist goals. As Henry Monaghan emphasized, midcentury Americans “opposed slavery and racial equality with equal intensity.” 124
Since Foner invokes the Civil Rights Act of 1866 in aid of his vision,125 we may begin with the Supreme Court’s conclusion in Georgia v. Rachel (1966) that “The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights.” 126 In 1866, Senator Lyman Trumbull, draftsman of the Bill, explained that “The great fundamental rights set forth” in the Bill are “the right to acquire property, the right to come and go at pleasure, the rights to enforce rights in the courts, to make contracts and to inherit and dispose of property.” 127 These were carried into the Act, and Act and Amendment were viewed as “identical.” 128 Pomeroy stated that the Amendment secured to all an equal right to enter or leave the State, to acquire and transfer property, to sue and be sued, to make contracts and to hold a lawful occupation.” 129 Justice Bradley, a contemporary, declared that the “first section of the bill covers the same ground as the fourteenth amendment,” 130 as leading senators confirmed during the ratification campaign.131 Against this background Foner’s assertion that the Amendment changed the “basic structure” has not a leg to stand on.
Notwithstanding Thomas Grey’s view that interpretivism (resort to the original intention) is a tradition “of great power and compelling simplicity . . . deeply rooted in our history and in our shared principles of political legitimacy [with] equally deep roots in our formal constitutional law,” 1 and Robert Bork’s conclusion that until quite recently “there was never any doubt” that the “Constitution was to be construed so as to give effect, as nearly as possible, to the intention of those who made it,” 2 “it is currently fashionable,” Frederick Schauer observes, “to make sport of the ability to determine original intent with any degree of certainty.” 3 Leading activists categorically reject resort to original intention: the Grand Panjandrum of activist theorists, Ronald Dworkin, asserts “there is no such thing as the intention of the Framers waiting to be discovered.” 4 His coadjutor, Paul Brest, flatly declares, “It is simply not possible . . . to determine the adopter’s specific intentions.” 5 Herein I shall collate some historical evidence that refutes such rash assertions.
Early American distrust of the judiciary6 suggests that a doctrine which confined judicial discretion would be welcome. H. Jefferson Powell, the activist “discoverer” of what original intention really meant,7 recounts that the English Puritans’ suspicion of judges traveled to America.8 They feared that judges would “undermine the legislative prerogatives of the people’s representatives by engaging in the corruptive process of interpreting legislative texts”; they feared that the “advantages of a known and written law would be lost if the laws’ meaning could be twisted by judicial construction”;9 and they opposed the “judges imposition of their personal views.” 10 Came the Jeffersonian “revolution of 1800” and the Republican victors, Powell notes, viewed it as “the people’s endorsement” of original intention.11 In 1838 the Supreme Court declared that construction
must necessarily depend on the words of the Constitution; the meaning and intention of the conventions which framed and proposed it for adoption and ratification to the conventions . . . in the several States . . . to which the Court has always resorted in construing the Constitution.12
“By the outbreak of the Civil War,” Powell observes, “intentionalism in the modern sense reigned supreme.” 13
The framers of the Fourteenth Amendment were cognizant of this practice. Senator Charles Sumner, leading proponent of broad rights for the freedmen, said that if the meaning of the Constitution “in any place is open to doubt, or if words are used which seem to have no fixed signification [e.g., equal protection], we cannot err if we turn to the framers; and their authority increases in proportion to the evidence they have left on the question.” 14 This was also the approach of confreres who sat with him in the 39th Congress. In 1871, John Farnsworth of Illinois said of the Amendment, “Let us see what was understood to be its meaning at the time of its adoption by Congress.” 15 James Garfield rejected an interpretation that went “far beyond the intent and meaning of those who amended the Constitution.” 16 Such sentiments found unequivocal expression in 1872 in a unanimous Senate Judiciary Committee Report, signed by senators who had voted for the Thirteenth, Fourteenth, and Fifteenth Amendments:
In construing the Constitution we are compelled to give it such interpretation as will secure the result which was intended to be accomplished by those who framed it and the people who adopted it . . .
A construction which should give the phrase . . . a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution in any other particular. This is the rule of interpretation adopted by all commentators on the Constitution, and in all judicial expositions of that instrument.17
Contrast this with G. Edward White’s comment that the “singularly eccentric feature of Berger’s theory of constitutional interpretation [ “judges are absolutely bound by the text and [its] history” ] is that there is no evidence of such as requirement.” 18
Two items of evidence should suffice to confute the assertions of Dworkin & Co. that there is “no evidence” of original intention: the exclusion of suffrage and of segregation from the ambit of the Fourteenth Amendment. Senator Jacob Howard, to whom it fell to explain the Amendment, stated:
We know very well that the States retain the power . . . of regulating the right of suffrage in the States . . . the theory of this whole amendment is, to leave the power of regulating the suffrage with . . . the States, and not to assume to regulate it.19
Respecting segregation, Congress “had permitted segregated schools in the District of Columbia,” 20 over which it has plenary control; and Senator Sumner vainly “fought to abolish Negro Schools in the District.” 21 A Congress which refused to abolish segregation in the District was altogether unlikely to compel States to outlaw it. That is confirmed by the assurance of James Wilson, chairman of the House Judiciary Committee, that the Civil Rights Bill did not require that all children “shall attend the same school.” 22 The claims that there is no evidence of original intention run counter to the facts.
Inasmuch as the Fourteenth Amendment has become a miniConstitution—according to Justice Frankfurter, “the largest source of the Court’s business” 23 and because its framers undeniably contemplated that their “intention” would be binding, it may seem as a practical matter gratuitous to probe further into the roots of original intention. But as Justice Frankfurter remarked, “legal history still has its claims,” 24 particularly since Chief Justice Marshall declared that he could cite “from the [common law] the most complete evidence that the intention is the most sacred rule of interpretation.” 25 Let us then look at the common law.
We need to remember Hamilton’s “The rules of legal interpretation are rules of common sense,” 26 as was illustrated in 1305 in Aumeye’s Case when Chief Justice Bereford cut off comment of counsel on the Statute of Westminster II with the words “Don’t bother interpreting the statute for us: we know it better than you do, for we made it.” 27 Who knows better what the writer meant by his words than he himself? “Of course,” Justice Holmes stated, “the purpose of written instruments is to express some intention . . . of those who write them, and it is desirable to make that purpose effectual.” 28 To exalt the reader above the writer is to go beyond Humpty Dumpty, who was content to claim, “When I use a word . . . it means just what I choose it to mean.” 29 John Selden, the preeminent seventeenth-century legal scholar, said that “a Man’s writing has but one true sense; which is that which the Author meant when he writ it.” 30 Earlier Thomas Hobbes and John Locke had written to the same effect.31 They were anticipated by the courts; herewith a few examples.
(1) Chief Justice Frowycke, a fifteenth-century sage, recounted that in 1285 the judges asked the “statute makers whether a warrantie with assettz shulde be a barre” in the Statute of Westminster and “they answered that it shulde. And so in our dayes, have those that were the penners & devisors of statutes bene the grettest lighte for expocision of statutes.” 32
(2) Lord Chancellor Hatton, writing circa 1587–1591, said, “when the intent is proved, that must be followed . . . but whensoever there is a departure from the words to the intent, that must be well proved that there is such a meaning.” 33
(3) In the Magdalen College Case Coke stated that “in acts of Parliament which are to be construed according to the intent and meaning of the makers of them, the original intent is to be observed.” 34
(4) Samuel Thorne, an eminent scholar in the field, concluded that “Actual intent . . . is controlling from Hengham’s day to that of Lord Nottingham (1678).” 35
Jefferson Powell attempts to explain away these and still other utterances. He acknowledges that “The central concept—the goal—of common law interpretation was indeed what the common lawyers called ‘intention,’ ” and that they “often sounded remarkably like contemporary intentionalists.” 36 “There is no disagreement,” he writes, “over the proposition that the common lawyers, and most of the founders, thought that interpretation ought to subserve a document’s [i.e., the draftsman’s] ‘intent’ . . . The debate instead is over what ‘intent’ meant.” 37 His answer is a confessedly “curious” theory that “ ‘intention’ was an attribute or concept attached primarily to the document itself, and not elsewhere,” 38 that the “basic notion of ‘intent’ [is] a product of the interpretive process rather than something locked into the text by its author.” 39 Thus, despite their constant differentiation between “words” and “intention,” between the “maker’s intention” and his words, the common-law lawyers, according to Powell, excluded the actual intention and looked for it only in the words. One who would substitute a recondite explanation for a simple differentiation labors under a heavy burden. It would have been far simpler merely to inquire what the words “meant.” 40 If we are to look only at the words, then, said Justice Holmes, “we inquire, not what this man meant, but what those words would mean in the mouth of a normal speaker.” 41 Then too, Lord Chancellor Hatton’s demand for proof “when there is a departure from the words to the intent” posits resort to extrinsic evidence, for to return to the words would undo the “departure.”
Powell’s stellar exhibit of what he himself terms “this [to us curious ] usage of ‘intent’ ” 42 is Hamilton’s 1791 statement during the controversy over the constitutionality of a national bank. Since the Framers’ intention plainly barred his path,43 he was constrained to argue that “whatever may have been the intention of the framers of a constitution or of a law, that intention is to be sought in the instrument itself.” 44 This was bare assertion, unsupported by a single citation, in the teeth of the common law.
Powell’s unpracticed hand is betrayed by two other citations: the first, an eighteenth-century contract treatise that stated, “The law of contracts is not concerned with any one’s ‘internal sentiments’ but only with their ‘external expression.’ ” 45 That is to say, the case presented a subjective, unexpressed intent. There one party claimed that he had understood a term in a special, undisclosed sense to the detriment of the other party. There being no evidence that he had attached that special meaning to the term, he was held to have used the words “according to their common acceptation.” 46 In other words, no intent was expressed.
Of the same nature is Powell’s second citation; Chief Justice Fleming said in 1611, the “intention and construction of words shall be taken according to the vulgar and usual sense”;47 Powell adds, without any factual basis, “not according to any particular meaning the parties may have intended.” 48 Fleming referred to the sale of eighteen barrels of ale which, according to “common usage,” did not include the barrels. In the absence of proof that the parties intended otherwise, “common usage” would prevail, leading Fleming to say, the “ intent of the parties never was that the vendee should have the barrels, but only the ale.” 49 Had there been evidence of “intent,” it would have carried the day.
That Powell was driven to invoke such inapposite citations testifies to the hollowness of the activist case against originalism. As Justice Harlan remarked, “the transparent failure of attempts to cast doubt on the original understanding is simply further evidence of the force of the historical record.” 50 Indeed, Powell cannot altogether stifle his common-law heritage: he acknowledges that “it is natural, inevitable, and appropriate that we should look to the founders for enlightenment.” 51 Most enlightening is their own explanation of what they intended by their words.52
Powell’s “curious” usage was repudiated by the House of Lords in 1992. Turning to the very Parliamentary explanations that Powell rejects, the Law Lords in Pepper v. Hart53 reversed an exclusionary practice that first appeared in 1769,54 and underscored the fact that contemporary legislative explanations are the best evidence of legislative purpose. The financial secretary to the Treasury had assured the House of Commons that the Act “was not intended to impose” a particular tax,55 and the issue posed was whether to depart from previous authority which forbade reference to proceedings in Parliament. Lord Griffiths said, “the object of the court in interpreting legislation” is “to give effect to the true purpose of legislation.” 56 Noting that the courts consulted other “extraneous material,” 57 he asked, “Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament?” 58 Lord Browne-Wilkinson, in whose opinion all but one Law Lord concurred, also asked, why “should the courts blind themselves to a clear indication of what Parliament intended in using these words?” 59 And he answered, “we are much more likely to find the intention of Parliament [in the debates] than anywhere else,” adding, there is a “basic need for the courts to give effect to the words enacted by Parliament, in the sense that they were intended by Parliament to bear.” 60
Finally, original intention acts as a brake on unlimited judicial discretion, a discretion the Founders profoundly feared.61 If, writes Earl Maltz, “intent is irrelevant and the text ambiguous, courts are left with no constitutional source that defines the limits of their authority.” 62 Richard Kay explains:
To implement real limits on government the judges must have reference to standards which are external to, and prior to, the matter to be decided. This is necessarily historical investigation. The content of those standards are set at their creation. Recourse to the intention of the framers in judicial review, therefore, can be understood as indispensable to realizing the idea of government limited by law.63
More broadly speaking, Judge Frank Easterbrook points out that “Constitutional interpretation . . . is a process of holding an actual government within certain bounds.” 64
Activists’ writings do not proffer a viable alternative; they are, Mark Tushnet observed, “plainly designed to protect the legacy of the Warren Court.” 65 Another activist, Paul Brest, adjures his fellows “simply to acknowledge that most of our writings are not political theory but advocacy scholarship—amicus briefs ultimately designed to persuade the Court to adopt our various notions of the public good.” 66 The evidence above set forth, which is but a small part of the facts collected elsewhere,67 demonstrates, in my judgment, that original intention is deeply rooted in Anglo-American law68 and that it serves as a brake on judges’ imposition of their personal preferences under the guise of interpretation.69 The argument to the contrary, we have seen, cannot withstand scrutiny, so that to borrow from the French savant, Raymond Aron, our case once more “justifies itself by the falseness of the beliefs that oppose it.” 70
It remains to examine the doubts shed by James Hutson on the reliability of the sources.71 Hutson was solely concerned with the 1787 period. Since, however, the great bulk of contemporary constitutional litigation arises under the Fourteenth Amendment, it is to be noted that the records of the 1866 Amendment have not been impeached and, in my judgment, are unimpeachable. They are a day-to-day stenographic record of the debates, and their veracity is attested by a striking incident. In 1871 John Bingham challenged James Garfield’s account of a remark in 1866 by Thaddeus Stevens. Garfield responded,
my colleague can make but he cannot unmake history. I not only heard the whole debate at the time, but I lately read over with scrupulous care, every word of it as recorded in the Globe. I will show my colleagues that Mr. Stevens did speak.72
Hutson properly exonerates Madison from charges that he falsified the records, considering Madison’s Notes as “a faithful account of what he recorded at the Convention in 1787.” 73 Since, as Hutson recounts, Madison obtained copies of set speeches from the speakers,74 what he recorded in such cases presumably corresponded to what was said. Indeed, Hutson observes, “if his notes . . . are compared with the fragmentary records of the debates left by other delegates . . . a rough approximation between the different accounts is evident—demonstrating that Madison was not inventing dialogue, but was trying to capture what was said.” 75 My own research confirmed, for example, that on the issue of judicial participation in the Council of Revision to assist in the presidential veto, the Notes of Madison, Yates, King, and Pierce are in substantial accord.76 So too, Madison’s account of the Convention’s rejection of federal charters of incorporation, which he himself had proposed,77 was corroborated by McHenry’s notes78 and by Abraham Baldwin, who was present and later reminded Justice Wilson, a participant in the debate, that the Convention had rejected the power to create corporations.79
But Hutson concluded on the basis of hypothetical calculations that Madison “may have recorded only a small part of each day’s proceedings.” 80 As much can be said of every recording secretary of a corporate or association meeting, whose recitals are often much more truncated than those of Madison. If the recording was incomplete, that does not impeach the veracity of what was recorded.81 Madison was unlikely to omit fresh material. Leonard Levy, although he was taken with Hutson’s critique, recognizes that “the very real possibility exists that Madison consistently and accurately caught the gist of the debates.” 82
Hutson finds another feature of Madison’s notes “troublesome.” 83 Inasmuch as Madison did not prepare his remarks in advance and could hardly speak and record at the same time, his later reduction of his remarks to writing leads Hutson to conclude that “speeches written and ‘improved’ after the event and large scale deletions [omissions] are reminiscent of Genet [a disruptive French agent], Lloyd and the shorthand reporters, however different Madison’s motives may have been.” 84 This is a sorry analogy. Driven by his desire to influence the political scene, Genet was not overly scrupulous,85 and Lloyd, Hutson shows, was probably bought and paid for by the Federalists.86 It is therefore a mistake to bracket the high-minded Madison—who was endeavoring to set forth his own views —with Genet who engaged in misrepresenting those of another, and with the venal Lloyd. Whether or not Madison’s recorded remarks represent a complete reflection of his speeches in the Convention, they yet constitute an undeniable statement of his own views. As President, Jefferson relied on “ the plain understanding of the people at the time of [the Constitution’s] adoption —a meaning to be found in the explanation of those who advocated it.” 87 Would Jefferson have rejected Madison’s “explanation” because he set it down after he had spoken it?
Hutson is more critical of the reports of the State Ratification Conventions. Jonathan Elliot, who published those debates, confessed that “in some instances” the expressions “have been inaccurately taken down.” 88 Shorthand reporting was in its infancy;89 the reporters were inexpert;90 some were paid by the Federalists or were biased in their favor;91 and in Pennsylvania and Connecticut the reporter deleted virtually all of the Antifederalist remarks.92 Despite this, suppression of the Antifederalist remarks was compensated in part by the fact that James Wilson laced his speeches in the Pennsylvania Convention with restatements of Antifederalist arguments and refutations thereof. His assurances that the proposed Constitution did not go to the alarming lengths portrayed by the Antifederalists are more important than their claims. For they were the defeated opponents whose remarks, on settled rules of construction, would not count as legislative history.93
Nor does suppression of opposition remarks undermine the reliability of Federalist statements. Wilson’s statements, constituting the lion’s share of the published Pennsylvania debates, were “corrected” by him or his agent.94 Hutson tells us that in Massachusetts “ghostwritten” speeches were inserted in the report,95 no doubt with the principal’s approval. The fact that a speech is “ghostwritten” does not render it less the speech of one who adopts it. In New York, Hutson recites, speakers “revised” their remarks.96 More than once it has befallen me to marvel at garbled stenographic versions of my oral remarks, and I have welcomed the opportunity to “revise” them, more truly to reflect the sentiments I had uttered. “Revised their remarks” is not presumptively a sinister act. By revising their remarks, the Federalists testified that their views were faithfully presented. They assumed that their remarks would be publicized and took pains to make them accurate. “Federalist stalwarts,” Hutson states, “sent pre-publication excerpts from Lloyd’s [Pennsylvania] debates to partisans in other states to furnish Federalist orators arguments for ratification,” 97 thereby evidencing their satisfaction with Lloyd’s reporting. Their statements were in fact designed to serve as “Federalist campaign literature,” 98 to allay the fears aroused by Antifederalists. Now to discard those representations on the plea that the Antifederalist statements were unrecorded is, as Justice Story wrote in another context, to commit a “fraud upon the whole American people.” 99
As late as August 6 the Convention’s Committee on Detail draft provided that “the Senate . . . shall have power to make treaties.” 100 During the debate Madison “observed that the Senate represented the States alone,” and consequently “the president should be an agent in Treaties.” 101 As the Convention drew to a close, the Committee of Eleven proposed on September 4 that “The President by and with the advice and consent of the Senate shall have power to make treaties.” 102 Rufus King observed that “as the Executive was here joined in the business, there was a check [on the Senate] which did not exist in [the prior] Congress.” 103 In Federalist No. 38 Madison wrote that the Constitution “empowers the Senate with the concurrence of the Executive to make treaties.” 104
Clear-cut confirmation is furnished by Hamilton in Federalist No. 75:
[T]he vast importance of the trust, and the operations of treaties as laws, plead strongly for the participation . . . of the legislative body in the office of making them . . . It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them.105
Such expressions likewise were voiced in the Ratification Conventions. Hamilton explained in New York that “They, together with the President, are to manage all our concerns with foreign nations.” 106 And Chancellor Livingston said that the Senate is “to form treaties with foreign nations.” 107 In Pennsylvania James Wilson stated, “nor is there any doubt [that] the Senate and President possess the power of making [treaties].” 108 In North Carolina, Samuel Spencer said that the Senate is “in effect, to form treaties.” 109
(2) There was likewise virtual unanimity on the issue of judicial review. The evidence is so voluminous as to counsel against repetition of the details contained in my Congress v. The Supreme Court.110 Hutson states that Marshall complained that his speeches were inaccurately recorded.111 On the issue of judicial review, however, his remarks are in accord with those of George Nicholas, George Mason, Edmund Randolph, Edmund Pendleton, Madison, and even that bitter opponent of the Constitution Patrick Henry.112 In addition to these records from Virginia, there are substantial confirmations that judicial review was contemplated by Oliver Ellsworth and James Wilson in the Connecticut and Pennsylvania Ratification conventions, by Robert Yates in his “Letters of Brutus,” and by Luther Martin of Maryland.113 All were Framers.
Now, the Constitution makes no express provision for judicial review. Are we better off with no evidence that the Framers contemplated judicial review, with a glaring arrogation of power? I do not pretend that these examples exhaust the subject, but they suffice to caution against hastily discarding the several Convention records as altogether lacking in credibility. Such caution is the more requisite because in many particulars Madison’s Notes are corroborated by The Federalist wherein Publius, according to Thomas Jefferson and Edward Corwin, purported to express the sentiments of the Convention.114 Then too, Madison’s Notes and The Federalist were often echoed in the state Ratification Conventions, as appears from the foregoing discussion of the treaty power and judicial review. Such parallelism demands explanation other than across-the-board venality and inexpert transcription. Despite Madison’s “dissatisfaction” with the reporting of the Virginia Convention, he repeatedly counseled resort to the Ratification records for light as to the meaning of the Constitution. It is doubtful whether we are better situated to evaluate them than one who participated in the debates.
The historical records all but incontrovertibly establish that the framers of the Fourteenth Amendment excluded both suffrage and segregation from its reach: they confined it to protection of carefully enumerated rights against State discrimination, deliberately withholding federal power to supply those rights where they were not granted by the State to anybody, white or black. This was a limited—tragically limited—response to the needs of blacks newly released from slavery; it reflected the hagridden racism that held both North and South in thrall; nonetheless, it was all the sovereign people were prepared to do in 1868.
Given the clarity of the framers’ intention, it is on settled principles as good as written into the text. To “interpret” the Amendment in diametrical opposition to that intention is to rewrite the Constitution. Whence does the Court derive authority to revise the Constitution? In a government of limited powers it needs always be asked: what is the source of the power claimed? “When a question arises with respect to the legality of any power,” said Lee in the Virginia Ratification Convention, the question will be, “ Is it enumerated in the Constitution? . . . It is otherwise arbitrary and unconstitutional.” 1 Or, as James Iredell put it, a law “not warranted by the Constitution . . . is bare-faced usurpation.” 2 Hamilton made clear that action not warranted by the Constitution is no less a usurpation at the hands of the Court3 than of a President. The suffrage-segregation decisions go beyond the assumption of powers “not warranted” by the Constitution; they represent the arrogation of powers that the framers plainly excluded. The Court, it is safe to say, has flouted the will of the framers and substituted an interpretation in flat contradiction of the original design: to leave suffrage, segregation, and other matters to State governance. It has done this under cover of the so-called “majestic generalities” of the Amendment— “due process” and “equal protection” —which it found “conveniently vague,” without taking into account the limited aims those terms were meant to express. When Chief Justice Warren asserted that “we cannot turn back the clock to 1868,” 4 he in fact rejected the framers’ intention as irrelevant. On that premise the entire Constitution merely has such relevance as the Court chooses to give it, and the Court is truly a “continuing constitutional convention,” constantly engaged in revising the Constitution, a role clearly withheld from the Court. Such conduct impels one to conclude that the Justices are become a law unto themselves.5
Can it be, then, that in a civilized society there exists no means of ridding ourselves of such a blight as segregation? No cost, it can be argued, is too high to be rid of the incubus. Archibald Cox observes: “To have adhered to the doctrine of ‘separate but equal’ would have ignored not only the revolution sweeping the world but the moral sense of civilization. Law must be binding even upon the highest court, but it must also meet the needs of men and match their sensibilities,” and it is for judges to “make law to meet the occasion.” 6 But, as Cox recognized, these “libertarian, humanitarian, and egalitarian” impulses “were not shared so strongly as to realize themselves through legislation,” still less through an amendment. They were only realized through the “fate which puts one man on the Court rather than another.” 7 I cannot bring myself to believe that the Court may assume a power not granted in order to correct an evil that the people were, and remain, unready to cure. Justification of judicial usurpation—the label Hamilton attached to encroachments on the legislative function—on the ground that there is no other way to be rid of an acknowledged evil smacks of the discredited doctrine that “the end justifies the means.” 8 John Stuart Mill cautioned against man’s disposition “to impose [his] own opinions . . . as a rule of conduct on others.” 9 The Inquisition burned heretics at the stake to save their souls.
Then there are the costs to constitutional government10 of countenancing such usurpation. As the Court itself has demonstrated, unconstitutional action to cure a manifest evil establishes a precedent, as Washington and Hamilton warned, that encourages transgressions when such urgency is lacking. Time and again the Justices themselves have accused their brethren of acting without constitutional warrant. So to act is to act unconstitutionally; in another field the Court itself branded its own course of conduct over a hundred-year span as “unconstitutional.” 11 “In a government of laws,” Justice Brandeis cautioned, “existence of the government will be imperilled if it fails to observe the law scrupulously.” 12 Justice Frankfurter added that “Self-willed judges are the least defensible offenders against government under law.” 13 How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally? Respect for the limits on power are the essence of a democratic society; without it the entire democratic structure is undermined and the way is paved from Weimar to Hitler.14
Proponents of the “original understanding,” Sanford Levinson justly charges, are rarely prepared to press it all the way: “Thus opponents of the [Vietnam] war eager to return to the original understanding of the War Power are not likely to be eager to return to what was probably the rather conservative initial understanding of freedom of speech.” 15 Rigorous constitutional analysis halts at the door of particular predilections. Setting practical considerations aside for the moment, intellectual honesty demands that the “original understanding” be honored across the board—unless we are prepared to accept judicial revision where it satisfies our predilections, as is the current fashion. But that is to reduce “law” to the will of a kadi. The list of cases that would fall were the “original understanding” honestly applied is indeed formidable. As Grey summarizes, “virtually the entire body of doctrine developed under the due process clauses of the 5th and 14th amendments,” the core “requirement of ‘fundamentally fair’ procedures in criminal and civil proceedings,” and “everything that has been labeled ‘substantive due process’ would be eliminated,” even though it “must constitutionally free the federal government to engage in explicit racial discrimination,” for “there is no textual warrant for reading into the due process clause of the fifth amendment any of the prohibitions directed against the states by the equal protection clause.” He adds, “there is serious question how much of the law prohibiting state racial discrimination can survive honest application of the interpretive [ “original understanding” ] model. It is clear that the equal protection clause . . . was not intended to guarantee equal political rights, such as the right to vote or to run for office, and perhaps including the right to serve on juries.” 16 But because repudiation of the cases would have undesirable consequences, it does not follow that the prior determinations were authorized by the Constitution.17 Whatever may be the merit of Judge Joseph Hutcheson’s method of decision in common law cases—first a “hunch,” then a hunt for legal rationalization18 —such reasoning backward in constitutional cases displaces choices already made by the Framers. It perilously resembles the subordination of “law” to the attainment of ends desired by a ruling power which was the hallmark of Hitlerism and Stalinism.
Had it fallen to me, therefore, to decide some of the “substantive due process” and “equal protection” cases ab initio, I should have felt constrained to hold that the relief sought lay outside the confines of the judicial power.19 It would, however, be utterly unrealistic and probably impossible to undo the past in the face of the expectations that the segregation decisions, for example, have aroused in our black citizenry—expectations confirmed by every decent instinct. That is more than the courts should undertake and more, I believe, than the American people would desire. But to accept thus far accomplished ends is not to condone the continued employment of the unlawful means. If the cases listed by Grey are in fact in contravention of the Constitution, the difficulty of a rollback cannot excuse the continuation of such unconstitutional practices.
This is not the place to essay the massive task of furnishing a blueprint for a rollback. But the judges might begin by curbing their reach for still more policymaking power, by withdrawing from extreme measures such as administration of school systems—government by decree—which have disquieted even sympathizers with the ultimate objectives. Such decrees cannot rest on the assertion that the Constitution demands busing, when in truth it is the Justices who require it20 in contravention of the framers’ intention to leave such matters to the States. The doctrinaire extension of false doctrine compounds the arrogation. So too, greater restraint in reapportionment matters, the return of the administration of local criminal, libel, and obscenity law to the States would not only respond to constitutional limitations but to preponderant public sentiment. Judges should take to heart Justice Holmes’ admonition in Baldwin v. Missouri:
we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the States may pass.20a
His counsel is heavily underscored by the manifest intention of the framers to limit federal intrusion into State internal affairs to a plainly described minimum.
All this may seem like idle theorizing in light of Justice Stone’s famous dictum that “the only check upon our own exercise of power is our own sense of self-restraint.” 21 Were this true, it would offend against one of the most fundamental premises of our constitutional system. “Implicit in the system of government [the Framers] designed,” Alpheus Thomas Mason stated, “is the basic premise that unchecked power in any hands whatsoever is intolerable.” 22 “Unchecked power” emphatically was not confided to the judiciary; as Hamilton wrote in Federalist No. 81, the Justices may be impeached for usurpation of legislative power.23 President Taft, no wild-eyed radical, acknowledged in 1911 that the judicial system was not working as it should, and stated, “Make your judges responsible. Impeach them. Impeachment of a judge would be a very healthful thing in these times.” 24 Cumbersome as impeachment is, it is yet not so difficult as amendment, which requires approval by three-fourths of the States. At one time Brandeis and Frankfurter, it needs to be remembered, favored an amendment that would remove the due process clause from the Constitution altogether.25 But such heroic measures would be unnecessary in the face of an aroused public opinion, a mighty engine, as President Nixon learned after the “Saturday Night Massacre.” 26 “The Court,” wrote Charles L. Black, “could never have had the strength to prevail in the face of resolute public repudiation of its legitimacy.” 27
A prime task of scholarship, therefore, is to heighten public awareness that the Court has been overleaping its bounds. “ [S]cholarly exposure of the Court’s abuse of its powers,” Frankfurter considered, would “bring about a shift in the Court’s viewpoint.” 28 Such awareness is a necessary preliminary for, as Mason observed, “only that power which is recognized can be effectively limited.” 29 Calls for disclosure of the Court’s real role have been made by both proponents and opponents of judicial “adaptation” of the Constitution. Justice Jackson, it will be recalled, called on the Justices in the desegregation case to disclose that they were “making new law for a new day”; and Judge Learned Hand declared that “If we do need a third [legislative] chamber it should appear for what it is, and not as the interpreter of inscrutable principles.” 30
Forty years ago the philosopher Morris R. Cohen wrote to Professor Frankfurter, “the whole system is fundamentally dishonest in its pretensions (pretending to say what the Constitution lays down when they [the Justices] are in fact deciding what [they think] is good for the country.)” 31 But Martin Shapiro argued: “Suicide is no more moral in political than in personal life. It would be fantastic indeed if the Supreme Court, in the name of sound scholarship, were to disavow publicly the myth on which its power rests . . . If the myth . . . is destroyed . . . the Court loses power.” 32 Power in the service of moral imperatives must not rest on a sham.33 It is not “scholarship,” but obedience to constitutional limitations that calls for a halt. “The foundation of morality,” said Thomas Huxley, “is to have done, once and for all, with lying.” 34 On a practical level, as Presidents Lyndon Johnson and Richard Nixon learned, nondisclosure to the people creates a credibility gap.35
The nation cannot afford to countenance a gap between word and deed on the part of its highest tribunal, a tribunal regarded by some as the “national conscience.” It should not tolerate the spectacle of a Court that pretends to apply constitutional mandates while in fact revising them in accord with the preference of a majority of the Justices who seek to impose their will on the nation. Richard Nixon learned at last that even a President cannot set himself above the law, that he is obliged “ ‘to take Care that the Laws be faithfully executed.’ It is necessary and right that the nine Justices be held to a like standard.” 36 “The people,” in the words of five early State Constitutions, “have a right to require of their . . . magistrates an exact and constant observance” of the “fundamental principles of the Constitution.” 37 Among the most fundamental is the exclusion of the judiciary from policymaking.
Let it not be said of us as Gibbon said of Rome: “The image of a free constitution was preserved with decent reverence. The Roman senate appeared to possess the sovereign authority, and devolved on the emperors all the executive powers of government.” 38 Here no Senate devolved the policymaking powers on the Court; they are self-conferred and survive only because the American people are unaware that there is a yawning gulf between judicial professions and practice. An end, I would urge, to pretence. If government by judiciary is necessary to preserve the spirit of our democracy, let it be submitted in plainspoken fashion to the people—the ultimate sovereign—for their approval.
Supplementary Note on the Conclusion
The foregoing pages furnish proof positive, in my judgment, that both the Founding Fathers and the framers of the Fourteenth Amendment held a narrow view of the judicial role—that of nay-sayer policing the constitutional boundaries, which were to be settled largely by resort to the original intent. And, to borrow from Raymond Aron, these conclusions justify themselves “by the falseness of the [opposing] beliefs.” 1 If instead a judge resorts to his “individual sense of justice,” Benjamin N. Cardozo commented, “That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.” 2 Today the “very notion of the rule of law is at issue.” 3 Activists forget that the struggle for a written Constitution, as Justice Black noted, “was to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power.” 4 Put differently, we are “to be governed by the same pre-established rules and not by the whims of those charged with executing those rules.” 5 Preestablished rules serve the requirements of certainty and predictability so that people may conduct themselves accordingly.6 Additionally, such rules deserve respect because they represent wisdom accumulated over the centuries. Activists would brashly toss that wisdom on the scrap heap. Wisdom, wrote Learned Hand, “is to be gained only as we stand upon the shoulders of those who have gone before”; it can be achieved “only by accumulation.” 7 A wise judge draws upon “the distilled knowledge of many generations of men, each decision based on the experience of those who came before and tested by the experience of those after, and it is wiser than any individual can possibly be.” 8
One of the virtues of the common law is that it sought to resolve problems in the light of common sense. Common sense is especially relevant to constitutional construction, for which we have the authority of Justice Story:
Upon subjects of government, it has always appeared to me that metaphysical refinements are out of place. A Constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill or visionary speculation.9
A striking example of “visionary speculation” is furnished by Professor J. M. Balkin, who relies on the “principle of iterability,” that is, different readers may read texts differently. He explains that “texts cannot be understood unless they can be misunderstood—cannot be read unless they can be misread.” 10 It does not follow, however, that misreadings acquire canonical status. To the contrary, Western tradition seeks to rectify, not to build upon, mistakes, as the course of science abundantly demonstrates. Then too, Balkin assumes, to borrow from Judge Frank Easterbrook, that “Readers, not writers, are sovereign,” 11 despite the centuries-old rule that the intention of the writer prevails. Finally, I would commend to activists the caution of Gerhard Casper, President of Stanford University: “The American concept of the legitimacy of government is closely tied to the Constitution [ “the secular equivalent of the Bible” ]. Its limitless manipulation may endanger the very legitimacy that has been the greatest accomplishment of American constitutionalism.” 12
Van Alstyne’s Critique of Justice Harlan’s Dissent
Professor Van Alstyne’s article1 constitutes the most extended attempt to refute Justice Harlan’s dissent in Reynolds v. Sims.2 In the course of my discussion of suffrage, reapportionment, and the “open-ended” theory I sought to take account of his views. That portion of his article which dealt with the “remedy” aspect of Harlan’s analysis has in part been discussed in connection with Justice Brennan’s adoption of the Van Alstyne argument.3 Van Alstyne also attributes to Harlan the view that “ §2 equally precludes the application of any earlier provisions of the Constitution to state voting rights.” 4 He considers that “there was probably no reliable understanding whatever that §2 would preclude Congress (or the courts) from employing sources of constitutional authority other than §2 to affect state suffrage” 5 and spends many pages demonstrating that there was no such consensus.
Now Harlan was not at all concerned with “other” constitutional provisions; save for a footnote reference to Bingham’s explanation of a “republican form of government.” 6 Harlan concentrated on the Fourteenth Amendment. Here is his thesis in his own words: “The history of the adoption of the Fourteenth Amendment provides conclusive evidence that neither those who proposed nor those who ratified the amendment believed that the Equal Protection clause limited the power of the States to apportion their legislatures as they saw fit.” 7 Apparently Van Alstyne bases his inference of preemption of “other” provisions on Harlan’s statement that “ §2 expressly recognizes the States’ power to deny or, in any way, abridge the right” to vote.8 To recognize a State power falls short of holding that the Amendment “precludes the application of any earlier provisions of the Constitution.” So to hold would imply that “earlier provisions,” if any, had been repealed by implication. It cannot be presumed that Harlan was unaware of the elementary proposition that repeals by implication are not favored and require evidence that a repeal was intended.
Apart from a few radical dissentients,9 there was a wide consensus that control over suffrage had from the beginning been left with the States, as was categorically stated by Stevens, Fessenden, Conkling, Bingham, and many others.10 To placate the dissentients there were assurances that the “representation” provision left other provisions, if any, untouched; in other words, they were not repealed by implication. A typical colloquy between Higby and Stevens is cited by Van Alstyne. Higby objected that the “representation” proposal “gives a power to the States to make governments that are not republican in form,” and asked Stevens
if it does not acknowledge a power in a State to do such a thing.
Yes, sir, it does acknowledge it, and it has always existed under the Constitution.
I do not acknowledge that it is in the Constitution as it now is.
Then we do not give it to them.
Van Alstyne finds Stevens’ response “confusing.” 11 To “acknowledge” that States have a power is not to give it to them. At another point Stevens stated, “the States have the right . . . to fix the elective franchise,” and the representation provision “does not take it from them.” 12
Rejection of the dissentient appeal to “other” constitutional sources for federal power over suffrage13 is demonstrated by the fact that a subcommittee of the Joint Committee reported an Amendment “Congress shall have power . . . to secure . . . the same political rights,” 14 thereby expressing its view that Congress did not enjoy that power. And it is confirmed by the passage of the Fifteenth Amendment.15 If there were “other” constitutional powers for the purpose the Fifteenth Amendment was superfluous. From 1789 to 1866 it was generally accepted that suffrage had been left to regulation by the States,16 a view reiterated in 1875 by Chief Justice Waite:
The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the State from giving preference, in this particular, to one citizen of the United States over another on account of race. Before its adoption this could be done. It was as much within the power of a State to exclude citizens from voting on account of race . . . as it was on account of age, property, or education. Now it is not.17
Of course, this does not dispose of the question: were there such other powers? Van Alstyne, however, makes no attempt to demonstrate that there were. My study of the guarantee of a republican form of government, upon which the dissentients cited by Van Alstyne heavily rely, led me to doubt their existence.18 Those doubts were strongly reinforced by the historical materials Justice Stewart collected in his opinion in Oregon v. Mitchell.19 In any event, Van Alstyne’s elaborate argument that the Fourteenth Amendment does not preclude the application of “other” provisions of the Constitution does not shake Harlan’s demonstration that suffrage was excluded from the Amendment itself.
Van Alstyne’s attempt to downgrade Stevens’ testimony stands no better. Stevens did not consider Negroes prepared for suffrage, nor the North ready to accept it; he had stated that the right of a State to disfranchise “has always existed,” that the proposed “representation” provision “does not take it from” the States.20 One could hardly ask for greater clarity. Against this, Van Alstyne quotes Stevens, “If any State shall exclude any of her adult citizens from the elective franchise . . . she shall forfeit her right to representation in the same proportion,” and asks whether this evidences Stevens’ understanding “that an exception was to be read into the unqualified language of §1 and that the Equal Protection Clause could not be applied against partial and oppressive laws denying the freedmen their voice in the government.” 21 This quotation did not address that issue; but the above quotations plainly indicate Stevens’ view that suffrage was to remain the province of the States; that is an “exception” built into “equal protection” by the entire Republican leadership. Bingham stated: “The amendment does not give . . . the power to Congress of regulating suffrage in the several States.” 22 Senator Howard explained that “the first section of the proposed amendment does not give . . . the right of voting.” 23 Toward the close of the session Senator Sherman said, “we have refused” to require the rebel “States to allow colored persons to vote.” 24 And after passage of the “equal protection” clause, Bingham lent his aid to Tennessee’s exclusion of black suffrage, notwithstanding “we are all for equal and exact justice, but justice for all is not to be secured in a day” 25 —eloquent testimony that “equal protection” was not viewed as a bar to denial of suffrage.
Van Alstyne’s statement that Stevens “greatly favored Negro suffrage and constantly supported all efforts to that end, to the extent he thought them politically feasible” 26 is not very revealing. In fact, as C. Vann Woodward wrote, “Stevens was not yet prepared to enfranchise the Negro freedmen . . . apart from political reasons he had other doubts about the wisdom of the measure . . . he doubted that the freedmen were prepared for intelligent voting.” 27 Eric McKitrick stated, “beyond doubt” Stevens “tipped the balance . . . Being none too keen on direct enactment of Negro suffrage.” 28 It was on Stevens’ motion that the Joint Committee on Reconstruction preferred a reduction of representation proposal to one prohibiting discrimination, by a vote of 11 to 3.29 He was taunted during the final debate by Charles A. Eldredge, a Democrat from Wisconsin: “Why is it that the gentleman from Pennsylvania gives up universal suffrage . . . It is . . . for the purpose of saving their party in the next fall election.” 30 Another Democrat, Andrew Rogers, asserted, “The committee does not dare submit the broad proposition to the people . . . of negro suffrage.” 31 In September 1866, when the Amendment was a campaign issue, Stevens assured the Pennsylvania voters that the “Amendment does not touch social or political rights.” 32
It is Van Alstyne who would “read into” the words “equal protection” the very suffrage so unmistakably excluded by the framers. For centuries the canon of interpretation has been that a thing may be within the language and yet not within the intention of the framers and therefore not “within the statute.” 33 “Equal protection” had limited scope for the framers; it barred discriminatory laws with respect to specified “fundamental rights” —no more.34
The difficulties that confront Van Alstyne’s attack on Harlan’s analysis may be gathered from his own statement. He makes
several observations generally in agreement with Mr. Justice Harlan’s view of what was implied by §2. First, the fact that the Joint Committee considered an amendment to prohibit voting discrimination on racial grounds [and let it wither on the vine] does seem to imply that it otherwise regarded state laws providing for such discrimination as constitutional. Second, the fact that a more limited reduction-of-representation-basis alternative was simultaneously considered and adopted, that the proposal to prohibit discrimination on the basis of race was not adopted [such proposals were voted down by the Senate by very heavy majorities] appears to imply that §2 itself recognizes the exclusive power of states over suffrage qualifications. Beyond this, the speeches by Stevens and Conkling in support of H. R. No. 51 [a predecessor provision cast in terms of racial discrimination] initially appear to the same effect.35
To the “speeches by Stevens and Conkling” should be added those of other prominent leaders, Fessenden, Bingham, Howard and still other Republicans, copiously quoted in Chapters 3 and 4 supra, and unmistakably confirmed by the Joint Committee Report. How Van Alstyne can extract from these statements the conclusion that “its [ §2] principal proponents emphasized that it did not acknowledge the constitutionality of state disenfranchisement laws” 36 escapes my grasp.
Among the facts Van Alstyne musters to counteract an “initial favorable” impression is his “package” argument. In demonstrating that §2 illuminated the exclusion of suffrage from §1 of the Amendment, Justice Harlan stated: “the Amendment is a single text. It was introduced and discussed as such in the Reconstruction Committee, which reported it to Congress. It was discussed as a unit in Congress and proposed as a unit to the States, which ratified it as a unit.” 37 This is one of the “serious exaggerations” Van Alstyne lays at Harlan’s door: “Far from being a single text . . . the Fourteenth Amendment was a package of proposals, the more significant of which were pieced together from independent bills by different men at different times and originally debated as wholly separate amendments.” 38
Let it be admitted that the different bills were “ ‘ originally ’ debated as wholly separate amendments”; but down the line they were “discussed as a unit” in the form of an amendment combining five sections, and “ratified . . . as a unit” by the States. And though the several sections were introduced “by different men at different times,” they were debated in the very same Congress and same short space of time.39 Members turned from one subject to the other and then back again, time after time. Throughout the debates discussion of “representation,” which became the subject of §2, alternated with discussions of the Civil Rights Bill and the Bingham amendment, the antecedents of §1. Explicit recognition that Negro suffrage was beyond the achievable was the leitmotiv of all the discussions. Are we to assume that the members of Congress erased from their minds all reference made to suffrage because made in the context of the Bill or alternately in that of “representation”? Men do not thus insulate important discussions in airtight mental compartments. For example, Stevens referred in the course of the debate on the Amendment to the Black Codes and stated, “I need not enumerate these partial and oppressive laws,” patently because they had been frequently mentioned, and to underscore the obvious said that the “civil rights bill secures the same thing.” 40 With respect to Howard’s proposal that citizenship be defined in §1, Fessenden said, “I should like to hear the opinion of the Chairman of the Committee on the Judiciary [Senator Trumbull], who has investigated the civil rights bill so thoroughly, on the subject.” 41 Certainly Bingham regarded the Amendment as a “unit,” for he said, “The second section excludes the conclusion that by the first section suffrage is subjected to congressional law.” 42 Howard said that “the theory of this whole amendment is to leave” suffrage with the States.43 Van Alstyne himself states that “the brevity of the three-day House debate on . . . the packaged Fourteenth Amendment bill, is probably attributable to the fact that its most significant components had previously been considered at length.” 44 That no recapitulation of these “components” was deemed necessary is underscored by the frequent statements that the Amendment was designed to constitutionalize the Civil Rights Act. In short, Congress was thoroughly aware of a common purpose to exclude Negro suffrage that animated discussion of the Civil Rights Bill, and of § § 1 and 2. On Van Alstyne’s own reading of Justice Harlan, §1 was “understood at the time of its promulgation not to apply to suffrage qualifications as determined by the states”;45 it is therefore in pari materia with §2 which exhibits a similar understanding. Because “they relate to the same thing, they ought all” —Civil Rights Bill, § § 1 and 2— “to be taken into consideration in construing any one of them.” 46 Plainly Van Alstyne’s “package” analysis does not vitiate Harlan’s documentation.
Finally, Justice Harlan correctly stated that the Joint Committee on Reconstruction, which fashioned the §2 “representation” provision, “regularly rejected explicitly enfranchising proposals in favor of plans which would postpone enfranchisement, leave it to congressional discretion, or abandon it altogether.” And, as he pointed out, “the abandonment of negro suffrage as a goal exactly corresponded with the adoption of provisions to reduce representation for discriminatory restrictions on the ballot.” 47
Judicial Administration of Local Matters
In a recent evaluation of the Court’s assumption of the policymaking role, Archibald Cox wrote:
[W]here the older activist decisions merely blocked legislative initiatives, the decisions of the 1950’s and 1960’s forced changes in the established legal order. The school desegregation cases overturned not only the constitutional precedents built up over three quarters of a century but the social structure of an entire region . . . The one man, one vote rule asserted that the composition of the legislatures of all but one or two of the 50 states was unconstitutional and had been unconstitutional for fifty or a hundred years [or more] . . . New York Times Co. v. Sullivan overturned the law of libel as it had prevailed from the beginning.
Decisions mandating reforms in the on-going activities of other branches of government often require affirmative action. The affirmative action can be secured [lacking voluntary cooperation, only] by the courts themselves embarking upon programs having typically administrative, executive and even legislative characteristics heretofore thought to make such programs unsuited to judicial undertaking [and arguably therefore never comprehended in the original grant of judicial power].
The most prominent examples are the school desegregation cases. The court determines which students will be assigned to each school, how teachers shall be selected, what security measures shall be adopted, and even where new schools shall be built. When transportation is required, the court directs the expenditure of hundreds of thousands of dollars.
. . . In Boston, for example, the city was induced by fear of fiscal disaster to plan the elimination of 191 teachers. The federal court went down the list, school by school, even hearing the personal pleas of individual teachers, and decided to allow 60 layoffs and disallow 131.
Desegregation decrees have all the qualities of social legislation . . . I can think of no earlier decrees with these characteristics in all constitutional history.1
All this on the theory that “the Constitution requires busing”!
A summary of judicial takeovers of legislative and executive prerogatives is furnished in the following article by Wayne King:
A Federal court ruling ordering Mobile to scrap its city government and replace it with a new one more favorable to blacks has generated a storm of protest in this city, including a petition drive to impeach the judge.
“This is the first time,” said Mayor Lambert C. Mims in an interview, “that the Federal Government has told a free people what kind of government they must have.”
“If they can do that, they can tell you what time to go to bed, what time to get up, and whether to have pork and beans for lunch.”
Yesterday, a newly formed group called the Constitutional Crisis Committee began distributing petitions calling for the impeachment of Federal Judge Virgil Pittman of the Southern District of Alabama.
Judge Pittman two weeks ago ruled in a class-action suit brought by city blacks that the Mobile system of government, a three-member city commission, with each member elected by citywide vote, “precludes a black voter from an effective participation in the election system.”
He ordered that in the municipal election next year the commission was to be replaced by a mayor elected by citywide vote and nine council members elected from single-member districts.
Given the city’s racially polarized voting pattern, this would likely result in the election of at least three and possibly four blacks.
The court found that the vote of Mobile’s blacks, 35 percent of the population, was “diluted” by the white majority, making it unlikely to elect a black in a citywide vote.
The ruling is believed to be the most extensive intrusion by the courts so far into legislative and executive affairs. The Mobile City Commission was established under legislative power of the State of Alabama in 1911 and has twice been retained by popular vote of the city’s voters.
There have been a number of recent examples of state and Federal judicial action taking over prerogatives normally reserved to the executive or legislative branches of Government.
In Alabama, Mississippi and Louisiana, Federal courts have ordered state prisons to be brought up to standards set by the courts, in most cases involving large expenditures of state funds.
In New York City, a Federal court ordered the aging Tombs Prison closed and a new facility built.
In New Jersey, a state court in effect ordered the Legislature to enact an income tax by declaring the closing of public schools until adequate financial support was made available—possible only through enactment of the income tax.
In Chicago, a Federal court ordered affirmative action in the hiring of policemen, a step that has also been taken in numerous other places.
In Boston, parts of the operation of public schools have been directed by Federal Judge Arthur Garrity in an effort to correct racial imbalances.
These are part of the growing trend toward “activist” court decisions forcing the requirements of the judiciary onto other branches of Government.
Besides the question of separation of powers among the legislative, executive and judicial branches, these and similar court actions have raised the question of “accountability” of judges—most of whom, particularly those on the Federal bench, are not elected but appointed for terms up to life without review.
In a speech to the new Constitutional Crisis Committee, Mr. Mims, the current Mayor under a rotation system among the commissioners, said: “This decision, if not reversed, could be the beginning of the end for local government and the open door for complete Federal takeover of community affairs.”
The city has set aside $500,000, including $200,000 in Federal revenue-sharing money, to fight the decision.
Eugene McKenzie, a furniture store owner who is head of the crisis committee, said in an interview that the petitions for impeachment of Judge Pittman were based on “usurpation of the voters’ right to choose their form of local government as guaranteed by the Alabama Constitution.”
The petition also maintains that the 10th Amendment of the United States Constitution delegating certain powers to the Federal Government and reserving others to the states had been breached by the ruling.
Mayor Mims said in an interview that the issue was not racial. “If we’d been bad to blacks, been mean old honkies, then maybe we’d deserve this,” he said. “I just hope that blacks will realize that the issue is if a judge can order this, he can order Ku Klux Klansmen into city government.”
In his ruling, Judge Pittman observed that “there is no formal prohibition against blacks seeking office in Mobile” and that “since the Voting Rights Act of 1965, blacks register and vote without hindrance.”
However, the judge found that “one indication that local political processes are not equally open is the fact that no black person has ever been elected to the at-large city commission.”
Although the judge found no current examples of “overt gross discrimination” in city services, he said in his ruling that there were “significant differences and the sluggishness” in responding to needs in black areas as compared to white areas.
Moreover, he found significant racial imbalances in city administrative agencies appointed by the city commissioners.
Mayor Mims said that while such imbalances appear to exist, blacks did have minority representation on all such boards and said that appointments were made according to qualifications and not according to race.
Judge Pittman’s ruling is being appealed to the Court of Appeals for the Fifth Circuit in New Orleans. No hearing date has been set, and no ruling is expected before the date of the municipal elections next August. The city will ask for a stay of the order, if necessary, to continue to elect the commissioners as its form of Government. The Mayor also said that the city would continue its appeals to the United States Supreme Court if necessary.2
The Writings of Raoul Berger
i. federal documents
This book is set in Janson Text, which for many years was incorrectly ascribed to the Dutch punch-cutter Anton Janson. The typeface was actually based on the work of Miklós Kis, a Hungarian punch-cutter, typefounder, and printer who worked in Amsterdam. His types are some of the greatest in the Dutch old face style. Linotype Janson was created by C. H. Griffith in 1937 and derives from an original face cut by Kis between 1670 and 1690.
Printed on paper that is acid-free and meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials, z39.48–1992.(archival)
Book design by Louise OFarrell, Gainesville, Florida
Typography by Alexander Graphics, Ltd., Indianapolis, Indiana
Printed and bound by Worzalla Publishing Company, Stevens Point, Wisconsin
[1.]This principle lies at the heart of the separation of powers, as Chief Justice Marshall perceived: “The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825). Marshall was anticipated by Justice Samuel Chase in Ware v. Hylton, 3 U.S. (3 Dall.) 199, 223 (1796): “The people delegated power to a Legislature, an Executive, and a Judiciary; the first to make; the second to execute; and the last to declare or expound the laws” (emphasis added). Of the three branches, Hamilton assured the ratifiers, the judiciary is “next to nothing.” Federalist No. 78 at 504 (Mod. Lib. ed. 1937).
[2.]1 Selected Writings of Francis Bacon 138 (Mod. Lib. ed. 1937). Blackstone stated, “Though in many other countries everything is left in the breast of the Judge to determine, yet with us he is only to declare and pronounce, not to make or new-model the law.” 3 William Blackstone, Commentaries on the Laws of England 335 (1769). James Wilson, second only to Madison as an architect of the Constitution, instructed the judge to “remember, that his duty and his business is, not to make the law but to interpret and apply it.” 2 James Wilson, Works 502 (Robert McCloskey ed. 1967).
[3.]Griswold v. Connecticut, 381 U.S. 479, 522 (1965), dissenting opinion. In McPherson v. Blacker, 146 U.S. 1, 36 (1892), the Court rejected the notion that the Constitution may be “amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made.” See also Hawke v. Smith, 253 U.S. 221, 239 (1920).
[4.]In the Virginia Ratification Convention, for instance, John Marshall stated that if Congress were “to go beyond the delegated powers . . . if they were to make a law not warranted by the powers enumerated, it would be considered by the judges as an infringement of the Constitution . . . They would declare it void.” 3 Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 551, 553 (1836).
[5.]See infra Chapter 16, note 26.
[6.]Referring to constitutional limitations on legislative power, Justice Iredell declared, “Beyond these limitations . . . their acts are void, because they are not warranted by the authority given. But within them . . . the Legislatures only exercise a discretion expressly confided to them by the constitution . . . It is a discretion no more controllable . . . by a Court . . . than a judicial determination is by them.” Ware v. Hylton, 3 U.S. (3 Dall.) 199, 266 (1726). South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 190–191 (1938), per Stone, J. Champion v. Ames, 188 U.S. 321, 363 (1902): “if what Congress does is within the limits of its power, and is simply unwise or injurious, the remedy is that suggested by Chief Justice Marshall in Gibbons v. Ogden,” i.e., look to the people at elections.
[7.]It was not ever thus. Stanley Kutler, a perfervid activist, noted that “From the early twentieth century throughout the later 1930s, academic and liberal commentators . . . criticized vigorously the abusive powers of the federal judiciary. They accused . . . the Supreme Court of consistently frustrating desirable social policies.” He noted that “the judges had arrogated a policy-making function not conferred upon them by the Constitution,” which “negated the basic principles of representative government.” “After 1937,” he observed, “most of the judiciary’s long time critics suddenly found a new faith and promoted it with all the zealousness of new converts.” Now the courts “matched a new libertarianism . . . with an activist judiciary to protect those values.” Stanley I. Kutler, “Raoul Berger’s Fourteenth Amendment: A History or Ahistorical,” 6 Hastings Const. L.Q. 511, 512, 513 (1978).
[8.]Gordon Wood, The Creation of the American Republic, 1776–1787 298 (1969).
[9.]H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885, 891 (1985).
[10.]Richard Kay, “Book Review,” 10 Conn. L. Rev. 800, 805–806 (1978): “To implement real limits on government the judges must have reference to standards which are external to, and prior to the matter to be decided . . . The contents of those standards are set at their creation. Recourse to ‘the intention of the framers’ in judicial review, therefore can be understood as indispensable to realizing the idea of government limited by law.” See also W. Lawrence Church, “History and the Constitutional Role of the Courts,” 1990 Wis. L. Rev. 1071, 1087–1088.
[11.]Jefferson pledged in his Inaugural Address 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.” 4 Elliot, supra note 4 at 466. Madison wrote, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.” 3 Letters and Other Writings of James Madison 441, 442 (1865).
[12.]John Marshall’s Defense of McCulloch v. Maryland 167 (Gerald Gunther ed. 1969).
[13.]William Cullen Bryant asked, are we “to admit that the Constitution was never before rightly understood, even by those who framed it?” 1 Allan Nevins, The Emergence of Lincoln 95 (1950).
[14.]Table Talk: Being the Discourses of John Selden, Esq. 10 (1696). See Supplementary Note on Original Intention.
[15.]Hobbes wrote that the judge is to be guided by “the final causes, for which the law was made; the knowledge of which final causes is in the legislator.” Thomas Hobbes, Leviathan pt. 2, chap. 26, §21, p. 191 (1991). Locke stated, “when a man speaks to another, it is . . . [to] make known his ideas to the hearer. That then which words are the marks of are the ideas of the speaker . . . this is certain, their signification, in his use of them, is limited to his ideas, and they can be signs of nothing else.” John Locke, An Essay Concerning Human Understanding 204–206 (Raymond Wilburn ed. 1947).
[16.]Louis Lusky, himself an activist, observed that the Court has “a new and grander conception of its own place in the governmental scheme,” resting on “two basic shifts in its approach to constitutional adjudication”: “assertion of the power to revise the Constitution, bypassing the cumbersome amendment procedure prescribed by Article V,” and “repudiation of the limits on judicial review that are implicit in the doctrine of Marbury v. Madison.” Louis Lusky, “Government by Judiciary: What Price Legitimacy?” 6 Hastings Const. L.Q. 403, 406, 408 (1979). In holding that Congress could not “alter” the Constitution, Marbury made the “implicit” “explicit.”
[17.]By “activists” I mean those who claim that judges are empowered to revise the Constitution and to look for authority outside its text and history. Thus, Paul Brest challenges the assumption that judges are “bound by the text or original understanding of the Constitution.” Paul Brest, “The Misconceived Quest for the Original Understanding,” 60 B.U. L. Rev. 204, 234 (1980). And the late Robert Cover thrust aside the “self-evident meaning of the Constitution,” let alone “the intention of the framers,” in favor of an “ideology” framed by judges. Robert Cover, “Book Review,” New Republic, Jan. 14, 1978, at 26, 27.
[18.]Brest, supra note 17 at 1109. Anthony Lewis exulted because in the fifteen years since Earl Warren became Chief Justice, the Court “has brought about more social change than most Congresses and most presidents” — “years of legal revolution.” Anthony Lewis, “A Man Born to Act, Not to Muse,” New York Times Magazine, June 30, 1968, reprinted in The Supreme Court Under Earl Warren 151 (Leonard Levy ed. 1972); cf. Calabresi, supra note 7.
[19.]“The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete responsibility of government to the governed.” Charles H. McIlwain, Constitutionalism: Ancient and Modern 146 (rev. ed. 1947). “The fabric of American empire,” said Hamilton, “ought to rest on the solid basis of the consent of the people,” Federalist No. 22 at 141 (Mod. Lib. ed. 1937). James Wilson and others considered that “the binding power of the law flowed from the continuous assent of the subjects of law.” Bernard Bailyn, The Ideological Origins of the American Constitution 174 (1967).
[20.]2 G. J. McRee, Life and Correspondence of James Iredell 146 (1858).
[21.]Benjamin N. Cardozo, The Nature of the Judicial Process 136 (1921).
[22.]Chief Justice Marshall asked, “To what purpose are powers limited, and to what purpose is that limitation committed to writing; if those limits may, at any time, be passed by those intended to be restrained?” If, he continued, the Constitution is “alterable when the legislature shall please to alter it . . . then written constitutions are absurd attempts, on the part of the people, to limit a power in its nature illimitable.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–177 (1803).
[23.]Sidney Hook observed that “whoever places greater emphasis upon the product rather than the process, upon an all-sanctifying end rather than upon the means for achieving it, is opening the doors of anarchy.” Sidney Hook, Philosophy and Public Policy 36 (1980).
[24.]“ ‘Criticism,’ wrote Johnson in the 60th Idler, ‘is a study by which men grow important and formidable at a very small expense.’ ” Augustine Birrell, Obiter Dicta 110 (2d series 1905). Daniel Boorstin observes that most men “hate the necessity of revising their convictions.” Daniel J. Boorstin, The Discoverers 476 (1983).
[25.]E.g., Baade, supra note 24; Bruce Ackerman, We the People: Foundations 91, 334–336 (1991).
[26.]For an encapsulation of this history, see Supplementary Note on the Civil Rights Act, text accompanying notes 7 through 24.
[27.]The Reconstruction Amendments’ Debates 143 (Alfred Avins ed. 1967).
[28.]Id. 237. See also the Report of the Joint Committee on Reconstruction, which drafted the Amendment. Id. 94.
[29.]For the “gap” materials, see Raoul Berger, “The Fourteenth Amendment: Light From the Fourteenth,” 74 Nw. U. L. Rev. 311, 321–323 (1979); United States v. Reese, 92 U.S. 214, 217–218 (1876): the Fifteenth Amendment “has invested the citizen of the United States with a new right.” Mark that the “one man-one vote” doctrine rests on the Fourteenth Amendment.
[30.]Justice Story declared that “we are not at liberty to add one jot of power to the national government beyond what the people have granted by the constitution.” Houston v. Moore, 18 U.S. (5 Wheat.) 1, 48 (1820), dissenting opinion.
[31.]347 U.S. 483 (1954). An activist sympathizer asked, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under the amendment?” Richard Kluger, Simple Justice 635 (1976).
[32.]“It is in this recognition of the practical, present and future-looking consequences of constitutional symbols that a proper beginning point for a book on constitutional law must lie.” Robert Cover, “Book Review,” New Republic, Jan. 14, 1978, at 26, 27. The duty of an historian is to ascertain what happened, not to ignore the historical facts for fear of “future consequences.”
[33.]Bruce Ackerman, We the People: Foundations 133 (1991). “Only a mobilized mass movement,” Ackerman noted, “might encourage progressive Democrats and Republicans to overcome massive Southern resistance to new civil rights legislation.” At the time Brown was “argued and reargued . . . such a mass movement did not exist.” Id. 135. During the oral argument Justice Jackson commented, “realistically the reason the case is here is that action could not be obtained from Congress.” Alexander Bickel, The Supreme Court and the Idea of Progress 6 (1978). Edmond Cahn stated, “it would have been impossible to secure adoption of a constitutional amendment to abolish ‘separate but equal.’ ” Edmond Cahn, “Jurisprudence,” 30 N.Y.U. L. Rev. 150, 156–157 (1955).
[34.]Ackerman, supra note 33 at 133; Cahn, supra note 33.
[35.]A similar messianic role is assumed by Justice Brennan with respect to death penalties. Despite the Fifth Amendment’s recognition that a person may be deprived of life provided he is accorded due process, despite Brennan’s recognition that the majority of his brethren and of his fellow Americans do not share his views, he persists in “striving for human dignity for all,” that is, abolition of the death penalty. For extended discussion, see Raoul Berger, “Justice Brennan vs. the Constitution,” 29 B.C. L. Rev. 787, 796–798 (1988). See also Supplementary Note on the Role of the Court, notes 19 and 20.
[36.]Richard Kluger, Simple Justice 635 (1976).
[37.]Kelly, Fourteenth 1049, 1085. When desegregation of the District of Columbia schools was under discussion in April 1860, Senator James Harlan of Iowa said, “I know that there is an objection to the association of colored children with white children in the same schools. This prejudice exists in my own State. It would be impossible to carry a proposition to educate the few colored children that now live in that State in the same school houses with white children. It would be impossible, I think, in every one of the States of the Northwest.” Avins, supra note 27 at 22.
[38.]Howard Jay Graham, Everyman’s Constitution 290 note 70 (1968).
[39.]For continued attachment to State sovereignty, see infra pp. 77–80; Berger supra note 29 at 324–326. Lord Acton described the preservation of States’ rights as the “redemption of democracy.” Robert Speaight, The Life of Hilaire Belloc 132 (1957).
[40.]Avins, supra note 27 at 163.
[41.]Paul Brest, “Book Review,” N.Y. Times, Dec. 11, 1977, §11 at 10; Sanford Levinson, “The Turn Toward Functionalism in Constitutional Theory,” 8 U. Dayton L. Rev. 567, 578 (1983); Nathaniel Nathanson, “Book Review,” 56 Tex. L. Rev. 579, 580–581 (1978); Michael Perry, “Interpretivism, Freedom of Expression, and Equal Protection,” 42 Ohio St. L.J. 261, 292 (1981); David A. J. Richard, “Abolitionist Political and Constitutional Theory and the Reconstruction Amendments,” 25 Loyola L.A. L. Rev. 1143, 1187 (1992); Mark Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harv. L. Rev. 781, 800 (1983). Judge Learned Hand said of Brown v. Board of Education, “I have never been able to understand on what basis it does or can rest except as a coup de main.” Learned Hand, The Bill of Rights 55 (1962).
[42.]Ronald Dworkin, “The Forum of Principle,” 56 N.Y.U. L. Rev. 469, 486–487 (1981). Similar fantasizing is exhibited by John Hart Ely: the framers of the Fourteenth Amendment issued on “open-and-across-the-board invitation to import into the constitutional decision process considerations that will not be found in the amendment nor even . . . elsewhere in the Constitution.” John Hart Ely, “Constitutional Interpretivism: Its Allure and Impossibility,” 53 Ind. L.J. 399, 415 (1978). This at a time when the Dred Scott decision was execrated by the framers. See infra Supplementary Note on the Conclusion, text accompanying notes 21–24. In the introduction to The Intellectual Adventures of Ancient Man 3 (Henri Frankfort & H. A. Frankfort eds. 1977), the Frankforts decry the “irresponsible meandering of the mind which ignores reality and seeks to escape from its problems.”
[43.]The governing rule was laid down by Chief Justice Marshall: “an opinion which is . . . to establish a principle never before recognized, should be expressed in plain and explicit terms.” United States v. Burr, 25 F.Cas. 55, 165 (C.C.D.Va. 1807) (No. 14, 693). Striking reaffirmation was given to this view in Pierson v. Ray, 386 U.S. 547, 554–555 (1967). After adverting to the common-law immunity of judges from suits for acts performed in their official capacity, the Court stated, “We do not believe that this settled principle was abolished by §1983, which makes liable ‘every person’ who under color of law deprives another of his civil rights . . . The immunity of judges [is] well established and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” In a similar context, the Supreme Court declared, “so important a change . . . if intended, would have been expressly declared.” Minor v. Happersett 88 U.S. (21 Wall.) 162, 173 (1874).
[44.]For citations see supra p. 13; and Index, s.v. “racism.” Dworkin might ponder Benjamin Franklin’s belief that “patience and accuracy in making observations” are the foundation “on which alone true philosophy can be founded.” Carl van Doren, Benjamin Franklin 168 (1968). His contemporaries considered Franklin to be one of the foremost thinkers.
[45.]William Coles, “A Passionate Commitment to Experience,” N.Y. Times, May 29, 1983, §7.
[46.]Max Beloff, “Arbiters of America’s Destiny,” Times (London), Higher Ed. Supp., April 7, 1978, at 11.
[47.]With Charles McIlwain I can say, “I entered upon this study without preconceptions. During the course of it I came to the conclusion that the weight of contemporary evidence was against some views . . . [T]his has unavoidably given to certain parts of the book a polemical cast, and might lead one to think that it was written from the beginning to bolster a preconceived theory. Such is not the case.” Charles McIlwain, The High Court of Parliament and Its Supremacy ix (1910).
[48.]Paul Brest, “The Misconceived Quest for Original Understanding,” 60 B.U. L. Rev. 204, 234 (1980).
[49.]James Boswell, The Life of Samuel Johnson 1114 (Everyman ed. 1992).
[1.]Robert H. Bork, The Tempting of America: The Political Seduction of the Law 37 (1990). Ely regards the “Privileges or Immunities Clause as quite inscrutable.” John Hart Ely, Democracy and Distrust 98 (1980).
[2.]6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230).
[3.]For recent examples see Raoul Berger, “Constitutional Interpretation and Activist Fantasies,” 82 Ky. L.J. 1, 2–6 (1993); Raoul Berger, “Bruce Ackerman on Interpretation: A Critique,” 1992 B.Y.U. L. Rev. 1035, 1041–1046.
[4.]Bork, supra note 1 at 181; see also supra pp. 39–41.
[5.]United States v. Smith, 18 U.S. (5 Wheat.) 153, 160 (1820). Chief Justice Marshall stated that if a word was understood in a certain sense “when the Constitution was framed . . . the Convention must have used the word in that sense.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824). This was the rule at common law: “If a Statute make use of a Word the meaning of which is well-known at the Common Law, such word shall be taken in the same Sense it was understood at the common Law.” 4 Matthew Bacon, A New Abridgment of the Law “Statutes” I (4) (3d ed. 1768).
[6.]Infra text accompanying notes 19 and 20.
[7.]Documents of American History 111 (Henry Steele Commager ed. 7th ed. 1963).
[8.]United States v. Wheeler, 254 U.S. 281, 294 (1920) (emphasis added). Senator Luke Poland of Maine explained that the privileges or immunities clause “secures nothing beyond what was intended by the original provision of the Constitution,” that is, Article IV. The Reconstruction Amendments’ Debates 230 (Alfred Avins ed. 1967).
[9.]United States v. Wheeler, id. 296.
[10.]Avins, supra note 8 at 104 (emphasis added).
[11.]Id. 121, 122.
[12.]Campbell v. Morris, 3 H. & Mc.H. 535, 554 (Md. 1797); Abbott v. Bayley, 23 Mass. (6 Pick.) 89, 91 (1827).
[13.]Campbell, id. 554; Abbott, id. 91.
[14.]Corfield itself stated, “we cannot accede to the proposition . . . that . . . the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state,” 6 F. Cas. at 552 (emphasis added). It is an index of the alleged “breadth” of Corfield that it denied to an out-of-state visitor the right to dredge for oysters in the host State.
[15.]Avins, supra note 8 at 122.
[16.]Id. For a narrow view of Corfield, see Phillip S. Paludan, A Covenant With Death 268 (1975).
[17.]Avins, supra note 8 at 186, 188 (emphasis added).
[18.]Id. 191 (emphasis added).
[20.]Id. 207 (emphasis added). In a similar case the Supreme Court stated, “we should not assume that Congress . . . used the words . . . in their ordinary dictionary meaning when they had already been construed as words of art carrying a special and limited connotation.” Yates v. United States, 354 U.S. 298, 319 (1957). Walter Murphy, a critic of my views, concedes that “privileges or immunities” had “become words of art,” as Berger “amply demonstrates.” Walter Murphy, “Book Review,” 87 Yale L.J. 1752, 1758–1759 (1978).
[21.]384 U.S. 780, 791 (1966).
[22.]Avins, supra note 8 at 466 (emphasis added). This was made plain by Samuel Shellabarger in the 39th Congress: “ [The Civil Rights Bill] neither confers nor defines nor regulates any right whatever. Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike.” Id. 188 (emphasis added). James Wilson said, “We are establishing no new rights . . . It is not the object of this bill to establish new rights.” Id. 163.
[23.]Maxwell v. Dow, 176 U.S. 581, 596 (1900). In Adamson v. California, 332 U.S. 46 (1947), the Court stated, “The Slaughter-House Cases decided . . . that these rights as privileges and immunities of state citizenship, remained under the sole protection of the state governments. This Court, without the expression of a contrary view . . . has approved this determination.” Id. 51–52. And it added, “It is the construction placed upon the amendment by Justices whose own experience had given them contemporaneous knowledge of the purposes that led to the adoption of the Fourteenth Amendment.” Id. 53.
[24.]For Chemerinsky see Raoul Berger, “Constitutional Interpretation and Activist Fantasies,” 82 Ky. L.J. 1, 2–6 (1993); for Ackerman, see Raoul Berger, “Bruce Ackerman on Interpretation: A Critique,” 1992 B.Y.U. L. Rev. 1035, 1041–1046.
[25.]William Nelson, The Fourteenth Amendment: From Political Principles to Judicial Doctrine 104 (1988).
[26.]See supra pp. 32–33.
[27.]Georgia v. Rachel, 384 U.S. 780, 791 (1966) (emphasis added). The purpose of the Civil Rights Bill, said Senator William Stewart, “is simply to remove the disabilities existing by laws tending to reduce the negro to a system of peonage [the Southern Black Codes]. It strikes at that; nothing else.” Avins, supra note 8 at 204.
[28.]Avins, supra note 8 at 122.
[29.]See supra p. 33.
[30.]Bickel 1, 61, 62.
[31.]John Hart Ely, “Constitutional Interpretivism: Its Allure and Impossibility,” 53 Ind. L.J. 399, 435 note 129 (1978). Ely grudgingly allows that “there were some actual statements of equivalence, but that they are rare, and generally couched in terms that made clear the speaker’s understandable desire to minimize the potentially radical sweep of the constitutional language.” Id. Baldly stated, the speakers allegedly sought to conceal from Congress and the people that the words had a “radical sweep.” For this there is no evidence, and if there were, concealment of material facts voids ratification. Ely’s claim that statements of equivalence were “rare” is belied by the facts. See supra pp. 32–33; see also the additional facts herein recited, infra text accompanying notes 36–45.
[32.]Paul Dimond, “Strict Construction and Judicial Review of Racial Discrimination Under the Equal Protection Clause: Meeting Raoul Berger on Interpretivist Grounds,” 80 Mich. L. Rev. 462, 495 (1982).
[33.]Michael Zuckert, “Book Review,” 6 Const. Commentary 149, 162 (1991).
[35.]Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908).
[37.]Joseph James, The Framing of the Fourteenth Amendment 161 (1965).
[40.]Michael K. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 252 note 46 (1986).
[41.]James, supra note 37 at 179.
[42.]Horace Flack, The Adoption of the Fourteenth Amendment 153 (1908). Summarizing Flack, Justice Black stated, “The declarations and statements of newspapers, writers and speakers . . . show very clearly the general opinion held in the North. That opinion, briefly stated, was that the Amendment embodies the Civil Rights Bill.” Adamson v. California, 332 U.S. 46, 110 (1947), dissenting opinion.
[43.]Cong. Globe (42d Cong., 1st Sess.) App. 151 (1871).
[44.]Livestock Dealers’ & Butchers’ Ass’n v. Crescent City Live-Stock & Slaughter-House Co., 15 F. Cas. 649, 655 (Cir. Ct. D. La. 1870) (No. 8408).
[45.]83 U.S. (16 Wall.) 36, 96 (1872).
[46.]Avins, supra note 8 at 98.
[48.]Id. at Sen. App. 219.
[49.]Avins, supra note 8 at 548 (emphasis added).
[51.]See supra pp. 41–42; pp. 45–46.
[52.]Gordon S. Wood, The Creation of the American Republic, 1776–1789 63 (1969). “ [T]o the eighteenth-century understanding in general, virtue was ‘a positive passion for the public good’ . . . Virtue enabled men to put the good of the whole above selfish private advantage . . .” Stanley Elkins and Eric McKittrick, The Age of Federalism 535 (1993).
[53.]Alpheus T. Mason, The States Rights Debate: Antifederalism and the Constitution 75 (1964). The “framers of the Constitution and the Bill of Rights believed that state governments were, in some vital respects, safer repositories of power over individual liberties than the federal government.” Michael W. McConnell, “Book Review,” 54 U. Chi. L. Rev. 1484, 1505–1506 (1987). Benjamin Wright noted that respecting proposals of bills of rights in the ratifying conventions in Massachusetts, South Carolina, and New Hampshire, “members of these conventions were much more perturbed about the rights and powers of the states than about the rights of the people.” Benjamin F. Wright, American Interpretations of Natural Law: A Study in the History of Political Thought 146 (1931).
[54.]Justice Brennan, the leading proponent of individual rights, acknowledged that “The original document, before addition of any of the amendments, does not speak primarily of the rights of men, but of the abilities and disabilities of government.” William J. Brennan, Address, Georgetown Univ., Oct. 11, 1985, reprinted in The Great Debate: Interpreting Our Constitution 18 (1986).
[55.]Wood, supra note 52 at 63. Forrest McDonald commented that “the liberty of the individual [was] subsumed in the freedom or independence of his political community.” Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 71 (1985).
[56.]Louis Henkin, “Human Dignity and Constitutional Rights,” in The Constitution of Rights 210, 213–214 (Michael J. Meyer and William A. Parent eds. 1992); see Pendleton, infra text accompanying note 60.
[57.]John W. Gough, Fundamental Law in English Constitutional History 39 note 3 (1955).
[58.]See supra pp. 30–31. By “liberty” Blackstone meant “the power of locomotion . . . moving one’s person to whatsoever place one’s own inclination may direct.” Supra p. 31. That was one of the rights the Civil Rights Act of 1866 provided, as Senator Lyman Trumbull explained— “the right to come and go at pleasure,” supra text accompanying note 28, a right that thwarted the Black Codes’ attempt to confine blacks to their habitat.
[59.]Documents of American History 80 (Henry Steele Commager ed. 7th ed. 1963). James Otis and Samuel Adams wrote on December 20, 1765, that “The primary, absolute, natural rights of Englishmen . . . are Personal Security, Personal Liberty and Private Property. ” 1 The Writings of Samuel Adams 65 (Harry A. Cushing ed. 1904) (emphasis in original).
[60.]3 Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 301 (1836).
[61.]Unsigned article in Francis Lieber, ed., Encyclopaedia Americana, reprinted in James McClellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought With Selected Writings 313, 315 (1971).
[62.]1 James Kent, Commentaries on American Law 607 (9th ed. 1858).
[63.]Avins, supra note 8 at 164.
[64.]Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale L.J. 1063, 1087 (1981) (emphasis in the original).
[65.]Michael Perry, The Constitution, the Courts, and Human Rights 91–92 (1982).
[67.]1 Annals of Congress 454 (emphasis added).
[68.]In Federalist No. 82 at 534 (Mod. Lib. ed. 1937), Hamilton stated, “the states will retain all preexisting authorities which may not be exclusively delegated to the federal head.” In short, what was not delegated (enumerated) is retained.
[69.]1 Annals of Congress 456 (emphasis added). Justice Story wrote that the Ninth Amendment “was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others.” Joseph Story, Commentaries on the Constitution of the United States §1007 (5th ed. 1905).
[70.]Griswold v. Connecticut, 381 U.S. 479, 519 (1965). Black relied on the Annals of Congress, supra note 67 at 452: “The exceptions here or elsewhere in the constitution, made in favor of particular rights shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution,” that is, as declaratory of existing limitations.
[71.]Even Lawrence Tribe, whose fertile imagination enables him to toss off novel theories for libertarian goals, “points out the impossibility of viewing the Ninth Amendment as the source of rights.” Sanford Levinson, “Constitutional Rhetoric and the Ninth Amendment,” 64 Chi.-Kent L. Rev. 131 (1988), reprinted in The Rights Retained by the People 115, 126 (Randy E. Barnett ed. 1993).
[72.]Randy E. Barnett, introduction to The Rights Retained by the People (Randy E. Barnett ed. 1993). For a critique, see Raoul Berger, “The Ninth Amendment, as Perceived by Randy Barnett,” 88 Nw. U. L. Rev. 1508 (1994).
[73.]Barnett, introduction, id. 10, 11.
[74.]Barnett believes that the rights retained by the people “are limited only by their imagination,” that they are “unenumerable because the human imagination is limitless.” Id. 8, 9.
[75.]See infra Supplementary Note on Incorporation, text accompanying notes 87–91.
[1.]The Reconstruction Amendments ’ Debates 143 (Alfred Avins ed. 1967).
[2.]Id. 237. A leading Reconstruction historian, C. Vann Woodward, concluded that section 2 of the Fourteenth Amendment “was not primarily devised for the protection of the negro and the provision of negro equality. Its primary purpose . . . was to put the southern states” under Northern control. C. Vann Woodward, “Seeds of Failure in Radical Race Policy,” in New Frontiers of the American Reconstruction 135 (Harold M. Hyman ed. 1966). For confirmatory historical facts, see Raoul Berger, “Cottrol’s Failed Rescue Mission,” 37 B.C. L. Rev. 481, 484–485 (1986). In 1862, John Bingham stated in the 37th Congress that we have “no power whatever over” the right to vote. “The right to vote does not involve the right to citizenship.” “The Federal Government has no power to regulate the elective franchise in any state.” Avins, supra note 1 at 37.
[3.]Avins, id. 94. Justice Harlan, who carefully combed the debates, stated, “Not once, during the three days of debate, did any supporter of the Amendment criticize or correct any of the Republicans or Democrats who observed that the Amendment left the ballot exclusively under the control of the States.” Oregon v. Mitchell, 400 U.S. 112, 186 (1970), dissenting in part. For an example of willful disregard of crystal-clear evidence, consider the comments of Justices Brennan, White, and Thurgood Marshall on Justice Harlan’s evidence: “We could not accept this thesis even if it were supported by historical evidence far stronger than anything adduced here today. But in our view, our Brother Harlan’s historical analysis is flawed by his ascription of 20th-century meanings to the words of 19th-century legislators. In consequence, his analysis imposes an artificial simplicity upon a complex era, and presents, as universal, beliefs that were held by merely one of several groups competing for political power. We can accept neither his judicial conclusion nor his historical premise that the original understanding of the Fourteenth Amendment left it within the power of the States to deny the vote to Negro citizens.” Oregon v. Mitchell, 400 U.S. at 251. They brush off the unequivocal explanations of the chairman of the Joint Committee on Reconstruction, of the Senate spokesman who sought to explain the bill, and of the Joint Committee itself. On this issue there were no opposing remarks.
[4.]Raoul Berger, “The Fourteenth Amendment: Light From the Fifteenth,” 74 Nw. U. L. Rev. 311, 321–323 (1979). Reprinted in Raoul Berger, Selected Writings on the Constitution 148 (1987).
[5.]United States v. Reese, 92 U.S. 214, 217–218 (1875); Minor v. Hapersett, 88 U.S. (21 Wall.) 162, 175 (1874). In March 1869, William Higby, who had been a member of the 39th Congress, stated that the Fifteenth Amendment “insures certain rights . . . not expressed in any part of the Constitution.” Avins, supra note 1 at 417.
[6.]Griswold v. Connecticut, 381 U.S. 479–501 (1965).
[7.]Henry Abraham, “Book Review,” 6 Hastings Const. L.Q. 467–468 (1979); Robert Dixon, “Reapportionment in the Supreme Court and Congress: Constitutional Struggle for Fair Representation,” 63 Mich. L. Rev. 209, 212 (1964); Ward E. Y. Elliott, The Rise of a Guardian Democracy 127 (1974); Gerald Gunther, “Too Much a Battle With Strawmen,” Wall St. J., Nov. 25, 1977, at 4; Morton Keller, Affairs of State 66 (1977); Wallace Mendelson, “Book Review,” 6 Hastings Const. L.Q. 437, 452–453 (1979); Nathaniel Nathanson, “Book Review,” 56 Tex. L. Rev. 579, 581 (1978). For additional citations see Berger, supra note 4 at 311 note 4.
[8.]William Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 3 (1988).
[9.]Id. 125. “Most congressional Republicans were aware of (and shared) their constituents’ hostility to black suffrage.” Keller, supra note 7 at 66–67.
[10.]Nelson, supra note 8 at 6.
[11.]Daniel Farber wrote that Nelson “devotes virtually no attention to those debates.” Daniel Farber, “Book Review,” 6 Const. Commentary 364–365 (1989). For a critique of Nelson’s views, see Raoul Berger, “Fantasizing About the Fourteenth Amendment,” 1990 Wis. L. Rev. 1043.
[12.]Reynolds v. Sims, 377 U.S. 533, 558 (1964).
[13.]Oregon v. Mitchell, 400 U.S. 112, 278 (1970), dissenting in part.
[14.]Address by Justice Brennan, Georgetown Univ., Oct. 1, 1985, in The Great Debate: Interpreting the Constitution 11, 22 (1986).
[15.]The Great Debate, supra note 14 at 24.
[16.]John Hart Ely, Democracy and Distrust 200 note 70 (1980). Ely was anticipated by Judge John Gibbons, “Book Review,” 31 Rutgers L. Rev. 839, 845 (1978). My failure to regard the Fifteenth Amendment as evidence of the abatement of racism is labeled by Gibbons as a “glaring example” of “a narrow, confused, partisan example of special pleading.” Id.
[17.]William Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 46–47, 49–50 (1965).
[18.]For citations see Berger, supra note 4 at 317 note 34.
[19.]Gillette, supra note 17 at 34.
[21.]For citations see Berger, supra note 4 at 317 note 37.
[22.]Cong. Globe (40th Cong., 3d Sess.) 672 (1869).
[1.]Paul Brest, “Book Review,” N.Y. Times, Dec. 11, 1977, §7 at 10. Judge Richard Posner observed, “No constitutional theory that implies that Brown . . . was decided incorrectly will receive a fair hearing nowadays, though on a consistent application of originalism it was decided incorrectly.” Richard A. Posner, “Bork and Beethoven,” 42 Stan L. Rev. 1365, 1374 (1990). Lino Graglia comments that “it is politically disqualifying and socially unacceptable to disapprove of Brown.” Lino A. Graglia, “ ‘Interpreting’ the Constitution: Posner on Bork,” 44 Stan. L. Rev. 1019, 1037 (1992).
[2.]Aviam Soifer, “Protecting Civil Rights: A Critique of Raoul Berger’s History,” 54 N.Y.U. L. Rev. 651, 654–655 (1979).
[3.]William M. Wiecek, “The Constitutional Snipe Hunt,” 23 Rutgers L.J. 253–254 (1992).
[4.]Supra p. 137.
[5.]Henry J. Abraham, “Essay Review,” 6 Hastings Const. L.Q. 467, 467–468 (1979); Bruce Ackerman, We the People: Foundations 133, 135 (1991); Larry Alexander, “Modern Equal Protection Theories: A Metatheoretical Taxonomy and Critique,” 42 Ohio St. L.J. 3, 6 (1981); Dean Alfange, Jr., “On Judicial Policymaking and Constitutional Change: Another Look at the ‘Original Intent’ Theory of Constitutional Interpretation,” 5 Hastings Const. L.Q. 603, 622, 606–607 (1978); Alexander M. Bickel, The Least Dangerous Branch 100 (1962); Paul Brest, supra note 1 at 10; Robert H. Bork, The Tempting of America: The Political Seduction of the Law 75–76 (1990); Randall Bridwell, “Book Review,” 1978 Duke L.J. 907, 913; John Burleigh, “The Supreme Court vs. the Constitution,” 50 Pub. Interest 151, 154 (1978); 6 Charles Fairman, History of the Supreme Court of the United States 1179 (1971); Lino A. Graglia, “ ‘Interpreting the Constitution: Posner on Bork,” 44 Stan. L. Rev. 1019, 1037 (1992); Howard Jay Graham, Everyman’s Constitution 290 note 70 (1968); Justice Robert H. Jackson in Richard Kluger, Simple Justice 689 (1976); Michael J. Perry, “Interpretivism, Freedom of Expression, and Equal Protection,” 42 Ohio St. L.J. 261, 295 note 144 (1981); Richard Posner, “Bork and Beethoven,” 42 Stan. L. Rev. 1365, 1374–1375 (1990); David A. J. Richard, “Abolitionist Political and Constitutional Theory and the Reconstruction Amendments,” 25 Loyola L.A. L. Rev. 1187, 1188 (1992); Douglas Martin, “Yale Chief Opens Constitution Talks by Faulting Meese,” N.Y. Times, Feb. 22, 1987, at 46; Mark Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harv. L. Rev. 781, 800 (1983); G. Edward White, Earl Warren: A Public Life 360–361 (1982).
[6.]Perry, supra note 5 at 295.
[8.]Kluger, supra note 5 at 635. In May 1866, the Senate passed a bill to donate land “for schools for colored children in the District of Columbia.” The Reconstruction Amendments’ Debates 218 (Alfred Avins ed. 1967).
[9.]Kelly, Fourteenth 1049, 1085 (1956).
[10.]When Senator Henry Wilson introduced a bill for equal suffrage in the District of Columbia, he lamented that “state constitutions and State laws . . . block up the way, and we may not overleap the barriers.” Phillip S. Paludan, A Covenant With Death 50 (1975).
[11.]Avins, supra note 8 at 163.
[12.]Raoul Berger, “The Fourteenth Amendment: Light From the Fifteenth,” 74 Nw. U. L. Rev. 311, 329 (1979).
[14.]Id. The Act was set aside in the Civil Rights Cases, 109 U.S. 3 (1883). Justice Bradley, who was a contemporary of the Fourteenth Amendment, stated that it “does not authorize Congress to create a code of municipal law for the regulation of private rights.” Id. 11. James Wilson had assured the framers, “We are not making a general criminal code for the States.” Globe 1120. John Bingham objected to the words “civil rights” in the Civil Rights Bill of 1866 on the ground that they would “reform the whole civil and criminal code of every State government”; they were deleted. Raoul Berger, The Fourteenth Amendment and the Bill of Rights 25–26 (1989).
[15.]Arthur M. Schlesinger, Jr., The Disuniting of America 14 (1992).
[16.]“Opinions Considered: A Talk With Tom Wicker,” N.Y. Times, Jan. 5, 1992, sec. 4 at 4.
[17.]Roger Wilkins, “Racial Outlook: Lack of Change Disturbs Blacks,” N.Y. Times, Mar. 3, 1978, §A at 26.
[18.]1 Historians at Work 271 (Peter Gay et al. eds. 1975).
[19.]163 U.S. 537 (1896).
[20.]H. G. Richardson & G. O. Sayles, “Parliament and Great Councils in Medieval England,” 77 L.Q.R. 213, 224 (1961).
[21.]Kluger, supra note 5 at 654.
[22.]59 Mass. (5 Cush.) 198 (1849).
[24.]State v. Cincinnati, 19 Ohio 178, 198 (1850).
[25.]State ex rel. Garnes v. McCann, 20 Ohio St. 198, 211 (1871).
[26.]State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 348 (1872).
[27.]Ward v. Flood, 48 Cal. 36 (1874).
[28.]Cory v. Carter, 48 Ind. 327, 359 (1874).
[29.]Bertonneau v. Bd. of Directors, 3 F. Cas. 294 (Cir. Ct. D. La. 1878) (No. 1, 361).
[30.]People ex rel. King v. Gallagher, 93 N.Y. 438, 449 (1883).
[31.]Supra p. 3.
[32.]Robert H. Bork, The Tempting of America: The Political Seduction of the Law 76 (1990), hereinafter Bork (emphasis added).
[37.]Id. Lino Graglia concluded that “The purpose of the Fourteenth Amendment was not ‘equality before the law’ between blacks and whites, as the Fifteenth Amendment shows; the Fourteenth was not understood to guarantee blacks the right to vote, and it is fairly clear that ‘equal protection’ was understood as not prohibiting state antimiscegenation laws, state imposed racial segregation of schools or state laws excluding blacks from jury service.” Graglia, supra note 1 at 1038.
[38.]386 U.S. 457 (1967).
[39.]Herbert Wechsler observed that there is “a burden of persuasion on those favoring national intervention” in state matters. Herbert Wechsler, “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government,” 54 Colum. L. Rev. 543, 545 (1954). The Constitution, stated Justice Brandeis, “preserves the autonomy and independence of the States”; federal supervision of their action “is in no case permissible except as to matters specifically delegated to the United States. Any interference . . . except as thus permitted is an invasion of the authority of the States.” Erie R.R. Co. v. Tompkins, 304, U.S. 64, 78–79 (1938) (emphasis added).
[40.]Supra text accompanying note 7.
[41.]Supra text accompanying note 9.
[43.]John H. Ely, Democracy and Distrust 98 (1980).
[46.]Donald, Sumner II 153.
[47.]Globe 257. For similar remarks see supra pp. 13–14.
[48.]Globe 688. For similar expressions see supra p. 72.
[49.]Infra pp. 195–196.
[50.]Infra pp. 32–33.
[51.]Livestock Dealers’ and Butchers’ Ass’n v. Crescent City Live-Stock Landing Co., 15 F. Cas. 649, 655 (C. C. D. La. 1870) (No. 8, 408).
[53.]Supra p. 33.
[54.]Georgia v. Rachel, 384 U.S. 780, 791 (1966).
[55.]Globe 121 (emphasis added).
[56.]Id. 193 (emphasis added).
[59.]Lino Graglia, “ ‘Interpreting’ the Constitution: Posner on Bork,” 44 Stan. L. Rev. 1019, 1043–1044 (1992). Graglia justly comments that “ ‘flexible interpretation’ [is] a euphemism for short-circuiting the amendment process.” Id. 1030.
[1.]William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 117 (1988).
[2.]Duncan v. Louisiana, 391 U.S. 145, 173 (1968).
[3.]Adamson v. California, 332 U.S. 46 (1947). Compare Supplementary Note on the Civil Rights Act, text accompanying note 17. The Court, however, as Thomas Grey observed, “clearly has declined” to accept “the flimsy historical evidence” mustered by Black. Thomas C. Grey, “Do We Have an Unwritten Constitution?” 27 Stan. L. Rev. 703, 711–712 (1975); see infra text accompanying note 28.
[4.]Akhil R. Amar, “The Bill of Rights and the Fourteenth Amendment,” 101 Yale L.J. 1193, 1246 (1992) (emphasis added).
[5.]Amar himself states that “nothing in the text of the [Fourteenth Amendment] would lead an average reader to understand” that the three words “privileges or immunities” encapsulated the first eight amendments. Id. 1244.
[6.]Minor v. Happersett, 88 U.S. (21 Wall.) 162, 173 (1974). For additional citations see supra Supplementary Note on the Introduction, note 43. In the Civil Rights Cases, 109 U.S. 3, 11 (1883), Justice Bradley, a contemporary of the Amendment, declared that §5 “does not authorize Congress to create a code of municipal law for the regulation of private rights.”
[7.]Horace E. Flack, The Adoption of the Fourteenth Amendment 153 (1908).
[8.]Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stan. L. Rev. 5, 68, 69 (1949).
[9.]Michael B. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 2 (1986). After citing Curtis, Lino Graglia wrote, “there is very little basis for the implausible proposition that the States that ratified the Fourteenth Amendment understood that it would ‘incorporate’ the Bill of Rights, making its restrictions applicable to the states, thereby subjecting the states to both expanded federal legislative powers and expanded federal court supervision.” Lino A. Graglia, “ ‘Interpreting’ the Constitution: Posner on Bork,” 44 Stan. L. Rev. 1019, 1033–1034 (1992).
[10.]Michael K. Curtis, “The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger,” 16 Wake Forest L. Rev. 45, 57 (1980).
[12.]See infra Supplementary Note on Abolitionist Influence, text accompanying notes 14–22.
[13.]Amar, supra note 4 at 1250.
[14.]Supra text accompanying note 6.
[15.]83 U.S. (16 Wall.) 36, 78 (1972).
[16.]Alpheus T. Mason, Brandeis: A Free Man’s Life 566 (1946). Brandeis believed that the New Dealers’ “headlong drive for national power threatened . . . to destroy one of the great bulwarks of liberty—federalism.” Id. 558.
[17.]See Raoul Berger, The Fourteenth Amendment and the Bill of Rights 128, 142 (1989).
[18.]For citations see id. 128.
[19.]Nelson, supra note 1 at 122. The most recent critic of those views acknowledges that they are “representative of a broadly held scholarly view.” Curtis, supra note 9 at 113.
[20.]Michael Zuckert, “Book Review,” 8 Const. Commentary 149, 160 (1991).
[21.]Jacobus tenBroek, Equal Under Law 127 (1965).
[23.]Kelly, Fourteenth 1049, 1073 note 88.
[24.]Leonard Levy, Judgments: Essays on American Constitutional History 77 (1972).
[25.]Zuckert, supra note 20 at 156.
[26.]Michael J. Perry, “Book Review,” 78 Colum. L. Rev. 685, 690 (1978). In Federalist No. 17 at 103 (Mod. Lib. ed. 1937), Hamilton stated that the “one transcendent advantage belonging to the province of the State governments” was “the ordinary administration of criminal and civil justice.” Garry Wills observed that to Madison and Hamilton “It seemed inconceivable . . . that a central authority could or would want to descend to enforcement of local laws.” Garry Wills, “Introduction” to The Federalist Papers of Alexander Hamilton, James Madison, and John Jay xiv (1982).
[27.]322 U.S. 46, 51–53 (1947); Slaughter-House Cases, 82 U.S. (16 Wall.) 36, 53 (1972).
[28.]Bartkus v. Illinois, 359 U.S. 121, 124 (1959).
[29.]Fairman “conclusively disproved Black’s contention, at least, such is the weight of opinion among disinterested observers.” Alexander Bickel, The Least Dangerous Branch 102 (1962).
[30.]Michael J. Perry, “Interpretivism, Freedom of Expression, and Equal Protection,” 42 Ohio St. L.J. 261, 285–286 (1981).
[31.]Dean Alfange, Jr., “Book Review,” 5 Hastings Const. L.Q. 603, 607 (1978); Bickel, supra note 29 at 102; John Hart Ely, “Constitutional Interpretivism: Its Allure and Impossibility,” 53 Ind. L.J. 399, 432 (1978); Henry J. Friendly, “The Bill of Rights as a Code of Criminal Procedure,” 53 Calif. L. Rev. 929, 934 (1965); Lino Graglia, “ ‘Interpreting’ the Constitution: Posner on Bork,” 44 Stan. L. Rev. 1019, 1033–1034 (1992); Grey, supra note 3 at 711–712 (the Court “clearly has declined” to accept “the flimsy historical evidence” proffered by Black); Erwin N. Griswold, “Due Process Problems Today in the United States,” in The Fourteenth Amendment 161, 165 (Bernard Schwartz ed. 1970); Louis Henkin, “ ‘Selective Incorporation’ in the Fourteenth Amendment,” 73 Yale L.J. 74, 77 (1963); Forrest McDonald, “How the Fourteenth Amendment Repealed the Constitution,” Chronicles 29 (October 1989); Richard A. Posner, “Interpreting the Constitution: Bork and Beethoven,” 42 Stan. L. Rev. 1365, 1374 (1990) (“thoroughly illegitimate” under original intention); Mark Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harv. L. Rev. 781, 789 note 21 (1983).
[32.]Connecticut General Ins. Co. v. Johnson, 303 U.S. 77, 86 (1938), dissenting opinion.
[33.]Infra text accompanying notes 102–104.
[34.]Raoul Berger, “Incorporation of the Bill of Rights: A Response to Michael Zuckert,” 26 Ga. L. Rev. 1, 9–12 (1991).
[35.]Adamson v. California, 322 U.S. 46, 63 (1947).
[36.]32 U.S. (7 Pet.) 243 (1833).
[38.]386 U.S. 547 (1967).
[40.]Curtis, supra note 9 at 91.
[42.]Id. (emphasis added).
[43.]United States v. Arredondo, 31 U.S. (6 Pet.) 691, 725 (1832).
[44.]Infra pp. 195–196.
[45.]Curtis, supra note 9 at 84.
[46.]Campbell v. Morris, 3 H. & McH. 535, 554 (Md. 1797); Abbott v. Bayley, 6 Pick. 89, 91 (Mass. 1827).
[47.]The Reconstruction Amendments’ Debates 466 (Alfred Avins ed. 1967).
[49.]88 U.S. (21 Wall.) 162, 171 (1874).
[50.]302 U.S. 319, 325 (1937).
[51.]1 Annals of Cong. 435, 755.
[52.]83 U.S. (16 Wall.) 36 (1872).
[54.]Adamson v. California, 322 U.S. 46, 74 (1947).
[55.]Supra text accompanying notes 17–19.
[56.]Avins, supra note 47 at 150.
[58.]Curtis, supra note 9 at 64; Globe 1291.
[62.]Avins, supra note 47 at 188.
[64.]For citations see supra pp. 165–166.
[65.]Cong. Globe (39th Cong., 2d Sess.) 816 (1867).
[66.]Avins, supra note 47 at 186, 188, 191.
[67.]Benjamin Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 257, 192 (1914).
[68.]Avins, supra note 47 at 220 (emphasis added).
[69.]Infra pp. 195–196.
[71.]Avins, supra note 47 at 230.
[75.]Leonard Levy, Judgments: Essays in American Constitutional History 77 (1972).
[76.]William E. Nelson, “History and Neutrality in Constitutional Adjudication,” 72 Va. L. Rev. 237, 253 (1986). A fellow activist, Harold Hyman, considers that Fairman’s article “shaped much of the constitutional field.” Harold Hyman, “Federalism: Legal Fiction or Historical Artifact?” 1987 B.Y.U. L. Rev. 905, 924. Alexander Bickel, who himself had canvassed the legislative history of the Fourteenth Amendment, regarded Fairman’s article as “conclusive.” Bickel, supra note 31 at 102.
[77.]Raoul Berger, The Fourteenth Amendment and the Bill of Rights 141, 142 (1989). Curtis reminds one of Dr. Samuel Johnson’s “When I was beginning in the world and was nothing and nobody, the joy of my life was to fire at all the established wits, and then everybody loved to halloo me on.” Louis Biancolli, The Book of Great Conversations 144 (1948).
[78.]Fairman was chosen to cover the Reconstruction era for the history of the Supreme Court of the United States under the Justice Holmes bequest.
[79.]Albert J. Nock, Jefferson 287 (1926). In a letter to Justice Holmes, Harold Laski considered it to be a just criticism that a writer “has no sense of the proportional value of his authorities.” 2 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 1463 (Mark de W. Howe ed. 1953).
[80.]McDonald, supra note 31 at 31.
[81.]John W. Gough, Fundamental Law in English Constitutional History 39 note 3 (1955).
[82.]Samuel Adams, The Writings of Samuel Adams 65 (Harry A. Cushing ed. 1904); 1 William Blackstone, Commentaries on the Laws of England 125, 129, 138 (1765).
[83.]Blackstone, supra note 82 at 134.
[84.]Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 Sup. Ct. Rev. 119, 154–155.
[85.]Supra Supplementary Note on the Civil Rights Act and the Fourteenth Amendment, text accompanying notes 14–18, 23–28, 36–51.
[86.]Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale L.J. 1063, 1087 (1981) (emphasis added); Paul Brest, “The Misconceived Quest for Original Understanding,” 60 B.U. L. Rev. 204, 236 (1980): “Many of what we have come to regard as the irreducible minima of Rights are actually supra-constitutional; almost none of the others are entailed by the text or original understanding.”
[87.]Michael J. Perry, The Constitution, the Courts, and Human Rights 91, 92 (1982).
[88.]Hearings on the Supreme Court Before the Senate Subcommittee on the Separation of Powers (90th Cong., 2d Sess.) 98 (June 1968).
[89.]Henry P. Monaghan, “Our Perfect Constitution,” 56 N.Y.U. L. Rev. 353, 354 (1981). Why, asked G. Edward White, should the Court “not openly acknowledge that the source of [newly invented] rights is not the constitutional text but the enhanced seriousness of certain values in American society.” G. Edward White, “Reflections on the Role of the Supreme Court: The Contemporary Debate and the ‘Lessons’ of History,” 63 Judicature 162, 168 (1979). It is “virtually impossible [to justify providing protection for minorities] on the ground that [the Court] is doing no more than ‘finding’ the law of the Constitution and fulfilling the intentions of its framers.” Jesse H. Choper, Judicial Review and the National Political Process 137 (1980). See also Terrance Sandalow, “The Distrust of Politics,” 56 N.Y.U. L. Rev. 446, 460 (1981).
[90.]Foucha v. Louisiana, 112 S.Ct. 1780, 1785 (1992). For the Founders, Gordon Wood concluded, “Liberty was realized when the citizens were . . . willing to sacrifice their private interests for the sake of the community.” Gordon S. Wood, The Radicalism of the American Revolution 104 (1992), a far cry from the current rampant individualism. See Raoul Berger, “The Ninth Amendment: As Perceived by Randy Barnett,” 88 Nw. U. L. Rev. 1508, 1509 (1994).
[91.]Michael H. v. Gerald D., 491 U.S. 110, 121 (1989) (emphasis added).
[92.]Id. 122; see Holdsworth, supra text accompanying note 81.
[93.]Reno v. Flores, 113 S.Ct. 1439, 1447 (1993).
[94.]Collins v. City of Harker Heights, 112 S.Ct. 1061, 1068 (1992).
[95.]Donald, Sumner II 299.
[96.]Zuckert, supra note 20 at 162.
[97.]Curtis, supra note 9 at 138.
[98.]Joseph B. James, The Framing of the Fourteenth Amendment 162 (1965).
[99.]Curtis, supra note 9 at 56.
[100.]Zuckert, supra note 20 at 162.
[101.]Avins, supra note 47 at 200.
[103.]Id. 204; Bingham to same effect, id. 155.
[104.]James, supra note 98 at 167. For more extended discussion of the “incorporation” issue, see supra note 17; Raoul Berger, “Incorporation of the Bill of Rights: A Nine-Lived Cat,” 42 Ohio St. L.J. 435 (1981); Raoul Berger, “Incorporation of the Bill of Rights: A Reply to Michael Curtis’ Response,” 44 Ohio St. L.J. 1 (1983).
[1.]Jacobus tenBroek, Equal Under Law (1965); Howard Jay Graham, Everyman’s Constitution (1968).
[2.]Kelly, Fourteenth 1049, 1050–1051.
[3.]Leonard Levy, Judgments: Essays in American Constitutional History 70 (1972).
[4.]William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 61 (1988).
[5.]Id. 39. The abolitionists were not only “vague,” but they were of divided counsels. David Richards, a devout activist, notes that “abolitionist political and constitutional theory . . . can be divided into at least three antagonistic schools of thought . . . Presumably, however, good historical arguments could discriminate among the various strands of abolitionist thought, and identify the one among them that critically shaped the terms of the Reconstruction amendments.” David A. J. Richards, “Abolitionist Political and Constitutional Theory and the Reconstruction Amendments,” 25 Loyola L.A. L. Rev. 1181, 1187 (1992). That “discrimination” has yet to be made.
[6.]Nelson, supra note 4 at 21.
[7.]Donald, Sumner II 202, 252. In an 1831 tour, William Lloyd Garrison found that “a greater revolution in public sentiment was to be effected in the free states—and particularly in New England —than at the South. I found contempt more bitter, opposition more active, detraction more relentless, prejudice more stubborn . . . than among slave owners themselves.” Documents of American History 278 (Henry Steele Commager ed. 7th ed. 1963) (emphasis in original).
[8.]Phillip S. Paludan, A Covenant With Death 54 (1975). See also W. R. Brock, An American Crisis: Congress and Reconstruction, 1865–1867 285 (1963). When a generous-hearted English visitor to the United States, W. M. Thackeray, first saw a Negro in 1852, he recorded: “Sambo is not my man & my brother; the very aspect of his face is grotesque & inferior. I can’t help seeing & owning this; at the same time of course denying any white man’s right to hold this fellow creature in bondage.” Gordon N. Ray, Thackeray: The Age of Wisdom, 1847–1863 216 (1958). Upon his first sight of slaves in 1834, Charles Sumner wrote, “My worst preconception of their appearance and their ignorance did not fall as low as their actual stupidity . . . They appear to be nothing more than moving masses of flesh unendowed with anything of intelligence above the brutes.” Donald, Sumner I 29.
[9.]R. B. Nye, “Comment on C. V. Woodward’s Paper,” in New Frontiers of the American Reconstruction 148, 151 (Harold M. Hyman ed. 1966).
[10.]C. Vann Woodward, The Burden of Southern History 73 (1960). Justice Holmes came to dislike the Abolitionists’ conviction that “their antagonists must be either knaves or fools.” 2 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 942 (Mark de W. Howe ed. 1953).
[11.]Globe 343–345. In his Second Annual Message, December 1, 1862, President Lincoln “submitted a draft of a constitutional amendment providing for the gradual abolition of slavery (by 1900), for compensation to slaveholders, and for colonization of the freedmen somewhere outside the United States.” Forrest McDonald, The American Presidency: An Intellectual History 356 (1994).
[12.]Benjamin Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 257 (1914).
[13.]Donald, supra note 7 at 233.
[14.]Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 155 (1975).
[16.]Graham, supra note 1 at 543, 242. “That the antislavery constitutional theory was extremely heterodox is clear.” Id. 237–238.
[17.]Michael B. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 42 (1986). Curtis, an apologist for abolitionism, recognizes that “the Constitution did not allow interference with slavery in the States.” Id. 19.
[18.]Curtis, supra note 17 at 42.
[20.]Henry P. Monaghan, “The Constitution Goes to Harvard,” 13 Harv. C.R.-C.L. L. Rev. 117, 126 (1978). For example, Senator James Patterson was “opposed to any law discriminating against [blacks] in the security and protection of life, liberty, property and the proceeds of their labor,” but “ [b]eyond this,” he stated, “I am not prepared to go,” explicitly rejecting “political and social equality.” Globe 2699.
[21.]Michael Les Benedict, A Compromise of Principle 210 (1974). Benedict found that the centrists’ work “centered in two Committees: Fessenden’s Joint Committee on Reconstruction and Trumbull’s Senate Judiciary Committee. Between them they fashioned the conservative Reconstruction program of the Thirty-ninth Congress.” Id. 146–147.
[22.]Globe 3980, 4000.
[*]For more detailed discussion, see Raoul Berger, “Natural Law and Judicial Review: Reflections of an Earthbound Lawyer,” 61 U. Cin. L. Rev. 51 (1992).
[1.]“ ‘ [T]he life and soul of English law has ever been precedent’ . . . [O]f a purely speculative basis for the law there is no trace till times that are almost modern. The law of nature, or whatever that speculative basis may be called, appears remarkably late, and when it first appears it comes largely as an attempt . . . to account for a body of customary law which has long been in existence, and whose binding character is unquestioned.” Charles H. McIlwain, The High Court of Parliament and Its Supremacy 97 (1910). See also Holdsworth, supra Supplementary Note on the Civil Rights Act and the Fourteenth Amendment, text accompanying note 57.
[2.]In re Winship, 397 U.S. 358, 381–382 (1970), dissenting opinion.
[3.]Federalist No. 39 at 249 (Mod. Lib. ed. 1937).
[4.]Herbert Muller, Uses of the Past 350 (1952). Dean Pound characterized natural law as “purely personal and arbitrary.” Roscoe Pound, “Common Law and Legislation,” 21 Harv. L. Rev. 383, 393 (1908).
[5.]3 U.S. (3 Dall.) 386, 399 (1798).
[6.]Id. 388, “against all reason.”
[7.]United States v. Worrall, 28 F. Cas. 774, 779 (C.C.D. Pa. 1798) (emphasis added).
[8.]Benjamin F. Wright, American Interpretation of Natural Law 125 (1931). No reference to “natural law” or to the “law of nature” appears in the index to 3 The Records of the Federal Convention of 1787 (Max Farrand ed. 1911).
[9.]2 Farrand, supra note 8 at 137. “The document is in the handwriting of Edmund Randolph with emendations by John Rutledge. In the text here given those portions in parentheses were crossed out in the original, italics represent changes made in Randolph’s handwriting.” Id. 137 note 6.
[10.]Louis Henkin, “Human Dignity and Constitutional Rights,” in The Constitution of Rights 210, 213–214 (Michael J. Meyer and William A. Parent eds. 1992).
[11.]Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 27 (1975). Haines noted that “it is customary to assert that the doctrine of natural rights and natural law has had little acceptance as a basis for judicial decision in the public law of the United States.” Charles G. Haines, “The Law of Nature in State and Federal Judicial Decision,” 25 Yale L.J. 617, 625 (1916).
[12.]2 Farrand, supra note 8 at 73.
[14.]1 Joseph Story, Commentaries on the Constitution of the United States §9 (5th ed. 1905). Earlier Madison opposed incorporation of the common law because it would confer “on the judicial department a discretion little short of a legislative power.” The Framers of a Constitution of enumerated powers could not have intended “to introduce in the lump, in an indirect manner . . . the vast and multifarious jurisdiction involved in the common law.” Such an “extraordinary doctrine would sap the foundation of the Constitution as a system of limited and specified powers.” The Mind of the Founders: Sources of Political Thought of James Madison 324, 318, 325 (Marvin Meyers ed. 1973). Parenthetically, mark the rejection of an “open-ended” theory so dear to activists.
[15.]Cover, supra note 11 at 169.
[16.]Miller v. McQuerry, 17 F. Cas. 335, 339 (C.C.D. Ohio 1853) (No. 9583).
[17.]23 U.S. (10 Wheat.) 66, 89–90 (1825); see also Nevada v. Hall, 440 U.S. 410, 425–426 (1979); Satterlee v. Mathewson, 27 U.S. (2 Pet.) 380, 413 (1829).
[18.]Suzanna Sherry, “The Ninth Amendment: Righting an Unwritten Constitution,” 64 Chi.-Kent L. Rev. 1001 (1989), reprinted in 2 The Rights Retained by the People 283, 284–285 (Randy E. Barnett ed. 1993).
[20.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
[22.]Funk and Wagnalls, Desk Standard Dictionary (1946).
[23.]Cover, supra note 11 at 34.
[24.]Sherry, supra note 18 at 284.
[25.]Thomas C. Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” 30 Stan. L. Rev. 843 (1978).
[26.]1 The Works of James Wilson 292, 293 (R. G. McCloskey ed. 1967).
[27.]Grey, supra note 25 at 893.
[1.]Supra pp. 322–324.
[2.]Benjamin F. Wright, The Growth of American Constitutional Law 244 (1942). This was likewise the view of Madison; see The Mind of the Founders: Sources of Political Thought of James Madison 360 (Marvin Meyers ed. 1981).
[3.]3 Va. (1 Va. Cas.) 20, 47 (1793).
[4.]3 U.S. (3 Dall.) 199, 260 (1796).
[5.]Nebbia v. New York, 291 U.S. 502, 537 (1934): “The courts are without authority to declare such [State economic] policy. With the wisdom of the policy adopted . . . the courts are both incompetent and unauthorized to deal.”
[6.]Anthony Lewis, “Historical Change in the Supreme Court,” in The Supreme Court Under Earl Warren 81 (Leonard Levy ed. 1972) (emphasis added); Arthur S. Miller & Ronald F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 689 (1960).
[7.]347 U.S. 483 (1954).
[8.]Bruce Ackerman, We the People: Foundations 133 (1991). The claim that “our ‘insulated’ judiciary has done a better job of speaking for our better selves turns out to be historically shaky.” Alexander M. Bickel, The Least Dangerous Branch 57 (1962).
[9.]Ackerman, supra note 8 at 133.
[10.]2 Crane Brinton, John B. Christopher, and Robert L. Wolff, A History of Civilization 115 (1960). From “their experiences under the Protectorate, Englishmen learned that . . . the claims of self-appointed saints to know by divine inspiration what the good life should be and to have the right to impose their notions on the ungodly could be as great a threat as the divine right of kings.” W. H. Auden, “Introduction” to Sydney Smith, Selected Writings of Sydney Smith xvi (W. H. Auden ed. 1956).
[11.]Mortimer Adler, “Robert Bork: The Lessons to Be Learned,” 84 Nw. U. L. Rev. 1121, 1125 (1990). Justice Frankfurter cautioned, “Nor should resentment against an injustice displace controlling history in judicial construction of the Constitution.” United States v. Lovett, 328 U.S. 303, 323 (1946), concurring opinion.
[12.]The Antelope, 23 U.S. (10 Wheat.) 66, 121 (1825).
[13.]Benjamin N. Cardozo, The Growth of the Law 87 (1924).
[14.]Federalist No. 41 at 249 (Mod. Lib. ed. 1937). In Tyson v. Banton, 273 U.S. 418, 446 (1927), Justice Holmes stated “that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution . . . and that the Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain,” dissenting opinion.
[15.]2 The Records of the Federal Convention of 1787 73, 78 (Max Farrand ed. 1911).
[16.]Suzanna Sherry, “The Ninth Amendment: Righting an Unwritten Constitution,” 64 Chi.-Kent L. Rev. 1001 (1989), reprinted in 2 The Rights Retained in the People 283, 293 (Randy Barnett ed. 1993).
[18.]Chief Justice Marshall stated, “The difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825). The separation of powers guards this difference.
[19.]Saul K. Padover, Jefferson 44 (abridged ed. 1970).
[20.]John Hart Ely, “Foreword: On Discovering Fundamental Values,” 92 Harv. L. Rev. 5, 35 (1978) (bracket in original).
[21.]Michael J. Perry, The Constitution, the Courts, and Human Rights 108 (1982).
[22.]Andrzej Rapaczynski, “The Ninth Amendment and the Unwritten Constitution: The Problems of Constitutional Interpretation,” 64 Chi.-Kent L. Rev. 177, 208 (1988). Stephen Macedo notes the “complexity of moral issues and the tendency of moral judgments to be colored by personal feelings.” Stephen Macedo, “Reason, Rhetoric, and the Ninth Amendment: A Comment on Sanford Levinson,” 64 Chi.-Kent L. Rev. 163, 173 (1988).
[23.]Michael J. Perry, “The Authority of Text, Tradition, and Reason: A Theory of Constitutional Interpretation,” 54 S. Cal. L. Rev. 551, 592–593 (1985).
[24.]“ [M]oral theory today is in a conceptual melange.” Larry Simon, “The Authority of the Constitution and Its Meaning: A Preface to a Theory of Constitutional Interpretation,” 58 S. Cal. L. Rev. 603, 619 (1985). The “controversy that surrounds many of the Court’s human rights cases—the death penalty and abortion cases are good examples—shows that neither the public nor the courts share a consensus on what Perry views as moral issues.” John B. McArthur, “Abandoning the Constitution: The New Wave in Constitutional Theory,” 59 Tul. L. Rev. 280, 291 (1984).
[25.]Stephen Macedo, “Originalism and the Inescapability of Politics,” 84 Nw. U. L. Rev. 1203, 1212 (1990).
[26.]Supra, text accompanying notes 2–4.
[27.]Mark Tushnet, “Truth, Justice, and the American Way: An Interpretation of the Public Law Scholarship in the Seventies,” 57 Tex. L. Rev. 1307, 1322 (1979).
[1.]Thomas C. Grey, “Do We Have an Unwritten Constitution?” 27 Stan. L. Rev. 703 (1975).
[2.]Letter to Harvard University Press, Aug. 15, 1977. Michael Perry considers the legitimacy of judicial “constitutional policymaking” the “central problem of contemporary constitutional theory.” Michael Perry, The Constitution, the Courts, and Human Rights 6 (1982).
[3.]Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825).
[4.]1 Selected Writings of Francis Bacon 138 (Mod. Lib. ed. 1937). This is a view of long standing. Bracton wrote his treatise in 1250 because there were “judges who decided cases according to their own will rather than by the authority of the laws.” Bracton, Treatise on the Laws and Customs of England 19 (Samuel Thorne ed. 1968). In a Year Book, one judge rebuked another who had stated that “law is what the judges choose.” Frederick Pollock, “Judicial Caution and Valour,” in Jurisprudence in Action 371 (1953).
[5.]2 The Works of James Wilson 502 (R. G. McCloskey ed. 1967); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874). “When once it is established that Congress possess the power to pass an act, our province ends with its construction . . . [T]he province of the courts is to pass upon the validity of laws, not to make them, and when their validity is established, to declare their meaning and apply their provisions. All else lies beyond their domain.” The Chinese Exclusion Case, 130 U.S. 581, 603 (1889), per Justice Field for a unanimous Court. The “Judicial process is too remote from conditions . . . It is not accessible to all the varied interests that are in play in any decision of great consequence . . . [I]t is in a vast, complex, changeable society, a most unsuitable instrument for the formulation of policy.” Alexander M. Bickel, The Supreme Court and the Idea of Progress 175 (1978).
[6.]Morton J. Horwitz, “The Emergence of an Instrumental Conception of American Law, 1780–1820,” in 5 Perspectives in American Legal History 287, 292 (1971). A leading activist, Charles Black, confirms that for the colonists, “The function of the judge was thus placed in sharpest antithesis to that of the Legislator,” who alone was concerned “with what the law ought to be.” Charles L. Black, Jr., The People and the Court: Judicial Review in a Democracy 160 (1960).
[7.]In his Farewell Address, Washington stated, “It is important” that our delegates “confine themselves within their respective Constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create . . . a real despotism.” George Washington, Writings 228 (John C. Fitzpatrick ed. 1940).
[8.]Louis Lusky, By What Right? 263–264 (1975). Not all activists were “dazzled”; they variously assailed the decisions as “gibberish,” “wanton”; others pointed to “lunatic,” “inconsistent” decisions, a veritable “shambles,” upon which they vainly strove “to superimpose a facade of rationality.” For the citations see Raoul Berger, “Paul Brest’s Brief for an Imperial Judiciary,” 40 Md. L. Rev. 1, 15–16 (1981).
[9.]Abram Chayes, “The New Judiciary,” 28 Harv. L. Sch. Bull. 23, 24 (Feb. 1976). Though sympathetic to judicial revisionism, Lawrence Church finds it hard to swallow cases such as Missouri v. Jenkins, 495 U.S. 33, where the lower federal courts “intervened to reform the public school system in Kansas City,” “force[d] very large tax increases,” “dictated the planning process for expenditure of the proceeds,” and in short “essentially took over the whole public policy process.” W. Lawrence Church, “History and the Constitutional Role of the Courts,” 1990 Wis. L. Rev. 1071, 1100. The “amount required to be spent grew to about $400 million in one school district”; and Church questioned “whether an expenditure of the magnitude ordered by the lower courts is constitutionally acceptable.” Id. 1100 note 97. Given that resources are finite, the State was deprived of the right to decide where expenditures are most needed.
[10.]4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 148 (Jonathan Elliot ed. 1836).
[11.]6 The Works of Alexander Hamilton 166 (H. C. Lodge ed. 1904) (the phrase was omitted in 20 The Papers of Alexander Hamilton 6 [H. C. Syrett and J. E. Cooke eds. 1962]); 3 William Blackstone, Commentaries on the Laws of England 327 (1765–1769). The Justices were pointedly excluded from any share in legislative policy making; when it was proposed by Madison and James Wilson that the Justices assist the President in exercising the veto power, the proposal was rejected because “It was quite foreign from the nature of the office to make them judges of the policy of public measures.” For citations see supra pp. 323–324.
[12.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
[13.]1 Joseph Story, Commentaries on the Constitution of the United States §426 (1905). Chief Justice Thomas Cooley, a contemporary of the Fourteenth Amendment, wrote, “a constitution is not to be made to mean one thing at one time and another some subsequent time when the circumstances may have [changed].” 1 Thomas Cooley, A Treatise on the Constitutional Limitations 123–124 (1927). He added, “the meaning of the Constitution is fixed when it is adopted.” Id. at 124. Presumably, he reflected accepted learning of the day, thereby barring the activist argument that the Fourteenth Amendment was intended to be “open-ended,” to mean one thing in 1866, and another today. See supra pp. 116–121.
[14.]Oliver Wendell Holmes, Jr., Collected Legal Papers 239 (1920).
[15.]John Marshall’s Defense of McCulloch v. Maryland 209 (Gerald Gunther ed. 1969).
[16.]Anthony Lewis, “Historical Change in the Supreme Court,” in The Supreme Court Under Earl Warren 151 (L. Levy ed. 1972). Arthur J. Miller & Ronald F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 689 (1960).
[17.]Dean Calabresi of the Yale Law School wrote, “I despise the current Supreme Court and find its aggressive, willful statist behavior disgusting.” Guido Calabresi, “What Clarence Thomas Knows,” N.Y. Times, July 28, 1991, Sec. 4 at 15.
[18.]Raoul Berger, “Justice Brennan’s ‘Human Dignity’ and Constitutional Interpretation,” in The Constitution of Rights, Human Dignity, and American Values 129, 130 (Michael J. Meyer and William A. Parent eds. 1992). Opposed to Brennan’s “human dignity” is the fact that “in every [colonial] punishment the authorities were determined to expose the offender to scorn . . . persons with a brand on their forehead or a piece of ear missing were forever exposed to the contempt” of their fellows. Gordon S. Wood, The Radicalism of the American Revolution 73 (1992). See also Raoul Berger, Death Penalties: The Supreme Court’s Obstacle Course 117–118 (1982).
[19.]Sidney Hook, Philosophy and Public Policy 28–29 (1980) (emphasis in original).
[20.]Noel Annan, “Introduction” to Isaiah Berlin, Personal Impressions xvii (1981) (emphasis in original). See also supra Supplementary Note on Exclusion of the Judiciary at note 10.
[21.]1 Wilson, supra note 5 at 292. Trevelyan wrote that England “was represented by Governors, Colonels and Captains of the British upper class, often as little suited to mix with a democratic society as oil with vinegar.” G. M. Trevelyan, Illustrated History of England 550 (1956).
[22.]Federalist No. 78 at 504 (Mod. Lib. ed. 1937). Gouverneur Morris, that deep-dyed Federalist, stated that federal judges “will never be so wild, so absurd, so mad as to pretend that they are superior to the legislative power of America.” Howard Swiggett, The Extraordinary Mr. Morris 362 (1952).
[23.]Perry, supra note 2 at 201. For the exclusion of the Justices from policymaking, see supra note 11. Perry found “no plausible textual or historical justification for constitutional policymaking by the judiciary.” Id. 24. Justice Holmes stated that “this Court always had disavowed the right to intrude its judgment upon questions of policy or morals.” Hammer v. Dagenhart, 247 U.S. 251, 280 (1918), dissenting. He was anticipated by Madison: “questions of policy and expediency are unsusceptible of judicial cognizance and decision.” James Madison, “Veto Messages,” in The Messages and Papers of the Presidents 570 (James D. Richardson comp. 1897).
[24.]Supra text accompanying note 13.
[25.]Supplementary Note on the Introduction, supra text accompanying notes 7 and 8.
[26.]Supplementary Note on the Introduction, supra text accompanying note 7.
[27.]Supra text accompanying notes 3–6. Article XXX of the 1780 Massachusetts Constitution provides that the “judicial shall never exercise the legislative or executive powers.” 1 Federal and State Constitutions, Colonial Charters 960 (Benjamin Perley Poore ed. 1877). Similar provisions are contained in a number of other State Constitutions.
[28.]Madison considered that the Constitution “can be altered by the same authority only which established it . . . a regular mode of making proper alteration has been inserted in the Constitution itself.” 3 Letters and Other Writings of James Madison 143, 145 (1865). In McPherson v. Blacker, 146 U.S. 1, 36 (1892), the Court rejected the notion that the Constitution may be “amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made.” See also Ullmann v. United States, 350 U.S. 422, 428 (1956). Even Justice Brennan assured the Senate—during his confirmation hearings—that “The only way to amend the Constitution . . . is by the method provided in the Constitution.” Sanford Levinson, “The Turn Toward Functionalism in Constitutional Theory,” 8 U. Dayton L. Rev. 567, 572 (1983), though he turned 180 degrees on the Bench.
[29.]2 Records of the Federal Convention of 1787 75 (Max Farrand ed. 1911). Chief Justice Marshall stated that “The wisdom and discretion of Congress . . . are the restraints on which the people must often rely solely, in all representative governments,” Gibbons v. Ogden, 22 U.S. (9 Wheat.), 1, 197 (1824).
[30.]Myers v. United States, 272 U.S. 52, 294–295 (1926), dissenting opinion.
[31.]Learned Hand, The Spirit of Liberty 147 (Irving Dillard ed. 1952).
[32.]Quoted by Robert Bork, “Address,” in The Great Debate: Interpreting Our Written Constitution 43, 45 (1986).
[33.]John Hart Ely, “Foreword: On Discovering Fundamental Values,” 92 Harv. L. Rev. 5, 16 (1978). The judge, wrote Learned Hand, “has no right to divinations of public opinion which run counter to its last formal expressions.” Learned Hand, supra note 31 at 14. Nonoriginalists, Leonard Levy observed, “tend to stress current values, usually their own, which they find in some philosophy or alleged consensus of which they approve, and they insist that judges ought to decide accordingly.” Leonard Levy, Original Intent and the Framers’ Constitution xv (1988).
[34.]1 William Blackstone, Commentaries on the Laws of England 269 (1765).
[35.]Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 866 (1824).
[36.]Twining v. New Jersey, 211, U.S. 78, 106–107 (1908). Justice Douglas declared, “Our personal preferences, however, are not the constitutional standard.” Zorach v. Clausen, 343 U.S. 306, 314 (1952).
[37.]Address by Judge Posner, 35 Harv. L. Bull. 34 (1987).
[38.]Owen Fiss remarks that the judge may “not . . . express his . . . personal beliefs . . . as to what is right or just.” Owen M. Fiss, “The Supreme Court, 1978 Term—Foreword: The Form of Justice,” 93 Harv. L. Rev. 1, 12–13 (1979). See also Mark V. Tushnet, “A Note on the Revival of Textualism in Constitutional Theory,” 58 S. Cal. L. Rev. 683, 690 (1985).
[39.]Benjamin N. Cardozo, The Nature of the Judicial Process 136 (1921). “ ‘There is not,’ says a distinguished writer ‘in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may contemplate the cautious and unwearied exertion of a succession of wise men, through a long course of ages, withdrawing every case, as it arises, from the dangerous power of discretion, and subjecting it to inflexible rules.’ ” Fortunatus Dwarris, A General Treatise on Statutes 713 (1848), citing Sir James Mackintosh, Of a General Discourse on the Study of the Law of Nature and Nations.
[40.]2 Farrand, supra note 29 at 73. George Mason was of the same opinion. Id. at 78. Chief Justice Marshall said, “the peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” John Marshall’s Defense of McCulloch v. Maryland 190–191 (Gerald Gunther ed. 1969). Helvering v. Davis, 301 U.S. 619, 644 (1937): “Our concern here, as often, is with power, not with wisdom.”
[41.]Supra Supplementary Note on the Civil Rights Act and the Fourteenth Amendment, text accompanying notes 52–55. Forrest McDonald observed that “the liberty of the individual [was] subsumed in the freedom of independence of his political community.” Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 71 (1985).
[42.]Supra Supplementary Note on the Civil Rights Act and the Fourteenth Amendment, text accompanying notes 58–63.
[43.]Id. text accompanying note 63.
[44.]Paul Brest, “The Misconceived Quest for the Original Understanding,” 60 B.U. L. Rev. 204, 236 (1980).
[45.]Perry, supra note 2 at 93 (emphasis added).
[46.]Federalist No. 22 at 135–136 (Mod. Lib. ed. 1937). In the Convention, James Wilson said, “The majority of people wherever found ought in all questions to govern the minority.” 1 Farrand, supra note 29 at 605.
[47.]Federalist, No. 58 at 382–383. The great historian of Rome Theodor Mommsen praised “every Constitution however defective, which gives free play to the free selfdetermination of a majority of citizens.” 3 Historians at Work 288 (Peter Gay et al. eds. 1975).
[48.]Alpheus T. Mason, The States Rights Debate: Antifederalism and the Constitution 169 (1964). Theophilus Parsons, later Chief Justice of Massachusetts, said of the extent to which men part with their natural rights upon entering society, that “the only judge is the majority.” Benjamin F. Wright, American Interpretations of Natural Law 109–111 (1931).
[49.]Sidney Hook, who united philosophy with practical wisdom, wrote, “the dictatorship of the majority [is a] bugaboo which haunts the books of political theorists but has never been found in the flesh in modern history.” Terrance Sandalow, “Judicial Protection of Minorities,” 75 Mich. L. Rev. 1162, 1191 (1977). Dean Jesse Choper considered it “virtually impossible to justify the Court’s actions [in providing vigorous protection for rights of minorities] on the ground that it is doing no more than ‘finding’ the law of the Constitution and fulfilling the intention of its framers.” Jesse H. Choper, Judicial Review and the National Political Process 137 (1980).
[50.]Randall Bridwell, “The Scope of Judicial Review: A Dirge for the Theorists of Majority Rule?” 31 S. Car. L. Rev. 617, 654 (1980).
[51.]Robert Cover, “Book Review,” New Republic, Jan. 14, 1978, at 26, 27. Mortimer Adler also dismisses “an appeal to the letter of the law or to the original intention of its framers” in order to meet cases in which “majority legislation is unjust without being unconstitutional.” Mortimer Adler, “Robert Bork: The Lessons to Be Learned,” 84 Nw. U. L. Rev. 1121, 1125, 1139 (1990).
[52.]Arthur S. Miller, “The Elusive Search for Values in Constitutional Interpretation,” 6 Hastings Const. L.Q. 487, 500 (1979): “Few have the broad gauged approach and knowledge,” Miller adds, essential to “search for and identify the values that should be sought in constitutional adjudication.” Id. 507.
[53.]Alexander Bickel observed that 5 to 4 opinions highlight “the fact that one man had the decision . . . It just makes unavoidable for everybody the awareness of the authoritarian nature of the institution, and of how narrowly that authority rests in one individual perhaps.” Hearings on the Supreme Court Before the Senate Subcommittee on the Separation of Powers 108 (90th Cong., 2d Sess., June 1968).
[54.]For instance, Marshall stated in the Virginia Ratification Convention, “If they [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution.” 3 Elliot, supra note 10 at 553–554. So Justice Story concluded: “If there be an excess by overleaping the just boundary of the power, the judiciary may generally afford the proper relief.” Story, supra note 13 at §432. There was never a hint that the courts might rewrite the Constitution. A branch that was “next to nothing” was too frail to support such a burden.
[55.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
[56.]The doctrines which Government by Judiciary challenged, observed Richard Kay, “have now become almost second nature to a generation of lawyers and scholars. Thus it is hardly surprising that the casting of a fundamental doubt on such basic assumptions should produce shock, dismay, and sometimes anger.” Richard Kay, “Book Review,” 10 Conn. L. Rev. 801 (1978). Daniel Kommers commented, “The tendency of many reviewers of Berger’s book is to dismiss his theory out of hand, in part because the modern liberal mind just cannot imagine turning the clock back to the days prior to Brown v. Board of Education and in part because of the fundamental fairness or simple justice for which Brown stands. But, as Berger suggests, if the Supreme Court’s purpose is to establish justice without reference to the original intent of the framers, then what remains to circumscribe Judicial power? Berger’s critics have given singularly unsatisfactory answers to this question.” Donald Kommers, “Role of the Supreme Court,” 40 Review of Politics, 409, 413 (1978).
[57.]Allan C. Hutchinson, “Alien Thoughts: A Comment on Constitutional Scholarship,” 58 S. Cal. L. Rev. 701 (1985). Paul Brest examined “seven representative scholars who favor one or another form of fundamental rights adjudication” and found that they espouse different theories revolving around different concepts and sources of “morals.” Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale L.J. 1063, 1067 (1981). He wrote that “no defensible criteria exist” whereby to assess “value-oriented constitutional adjudication.” Id. 1065. According to Michael Perry, activists have not come up with “a defensible nonoriginalist conception of constitutional text, interpretation and judicial role.” Michael J. Perry, “The Authority of Text, Tradition and Reason: A Theory of Constitutional Interpretation,” 58 S. Cal. L. Rev. 551, 602 (1985). John McArthur correctly concluded that in general “non-interpretivism [nonoriginalism] is merely a political argument for values non-interpretivists prefer to those in the Constitution.” John B. McArthur, “Abandoning the Constitution: The New Wave in Constitutional Theory,” 59 Tul. L. Rev. 280, 281 (1984).
[58.]See bibliography of the writings of Raoul Berger at end of the book. “ [F]ree controversy is the only road by which we poor mortals can arrive at historical truth.” George M. Trevelyan, An Autobiography and Other Essays 72 (1949).
[59.]Stanley I. Kutler, “Raoul Berger’s Fourteenth Amendment: A History or Ahistorical,” 6 Hastings Const. L.Q. 511, 523 (1979). Anthony Lewis exclaimed, “there were outrages in American life . . . no other arm of government was doing anything about them.” Anthony Lewis, “A Man Born to Act, Not to Muse,” in The Supreme Court Under Earl Warren 159 (L. Levy ed. 1972).
[60.]Buckley v. Valeo, 424 U.S. 1, 121–122 (1976). “A constitutional power may not be delegated”; United States v. Morton Salt Co. 338 U.S. 632, 647 (1950). It is a maxim of the common law: delegatus non potest delegare, i.e., a delegate cannot delegate the power delegated to him. It was restated by Locke: “The legislature cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others.” John Locke, Two Treatises of Government §141 at 380 (Peter Laslett ed. 1960).
[61.]Gerald Gunther, “Some Reflections on the Judicial Role: Distinctions, Roots and Prospects,” 1979 Wash. U. L.Q. 817, 825. In Terminiello v. Chicago, 337 U.S. 1, 11 (1948), dissenting opinion, Justice Frankfurter stated, “We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency.” For additional citations see Raoul Berger, “Paul Brest’s Brief for an Imperial Judiciary,” 40 Md. L. Rev. 1, 23 note 137 (1981).
[62.]Story, supra note 13 at § §426.
[63.]Brest, supra note 44 at 226 (emphasis added). G. Edward White asserts that “craft techniques justif[y] the judiciary’s substitution of its judgment for those of electorally accountable institutions.” G. Edward White, “Judicial Activism and the Identity of the Legal Profession,” 67 Judicature 246, 252 (1983). For a striking example of such “craft techniques,” see Bolling v. Sharpe, infra text accompanying notes 90–96.
[64.]West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 639–640 (1943). Brest overlooks that the basic issue “is not a question of judicial institutional capacity; it is rather one of constitutional legitimacy.” Henry J. Abraham, “Book Review,” 6 Hastings Const. L.Q. 467, 470 (1979) (emphasis in original).
[65.]John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 134 (1980). Woodrow Wilson wrote, “What I fear is a government of experts. God forbid that in a democratic country we should resign the task and give the government to experts.” Richard Hofstadter, Anti-Intellectualism in American Life 209 (1963).
[66.]Perry, supra note 2 at 99. Alan Dershowitz comments that the Court consists of nine men “who are generally mediocre lawyers, often former politicians . . . almost always selected on the basis of political considerations.” Alan Dershowitz, “Book Review,” N.Y. Times, Nov. 2, 1980, sec. 7 at 9. Justice Story told Chancellor Kent, “We began with first rate men for judicial trusts, and we have now got down to third rate.” James McClellan, Joseph Story and the American Constitution 80 (1971). Judge Richard Posner notes that “Judgeships normally are rewards for political service” and comments, “politics does play a large role in federal judicial selection.” “Few judges,” he considers, “in our history are thought to have performed with great distinction.” Richard Posner, The Federal Courts: Crisis and Reform 31, 42 (1985).
[67.]J. Clifford Wallace, “The Jurisprudence of Judicial Restraint: A Return to the Moorings,” 50 Geo. Wash. L. Rev. 1, 6 (1981). Shortly before his appointment to the Court, Solicitor General Robert H. Jackson wrote, “time has proved that [the Court’s] judgment was wrong on the most outstanding issues upon which it chose to challenge the popular branches.” Robert H. Jackson, The Struggle for Judicial Supremacy x (1941). Terrance Sandalow considers that the legislature is a better instrument of change than the courts because the lawmakers “are amenable to popular control through ordinary political processes,” a vital need if law is to respond “to the interests and values of the citizenry.” Terrance Sandalow, “Judicial Protection of Minorities,” 75 Mich. L. Rev. 1162, 1166 (1977).
[68.]Gerald Lynch, 63 Cornell L. Rev. 1091, 1094 (1978). Commenting on the argument that rejection of the notion that the Fourteenth Amendment incorporated the Bill of Rights would be followed by dire consequences, Lino Graglia sapiently observed, “we have very little reason to fear that the horribles will actually occur or that they would prove to be horrible . . . [T]he nation did manage to survive and prosper for most of its history with the states unrestricted by the national Bill of Rights.” Lino A. Graglia, “ ‘Interpreting’ the Constitution: Posner v. Bork,” 44 Stan. L. Rev. 1019, 1034 (1992).
[69.]Gerald Lynch, “Book Review,” 63 Cornell L. Rev. 1091, 1099 (1978).
[70.]“To the originalist the most relevant, usually dispositive consequence of a failure to follow the law is the usurpation of the right of his fellow citizens to self government.” Graglia, supra note 68 at 1047.
[71.]Walz v. Tax Comm’n, 397 U.S. 664, 678 (1970); Powell v. McCormack, 395 U.S. 486, 546, 547 (1969).
[72.]1 Cooley, Constitutional Limitations 150 (1927).
[73.]Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938).
[74.]Will Durant, The Age of Faith 1063 (1950).
[75.]35 The Writings of George Washington 229 (John C. Fitzpatrick ed. 1940).
[76.]Brest, supra note 44 at 224.
[77.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803).
[78.]Brest, supra note 44 at 225.
[79.]Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791, 2833 (1992). In Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 355 (1827), Chief Justice Marshall dissenting, joined by Justice Story, stated, “In framing an instrument, which was intended to be perpetual, the presumption is strong, that every important principle introduced into it is intended to be perpetual also.” Edmund Burke saw society as a “partnership not only by those who are living, but between those who are living, those who are dead, and those who are to be born.” Herbert Sloan, “The Earth Belongs in Usufruct to the Living,” in Jeffersonian Legacies 281, 299 (Peter Onuf ed. 1993).
[80.]Brest, supra note 44 at 234.
[81.]Douglas Martin, “Yale Chief Opens Constitutional Talk by Faulting Meese,” N.Y. Times, Feb. 22, 1987, sec. 1 at 46.
[82.]Hurtado v. California, 110 U.S. 516, 535 (1884): “the [phrase] was used in the same sense and with no greater extent.”
[83.]Charles Curtis, “Judicial Review and Majority Rule,” in Supreme Court and Supreme Rule 170, 177 (Edmond N. Cahn ed. 1954).
[84.]4 The Papers of Alexander Hamilton 35 (H. C. Syrett and J. E. Cooke eds. 1962). Edward Corwin concluded that “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.” Edward S. Corwin, The Twilight of the Supreme Court 118–119 (1934).
[85.]The Reconstruction Amendments’ Debates 479 (Alfred Avins ed. 1967).
[87.]John Hart Ely, “Constitutional Interpretivism: Its Allure and Impossibility,” 53 Ind. L.J. 399, 416 (1978). John Bingham gave due process the “customary meaning recognized by the courts.” Joseph B. James, The Framing of the Fourteenth Amendment 86–87 (1965).
[88.]Martin, supra note 81.
[89.]Supra Supplementary Note on the Introduction at note 41.
[90.]347 U.S. 497, 500 (1954).
[91.]347 U.S. 483 (1954).
[92.]Bolling v. Sharpe, 347 U.S. at 500 (emphasis added).
[93.]Supra Supplementary Note on the Introduction, text accompanying note 37.
[94.]Ely, supra note 65 at Dedication and 32.
[95.]Brest, supra note 44 at 233.
[96.]G. Edward White, Earl Warren: A Public Life 367 (1982). Warren made no bones about his revisory function: “We will pass on a document [Bill of Rights that] will not have exactly the same meaning it had when we received it from our fathers.” Id. 223. On the other hand, Marshall declared, if a word was “understood in a [certain] sense . . . when the Constitution was framed . . . the convention must have used it in that sense,” and it is that sense which is to be given effect. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824).
[97.]Mark Tushnet, “Legal Realism, Structural Review, and Prophecy,” 8 U. Dayton L. Rev. 809, 811 (1983).
[98.]Abram Chayes, “The New Judiciary,” 28 Harv. L. Sch. Bull. 23, 24 (February 1976). See also Lusky, supra Supplementary Note on the Introduction at note 16 and Lewis, id. at note 18.
[99.]Supra Supplementary Note on Exclusion of the Judiciary, text accompanying notes 1–5.
[100.]Federalist No. 78 at 504 (Mod. Lib. ed. 1937).
[101.]David Donald, Charles Sumner and the Rights of Man 193 (1970). See also supra Chapter 12 at note 4. In 1871 Senator James Nye of Nevada said that the Dred Scott “decision was an outrage upon the Constitution,” and the American people. Avins, supra note 85 at 428. And Senator Jacob Howard added, “It was a partisan political decision, the purpose of which was to establish . . . for all time to come the legality, the rightfulness and even the piety of slavery . . . The comment made upon that great wrongful judicial decision is to be seen in the dreadful war through which we have just passed.” Avins, id. at 429.
[102.]Charles Fairman, Reconstruction and Reunion, 6 History of the Supreme Court of the United States 462 (1971).
[103.]74 U.S. (7 Wall.) 506 (1868); see Raoul Berger, Selected Writings 239 (1987).
[104.]Ex parte Virginia, 100 U.S. 339, 345 (1879).
[105.]Eric Foner, “The Supreme Court’s Legal History,” 23 Rutgers L.J. 243, 245 (1992).
[107.]Phillip S. Paludan, A Covenant With Death 24 (1975).
[108.]Supra pp. 10–13, 255–256; Paludan, supra note 107 at 54, 102, 216. Paludan’s mentor, Harold Hyman, stated that “Negrophobia tended to hold even sparse Reconstruction institutions . . . at low throttle, and played a part in Reconstruction’s incompleteness.” Harold M. Hyman, A More Perfect Union 447 (1973).
[109.]Paludan, supra note 107 at 11, 49, 55.
[110.]Id. 15, 49. “No one reading the debates carefully will question the framers’ devotion to federalism, even the extreme Radicals.” Howard Jay Graham, Everyman’s Constitution 312 (1968).
[111.]Paludan, supra note 107 at 12–13.
[114.]Id. 272. Senator Lyman Trumbull, author of the Civil Rights Bill of 1866, declared in 1871, “The States were, and are now, the depositaries of the rights of the individual against encroachment. The fourteenth amendment has not changed an iota of the Constitution as it was originally framed.” Id. 59.
[117.]Supra pp. 32–33.
[118.]Raoul Berger, The Fourteenth Amendment and the Bill of Rights 23–25 (1989).
[120.]Foner, supra note 105 at 244.
[121.]William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 7 (1988) (emphasis added). Hyman observed that “A heavy phalanx of Republican politicos, including Sherman and Trumbull . . . were states rights nationalists, suspicious of any new functional path the nation travelled.” Hyman, supra note 108 at 304. He noted Republican unwillingness “to travel any road” that did not leave “the states masters of their fates.” Hyman, id. 470.
[122.]Nelson, supra note 121 at 197 (emphasis added).
[123.]Supra, Supplement to Chapter 8, text accompanying notes 95–104.
[124.]Henry P. Monaghan, “The Constitution Goes to Harvard,” 13 Harv. C.R.–C.L. L. Rev. 117, 126 (1978). “A belief in racial equality,” wrote the English scholar W. R. Brock, “was an abolitionist invention; . . . to the majority of men in the mid-nineteenth century it seemed to be condemned both by experience and by science.” W. R. Brock, An American Crisis: Congress and Reconstruction 285 (1963). Americans “clung firmly to a belief in the basic inferiority of the Negro race, a belief supported by the preponderance of nineteenth century scientific evidence.” Paludan, supra note 107 at 54.
[125.]Foner, supra note 105 at 246.
[126.]384 U.S. 780, 791 (1966).
[127.]Avins, supra note 85 at 122. Sidney George Fisher, a contemporary commentator on Reconstruction, defined “civil rights” as “the right to acquire property, to make contracts, to sue and be sued, to give testimony in court, to work for whomever he pleased” —the rights embodied in the Civil Rights Act. Paludan, supra note 107 at 217.
[128.]Supra pp. 32–33. See supra Supplementary Note on the Civil Rights Act and the Fourteenth Amendment, text accompanying notes 25–26.
[129.]Paludan, supra note 107 at 241. Pomeroy believed that the Fourteenth Amendment “mirrored the view of the rights protected under the Civil Rights Bill.” Id. 235.
[130.]Live-Stock Dealers’ and Butchers’ Ass’n v. Crescent City Live-Stock Landing & Slaughter-House Co., 15 F. Cas. 649, 655 (C. C. D. La. 1870) (No. 8408).
[131.]Raoul Berger, “Incorporation of the Bill of Rights: A Response to Michael Zuckert,” 26 Ga. L. Rev. 1, 10–11 (1991).
[1.]Thomas C. Grey, “Do We Have an Unwritten Constitution?” 27 Stan. L. Rev. 703, 705 (1975).
[2.]Robert Bork, “Foreword” to Gary L. McDowell, The Constitution and Contemporary Constitutional Theory v (1985). Jacobus tenBroek, an early neoabolitionist, wrote in 1939 that the Court “has insisted, with almost uninterrupted regularity, that the end and object of constitutional construction is the discovery of the intention of those persons who formulated the instrument.” Jacobus tenBroek, “Use by the United States Supreme Court of Extrinsic Aids in Constitutional Construction,” 27 Calif. L. Rev. 399 (1939).
[3.]Frederick Schauer, “Easy Cases,” 58 S. Cal. L. Rev. 399, 437 note 99 (1985).
[4.]Ronald Dworkin, “The Forum of Principle,” 56 N.Y.U. L. Rev. 469, 477 (1981).
[5.]Paul Brest, “Who Decides?” 58 S. Cal. L. Rev. 661, 662 (1985).
[6.]Justice Wilson noted in 1791 that judges “were objects of aversion and distrust.” 1 James Wilson, The Works of James Wilson 292 (R. G. McCloskey ed. 1967).
[7.]H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885 (1985).
[11.]Id. 934. In his Inaugural Address, President Jefferson pledged 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.” 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 446 (Jonathan Elliot ed. 1836) (emphasis in original). During the debate on ratification of the Constitution, the Federal Farmer referred to “the spirit and true meaning of the Constitution, as collected from what must appear to have been the intention of the people when they made it.” 2 The Complete AntiFederalist 322 (Herbert J. Storing ed. 1981).
[12.]Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838); see also Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 463 (1854).
[13.]Powell, supra note 7 at 947.
[15.]The Reconstruction Amendments’ Debates 506 (Alfred Avins ed. 1967).
[18.]G. Edward White, “Judicial Activism and the Identity of the Legal Profession,” 67 Judicature 246, 248 (1983) (emphasis added).
[19.]Avins, supra note 15 at 237; see supra Supplementary Note on the Introduction, text accompanying notes 27–29, and Supplementary Note on Suffrage.
[20.]Richard Kluger, Simple Justice 635 (1976).
[21.]Kelly, Fourteenth 1049, 1085.
[22.]Avins, supra note 15 at 163; see supra Supplementary Note on Segregated Schools, Supplementary Note on the Introduction, text accompanying note 37. Even critics of originalism agree that segregation was left untouched by the Fourteenth Amendment; see supra Supplementary Note on the Introduction at note 41.
[23.]Felix Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev. 217, 229 (1955).
[24.]Federal Power Comm’n v. Natural Gas Pipeline Co., 315 U.S. 575, 609 (1942), concurring. Frankfurter stated, “Legal doctrines . . . derive meaning and content from the circumstances that gave rise to them and from the purposes they were designed to serve. To these they are bound as is a live tree to its roots.” Reid v. Covert, 354 U.S. 1, 50 (1957), concurring.
[25.]John Marshall’s Defense of McCullough v. Maryland 167 (Gerald Gunther ed. 1969). “The development of our values over the course of nearly two centuries has been in the direction of strengthening belief in the wisdom of the framers’ intentions.” Terrance Sandalow, “Constitutional Interpretation,” 79 Mich. L. Rev. 1033, 1062 (1981).
[26.]Federalist No. 83 at 539 (Mod. Lib. ed. 1937).
[27.]Hans W. Baade, “ ‘Original Intention’: Raoul Berger’s Fake Antique,” 70 N.C. L. Rev. 1523, 1530 n. 63 (1992).
[28.]Oliver Wendell Holmes, Jr., Collected Legal Papers 206 (1920).
[29.]Lewis Carroll, “Through the Looking Glass,” Oxford Dictionary of Quotations 135 (3d. ed. 1979) (emphasis in original).
[30.]Table Talk: Being the Discourses of John Selden, Esq. 10 (1696).
[31.]Hobbes and Locke are quoted supra Supplementary Note on the Introduction at note 15.
[32.]A Discourse Upon the Exposicion & Understanding of Statutes 151–152 (Samuel Thorne ed. 1942). An English historian, S. B. Chrimes, concluded that “the rule of reference to the intention of the legislators . . . was certainly established by the second half of the fifteenth century.” S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century 293 (1936).
[33.]Christopher Hatton, A Treatise Concerning Statutes and Acts of Parliament and the Exposition Thereof 14–15 (1677).
[34.]11 Co. Rep. 66b, 73b, 77 Eng. Rep. 1235, 1245 (1615).
[35.]A Discourse, supra note 32 at 60 note 126. For extended discussion of the English and American sources, see Raoul Berger, “ ‘Original Intention’ in Historical Perspective,” 54 Geo. Wash. L. Rev. 296 (1986); Raoul Berger, “The Founders’ Views—According to Jefferson Powell,” 67 Tex. L. Rev. 1033 (1989); Raoul Berger, “Original Intent: The Rage of Hans Baade,” 71 N.C. L. Rev. 1151 (1993).
[36.]H. Jefferson Powell, “The Modern Misunderstanding of Original Intent,” 54 U. Chi. L. Rev. 1513, 1533 (1987).
[37.]Id. 1538 (emphasis added).
[38.]Id. 1534 (emphasis added).
[39.]Powell, supra note 7 at 899.
[40.]Contrast with Powell’s web spinning Justice Story’s admonition: “Constitutions are not designed for metaphysical or logical subtleties . . . for elaborate shades of meaning, or for the exercise of philosophical acuteness . . . the people make them, the people adopt them . . . [and] must be supposed to read them, with the help of common sense, and cannot be presumed to admit in any of them any recondite meaning or extraordinary gloss.” 1 Joseph Story, Commentaries on the Constitution of the United States, §451 (5th ed. 1905).
[41.]Oliver Wendell Holmes, Jr., Collected Legal Papers 204 (1920). Apparently reflecting Francis Lieber’s views on hermeneutics, Bouvier’s Law Dictionary speaks of “interpretation” as seeking the “meaning which those who used [the words] were desirous of expressing.”
[42.]Powell, supra note 36 at 1534 (emphasis added).
[43.]The Convention records plainly show that the Framers rejected a proposal empowering Congress to grant charters of incorporation. Incorporation of a bank had been the subject of controversy in Pennsylvania and New York, and the Framers feared that such a proposal would excite prejudice and impede ratification of the Constitution. 2 Records of the Federal Convention of 1787 616 (Max Farrand ed. 1911). Even when limited to corporations for canals the proposal was defeated by a vote of 8 to 3 a few days before the close of the Convention, at which Hamilton was present. But in 1791 he pretended to find the facts “confused.” 8 Papers of Alexander Hamilton 111 (H. C. Syrett and J. E. Cooke eds. 1965).
[44.]Papers of Hamilton, supra note 43.
[45.]Powell, supra note 7 at 895, quoting 1 J. Powell, Essay Upon the Law of Contracts and Agreements 372–373 (1790).
[46.]J. Powell, Essay, id. 372–373.
[47.]Powell, supra note 7 at 895 note 48, quoting Hewitt v. Painter, 1 Bulstrode 174, 175–176, 80 Eng. Rep. 864, 865 (1611).
[48.]Powell, supra note 7 at 895.
[49.]80 Eng. Rep. at 865 (emphasis added).
[50.]Oregon v. Mitchell, 400 U.S. 112, 200 (1970), dissenting in part.
[51.]H. Jefferson Powell, “How Does the Constitution Structure Government? The Founders’ Views,” in A Workable Government? The Constitution After 200 Years 15 (Burke Marshall ed. 1987).
[52.]Powell cites “modern students of hermeneutics” who “attack non-author based interpretation as an abstract and ultimately hopeless search for a text’s meaning.” Powell, supra note 7 at 896 note 54.
[53.] A. C. 593, H.L. (E.). I am indebted for the citation to Professor Gary McDowell of the University of London.
[54.]The exclusionary practice took off from a two-sentence statement by Justice Willes in Millar v. Taylor, 4 Burr 2303, 2332 (1769)  A.C. 630e. His was one of four seriatim opinions, and his remark went unnoticed by his Associate Justices; it made no mention of the prior common law to the contrary, and the point was not argued by counsel. See Raoul Berger, “ ‘Original Intent,’ A Response to Hans Baade,” 70 Tex. L. Rev. 1535, 1537 (1992).
[55.]Pepper v. Hart, supra note 53 at 616g.
[57.]Id. 617f. For example, “information as to the mischief aimed at,” id. 635c, which goes back to Heydon’s Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (1584).
[58.]Pepper v. Hart, supra note 53 at 617f. The point was made in Raoul Berger, “ ‘Original Intent’: The Rage of Hans Baade,” 71 N.C. L. Rev. 1151, 1168 (1993).
[59.]Pepper v. Hart, supra note 53 at 635a.
[60.]Id. 635g (quoting Reg. v. Warner  2 A.C. 256, 279); id. 637h. I came to the same conclusion; see Raoul Berger, “Original Intention in Historical Perspective,” 54 Geo. Wash. L. Rev. 296 (1986); Raoul Berger, “The Founders’ Views—According to Jefferson Powell,” 67 Tex. L. Rev. 1033, 1055–1076 (1989).
[61.]Gordon S. Wood, The Creation of the American Republic, 1776–1789 298 (1969).
[62.]Earl M. Maltz, “Federalism and the Fourteenth Amendment: A Comment on Democracy and Distrust,” 42 Ohio St. L.J. 209, 210 (1981). Lawrence Church, who is unsympathetic to originalism, recognizes that if judges “are not bound by the intent of the Founders . . . then there may be no limits at all to their power.” W. Lawrence Church, “History and the Constitutional Role of the Courts,” 1990 Wis. L. Rev. 1071, 1087–1088.
[63.]Richard S. Kay, “Book Review,” 10 Conn. L. Rev. 801, 805–806 (1978). The rule of law requires that we “be governed by the same pre-established rules and not by the whim of those charged with executing those rules.” Philip Kurland, “Curia Regis: Some Comments on the Divine Right of Kings and Courts ‘To Say What the Law Is,’ ” 23 Ariz. L. Rev. 581, 582 (1981). Justice Story praised the rules “for the construction of statutes . . . to limit the discretion of judges.” James McClellan, Joseph Story and the American Constitution 362–363 (1971). As a practical matter, resort to original intention “avoids uncertainty and arbitrariness and promotes predictability and consistent application.” J. M. Balkin, “Constitutional Interpretation and the Problem of History,” 63 N.Y.U. L. Rev. 911, 928–929 (1988).
[64.]Frank H. Easterbrook, “The Influence of Judicial Review on Constitutional Theory,” in A Workable Government? The Constitution After 200 Years 172 (Burke Marshall ed. 1987).
[65.]Mark Tushnet, “Legal Realism, Structural Review, and Prophecy,” 8 U. Dayton L. Rev. 809, 811 (1983). See also supra Supplementary Note on the Introduction at note 16.
[66.]Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale L.J. 1063, 1109 (1981). See Brest’s rejection of the rationalizations of “seven representative [activist] scholars.” Id. 1067–1089. Justice Scalia considers it a grave defect of the nonoriginalists that they have been unable to agree on an alternative theory. Antonin Scalia, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849, 862–863 (1989). He observes, “surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another,” adding that “it is hard to discern any emerging consensus among the nonoriginalists as to what this might be.” Id. 855. See supra note 52.
[67.]See the Berger citations, supra note 35.
[68.]Chief Justice Marshall stated that he could cite from the common law “the most complete evidence that the intention is the most sacred rule of interpretation.” John Marshall’s Defense of McCulloch v. Maryland 167 (Gerald Gunther ed. 1969).
[69.]Henry Monaghan observes that “any theory of constitutional interpretation which renders unimportant or irrelevant questions as to original intent, so far as that intent can be fairly discerned, is not, given our tradition, politically or intellectually defensible.” Henry P. Monaghan, “The Constitution Goes to Harvard,” 13 Harv. C. R.-C.L. L. Rev. 117, 124 (1978) (emphasis in original). For an assessment of the opposing views, see Randall Bridwell, “The Scope of Judicial Review: A Dirge for the Theorists of Majority Rule?” 31 S.C. L. Rev. 617 (1980); William Gangi, “Judicial Expansionism: An Evaluation of the Ongoing Debate,” 8 Oh. N.U. L. Rev. 1 (1981); Gary L. McDowell The Constitution and Contemporary Constitutional History (1985).
[70.]Raymond Aron, “Pensées,” N.Y. Times, Oct. 23, 1981, at E19. Chief Justice Thomas McKean told the Pennsylvania Ratification Convention, “refutation of an argument begets a proof.” 2 Elliot, supra note 11 at 54.
[71.]James Hutson, “The Creation of the Constitution: The Integrity of the Documentary Records,” 65 Tex. L. Rev. 1 (1986).
[72.]The Reconstruction Amendments’ Debates 527 (Alfred Avins ed. 1967).
[73.]Hutson, supra note 71 at 22.
[76.]1 Farrand, supra note 43 at 97–98 (Madison); id. 105 (Yates); id. 108 (King); id. 109 (Pierce); see also the confirmatory note recorded in the Journal respecting participation in the veto. 2 id. 72.
[77.]2 id. 615–616.
[79.]3 id. 375, 376.
[80.]Hutson, supra note 71 at 34.
[81.]As John Marshall asked in the Virginia Ratification Convention: “Because it does not contain all, does it contain nothing?” 3 Elliot, supra note 11 at 560.
[82.]Leonard Levy, Original Intent and the Framers’ Constitution 288 (1988). Long since Thucydides observed that “at such a distance of time [the historian] must make up his mind to be satisfied with conclusions resting upon the clearest evidence which can be had.” Daniel J. Boorstin, The Discoverers 565 (1983).
[83.]Hutson, supra note 71 at 35.
[87.]4 Elliot, supra note 11 at 446 (emphasis in the original).
[88.]Hutson, supra note 71 at 20.
[93.]Jefferson sought for the meaning of the Constitution “in the explanations of those who advocated it.” Supra text accompanying note 88. See also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 (1976); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 288 (1956).
[94.]Hutson, supra note 71 at 23.
[99.]“If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not be a fraud upon the whole American people to give a different construction of its powers.” Story, supra note 40 at §1084.
[100.]2 Farrand, supra note 43 at 183.
[104.]Federalist No. 38 at 240 (Mod. Lib. ed. 1937).
[105.]Id. No. 75 at 486, 488.
[106.]2 Elliot, supra note 11 at 291, 305.
[109.]4 id. 116.
[110.]Raoul Berger, Congress v. The Supreme Court at 120–143 (1969).
[111.]Hutson, supra note 71 at 23–24.
[112.]Berger, supra note 110, id. 140 (Marshall); id. 15 (Nicholas); id. 139 (Mason); id. 138 (Randolph); id. 202 (Pendleton); id. 139 (Madison); id. 137 (Henry).
[113.]Berger, supra note 110 at 124 (Ellsworth); id. 201–202 (Yates); 3 Farrand, supra note 43 at 220 (Martin).
[114.]Jefferson regarded The Federalist as “evidence of the general opinion of those who framed” the Constitution. Clinton Rossiter, Alexander Hamilton and the Constitution 52 (1964). Corwin wrote, “It cannot be reasonably doubted that Hamilton was here, as at other points, endeavoring to reproduce the matured conclusions of the Convention.” Edward Corwin, The Doctrine of Judicial Review 44 (1914).
[1.]3 Elliot 186.
[2.]4 Elliot 194.
[3.]Supra Chapter 17 at note 15.
[4.]Supra Chapter 7 at note 61.
[5.]“ [T]he Justices have given serious cause for suspicion that they have come to consider the Court to be above the law.” Lusky vii; and see id. 101. See Levy, supra Chapter 14 note 136; Murphy, supra Chapter 15 note 13; and Lewis, supra Chapter 17 note 56.
[6.]The Role of the Supreme Court in American Government 110 (1976). Cox does not regard the segregation decisions as “wrong even in the most technical sense,” id. 109, although he states, “Plainly, the Court was not applying customary constitutional principles.” Id. 60.
[8.]Lord Chancellor Sankey stated, “It is not admissible to do a great right by doing a little wrong . . . It is not sufficient to do justice by obtaining a proper result by irregular or improper means.” Quoted by Chief Justice Warren in Miranda v. Arizona, 384 U.S. 436, 447 (1966). Levy observes that scholars “cannot be ignored and cannot be gainsaid when they insist that any means to a justifiable end is, in a democratic society, a noxious doctrine.” Levy, Warren 190.
[9.]More fully quoted, infra note 20.
[10.]Cox states, “Nearly all the rules of constitutional law written by the Warren Court relative to individual and political liberty, equality, criminal justice, impress me as wiser and fairer than the rules they replace. I would support nearly all as important reforms if proposed in a legislative chamber or a constitutional convention. In appraising them as judicial rulings, however, I find it necessary to ask whether an excessive price was paid for enlarging the sphere and changing the nature of constitutional adjudication.” Cox, supra note 6 at 102.
[11.]Erie Ry. Co. v. Tompkins, 304 U.S. 64, 77–78 (1938).
[12.]Olmstead v. United States, 277 U.S. 438, 485 (1928).
[13.]“From the Wisdom of Felix Frankfurter,” 3 Wisdom, No. 28, p. 25 (1959), quoted by Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 209 (1973).
[14.]As Professor Charles Black stated, when urging noninterference with the Warren Court, “constitutional legality is indivisible . . . the right to wound one part of the body as you may desire is the right to destroy the life.” The People and the Court 190 (1960). Madison said, “It is our duty . . . to take care that the powers of the Constitution be preserved entire to every department of Government; the breach of the Constitution in one point, will facilitate the breach in another.” 1 Annals of Congress 500.
[15.]S. Levinson, “Fidelity to Law and the Assessment of Political Activity,” 27 Stan. L. Rev. 1185, 1200 note 68 (1975).
[16.]Grey, “Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703, 710–712 (1975). An earlier illustrative list had been furnished by Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 11–12 (1971). If effect be given to the framers’ intention, the decision in Strauder v. Virginia, 100 U.S. 303 (1879), that Negroes must be permitted to serve as jurors, was wrongly decided. See Chairman Wilson, supra Chapter 2 at note 26, the colloquy between Wilson and Delano, and remarks by Moulton and Lawrence, supra Chapter 9 at notes 25–27.
[17.]Supra Chapter 14 at notes 103–104.
[18.]J. C. Hutcheson, “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” 14 Cornell L.Q. 274, 287 (1929). See also Martin Shapiro, Law and Politics in the Supreme Court 15 (1964).
[19.]Justice Stevens recently expressed a similar view. Runyon v. McCrary, 96 S. Ct. 2586 (1976), presented the issue whether the federal Act of 1866 prohibits private schools from excluding qualified children on racial grounds:
[20.]Cf. Lino A. Graglia, Disaster by Decree (1976). Justice Rehnquist reminded us of John Stuart Mill’s statement, “The disposition of mankind, whether as rulers or as fellow citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power.” Mill, On Liberty 28 (1885), quoted in Furman v. Georgia, 408 U.S. 238, 467 (1972), dissenting opinion.
[20a.]See supra Chapter 21 at note 41.
[21.]United States v. Butler, 297 U.S. 1, 79 (1936), dissenting opinion.
[22.]“Myth and Reality in Supreme Court Drama,” 48 Va. L. Rev. 1385, 1405 (1962).
[23.]Quoted supra Chapter 15 at note 50.
[24.]Quoted in Joseph P. Lash, From the Diaries of Felix Frankfurter 113 note 3 (1975). See also Lusky 80. The Supreme Court, by Justice Frankfurter, stated, “Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment.” Rochin v. California, 342 U.S. 165, 172 (1952).
[25.]Louis Jaffe, “Was Brandeis an Activist? The Search for Intermediate Premises,” 80 Harv. L. Rev. 986, 989 (1967). In 1924 Frankfurter stated that “The due process clause ought to go.” “The Red Terror of Judicial Reform,” 40 New Republic 110, 113, reprinted in Frankfurter, Law and Politics 10, 16 (Macleish and Pritchard eds. 1939).
[26.]Attorney General Elliot Richardson resigned rather than discharge Special Prosecutor Archibald Cox at the insistence of President Nixon. Deputy Attorney General William Ruckelshaus was discharged for refusal to discharge Cox.
[27.]The People and the Court 209 (1960).
[28.]Quoted in Lash, supra note 24 at 59. Rodell referred to “the reverential awe-bred-of-ignorance, with which most Americans regarded the Court” in 1937. Nine Men 247 (1955). Professor Charles Black urges that lawyers “never cease to call the Court to account, and to urge reason upon it. Inadequate reason, lack of responsiveness to counter-argument [as in Reynolds v. Sims] —these are self-wounding sins in any court.” Address, “The Judicial Power as Guardian of Liberties,” before a symposium on “The Supreme Court and Constitutional Liberties in Modern America,” Wayne State University, Detroit, Mich., Oct. 16, 1976, at 9. Arrogation of power withheld is far worse.
[29.]Mason, supra note 22 at 1405. Mason states, “once the public recognizes the personal nature of the judicial power, it would become difficult for the judiciary to function at all.” Id. 1399.
[30.]The Bill of Rights 70 (1962); see also A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 695 (1960).
[31.]Letter to Felix Frankfurter, January 27, 1936, L. C. Rosenfield, Portrait of a Philosopher: Morris Raphael Cohen in Life and Letters 270 (1962), quoted in Lash, supra note 24 at 55. There is a “credibility gap between the Court’s pretensions and its actions.” P. B. Kurland, Politics, the Constitution and the Warren Court xxiii (1970).
[32.]Supra note 18 at 27; see also supra Chapter 7 at notes 56–57.
[33.]Cf. Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials 1146 (1975).
[34.]Quoted in H. T. Mencken, Treatise of Right and Wrong 197 (1934).
[35.]“The contrast between morality professed by society and immorality practiced on its behalf makes for contempt of law.” On Lee v. United States, 343 U.S. 747, 758–759 (1952), Justice Frankfurter, dissenting opinion.
[37.]Supra Chapter 15 at note 18.
[38.]1 Gibbon, The History of the Decline and Fall of the Roman Empire 215 (Nottingham Soc. undated) (emphasis added). He said of the Roman emperors that “they surrounded their throne with darkness, concealed their irresistible strength, and humbly professed themselves the accountable ministers of the senate, whose supreme decrees they dictated and obeyed.” Id. 303.
[1.]Raymond Aron, “Pensées,” N.Y. Times, Oct. 23, 1983, E19. Justice Thomas McKean told the Pennsylvania Ratification Convention that “refutation of an argument begets a proof.” 2 Debates in the Several State Conventions on Adoption of the Federal Constitution 541 (Jonathan Elliot ed. 1836).
[2.]Benjamin N. Cardozo, The Nature of the Judicial Process 136 (1921).
[3.]Mark Tushnet, “Legal Realism, Structural Review, and Prophecy,” 8 U. Dayton L. Rev. 809, 811 (1983).
[4.]In re Winship, 397 U.S. 358, 384 (1970), dissenting opinion.
[5.]Philip Kurland, “Curia Regis: Some Comments on the Divine Rights of Kings and Judges ‘To Say What the Law Is,’ ” 23 Ariz. L. Rev. 581, 582–583 (1981). Solicitor General Robert Jackson, soon to be a Justice, believed that “the rule of law is in unsafe hands when the courts cease to function as courts and become organs for control of policy.” Robert H. Jackson, The Struggle for Judicial Supremacy 322 (1941).
[6.]“Certainty is so essential to law, that law cannot even be just without it.”Catherine D. Bowen, Francis Bacon: The Temper of a Man 146 (1963).
[7.]Learned Hand, “The Spirit of Liberty,” in Papers and Addresses of Learned Hand 283 (Irving Dilliard ed. 1977).
[8.]J. G. A. Pocock, The Ancient Constitution and Feudal Law: A Study of English Historical Thought in the Seventeenth Century 35 (1987). Pocock expatiates: “Institutions which have survived . . . for a long time must be presumed to have solved innumerably more problems than the men of the present age can imagine, and experience indeed shows that the efforts of the living, even mustering their best wisdom for the purpose to alter such institutions in the way that seems best to their own intelligence have usually done more harm than good. The wisdom which they embody has accumulated to such a degree that no reflecting individual can in his lifetime come to the end of it, no matter how he calls philosophy and theoretical reason to his aid.” Id. 36. Long before, Hamilton said, “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.” Federalist No. 20 at 124 (Mod. Lib. ed.).
[9.]Robert Bork, “Styles in Constitutional Theory,” 26 S. Tex. L.J. 383, 385 (1985). Story was anticipated by Jefferson. In a letter to Justice William Johnson, June 12, 1823, Jefferson wrote, “Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything, mean everything or nothing, at pleasure.” Thomas Jefferson, 15 The Writings of Thomas Jefferson 450 (1903)(Andrew A. Lipscomb ed. 1903). See Raoul Berger, “Some Reflections on Interpretivism,” 55 Geo. Wash. L. Rev. 1, 7 (1986).
[10.]J. M. Balkin, “Constitutional Interpretation and the Problem of History,” 63 N.Y.U. L. Rev. 911, 932 (1988). Balkin adverts to “the possibility that a text will mean something different to a given reader in a given context than it meant to earlier readers in other contexts.” Id. This is a chameleon theory—the text changes color according to who looks at it; it torpedoes the precept that the Constitution is binding, for a document that can mean anything to anybody has no binding force. See Raoul Berger, “History, Judicial Revisionism, and J. M. Balkin,” 1989 B.Y.U. L. Rev. 759, 772–778.
[11.]Frank H. Easterbrook, “The Influence of Judicial Review on Constitutional Theory,” in A Workable Government: The Constitution After 200 Years 170, 173 (Burke Marshall ed. 1987).
[12.]Gerhard Casper, “Constitutionalism,” in 2 Encyclopedia of the American Constitution 480 (Leonard W. Levy et al. eds. 1986). In 1934, Edward S. Corwin urged the Court “to give over attempting to supervise national legislative policies on the basis of a super-constitution which, in the name of the Constitution, repeals and destroys that historic document.” Edward S. Corwin, The Twilight of the Supreme Court 182 (1934).
[1.]“The Fourteenth Amendment, The ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” 1965 S. Ct Rev. 33.
[2.]377 U.S. 533, 589 (1964).
[3.]Supra Chapter 5 at notes 102–106.
[4.]Van Alstyne 39.
[6.]Quoted, id. 41.
[7.]377 U.S. at 595.
[8.]Van Alstyne 39.
[9.]Cited, id. 49–51.
[10.]Supra Chapter 4.
[11.]Van Alstyne 50–51; Globe 428. This exchange occurred early in the session. Higby profited from the debates and later stated, “The Government of the United States does not propose or attempt to go into every one of the States now in close fellowship with the Government and represented here, and say to them that all classes of citizens without distinction of race or color shall vote. It is true that the general principle has been to leave the question to each of the States.” Globe 2252.
[13.]Chief of these was the guarantee of “a republican form of government”; Van Alstyne 50.
[14.]Quoted, id. 48 note 46.
[15.]Auerbach states, “Students of the history of the Fourteenth Amendment agree that the ‘congressional understanding of the immediate effect of [the Fourteenth Amendment] enactment on conditions then present’ was that it would not deal with the right of suffrage. Otherwise the Fifteenth Amendment would not have been necessary, as Mr. Justice Harlan pointed out.” “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. Ct. Rev. 1, 75. The point was made by the Court in Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175 (1874).
[16.]Supra Chapter 4 at notes 42, 43, 45–48, 57, 64; Chapter 5 at note 49.
[17.]United States v. Reese, 92 U.S. 214, 217–218 (1875). Looking at “equal protection” in 1964, Auerbach considers it an “astonishing result” that would read “equal protection” to allow a State to deny “the right to vote in a state or local election . . . for reasons which have nothing to do with race, color . . . but which nevertheless result in an arbitrary classification.” Auerbach, supra note 15 at 77–78. But that view is a product of our times, not at all responsive to the intention of the framers, either in 1787 or in 1866. See supra Chapter 5 after note 77. In New York v. Miln, 36 U.S. (11 Pet.) 102, 139 (1837), the Court declared, “a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States.” For the standard of proof required to establish such “surrender” see supra Chapter 1 note 57.
[18.]Fessenden commented on Article I, §2(3), re qualifications of electors in each State, “it has always been considered that the clause . . . acknowledged the rights of the States to regulate the question of suffrage. I do not think it has ever been disputed.” Globe 1278.
[19.]400 U.S. 112, 288–291 (1970), concurring and dissenting in part.
[20.]Supra Chapter 4 at notes 25, 64, 46.
[21.]Van Alstyne 56. But see Bickel, supra Chapter 6 at note 27.
[26.]Van Alstyne 46.
[27.]The Burden of Southern History 92 (1960); supra Chapter 4 at note 25.
[28.]Andrew Johnson and Reconstruction 348 (1960).
[31.]Id. 2538. See Van Alstyne’s Summary, supra Chapter 4 at note 16.
[32.]James 201. Van Alstyne cites a Stevens statement of two years later: “Since the adoption of the fourteenth amendment . . . I have no doubt of our power to regulate the elective franchise.” Van Alstyne recognizes that such a “retrospective view . . . must, of course, be discounted to that extent”; Van Alstyne 64–65; it was in flat contradiction of representations made to secure adoption. Such retrospective statements are to be totally discounted. See supra Chapter 3 at notes 51–52; see also Raoul Berger, “Judicial Review: Counter Criticism in Tranquillity,” 69 Nw. U. L. Rev. 390, 399–401 (1974). In any event, Stevens’ later views did not carry the day because Congress passed the Fifteenth Amendment to fill the gap.
[33.]See supra Chapter 1 note 24; Chapter 10 at note 94. See also Pierson v. Ray, discussed supra Chapter 1 note 57.
[34.]See supra Chapter 10.
[35.]Van Alstyne 48–49.
[37.]377 U.S. at 594.
[38.]Van Alstyne 42–43.
[39.]For example, §2 “was debated in the Senate in February and March of 1866,” id. 43. In February Bingham reported the Joint Committee resolution, H. R. No. 63, a progenitor of the §1 “privileges or immunities” and “equal protection” provisions and explained them, Bickel 33; Globe 1033–1034, “while Trumbull’s bills on the same subject of civil rights were prominently before Congress and the country.” James 83. TenBroek, 226, states that the “speeches in the May and June debates which deal with the meaning of §1 (whether for or against) other than by specific allusion to the Civil Rights Act do so precisely in the terms employed in the February debate.”
[43.]Id. 3039 (emphasis added).
[44.]Van Alstyne 43. He considers that §2 “became a part of the Fourteenth Amendment largely through the accident of political exigency rather than the relation which it bore to the other sections of the amendment”; id. 43–44. The central “relation” was that Negro suffrage was unacceptable, both in §1 and §2, and those sections could be “packaged” in a unit that was understood by all. As the Joint Committee report stated, the §2 “representation” provision was adopted because an outright grant of suffrage proved unacceptable. Supra Chapter 5 at note 49.
[45.]Van Alstyne 38.
[46.]United States v. Freeman, 44 U.S. (3 How.) 556, 564 (1845). The rule is centuries old: “If any part of a statute be obscure it is proper to consider the other parts; for the words and meaning of one part of a statute frequently lead to the sense of another.” Matthew Bacon, A New Abridgment of the Laws of England, “Statute” I (2) (3d ed. 1768).
[47.]Oregon v. Mitchell, 400 U.S. 112, 170–171 (1970), dissenting opinion.
[1.]Archibald Cox, “The New Dimensions of Constitutional Adjudication,” 51 Washington L. Rev. 791, 802, 814–815 (1976). [The “dominating characteristic of judicial review . . . is that it is ordinarily a negative power only—a power of refusal. The Court can forbid somebody else to act but cannot usually act itself; in the words of Professor (Thomas Reed) Powell, it ‘can unmake the laws of congress, but cannot fill the gap.’ ” Edward S. Corwin, The Twilight of the Supreme Court, 122 (1934) (emphasis in the original).]
[2.]Wayne King, “Mobile in Uproar Over U.S. Judge Who Told It to Revise Government,” N.Y. Times, Nov. 13, 1976, 1 at 38.