The Online Library of Liberty

A project of Liberty Fund, Inc.

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

appendix a

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.

Mr. Stevens.

Yes, sir, it does acknowledge it, and it has always existed under the Constitution.

Mr. Higby.

I do not acknowledge that it is in the Constitution as it now is.

Mr. Stevens.

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:

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

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

[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.

[5.]Id. 45.

[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.

[12.]Globe 536.

[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.

[22.]Globe 2542.

[23.]Id. 2766.

[24.]Id. 3989.

[25.]Id. 3979.

[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).

[29.]Kendrick 51.

[30.]Globe 2506.

[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.

[36.]Id. 44.

[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.”

[40.]Globe 2459.

[41.]Id. 2893.

[42.]Id. 2542.

[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.