Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977]

Edition used:

Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).

Author: Raoul Berger

Foreword: Forrest McDonald

About this title:

It is the thesis of this monumentally argued book that the United States Supreme Court - largely through abuses of the Fourteenth Amendment to the Constitution?has embarked on “a continuing revision of the Constitution, under the guise of interpretation.” Consequently, the Court has subverted America’s democratic institutions and wreaked havoc upon Americans’ social and political lives. One of the first constitutional scholars to question the rise of judicial activism in modern times, Raoul Berger points out 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.” This new second edition includes the original text of 1977 and extensive supplementary discourses in which the author assesses and rebuts the responses of his critics.

Copyright information:

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair use statement:

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

LIBERTY FUND, INC.

Liberty Fund, Inc. is a private, non-profit, educational foundation established in 1960 by Pierre F. Goodrich to encourage the study of the ideal of a society of free and responsible individuals. The Foundation develops, supervises, and finances its own educational activities to foster thought and encourage discourse on the nature of individual liberty, limited and constitutional government, the free market, and peace. This is done through the implementation of different programs such as:

conducting each year over 150 conferences throughout the United States, Canada, Latin America, and Europe.

publishing about 12 - often classic - books each year. There is an online catalog [external link] where these books can be ordered.

producing video and audio tapes including The Intellectual Portrait Series of videotapes and video DVDs which record conversations with some of the most significant thinkers of our time. The DVDs of this series can be purchased from the online catalog [external link].

hosting websites such as the Library of Economics and Liberty (Econlib) [external link], the Online Library of Liberty (OLL) [external link], and The Library of Law and Liberty [external link].

These programs focus on the place individual liberty has in an intellectual heritage evident from ancient times and continuing through to the present. The programs are intended to enrich understanding and appreciation of the complex nature of a society of free and responsible individuals and to contribute to its preservation.

As a tax-exempt, private operating foundation, Liberty Fund’s purposes are educational. It does not, therefore, engage in political action of any kind. It fulfills its mission by conducting programs, not by awarding grants to outside organizations or individuals.

For more information, please visit Liberty Fund’s main web site at www.libertyfund.org or the Online Library of Liberty at oll.libertyfund.org.

The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books and websites is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.

LIBERTY FUND, INC.
8335 Allison Pointe Trail, Suite 300
Indianapolis, Indiana 46250-1684
U.S.A.
Phone no.: 1.800.955.8335

THE ONLINE LIBRARY OF LIBERTY

The text you are currently reading comes from Liberty Fund's Online Library of Liberty (OLL) oll.libertyfund.org. The OLL was established in 2004 in order to further the educational goals of Liberty Fund, Inc, namely "to encourage study of the ideal of a society of free and responsible individuals". It is a multi-award winning website which makes available at no charge to the public outstanding resources for teaching and learning about the humanities and the social sciences.

The OLL website contains the following material and resources:

AUTHORS

The works of hundreds of authors from Ancient Sumeria to the present are represented. They are organized by author, historical period, and schools of thought. The latter includes the French Enlightenment, the Founding Fathers, 19th century natural rights theorists, the Austrian School of Economics, and many others.

TITLES

The OLL contains over 1,400 volumes in multiple formats which are organized by subject areas, topics, and debates. Highlights include the complete scholarly editions of the works of David Ricardo, J.S. Mill, Frédéric Bastiat; the collected works of Jefferson, Madison, J. Adams, & many others; and over 200 titles published by Liberty Fund.

LIBERTY MATTERS ONLINE FORUM

Every two months the OLL hosts Liberty Matters, an online forum for scholars to discuss the significance of some of the key works in the OLL collection. A lead article on the topic is posted which is followed by 3 or more response essays and then open debate. Topics covered so far include Eric Mack on "John Locke on Property," Geoffrey Brennan on "James Buchanan: An Assessment," and Roderick Long on “Gustave de Molinari’s Legacy for Liberty”.

AUDIO/VIDEO

The OLL contains in mp3 format interviews with 26 scholars from the Intellectual Portrait Series: Conversations with Leading Classical Liberal Figures of Our Time (also available in DVD). These include interviews with leading political theorists and economists such as Armen A. Alchian, James M. Buchanan, Milton Friedman, and Anthony de Jasay. There is also a series of lectures on The Legacy of Friedrich Hayek.

EPUB & KINDLE FORMATS OF OUR TITLES

Most OLL titles are available in ePub and Kindle formats designed to be read on portable reading devices. Two special collections are The Best of Bastiat and The Best of the OLL which are designed for use in the classroom. The latter collection includes classic works by Hume, Mill, Hayek, Mises, Friedman, Kirzner and many others.

SEARCHING

A powerful search engine enables the user to search all books, all works in a given subject area, all the works by a particular author, all the works in a collection, or just one book! Search filters allow you to limit searches by various categories & the results show the full paragraph in which the search term is located. For example, you can search all 32 volumes of the collected works of John Stuart Mill for every occurrence of the phrase “perfect freedom.” [Note: there are 23 occurrences of the phrase.]

RESOURCES FOR TEACHERS

The OLL contains many resources to use in teaching and learning about Liberty, such as biographies, bibliographies, timelines, reading lists, essays, key documents. Most of these can be found in The Forum section of the OLL. Of special note are our collections “The Best of the OLL” and “The Best of Bastiat” which contain chapter length extracts in convenient pamphlet format [PDF, ePub, and Kindle].

QUOTATIONS ABOUT LIBERTY AND POWER

Each week a new quote is added to the front page of the OLL. It highlights a key idea about liberty or power by one of our authors. The collection now totals over 400 quotes which are categorized by topics such as free trade, money, abolition, law, literature, politics, war & peace, despots, etc.

IMAGES OF LIBERTY AND POWER

In this collection of images we explore the sometimes hidden political meanings and references contained in portraits, etchings, caricatures, title pages of books, and other images. We have examined so far a comparison of portraits of George Washington and Napoleon, propaganda of the anti-slavery movement, the etchings made by the Earl of Shaftesbury, James Gillray on war and taxes during the War against Napoleon, and ration books and government propaganda in WW2.

LIBERTY FUND BOOKS

Many of the books published by Liberty Fund are also available online at the OLL website. See a complete selection visit the online book catalogue. [External link]

Awards

The OLL has won a number of international awards for its outstanding collection of online material in the humanities and social sciences. It has been recognised by

the Library of Congress for its Minerva archiving project

the National Endowment for the Humanities

the British Arts and Humanities Research Council, and

the International Political Science Association.

THE PORTABLE LIBRARY OF LIBERTY

The Portable Library of Liberty (PLL) is a data DVD which, in version 7.0 (September 23, 2018), contains 1,088 titles in various E-Book formats (text-based PDF, ePub, and Kindle/Mobi) drawn from Liberty Fund’s web site, The Online Library of Liberty (OLL) . The main Web site [http://oll.libertyfund.org] also has the titles in additional formats, such as a facsimile PDF version so scholars can see what the original looked like, an HTML version for searching and ease of use, and a variety of eBook versions such as text-based PDF, ePub, and Kindle.

The books on the PLL DVD are designed to be read on both computers and handheld reading devices like the iPad, the Nook, or the Kindle. The EBook PDFs can be read within a web browser by using a plugin such as Adobe’s PDF Reader or they can be opened and read in a stand-alone PDF reader such as Adobe’s Acrobat Reader (a free download) or Apple’s Preview. Many handheld devices can also read PDFs (such as the iPad). The ePub and Kindle versions can be read on a variety of devices. The ePub format has been widely adopted by device manufacturers, except for the Kindle which is limited to the Mobi format. Other devices, such as the iPad can also read Kindle formatted texts when a Kindle reader app has been installed.

Liberty Fund encourages the use of these texts for academic and educational purposes as long as due regard is given to the copyright and fair use conditions stated below as well as on the front page of each title, and as long as proper attribution is given to Liberty Fund’s website or DVD as the source of this material when it is cited.

Request a complimentary copy of the Portable Library of Liberty DVD by emailing the editor at [oll@libertyfund.org]. Please include your postal address so the DVD can be shipped to you.

Copyright symbol Copyright and Fair Use Statement

There are four different types of texts which Liberty Fund has put online as part of the Online Library of Liberty:

public domain texts published before 1923. These texts are no longer under copyright and are in the public domain. We have put them online in order to further the educational aims of Liberty Fund.

texts to which the Liberty Fund has electronic rights, such as the books published by Liberty Fund in both print and various electronic formats

other texts to which Liberty Fund has acquired the electronic rights from third parties, such as the journal Literature of Liberty (from the Institute for Humane Studies)

titles which are put online under license from third parties, such as the Collected Works of John Stuart Mill, ed. J.M. Robson (Toronto: University of Toronto Press).

For titles in the first three categories listed above, no special permission from Liberty Fund is required for quoting material in papers and essays, or for limited photocopying and distribution for academic or other educational or non-profit purposes. The only requirements are that you include proper attribution on the first page of the document being distributed - e.g. for John Locke’s The Two Treatises of Government you would say either of the following:

if using the OLL website - "This material originally appeared on the Online Library of Liberty hosted by Liberty Fund, Inc. URL: http://oll.libertyfund.org/title/222 and accessed on 2010-01-22." This information can be found in the "Citation" button on the title’s table of contents page.

or if using the copy on the PLL DVD - "This material originally appeared in the Portable Library of Liberty published by Liberty Fund, Inc. URL: http://oll.libertyfund.org/title/222 and PLL v7.0 (generated September 23, 2013)." This information can be found in the footer of the EBook PDF or the title page of the ePub.

or if using the ePub version on a portable reading device: "This material is part of the collection of ePub titles in the Online Library of Liberty website hosted by Liberty Fund, Inc. Source Text URL http://oll.libertyfund.org/title/222 accessed on 2013-04-20." This information can be found on the "Introduction to the Book" page in this file.

For titles in category two and three, any reprint of material "for profit", such as a chapter or a substantial section of an online book for inclusion in a book or other publication for sale, requires written permission from Liberty Fund.

For titles in the fourth category you must follow the specific requirements of the copyright holder whose work we publish online under license. In the case of the Collected Works of John Stuart Mill published under license from the University of Toronto Press, for reprint or copying permission you need to contact the University of Toronto Press directly. Under our contractual obligations with the University of Toronto Press we have placed the following declaration on the front page of every book and section of the online version of the Collected Works of John Stuart Mill:

The online edition of the Collected Works is published under licence from the copyright holder, The University of Toronto Press. ©2006 The University of Toronto Press. All rights reserved. No part of this material may be reproduced in any form or medium without the permission of The University of Toronto Press.

Thus, for reprint or copying permission you need to contact the University of Toronto Press directly. Liberty Fund cannot grant you this permission because it is not the copyright holder.

Specific copyright information for each title can be found on the information page for that book.

Raoul Berger

For Patty

All persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

—Fourteenth Amendment, §1

Nullius in Verbo

—Motto of the Royal Society, London

Take nobody’s word for it; see for yourself

Foreword

Raoul Berger’s original intention, if I may use that phrase in a different way than he does, was not to become a great constitutional historian. Indeed, his work as a scholar is actually the fourth (or fifth, depending on how you count) of the careers he has held during a long and illustrious lifetime.

His first love was and continues to be music. As a youth he studied the violin in New York and Berlin and then went on to make a number of highly praised concert tours, appear as a soloist with the Cleveland Symphony, and serve as second concertmaster with the Cincinnati Symphony Orchestra and first violinist of the Cincinnati String Quartet. But it was difficult in the 1920s, as it is today, to earn a living as a soloist in America, and the drudgery of life in an orchestra began to be numbing to his soul. Accordingly, at the age of twenty-seven, he decided to enroll in college and have a go at making his way in the real world. At thirty-one he entered Northwestern University Law School, and at thirty-four he was ready to hang up his shingle as a practicing attorney.

In 1938, having spent two years in private practice and another taking an advanced degree at Harvard, Berger began his succession of professions in earnest. The first was public service, including stints with the Securities and Exchange Commission and service as general counsel to the Alien Property Custodian and as special assistant to the attorney general. In 1946 he retired from government, and for the next sixteen years he was engaged in private practice in Washington, D.C. Then came yet another calling as a law professor at the University of California, Berkeley, and then at Harvard Law School as Charles Warren Senior Fellow in American Legal History until his retirement in 1976.

In each of these activities Berger achieved considerable distinction, but it was not until he embarked upon his journey as a constitutional scholar that he began rising to greatness. His first book, published in 1969, was Congress v. The Supreme Court. In it, he concluded after an exhaustive study of the documentary record that the framers of the Constitution intended that the federal courts have the power to review legislative acts and pass on their constitutionality, though there is no mention of judicial review to be seen in the text of the Constitution—a conclusion that has recently been buttressed by the discovery of some previously unknown documents.

That finding was scarcely revolutionary, for it coincided with the consensus among students of the founding; but the book was marked by several qualities that characterize all of Berger’s later works. The quantity of his research is massive but is combined with pinpoint accuracy in dealing with details. His prose is lucid. He brings to his undertakings a zestful enthusiasm, an indication that he is impelled by a sheer love of scholarship—the traditional scholarly ideal that the genuine scholar seeks to know the truth for its own sake—and not by the ideological predilections that distort so much historical research. And, in Congress v. The Supreme Court Berger announced his commitment to the ages-old but vitally alive proposition that, when construing a constitution, it is permissible and often necessary to go beyond the text of the document to ascertain, if possible, the intentions of its authors but decidedly not permissible to read into it ideas derived from “natural rights” dogmas or other external values.

Berger’s next two books, as Philip Kurland has described them, were “blockbusters,” and they won him enthusiastic praise, especially among readers of a liberal persuasion. Impeachment coincidentally appeared in 1973, at just the time when President Nixon was headed on a collision course with Congress, though it was a subject on which Berger had been working for several years. The book focuses mainly on the question of the removal of federal judges, but it is a tour de force of English and American constitutional history. Executive Privilege, which appeared in 1974, is a devastating rebuttal of the argument that the president can constitutionally withhold from Congress or the courts information relevant to the performance of their duties. (Presidents had been withholding such information for some time, but Berger insists that repeated violations of the Constitution do not make them constitutional but merely compound the evil.)

Berger’s niche in the liberal pantheon came tumbling down in 1977 upon the publication of the book you are about to read, Government by Judiciary, and suddenly he became a hero to conservatives. His private political beliefs are irrelevant to his work, because he rigorously casts them aside in his research and writing, going wherever the evidence takes him; but it may help the reader if I point out that by and large Berger’s predilections have been on the liberal side. He was, after all, a member of the administrations of Franklin Roosevelt and Harry Truman. As he states in the addenda to Chapter 16 of the present edition, his principles are the “standard political principles of the moderate left of the Democratic party,” but he makes “no pretense of identifying them with constitutional mandates.”

Berger’s personal politics had no more influence on the reception of Government by Judiciary than they had on his writing of the book. What he learned and reported was that for the better part of a century the Supreme Court had been handing down decisions interpreting the Fourteenth Amendment improperly, willfully ignoring or willfully distorting the history of its enactment. More specifically, he found that the authors of the Amendment, far from contemplating a social and political revolution, as defenders of judicial activism maintained, intended only to protect the freedmen from southern Black Codes that threatened to return them to slavery. More specifically yet, Berger found that the two key passages in the Fourteenth Amendment—privileges or immunities of citizens and due process of law—far from being vague and elastic, as activists maintained, were “terms of art” that had precise, well-understood, and narrow legal meanings. “Equal protection,” a new concept, was identified by the framers with the right to contract, to own property, and to have access to the courts.

The implication was that Brown v. Board (1954, striking down segregation in the public schools), Baker v. Carr and Reynolds v. Sims (1962 and 1964, respectively, having to do with reapportionment of state legislatures), Roe v. Wade (1973, making abortion legal), and a vast array of other cases had been decided unconstitutionally, representing not law but the whims and values of the justices of the Supreme Court. No book on the Constitution, with the possible exception of Charles A. Beard’s Economic Interpretation of the Constitution (1913), has elicited such a storm of controversy.

From the outset, the law reviews teemed with attacks on Government by Judiciary, some of them cautious and considered, many slipshod and semihysterical. Berger decided immediately to take each attack seriously, to rethink and reexamine his evidence, and to publish a rebuttal. He quotes John Locke as stating that rebuttal is necessary lest victory be “adjudged not to him who had the truth on his side, but by the last word in the dispute.” In time, Berger wrote approximately forty article-length rebuttals and one of book length. My own judgment, as I wrote in a review of the book-length rebuttal (Berger’s The Fourteenth Amendment and the Bill of Rights, 1989), is that Berger defeated his critics “at every turn.” This controversy and the now sizable body of rebuttal literature gave rise to the publication of the present edition of Government by Judiciary, containing the original version liberally sprinkled with fresh addenda.

So thoroughly did Berger rout his critics that, after a decade or so, they virtually stopped trying. Instead, advocates of judicial activism began to assert that neither the words of the Constitution nor the intentions of the framers are any longer relevant. Justice William Brennan, for example, declared in 1985 that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” (In actuality, as one of Berger’s defenders, Wallace Mendelson, has pointed out, the only “great principles” to be found in the Constitution are “the consent of the governed, the diffusion of power, and the rule of law” —and the Supreme Court has undermined them all.) Brennan’s disciple Justice Thurgood Marshall went even further in this direction. In 1987, amidst the celebrations of the bicentennial of the Constitution, Marshall said, “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start.” He noted further that “several amendments, a civil war, and momentous social transformation” were necessary before the United States achieved a genuinely “constitutional government.”

In the face of such attitudes, one may justifiably question whether the Supreme Court is capable of restoring the constitutional compact to anything resembling its pristine form. But it is true, as the adage has it, that the Supreme Court follows the election returns, and voters have increasingly expressed their frustration with “government by judiciary.” It is also true that Congress has the constitutional authority to rein in the Supreme Court through its control over the Court’s jurisdiction, its power of the purse, and sundry other means.

I do not know what Raoul Berger thinks of the prospects for a return by any means to constitutional government. I suspect he is hopeful though not optimistic, for he is a man of never-say-die temperament and hard-nosed realism. In any event, if the great desideratum should come to pass, nobody would have done more to bring it about than Raoul Berger, for his writings, in their original form or in the works of disciples and converts, have become common coin of the realm.

Forrest McDonald

University of Alabama

Preface to the Second Edition

The publication in 1977 of Government by Judiciary provoked a storm of controversy, leading a critic to exclaim in 1983 that “refuting Raoul Berger has become a cottage industry.” Criticism flourishes unabated. A critic more candid than most observed that

Berger has forced all serious constitutional theorists to deal with questions regarding the proper principles of constitutional interpretation and the proper role of the courts, questions that many theorists, basking in the glow of Warren Court decisions on individual rights, felt content to ignore.

Each critique prompted me to reexamine and retest my conclusions, for scholars are apprehensive whether they have overlooked a fact that will explode their inferences. “The great tragedy of science,” Thomas Huxley remarked, is “the slaying of a beautiful hypothesis by an ugly fact.” In the eighteen years since publication, I have indited forty-odd responses, in which each respective critique is examined in great—and, I am afraid, tedious—detail. The interested reader will find a bibliography of my responses at the end of the book.

These critiques prompted me to preserve the original text in this second edition so that readers may in the future have before them what excited so much controversy. The materials that have accumulated since 1977 are set forth in greatly abbreviated form as a supplement to a relevant chapter. New material added to the footnotes of the original text is identified by brackets.

A word in extenuation of the profuse quotations. Since my views have been and remain under assault, I prefer not to rely on mere expressions of my opinion but to employ appraisals by others.

This revision was completed in my ninety-fifth year, so the gentle reader should cast upon it a charitable eye, bearing in mind Dr. Johnson’s remark about “a dog’s walking on his hind legs. It is not done well; but you are surprised to find it done at all.” Finally, I am indebted to the Earhart Foundation for a grant that facilitated completion of this second edition.

Raoul Berger

Concord, Massachusetts 1996

Acknowledgments

Eminent historians, social scientists, and lawyers have read portions or all of my manuscript and favored me with their suggestions. I do not name them in order to spare them the embarrassment of being associated with my views. Above all I am indebted to them for encouragement.

R. B.

Concord, Massachusetts

August 1977

Abbreviations

Annals of Congress | Annals of Congress (1st Congress, 1st Session 1789)
Bickel | Alexander M. Bickel, “The Original Understanding and the Segregation Decision,” 69 Harvard Law Review 1 (1955)
Donald, Sumner I | David Donald, | Charles Sumner and the Coming of the Civil War (1960)
Donald, Sumner II | David Donald, Charles Sumner and the Rights of Man (1970)
Elliot | Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1836)
Fairman, History | Charles Fairman, Reconstruction and Reunion 1864–1888, vol. 6, part 1 of History of the Supreme Court of the United States (1971)
Fairman, Stanford | Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?,” 2 Stanford Law Review 5 (1949)
Farrand | Max Farrand, The Records of the Federal Convention of 1787 (1911)
Federalist | The Federalist (Modern Library ed. 1937)
Flack | Horace Flack, | The Adoption of the Fourteenth Amendment (1908)
Globe | Congressional Globe (39th Congress, 1st Session 1866)
Globe App. | Appendix to Globe
Graham | Howard Jay Graham, Everyman’s Constitution (1968)
James | Joseph B. James, The Framing of the Fourteenth Amendment (1965)
Kelly, Fourteenth | Alfred H. Kelly, “The Fourteenth Amendment Reconsidered: The Segregation Question,” 54 Michigan Law Review 1049 (1956)
Kendrick | Benjamin Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction (1914)
Levy, Against the Law | Leonard W. Levy, Against the Law: The Nixon Court and Criminal Justice (1974)
Levy, Warren | Leonard W. Levy, ed., The Supreme Court Under Earl Warren (1972)
Lusky | Louis Lusky, By What Right? (1975)
Poore | Ben P. Poore, Federal and State Constitutions, Colonial Charters (1877)
TenBroek | Jacobus tenBroek, | Equal Under Law (1965)
Van Alstyne | William W. Van Alstyne, “The Fourteenth Amendment, the ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” 1965 Supreme Court Review 33

PART I

1

Introduction

My colleagues have learned to respect nothing but evidence, and to believe that their highest duty lies in submitting to it, however it may jar against their inclinations.

*

The Fourteenth Amendment is the case study par excellence of what Justice Harlan described as the Supreme Court’s “exercise of the amending power,” its continuing revision of the Constitution under the guise of interpretation. Because the Amendment is probably the largest source of the Court’s business and furnishes the chief fulcrum for its control of controversial policies, the question whether such control is authorized by the Constitution is of great practical importance.

Those whose predilections are mirrored in a given decision find such judicial revision an exercise of statemanship. Others consider that a democratic system requires adherence to constitutional limits, by courts no less than presidents. This study seeks to demonstrate that the Court was not designed to act, in James M. Beck’s enthusiastic phrase, as a “continuing constitutional convention,” that the role assigned to it was far more modest: to police the boundaries drawn in the Constitution. A corollary is that the “original intention” of the Framers, here very plainly evidenced, is binding on the Court for the reason early stated by Madison: if “the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable [government], more than for a faithful exercise of its powers.”

The present generation, floating on a cloud of post–Warren Court euphoria, applauds a Court which read its libertarian convictions into the Fourteenth Amendment, forgetting that for generations the Court was harshly criticized because it had transformed laissez faire into constitutional dogma in order to halt the spread of “socialism.” With Brahmin restraint, Justice Holmes commented, in fear of socialism, “new principles had been discovered outside the bodies of those instruments [constitutions] which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago.” In the economic sphere that finally made due process a “dirty phrase.” The logic whereby that process becomes sanctified when employed for libertarian ideals has yet to be spelled out. Logic, it is true, must yield to history, but history affords the Court even less support than logic.

Commentary on the Court’s decisions frequently turns on whether they harmonize with the commentator’s own predilections. My study may be absolved of that imputation: I regard segregation as a blot on our society, and before I began to study the reapportionment issue I was taken with the beguiling slogan “one man, one vote.” But almost thirty-five years ago I wrote of a decision that responded to my desires that I liked it no better when the Court read my predilections into the Constitution than when the Four Horsemen read in theirs. Against the fulfillment of cherished ideals that turns on fortuitous appointments must be weighed the cost of warping the Constitution, of undermining “the rule of law.” The Court has shown in the past that the Constitution can also be twisted to frustrate the needs of democracy. These statements raise a congeries of questions which have been the subject of interminable controversy to which Part II is addressed.

The task here undertaken is that of an historian, to attempt accurately and faithfully to assemble the facts; that effort constitutes its own justification. For a decade the revisionist historians have been engaged in what has been described as an “extraordinary revolution in the historiography” of Reconstruction, throwing fresh light on the reasons for its limited objectives and its failure. To some extent the legal studies of Charles Fairman in 1949 and Alexander Bickel in 1955 had shown that the objectives of the framers of the Fourteenth Amendment were limited. Like the revisionist historians, a lawyer too may take another look after the passage of about a quarter-century. Despite the wilderness of commentary, largely devoted to the due process clause, the historical warrant for desegregation, reapportionment, and incorporation of the Bill of Rights in the due process clause remains controversial. Little analysis has been devoted to the role of the privileges or immunities clause in the original scheme of things; nor have studies of the equal protection and due process clauses adequately explored what those terms meant to the framers.

In reconstructing the past, historians generally are compelled to rely on accounts written after the event by participants and witnesses, or on the hearsay versions of those who learned at second-hand what had occurred. Such writings are subject to the infirmities of recollection, or of bias arising from allegiance to one side or the other. The historical records here relied on—the legislative history of the Fourteenth Amendment—are of a far more trustworthy character, being a stenographic transcription of what was said in the 39th Congress from day to day by those engaged in framing the Amendment. It is a verbatim account of what occurred, recorded while it was happening, comparable to a news film of an event at the moment it was taking place and free from the possible distortion of accounts drawn from recollection or hearsay. What men say while they are acting are themselves facts, as distinguished from opinions about facts. Such statements constitute a reliable record of what happened as the Amendment was being forged by the framers.

It needs to be emphasized that the records of the 39th Congress are free from the reproach often leveled at legislative history—that it is “enigmatic.” A statement such as that of Charles P. Curtis, “It is a hallucination: this search for intent. The room is always dark” simply cannot stand up against these records. Instead of sparse, cryptic remarks there are, for example, with respect to suffrage, the unequivocal Joint Report of the Committee on Reconstruction which drafted the Amendment; explanations of the Amendment and the antecedent Civil Rights Act of 1866 by the committee chairmen who had them in charge, and by other members of the committees; statements by leaders of the Republican Party which sponsored both, accompanied by a virtually unanimous chorus of fellow Republicans. These are commonly regarded as the best evidence of legislative “intention.” Then there are repeated rejections, by heavy pluralities, of extremist efforts to put through legislation or amendments that would confer suffrage. Thus, the records richly confirm Justice Harlan’s comment: “The history of the Fourteenth Amendment with respect to suffrage qualifications is remarkably free of the problems which bedevil most attempts to find a reliable guide to present decision in the pages of the past. Instead, there is virtually unanimous agreement, clearly and repeatedly expressed, that §1 of the Amendment did not reach discriminatory voter disqualifications.”

In short, the proof is all but incontrovertible that the framers meant to leave control of suffrage with the States, which had always exercised such control, and to exclude federal intrusion. On traditional canons of interpretation, the intention of the framers being unmistakably expressed, that intention is as good as written into the text. It is, therefore, as if the Amendment expressly stated that “control of suffrage shall be left with the States.” If that intention is demonstrable, the “one man, one vote” cases represent an awesome exercise of power, an 180-degree revision, taking from the States a power that unmistakably was left to them. That poses the stark issue whether such revisory power was conferred on the Court. Because the “intention” of the framers is so crucial to examination of this issue, because a commentator should not pit his mere ipse dixit against the Court’s finding, for example, that the historical evidence respecting desegregation is inconclusive, it is not enough to retort that the evidence is overwhelming. It is necessary to pile proof on proof, even at the risk of tedium, so that the reader may determine for himself whether it is overwhelming or inconclusive.

Whether the “original intention” of the framers should be binding on the present generation—a question hereafter discussed—should be distinguished from the issue: what did the framers mean to accomplish, what did the words they used mean to them. That must be the historical focus, not what we should like the words to mean in the light of current exigencies or changed ideals. In the words of the eminent British historians H. G. Richardson and G. O. Sayles, “We must learn, not from modern theorists, but from contemporaries of the events we are studying.” We should not impose “upon the past a creature of our own imagining.” One hundred and fifty years earlier Justice James Iredell, one of the first Founders to spell out the case for judicial review, stated, “We are too apt, in estimating a law passed at a remote period, to combine in our consideration, all the subsequent events which have had an influence upon it, instead of confining ourselves (which we ought to do) to the existing circumstances at the time of its passing.”

In an area of warring interpretations no useful purpose is served by delivering another ex cathedra opinion. A commentator should spread before the reader the evidence on which his opinion is based and comment both on discrepant evidence and on opposing inferences. Consequently, a polemical tone is inescapable; a student of history can no more avoid criticism of views which seem to him erroneous than did the chemists who disputed the tenability of the phlogiston theory of combustion. To avoid that responsibility is to court the charge of ignoring an influential body of contrary opinion, of selecting only the evidence that advances one’s own argument, and, even worse, to cast the reader adrift on a sea of conflicting opinions.

Now that the dust has settled, a synthesis of the historical materials that bear on the three controversial areas will furnish some cross-illumination. No synthesis need undertake to trace in complete detail the development of the Amendment and its antecedent bills. Not only is there no need to duplicate the chronological labors that others have already performed, but to do so is to risk swamping the reader in a mass of detail that is bewildering rather than illuminating. Instead my effort will be to focus on the facts that seem to me crucial, to take account of discrepant facts, and to analyze views that are opposed to mine.

Following the lead of Howard Jay Graham and Jacobus tenBroek, academicians have shown a growing tendency to attribute to the framers of the Fourteenth Amendment moral-legal conceptions formulated by some abolitionists during their crusade of the 1830s–1860s, and to read those conceptions of substantive due process and equal protection into the Amendment. Noble enthusiasm is no less prone to distort the vision than vulgar prejudice. In evaluating the historical facts we do well to bear in mind Flaubert’s view that “personal sympathy, genuine emotion, twitching nerves and tear-filled eyes only impair the sharpness of the artist’s vision.” Even more, the historian, in the words of C. Vann Woodward, has “a special obligation to sobriety and fidelity to the record.”

Background

The key to an understanding of the Fourteenth Amendment is that the North was shot through with Negrophobia, that the Republicans, except for a minority of extremists, were swayed by the racism that gripped their constituents rather than by abolitionist ideology. At the inception of their crusade the abolitionists peered up at an almost unscalable cliff. Charles Sumner, destined to become a leading spokesman for extreme abolitionist views, wrote in 1834, upon his first sight of slaves, “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.” Tocqueville’s impression in 1831–1832 was equally abysmal. He noticed that in the North, “the prejudice which repels the negroes seems to increase in proportion as they are emancipated,” that prejudice “appears to be stronger in the States which have abolished slavery, than in those where it still exists.”

Little wonder that the abolitionist campaign was greeted with loathing! In 1837 Elijah Lovejoy, an abolitionist editor, was murdered by an Illinois mob. How shallow was the impress of the abolitionist campaign on such feelings is graphically revealed in a Lincoln incident. A delegation of Negro leaders had called on him at the White House, and he told them,

There is an unwillingness on the part of our people, harsh as it may be, for you free colored people to remain with us . . . [E]ven when you cease to be slaves, you are far removed from being placed on an equality with the white man . . . I cannot alter it if I would. It is a fact.

Fear of Negro invasion—that the emancipated slaves would flock north in droves—alarmed the North. The letters and diaries of Union soldiers, Woodward notes, reveal an “enormous amount of antipathy towards Negroes”; popular convictions “were not prepared to sustain” a commitment to equality. Racism, David Donald remarks, “ran deep in the North,” and the suggestion that “Negroes should be treated as equals to white men woke some of the deepest and ugliest fears in the American mind.”

One need not look beyond the confines of the debates in the 39th Congress to find abundant confirmation. Time and again Republicans took account of race prejudice as an inescapable fact. George W. Julian of Indiana referred to the “proverbial hatred” of Negroes, Senator Henry S. Lane of Indiana to the “almost ineradicable prejudice,” Shelby M. Cullom of Illinois to the “morbid prejudice,” Senator William M. Stewart of Nevada to the “nearly insurmountable” prejudice, James F. Wilson of Iowa to the “iron-cased prejudice” against blacks. These were Republicans, sympathetic to emancipation and the protection of civil rights. Then there were the Democratic racists who unashamedly proclaimed that the Union should remain a “white man’s” government. In the words of Senator Garrett Davis of Kentucky, “The white race . . . will be proprietors of the land, and the blacks its cultivators; such is their destiny.” Let it be regarded as political propaganda, and, as the noted British historiographer Sir Herbert Butterfield states, it “does at least presume an audience—perhaps a ‘public opinion’ —which is judged to be susceptible to the kinds of arguments and considerations set before it.” Consider, too, that the Indiana Constitution of 1851 excluded Negroes from the State, as did Oregon, that a substantial number of Northern States recently had rejected Negro suffrage, that others maintained segregated schools. It is against this backdrop that we must measure claims that the framers of the Fourteenth Amendment swallowed abolitionist ideology hook, line, and sinker.

The framers represented a constituency that had just emerged from a protracted, bitterly fought war, a war that had left them physically and emotionally drained. It had begun with a commitment to save the Union and had gone on to emancipate the slaves. Now the war-weary North was far from anxious to embark on fresh crusades for the realization of still other abolitionist goals. While emancipation largely hit slavery in the South, eradication of inequality, as Vann Woodward remarked, required “a revolution for the North as well,” a revolution for which most Republicans were utterly unprepared. Then too, the fact that Republicans and Democrats had been pretty evenly matched over the years, that some districts definitely were swing areas, led Republicans in those areas to be cautious of affronting their constituents. Many moderate and conservative Republicans, as we shall see, were acutely aware of the impact on elections of sweeping radical claims for political, let alone social, equality for the blacks. While most men were united in a desire to protect the freedmen from outrage and oppression in the South by prohibiting discrimination with respect to “fundamental rights,” without which freedom was illusory, to go beyond this with a campaign for political and social equality was, as Senator James R. Doolittle of Wisconsin confessed, “frightening” to the Republicans who “represented States containing the despised and feared free negroes.”

A striking reflection of Northern sentiment was furnished by Thaddeus Stevens, the foremost Radical leader. According to his biographer, Fawn M. Brodie, he

sensed . . . that talk of “social equality” was dangerous politics. When he heard that the ex-slave Frederick Douglass . . . had paraded arm-in-arm with editor Theodore Tilton, he wrote . . . “A good many people here are disturbed by the practical exhibition of social equality in the arm-in-arm performance of Douglass and Tilton. It does not become radicals like us to particularly object. But it was certainly unfortunate at this time. The old prejudice, now revived, will lose us some votes.”

As Stevens revealed, most Republicans were politicians first and ideologues afterward. Not civil rights for blacks but the dreaded take-over of the federal government by the South was their obsessive preoccupation. Emancipation brought the startling realization that Southern representation would no longer be limited in the House of Representatives to three-fifths of the blacks, as article I, §3, provided. Now each voteless freedman counted as a whole person; and in the result Southern States would be entitled to increased representation and, with the help of Northern Democrats, would have, Thaddeus Stevens pointed out at the very outset of the 39th Congress, “a majority in Congress and in the Electoral College.” With equal candor he said that the Southern States “ought never to be recognized as valid States, until the Constitution shall be amended . . . as to secure perpetual ascendancy” to the Republican party. The North had not fought and quelled rebellion in order to surrender the fruits of victory to the unrepentant rebels. How to circumvent this possibility was the central concern of the Republicans, and it found expression in §2 of the Fourteenth Amendment, which reduced representation in proportion as the right to vote was denied or abridged. Unless we seize hold of the fact that, to borrow from Russell R. Nye, “what lies beneath the politics of the Reconstruction period, so far as it touched the Negro, is the prevailing racist policy tacitly accepted by both parties and by the general public,” we shall fail to appreciate the limited objectives of the Fourteenth Amendment. That is the reality underlying the limited purposes of the framers of the Fourteenth Amendment, and which circumscribes the so-called “generality” of “equal protection” and “due process.”

Proponents of a broad construction of the Amendment have assumed that advocates of a restricted construction have the burden of proving that the framers’ objectives were limited. The shoe is on the other foot; an interpretation that invades what had long been considered the exclusive province of the States, as, for example, criminal procedure, requires some justification. It is not enough in that situation that the words are capable of a broad meaning; the reservation to the States in the Tenth Amendment of powers not delegated to the federal government calls for a clear showing that the successor amendment was designed to curtail those reserved powers. Over the years the Supreme Court, to be sure, has steadily eroded those reserved powers, but this simply represents another of the usurpations that bestrew the path of the Court. But the historian, looking to the Constitution itself, may not be blind to the fact that, in the words of Willard Hurst, the reservation “represented a political bargain, key terms of which assumed the continuing vitality of the states as prime law makers in most affairs.” No trace of an intention by the Fourteenth Amendment to encroach on State control—for example, of suffrage and segregation—is to be found in the records of the 39th Congress. A mass of evidence is to the contrary, and, as will appear, the attachment of the framers to State sovereignty played a major role in restricting the scope of the Amendment. “ [W]e ought to remember,” Justice Holmes said, “the greater caution shown by the Constitution in limiting the power of the States, and should be slow to construe the [due process] 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.” The history of the Amendment buttresses the flat statement that no such jurisdiction was conferred.

“What, after all,” asked Wallace Mendelson, “are the privileges and immunities of United States citizenship? What process is ‘due’ in what circumstances? and what is ‘equal protection’?” Study of what the terms meant to the framers indicates that there was no mystery. The three clauses of §1 were three facets of one and the same concern: to insure that there would be no discrimination against the freedmen in respect of “fundamental rights,” which had clearly understood and narrow compass. Roughly speaking, the substantive rights were identified by the privileges or immunities clause; the equal protection clause was to bar legislative discrimination with respect to those rights; and the judicial machinery to secure them was to be supplied by nondiscriminatory due process of the several States. Charles Sumner summarized these radical goals: let the Negro have “the shield of impartial laws. Let him be heard in court.” That shield, it will be shown, was expressed in “equal protection of the laws; access to protection by the courts found expression in “due process of law.” The framers, it needs to be said at once, had no thought of creating unfamiliar rights of unknown, far-reaching extent by use of the words “equal protection” and “due process.” Instead, they meant to secure familiar, “fundamental rights,” and only those, and to guard them as of yore against deprivation except by (1) a nondiscriminatory law, and (2) the established judicial procedure of the State.

Supplementary Note on the Introduction

2

“Privileges or Immunities”

No State shall . . . abridge the privileges or immunities of citizens of the United States

The “privileges or immunities” clause was the central provision of the Amendment’s §1, and the key to its meaning is furnished by the immediately preceding Civil Rights Act of 1866, which, all are agreed, it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their “life, liberty, and property” —no more. For the framers those words did not have the sprawling connotations later given them by the Court but, instead, restricted aims that were expressed in the Act. The legislative history of the Amendment frequently refers to “fundamental rights,” “life, liberty, and property,” and a few historical comments will show the ties between the two.

At Locke’s hands, said Edward S. Corwin, natural law dissolves “into the rights of ‘life, liberty, and estate,’ ” a derivation noted by Francis Bacon. The trinity was reiterated by Sir Matthew Hale and sharply etched by Blackstone in his chapter on “The Absolute Rights of Individuals”:

these may be reduced to three principal or primary articles . . . I. The right of personal security [consisting] in a person’s legal and uninterrupted enjoyment of his life, his limbs . . . II. . . . the personal liberty of individuals . . . [consisting] in the power of locomotion, of changing situations or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment, or restraint, unless by due course of law . . . III. The third absolute right, inherent in every Englishman . . . of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.

For Blackstone “due course of law” and the “laws of the land” did not enlarge, they did not add to, the “absolute rights” of an Englishman, but rather marked the sole means whereby those rights might be diminished. These “absolute,” “fundamental” rights of “life, liberty, and property” referred, in sum, to (1) personal security; (2) freedom of locomotion; and (3) ownership and disposition of property.

On this side of the water the opening Resolve of the First Continental Congress affirmed that the Colonists “by the immutable laws of nature, the principles of the British Constitution . . . ‘are entitled to life, liberty, and property.” Blackstone, whose work was widely circulated in the Colonies, was cited in Federalist No. 84 and paraphrased by Kent. Instead of the “absolute rights” of “life, liberty, and property” the Framers resorted to the terminology of Article IV, §2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” These words were construed “confiningly” by Justice Bushrod Washington on circuit, in Corfield v. Coryell, as comprising “fundamental” rights such as freedom of movement, freedom from discriminatory taxes and impositions, ownership of property, access to the courts.

For the “principal spokesmen” and theorists of the abolitionist movement, Lysander Spooner and Joel Tiffany, “privileges and immunities” meant that a citizen has a right “to full and ample protection in the enjoyment of his personal security, personal liberty, and private property . . . protection against oppression . . . against lawless violence.” This echoes Blackstone’s formulation and in large part anticipates the privileges embodied in the Civil Rights Act of 1866. The sponsors of the Act, Senator Lyman Trumbull and Representative James F. Wilson, chairmen respectively of the Senate and House Judiciary committees, cited Blackstone, Kent, and Coryell, as did others. And John A. Bingham, draftsman of the Amendment, stated that he had drawn the “privileges or immunities” clause of the Fourteenth Amendment from Article IV, §2.

The Civil Rights Act of 1866

The meaning and scope of the Fourteenth Amendment are greatly illuminated by the debates in the 39th Congress on the antecedent Civil Rights Act of 1866. As Charles Fairman stated, “over and over in this debate [on the Amendment] the correspondence between Section One of the Amendment and the Civil Rights Act is noted. The provisions of the one are treated as though they were essentially identical with those of the other.” George R. Latham of West Virginia, for example, stated that “the ‘civil rights bill’ which is now a law . . . covers exactly the same ground as this amendment.” In fact, the Amendment was designed to “ constitutionalize ” the Act, that is, to “embody” it in the Constitution so as to remove doubt as to its constitutionality and to place it beyond the power of a later Congress to repeal. An ardent advocate of an abolitionist reading of the Amendment, Howard Jay Graham, stated that “virtually every speaker in the debates on the Fourteenth Amendment—Republican and Democrat alike—said or agreed that the Amendment was designed to embody or incorporate the Civil Rights Act.”

Section 1 of the Civil Rights Bill provided in pertinent part,

That there shall be no discrimination in civil rights or immunities . . . on account of race . . . but the inhabitants of every race . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment . . . and no other.

The specific enumeration was in response to a sentiment expressed at the very outset by Senator John Sherman, who desired to secure such rights to the freedmen, “naming them, defining precisely what they should be.” Shortly stated, freedmen were to have the same enumerated rights (as white men), be subject to like punishment, suffer no discrimination with respect to civil rights, and have the equal benefit of all laws for the security of person and property. Patently these were limited objectives; the rights enumerated, said William Lawrence of Ohio, were the “ necessary incidents of these absolute rights,” that is, of “life, liberty, and property,” lacking which those “fundamental rights” could not be enjoyed. It was these “enumerated rights,” “stated in the bill,” said Martin Thayer of Pennsylvania, that were “the fundamental rights of citizenship.”

Section 1 of the Bill was a studied response to a perceived evil, the Black Codes, which the Republicans averred were designed to set emancipation at naught, to restore the shackles of the prior Slave Codes, and to return the blacks to serfdom. The Bill was necessary, Senator Henry Wilson of Massachusetts said, because the new Black Codes were “nearly as iniquitous as the old slave codes.” Citing the prewar Slave Code of Mississippi, which prohibited the entry of a free Negro into the State, travel from one county to another, serving as a preacher, teaching slaves, and so on, Senator Trumbull stated that “the purpose of the bill . . . is to destroy all these discriminations.” References to the Black Codes stud the debates: they were described as “atrocious” and “malignant.” Samuel W. Moulton of Illinois, William Windom of Minnesota, Thomas D. Eliot of Massachusetts, and Senator Daniel Clark of New Hampshire considered that the Bill was needed to protect the Negro against “damnable violence,” “wrong and outrage,” “fiendish oppression,” “barbarous cruelties.” As Senator John B. Henderson, a Republican from Missouri, stated, “though nominally free, so far as discriminating legislation could make him [the black] so he was yet a slave.” Republicans did not have to travel beyond the halls of Congress to savor Southern recalcitrance. Toward the close of the debates, Benjamin G. Harris of Maryland, an old-line Democrat, said,

The States will still retain control and govern in their own way that portion of their population without leave asked of the United States. Mr. Speaker, all the efforts made here or elsewhere to educate the negro to an equality with the white man in the southern States, either civilly, socially or politically, are perfectly idle. The negro must be kept in subordination to the white man.

So it proved.

The explanations of the Civil Rights Bill by the respective committee chairmen made its limited objectives entirely clear. Speaking to “civil rights and immunities,” House Chairman Wilson asked,

What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed . . . Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights and immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.”

quoting Chancellor Kent. Of “immunities” Wilson said that a black should “not be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . This is the spirit and scope of the bill, and it does not go one step beyond.” M. Russell Thayer of Pennsylvania stated that “to avoid any misapprehension” as to what the “fundamental rights of citizenship” are, “they are stated in the bill. The same section goes on to define with great particularity the civil rights and immunities which are to be protected by the bill.” And, he added, “when those civil rights which are first referred to in general terms [that is, civil rights and immunities] are subsequently enumerated, that enumeration precludes any possibility that the general words which have been used can be extended beyond the particulars which have been enumerated,” that the Bill was for “the protection of the fundamental rights of citizenship and nothing else.” Wilson emphasized that the rights enumerated were no “greater than the rights which are included in the general terms ‘life, liberty, and property.’ ” He did not proceed from the dictionary but responded to a sentiment unequivocally articulated by James W. Patterson of New Hampshire in a later discussion of the Fourteenth Amendment, for which he voted. I am opposed, he stated, “to any law discriminating against [blacks] in the security of life, liberty, person, property and the proceeds of their labor. These civil rights all should enjoy. Beyond this I am not prepared to go, and those pretended friends who urge political and social equality . . . are . . . the worst enemies of the colored race.”

Such views had been expressed in the Senate by Trumbull, who drafted the Bill: “The bill is applicable exclusively to civil rights. It does not propose to regulate political rights of individuals; it has nothing to do with the right of suffrage, or any other political right.” Commenting on Corfield v. Coryell, Trumbull stated that such cases had held that under the “privileges and immunities” of Article IV, §2, a citizen had “certain great fundamental rights, such as the right to life, to liberty, and to avail oneself of all the laws passed for the benefit of the citizen to enable him to enforce his rights.” These were the rights with which the Civil Rights Bill would clothe the Negro.

Suffrage, said Senator Jacob M. Howard in later explaining the Fourteenth Amendment, is not “one of the privileges and immunities thus secured by [Article IV, §2 of] the Constitution”; it is not, said Senator William P. Fessenden of Maine, chairman of the Joint Committee on Reconstruction, a “natural right.” Trumbull stated that the Bill “has nothing to do with the right of suffrage, or any other political rights.” When Senator Willard Saulsbury, a Democrat of Delaware, sought specifically to except “the right to vote,” Trumbull replied: “that is a political privilege, not a civil right. This bill relates to civil rights only.” And he reiterated that the Bill “carefully avoided conferring or interfering with political rights or privileges of any kind.” The views of Trumbull and Wilson were shared by fellow Republicans. The “only effect” of the Bill, said Senator Henderson, was to give the blacks the enumerated rights. “These measures did not pretend to confer upon the negro the suffrage. They left each State to determine the question for itself.” Senator Sherman said the bill “defines what are the incidents of freedom, and says that these men must be protected in certain rights, and so careful is its language that it goes on and defines those rights, the rights to sue and be sued [etc.] . . . and other universal incidents of freedom.” Thayer stressed that the bill did not “extend the right of suffrage,” that suffrage was not a “fundamental right.” That the purpose of the bill was to prevent discrimination with respect to enumerated, fundamental not political or social rights, was also stated in one form or another by Cook and Moulton of Illinois, Hubbell, Lawrence, and Shellabarger of Ohio, and Windom of Minnesota.

Since Corfield v. Coryell is cited on all hands, it will profit us to consider its bearing on the scope of “privileges or immunities.” The actual holding was that the phrase did not confer on an out-of-state citizen the right to dredge for oysters in New Jersey waters. In passing, Justice Washington stated:

We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental . . . They may, however, be all comprehended under the following general heads: Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety . . . The right of a citizen of one state to pass through, or reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the citizens of the other state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised . . . But 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.

The last sentence alone militates against an “all-inclusive” reading of Corfield.

In the main, these are the privileges and immunities enumerated in the Civil Rights Bill. Justice Washington’s inclusion of the “elective franchise, ” as Charles Fairman remarked, was “plainly wrong.” Article IV hardly intended to enable a transient migrant to vote, and this after excluding him from dredging for oysters. From the beginning, admission to suffrage had been the province of the State, as Chief Justice Parker of Massachusetts held at about the same time as Corfield, being preceded by Judge Samuel Chase of Maryland. Right or wrong, it was open to Congress to take a narrower view than that of Washington for purposes of the Act which the Fourteenth Amendment was to constitutionalize. Trumbull did just this, saying of Washington, “This judge goes further than the bill” in including the “elective franchise.” Graham dwells on the Corfield phrase “Protection by the government; the enjoyment of life and liberty . . . and to pursue and obtain happiness.” Here, too, the framers could choose to exclude protection for the “pursuit of happiness,” but in truth it was to Trumbull’s mind a synonym for property: “the great fundamental rights of life, liberty, and the pursuit of happiness.” And so it was read by Justice Bradley in the Slaughter-House Cases: the rights “to life, liberty and the pursuit of happiness are equivalent to the rights of life, liberty and property.” At any rate, the “pursuit of happiness” found no place in the Amendment; in its stead the framers substituted the bare word “property,” clinging to the traditional trinity: “life, liberty, and property.”

It remains to notice two earlier cases also cited in the debates. In Campbell v. Morris (1797), Judge Chase, before long to be a Supreme Court Justice, stated on behalf of the General Court of Maryland that counsel were agreed

that a particular and limited operation is to be given to these words [privileges and immunities] and not a full and comprehensive one. It is agreed that it does not mean the right of election . . . The court are of opinion it means . . . the peculiar advantage of acquiring and holding real as well as personal property, that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizens of the state is protected. It means, such property shall not be liable to any taxes or burdens which the property of the citizens of the state is not subject to . . . It secures and protects personal rights.

Mark that the emphasis is on freedom from discrimination, on equality with respect to described rights. In 1827, shortly after Corfield, Chief Justice Parker declared on behalf of the highest court of Massachusetts, in Abbott v. Bayley, that the privileges and immunities phrase confers a “right to sue and be sued,” that citizens who remove to a second State “cannot enjoy the right of suffrage,” but “may take and hold real estate.” Thus, long before 1866 courts had held that “privileges and immunities” were comprised of the rights Blackstone had enumerated; the framers, aware of Blackstone and the decisions, embodied those rights, and those rights only, in the Civil Rights Act of 1866.

That, however, is not the neoabolitionist reading of the history. So Alfred Kelly remarked, “Trumbull made it clear that his notion of the rights incidental to national citizenship were exceedingly comprehensive in character . . . Citing the dictum in Corfield v. Coryell, he argued that the rights of national citizenship included all ‘privileges which are in their nature fundamental’ . . . In short, he nationalized the comity clause [Article IV, §2] and turned it into a national bill of rights against the states, as the pre-war antislavery theorists had pretty generally done.” Such interpretations are poles removed from Trumbull’s carefully restricted explanations. In the debates on the Civil Rights Bill, Trumbull made no mention of the Bill of Rights, but tied the “privileges and immunities” phrase to “certain great fundamental rights such as the right to life, to liberty,” and the benefit of laws passed for the enforcement of those rights, explicitly excluding “political” rights. His fellows even more clearly viewed the enumerated rights as restrictive. As the citations to Blackstone and Kent show, “fundamental,” “natural” rights had become words of received meaning. TenBroek himself states that “the area of disagreement” about “privileges and immunities was not large, since their natural rights foundation was generally accepted”; they were “the natural rights of all men or such auxiliary rights as were necessary to secure and maintain those natural rights. They were the rights to life, liberty, and property. They were the rights to contract, and to own, use and dispose of property.”

Nevertheless, tenBroek remained fuzzy as to the meaning of “fundamental” rights as is shown by his citation to Senator Henderson. After noting Henderson’s explanation of the purpose of the Civil Rights Act, to give the rights therein enumerated (which he read into the record), and his reference to “those fundamental rights of person and property which cannot be denied to any person,” tenBroek concludes: “This was the sweeping view of those who sponsored . . . the Fourteenth Amendment. Henderson, however, had emphasized that the “only effect” of the Civil Rights Bill was to give the blacks the rights there listed, that because the “negro is the object of that unaccountable prejudice against race” the “country is not prepared” to give them more.

The Graham–tenBroek–Kelly writings have muddied analysis; they are not true to the historical facts. Shortly restated, those facts are that the “fundamental” rights which the framers were anxious to secure were those described by Blackstone—personal security, freedom to move about and to own property; they had been picked up in the “privileges and immunities” of Article IV, §1; the incidental rights necessary for their protection were “enumerated” in the Civil Rights Act of 1866; that enumeration, according to the framers, marked the bounds of the grant; and at length those rights were embodied in the “privileges or immunities” of the Fourteenth Amendment. An argument to the contrary, it may be stated categorically, will find no solid ground in the debates of the 39th Congress.

Supplementary Note on the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights

A

B

the civil rights bill of 1866

fundamental rights

3

The “Privileges or Immunities of a Citizen of the United States”

Narrow as was the protection afforded blacks by the “privileges or immunities” clause, it was at least designed to shield them from violence and oppression. Even that limited goal was soon aborted when the Supreme Court divorced the rights of “a citizen of the United States” from the freedom from the discrimination proscribed by the Amendment. Consequently, the provision has become the all-but-forgotten clause of the Constitution. In the Slaughter-House Cases the Supreme Court grounded this view in part on the differentiation between the declaration in the first sentence of §1 that “all persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside” and the second-sentence provision that no State “shall abridge the privileges or immunities of a citizen of the United States.” From this Justice Miller deduced that a “citizenship of the United States and a citizenship of a State . . . are distinct from each other,” and that §1 secured only the privileges of a “citizen of the United States.” So meager was his catalog of those privileges as to move Justice Field to exclaim that if this was all the privileges or immunities clause accomplished, “it was a vain and idle enactment.” Slaughter-House was a five-to-four decision, and Field was joined by Chief Justice Chase and Justices Bradley and Swayne in an opinion that took more accurate account of the framers’ intention than did that of Miller.

Preliminarily it will be useful to pull together a few strands that tie the privileges or immunities of §1 to the specific enumeration of the Civil Rights Act of 1866. There is first the correspondence to the Civil Rights Bill’s “civil rights and immunities,” “privileges” being narrower than “civil rights,” which had been deleted at Bingham’s insistence. Second, Chairman Trumbull explained that the Bill had been patterned on the “privileges and immunities” of Article IV, §2, and its construction by Justice Washington. Third, in introducing the prototype of §1, Bingham said that the “privileges or immunities” had been drawn from Article IV; fourth, Senator Howard similarly referred back to the Article. Speaking after Howard, Senator Luke P. Poland stated that §1 “secures nothing beyond what was intended by” the original privileges and immunities provision. More important is the all but universal identification of §1 with the Civil Rights Act. Why, then, were not the terms of the Act incorporated bodily in §1? Constitutional drafting calls for the utmost compression, avoidance of the prolixity of a code; “the specific and exclusive enumeration of rights in the Act,” as Bickel remarked, presumably was considered “inappropriate in a constitutional provision.” In sum, the words “privileges or immunities,” it is safe to say, were designed to secure “person and property” against violence and oppression by the rights auxiliary to such protection. How was this design separated from the “privileges or immunities of a citizen of the United States”?

Justice Miller correctly stated that Article IV, §2, did not “profess to control the powers of State governments over the rights of its own citizens.” Its sole purpose was to require that the rights granted by a State to its “own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” Without mentioning “citizens of the United States,” the courts had construed Article IV to mean that a migrant citizen from one State would enjoy the “fundamental rights” accorded by a sister State to its own citizens. This the framers understood; the cases were quoted, explained, and used as a platform for the Civil Rights Bill. The task, however, was not one of outright adoption but of adaptation. For the Negro did not become a migrant by emancipation; generally speaking, he remained in the same State. But he had experienced a transmigration, from that of a slave, a nonperson, to a freeman, and the framers meant to secure to this transmigrant the rights that Article IV, §2, had guaranteed to a migrant citizen.

Early on, James A. Garfield of Ohio stated, the goal was that “personal liberty and personal rights are placed in the keeping of the nation, that the right to life, liberty, and property shall be guarantied to the citizen in reality . . . We must make American citizenship the shield that protects every citizen, on every foot of our soil.” That motive manifestly was at the heart of the Civil Rights Bill: “all persons born in the United States . . . are hereby declared to be citizens of the United States,” and it went on to proscribe “discrimination in civil rights or immunities among the inhabitants of any State.” A citizen of the United States who was an “inhabitant” of a State was to be free from discrimination. The Bill, Chairman Wilson stated, “refers to those rights which belong to men as citizens of the United States and none other.” Raymond of New York said that it provided protection for “citizens of the United States . . . against anticipated inequality of legislation in the several States.” Cook of Illinois understood the Bill to provide “that as between citizens of the United States there shall be no discrimination in civil rights or immunities. When these rights which are enumerated in this bill are denied to any class of men on account of race or color, when they are subject to a system of vagrant laws which sells them into slavery or involuntary servitude, which operates upon them as upon no other part of the community, they are not secured in the rights of freedom.”

In the Senate, Trumbull stated that Corfield v. Coryell “enumerates the very rights belonging to a citizen of the United States which are set forth in the first section of the bill.” Senator Garrett Davis of Kentucky understood full well what Trumbull was about, and therefore proposed to substitute the Article IV, §2, formula— “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States” —explaining that it would apply “only when a citizen of one State goes into another State,” whereas, he stated, Trumbull “proposes now to apply his bill to every citizen of the United States . . . where that citizen is domiciled in the State in which he was born.” In other words, Trumbull would legislate “for the resident Negro in Kentucky, born there, who has always lived there, and who intends to remain there,” to which, he stated, Corfield has no application. Thus, Davis sought to restrict the Bill exactly as Justice Miller later did, but his proposal was stillborn. Instead, Trumbull reasoned from Corfield that were a law to declare a “person born in the United States a citizen of the United States, the same rights [listed in Corfield ] would then appertain to all persons who were clothed with American citizenship.” After President Johnson’s veto of the Bill, Trumbull again stated that “citizens of the United States” have “fundamental rights . . . such as the rights enumerated in this bill,” among them, citing Blackstone, that “restraints introduced by law should be equal to all ” and, quoting Kent, “the right of personal security, the right of personal liberty, and the right to acquire and enjoy property.” In short, the Senate rejected the Davis-Miller view in favor of a United States citizenship that would clothe residents of a State with the “fundamental rights” theretofore conferred on migrants.

Did these views, expressed in connection with the Civil Rights Bill, carry over into the Fourteenth Amendment? Here there is more than the intention to constitutionalize the Civil Rights Act. Frederick E. Woodbridge of Vermont stated that the proposed Bingham prototype was “intended to enable Congress . . . to give all citizens the inalienable rights of life and liberty, and to every citizen in whatever State he may be . . . that protection for his property which is extended to the other citizens of the State.” George R. Latham of West Virginia understood the Fourteenth Amendment “privileges and immunities of citizens of the United States” to “provide that no State shall make any discrimination in civil rights of citizens of the United States on account of race . . . the ‘civil rights bill’ which is now a law . . . covers exactly the same ground.” So, too, John M. Broomall of Pennsylvania stated, “We propose, first, to give power to the Government . . . to protect its own citizens within the States,” a proposition for which the House had “already voted . . . in the civil rights bill.” Ephraim R. Eckley of Ohio also stressed the need to provide “security for life, liberty and property to all citizens of all the States.” And Senator Howard referred to the privileges and immunities of Article IV, quoted Corfield to explain the terms, and stated that these rights “are secured to the citizens solely as a citizen of the United States.” Apart from Garrett Davis’ abortive attempt to limit this objective, no one, so far as I could find, disputed that the purpose of both the Civil Rights Act and the Amendment was to guarantee to “citizens of the United States,” whether they were migrants to or residents of a State, the enumerated fundamental rights.

In the process of hammering out the Amendment, the framers had lost sight of the definition of citizenship contained in the Civil Rights Bill, so it was late in the day when Senator Benjamin F. Wade of Ohio remarked anent the word “citizen” in §1, “that is a term about which there has been a great deal of uncertainty in our government.” To “put the question beyond cavil,” he proposed to “strike out the word ‘citizen’ [in what is now the second sentence of §1], and substitute all persons born in the United States.” Howard advanced a counterproposal, the present introductory sentence, “All persons born in the United States . . . are citizens of the United States and of the State wherein they reside.” Wade then withdrew his proposal. Presumably the Howard formulation struck Wade as a satisfactory substitute for, not a repudiation of, his own proposal. Although the Negro had been emancipated, the Dred Scott decision threw a shadow over his citizenship; the matter had been a source of interminable argument. Trumbull wished “to end that very controversy, whether the Negro is a citizen or not.” Howard stated that his definitional amendment of §1 “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” And he further explained, “we desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power” of those who would “expose the freedmen again to the oppression of their old masters,” thus confirming that his definition was not a sub rosa abandonment of the paramount goal throughout: protection of the resident Negro against State discrimination. In the House, Thaddeus Stevens of Pennsylvania regarded the Howard interpolation as an “excellent amendment, long needed to settle conflicting decisions.” This limited purpose of Howard’s definition throws doubt on Miller’s view that it was designed to demark the rights of a citizen of the United States from those of a State citizen. Against the manifest purpose of the framers, of which Justice Miller was well aware, his reliance on a rule of construction—to express at one point is to exclude at another—should carry little weight. Rules of construction are useful guides where other light is lacking, but they are not meant to dim or extinguish available light. The cardinal purpose of interpretation, it cannot too often be emphasized, is to ascertain and effectuate, not defeat, the intention of the framers. Once that purpose is ascertained, it may not be thwarted by a rule of construction.

In sum, the purpose of the framers was to protect blacks from discrimination with respect to specified “fundamental rights,” enumerated in the Civil Rights Act and epitomized in the §1 “privileges or immunities” clause. To achieve that purpose they made the black both a citizen “of the United States and of the State in which he resides.” They did not intend by the addition of State citizenship to diminish the rights they had been at such pains to specify, but the better to secure them. The notion that by conferring dual citizenship the framers were separating said rights of a citizen of the United States from those of a State citizen not only is without historical warrant but actually does violence to their intention. Fessenden stated that the definition was framed “ to prevent a State from saying that although a person is a citizen of the United States he is not a citizen of the State.” He did not mean to safeguard State citizenship in order to leave blacks at the mercy of Southern States. It was precisely their abuse of the freedmen that led to the Amendment.

Justice Miller next stressed the serious consequences that would follow adoption of a construction contrary to his own; the effect would be to “degrade the State governments by subjecting them to the control of Congress” in unwonted manner. He read “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” as transferring “the entire domain of civil right” from the States to the federal government, so that Congress could even “pass laws in advance, limiting and restricting the exercise of legislative power by the States.” Here Miller imported a term into the clause; “abridge” presupposes preliminary State action; before such abridgment there is nothing upon which to act “in advance.” Moreover, Congress was confined to corrective measures, as Miller was aware: “If, however, the States did not conform their laws to its [the Amendment’s] requirements, then by the fifth section . . . Congress was authorized to enforce it by suitable legislation.” It was emphatically not authorized to promulgate a general code “in advance.”

Miller himself found that “the existence of laws in the States where the newly emancipated negroes reside, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied” —that is, the Black Codes. The “one pervading purpose,” he stated, was “protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.” Consequently, the Amendment did not encompass “all legislation,” but only discriminatory legislation with respect to specified rights, as Justice Field pointed out: “What, then, are the privileges and immunities which are secured against abridgment by State legislation? In the first section of the Civil Rights Act Congress has given its interpretation of these terms [which] . . . include the right ‘to make and enforce contracts . . .’ ” The correction of discriminatory laws with respect to the enumerated “fundamental rights” would hardly constitute the “court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens.” When Miller held that “the citizen of a State” must look to the State for protection, he aborted what he himself had declared to be the “pervading purpose”: to protect the Negro from the “evil” of the Black Codes, Codes that handed the Negro back to his oppressors.

Paradoxically, Justice Miller was ready to protect Negroes from “gross injustice and oppression” by resort to the equal protection clause. How, one wonders, did “equal protection” escape the blight that struck down “privileges or immunities”? It equally “degrad[ed] the State governments by subjecting them to the control of Congress”; it too constituted a “great departure from the structure and spirit of our institutions.” And whereas the limits of “privileges or immunities” can be discerned in the rights specified in the Civil Rights Act which §1 incorporated, there is no clue whatever to the rights comprehended by the Miller formula—equal protection against “gross injustice and hardship.” One of the ironies that bestrews the path of the Court is that the censorship abjured by Miller under “privileges or immunities” really became unlimited under the converted due process clause.

No discussion of Slaughter-House may fail to take account of Justice Bradley’s dissent. Where Field won the concurrence of three associates, Bradley stood alone; where Miller held that protection of the citizen was for the State, Bradley propounded a theory of “absolute” rights that neither State nor nation may invade. That theory, as will hereinafter appear, can draw small comfort from the intention of the framers; and he himself stated with respect to the preexisting Article IV, §2: “It is true that courts have usually regarded [it] . . . as securing only equality of privileges with the citizens of the State in which the parties are found.” In holding that the Amendment was designed to assure similar equality with respect to specified rights among residents of a State, Justice Field staked out a position midway between the extremes of Miller and Bradley, one that honestly reflected the intention of the framers.

There remain some remarks by Senator Trumbull in 1871, which Graham reads as a denial “that the Fourteenth Amendment authorized Congress to protect citizens in their rights of person and property in the States. Such an interpretation [Trumbull] declared, would mean ‘annihilation of the States.’ ” Little weight has been attached by the Supreme Court to postenactment remarks, even of the Congress itself. When they contradict representations made by the speaker during the enactment process, upon which others have been led to rely, they should be treated with special reserve. Consider, too, the circumstances that gave rise to Trumbull’s 1871 remarks. President Grant, Graham recounts, “had just called for a second Force Bill to cope with extralegal suppression of Negro rights. The problem . . . had risen not in the contemplated or familiar form of discrimination by carriers, theaters and inns but in the infinitely more tangled context of Southern whites fighting misrule and military government.” Trumbull “flatly declined to go along with the latest proposal”; the tug of new political considerations shaped his version of the past. Now he maintained that the protection afforded by the Fourteenth Amendment was no greater than that accorded by Article IV, §2, that that section “did not have reference to the protection of those persons in individual rights in their respective States, except so far as being citizens of one State entitled them to the privileges and immunities of citizens in every other”; and that the “fourteenth amendment does not define the privileges and immunities of a citizen of the United States any more than the Constitution originally did.”

This was only half the story. Trumbull did not mention his rejection of that very argument by Garrett Davis, that he had read the judicial definitions of the Article IV, §2, privileges and immunities to the framers and patterned the Civil Rights Bill on Corfield v. Coryell, that he adapted the Article IV, §2, conception—a migrant citizen was entitled to the same fundamental rights as a resident citizen—to the transmigrant black so suddenly released from slavery, named him a citizen of the United States to assure him of the same rights the migrant enjoyed under Article IV. To say in these circumstances that the Fourteenth Amendment “does not define the privileges and immunities” is therefore a half-truth. The terms, in lawyers’ jargon, had become “words of art”; in borrowing them (with the exclusion of suffrage), Trumbull expressly gave them the meaning which courts had given under Article IV and which he had carefully spelled out in the Civil Rights Bill. It follows that Trumbull’s 1871 argument that “the privileges and immunities belonging to a citizen of the United States as such are of a national character,” that “National citizenship is one thing and State citizenship another” —the precursor of the Slaughter-House dichotomy—was a repudiation of his own explanation to the framers, his enumeration of specific rights in the Bill that were to belong to “citizens of the United States.” He could change his mind but he could not change that of the 39th Congress which had adopted the Civil Rights Act on the strength of his representations and then went on to incorporate the Act in the Amendment.

4

Negro Suffrage Was Excluded

No area of Negro rights considered by the 39th Congress was so extensively discussed as Negro suffrage. The issue was crucial to the maintenance of Republican ascendancy, a goal boldly proclaimed by Stevens at the very outset. Such ascendancy, the mass of Republicans believed, was to be assured through the reduction of Southern representation in the House of Representatives in proportion as a State denied or abridged suffrage, the device embodied in §2 of the Amendment. Some strongly doubted whether the rebel ruling class, outnumbered by blacks, could be induced to “divest itself of the government and hand it over to a subject and despised caste.” But it was more important, Senator George H. Williams of Oregon, member of the Joint Committee, candidly avowed, to limit Southern representation than to provide “that negroes anywhere should immediately vote.” The fact that Negro suffrage was unmistakably excluded from the ambit of the Civil Rights Bill, which proceeded on a parallel track with debate on “representation,” lends substance to his avowal. The intention to exclude suffrage from the Amendment as well need not rest entirely on its incorporation of the Civil Rights Act, for there is ample affirmative evidence of that purpose.

Chief Justice Warren held in Reynolds v. Sims, a State reapportionment case, that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” The premise, he said, that a State may not deny suffrage was derived from a “conception of political equality . . . [that] can mean only one thing—one person, one vote.” Equality, however, did not carry that meaning for the framers; and in a powerful dissent, Justice Harlan reproached the Court “for its failure to address itself at all to the Fourteenth Amendment as a whole or to [its] legislative history.” Even one who regards the reapportionment decisions with favor, Carl Auerbach, lamented that “the failure of the Court to mention, let alone deal with, [Harlan’s] argument is indeed, as he charged, remarkable and confounding.” Another proponent of those decisions, William Van Alstyne, states that “the majority seems tacitly to have conceded the argument.” In 1970 Justice Harlan amplified his dissent in Oregon v. Mitchell; both of his dissents are models of scholarly exactitude. Having combed the debates for myself, I can confirm his accuracy and scrupulousness in drawing inferences from the facts; one can only complain that he left so few gleanings for those who came after. Since his discussion in the two opinions covers many pages, and since it is contained in law reports that only scholarly specialists are likely to consult, I have undertaken to compress the materials into smaller compass, particularly because they furnish the springboard for much that is to follow.

The Grant of Suffrage Was Excluded From §1

Senator Sumner labeled the right to vote “the Great Guarantee; and the only sufficient Guarantee,” without which, said Senator Samuel C. Pomeroy of Kansas, the Negro “has no security.” Similar sentiments were expressed by James A. Garfield and James M. Ashley of Ohio, George S. Boutwell of Massachusetts, Ignatius Donnelly of Minnesota, and William A. Newell of New Jersey—Republicans all. Nevertheless, as Senator Trumbull emphasized, it was not included in the Civil Rights Bill. Why not? Because, in the words of David Donald, it was “political dynamite.” The reasons have been so admirably compressed by Professor Van Alstyne as to bear quotation in extenso. He notes that the Joint Committee considered a forthright proposal to abolish “any distinctions in political or civil rights . . . on account of race” and states,

The decision was made, however, not to propose a limited, single purpose amendment; not to advertise the particular issue of Negro suffrage and to dispose of it through a provision instantly invalidating the laws of all states where equal suffrage regardless of race was denied. The reluctance of the Republicans bluntly to dispose of the issue in this fashion is readily explainable; there was not sufficient prospect that the necessary number of votes would ratify such an amendment.

There were, in 1866, but five states in the nation that permitted Negroes to vote on equal terms with whites: Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Together, these states contained a mere 6 per cent of the Negro population. New York also permitted Negro suffrage, but only for those possessed of at least a $250 freehold estate, an added “qualification” that whites were not obliged to satisfy. No other state permitted Negroes to vote, regardless of qualification. Moreover, in late 1865, shortly before the Thirty-ninth Congress convened, Connecticut, Minnesota, and Wisconsin voted down impartial suffrage by popular referendum. The Territory of Colorado defeated a referendum for impartial suffrage by a wide margin in September, 1865, and was, nevertheless, admitted to the Union by Congress.

The admission of Colorado, with its ban on Negro voting, followed the admission of Nevada, which had a similar ban, and was in turn followed by the readmission of Tennessee on July 24, 1866. The readmission of Tennessee [ after submission of the Fourteenth Amendment with its equal protection clause for ratification] was accomplished, moreover, with complete awareness that its general assembly had, on June 5, 1865, restricted the franchise to white males only. Indeed, all these facts were well known to the Congress, and were gleefully recited by some of the Democrats who challenged the Republicans to dare make an issue of Negro suffrage.

All these things and more had a conspicuous and significant influence on the Thirty-Ninth Congress.

Indeed they had! They explain why the framers rejected Negro suffrage, as may immediately be gathered from two statements among many. Senator Pomeroy stated: “This nation . . . has not yet reached the point of giving all men their rights by a suffrage amendment; three-fourths of the States are not ready.” In opening the debate on the Amendment, Senator Jacob Howard stated on behalf of the Joint Committee, “it was our opinion that three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race.” These views were repeated in the Final Report of the Joint Committee on Reconstruction.

If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general terms “equal protection” the very grant they could not swallow? Van Alstyne also notes a number of proposals that would expressly abolish distinctions “in the exercise of the legislative franchise on account of race or color” (including one by Sumner that was rejected by a vote of 38 to 8), and explains that “there was not sufficient prospect that the necessary number of States would ratify such an amendment.” Are we to impute to the framers an intention to shroud in ambiguity the Negro suffrage they dared not “advertise” by a “blunt,” unequivocal proposal? Something of the sort is suggested by Van Alstyne, but there is no evidence of representations that the Fourteenth would mean one thing in 1866 and the very thing then “feared” in the future. A legislative intention to have words mean one thing in 1866 and the opposite in the future is so remarkable as to call for strict proof, not speculation, particularly when disclosure spelled political disaster. But let me defer comment on this “open-ended” theory, fathered by Alexander Bickel, embraced by Alfred Kelly and Van Alstyne, and then picked up by Justice Brennan, to a later chapter, and for the moment permit the framers to speak for themselves. Because the suffrage issue is so vital for my subsequent discussion of the scope of judicial review, because in the eyes of Justice Brennan the historical record is “vague and imprecise,” it is essential by copious documentation to establish firmly the deliberate exclusion of Negro suffrage.

Negro Suffrage Was Unacceptable

With but “6% of the Negro population,” New England’s advocacy of Negro suffrage, Senator Edgar Cowan of Pennsylvania acidly lectured Sumner, came cheap: “he simply had no understanding of what it is to live in a community surcharged with an idle, dissolute, vicious, ignorant negro population just emerged from slavery.” At the other end of the political spectrum, the Radical leader Thaddeus Stevens, also of Pennsylvania, wrote, “In my county are fifteen hundred escaped slaves. If they are specimens of the negroes of the South, they are not qualified to vote.” Stevens told Robert Dale Owen, “We haven’t a majority, either in our committee or in Congress, for immediate suffrage; and I don’t believe the States have yet advanced so far that they would ratify it.” William Lloyd Garrison, the indomitable abolitionist, “came out against the forcing of Negro suffrage upon the South.”

The Republicans were keenly alive to the situation. Very early in the session, Roscoe Conkling explained,

The northern states, most of them, do not permit negroes to vote. Some of them have repeatedly and lately pronounced against it. Therefore, even if it were defensible as a principle for the Central Government to absorb by amendment the power to control the action of the States in such a matter, would it not be futile to ask three-quarters of the States to do for themselves and others, by ratifying such an amendment, the very thing most of them have already refused to do in their own cases?

Senator Fessenden, chairman of the Joint Committee, said of a suffrage proposal, there is not “the slightest probability that it will be adopted by the States . . . [it] would not commend itself to anybody.” Sumner’s own Massachusetts colleague, Senator Henry Wilson, a leading Radical, commented on Senator Henderson’s proposal of suffrage without distinction of race, “I cannot think . . . there is any hope of adoption after the indications of the last six months.” Another Senator who favored Negro suffrage, Doolittle of Wisconsin, said, “out of New England there are not three States in this Union, neither Nevada nor Colorado, nor any of the new States or the old States that will vote for an amendment . . . by which negro suffrage shall be imposed upon the States.” Similar remarks were made by still others. On July 21, 1866, shortly after the Amendment passed the Congress, Sumner proposed an amendment to a bill for admission of Tennessee that “there shall be no denial of the electoral franchise, or of any other rights, on account of color or race, but all persons shall be equal before the law.” It was voted down without debate, 34 to 4. This background lends meaning to Senator Howard’s assurance that “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured” —an echo of assurances during debate on the Civil Rights Bill. Bingham likewise stated that “The amendment does not give . . . the power to Congress of regulating suffrage in the several States.” In any event, how can we attribute to the ratifiers approval of Negro suffrage when midway in the course of ratification, in the elections of April 1867, Bingham’s own State, Ohio, “overwhelmed a negro suffrage amendment by 40,000? In every state where the voters expressed themselves on the Negro suffrage issue they turned it down.”

attachment to state sovereignty

Notwithstanding that the States’ Right doctrine had been badly tarnished by its association with secession, a potent factor in the exclusion of Negro suffrage was a deep-seated attachment to State sovereignty. That this was no mere rationalization for Negrophobia may be gathered from the objection of Senator James W. Grimes of Iowa to a national livestock quarantine measure: “Let us go back to the original condition of things, and allow the States to take care of themselves.” On the eve of the Civil War, Lincoln stated in his First Inaugural Address, “The right of each State to order and control its own domestic institutions according to its own judgment exclusively is essential to the balance of powers on which the perfection and endurance of our political fabric depends.” So Story had earlier stated, and this view was reiterated by Republicans like Thomas T. Davis, Robert S. Hale, and Giles W. Hotchkiss of New York and Latham of West Virginia. Congress, Latham said, “has no right to interfere with the internal policy of the several states.” “The proposition to prohibit States from denying civil or political rights to any class of persons,” said Conkling, “encounters a great objection on the threshold. It trenches upon the principle of existing local sovereignty . . . It takes away a right which has been always supposed to inhere in the States.” Bingham, a leader in the Negro cause, stated that “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” It was because of the prevalence of such sentiment that Trumbull, defending the Civil Rights Bill after President Johnson’s veto, felt constrained to reassure the Senate that the Bill “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property.”

This sentiment emerges even more sharply when suffrage is in issue, as when Conkling stated that interference therewith “meddles with a right reserved to the States . . . and to which they will long cling before they surrender it.” Early in the session, the Radical leader Stevens said of a proposed amendment to reduce State representation in proportion to a denial of Negro suffrage: “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualification of their voters? . . . You could not get five in this Union.” In the Senate, Chairman Fessenden stated, “everybody has admitted from the foundation of the Government down to the present day that the power to fix the qualifications of voters rested with the States,” and that the proposed “representation” provision “leaves it just as it was before, and does not change it.” After stating his preference for Negro suffrage, Senator Doolittle said that “the Federal Government had no right or constitutional power to impose on a State negro suffrage . . . the right of a State to determine that question was one of the reserved rights of every State.” Like Stevens, he averred that “out of New England” no three States would vote for an amendment “by which negro suffrage shall be imposed upon the States.” Although Senator Henderson of Missouri was an advocate of Negro enfranchisement, he too stated that he was “not now ready to take away from the States the long-enjoyed right of prescribing the qualifications of electors in their own limits.” “The Radical leaders,” Flack stated, “were aware as any one of the attachment of a great majority of the people to the doctrine of States rights . . . the right of the States to regulate their own internal affairs.” These sentiments were accurately summarized by Justice Miller in 1872, shortly after adoption of the Fourteenth and Fifteenth Amendments:

we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the states with power for domestic and local government . . . was essential to the working of our complex form of government.

This “commitment to traditional state-federal relations meant,” in the words of Alfred Kelly, that “the radical Negro reform program could be only a very limited one.” That it was in fact a program “limited” to a ban on discrimination with respect to “fundamental rights” from which suffrage was excluded is confirmed by §2.

The Effect of §2

The framers’ intention to leave control of suffrage in the States, untouched by §1, is confirmed by §2 of the Amendment. That section provides,

Representation shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State. But when the right to vote at any election . . . is denied . . . or in any way abridged . . . the basis of representation therein shall be reduced.

The denial is not prohibited, it is not declared void, but as Eckley of Ohio put it, if a State “persists in withholding the ballot” from blacks, she will be “confine[d] . . . to the white basis of representation.” It is difficult to dispute Justice Harlan’s conclusion that §2 “expressly recognizes the State’s power to deny ‘or in any way’ abridge the right . . . to vote.” Were this doubtful, doubts are dispelled by the “blinding light” of the legislative history. Since that is disputed by Van Alstyne and Justice Brennan, the evidence must be permitted to speak for itself, unfiltered by a commentator’s paraphrase.

Bingham, a leading Republican member of the Joint Committee, the pillar of the neoabolitionists, said, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” Instead, as he said of a predecessor proviso, it “offers an inducement to those States . . . to make the franchise universal.” On the Senate side, Chairman Fessenden said of an earlier provision, H.R. No. 51, couched in terms of racial discrimination respecting suffrage, “It takes the Constitution just as it finds it, with the power in the States to fix the qualifications of suffrage precisely as they see fit . . . If in the exercise of the power you [States] have under the Constitution you make an inequality of rights, then you are to suffer such and such consequences.” When illness prevented Fessenden from explaining §2, Senator Howard stated: “The second section leaves the right to regulate the elective franchise with the States, and does not meddle with that right.” Later he added: “We know very well that the States retain the power which they have always possessed of regulating the right of suffrage . . . the theory of this whole amendment is to leave the power of regulating the suffrage with . . . the States.” Senator Yates of Illinois recognized that “we do not obtain suffrage now”; Senator Doolittle of Wisconsin stated, the “amendment proposes to allow the States to say who shall vote”; Senator Poland of Vermont would have preferred that “the right of suffrage had been given at once,” but realized it was not “practicable”; Senator Howe of Wisconsin likewise preferred to say “no man shall be excluded from the right to vote” to saying “hereafter some men may be excluded from the right of representation.”

In the House, Blaine of Maine stated, “The effect contemplated . . . is perfectly well understood, and on all hands frankly avowed. It is to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that people shall be denied political rights. Give them the vote or lose representation.” Conkling stated that the Joint Committee rejected proposals “to deprive the States of the power to disqualify or discriminate politically on account of race or color” and preferred “to leave every State perfectly free to decide for itself . . . who shall vote . . . and thus to say who shall enter into its basis of representation.” “ [E]very State,” he reiterated, “will be left free to extend or withhold the elective franchise on such terms as it pleases, and this without losing anything in representation if the terms are impartial to all.” And he summed up, “every State has the sole control, free from all interference, of its own interests and concerns,” spelling out that if New York chose to withhold suffrage, “her right cannot be challenged.” Stevens, co-chairman of the Joint Committee, stated that the right of a State to disfranchise “has always existed under the Constitution” and the proposed “representation” provision “acknowledges it.” He repeated that “the States have the right . . . to fix the elective franchise” and that the proposed representation provision “does not take it from them.” In fact, he preferred the reduction of representation to an “immediate declaration” that “would make them [Negroes] all voters”; he did not “want them to have the right of suffrage” until they had been educated in “their duties . . . as citizens.” Although Garfield expressed his “profound regret” that the Joint Committee had been unable to “imbed . . . [suffrage] as a part of the fundamental law of the land,” he stated, “I am willing . . . when I cannot get all I wish to take what I can get.” Similarly, John F. Farnsworth of Illinois stated, “I should prefer to see incorporated into the Constitution a guarantee of universal suffrage; as we cannot get the required two-thirds for that, I cordially support this proposition as the next best.”

Nathaniel P. Banks of Massachusetts congratulated the Joint Committee for “waiv[ing] this matter in deference to public opinion,” and George F. Miller of Pennsylvania stated, “This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself.” Against this mass three Democrats raised the possibility in the House that the amendment might affect suffrage qualifications. On the other hand, leading Democrats—Senators Reverdy Johnson and Garrett Davis—better understood that it left suffrage to the States. These historical materials, which by no means exhaust the quotable statements, seem to me, as to Robert Dixon and Ward Elliott, “overpowering,” “overwhelming.” In discreetly skirting the issue the Court tacitly acknowledged their unimpeachability. The rebuttal thus eschewed by Chief Justice Warren was undertaken by Professor Van Alstyne, and it emboldened Justice Brennan to pick up the cudgels in a later case, Oregon v. Mitchell.

Before examining the Warren and Brennan opinions it is desirable to consider in this setting the argument against reapportionment and its relation to suffrage.

Supplementary Note on Suffrage

Howard is confirmed by the Report of the Joint Committee, which drafted the Amendment: “It was doubtful . . . whether the States would surrender a power they had always exercised, and to which they were attached.”

5

Reapportionment

BAKER v. Carr (1962), the unprecedented reapportionment decision, said Paul Kauper, opened a “new chapter of judicial adventurism.” When the issue was once again presented in Reynolds v. Sims, Justice Harlan wrote a dissent that to my mind is irrefutable. The majority of the Court made no pretense of meeting his historical demonstration; it remained for William Van Alstyne to essay a rebuttal. Harlan’s reliance on the legislative history to establish the “original understanding,” Van Alstyne writes, pertains solely to “exclusive state power over suffrage qualifications” and has no bearing on “the separate issue of malapportionment”; “there was almost no mention of the subject.” That fact alone gives one pause: how can a revolution in Northern apportionment be based on nonmention?

The dominant purpose of the 39th Congress was to maintain Republican hegemony by reducing Southern representation; and only secondarily did they think to secure the “person and property” of the Negro from oppression. There were repeated disclaimers of any intention to interfere with State sovereignty beyond those objectives. Moreover, while Negro suffrage was predominantly a Southern problem, reapportionment would invade long-established State practices with respect to white voters in the North. But Van Alstyne argues that to read malapportionment in the equal protection clause “is to say only that among the enfranchised [white] elite,” qualified by the State to vote, “no invidious distinction shall be permitted. The States may be as capricious as they please in withholding the ballot but not in perpetuating elites within the elite.” That is a tremendous “only.” Republicans who shrank from interfering with State control of Negro suffrage in the South would scarcely have dared to impose on the North a radical reconstruction of white apportionment patterns. Certainly there was no disclosure that such intrusion was contemplated; there is in fact striking evidence that malapportionment was an accepted practice. Speaking with respect to reduced representation, Blaine of Maine said,

if you cut off the blacks from being enumerated in the basis of representation in the southern States the white population of those States will immediately distribute Representatives within their own territory on the basis of white population. Therefore the most densely populated negro districts will not be allowed to offset the most densely populated white districts . . . Do you suppose that the upland districts of Georgia and South Carolina, inhabited largely by whites, will, in the event of adoption of this amendment, allow the distribution of Representatives to be made on the basis of the whole population? By no means. They will at once insist on the white basis within the State.

Not a hint that this would be unlawful, but, rather, clear recognition that States were free to apportion representation to suit themselves. Although, as Van Alstyne notices, this would leave “areas populated by non-voters without representation (and not merely without a vote in the choice of ‘their’ representatives),” Bingham replied, “no possible amendment . . . will answer the purpose unless it is followed by further legislation.” Bingham thus confirms Blaine’s recital of the plenary State power over apportionment and implies that the “representation” (§2) proposal was not designed to meet this situation. Van Alstyne’s comment that “Blaine’s remarks were directed only to the apportionment of congressional rather than state representation” implausibly suggests that the States would be readier to surrender control over their own internal patterns—a suggestion that is incompatible with the pervasive attachment to State sovereignty.

Blaine’s remarks did not reflect a fleeting improvisation, but responded to established practice. Earlier he had stated: “As an abstract proposition no one will deny that population is the true basis of representation; for women, children and other nonvoting classes may have as vital an interest in the legislation . . . as those who actually cast the ballot.” But, he noted, recognizing existing practice, as had Federalist No. 54 and James Wilson long before, “the ratio of voters to population differs very widely in different sections, from a minimum of nineteen per cent to a maximum of fifty-eight per cent.” Even that uncompromising abolitionist Charles Sumner was reconciled to such practices because they reflected “custom and popular faith,” and could not be changed “unless supported by the permanent feelings and conditions of the people.” Then, too, in the congressional debate of June 1868 (that is, prior to ratification of the Fourteenth Amendment), on the readmission of the rebel States, Farnsworth pointed out that the Florida apportionment provision gave “to the sparsely populated portions of the State the control of the Legislature.” But Ben Butler responded that the Senate Judiciary Committee “have found the [Florida] constitution republican and proper,” as did the Senate, the House Committee on Reconstruction, and the House itself, thus reaffirming that such malapportionment did not violate the guarantee of a “republican form of government,” nor the equal protection clause which was the work of Butler and his fellows. The Blaine, Sumner, and Butler statements constitute hard evidence which is not overcome by mere speculation. Since, moreover, most of the States were malapportioned, it is a strained assumption that by ratification they surrendered a right they had excercised from the outset, and of which surrender they were totally unapprised.

When Van Alstyne dismissed Harlan’s reading of the §2 phrase “or in any way abridged” because “once the congressional history” of this phrase is “canvassed . . . it becomes clear that the phrase had nothing at all to do with malapportionment,” he scuttled his whole case. For, by the same token, the history of the equal protection clause likewise “had nothing at all to do with malapportionment.” “There is,” he states, “no evidence that §2 was applicable to abridgment of the right to vote resulting from malapportionment of state legislatures.” “It is even likely,” he avers, “that had the subject been discussed there might have been a disavowal of an intention to apply the Equal Protection Clause to malapportionment.” But “hypothetical answers to hypothetical questions . . . would be a most dubious basis for expounding the content of ‘equal protection’ one hundred years later.” There is no need to speculate because Blaine and others plainly recognized malapportionment as an existing practice that was left untouched. I, too, prefer to eschew speculation, particularly when it is unnecessary. One who would bring an unmentioned departure from settled practice within the perimeter of the Amendment has the burden of proof, made heavier here by (1) the fact that Negro suffrage, on which the Court rested its case for reapportionment, was unmistakably excluded; (2) the plainly expressed attachment of the framers to State sovereignty and their intention to intrude no further than the limits of the Civil Rights Act; and (3) the presumption that a diminution of powers reserved to the States by the Tenth Amendment will be clearly stated.

In one form or another, Van Alstyne would put asunder what the Warren Court hath joined; he would jettison the Court’s “one man, one vote” postulate. Granting arguendo State power “with respect to outright denials of the right to vote,” he asks, “is it equally so with respect to partial disfranchisement through malapportionment?” The simple answer is that the greater includes the less. If a State may altogether deny the vote, it may dilute it. It was in these terms that Chief Justice Warren rationalized reapportionment: the Constitution, he held, protects the right to “vote,” the “right to have one’s vote counted.” And “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” His premise—that the Constitution, that is, the Fourteenth Amendment, protects the right to vote—is contradicted by historical facts. But his logic is impeccable and may be stated inversely: given a right to deny suffrage, it follows that there is a right to dilute it.

Republican Form of Government

One of the “other” powers invoked by radical extremists was the guarantee of a “republican form of government.” Senator Sumner, its leading advocate, could do no better than to find it “obscure” and to write in 1865 that “the time has come to fix meaning to those words.” They were not wrapped in obscurity by the Founders. In the Federal Convention, Edmund Randolph stated that “a republican government must be the basis of a national union; and no state in it ought to have it in their power to change its government into a monarchy.” This was echoed by Madison in Federalist No. 43: “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations . . . [the members of the Union have] the right to insist that the forms of government under which the compact was entered should be substantially maintained.” The guarantee “supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States they are guaranteed by the federal Constitution.” Although Federalist No. 52 stated that the “definition of the right of suffrage is very justly regarded as a fundamental act of republican government,” it concluded that the right must be left to the States because “the different qualifications in the different States [could not be reduced] to one uniform rule.” Finally, Federalist No. 54, alluding to the allocation of representation according to the number of inhabitants, added, “the right of choosing their allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate . . . In every State, a certain proportion of inhabitants are deprived of this right by the Constitution of the State.”

Fessenden therefore stood on solid ground when he rebutted Sumner’s reliance on the guarantee, saying, “in the very instrument in which the fathers provided that the United States should guaranty to every State a republican form of government they recognized the existence of slavery unmistakably . . . Did they then consider that the obligation to guaranty a republican form of government extended thus far, giving Congress the right to interfere in Virginia to examine her constitution?” When Sumner argued that the guarantee places Congress under a duty to “see that every man votes who ought to vote,” said Fessenden, “he goes considerably further than those who made the Constitution ever intended to go.” If a State “should choose to have a monarchy, or the controlling portion of the people should choose to have an oligarchy, it then becomes the duty of Congress to interfere.” Such was the view of the Fathers, and it was reiterated by other leaders in the 39th Congress. Meeting a query whether a State would “cease to be republican” if it excluded a race from the franchise, Conkling responded that this “has always been permitted with universal acquiescence by the courts and the nation.” On the admission of Tennessee without provision for Negro enfranchisement, Bingham said in July 1866 that if this was in violation of the guarantee, then Tennessee was in the company of many Northern States. His critics were defeated by a vote of 125 to 12. In the Senate, Trumbull stated, “most of us are here under republican forms of government, just like this in Tennessee.”

One of the dissentients, William Higby of California—whom Van Alstyne quotes as saying that no “State which excludes any class of citizens [from voting] on account of race or color is republican in form,” and that he was opposed to H.R. No. 51 because “it gives a power to the States to make governments that are not republican in form,” —revealed tellingly that he was merely engaged in wishful thinking. He admitted that by his disenfranchisement test his own State of California is “not republican in form”: “I do not believe there is a single State in the Union, except it may be one of the New England States, which is an exception to that general rule . . . Now, sir, I am aware that the practice has been very different . . . from the establishment of the Government.” When Ralph Hill of Indiana stated that, in placing the guarantee in the Constitution, the Framers “spoke with reference to such governments as then existed, and such as these same framers recognized for a long time afterwards as republican governments,” Higby replied: “that is a very good answer. It is an answer from a standpoint of seventy-five years ago. I speak from the standpoint of the present time.” Like our contemporary apologists for a judicial revisionary power, Higby would displace the established, original meaning with his own new one. Given that the Northern States discriminated against voting by blacks, “they were as subject to reconstruction by the federal authority” as was the South. For Radicals, “this whole argument contained political dynamite”; and Higby himself admitted, “I do not know that there are half a dozen in this House who will sustain me.” Like the 125 to 12 vote on the admission of Tennessee, Higby’s concession underscores the framers’ indifference to the dissentient views on which Van Alstyne largely pitches his case.

Is it to be wondered that the Court, as Carl Auerbach noted, “agreed in Baker v. Carr that ‘any reliance’ on the Guarantee clause would be futile?” Auerbach pointed out that the Court “never adequately answered Mr. Justice Frankfurter’s argument that the equal protection claim it held to be justiciable was ‘in effect a Guarantee Clause claim masquerading under a different label.’ In fact the Court was being asked ‘to establish an appropriate form of government . . . for all the States in the Union.’ ” Congress, as Auerbach noticed, had expressed its judgment, in one form or another, “as to the nature of a republican form of government,” and it is Congress, not the Court, Luther v. Borden held, to whom that function is confided. Where is the evidence that the framers who rejected the argument that Congress had power over State suffrage by virtue of the “republican form of government” guarantee meant to confer that power by the “equal protection” clause? It speaks volumes that Sumner, who employed “equality before the law” in a school desegregation case (wherein Chief Justice Shaw held against him), should have turned to the “republican form of government” guarantee in the 39th Congress. After passage of the Amendment he proposed that the admission of Tennessee and Nebraska be conditioned upon no denial of suffrage, a confession that the “equal protection” clause did not preclude such denials.

Van Alstyne attaches considerable weight to Bingham’s “unusually rewarding” appeal to “a republican form of government,” which Bingham translated as a guarantee of the “right of franchise.” His view was not shared by influential Republicans, and in the course of the debates he shifted his position, stating, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States.” Shortly thereafter he changed course on the very “republican form” guarantee. He had moved for the admission of Tennessee, and Boutwell proposed “a condition precedent” that would require Tennessee to establish “suffrage for all male citizens,” without which, he argued, Tennessee would not have a “republican form of government” because of the exclusion of 80,000 blacks. Boutwell was twitted by Bingham: “Why does not the gentleman move for an expulsion of Missouri from representation?” “When [the blacks] shall vote rests with the people of the State. There I leave it.” And, he concluded, with respect to the exclusion of Negroes, “So does Ohio, so does Pennsylvania, and so, also, do a majority of the States.” Boutwell was voted down 125 to 12.

Bingham is invoked still again by Van Alstyne:

The second section excludes the conclusion that by the first section suffrage is subjected to congressional law; save indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people.

Although Van Alstyne finds this statement “puzzling,” it suffices to read the words in their ordinary sense: §2 shows that Congress was given no control of suffrage by §1, except in a case of a treasonable shift to a despotic government which does away with all voting. Manifestly, a change from representative government to a dictatorship calls for effectuation of the guarantee. But what light does this shed on the general control of suffrage? No subtle elucidation of this passage can cancel out Bingham’s flat-footed statement that “the exercise of the elective franchise is exclusively under the control of the States,” at a time when he completely abandoned the “guarantee” as a limitation on State control of suffrage. The Supreme Court confirmed the views of the framers in 1874: “All the States had governments when the Constitution was adopted . . . These governments the Constitution did not change. They were accepted precisely as they were . . . Thus we have unmistakable evidence of what was republican in form.” Unless some special magic was deemed to inhere in the words “equal protection” —a supposition hereinafter examined—the evidence, to my mind, that suffrage was excluded from the Amendment is all but incontrovertible.

The Report of the Joint Committee on Reconstruction, which Stevens, Boutwell, and Bingham signed, furnishes a conclusive summation:

Doubts were entertained whether Congress had power, even under the amended Constitution, to prescribe the qualifications of voters in a State, or could act directly on the subject. It was doubtful, in the opinion of your committee, whether the States would consent to surrender a power they had always exercised, and to which they were attached. As the best if not the only method of surmounting the difficulty, and as eminently just and proper in itself, your committee came to the conclusion that political power should be possessed in all the States exactly in proportion as the right of suffrage should be granted, without distinction of color or race. This it was thought would leave the whole question with the people of each State, holding out to all the advantage of increased political power as an inducement to allow all to participate in its exercise.

To “leave the whole question with the people of each State” is to say that §1 left suffrage untouched and that §2 was merely “an inducement [to the States] to allow all to participate in its exercise.”

Chief Justice Warren’s Opinion in Reynolds v. Sims

Chief Justice Warren made no allusion to Justice Harlan’s historical demonstration of the limited scope of the Fourteenth Amendment, and instead struck off a new version of constitutional principle and history. He premised that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Were Warren drafting a new Constitution that principle would be unexceptionable. But that was not the established principle at the adoption of the Constitution; nor was it embodied therein. On the contrary, Federalist No. 54 recognized that “in every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State.” In the 39th Congress itself, Fessenden said that “everybody has admitted from the foundation of the Government down to the present day that the qualification of voters rested with the States.” Such was the clear consensus in the 39th Congress.

Warren postulated that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth and Nineteenth Amendments can mean only one thing—one person, one vote.” But Lincoln also bowed to “the right of each State to order and control its own domestic institutions,” and reminded a Negro delegation of the ineradicable prejudice toward blacks, who were “far removed from being placed on an equality with the white man.” And if we are to extract a principle from the Fifteenth and Nineteenth Amendments it is that Congress and the people considered that express Amendments were needed to confer suffrage on Negroes and women, that absent these Amendments neither enjoyed “political equality.” The point was made by the Court itself in Minor v. Happersett (1874), wherein a woman claimed that the Fourteenth Amendment endowed her with suffrage: “after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth . . . If suffrage was one of the privileges and immunities [of the Fourteenth], why amend the Constitution to prevent its being denied on account of race.”

The Seventeenth Amendment likewise speaks against Warren, for it provides, with respect to the popular election of Senators, that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature,” qualifications, it will be recalled, that were under exclusive State control from the beginning and were left in place by the Fourteenth Amendment.

Reliance upon the Declaration of Independence, to which the Radical left frequently appealed in the 39th Congress, might be dismissed with the remark of neoabolitionist tenBroek: “ ‘All men are created equal’ proclaimed the Declaration of Independence. All men? Well not quite all—not negro slaves like those owned by Jefferson, among others.” To import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the “excesses” of popularly controlled legislatures. Men of substance felt threatened and, in the words of John Dickinson, sought to protect “the worthy against the licentious.” TenBroek noted that “Equality was the dominant note in the Declaration,” whereas a “stronger position” was accorded in the Constitution to “property,” including property in slaves as the fugitive slave clause testifies. There is no blinking the fact, as Kent Newmeyer recently reminded us, that the Constitution was “racist.” Jefferson himself, author of the Declaration, predicted emancipation, but wrote: “it is equally certain that the two races will never live in a state of equal freedom . . . so insurmountable are the barriers which nature, habit and opinions have established between them.” Stevens powerfully summarized this history at the outset of the 39th Congress:

Sir, our fathers made the Declaration of Independence; and that is what they intended to be the foundation of our Government. If they had been able to base their Constitution on the principles of that Declaration it would have needed no amendment during all time, for every human being would have had his rights; every human being would have been equal before the law. But it so happened when our fathers came to reduce the principles on which they founded this Government into order, in shaping the organic law, an institution hot from hell appeared among them . . . It obstructed all their movements and all their actions, and precluded them from carrying out their own principles into the organic law of this Union.

It needs also to be borne in mind that the Declaration was drawn by the Continental Congress, a league of independent States, each of which jealously guarded its independence. One of the reasons advanced by Senator Poland for §1 of the Fourteenth Amendment was doubts as to Congress’ power to “destroy all such partial State legislation” as violated the “principles” of the Declaration of Independence. Senator Howard, a favorite of the neoabolitionists, stated that he could not discover the Negro right to vote in the Declaration of Independence and that, “notwithstanding the Declaration of Independence, it is the right of every organized political community to regulate the right of suffrage.” Manifestly, Warren’s appeal to the Declaration as a guiding principle of constitutional construction is out of tune with the historical facts.

A word about his appeal to James Wilson’s 1791 Lectures in Philadelphia: “all elections ought to be equal. Elections are equal, when a given number of citizens, in one part of the State, choose as many representatives, as are chosen by the same number of citizens, in any other part of the state.” This stated an ideal, not a constitutional requirement. When Wilson turned to the Article I, §2, provision that “the Electors in each state shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature,” he said, “the regulation is generous and wise. It is generous for it intrusts to . . . the several states, the very important power of ascertaining the qualifications” of the Electors. It was evidence of confidence, “that this foundation should be continued or altered by the States themselves.” Wilson was thoroughly aware of the disparate State exclusions from suffrage, having made a survey of the different State constitutions, even noticing that Connecticut provided power to exclude freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” And he praises “the wisdom . . . which rested one of the principal pillars of the national government upon the foundations prepared for it by the governments of the several states.” Warren’s use of Wilson affords striking illustration of the “lawyers history” so justly condemned by Alfred Kelly.

Warren’s pervasive error, to my mind, is to substitute twentieth-century logic for the framers’ intention, so clearly expressed in the legislative history: “Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people in a State would elect a majority of that State’s legislators.” “Ostensibly grounded” refuses to come to terms with the historical fact that suffrage and apportionment were the province of the States. Once again is demonstrated the wisdom of Holmes’ aphorism, “a page of history is worth a volume of logic.” That history was summarized with crystal clarity in the Report of the Joint Committee on Reconstruction.

Justice Brennan’s Opinion in Oregon v. Mitchell

Justice Brennan recognized that “racial prejudice in the North” was a most “significant” obstacle in the path of equal suffrage:

Only five New England States and New York permitted any Negroes to vote as of 1866 . . . and extension of the suffrage was rejected by the voters in 17 of 19 popular referenda held on the subject between 1865 and 1868. Moreover, Republicans suffered some severe election setbacks in 1867 on account of their support of Negro suffrage . . .

Meeting in the winter and spring of 1866 and facing elections in the fall of the same year the Republicans thus faced a difficult dilemma: they desperately needed Negro suffrage in order to prevent total Democratic resurgence in the South, yet they feared that by pressing for suffrage they might create a reaction among northern white voters that would lead to massive Democratic electoral gains in the North. Their task was thus to frame a policy that would prevent total Democratic resurgence and simultaneously would serve as a platform upon which Republicans could go before their northern constituents in the fall. What ultimately emerged as the policy and political platform of the Republican Party was the Fourteenth Amendment.

Why could not the Republicans in Congress tell their constituents that unless Negro suffrage was granted Republican hegemony was doomed? Unless Northern voters preferred Democratic resurgence to Negro suffrage, the interests of Republican voters and members of Congress were one and the same. In fact the framers shared the prejudices of their Northern constituency, to recall only George W. Julian’s statement in the House: “The real trouble is we hate the Negro.” If the Republicans entertained a secret design to slip suffrage into the Amendment over voter opposition in order to hang on to office, they were betraying their constituency, and for this firm evidence needs to be adduced.

Given the framers’ awareness of voter antipathy to suffrage, one would expect Justice Brennan to resolve all doubts in favor of those sentiments. Instead he substitutes twentieth-century speculation for historical fact to effectuate his own predilections and commits the very sin he incorrectly lays at Harlan’s door: “historical analysis is flawed by ascription of 20th century meanings to the words of 19th century legislators.” For example, Harlan’s “view would appear to allow a State to exclude any unpopular group on the basis of its political opinions.” But if State control over suffrage was plenary, if the Amendment left States free to exclude Negroes on account of their color, they were equally free to exclude others for their “political opinions,” unpalatable as that appears to twentieth-century thinking. It will be recalled that James Wilson noticed the Connecticut provision for exclusion of freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” Historical analysis must proceed from the 1866 facts, not reason backward from 1970 predilections. Justice Brennan would substitute his choices for those of the framers; because we dislike a policy today, it does not follow that it is unconstitutional. That standard was rejected both by the Founders and by Chief Justice Marshall.

Justice Brennan’s opinion runs to some 38 pages; refutation, as is well known, requires more space than bare assertion; hence only a sampling of the Brennan opinion can here be analyzed. A few examples, however, should suffice to disclose Justice Brennan’s preference for speculation over fact. Section 1 began, he notices, as a “provision aimed at securing equality of ‘political rights and privileges’ ”; but the Joint Committee rejected an express reference “to political and elective rights”; it dropped all references to “political rights” and spoke in terms of “privileges and immunities” and equal protection of “life, liberty, and property” by a vote of seven to six. Commenting on these facts, Justice Brennan stated, “the breakdown of the committee vote suggests that . . . no change in meaning was intended,” because the “substitute was supported by men of all political views,” among them Howard and Boutwell, “who had earlier sought to make the section’s coverage of suffrage explicit,” and Stevens and Fessenden. But Boutwell, Fessenden, Howard, and Stevens later agreed that the Amendment did not grant suffrage and signed the Joint Committee Report that so stated. To deduce that Bingham merely “sought to do no more than substitute for his earlier specific language more general language” ignores the repeated rejection of the specific proposals. General language may be construed to comprehend specific language that was earlier approved; but when specific language was rejected, evidence is required to explain why the rejected specific was now embodied in the general, evidence, not speculation. Then, too, Bingham cannot be lifted out of the mainstream of Republican statements that the Amendment did not confer suffrage; in fact he himself so stated.

At the instigation of Robert Dale Owen, a reformer, Stevens had submitted a proposal that after July 4, 1876, “no discrimination shall be made . . . as to . . . the right of suffrage because of race.” This provision was deleted by the Joint Committee, Justice Brennan notes, but “the reasons for the rewriting are not entirely clear.” He notices, however, that in 1875 Owen furnished Stevens’ explanation: “several state delegations held caucuses which decided that the explicit references to ‘negro suffrage,’ in any shape, ought to be excluded from the platform.” Is this not a “clear” explanation? By Brennan’s own testimony the Republicans feared to endanger the Fall elections by the submission of Negro suffrage. He reasons, however, “Perhaps the changes in §1 of the Amendment were thought by the Committee to be mere linguistic improvements which did not substantially modify Owen’s meaning.” The fact is that the 1876 provision was dropped to avoid alienating the electorate. That the “changes” were not “thought by the Committee to be mere linguistic improvements” is once more demonstrated by the unequivocal statement in its Report that suffrage had proven impossible of achievement and was left in the control of the States.

At “the very least,” states Justice Brennan, “the Committee must have realized that it was substituting for Owen’s rather specific language Bingham’s far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” Because, Brennan amplified, “political considerations militated against clarification of issues and in favor of compromise,” because “much of the North . . . opposed Negro suffrage, and many Republicans in Congress had to seek reelection from constituencies where racial prejudice remained rampant,” “what Republicans needed, in the words of Wendell Phillips . . . was ‘a party trick to tide over the elections and save time.’ ” This is the Bickel “open-ended” theory which I shall hereafter examine; and I shall also collate the evidence which repels the conclusion that the framers purposely employed “elastic language” to dupe the voters.

For Justice Brennan “the purpose of §1 in relation to the suffrage emerges out of the debates . . . with an equal obscurity.” As exhibit #1 he instances Howard’s statement that “the first section of the proposed amendment does not give to either of these classes the right of voting,” which is “not as unambiguous as [it] initially appear[s].” This is because after stating that “the right of suffrage was not one of the privileges and immunities protected by the Constitution . . . he read into the record an excerpt from . . . Corfield v. Coryell . . . which listed the elective franchise as among the privileges and immunities.” But Senator Trumbull, after calling attention to this Corfield listing, had pointed out that suffrage was not included in the Civil Rights Bill. One might deduce that Howard felt no need to repeat such a statement after twice stating that the Amendment did not grant suffrage. Moreover, if an ambiguity be assumed, it was cured by his final statement: “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.”

For exhibit #2, Justice Brennan turns to Bingham’s “completely incongruous statement”: “the exercise of the elective franchise though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” Now Bingham was a confused thinker, as I shall show, but on one thing he was clear: the Amendment did not confer suffrage. At a later point he said: “We all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” He further stated, “the second section excludes the conclusion that by the first section suffrage is subjected to congressional law.” Thereafter Bingham vigorously defended the exclusion of Negro suffrage from the Tennessee Constitution. When Boutwell objected during the debate on the readmission of Tennessee that in consequence it did not have a “republican form of government,” Bingham replied that whether a black “shall vote rests with the people of [Tennessee]. There I leave it . . . I ask the gentlemen to weigh well the question when they come to vote, whether Tennessee shall be rejected only because the majority exercises the same power as to colored suffrage claimed for and exercised by all the other States.” This was after Congress submitted the Amendment with its “equal protection” clause to the people, and Bingham was upheld by a vote of 125 to 12, an irreducible fact that speaks more loudly than all of Justice Brennan’s speculations. Here were materials that cured the “ambiguity,” that dissipated the “obscurity” conjured up by Justice Brennan, of which he took no notice. And why lean so heavily on the alleged “ambiguities” of two leaders when the vast majority of the leadership and rank and file affirmed or recognized that suffrage was excluded from the Amendment?

Then there is Brennan’s citation of Sumner, who was all but ostracized in the Senate, whose proposals were regularly voted down by very large majorities; and his appeal to Stevens’ statement that the Amendment “merely allowed ‘Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.’ ” Stevens sought equality with respect to the rights enumerated in the Civil Rights Act, from which suffrage was excluded. But on the issue of suffrage, he stated, “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this [ “representation” proposal] does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualifications of their voters . . . You could not get five in this Union.” It was on Stevens’ motion that the Joint Committee adopted a reduction of representation proposal; and it rejected Boutwell’s motion to “abolish” any distinction.

Justice Brennan also refers to three Democratic opponents of the Amendment who, more or less clearly, saw in it a grant of suffrage. Opponents of a measure, particularly those who seek to discredit it, are given slight credence, as I shall show; their testimony is not employed to define its scope. What are we to think of Brennan’s reference to Senator Stewart, who, “while unhappy that the Amendment did not directly confer suffrage, nevertheless could ‘support this plan’ because it did ‘not preclude Congress from adopting other means by a two-thirds vote’ ”? Of course Congress could later propose another amendment by a “two-thirds vote”; Stewart plainly had no reference to congressional implementation by statute, for that could be done by majority vote, given authorization by the Amendment.

Finally, Justice Brennan takes over Van Alstyne’s critique of Harlan’s alleged view that “ §2 is specifically concerned with voting rights, and it provides an exclusive remedy that precludes or preempts application of §1.” Apparently this is based on Harlan’s reference to the “Court’s utter disregard of the second section which expressly recognized the State’s power to deny the right . . . to vote and its express provision of a remedy for such denial or abridgment.” This unduly exalts a loose, passing reference to “remedy.” Remedies are given for “wrongs”; it is no “wrong” to exercise the “recognized . . . power to deny the right . . . to vote.” Then, too, since §1 conferred no suffrage, §2 obviously created no remedy for a nonexistent right. Certainly it gave no “remedy” to the black who was denied a vote. Senator Stewart, a Republican, sardonically commented that §2 relieves the Negro “from misrepresentation in Congress by denying him any representation whatever.” Justice Brennan explains that §2 “was of critical importance in assuring that, should the Southern States deny the franchise to Negroes, the Congress called upon to remedy that discrimination would not be controlled by the beneficiaries of discrimination themselves.” The truth is that §2 was the core of the Republican program because, as Brennan himself states, the Republicans needed to “prevent total [Democratic] resurgence,” “massive electoral gains in the North.” Reduction of representation when Negro suffrage was denied was deemed more important than endowing blacks with the vote; perceptive Republicans doubted whether the South would be “induced” to enfranchise Negroes and thus lose control. Section 2, therefore, was not so much a “remedy” to enforce rights which §1 had not granted as a mechanism to preserve Republican hegemony. Forlorn hopes that the South could thereby be “induced” to confer suffrage were doomed to disappointment.

Enough has been set forth to exhibit Justice Brennan’s strange preference for minority Democrats and dissentient radicals like Sumner over the Republican leadership and its followers who enacted the measure and whose utterances are virtually ignored by him, his preference for “ambiguous” utterances rather than the crystal-clear explanations of the self-same speakers, and for speculation over the mass of stubborn evidence to the contrary. Future historians, I confidently predict, will not prefer the “history” of Brennan to that of Harlan.

6

The “Open-Ended” Phraseology Theory

We cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.

—Senator William P. Fessenden

The “open-ended” theory, shortly stated, is that the framers dared not submit Negro suffrage and the like to the electorate in 1866 and therefore discarded “specific” terms, as Justice Brennan put it, in favor of “far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” This is the classic invocation to extraconstitutional power, power to revise the Constitution under the theory that the framers gave a “blank check to posterity.” Bickel had cautiously advanced the theory as a hypothesis; it found favor in scholarly circles, and more positively formulated variants were proffered by Alfred Kelly and William Van Alstyne. It has since been enshrined in an opinion by Justice Brennan; and Justice Black, jumping off from Brennan’s paraphrase, announced that it made “the history of the Fourteenth Amendment . . . irrelevant to the present problem.” The theory is therefore deserving of close analysis.

alexander bickel

At the time the “desegregation” case, Brown v. Board of Education, was first argued before the Supreme Court, Bickel was a law clerk of Justice Frankfurter, who assigned to him the task of compiling the legislative history of the Fourteenth Amendment, a task he performed brilliantly. When he delivered his memorandum in August 1953, he stated in a covering letter:

It was preposterous to worry about unsegregated schools, for example, 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 . . . It is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.

In 1962 he again wrote:

Was it the intention of the framers . . . to forbid the states to enact and enforce segregation statutes? If one goes to the historical materials with this specific question, the only answer is in the negative. The framers did not intend or expect then and there to outlaw segregation, which, of course, was a practice widely prevalent in the North.

Upon the termination of his clerkship Bickel wrote a farewell letter to Frankfurter in which he adverted to the “living Constitution” dictum of Marshall. But when he revised his memorandum for publication in 1955 he sought more solid footing. Were the amendment a statute, he concluded, a “Court might very well hold” on the basis of the evidence “that it was foreclosed from applying it to segregation in the public schools.” Apart from the “immediate effect of the enactment,” he asked, “what if any thought was given to the long-range effect” in the future—a possibility he had labeled “impossible” in 1953. Noting the shift from “equal protection in the rights of life, liberty and property” to “equal protection of the laws, a clause which is plainly capable of being applied to all subjects of state legislation,” he asked,

Could the comparison have failed to leave the implication that the new phrase, while it did not necessarily, and certainly not expressly, carry greater coverage than the old, was nevertheless roomier, more receptive to “latitudinarian” construction? No one made the point with regard to this particular clause. But in the opening debate in the Senate, Jacob Howard was frank to say that only the future could tell what application the privileges and immunities would have.

So, too, Reverdy Johnson, a Democrat, “confessed his puzzlement about the same clause.” How does the Howard-Johnson “puzzlement” about “privileges or immunities” advance the argument that “due process” and “equal protection” were understood to be open-ended? Neither Johnson nor Howard expressed uncertainty as to the meaning of those terms, and the implication is that there was none, an implication I shall flesh out in subsequent chapters. And given the Republican commitment to a “limited” program of protection for “enumerated” rights, why did Bingham, who had insisted on deletion from the Civil Rights Bill of the words “civil rights” as “oppressive,” too “latitudinarian,” now, as author of the Amendment’s §1, resort to phraseology that was “roomier, more receptive to ‘latitudinarian’ construction?” No explanation of his turnabout has been offered, and when we descend from speculation to the facts we shall find that they offer no support for the Bickel hypothesis.

Bickel states that some Republicans referred to “the natural rights of man,” but those rights had been specified in the Civil Rights Act, and the Act was understood to exclude suffrage and desegregation of schools, as Bickel himself noted. The Act, with its restrictive “enumeration” of the rights to be protected, was represented to be embodied in the Amendment. A repudiation of such representations by the framers, in the teeth of their attachment to State sovereignty, their respect for the rights reserved to the States by the Tenth Amendment, needs to be proved, not assumed. And as will appear, the words “equal protection of the laws” evolved side by side with the framers’ limited objectives and gave perfect expression to their central goal: to prevent discriminatory legislation with respect to the enumerated rights, and those alone.

Howard knew well enough what “privileges or immunities” comprised. He stated, “we may gather some intimation of what probably will be the opinion of the judiciary by referring to . . . Corfield v. Coryell.” He quoted therefrom the reference to those “privileges and immunities which are in their nature fundamental . . . They may be comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire property” and so on. The correlation between these rights, the “privileges and immunities” of Article IV, §2, and the Civil Rights Act had been explained by Trumbull. After Howard’s speech, Reverdy Johnson moved to strike the “privileges or immunities” clause because he “did not understand what will be the effect of that”; but his motion fell to the ground, testimony that the Senate did not share his doubts. The “puzzlement” of Howard and Johnson cannot cancel out the repeated association of “privileges or immunities” with “security of person and property”; it cannot vitiate the all but universal understanding that the Amendment was to embody the Civil Rights Act, reiterated after Howard spoke. The Act, said Latham, “covers exactly the same ground as this amendment.” Senator Doolittle said it “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward,” a view also expressed by Henry Van Aernam of New York. The “privileges or immunities” clause, Senator Poland stated, “secures nothing beyond what was intended by the original provision [Article IV, §2] of the Constitution.” In fact, Senator Howard undercuts Bickel, for toward the close of the debates he stated, “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not in law, one of the privileges . . . thus secured.” With respect to suffrage, the “Great Guarantee,” Howard was quite clear that it was excluded; that concept, at least, could not in future change its skin.

Bickel noticed that the “no discrimination in civil rights” sentence of the Act had been deleted because Republicans “who had expressed fears concerning its reach . . . would have to go forth and stand on the platform of the fourteenth amendment.” “It remains true,” he said, “that an explicit provision going further than the Civil Rights Act would not have carried in the 39th Congress.” And he noted that the Republicans drew back from “a formulation dangerously vulnerable to attacks pandering to the prejudice of the people.” But, he asked, “may it not be that the Moderates and Radicals reached a compromise permitting them to go to the country with language which they could, where necessary, defend against damaging alarms raised by the opposition but which at the same time was sufficiently elastic to permit reasonable future advances?” Talk of a “compromise” between Moderates and Radicals on “vague” language is without factual basis. Consider the “radical” opposition to readmission of Tennessee because its constitution excluded Negro suffrage, voted down by 125 to 12; or the rejection of Senator Sumner’s suffrage proposal by 34 to 4. What need was there to “compromise” with so insignificant a group? Senator Sherman told a Cincinnati audience in September 1866, while the Amendment was up for ratification, “we defeated every radical proposition in it.”

Bickel’s theory, to speak plainly, is that the compromisers concealed the future objectives that they dared not avow lest the whole enterprise be imperiled; it is an elegant reformulation of conspiratorial purpose. To begin with, this theory posits that the 39th Congress harbored designs not shared by the voters, when, in fact, as Morton Keller remarks, “most congressional Republicans were aware of (and shared) their constituents’ hostility to black suffrage.” Anticipating that his hypothesis might be “disparaged as putting forth an undisclosed, conspiratorial purpose such as has been imputed to Bingham and others with regard to the protection of corporations,” Bickel invoked statements by Stevens and the Joint Committee Report to the effect that the Amendment’s “imperfections” may be cured by “further legislation, enabling acts,” by “legislative wisdom” —hardly a warrant for judicial changes! What member of the 39th Congress would conclude that by such words was meant that Congress had conferred sub rosa for the future the suffrage it dared not propose in the present? Bickel himself torpedoed that inference.

Observing that Stevens stated the Amendment “falls far short of my wishes . . . but . . . is all that can be obtained in the present state of public opinion . . . I . . . leave it to be perfected by better men in better times, ” Bickel states; “In all probability, the disappointment of Thaddeus Stevens centered on failure to make any provision for negro suffrage, immediate or prospective.” Disappointment over failure to provide for prospective suffrage rules out an open-ended design to authorize such provision in the future. What Stevens meant by “further legislation” does not need construction. As Senator Stewart stated, the Amendment “does not preclude Congress from adopting other means by a two-thirds vote [another amendment] when experience shall have demonstrated . . . the necessity for a change of policy,” as it did before long in recommending the Fifteenth Amendment. Studied ambiguity also collides with Fessenden’s suggestion of a change because “there is a little obscurity or, at any rate, the expression in section 4 might be construed to go further than was intended.” A “blank check to posterity” is likewise refuted by Chairman Wilson’s statement: “I fear that comprehensive statesmanship which cares for posterity as well as for itself will not leave its impress upon the measure we are now considering.”

There are also several disclaimers of concealed objectives, of playing a trick upon an unsuspecting people. Charged with “indirection,” Fessenden said:

where a legislator avows his object and his purpose, states what he wishes to accomplish and the mode by which he is to accomplish it, he is [not] to be charged, although it operates indirectly, with what is properly understood by the term “indirection,” which conveys the idea of a trick, a contrivance, to do something by taking advantage of others which you cannot do if you make plain to their senses what is the object.

Shortly after congressional approval of the Amendment, and during the warm-up for the elections of 1866, a leading Radical, Congressman Robert C. Schenck of Ohio, averred the Democrats “are afraid that it may have some concealed purpose of elevating negroes . . . [to] make them voters. It goes to no such length.”

“Equal protection,” as will appear, emerged from the framers’ intention to outlaw laws which discriminated against blacks with respect to the “coverage of the Civil Rights Act.” “Indeed,” Bickel himself concluded, “ no specific purpose going beyond the [limited] coverage of the Civil Rights Act is suggested; rather an awareness on the part of the framers that it was a constitution they were writing, which led to a choice of language capable of growth.” His appeal to the “awareness” of the framers assumes what needs to be proved—that there was in fact such a “choice.” Such speculation is rebutted by the very limited objectives of the Civil Rights Act, embodied in the Amendment, the absence of explanation for a change of direction, and the fact that “due process” and “privileges or immunities” were deemed to be used in their established sense. If there was such a “choice,” it cannot harbor a purpose they confessedly dared not submit. Senator Howard, who has been regarded as “one of the most reckless of the radicals,” one who “served consistently in the vanguard of the extreme negrophiles,” explained to the Senate that he would have preferred to

secure suffrage to the colored race to some extent at least . . . But sir, it is not a question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage . . . the question really is, what will the Legislatures of the various States . . . do in the premises; what is likely to meet the general approbation of the people. The Committee were of the opinion that the States are not yet prepared to sanction so fundamental a change.

How is Bickel’s “undisclosed” purpose to be reconciled with the fact that an attempt to provide for Negro suffrage after 1876 was rejected? Robert Dale Owen, a pro-suffrage reformer, had brought a proposal which Stevens placed before the Joint Committee. Section 2 of the proposal provided that after July 4, 1876 (a fitting anniversary for enfranchisement), “no discrimination shall be made . . . as to . . . the right of suffrage.” Owen’s reason for the “prospective suffrage,” he explained to Stevens, was that “the negro is, for the present, unprepared wisely to use the right of suffrage.” When this provision was noised about, Stevens told Owen,

members from New York, from Illinois . . . from Indiana held, each separately, a caucus to consider whether equality of suffrage, present or prospective, ought to form a part of the Republican programme for the coming canvass. They were afraid . . . some of them . . . might lose their elections . . . [E]ach one of these caucuses decided that negro suffrage, in any shape, ought to be excluded.

In consequence, the 1876 proposal was dropped and the Committee substituted a “new section simply eliminating from the basis of representation persons to whom the vote was denied,” the present §2. Add to this Senator Howard’s statement of the Joint Committee’s opinion that “three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race,” and we have solid evidence which overcomes speculation that there was an unrevealed purpose to confer broader powers in the future.

alfred kelly

Kelly does not follow Bickel’s theory of a behind-the-scenes “compromise” between Radicals and Moderates, but suggests that the Radicals attempted, baldly stated, to hoodwink the Moderates. He regards it as “highly probable” that the Civil Rights Act “was not intended to bar racial segregation and classification laws.” But he finds that

The intent of certain Radical leaders to go beyond the restrictive enumeration of the Civil Rights Act and to incorporate a series of expansive guarantees in the Constitution is quite clear . . . the best evidence of this is the language of the guarantees which Bingham and the other authors of the Fourteenth Amendment incorporated in the first section. The guarantees they finally adopted—privileges and immunities, due process and equal protection—were not at all derived from the Civil Rights Act, which . . . had used the restricted enumerative device. Instead, the authors derived their guarantees deliberately from the prewar Radical antislavery movement.

A Constitution, Chief Justice Marshall stated, cannot have “the prolixity of a code”; there the drive is for the most compressed utterance. Moreover, the terms of §1 were far from “vague and amorphous.” “Privileges or immunities” was drawn from Article IV, §2, via the Civil Rights Bill, which adopted the established judicial construction. An abolitionist departure needs to be proved, not assumed by reference to “expansive” language. Bingham himself repudiated such notions when he declared that the meaning of “due process” was to be found in the decisions of the courts. That his conception of “equal protection” did not go beyond the ban on discriminatory laws with respect to the enumerated “fundamental rights” is again demonstrated by his defense of Tennessee’s disenfranchisement of blacks, regretting that though “We are all for equal and exact justice . . . justice for all is not to be secured in a day.”

Next Kelly notices a “curious ambiguity . . . in the Radicals’ advocacy of the measure . . . It was as though the Radical leaders were avoiding a precise delineation of legal consequences,” this on the basis of their resort to the “technique of lofty, expansive and highly generalized language.” Why such avoidance? He explains that

there was a substantial block of moderate Republicans who had not yet committed themselves entirely to the Radical position . . . if [Bingham et al.] drove home too far the proposition that this amendment would undoubtedly consummate the destruction of all caste and class legislation . . . moderate Republican support might be alienated and the requisite two-thirds majority necessary to the amendment’s adoption might not be obtained. Political strategy called for ambiguity not clarity.

Stripped of fig leaves, the Kelly rationale would give the Amendment a meaning which the radicals had concealed even from their Moderate confreres! In truth, there is no evidence of a concealed purpose. How did Bingham’s “lofty generalizations” become freighted with a cargo he had severely condemned as “oppressive” and “unjust” when he insisted upon deletion of the words “civil rights” from the Civil Rights Bill? Although Bingham was given to windy oratory, his own words show that he did not regard “due process,” “equal protection,” and “privileges or immunities” as “lofty generalizations,” but rather as terms of known and limited content. For example, he explained that “privileges or immunities” was drawn from Article IV, §2, that “due process” had been judicially defined. Then, too, Bingham and Stevens are an odd couple to conspire to pull the wool over the eyes of their colleagues. On the floor of the House in the 39th Congress, Stevens said of Bingham: “In all this contest about reconstruction I do not propose either to take his counsel, recognize his authority, or believe a word he says.”

william van alstyne

After downgrading some statements in the debates, Van Alstyne nevertheless concludes that “the case can safely be made that there was an original understanding that §1 of the proposed Fourteenth Amendment would not itself immediately invalidate state suffrage laws severely restricting the right to vote.” But, he states, “we cannot safely declare that there was also a clear, uniform understanding that the open-ended phrases of §1 . . . would foreclose a different application in the future [because invalidation of State Negro suffrage laws] was avoided . . . from fear that such an amendment would not be ratified and that its Republican sponsors would be turned out of office at the next congressional election.” Van Alstyne reverses the normal order of proof, that a departure from the norm was intended, that what was unmistakably excluded in 1866 was to be embraced in 1966. For such extraordinary drafting proof, not speculation, is required.

In an attempt to offer some proof Van Alstyne argues that Congress had based its authority to enact the Civil Rights Act on the fact that it was “appropriate legislation to enforce the mere ban on ‘slavery’ in §1 of the Thirteenth Amendment.” He continues: “fresh from their own experience in developing new applications of the Thirteenth Amendment . . . the Radicals could scarcely have failed to foresee that the still broader contours of the Fourteenth Amendment would offer greater possibilities for the future.” Undeniably some appealed to the Thirteenth Amendment for constitutional authority to enact the Civil Rights Act. But there was vigorous opposition. Conkling declared that “Emancipation vitalizes only natural rights, not political rights.” And most Republicans held that natural rights did not include the right to vote. Senator Henry Wilson, a Massachusetts Radical, stated that the Thirteenth Amendment “was never understood by any man in the Senate or House to confer upon Congress the right to prescribe or regulate the suffrage in any State . . . If it had been supposed that it gave that power the amendment would never have passed the Congress, never have received the sanction of the States.” Considerable impetus to the Fourteenth Amendment was given by Bingham’s insistence that there was no constitutional authority for the Civil Rights Bill and that an amendment was required. And the fact that Congress went on to enact the Fourteenth Amendment refutes the view that the Thirteenth was conceived to be “open-ended,” to authorize legislation going beyond emancipation.

Even “more significance” is attached by Van Alstyne to what he views as an important parallel between the Civil Rights Act and the Fourteenth Amendment. When Bingham objected that the “no discrimination in civil rights” sentence of the Act was oppressive and invaded States’ Rights, the Committee deleted the sentence, and Chairman Wilson explained, “I do not think it materially changes the bill, but some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.” In contrast, Van Alstyne points out, although “several of the Democrats declared . . . that the Privileges and Immunities Clause would eventually be applied to suffrage . . . the Republicans declined to limit the language of §1 [of the Amendment] to avoid such application.” The moral he draws is that the “Civil Rights Act was, of course, a statute; a law not expected to ‘endure for ages to come.’ The Fourteenth Amendment was something else again.” A more prosaic explanation can serve. Bingham was an influential Republican with a following, and the deletion of the “civil rights” sentence, regarded as gratuitous, was a small price to pay for bringing him into camp; whereas the objections of “several Democrats” could safely be ignored because their votes could be written off. The Republicans, who had been assured both during enactment of the Civil Rights Bill and consideration of the Amendment that neither purported to grant suffrage, needed no express exception to make that plain. The established rule is that if a thing is within the intention of the framers, it is as good as written in the text.

The hypotheses of Bickel, Kelly, and Van Alstyne seem to me a speculative fabric that collapses under the fact, made so clear by the framers, that they did not mean to confer Negro suffrage, present or prospective. And the theory runs into another formidable obstacle. During the ratification process, in the summer election campaign of 1866, the Republicans repeatedly assured the people that, in the words of Senator John Sherman of Ohio, the Amendment “was an embodiment of the Civil Rights Bill,” itemizing several of its provisions. A similar assurance was given by Senator Lane of Indiana. Congressman Schenck of Ohio repudiated “a concealed purpose” to confer Negro suffrage; his Ohio colleague Columbus Delano stressed that the Amendment was designed to make citizens “safe in the South.” Logan of Illinois said it was meant to permit the citizen “to sue and be sued, to own property, to have process of court,” a reminder of the limited objectives of the Civil Rights Act, accompanied by a specific disclaimer that §1 “gives the negro the right of suffrage.” These and still other representations collected by Charles Fairman militate against a concealed purpose to go beyond the confines of the Act.

Finally, be it assumed that there was an undisclosed purpose, the question arises whether “ratification” extends to objectives that were not disclosed, that were in fact expressly disclaimed. The doctrine of ratification premises that the principal knows what he is ratifying; without full disclosure there can be no ratification. And there is the larger issue of political morality. Ours is a generation insistent on full disclosure, for example, in the marketing of corporate securities. To accept dissimulation as a means of obtaining a constitutional amendment would be to condone lower morals in the halls of Congress than is demanded in the marketplace.

7

Segregated Schools

The “desegregation” decision in Brown v. Board of Education was, as Richard Kluger called it, an act of “Simple Justice,” a long overdue attempt to rectify the grievous wrongs done to the blacks. For the legal historian, however, the question is whether the Fourteenth Amendment authorized the Supreme Court to perform that act. For the Court, like every agency of government, may act only within the limits of its constitutional powers. As Lee stated in the Virginia Ratification Convention, “When a question arises with respect to the legality of any power, exercised or assumed,” the question will be, “ Is it enumerated in the Constitution? . . . It is otherwise arbitrary and unconstitutional.”

In his illuminating study of the way in which the desegregation case was handled in the Supreme Court, Kluger asks, “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 that amendment?” Given the rampant racism in the North of 1866—which still has to loose its grip—it needs to be explained how a North which provided for or mandated segregated schools was brought to vote for desegregation in the Amendment.

When the “desegregation” case came to the Court in 1952, Justice Frankfurter assigned the task of compiling the legislative history of the Amendment to his brilliant clerk, Alexander Bickel, who was destined to become one of the foremost authorities in the field of constitutional law. Upon completing the assignment, in August 1953, Bickel delivered his memorandum to Frankfurter with a covering letter in which he stated: “it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” When he later published a revision of that memorandum, he concluded: “there is no evidence whatever showing that for its sponsors the civil rights formula had anything to do with unsegregated schools. Wilson, its sponsor in the House, specifically disclaimed any such notion.” Wilson, chairman of the House Judiciary Committee and the House Manager of the Bill, who could therefore speak authoritatively, had advised the House that the words “civil rights . . . do not mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights.” Wilson’s statement is proof positive that segregation was excluded from the scope of the bill.

Another piece of evidence, which Alfred Kelly, one of the historians drawn into the case by the NAACP, considered “very damning,” was the “removal of the ‘no discrimination’ clause from the Civil Rights Bill.” The Bill, he stated, “was amended specifically to eliminate any reference to discriminatory practices like school segregation . . . it looked as if a specific exclusion had been made.” The deletion was made at the insistence of John A. Bingham, the architect of the Fourteenth Amendment, whom neoabolitionists regard as the conduit through which abolitionist concepts of substantive due process and equal protection were poured into the Amendment. Roughly speaking, he moved for instructions to the Judiciary Committee to strike the “no discrimination” sentence of the Bill, in order to render it “less oppressive and therefore less objectionable.” The enactment of laws “for the general government of the people” was reserved to the States; “civil rights,” he continued, “include and embrace every right that pertains to a citizen as such,” including “political rights.” On this view the Bill, according to Bingham, proposed “simply to strike down by congressional enactment every state constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen.” With “some few exceptions every state in the Union does make some discrimination . . . in respect of civil rights on account of color.” Hence the “no discrimination” sentence “must be striken out or the constitutions of the States are to be abolished by your act.” Deletion of this sentence would remove what he considered the Bill’s “oppressive and I might say its unjust provisions,” all of which adds up to a States’ Rights manifesto. Bingham’s censure, however, does not extend to the enumerated rights that follow the “no discrimination” clause; these he quotes with approval, but asserts that the needed reform should be accomplished “not by an arbitrary assumption of power, but by amending the Constitution . . . expressly forbidding the States from any such abuse [that is, denial of said specified rights] in the future.” In short, the enumerated rights should be protected by Amendment against State abuse, whereas the “civil rights,” which embraced any and every right, should be excised because “oppressive.” In this Bingham was in accord with the restricted objectives of almost all of his Republican colleagues who spoke to the measure. Bickel therefore correctly concluded that Bingham, “while committing himself to the need for safeguarding by constitutional amendment the specific rights enumerated in the body of section 1, was anything but willing to make a similar commitment to ‘civil rights’ in general.”

Not without cause was this regarded gloomily in the camp of the NAACP. Kluger relates:

In calling for the deletion, Bingham, the former abolition theorist, had openly acknowledged that the bill as drafted would have prohibited statutes such as school segregation. Since that broad language was in fact deleted from the final form of the bill and since many of the proponents of the Fourteenth held that the amendment had no purpose beyond constitutionalizing the Civil Rights Act, it had therefore seemed to Kelly, [Thurgood] Marshall, Ming, and others in the NAACP camp that they could not reasonably argue that the framers intended the amendment to prohibit school segregation.

Finally, a “light” broke through, “a really plausible interpretation” dawned on Kelly: “Bingham’s objection to the ‘no discrimination’ was based solely on the apparent lack of constitutional authority for so sweeping a congressional enactment.” This was a “light” that failed. Kelly completely overlooked Bingham’s separation between the too-inclusive “civil rights,” which were deleted, and the enumerated rights, which, because they also trenched on traditional State governance, required an amendment. Justice Black understood this if Kelly did not.

More important, Chairman Wilson confirms that the deletion was merely designed to repel a “latitudinarian” construction:

Some members of the House thought, in the general words of the first section in relation to civil rights, it might be held by the courts that the right of suffrage was included in those rights. To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section.

The deletion, Wilson further explained, was made because “some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.”

To Kelly, who later defended the desegregation decision, Bickel’s view “seems a very doubtful reading of Bingham’s position. It ignores his extensive extremist antislavery background as well as his position in Congress as one of the strong Radical Republicans.” But neither Bingham’s background nor his position had dissuaded him from opposition to Negro suffrage. Moreover, as Bickel informed Justice Frankfurter, “It was doubtful that an explicit ‘no discrimination’ provision going beyond the enumerated rights in the Civil Rights Bill as finally enacted could have passed in the Thirty-Ninth Congress.” At this time “Eight [Northern] states either provided for separate schools or left it up to local communities to adopt that practice if they wished. Five states outside the old Confederacy either directly or by implication excluded colored children entirely from their public schools.” Kluger comments, “If Congress and state legislatures had understood that the amendment was to wipe away the practices, surely there would have been more than a few howls.” With suffrage unequivocally barred there was no reason to infer that desegregation, a far more touchy matter, was required.

Then there was another thorny fact: “Congress had permitted segregated schools in the District of Columbia from 1864 onward.” Sumner’s “long fight to abolish segregated Negro schools in the District of Columbia” had been “unavailing.” With good reason did Judge E. Barrett Prettyman hold in Carr v. Corning that congressional support for segregated schools in the District of Columbia contemporaneously with the adoption of the Amendment (and the Civil Rights Act) was conclusive evidence that Congress had not intended §1 of the Amendment to invalidate school segregation laws. Kelly too lightly dismissed this: “technically the parallel is not constitutionally precise or apposite.” To the contrary, the parallel is both “precise and apposite.” It has long been the rule that laws dealing with the same subject—in pari materia—must be construed with reference to each other, “as if they were one law.” The Amendment originated as a congressional Joint Resolution, so it is entirely appropriate to look to the light shed contemporaneously by the District of Columbia bills on the meaning of the Resolution. In truth, it is unrealistic to presume that a Congress which has plenary jurisdiction over the District and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States. The difference was fully appreciated by Senator Henry Wilson, a Radical Republican from Massachusetts, who introduced a bill providing for suffrage in the District of Columbia, but lamented that in “dealing with the States,” State “constitutions block up the way and we may not overleap the barriers.”

The relation of mixed schools to the limited objectives that were expressed in the Civil Rights Act was lucidly summarized by John L. Thomas of Maryland:

As a freeman, he is entitled to acquire and dispose of real and other property . . . to have his life, liberty, and person protected by the same laws that protect me . . . so shall he not only have the right to enforce his contract, but to that end shall be received as a witness in a court of justice on the same terms . . . It would be an outrage . . . [if] we were to refuse to throw around them such legal guards as will prove their only protection and secure to them the enforcement of their rights.

I will go even further . . . and will vote for all measures to elevate their condition and to educate them separate and apart from the whites . . . [B]ut when it comes to placing him upon the same social and political level as my own race, I must refuse to do it.

There is yet other evidence that the framers had no intention of striking down segregation. The Senate gallery itself was segregated, as Senator Reverdy Johnson mordantly remarked. The Carl Schurz report Education of the Freedmen spoke throughout of “ ‘colored schools,’ ‘school houses in which colored children were taught.’ There were no references to unsegregated schools, even as an ultimate objective.” Instead there was a pervasive assumption that segregation would remain. Referring to the burning of black schools in Maryland, Josiah B. Grinnell of Iowa said, give them schoolhouses and “invite schoolmasters from all over the world to come and instruct them.” Senator Daniel Clark of New Hampshire stated, “you may establish for him schools.” Ignatius Donnelly of Minnesota stated, “Educate him and he will himself see to it that the common schools shall forever continue among his people.” Senator William P. Fessenden said of the “representation” proposal that was to become §2 of the Fourteenth Amendment: it “should serve as an inducement to the southern States to build school houses . . . and educate their colored children until they are fit to vote.” In vetoing the antecedent Freedmen’s Bureau Bill, President Johnson noted that it provided for the “erection for their benefit of suitable buildings for asylums and schools,” and objected that Congress “has never founded schools for any class of our own people.” Thaddeus Stevens “did not publicly object to the separation of the races in the schools although he was against segregation in theory . . . But he never pressed for legal enforcement of this kind of equality, as Charles Sumner did, believing it achievement enough that the South would have free schools at all.”

Additional light may be gathered from post–Fourteenth Amendment developments, part of Sumner’s continuing campaign for desegregated schools. On March 16, 1867, Sumner moved to amend a Supplementary Bill to require “that State constitutions provide for a system of non-discriminatory public schools.” The motion failed; it “went beyond what majority sentiment would sustain.” Let an impassioned apostle of the incorporation of abolitionist ideology—Howard Jay Graham—sum up:

There were many reasons why men’s understanding of equal protection, as applied to educational matters, was imperfect in 1866 . . . Negroes were barred from public schools of the North and still widely regarded as “racially inferior” and “incapable of education.” Even comparatively enlightened leaders then accepted segregation in the schools.

The “imperfect” “understanding of equal protection” in 1866 means that the framers did not conceive it in the vastly broadened terms given to the phrase by the Warren Court. How did this history fare in the Warren Court?

In his painstaking reconstruction of the progress of Brown v. Board of Education, Richard Kluger has furnished some fascinating glimpses behind the portals of the Supreme Court. The case was first argued before the Vinson Court; Chief Justice Vinson “found it ‘Hard to get away’ from the contemporary view by its framers that the Fourteenth Amendment did not prohibit segregation.” Jackson noted, “For 90 years segregated schools [existed] in the city [Washington].” Frankfurter, “a keen observer of his colleagues’ voting inclinations,” listed Clark—along with Vinson, Reed, and Jackson—as “probable dissenters if the Court voted to overturn Plessy in the spring of 1953.” If they were to be brought about, time was needed; a decision outlawing segregation by a divided Court would have produced tremendous shock waves. With Bickel’s aid Frankfurter framed five questions for reargument, which the Court submitted to counsel and put the case over to the next term. The Frankfurter tactic paid off in an unexpected way: the sudden demise of Chief Justice Vinson just before the Brown reargument. How much that mattered may be gathered from Frankfurter’s remark: “This is the first indication I have ever had that there is a God.” And that remark also reveals that men and votes, not the impalpable “consensus of society” picked up by judicial antennae, are what count.

The most interesting figure was Frankfurter himself. According to William Coleman, who had clerked for him a few years earlier and was the coordinator of research for the NAACP in the various States, Frankfurter “was for ending segregation from the very start.” A remarkable fact: Frankfurter, the sworn foe of subjective judgment, who disclaimed enforcement of his own “private view rather than the consensus of society’s opinion,” had made up his mind “from the day the cases were taken” that segregation must go! This was before hearing argument or reading briefs in a case of extraordinary national importance. Not that he was unaware of the constitutional obstacles. Kluger recounts that Frankfurter “had studied the history of the Fourteenth Amendment” and concluded that “in all likelihood, the framers of the amendment had not intended to outlaw segregation.” His conclusion must have been greatly strengthened by the Bickel memorandum, which he found so impressive that “he had it set up in type in the Court’s basement print shop and distributed among the Justices a few days before the Brown reargument.” Bickel showed, and his demonstration is yet to be successfully controverted, that the 39th Congress meant to leave segregation “as is” —to the States. After the distribution of the Bickel memorandum, Jackson wrote a file memorandum dated February 15, 1954, in which he stated: “despite my personal satisfaction with the Court’s [forthcoming] judgment, I simply cannot find, in surveying all the usual sources of law, anything which warrants me in saying that it is required by the original purpose and intent of the Fourteenth or Fifth Amendment.” He told the Conference that he would “file a separate concurring opinion” if the “Court feigned that the Justices were doing anything other than declaring new law for a new day.” This, Kluger comments, was asking the majority to admit that “there was no judicial basis for its decision,” that “it was acting in a frankly unjudicial way.” Kluger considers it “a scarcely reasonable request to make of the brethren.” Why not? What kind of “consensus of society” (which the Court purportedly effectuates) is it that cannot withstand the truth—that effectuation required “new law for a new day”? An adult jurisprudence for an age of “realism” surely called for an end to the pretense that it was the Constitution, not the Justices, who spoke. Concealment suggests there may in fact have been no consensus. Perhaps Jackson’s insistence impelled Chief Justice Warren—after labeling the history “inconclusive” —to state that “we cannot turn back the clock to 1868,” a veiled declaration that the intention of the framers was irrelevant and that the Court was revising the Constitution to meet present-day needs.

Justice Frankfurter, the professed devotee of “self-restraint,” reached a similar conclusion, but in different rhetoric. He had asked, Justice Burton noted, “What justifies us in saying that what was equal in 1868 is not equal now?” and in a file memorandum he formulated his own answer:

the equality of laws enshrined in a constitution which was “made for an undefined and expanding future . . .” . . . is not a fixed formula defined with finality at a particular time. It does not reflect, as a congealed summary, the social arrangements and beliefs of a particular epoch . . . The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether a discrimination denies the equal protection of the laws.

Although the framers were well aware of the nation’s “expanding future,” they nonetheless, for example, rejected suffrage, “present or prospective.” They knew that Article V provided the means to avoid “congealment,” as was before long evidenced by adoption of the Fifteenth Amendment. The real issue, therefore, was not whether the Constitution must be “congealed,” but rather who was to make the change—the people or the Justices. Buried in Frankfurter’s fine phrases is a confession that the people could not be trusted to reflect the “changes in men’s feelings” by an amendment, and that in consequence the Justices had to rewrite the Constitution. Even in a memorandum for his own use, Frankfurter could not bring himself to admit that he was “making new law for a new day,” but sought to disguise the fact with “majestic generalities.”

In Chapter 10 I shall show that the framers employed “equal protection of the laws” to express their limited purpose: to secure the rights enumerated in the Civil Rights Act, and those only, against discriminatory State legislation. With respect to those rights there could no longer be one law for whites and another for blacks. The limitless objectives that Frankfurter read into the phrase were utterly beyond the contemplation of the framers. For the stubborn fact is that racism was, and still remains, an ugly fact of American life; as Jackson’s file memorandum stated, “Neither North nor South has been willing to adapt its racial practices to its professions.” “It was into this moral void, ” Kluger states, “that the Supreme Court under Earl Warren now stepped,” not to give effect to a national consensus, still less to the Fourteenth Amendment, but to revise it for the people’s own good. But “the criterion of constitutionality,” said Justice Holmes, “is not whether we believe the law to be for the public good.”

Supplementary Note on Segregated Schools

brown v. board of education

8

Incorporation of the Bill of Rights in the Fourteenth Amendment

Invocation of the Bill of Rights against the States is of fairly recent origin, whether it be regarded within the older framework of “adoption” or the more recent theory of “incorporation.” From the First Amendment’s “Congress shall make no law” may be gathered that it was to apply exclusively to Congress, and it was held in Barron v. Baltimore that the Bill of Rights had no application to the States, as in fact the First Congress, which drafted the Bill, had earlier made clear. Justice Harlan spoke truly in stating that “every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.” And for a long time the Supreme Court found that the Fourteenth Amendment had made no change in this respect. By means of “selective” incorporation or adoption the Court has worked “a revolutionary change in the criminal process” of the States. Some consider that the Court was “trying to legislate a detailed criminal code for a continental country.”

Historically the citizenry have relied upon the States for protection, and such protection was afforded before the Constitutional Convention by a Bill of Rights in virtually every state Constitution. It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State Constitutions already provided against the States. This was understood by the framers of the Fourteenth Amendment, and their own attachment to State sovereignty led them to refrain from intruding beyond the ban on discrimination against blacks with respect to certain rights. All else, including suffrage, was left to the States. In particular, Chairman Wilson emphasized during the debates on the Civil Rights Bill, “We are not making a general criminal code for the States.” Since the Amendment indisputably was designed to “incorporate” the guarantees of the Civil Rights Act, evidence is required to show that the framers had moved beyond the limited purposes of the Act.

The architect of the “incorporation” theory, Justice Black, invoked some fragmentary history—utterances in connection with an explanation of “privileges or immunities” by two leading Republican spokesmen, Bingham, author of §1, and Senator Jacob M. Howard, who purported to express the views of the Joint Committee. Such statements are not lightly dismissed, after the manner of Justice Frankfurter, because “Remarks of a particular proponent of the Amendment, no matter how influential, are not to be deemed part of the Amendment.” Accepted canons of construction are to the contrary; the paramount consideration is to ascertain the intention of the legislature. That intention may be evidenced by statements of leading proponents, and, if found, is to be regarded as good as written into the enactment: “the intention of the lawmaker is the law.” But Black’s history falls far short of the “conclusive demonstration” he thought it to be in his famous Adamson dissent. The contrary, it may fairly be said, was demonstrated in Charles Fairman’s painstaking and scrupulous impeachment of Black’s history, buttressed by Stanley Morrison’s telling companion article.

Absorption of one or another portion of the Bill of Rights—free speech, for example—antedated Adamson, but this was on a selective basis, under cover of due process. To Black this was an abhorrent claim to “boundless power under ‘natural law’ periodically to expand and contract constitutional standards to conform to the court’s conception of what at a particular time constitutes ‘civilized decency’ and ‘fundamental liberty and justice.’ ” Why, he asked, should the Bill of Rights “be ‘absorbed’ in part but not in full?” The cure, he maintained, was “incorporation” en bloc. His condemnation was not, however, wholehearted, for he was ready to accept “selective” adoption if he could not obtain wholesale incorporation, suggesting that sacrifice of a desired result was more painful than “boundless power to expand or contract constitutional standards.” The words “privileges or immunities” seemed “an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.” The two concepts, however, are of entirely different provenance and deal with quite different matters. “Privileges or immunities” has its roots in Article IV, §2, which requires States to accord certain privileges to citizens of a sister State; the Bill of Rights, on the other hand, was designed to protect certain rights against the federal government. The debates in the First Congress contain not the faintest intimation that the “privileges and immunities” of Article IV were being enlarged or, indeed, that the Bill of Rights was in any way related to “privileges and immunities.” And, when Justice Bushrod Washington later enumerated those “privileges and immunities,” he too made no reference to the Bill of Rights. To read the Bill of Rights into “privileges or immunities” is therefore no more “reasonable” than to read a “bill of attainder” into “habeas corpus.”

In Adamson, Black appealed to “the original purpose of the Fourteenth Amendment.” as disclosed by the Bingham-Howard statements. These statements had reference to the “privileges or immunities” clause, but that clause had been emasculated in the Slaughter-House Cases. Hence Black relied on “the provisions of the Amendment’s first section, separately, and as a whole” for incorporation of the Bill of Rights. The “privileges or immunities” clause gains no fresh vitality as a component of the “whole” of §1. Reliance on the due process clause runs afoul of Black’s statement in the Adamson case that in Chicago, M. & St. P. R. Co. v. Minnesota (1890) the Court “gave a new and hitherto undisclosed scope for the Court’s use of the due process clause to protect property rights under natural law concepts.” Substantive due process was fashioned in Wynehamer v. The People (1856) to bar abolitionist natural law claims and confine protection to property; and libertarian due process came long after economic substantive due process. No one in the 39th Congress intimated that the due process clause would incorporate the Bill of Rights; Bingham looked to the judicial decisions for the scope of due process, then purely procedural. Speaking to the Bingham amendment, Chairman Wilson indicated that the due process clause was considered to furnish a “remedy” to secure the “fundamental rights” enumerated in the Civil Rights Act. To transform it into a “source” of other unspecified rights is to set at naught the careful enumeration of rights in the Act, “constitutionalized” by the Amendment, which is incompatible with Black’s invocation of the original purpose. In truth, expansion of due process to libertarian claims is largely a product of the post-1937 era; and “substantive equal protection” is a very recent concept indeed. Black’s reliance on §1 “as a whole” can therefore be met with the adage “when nothing is added to nothing, the sum is and remains the same—nothing.”

Bingham’s remarks were addressed to H. R. No. 63, the antecedent Bingham amendment: “The Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States (Art. IV, §2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th amendment).” This proposal, said Bingham, “stands in the very words of the Constitution . . . Every word . . . is today in the Constitution.” It is a mark of Bingham’s sloppiness that “every word” was not “in the Constitution”: “equal protection” was missing altogether. “ [T]hese great provisions of the Constitution,” he continued, “this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.” As Fairman pointed out, the antecedent of his remark was Article IV, §2, and the Fifth Amendment due process clause which Bingham equated with “equal protection.” There is no reason to believe that his subsequent references to the Bill of Rights had broader compass. Certainly his fellow Republicans did not so read his proposed amendment. The radical William Higby of California thought that the Article IV, §2, clause and the Fifth Amendment due process clause constituted “precisely what will be provided” by the Bingham amendment. Another radical, Frederick E. Woodbridge of Vermont, stated: “It is intended to enable Congress by its enactments when necessary to give a citizen of the United States in whatever State he may be, those privileges and immunities which are guarantied to him under the Constitution [Article IV] . . . that protection to his property which is extended to other citizens of the State [due process clause].” Bingham’s reference to “the enforcement of the bill of rights, touching the life, liberty, and property . . . within every organized State . . .” would convey to his fellows the technical meaning that had been attached to “life, liberty, and property” in the Civil Rights Bill debate.

Bingham, it will be recalled, had proposed his amendment to avoid doubts as to the constitutionality of the Civil Rights Bill. Wilson, chairman of the Judiciary Committee, joined issue: “in relation to the great fundamental rights embraced in the bill of rights, the citizen . . . is entitled to a remedy. The citizen is entitled to the right of life, liberty and property. Now if a State intervenes, and deprives him, without due process of law, of those rights . . .” And he said, “I find in the bill of rights which the gentleman desires to have enforced by an amendment . . . that ‘No person shall be deprived of life, liberty and property without due process of law.’ I understand that these constitute the civil rights . . . to which this bill relates.” Implicit in Wilson’s formulation is the assumption that no more is needed; and that is likewise the implication of the Higby and Woodbridge remarks about the Bingham amendment.

Far from accepting every word that fell from Bingham as gospel, the framers gave his proposal a chilly reception. According to Kendrick, he “stood almost alone . . . a great many Republicans, including particularly the entire New York delegation, were opposed to the amendment.” He tried to soften the opposition by arguing that to oppose his amendment was “to oppose the grant of power to enforce the bill of rights,” to perpetuate statutes of confiscation, of banishment, of murder. Bickel considers that Bingham “was suggesting to those members who were alarmed that he had some definite evils in mind, limited and distinct in nature.” When we add: (1) the fact that Bingham’s amendment was shelved argues against adoption of his views; (2) the fact that the Joint Committee’s subsequent rejection of Bingham’s motion to add to Owen’s proposed amendment the phrase “nor take private property for public use without just compensation” is incompatible with blanket adoption of the first eight Amendments; (3) the fact that Bingham made no reference to inclusion of the Bill of Rights during debate on the final proposal which became §1 of the Amendment; (4) Wilson’s emphasis during debate that the Civil Rights Bill embodied the very civil rights embraced by due process protection of life, liberty, and property; and (5) Wilson’s assurances during that debate that “we are not making a general criminal code for the States” (suggesting that what was unpalatable in the Bill would be no more acceptable in the Amendment)—it becomes apparent that beyond due process the framers had no intention to adopt the Bill of Rights.

Bingham was in fact utterly at sea as to the role of the Bill of Rights. At first he considered it to be binding upon the States. Thus, after reading the due process clause of the Fifth Amendment as the source of his own proposed amendment, he stated: “this proposed amendment does not impose upon any State . . . an obligation which is not now enjoined upon them by the very letter of the Constitution.” For this he appealed to the “supremacy clause” of Article VI, which makes the Constitution binding, hurdling the preliminary question whether the Constitution made the Fifth Amendment binding on the States. Although he noted that Barron v. Baltimore held that the Bill of Rights is “not applicable to and do[es] not bind the States,” he stated on February 28: “A State has not the right to deny equal protection . . . in the rights of life, liberty, and property.” On March 9 he stated:

the care of the property, the liberty, and the life of the citizen . . . is in the States, and not in the Federal Government. I have sought to effect no change in that respect . . . I have advocated here an amendment which would arm Congress with the power to punish all violations by State officers of the bill of rights . . . I have always believed that protection . . . within the States of all the rights of person and citizen, was of the powers reserved to the States.

Reservation of “protection” to the States runs counter to rejection of a State’s denial of an existing “right to equal protection”; it is incompatible with State “violations” of the Bill of Rights. Apparently unaware that Article IV, §2, protected nonresident migrants, not residents, Bingham said: “No State ever has the right . . . to abridge . . . the privileges and immunities of any citizen of the Republic.” Shifting again, he stated: “we all agree . . . that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” “Exclusive control” authorizes a State to “abridge” the privilege. In truth, as Morrison, concurring with Fairman, stated, Bingham’s “many statements . . . are so confused and conflicting as to be of little weight.” This goes beyond the issue of credibility, which courts test by inconsistent statements. It poses the question: upon which of his conflicting explanations did the framers rely? How can “conclusive” legislative history rest on shifting sands?

In the eyes of Justice Black, “Bingham may, without extravagance be called the Madison of the first section of the Fourteenth Amendment.” Shades of Madison! Bingham was a muddled thinker, given to the florid, windy rhetoric of a stump orator, liberally interspersed with invocations to the Deity, not to the careful articulation of a lawyer who addresses himself to great issues. Recall his location of the words “equal protection” in the Constitution from which they were notably absent. Hale attributed to Bingham the view that “there had been from first to last, a violation of the provisions of this bill of rights by the very existence of slavery itself,” thereby, as Judge Hale doubtless was aware, converting the Bill into a repealer of several existing provisions that sanctioned slavery—and this in the teeth of the First Congress’ express intention to exclude the States from the ambit of the Bill of Rights.

Presumably the framers who listened to Bingham found his frequent shifts of position no less perplexing than they seem to us; consequently, they had an added incentive to cling to the vastly preponderant view that they were merely incorporating the limited provisions of the Civil Rights Act in the Amendment. Whatever be the weight that attaches to Bingham’s utterances, it needs to be noted that even his admirers read them restrictively. So, Kelly states that his speech of February 29 “makes it clear that by ‘bill of rights’ Bingham meant both the guarantees of the comity clause and the guarantee of due process in the Fifth Amendment.” And tenBroek asks, “What Bill of Rights? Certainly not the first eight amendments to the Constitution. The answer is not left open to conjecture: the Bill of Rights that contain (1) the comity clause . . . which guarantees the privileges and immunities of citizens of the United States; (2) the due process clause of the Fifth Amendment; and (3) the requirement that all shall be protected alike in life, liberty, and property, not explicitly mentioned in either body or amendments . . . this was the ‘immortal Bill of Rights’ of John A. Bingham.” Among the abolitionists themselves there was general agreement only about the due process clause and the First and Fourth Amendments; the “rights in the other amendments,” tenBroek says, “received only casual, incidental, and infrequent reference.” Justice Black, therefore, would impute to Bingham views which far outran the abolitionist program that allegedly was the source of his inspiration. Before we marshall the evidence which further undermines attribution of Bingham’s views to the framers, let us consider the companion remarks of Senator Jacob M. Howard.

By a caprice of fortune—the sudden illness of Chairman Fessenden—it fell to Senator Howard to act as spokesman for the Joint Committee in explaining the Amendment. Up to this point his participation in the debates on the Civil Rights Bill and the several aspects of the Amendment had been negligible. Poles removed from Chairman Fessenden, who “abhorred” extreme radicals, Howard, according to Kendrick, was “one of the most . . . reckless of the radicals,” who had “served consistently in the vanguard of the extreme Negrophiles.” He had expended “fruitless efforts” to include the right to vote; he and Elihu B. Washburne of Illinois “had been the only Republicans to hold out for black suffrage to the end, all the others proved willing to abandon it.” That such a man should speak “for” a Committee in which the “non-radicals clearly outnumbered the radicals,” in which, by the testimony of the co-chairmen Fessenden and Stevens, there “was very considerable difference of opinion,” needs to be taken, in the words of the “immortal” Samuel Goldwyn, with “a bushel of salts.”

On May 23 Senator Howard rose in the Senate, alluded to Fessenden’s illness, and stated that he would present “the views and the motives which influenced the committee, so far as I understand [them].” After reading the privileges and immunities listed in Corfield v. Coryell, he said, “to these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments.” That is the sum and substance of Howard’s contribution to the “incorporation” issue. Justice Black assumed without more ado that Howard “emphatically stated the understanding of the framers.” No one, to be sure, rose to challenge Howard’s remark, casually tucked away in a long speech. “The argument from silence,” as Alfred Kelly observed, “is always more than a little dangerous.” But was there really silence? Consider Senator Poland’s subsequent statement: “Great differences have existed among ourselves; many opinions have had to yield to enable us to agree upon a plan.” A similar statement had been made by Fessenden and repeated by the radical leader Senator Benjamin Wade. Now, after the compromise of such differences about known objectives, we are asked to infer that there was unquestioning acceptance of a sweeping, brand-new element, which had received no consideration whatever! Then too, others who spoke after Howard, repeated that the goal was legitimation of the Civil Rights Act. So, Senator Poland observed, “The clause . . . that ‘no State shall . . . abridge the privileges and immunities of citizens of the United States’ rsecures nothing beyond what was intended by the original [Article IV, §2] provision in the Constitution.” If this be not regarded as a delicately phrased repudiation of Howard’s addition, at the very least it exhibits a more limited view than that of Howard by a respected Republican. Senator Doolittle stated that the Civil Rights Bill “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward.” Such reminders of known and limited objectives were designed to reassure those whose consent had thus far been won; and they rob Howard’s remark of uncontroverted standing.

Account must also be taken of expressions in the House after Howard’s speech, for even if his words be taken to express the sentiment of the Senate, it must not be facilely assumed that it was shared by the House. Nothing was said about the Bill of Rights upon return of the measure to the House —surely a remarkable silence about an extraordinary expansion of jointly accepted goals! Instead, George R. Latham, a West Virginia Republican, remarked, “The ‘civil rights bill’ which is now a law . . . covers exactly the same ground as this amendment.” Henry Van Aernam of New York said that the Amendment gives “constitutional sanctions and protection to the substantial guarantees of the civil-rights bill.” The Latham–Van Aernam remarks, parenthetically, afford additional proof that the earlier Bingham remarks did not represent the thinking of the House. Also significant are Stevens’ final remarks lamenting his failure to abolish “all” “inequality” and “distinctions” and explaining that he was constrained to accept so “imperfect a proposition” because he lived “among men and not among angels . . . who . . . do not choose to yield their opinions to mine.” It strains credulity to attribute to “men” who had rejected abolition of “all” distinctions readiness to swallow whole-hog reconstruction of their Northern institutions which had not even been discussed. Instead, the specific incorporation of one portion of the Bill of Rights—the due process clause—and the rejection of another—the just compensation clause—gave the framers ample reason to conclude that “due process” alone was to be “incorporated.”

Flack’s canvass of “speeches concerning the popular discussion of the Fourteenth Amendment” led him to conclude:

the general opinion held in the North . . . was that the Amendment embodied the Civil Rights Act . . . There does not seem to have been any statement at all as to whether the first eight amendments were to be made applicable to the States or not, whether the privileges guaranteed by those amendments were to be considered as privileges secured by the amendment.

Senator Sherman, for example, told Cincinnati during the campaign for adoption that “the first section was an embodiment of the [Civil Rights] Act.” Fairman has collected remarks by five Senators and five Representatives, not one of whom “said that the privileges and immunities clause would impose Articles I to VIII upon the States.” We must assume that they knew of no such purpose; men of Sherman’s stature may not be charged with a conspiracy to conceal the proposed imposition from the people—certainly not without substantial proof. There is no need to retrace Fairman’s examination of the State ratification proceedings; let it suffice that there is no intimation therein that ratification would produce radical changes in the States’ judicial machinery, for example, the replacement of an information by a grand jury indictment, of a six-man jury by a jury of twelve. If this was in fact the purpose of the framers, honesty required disclosure. None was made, and the reason, I suggest, is that no such purpose was entertained.

Then there is the remarkable fact that the cases which followed on the heels of the Fourteenth Amendment continued to hold the Bill of Rights inapplicable to State action, without mentioning the Amendment. Oversight will not account for the omission; the Amendment had been widely discussed; bench and bar are alert to every new and relevant enactment; they would not be oblivious to the revolution worked by the alleged incorporation of the Bill of Rights.

In sum, the framers were motivated by discriminatory denials of “fundamental rights” to the blacks. No trace of a purpose to reconstruct Northern institutions for the protection of white inhabitants against the State will be found in the debates; the frequent expressions of jealous regard for State sovereignty repel such a purpose. When Judge Robert Hale insisted that “the American people have not yet found their State governments are insufficient to protect the rights and liberties of the citizen,” Bingham translated this as “the citizens must rely upon the State for their protection,” and added, “I admit that such is the rule under the Constitution as it now stands.” It cannot be presumed that the States which, in Stevens’ words, would not “allow Congress to come within their jurisdiction to fix the qualifications of their voters,” would tolerate a federal overhaul of their judicial processes that went beyond making them available to Negroes. Such a presumption runs counter to Senator Trumbull’s assurance that the “provisions of the [Freedmen’s Bureau] bill in regard to holding courts . . . are confined entirely to the rebellious States.” “Certainly nobody has ever complained,” Senator Cowan said, “that a full and exact measure of justice has not been meted out to him in all our courts . . . I do object to extending it to the loyal States of the North.” Subsequently, Trumbull twice stated that the Civil Rights Bill had no application to a State that did not discriminate between its citizens. The constant reiteration that the purpose of the Amendment was to constitutionalize the Civil Rights Act, the frequent tributes to State sovereignty, and recognition of powers reserved to the States by the Tenth Amendment, in which Bingham joined, unite to repel an inference that the framers intended to interfere with State conduct of its own affairs otherwise than is described in that Act. The pervasive attachment to federalism—State control of local institutions—Phillip Paludan repeatedly emphasizes, was “the most potent institutional obstacle to the Negroes’ hope for protected liberty” —and even more of an obstacle to federal encroachment on Northern States’ control of their own white citizens. If there was a concealed intention to go beyond the Civil Rights Act, it was not ratified because, first, ratification requires disclosure of material facts, whereas there was no disclosure that the Amendment was meant to uproot, for example, traditional State judicial procedures and practices; and, second, a surrender of recognized rights may not be presumed but must be proved. In truth, the Fourteenth Amendment “was presented to the people as leaving control of suffrage in state hands, as representing no change in previous constitutional conditions so far as protection of rights was concerned [beyond banning discrimination], as stripped of radical character.”

Let Justice Black himself, the unremitting champion of “incorporation,” sum up, substituting for his word “corporations” the words “judicial processes”:

The states did not adopt the Amendment with knowledge of its sweeping meaning under its present construction. No section of the Amendment gave notice to the people that, if adopted, it would subject every state law . . . affecting [judicial processes] . . . to censorship of the United States courts. No word in all this Amendment gave any hint that its adoption would deprive the states of their long recognized power to regulate [judicial processes].

Supplementary Note on Incorporation

He was ever intoxicated by his own rhetoric. Webster, of course, would not conceive that his statement would override a Supreme Court decision. And the “grand utterance” cited by Bingham had no more to do with the case than the flowers that bloom in the spring.

modern rights

9

Opposition Statements Examined

The case for a broad reading of the Fourteenth Amendment has been rested in large part on statements by those who opposed both the Civil Rights Bill and the Amendment. That is a sharp departure from traditional canons of interpretation voiced by Thomas Jefferson; he looked for the “meaning” of the Constitution to the “explanations of those who advocated, not those who opposed it.” Like Jefferson, courts look to statements by the advocates of a measure and give short shrift to its opponents. There are sound reasons for that view.

It beclouds analysis merely to identify Senators Willard Saulsbury, Garrett Davis, Thomas A. Hendricks, and Peter G. Van Winkle as “Conservatives,” without adding that they were Democrats adamantly opposed to the Reconstruction measures, who wanted to keep the Negroes in subjection, and of whom Davis and Saulsbury were in the front rank of the assault. Among the opponents was Lovell H. Rousseau of Kentucky, an unabashed racist, who charged that the Freedmen’s Bureau Bill “gave negroes the same privileges in railway cars and theaters, and there would be mixed schools.” Horace Flack comments that “no one questioned [Rousseau’s] statements in regard to these things,” and concludes: “Many believed that the negro would be entitled to sit on juries, to attend the same schools . . . It does not appear that all of these contentions were specifically contradicted. It would seem reasonable to suppose that . . . these rights could not be legally denied to them.” To begin with, there were, for example, a number of specific denials by proponents of the Bill that it provided for Negro service on a jury; it was hardly necessary to pop up like a jack-in-the-box with a retort to each such remark, particularly when the sponsors repeatedly underscored the limited objectives of the Bill. Why should any weight be given to the insistence by Andrew J. Rogers, Democrat of New Jersey, that the Bill would nullify school segregation, coming on the heels of Chairman Wilson’s categorical denial, later reiterated, of any such effect?

The length to which the approach of Flack has been carried is illustrated by Alfred Kelly. After noting the various references to constitutionalization of the Civil Rights Act by the Fourteenth Amendment, he states: “All this might well imply that the first section of the proposed amendment was intended to be merely declaratory of the Civil Rights Act, and would not go beyond its rather restrictive guarantees. But a second theme was present in the House debates—the argument that the phraseology of the first section was expansive and ‘revolutionary’ in character, so that its precise meaning was susceptible to indefinitely broad interpretation.” And who are the Congressmen avouched for this “revolutionary” reading? A group of Democratic worthies, Benjamin M. Boyer and Samuel J. Randall of Pennsylvania, and Rogers, the “ ‘bete noire’ of the Radicals,” says Kelly himself —a man so far out that he was actually embarrassing to his more practiced Democratic colleagues. It is astonishing to derive “revolutionary” principles from the argumentative statements of the very foes who fought even moderate proposals tooth and nail.

Now the Democrats well knew that a broad segment of the Northern electorate was opposed to Negro equality, so their statements, as Charles Fairman noted, were calculated to render the bill “odious.” They sought to discredit it, not to make it the instrument of a “revolution” in Negro rights. For the Democrats, color prejudice, Eric McKitrick remarks, “was their greatest asset. All they needed to do was to keep it alive and exploit it in every way.” Fairman’s admonition against “drawing inferences from a failure to deny such statements in such unreasonable partisan harangues” reflects established interpretive practice most recently restated by the Supreme Court: “ [remarks] made in the course of legislative debate or hearings other than by persons responsible for the preparation or the drafting of a bill are entitled to little weight . . . This is especially so with regard to the statements of legislative opponents who ‘ [i]n their zeal to defeat a bill . . . understandably tend to overstate its reach.” ’ Or, as it stated on another occasion: “An unsuccessful minority cannot put words into the mouths of the majority.”

Several broad constructions cannot, however, quickly be dismissed as calculated partisanship. Senator Edgar Cowan, a conservative Republican of Pennsylvania, read the Bill to mean “that there shall be no discrimination made . . . none in any way,” so that Pennsylvania officials could be punished for enforcing its school segregation laws. The Bill, however, was restricted to “civil rights,” whose narrow scope was repeatedly emphasized. Then, too, the “no discrimination in civil rights” phrase was later deleted, in order, Chairman Wilson explained, to obviate a “latitudinarian” construction. Another statement, that of Senator Reverdy Johnson, a Democrat of Maryland and respected veteran lawyer, merits notice. He urged that because a Negro would now be authorized to enter into a contract, he could enter into a “contract of marriage” with a white woman and thereby the State miscegenation laws would be invalidated. Tocqueville recorded that “in the North of the Union, marriages may be legally contracted between negroes and whites; but public opinion would stigmatize a man who should connect himself with a negress as infamous.” That attitude persisted; Stevens’ Negro mistress horrified the abolitionists. Few of the most ardent abolitionists would have dared argue for intermarriage at this time, because it would have wrecked their hope of securing the indispensable “fundamental rights” to blacks. To attribute to the framers an intention by the word “contract” to authorize intermarriage runs counter to all intendments. In the House, Samuel W. Moulton of Illinois flatly denied “that it is a civil right for a white man to marry a black woman or for a black man to marry a white woman.” Although a contract of marriage, strictly speaking, is a contract, marriage is not in ordinary usage conceived in terms of contract. Given the stated purposes of the Bill, the association of contracts with other property rights, authority to contract could be read as a license for intermarriage only by a strained construction. Senator Johnson himself stated to Fessenden, “you do not mean to do that. I am sure that the Senator is not prepared to go to that extent.” Nevertheless, to forestall the possibility that a court might thus broadly construe the Bill, he urged specific exclusion of intermarriage. It would be straining at a gnat to deduce from the omission to make such an exclusion that the Bill contemplated the abolition of miscegenation laws. No court which, like Senator Johnson, would perceive that Congress did “not mean to do that,” should so read the Act; for from the bloodletting case in Bologna in the Middle Ages, courts have striven to ascertain and effectuate the intention of the lawmaker. Although President Johnson vetoed the Civil Rights Bill, he referred to “the enumeration of the rights to be enjoyed” and noted that it did not repeal “State laws on the subject of marriage between the two races.”

A similar objection, that of Columbus Delano, an Ohio Republican, was that the “equal benefit of all laws and proceedings for the security of person and property” would extend to the “right of being jurors.” Mark that an Ohio Republican said to Chairman Wilson, “I presume that the gentleman himself will shrink from the idea of conferring upon this race now, at this particular moment, the right of being jurors.” Wilson countered, “I do not believe it confers that right,” and he reiterated that the limited objectives of the Bill did not extend to “setting aside the school and jury laws.” Moulton also denied “that it is a civil right for any one to sit on a jury”; and Ohio Republican William Lawrence stated that the Bill “does not affect any political rights, as that of suffrage, the right to sit on juries . . . That it leaves to the States to be determined each for itself.”

The positive explanations that the bill had restricted objectives are fortified by the fact that sweeping proposals to abolish all discriminatory classifications repeatedly fell by the wayside, confirming that Congress with open eyes rejected a comprehensive ban against all discriminations. For example, early in the session, on January 12, 1866, Stevens submitted to the Joint Committee on Reconstruction that “ All laws, state or federal, shall operate impartially and equally on all persons without regard to race or color.” On February 19, 1866, Senator Richard Yates of Illinois proposed that “No State shall . . . in any manner recognize any distinction between citizens of the United States or any State . . . on account of race,” and renewed the proposal on March 9, 1866, at which time it was decisively voted down, 38 to 7. Senator Sumner proposed that in the rebel States “there shall be no denial of rights, civil or political, on account of race.” This, too, was rejected, 39 to 8; a similar proposal was made by Senator Henderson, and there were others. One and all came to naught. At Bingham’s insistence, it will be recalled, the phrase “There shall be no discrimination in civil rights” was deleted from the Civil Rights Bill, leaving the express enumeration of protected privileges and immunities. The plain fact, as Senator Fessenden, the respected chairman of the Joint Committee said, was that “we cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.”

In the teeth of this history, to import into the Civil Rights Act views of abolitionists and opponents that so plainly had been rejected, is to thwart, not to effectuate, the intention of its framers. Bickel fairly summarizes the evidence: “The Senate Moderates, led by Trumbull and Fessenden, who sponsored this [civil rights] formula, assigned a limited and well-defined meaning to it,” namely, “the right to contract” and so on, “also a right to equal protection in the literal sense of benefiting equally from the laws for the security of person and property. ” Even so, James G. Blaine recorded, “it required potent persuasion, reinforced by the severest party discipline, to prevent a serious break in both Houses against the bill” —and this in spite of repeated assurances as to its limited scope. Subsequently, four defectors in the Senate could have defeated the Amendment.

10

“Equal Protection of the Laws”

It has long been the habit of the Supreme Court to say that the Fourteenth Amendment “speaks in general terms, and those are as comprehensive as possible.” Its opinions are replete with references to the “majestic generalities” of the Fourteenth Amendment, to the “vague contours” of the due process clause, and the like. Even Judge Learned Hand, though later dubious whether the Amendment authorized the desegregation decision, had said, “history is only a feeble light, for the rubrics were meant to answer future problems unimagined and unimaginable.” And, though Negro suffrage was unmistakably excluded from the Amendment, no less a figure than Justice Holmes held that the equal protection clause self-evidently requires admission of Negroes to a Texas primary: “it seems hard to imagine a more direct and obvious infringement of the Fourteenth. That amendment . . . was passed . . . with a special intent to protect blacks from discrimination against them.” Yet, as we have seen, the framers meant to outlaw discrimination only with respect to enumerated privileges. Even the abolitionists shrank from complete equality. Derrick Bell points out that “few abolitionists were interested in offering blacks the equality they touted so highly. Indeed, the anguish most abolitionists experienced as to whether slaves should be granted social equality as well as political freedom is well documented.”

It is the object of this and the succeeding chapter to show that the framers chose words which aptly expressed, and throughout were wedded to, their limited purposes; that there is virtually no evidence that the framers meant by resort to those words to open goals beyond those specified in the Civil Rights Act and constitutionalized in the Amendment. If the terms of the Amendment are “vague,” it is because the Court made them so in order to shield the expanding free enterprise system from regulation.

Analysis will be facilitated by a breakdown into subsidiary questions: What privileges were to be protected? Was the protection to be absolute, that is, to guarantee certain rights to all, or comparative, only to secure freedom from discrimination if those rights were granted? Do the words confer upon Congress a general power to legislate for the States or merely a power to correct State violations? The materials that bear upon these questions are so intermingled that it is not easy to disentangle them for separate discussion. Some repetition is therefore unavoidable, but an effort to isolate the several issues is well worth the cost.

“Equal protection,” it has been said, “had virtually no antecedent history.” Sumner believed that he may have been “the first to introduce the words ‘equality before the law’ into American jurisprudence.” In truth, the concept that laws should be general, nondiscriminatory in their application, is of long standing. As Locke put it, rulers “are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor.” A note to Blackstone stated generality in more limited terms: “ restraints introduced by the law should be equal to all.” Nor was selection of those entitled to equal protection ruled out, as the very exclusion of black slaves from the society attested. The Massachusetts Constitution of 1780 provided that Christians “demeaning themselves peaceably shall be equally under the protection of law”; and, like the Civil Rights Act of 1866, that Constitution confined protection to “the enjoyment of his life, liberty and property according to standing laws.” As slaves, blacks were chattels, nonpersons singled out for grossly discriminatory treatment and oppression at every step. It would be little exaggerated to say that they were all but unprotected. Declared free by the Thirteenth Amendment, they continued to be treated like slaves, so it was essential to insure that the laws which protected whites would also protect blacks from oppression. In the words of Senator James W. Nye of Nevada, the Negroes “have equal rights to protection—equalized protection under equalized laws.” This “equalized protection,” it can not be overemphasized, was limited to the rights enumerated in the Civil Rights Act of 1866, as will now appear.

What Was Equal Protection to Protect?

The Civil Rights Act, it will be recalled, secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the “ equal benefit of all laws for security of person and property. ” “Political rights” were excluded. In describing these aims the framers interchangeably referred to “equality,” “equality before the law,” and “equal protection” (but always in the circumscribed context of the rights enumerated in the Bill), so that it is reasonable to infer that the framers regarded these terms as synonymous. What is required, said Moulton of Illinois, is “that each State shall provide for equality before the law, equal protection to life, liberty, and property, equal right to sue and be sued.” A leading Radical, Samuel Shellabarger of Ohio, said, of the Civil Rights Bill, “whatever rights as to each of these enumerated civil (not political) matters the State may confer upon one race . . . shall be held by all races in equality . . . It secures . . . equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” So it was understood by Senator Hendricks, an Indiana Democrat: “To recognize the civil rights of the colored people as equal to the civil rights of the white people, I understand to be as far as Senators desire to go; in the language of the Senator from Massachusetts [Sumner] to place all men upon an equality before the law; and that is proposed in regard to their civil rights.” He objected that “in the State of Indiana we do not recognize the civil equality of the races.” When Andrew Johnson combed the Bill for objections and vetoed it, he noted that §1 “contains an enumeration of the rights to be enjoyed” and that “perfect equality” was sought with respect to “these enumerated rights.” Thomas T. Davis, a New York Republican, expressed a widely shared feeling in stating, Negroes “must be made equal before the law, and be permitted to enjoy life, liberty, and the pursuit of happiness [property],” but he was against “the establishment of perfect equality between the colored and the white race of the South.” While James W. Patterson of New Hampshire was “opposed to any law discriminating against [blacks] in the security and protection of life, liberty, person and property,” “beyond this,” he stated, “I am not prepared to go,” explicitly rejecting “political and social equality.” Windom declared that the Civil Rights Bill conferred an “equal right, nothing more . . . to make and enforce contracts,” and so on, but no “social privileges.” Thus, the concept of “equal protection” had its roots in the Civil Rights Bill and was conceived to be limited to the enumerated rights.

What reason is there to conclude that when the words “equal protection of the laws” were embodied in the Amendment they were freighted with a new cargo of meaning—unlimited equality across the board? The evidence points the other way. In an early version of the Amendment, provision was made for both “the same political rights and privileges and . . . equal protection in the enjoyment of life, liberty and property, an indication that “equal protection” did not include “political rights and privileges,” but was confined to “life, liberty, or property.” Bingham proposed a substitute, H.R. No. 63, that would empower Congress “to secure . . . all privileges and immunities . . . (Art. IV, Sec. 2); and . . . equal protection in the rights of life, liberty and property (5th Amendment).” “Political rights and privileges” had disappeared; in its place was “privileges and immunities.” Neither “privileges and immunities,” nor its antecedent, “civil rights,” had included “political privileges.” Bingham explained that his proposal was aimed at “confiscation statutes . . . statutes of unjust imprisonment” of the “rebel states,” the objects of the Civil Rights Bill. It would enable Congress to insure “that the protection given by the laws of the States shall be equal in respect to life, liberty and property to all persons.” Hale of New York asked him to point to the clause “which contains the doctrine he here announces.” Bingham replied, “The words ‘equal protection’ contain it, and nothing else.”

Among the statements indicating that §1 was considered to embody the objectives of the Civil Rights Act is that of Latham of West Virginia: “The ‘civil rights bill,’ which is now a law . . . covers exactly the same ground as this amendment.” Stevens explained that the Amendment

allows Congress to correct the unjust legislation of the States so far that the law which operates upon one shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way . . . Whatever law protects the white man shall afford equal protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present [Black] codes . . . I need not enumerate these partial and oppressive laws . . . Your civil rights bill secures the same thing.

As Bickel noted, the “evils to which the proposal was directed” hark “back to those which had been pointed to in support of the Civil Rights Bill.” In attributing to Stevens the view that the Amendment proposed “a congressional guarantee of equality with respect to all state legislation,” Alfred Kelly misconceived Stevens’ position. Very early in the session he had proposed that “ all national and State laws shall be equally applicable to every citizen . . . that is the one I love . . . But it would not be wise to entangle the present proposition with that one. The one might drag down the other.” And when Stevens summed up his views on the Amendment, he said he had hoped that the people “would have so remodeled all our institutions as to have freed them from every vestige of . . . inequality of rights . . . that no distinction would be tolerated . . . This bright dream has vanished . . . we shall be obliged to be content with patching up the worst portions of the ancient edifice.” Those patches went only to discriminatory punishments, deprivation of judicial redress and the like.

Senator Howard, a far less acute and careful lawyer than Stevens, delivered himself of a looser statement, but even he went on to qualify the general by his enumeration of particulars:

The last two clauses of the first section of the amendment disable a State from depriving . . . any person . . . of life, liberty or property without due process of law, or from denying to him equal protection of the laws. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of person to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights . . . with the same shield which it throws over the white man . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and different measure is to be meted out to the member of another caste.

By “fundamental rights” Howard was employing the familiar shorthand for the incidents of “life, liberty, or property,” repeatedly so identified during the course of the Civil Rights Bill. That by “all legislation” he did not really mean “all” is demonstrated by his statement that §1 “does not . . . give . . . the right of voting”; it is not, he said, “one of the privileges or immunities.” One who confessed that suffrage was not granted can hardly have held out in the same breath that “all class legislation” would now be banned, including some for which even greater distaste had been exhibited—desegregation, miscegenation. Reflecting earlier comments on the Civil Rights Bill, Howard stated in the same context that the Amendment “establishes equality before the law,” that it will prevent States from “trenching upon these rights and privileges,” and will give blacks the “same rights and the same protection before the law” as it gives whites. Patently both Stevens and Howard were addressing themselves to the oppressive discriminations perpetuated by the Black Codes.

Bingham himself contributed a telling bit of evidence against an interpretation of equal protection in unlimited terms. He it was who imported “equal protection” into the Amendment; speaking toward the close of the session in behalf of the admission of Tennessee despite its whites-only suffrage provision, he said: “One great issue has been finally . . . settled . . . [by the Amendment] the equality of all men before the law.” Manifestly an equality that excluded Negro suffrage was not unqualified as he recognized: “We are all for equal and exact justice . . . [but] justice for all is not to be secured in a day.” When Joseph H. Defrees of Indiana, like Stevens, said that §1 of the Amendment “places all persons on an equality . . . so far as equal protection of the laws is concerned,” he distinguished between full-scale equality and “equal protection of the laws.” That distinction was underlined by Samuel Shellabarger, who, speaking to the Civil Rights Bill, confined “equality of protection [to] the enumerated civil rights,” if conferred upon whites. Similar remarks were made by Wilson and Moulton. Limited equality was adopted because, as Senator Henderson of Missouri declared early in the session: “A bold declaration of man’s equality cannot be carried.” His prediction was fulfilled by repeated rejection of proposals to require “all laws” to operate “impartially and equally,” to abolish “any distinctions between citizens.”

But, it may be asked, does not the differentiation in §1 between “due process” protection of “life, liberty, and property” and “equal protection of the laws” indicate that “equal protection” was now divorced from the earlier limitation to “life, liberty, and property”? Nothing in the debates indicates such a purpose. “Equal protection of the laws” expressed the central object of the framers: to prevent statutory discrimination with respect to the rights enumerated in the Civil Rights Act. That purpose had been loosely expressed in Bingham’s earlier formulation: “equal protection in the rights of life, liberty, and property,” which he mistakenly identified with the “5th Amendment.” Possibly some more perceptive lawyer restored the words “life, liberty, and property” to their Fifth Amendment association with due process, thus insuring access to the courts. At the same time, the established association of due process with judicial procedure made it necessary to block what Stevens denominated “partial and oppressive laws,” a purpose succinctly expressed by “equal protection of the laws” to which reference had been made during the debate on the Civil Rights Bill.

Freedom From Discrimination vs. Absolute Rights

The framers sought only to secure to blacks the same specified rights as were enjoyed by whites; if whites did not have them there was no State duty to supply them to anyone, still less a congressional power to fill the gap. So much appears from Shellabarger’s explanation that the Civil Rights Bill secures “equality of protection in these enumerated civil rights which the States may deem proper to confer upon any race.” Before considering further evidence, let us examine tenBroek’s argument to the contrary. His was the most sustained effort to give “equal protection” an “absolute” as distinguished from a nondiscriminatory content. The heart of his argument is:

the basic notion of this phrase is protection; equality is the condition. The equal protection of the laws cannot be supplied unless the protection of the laws is supplied, and the protection of the laws, at least for men’s natural rights, being the sole purpose for which governments are instituted, must be supplied. The clause is thus understood to mean: “Every State shall supply to all persons . . . the protection of the laws and the protection shall be equal to all.”

Even on the level of verbal analysis the argument is vulnerable. A “condition” is a “restriction or qualification”; it was therefore not “protection unlimited” —the full protection of which laws are capable—that was mandated, but only that such laws as were enacted should be impartial. If the laws supplied no protection, to whites or blacks, there was nothing to which the “equal” condition could attach. To state in this context that “ ‘equal’ protection of the laws and the ‘full’ protection of the laws are virtually synonyms” departs from a decent respect for words—a half-glass given to all is “equal” though it is not “full.”

TenBroek’s argument is further flawed by the assumption that the “basic idea” of the equal protection clause is that “protection of the laws . . . must be supplied.” That may be well enough as a jural postulate, but emphatically it was not the premise of the framers. Translating a remark of Hale as “the citizens must rely upon the State for their protection,” Bingham said, “I admit that such is the rule as it now stands.” Later he explained that in his proposed amendment, “the care of the property, the liberty, and the life of the citizen . . . is in the States, and not in the Federal Government. I have sought to effect no change in that respect.” Because the rule was dear to the framers, Trumbull reassured the Senate that “if the State of Kentucky makes no discrimination in civil rights between its citizens, this bill has no operation whatever in the State of Kentucky.” Protection, if given, must be impartial, but the absence of all protection would afford no ground for federal intervention. It does not advance tenBroek’s argument that, in the remarks of the radical extremists Higby-Kelley-Woodbridge, “the qualifying word ‘equal’ was almost entirely forgotten and ‘protection’ treated as if it stood alone.” Against this unrepresentative fringe there is first the fact that a subcommittee of the Joint Committee had proposed that “Congress shall have power to make all laws . . . to secure all persons . . . full protection in the enjoyment of life, liberty and property.” Here was a proposal—there were others—that embodied precisely what tenBroek argues for, and its demise demonstrates that the framers had no stomach for “full” protection at the hands of Congress. Their objectives were narrower.

Again and again the framers stated that their purpose was to prevent one law for blacks, another for whites. It was a ban on such discrimination that was expressed in “equality before the law” and “equal protection” —not a mandate that the States must confer rights not theretofore enjoyed by any citizen. In the beginning the Civil Rights Bill had provided:

There shall be no discrimination in civil rights or immunities . . . but the inhabitants shall have the same right . . . [ “as is enjoyed by white citizens” ] . . . to full and equal benefit of all laws for the security of person and property, and shall be subject to like punishment . . . and none other.

The word “immunities” carried over into the Amendment, hence Wilson’s explanation is germane: “It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . One race shall not be favored in this respect more than another . . . This is the spirit and scope of the bill, and it does not go one step beyond.” Although the “no discrimination” clause had been deleted at Bingham’s insistence that the words “civil rights” were too broad and “oppressive,” the provisions for the “same” rights and immunities remained untouched. It was understood by the framers that discrimination remained the target as Shellabarger illustrates; the Bill would require that whatever of these “enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinction based upon race”; such rights “shall be held by all races in equality.”

That persisted as the ground bass of the Amendment; Stevens explained that it required that a State law “shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree.” “Equal protection,” said Senator Howard, “does away with the injustice of subjecting one caste of persons to a code not applicable to another”; the Amendment “establishes equality before the law.” In short, the framers struck at discrimination against the blacks with respect to enumerated privileges and immunities that were accorded to whites; and they chose a word perfectly suited to the purpose. Among the definitions of “equal” are “uniform in effect or operation; neither less nor greater; having the same rights or privileges; impartial.” A State provision may be substandard when measured by more enlightened federal or State criteria; but if it is impartial, uniformly applied to all within the State, it satisfies the meaning of “equal.”

True it is that Bingham and Lawrence of Ohio maintained that the “fundamental,” “natural” rights were “absolute,” and could not be withheld. But the Republican majority was content to correct discriminations with respect to those rights. Bingham, on whom tenBroek so often relies, is, we have seen, a confused, imprecise, and vacillating witness. Even so, when pressed by Hale whether his proposal “confers upon Congress a general power of legislation” in regard to “protection of life, liberty and property,” he replied that it was designed “to see to it that the protection given by the laws of the State shall be equal in respect to life, liberty and property to all persons.” Faced with opposition, Bingham once more retreated—Congress was only to correct discrimination. Nevertheless, tenBroek adopts Bingham’s teetering statement that the States were under an absolute duty to protect those privileges. After remarking on Bingham’s “immortal Bill of Rights,” he loftily dismisses Barron v. Baltimore, wherein Chief Justice Marshall held that the Bill of Rights had no application to the States:

The “immortal Bill of Rights” not binding on the States! How can one refute an axiom? . . . Chief Justices . . . cannot successfully refute an axiom more than any other mortals . . . [Marshall] could not by any pronouncement of his diminish the obligation of the states to protect men in their natural rights of life, liberty, and property.

What tenBroek regards as axiomatic runs counter to statements in the First Congress that the Bill of Rights was to have no application to the States, and in spite of Madison’s urging that freedom of speech and press stood in greater need of protection against the States than against the federal government, to the rejection of his proposal that they be made applicable to the States. In 1789 men were more devoted to their States than to the nascent federal government; they feared the centralized, remote power of the newcomer, hence the limitations imposed on the federal government by the Bill of Rights. There is no inkling that in the intervening 75 years the North had become dissatisfied with the protection they were given by the States. On the contrary, they reaffirmed their attachment to State sovereignty in the 39th Congress. They believed that State governments would be more responsive to their needs, more controllable than the federal regime; and they sought to limit federal intrusions to the minimum necessary to protect the personal security of the blacks.

The present generation would read back into the Amendment views that the framers clearly perceived the North would not accept. Much closer to the intention of the framers, the Supreme Court said in 1875, with respect to the First Amendment protection of the right to assemble against “encroachment by Congress”: “For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.”

Congressional Power: Corrective or General

Does the §1 provision “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws” empower Congress to enact laws for direct enforcement thereof? Justice Bradley answered, “How can a prohibition, in the nature of things, be enforced until it is violated?” To convert “No State shall deny” into “Congress shall make” does violence to the text. The distinction between a prohibition of action and a grant of power was well understood by the 39th Congress. Even with respect to the prohibitions directed to Congress by the Bill of Rights, Hale said that the several amendments “do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power.” In addition, there is the fact that “the equality ordained” is, as Dean Phil Neal put it, “a Statewide equality, encompassing the persons ‘within its jurisdiction’ and not a nationwide or external equality.” For it is the “laws” of the State, not of the nation, that are required to afford “equal protection.”

Textual analysis is richly confirmed by the legislative history. Shellabarger, an Ohio Radical, argued on behalf of the Civil Rights Bill that “if this section did in fact assume to confer or define or regulate these civil rights which are named . . . then it would . . . be an assumption of the reserved rights of the States . . . 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 without distinction based on race.” Shellabarger’s assurance to fellow Republicans that State sovereignty was displaced only insofar as corrective measures would require was echoed by his colleagues. Speaking to the final form of the Amendment, Bingham stated: “That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this Amendment. That is the extent it hath; no more.” Stevens said of the same draft that the Amendment “allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” In the Senate, Howard said that “section one is a restriction upon the States, and does not, of itself, confer any power upon Congress”; and that §5 “enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional amendment.”

Powerful confirmation of such expressions is furnished by the jettisoning of the Bingham amendment (H.R. No. 63), cast in terms of a grant to Congress:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities . . . and to all persons . . . equal protection in the rights of life, liberty, and property.

Judge Hale justifiably protested that this “is not a mere provision that when the States undertake to give protection which is unequal Congress may equalize it; it is a grant of power in general terms—a grant of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.” Hale’s Republican colleague from New York, Giles W. Hotchkiss, added:

I desire to secure every privilege and every right to every citizen in the United States that . . . [Bingham] desires to secure. As I understand it, his object . . . is to provide that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another. If this amendment secured that, I should vote for it very cheerfully today . . . I understand the amendment . . . to authorize Congress to establish uniform laws throughout the United States upon the subject named, the protection of life, liberty, and property. I am unwilling that Congress shall have any such power.

Stevens staged a rescue attempt in the form of a rhetorical question addressed to Hale: “is it not simply to provide that where any State makes a distinction in the same law between different classes of individuals, Congress shall have power to correct such discrimination and inequality?” But this put too great a strain on the broader Bingham phraseology, and his approach was abandoned.

That Hale and Hotchkiss voiced the pervasive distrust of a general grant of power to Congress to legislate in the premises may also be gathered from the statement by James F. Wilson of Iowa, chairman of the House Judiciary Committee, that the Bingham proposal was “the embodiment of our greatest danger.” Let Henry J. Raymond, an influential New York Republican who voted for the Fourteenth Amendment, sum up: the Bingham amendment “giving to Congress power to secure an absolute equality of civil rights in every State of the Union . . . encountering considerable opposition . . . it was finally postponed” —and never resuscitated. Bingham himself joined ranks when he urged the people, in support of the final draft, to protect “the privileges and immunities of all the citizens of the Republic . . . whenever the same shall be abridged or denied by the unconstitutional acts of any State.”

Flack comments on this shift from “Congress shall have power” to “no State shall make” that, though the former “was not incorporated into the fundamental law . . . it may properly be asked whether it really did not become a part of it with a mere change in dress but not in meaning.” Such flabby analysis that can translate “no” as “yes” has clogged understanding of the Fourteenth Amendment. TenBroek likewise transforms “no State shall make” into the “obligation of the states to ‘make or enforce laws’ protecting” men in their “natural rights.” There “never would have been any historical question about the revolution in federalism worked or confirmed by the Fourteenth Amendment,” he maintained, “were it not for the shift from the positive to what at first glance appears to be a negative form of the amendment.” That “first glance,” as we have seen, is buttressed by the plainly expressed intention of the framers.

TenBroek attempts to torpedo what he considers the three “mainstays” of the “narrow” construction based on a changeover from grant to prohibition, and begins with Stevens’ explanation of the final draft, in which he said that it “fell far short of [his] wishes.” This, tenBroek argues, referred solely to Negro suffrage, which was not treated in §1 but only in §2 and §3. The argument grasps at straws. Suffrage was a central concern; it had unmistakably been excluded from the Civil Rights Act, the antecedent of §1, so if Stevens was troubled by the failure to provide for suffrage in §2 inferably he considered it also was unprovided for in §1, thus undermining tenBroek’s inference that §1 could “hardly [have been] a source of dissatisfaction to him.” Such speculation is beside the point. Stevens had disclaimed a grant of original power to Congress, first, by seeking to save the Bingham amendment by reading it merely to confer “power to correct such discrimination,” and later by stating that the final draft “allows Congress to correct the unjust legislation of the States.”

The second “mainstay” is that after the shift to the prohibition on States, Andrew J. Rogers, a Democrat and bitter opponent of the several Reconstruction measures, charged that §1 “consolidates everything into one imperial despotism” and “annihilates” States’ Rights. TenBroek reinforces this by the testimony of two other Democrats, Aaron Harding and George S. Shanklin of Kentucky, and asks, “Since the amendment was adopted in the teeth of this criticism, might not we as reasonably conclude . . . that the amendment was intended to do the very thing objected to.” There is no need to recapitulate the weakness of reliance on opposition obstructiveness designed to inflame the electorate. It is a singular approach to legislative history, shared by other proponents of the tenBroek view, to exalt the opposition and all but ignore the statement of objectives by the Republican leadership who carried the day.

Comes now the third “mainstay”:

“No State shall . . .” at first looks like a negative on state action; and section 5, granting enforcement power would accordingly authorize Congress to impose only such restraints as would prevent States from taking the forbidden action. Section 5 would thus authorize nothing more than a corrective removal of prohibited state acts . . . Does not this interpretation render section 5 altogether nugatory? . . . [S]ince the judges would in any event strike down acts transcending the prohibitions of the amendment, a law by Congress would serve no purpose.

TenBroek proves too much; on his reasoning a court equally could proceed without waiting for a general (as distinguished from a corrective) congressional law. The “nugatory” test, therefore, does not clarify whether the congressional power is “corrective” or “general.”

James A. Garfield’s statement in the 1871 debates, made by a framer in the 39th Congress and faithful to the historical record, is entitled to greater respect than present-day speculation: “soon after the ratification of the Amendment,” tenBroek states, Garfield explained that Congress had rejected “a clear grant of power to Congress to legislate directly for the protection of life, liberty, and property within the States” in favor of the present form that “limited but did not oust the jurisdiction of the state over the subjects.” Justice Bradley’s opinion in the Civil Rights Cases, therefore, does not betray, but rather responds to, the intention of the framers. The Amendment, he declared,

does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against operation of state laws . . . such [congressional] legislation must, necessarily be predicated upon such state laws or state proceedings, and be directed to the correction of their operation and effect . . . [U]ntil some state law has been passed . . . no [federal] legislation . . . can be called into activity.

In sum, the words “equal protection of the laws” were meant to obviate discrimination by laws—that is, statutes—so that with respect to a limited group of privileges the laws would treat a black no differently than a white. If no privilege was accorded to a white, a State was not required to furnish it to anyone. Hence Justice Douglas, in invalidating a State poll tax, was wide of the mark when he based his conclusion, “not on what we think governmental policy should be, but on what the Equal Protection Clause requires.” The truth is, as he stated in a preceding sentence, “we have never been confined to historic notions of equality . . . Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” In plain words, Douglas laid claim to power to revise the historic meaning in accord with his own preferences. For Chief Justice Marshall, on the other hand, the words of the Constitution were not to be “extended to objects not . . . contemplated by the framers” —let alone unmistakably excluded. As Herbert Packer points out, “the new ‘substantive equal protection’ has under a different label permitted today’s justices to impose their prejudices in much the same manner as the Four Horsemen [of the pre-1937 Court] once did.”

11

“Due Process of Law”

nor shall any State deprive any person of life, liberty, or property, without due process of law

To this day,” Arthur Sutherland wrote in 1965, “no one knows precisely what the words ‘due process of law’ meant to the draftsmen of the fifth amendment, and no one knows what these words meant to the draftsmen of the fourteenth amendment.” True it is that after the 1880s the phrase was transformed by the Court into one of “convenient vagueness”; and such “vagueness” has become the reigning orthodoxy. Whether one can determine “precisely” what due process meant, however, is not nearly so important as the fact that one thing quite plainly it did not mean, in either 1789 or 1866; it did not comprehend judicial power to override legislation on substantive or policy grounds. There is first the unmistakable testimony of Alexander Hamilton. Speaking in the New York Assembly in 1787, almost on the eve of the Convention, he stated:

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 the legislature.

No statement to the contrary will be found in any of the constitutional conventions, in the First Congress, nor in the 1866 debates.

Hamilton summed up the English and colonial usage, and it is that usage that defines the content of the words “due process of law.” It has long been a canon of construction that when the draftsmen employed common law terms, the common law “definitions,” as Justice Story stated, “are necessarily included as much as if they stood in the text” of the Constitution. But when so great a master as Judge Learned Hand concludes that the prohibitions of the Fifth and Fourteenth Amendments are cast “in such sweeping terms that history does not elucidate their contents,” I may be indulged for piling proof on proof to the contrary.

Our conceptions of due process are traceable to the twenty-ninth chapter of Magna Charta, which, roughly speaking, provided that no man should be deprived of his life, liberty, or property, except by the judgment of his peers or the law of the land. Coke stated that “by the law of the land” was meant “by the due course and process of law.” Whether due process and “law of the land” were identical in English law need not detain us; for present purposes it may suffice that both related to judicial procedures preliminary to the described forfeitures. Prior to 1789 the several State constitutions employed the “law of the land” terminology, usually in the context of other safeguards for those charged with crimes, suggesting that it was viewed in terms of judicial procedure. That the “law of the land” was understood in Coke’s sense is illustrated by Hamilton’s 1787 statement. The members of the First Congress, who employed the words “due process” in the Fifth Amendment instead of the “law of the land” contained in the extant State constitutions, presumably intended no departure from prevalent State usage. Given the great respect Coke enjoyed in the colonies, it is reasonable to infer that, like Hamilton, they accepted Coke’s identification of the two phrases.

It has been convincingly shown that due process was conceived in utterly procedural terms, specifically, that a defendant must be afforded an opportunity to answer by service of process in proper form, that is, in due course. Starting with an early statute, 28 Edw. III, ch. 3 (1354), which provided that “no man . . . shall be put out of land or Tenement . . . nor put to death, without being brought in to answer by due process of law,” Keith Jurow concluded from a comparison with chapter 10 of the same statute that the due process provision “seems merely to require that the appropriate writ be used to summon the accused before the court to answer the complaint against him.” An earlier statute, 25 Edw. III (1352), had provided that because the “law of the land” required that “none shall be imprisoned, nor put out of his freehold” and so on, henceforth “none shall be taken . . . unless it be by indictment or presentment . . . or by process made by writ original at the common law [and] unless he be duly brought to answer.” Jurow concludes that “the word ‘process’ itself meant writs . . . those writs which summoned parties to appear in court.” His reading harmonizes with that of Coke, who, referring to a later statute, 37 Edw. III, ch. 3 cap. 8, explains “without due process of the law” thus: “that is by indictment . . . or by writ originall of the common law. Without being brought in to answer but by due process of the common law. No man may be put to answer without presentment . . . or by writ originall, according to the old law of the land.” A Massachusetts measure of 1692, duplicated in the colonies of Connecticut and New York, “ordained . . . no person should suffer . . . without being brought to answer by due course and process of law.” Blackstone later recurred to 28 Edw. III for the proposition that “no man shall be put to death without being brought to answer by due process of law.” Finally, among the Declarations and Resolves of the First Continental Congress, October 14, 1774, was “the respective colonies are entitled to the common law . . . and . . . to the . . . privilege of being tried by their peers . . . according to the due course of that law.” “Process,” accordingly, was by indictment or writ; it was in “due course,” that is, in regular course, if the “appropriate” writ was employed. “ Due process ” should therefore be regarded as shorthand for Coke’s “by the due course and process of law” in judicial proceedings. These materials demonstrate, parenthetically, that due process was not a catchall for all the other safeguards the Bill of Rights provided to a defendant; it had a special and limited function: to insure through service of proper, that is, “due,” process that a defendant would be given a chance to answer.

In the interval between 1789 and 1866, the procedural nature of due process received the imprimatur of Kent and Story, who relied on Coke. Because lawyers habitually look to judicial decisions for “constitutional law” they have largely overlooked that in virtually all of the State constitutions extant in 1866 the words “due process of law” and “law of the land” were, as Charles E. Shattuck pointed out more than 85 years ago, almost always found “in a section of the Constitution dealing exclusively with the conduct of criminal trials, with the privileges of the accused, with a process in which the whole question is whether the person concerned shall be deprived of one or another of certain rights; that is of life, or personal liberty, or property as a penalty for a crime; and it is declared that he shall not without due process of law.” The lawyers who framed the Fourteenth Amendment undoubtedly were familiar with this association of due process with judicial procedure, and a departure from this all but universal connotation must be based on more than bare conjecture; the rule is that it must be proved. What Charles P. Curtis, an ardent proponent of judicial “adaptation” of the Constitution, said of the Fifth Amendment could even more truly be said of the Fourteenth. When the framers put due process “into the Fifth Amendment, its meaning was as fixed and definite as the common law could make a phrase. It had been chiseled into the law so incisively that any lawyer, and a few others, could read and understand. It meant a procedural process, which could be easily ascertained from almost any law book.”

The 39th Congress

In light of the prominence to which the due process clause has been elevated by the Supreme Court, it is surprising how scanty were the allusions to the clause in the debates of the 39th Congress. It was altogether unmentioned in the Civil Rights Bill; instead the Bill spelled out the concrete rights “to sue, be parties and give evidence”; and it inclusively provided for the “equal benefit of all laws and proceedings for the security of person and property.” But the debates show plainly enough that by “proceedings” the framers intended to supply judicial protection to Negroes. Senator Daniel Clark of New Hampshire had stated that the Negro “was denied access to the courts, because he had no rights which a white man was bound to respect; he was not permitted to testify because he might tell of the enormities practiced upon him.” Samuel McKee of Kentucky asked, “Where is your court of justice in any Southern State where the black man can secure protection?” Senator Henry S. Lane of Indiana stated, “we legislate upon this subject now . . . simply because we fear . . . that the emancipated slaves would not have their rights in the courts of the slave States.”

Although due process found no mention in the text of the Bill, its proponents made quite clear that they considered it to be associated with judicial proceedings. John M. Broomall of Pennsylvania explained that blacks were “denied process of law to enforce the right and to avenge the wrong,” that is, “denied remedy in the courts.” The intention to supply a judicial “remedy” by means of “due process” was more sharply articulated by Chairman Wilson: “the citizen . . . is entitled to a remedy . . . The citizen is entitled to the right of life, liberty and property. Now if a State intervenes, and deprives him without due process of law of those rights [which had been enumerated in the Bill] . . . can we not provide a remedy?” Here is the traditional protection afforded by “due process” against the deprivation of life, liberty or property which was later to be expressed in the due process clause of §1. There is no evidence whatsoever that the §1 resort to the due process clause signaled a shift from this intention to furnish a judicial remedy. Evidence to the contrary is furnished by Senator Cowan. Speaking to the Amendment, he said he was opposed to “punishment of any kind upon any body unless by a fair trial where the party himself is summoned and heard in due course of law,” the basic conception of due process of law.

The due process clause made its appearance belatedly, almost in a fortuitous manner, deriving from the framers’ absorption with equality before the law. At the opening of the session Bingham proposed to “secure to all persons . . . equal protection in the rights [of] life, liberty, and property.” Later he explained that the Fifth Amendment contained the very words “equal protection in the rights of life, liberty, and property.” “Apparently,” Joseph B. James comments, “the words ‘due process’ did not strike him as outstandingly significant” —and, it may be added, they played no great role in the thinking of his contemporaries. Possibly some more acute lawyer in the Joint Committee, perceiving Bingham’s mistaken joinder of “life, liberty, or property” in the Fifth Amendment with “equal protection,” restored the original conjunction of “due process” with “life, liberty, or property,” thus assuring nondiscriminatory protection by the courts, one of the Civil Rights Act’s objectives, and went on to articulate the primary objective of the framers—to prevent discriminatory laws, that is, statutes—by the words “equal protection of the laws.” Thus were fashioned the complementary “equal protection” and “due process” clauses, which, as we have seen, were foreshadowed by Blackstone if not by Coke.

Bingham left no room for speculation as to what he meant by “due process.” When asked by Rogers, “what do you mean by ‘due process of law,’ ” he curtly replied, “the courts have settled that long ago, and the gentleman can go and read their decisions” —a reply that showed he deemed the question frivolous. As James states, Bingham gave due process the “customary meaning recognized by the courts,” and that meaning was all but universally procedural. Because Bingham “appears to have associated ‘equal protection’ with ‘due process of law,’ ” Graham concludes that he “probably had a substantive conception of due process.” That is like arguing that because “equal protection” outlawed discriminatory statutes, “due process” designed for judicial procedure likewise applied to regulatory statutes. If Bingham entertained that conception, he never expressed it in the debates. According to Graham, “no other member of Congress appears to have used the clause as Bingham [allegedly] did”; and “no other member of the Joint Committee or of Congress . . . manifested his partiality for the due process clause” —a strange inference from his confusion of “equal protection” with the Fifth Amendment! When Stevens explained the Amendment to the House, he made no mention of the clause, but said that the Amendment “allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one shall operate equally upon all,” thus exemplifying that freedom from discriminatory laws remained the overriding concern to the end. One of the very few remarks directed to the due process clause, that of Jehu Baker of Illinois, confirms that it was viewed in existing procedural terms: “The Constitution already declares generally that no person shall ‘be deprived of life, liberty, or property without due process of law.’ This declares particularly that no State shall do it.”

Before his conversion, Graham noted that at this time due process was “merely a limitation upon procedure” and stated that the substantive theory “presupposes what was really an extraordinary viewpoint.” He himself wrote, “so long as these were the prevailing usages down to 1866 one is hardly warranted in attributing a more subtle or comprehensive purpose without definite, positive evidence.” Graham’s discovery of abolitionist ideology led him to mute these views but, as we shall see, he failed to offer “definite, positive evidence” that that ideology was adopted by the framers. The truth is that it was anathema to the centrist-conservative coalition which was in control.

Bingham himself adhered to a procedural view of due process; in mid-August 1866, just two months after passage of the Amendment, he stated in Ohio that §1 “gave ‘any citizen’ the power to correct wrong by judicial process,” thus identifying it with due process. Telling confirmation that “due process” was not conceived in substantive terms is furnished by the fact that Senator Reverdy Johnson, probably the foremost lawyer in the 39th Congress and a member of the Joint Committee, “had not used due process, neither Fifth Amendment due process in Veazie v. Fenno nor (apparently) Fourteenth Amendment due process after 1868.” “ [I]s it conceivable,” Graham asked, “that if Reverdy Johnson, for example, had clearly understood and intended in 1866 that an added due process limitation against the states would constitute a valuable judicial safeguard for business fighting state regulation, that he himself would fail, as he did in 1869 when arguing the hard-fought case of Veazie v. Fenno, to employ the due process clause of the fifth amendment in behalf of a corporate client fighting against a drastic federal law?” Since the due process of the Fifth and Fourteenth Amendments were regarded as identical, Graham’s rhetorical question suggests that no intimation of substantive content had been voiced in the Joint Committee. And after his review of the railroad battles of the mid-sixties, directed by Reverdy Johnson, which moved from the courts to the Pennsylvania legislature and the halls of Congress, Graham observes: “we find no explicit references in the legislative and congressional debates on the repealers [by the legislature] to violation of due process as such . . . [T]hese repealers were regarded only as impairing obligations of contracts, and as having been ‘passed without any hearing or judicial determination of the fact of misuse or abuse’ . . . What we have to remember is that in 1866 the due process tradition was still on the make.”

What is the impact of neoabolitionist theorizing on the foregoing facts? The abolitionist theory of racialized substantive due process, Graham tells us, “had gained its original impetus . . . extra-judicially, and almost wholly ante-judicially . . . Extra-judicial due process and antebellum equal protection were rankly, frankly heretical.” One who maintains that heresy supplanted orthodoxy, and this through the medium of congenitally conservative lawyers in Congress, carries a heavy burden of proof, not at all met by neoabolitionist reliance on Bingham as the instrument of change. The abolitionists themselves by no means saw eye to eye on the subject. Two of their renowned theorists, Lysander Spooner and Joel Tiffany, “refused to rely upon due process” or “thought of it almost entirely as a formal requirement.” In Massachusetts, Graham writes, “even abolitionists remained comparatively earthbound . . . Charles Sumner . . . the outstanding black-letter scholar of the movement . . . relied rather on the Republican form of government clause and Equality Before the Law.” Such divisions indicate that substantive due process was not an idea whose time had come.

Although Graham perceived that evidence of “substantive” intent is lacking when due process is viewed in the frame of corporate protection, he failed to apply the lesson to employment of due process for libertarian purposes. To be sure, the Supreme Court has now dichotomized due process; in the economic sphere the words have become a “dirty phrase,” whereas certain libertarian claims have been given a “preferred position.” But support for that distinction will not be found in the history of the Fourteenth Amendment. Rather there was an unmistakable rejection of that most crucial of libertarian rights—the right to vote—and with it the right to attend unsegregated schools.

The extraordinary transformation of due process by the Court has turned the Fourteenth Amendment topsy-turvy. The original design was to make the “privileges or immunities” clause the pivotal provision in order to shield the “fundamental rights” enumerated in the Civil Rights Act from the Black Codes. Intertwined with that enumeration was repeated emphasis on the enjoyment of the “same rights,” and “equal benefit of all laws and proceedings for the security of person and property.” Trumbull stated, for example, that the Civil Rights Bill “contains but one single principle . . . to establish equality in the civil rights of citizens,” among them access to the courts. Throughout the “basic idea,” as tenBroek stresses, was that of “equal protection.” Farnsworth stated that the Amendment “might as well in my opinion read, ‘No State shall deny to any person within its jurisdiction the equal protection of the laws’ ”; the rest he regarded as “surplusage.”

For the framers the three clauses of the Amendment were a trinity, three facets of one and the same purpose. This clearly appears from President Johnson’s statement, which accompanied his veto of the Civil Rights Act, that he would cooperate “to protect [1] the civil rights of the freedmen [2] by judicial process [3] under equal and impartial laws.” Those objectives were acceptable to him. In lawyers’ parlance, the privileges or immunities clause conferred substantive rights which were to be secured through the medium of two adjective rights: the equal protection clause outlawed statutory, the due process clause judicial, discrimination with respect to those substantive rights. This adjective duality had been expressed in a Massachusetts measure of 1692 ordaining that “no person should suffer [1] without express law . . . [2] nor without being brought to answer by due course and process of law,” a measure duplicated in the colonies of Connecticut and New York. And it found expression in the Fourteenth Amendment, as may be gathered from Senator Howard’s explanation that “without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government.” Senator Clark made the point more clearly: “You admit that the courts should be open to the black man, and that he should have the protection of the laws as fully as the white man.” TenBroek remarks that Bingham “accepted the [abolitionist] amalgamation of natural rights, due process and equal protection.” “A common theme of the discussion of the amendment’s supporters,” Harris comments, “was the mutual interdependence of the privileges and immunities, due process, and equal protection clauses.” And in answer to the question “equal protection of what?” he replies: “when the three clauses are read together as they ought to be, it is equal protection by equal laws pertaining to the rights of life, liberty and property, and the privileges and immunities of citizenship. Or, as expressed by Justice Washington, those rights which are in their nature fundamental.” But, like tenBroek, Harris does not come to grips with the limited meaning that “natural,” “fundamental” rights, that “life, liberty, or property,” had for the framers. Trumbull drew that limited meaning from Justice Washington in drafting the Civil Rights Bill, and it was then embodied in the “privileges or immunities” clause. It is striking evidence of the centrality of the privileges or immunities clause for its contemporaries that hard upon the adoption of the Amendment, in the Slaughter-House Cases, equal protection and due process, in the words of Justice Miller, had “not been much pressed,” but that the case was almost entirely pitched on the privileges or immunities clause. For it was that clause that contains the substantive rights the Amendment was designed to protect.

As in the case of the “equal protection” clause, the framers were content to bar discrimination, to assure blacks that they would have judicial protection on the same State terms as whites, no more, no less. It should be apparent from the foregoing that the due process clause was not meant to create a new, federal criterion of justice. Like State laws at which “equal protection” was aimed, State justice had to be nondiscriminatory. It was “equal justice to all men and equal protection under the shield of law” of which Howard spoke. “ [E]quality in the protection of these fundamental rights . . . was the common refrain throughout,” as is exemplified by Stevens’ “Whatever means of redress is afforded to one shall be afforded to all,” by Howard’s “equal justice to all,” and by Trumbull’s assurance that the Civil Rights Bill “will have no operation in any State where the laws are equal, where all persons have the same civil rights.” Just as the framers disclaimed an intention to displace nondiscriminatory State laws by a general federal code and were content to “correct” discriminatory State laws, so their parallel aim was to secure impartial access to State judicial proceedings, not to write a judicial code for the nation. All this was summed up by Justice Matthews in Hurtado v. California: the due process clause of the 14th Amendment “refers to that law of the land in each State . . . ‘Each State prescribes its own mode of judicial proceeding.’ ”

Even less were the framers minded in requiring nondiscriminatory laws and equal judicial process to create a fresh congeries of rights that ranged beyond those enumerated. Having in mind that the Amendment was designed to constitutionalize the Civil Rights Act, it is clear that the “equal protection” and “due process” clauses were merely a compressed version of the original design. All three clauses, tenBroek states, “refer to the protection or abridgment of natural rights,” rights that had been so carefully spelled out in the Civil Rights Act. There is evidence that these clauses simply echoed the Blackstonian formula that the “fundamental rights” could be diminished only by “due course of law” or by the “laws of the land,” by which was meant general laws that would apply to all alike. Wilson had quoted Blackstone’s pairing of “due process of law” and by the “laws of the land” in commenting on the Civil Rights Bill, exhibiting awareness that Blackstone regarded them as the sole means of curtailing the specified rights. He emphasized that the Bill “does not go one step beyond” protection from discrimination with respect to designated “immunities,” that “it is not the object of this bill to establish new rights,” but to declare “the equality of all citizens in the enjoyment of civil rights and immunities.” For the protection of those enumerated rights, “fundamental rights,” the framers fashioned impartial access to judicial process and nondiscriminatory legislation. They did not seek to supplant State proceedings and lawmaking, but only to insure, in the words of the Judiciary Committee’s interpolation, that an oppressed race should have the “equal benefit of all laws for security of person and property” “ as is enjoyed by white citizens.” This was the purpose constitutionalized by the Fourteenth Amendment.

It is therefore contrary to historical fact to say, as did Justice Black, that “in view of its historical setting and the wrongs which called it into being, the due process provision of the Fourteenth Amendment—just as that in the Fifth . . . was intended to guarantee procedural standards adequate and appropriate, then and thereafter.” And it testifies to the potency of unremitting reiteration that even so perspicacious a judge as Justice Harlan could state that “The Due Process Clause of the Fourteenth Amendment requires that those [State] procedures be fundamentally fair in all respects.” That is a judicial construct pure and simple; no such mandate can be drawn from the history of the Amendment.

It has been my purpose in this and the preceding chapter to show that the terms “equal protection of the laws” and “due process of law” grew out of the framers’ intention to supply, with respect to a selected group of privileges, protection against discrimination either by legislation or by a bar to judicial succor, that these adjective conceptions were intertwined throughout with the framers’ solicitude to guarantee those selected substantive rights. Even if I have failed in that purpose, Robert H. Bork’s conclusion seems to me controlling:

The words are general but surely that would not permit us to escape the framers’ intent if it were clear. If the legislative history revealed a consensus about segregation in schools and all the other relations in life, I do not see how the Court could escape the choices revealed and substitute its own, even though the words are general and conditions have changed. It is the fact that history does not reveal detailed choices concerning such matters that permits, indeed requires, resort to other modes of interpretation.

The Court, in short, was not empowered to substitute its policy choices for those of the framers.

Person or Citizen

Few, if any, historical reconstructions can tidily accommodate all the unruly facts. The triune analysis does not fit neatly with the fact that the privileges or immunities clause refers exclusively to “citizens,” whereas the equal protection and due process clauses refer to “persons.” “In constitutionally defining who is a citizen of the United States,” Justice Rehnquist stated, “Congress obviously thought it was doing something, and something important . . . The language of that Amendment carefully distinguishes between ‘persons’ who, whether by birth or naturalization, had achieved a certain status, and ‘persons’ in general.” That distinction, I suggest, was not carefully considered, and it raises a number of perplexing problems. Were the rights of “persons” intended to be broader than those of “citizens”? If so, the unremitting labor to make citizens of blacks was superfluous, especially since suffrage was denied them; for they could have enjoyed as “persons” rights withheld from them as “citizens.” Or were “persons,” like “citizens,” only to receive protection for the “fundamental rights” expressed in the due process words “life, liberty, or property,” words Bingham originally had coupled with equal protection. This too would render the privileges or immunities clause supererogatory save as an additional cue to the nature of what was sought to be protected. Nor is it reasonable to conclude that the framers were more solicitous for “persons” than for “citizens.” To the contrary, they were almost constantly preoccupied with the plight of the former slaves, who were made citizens for their better protection. All in all, it will not do to read the rights of “persons” more broadly than those that were conferred on “citizens.”

Little notice has been taken of the relation in this context between “citizens” and “persons,” and it may be useful to pull the historical threads together. So far as regards the Civil Rights Bill it is plain, as Wilson stated, that “the entire structure of this bill rests on the discrimination relative to civil rights and immunities . . . on account of race.” Originally §1 of the Bill had banned discrimination “in civil rights and immunities among the inhabitants of any State . . . on account of race”; §2 penalized any person who “subjected any inhabitant . . . to the deprivation of any right secured or protected by this act.” At the instruction of the Judiciary Committee, Chairman Wilson offered an amendment to §1: “to strike out the words ‘but the inhabitants’ and insert in lieu the words ‘and such citizens,’ ” so that it would read “no discrimination in civil rights or immunities among the citizens of the United States.” He explained that it was “intended to confine the operation of this bill to citizens of the United States, instead of extending it to the inhabitants of the several States, as there seems to be some doubt concerning the power of Congress to extend this protection to such inhabitants as are not citizens.” Presumably the doubt was engendered by the fact that the Thirteenth Amendment, the chief reliance for the constitutionality of the Bill, was restricted to enslaved blacks; but the original “discrimination . . . on account of race” adequately responded to that restriction. Later Bingham, apprised by Wilson that the surviving word “inhabitant” in §2 was “in mistake for ‘citizen,’ ” expostulated against the “terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates.” That, he said, “is forbidden by the Constitution,” citing the association in the Fifth Amendment of “No person” with “life, liberty, and property” and asserting that “this bill . . . departs from that great law. The alien is not a citizen. You propose to enact this law, you say, in the interests of the freedmen. But do you propose to allow these discriminations to be made . . . against the alien and stranger?” Although the word “inhabitants” was not replaced by “citizens” in §2, Wilson continued to refer to the Bill in terms of “citizens,” and objected to a proposal to “declare all persons, negroes included, citizens.” His understanding that the Bill pertained to “citizens” was shared by William Lawrence and Samuel Shellabarger.

When we turn to the Amendment we find that Bingham pretty consistently sought protection for “persons.” In contrast to Stevens, who at the very outset had introduced an amendment requiring all laws to be equally applicable to “citizens,” Bingham had proposed to “secure to all persons . . . equal protection in their rights of life, liberty, and property”; and this, alongside of a privileges and immunities clause, was later embodied in his prototype amendment. But when challenged, Bingham hedged. Robert S. Hale said, “It is claimed that this constitutional amendment is aimed simply and purely toward the protection of ‘American citizens of African descent’ . . . I understand that to be the whole intended practical effect of the amendment.” Bingham replied, “It is due to the committee that I should say that it is proposed as well to protect the thousands . . . of loyal white citizens . . . whose property . . . has been wrested from them.” He recurred, however, to a broader statement: “all persons, whether citizens or strangers . . . shall have equal protection . . . in the rights of life, liberty, and property.” Were the word “citizens” used, he stated, “aliens” who were protected by existing constitutional guarantees to “persons” would be excluded. On the other hand, his fellow Republicans—Hiram Price, Thomas T. Davis, Frederick E. Woodbridge, and Giles W. Hotchkiss—before and after he spoke, understood his amendment to apply to discrimination between “citizens.”

Bingham also described the final version of the Amendment in terms of the “privileges and immunities of all the citizens . . . and the inborn rights of every person.” But once again his view apparently did not filter into the minds of his colleagues. The Amendment, as we have seen, was understood to constitutionalize the Civil Rights Bill, which, in the words of M. Russell Thayer, incorporated the Bill’s protection of the “fundamental rights of citizenship.” Ephraim R. Eckley approved it because it secured “life, liberty, and property to all the citizens.” Senator Howard declared, “we desired to put . . . the rights of citizens and freedmen under the civil rights bill beyond the legislative power” of those who would “expose the freedmen again to the oppression of their old masters,” and Broomall also referred to the Amendment in terms of “citizens.” These references suggest that the minds of most framers were concentrated on the protection of citizens, that they may not have appreciated that the word “persons” was carrying them further. Are so many statements to be viewed as reflecting agreement to use a shorthand version, or do they indicate that Congress did not really grasp that the Amendment applied both to citizens and noncitizens? Bingham never gave thought to the anomalies created by his coupling of the privileges or immunities of “citizens” with the protection of “persons,” the fact that he rendered the drive for Negro citizenship and the antecedent specification of the rights epitomized in the privileges or immunities clause superfluous.

Notwithstanding his inept midwifery, the object of the Amendment, whether viewed in the frame of “citizen” or of “person,” remains one and the same—the protection of the “fundamental rights” of “life, liberty, or property,” which first had been specified in the Civil Rights Bill and then embodied in the privileges or immunities clause. Due process is expressly tied to those rights; the derivation of the equal protection clause shows that it too was designed to shield the same rights against discriminatory laws. As John F. Farnsworth asked, how can a subject “have and enjoy equal rights of ‘life, liberty, and the pursuit of happiness’ without ‘equal protection of the laws’?” Not only is there not the slightest intimation that “persons” were to enjoy broader rights than those that had been so carefully enumerated for “citizens,” but those self-same rights of “life, liberty, and property” were repeatedly associated with “persons.” One may conclude with tenBroek that “the ‘citizen and stranger’ are again on the same footing: ‘the inborn rights of every person’ and ‘the privileges and immunities of citizens’ are coupled together [by Bingham] and refer to the same rights.” Whether the three clauses of §1 be viewed as a trinity, or whether the equal protection and due process clauses be separated from the privileges or immunities clause by virtue of the differentiation between “citizens” and “persons,” the practical effect is the same: protection for the fundamental rights of “life, liberty, and property.”

12

Section Five: “Congress Shall Enforce”

Section 5 of the Amendment provides that “The Congress shall have power to enforce by appropriate legislation the provisions of this article.” In 1879 the Court declared:

It is not said that the judicial power of the general government shall extend to enforcing the prohibitions and protecting the rights and immunities guaranteed. It is not said that branch of government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendment fully effective.

One might read this to mean that the courts are without authority to enforce the Fourteenth Amendment except as Congress empowers them to do so. Nevertheless, Justice Brennan stated in 1970, “we have consistently held that the Amendment grants power to the Court” and brushed the issue aside as “of academic interest only.” It is a fact that the Court has exercised the power, but it has never grappled with the questions posed by the text of §5 and by the 1879 opinion. It is never “academic” to inquire into the constitutional authority for action by any branch of the government. Patently the Court does not derive its power from the text of §5. Whence is it derived? Why did the framers confer the power on Congress rather than the Court?

The preference for Congress over the courts, exhibited by the face of §5, is readily explicable: “Slavery was deeply entrenched in the courts.” Dred Scott had been so bitterly etched into abolitionist memory that Senator Sumner even sought to bar the customary memorial, placement of Chief Justice Taney’s bust in the Supreme Court Chamber, and insisted that his name should be “hooted down in the pages of history.” Earlier the fugitive slave decision Prigg v. Pennsylvania had incensed the North, and such feelings were exacerbated on the very eve of the Civil War by Ableman v. Booth, where an order of the Supreme Court of Wisconsin setting aside a federal commitment of a fugitive slave was reversed. In consequence, Bingham, Stevens, “and others were among the severest critics of the Supreme Court and judicial review . . . [and] viewed it with a profound and ever growing mistrust.” James F. Wilson of Iowa rejected “judicial pronouncements” on the “unity of this Republic.” Not long after congressional approval of the Amendment, Samuel L. Warner, a Connecticut Republican, said he had “learned to place but little reliance upon the dogmas of [the] Court upon any question touching the rights of humanity.”

Such statements and sentiments might suggest that the framers intended the §5 grant of enforcement power to be exclusive, an inference apparently drawn by Judge Learned Hand: “Judicial encroachments upon legislative prerogatives in segregation decisions appeared to Hand to be directly contrary to the intent of the Fourteenth Amendment, which gives Congress power to enforce it through appropriate legislation.” Hand could draw on the established canon that the express grant to Congress indicates an intention to withhold the enforcement power from the courts.

It needs to be noticed that in 1866 the lower federal courts had no general jurisdiction of cases alleging a deprivation of rights secured by the Constitution. Although Article III confers jurisdiction of “cases arising under this Constitution,” it places creation of the “inferior courts” in the discretion of Congress. Consequently, the Supreme Court held, “Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies.” General jurisdiction of such cases, involving so-called “federal questions,” was withheld by Congress from the lower courts until the 1870s. Two related factors also require preliminary notice: the existence of the “diversity” jurisdiction of controversies “between citizens of different states,” and of appeals to the Supreme Court from State court denials of rights claimed under the Constitution or laws of the United States. But, as the face of the Civil Rights Act discloses, the framers little trusted the State courts to enforce Negro rights; and to have insisted that an impoverished black should pursue his rights in the Supreme Court would have reduced judicial enforcement to an empty promise. The diversity jurisdiction of course was virtually useless to almost all blacks, for their oppressors normally would be residents of the same State.

The framers, however, had made express provision in the Civil Rights Act for federal court jurisdiction to enforce the Act. Section 3 gave (1) the district courts jurisdiction, exclusive of State courts, of all crimes and offenses against the Act; and (2) concurrent jurisdiction with the circuit courts of all causes, civil and criminal, affecting persons who are denied or cannot enforce rights secured by §1 in State courts; plus (3) rights of removal of criminal or civil actions against persons whose rights were secured by the Act. Nothing in the history of the Amendment suggests an intention to repeal this provision. Instead the question arises: did “incorporation” of the Act in the Amendment carry the enforcement provisions with it? It is unreasonable, however, to attribute to the framers an intention to freeze enforcement provisions—the §2 fine of $1,000, for example—into the Constitution. Such provisions are generally subject to change in the light of experience, and the need to preserve flexibility with respect to penalties counsels against such an interpretation. On established canons of construction an unreasonable interpretation is to be avoided. Then too, there is no reason to attribute to Congress an intention to surrender any part of its Article III control of the “inferior courts” by a grant of untouchable jurisdiction in the Fourteenth Amendment, particularly at a time when Congress distrusted the courts. Such a surrender calls for more than references to “incorporation”; in an analogous situation the Court has required a specific provision for the change.

In light of the jurisdiction conferred by §3 of the Act, why was there a need for express congressional “power to enforce”? For it is a puzzling fact that the “necessity” of the §5 authorization was stressed. That §5, said George F. Miller of Pennsylvania, “is requisite to enforce the foregoing sections . . . is not contested.” Justice Brennan explained that by “including §5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause.” That leaves the tautology to be accounted for. Prigg v. Pennsylvania, a cause célèbre, had decided with respect to the Fugitive Slave Act that Congress has implied power to protect a right derived from the Constitution. Of Prigg and the subsequent Ableman v. Booth, the abolitionists, we may be sure, were well aware. Practiced lawyers like Senator Reverdy Johnson, Thaddeus Stevens, Judge Robert S. Hale, and Judge William Lawrence would be familiar with those cases, and one hesitates without more to attribute to the framers an intention merely to confirm such judicial interpretations by express constitutional provision. The “necessity” is perhaps better explained by Laurent B. Frantz: Prigg and Ableman gave Congress implied power to protect constitutional rights from interference by private individuals, whereas Kentucky v. Dennison had denied “implied power to exercise any control over a state’s officers and agencies.” Since Dennison held, and Bingham considered, that no branch of the government enjoyed such power over State officers, a grant of power to the judiciary arguably was equally “necessary.” No such grant was made in the Amendment. The 1866 congressional grant to the judiciary in the Civil Rights Act was by the Dennison test of dubious constitutionality; it could and can be supplemented by delegation from Congress under its §5 “power to enforce.” Derived from Congress, the judicial enforcement power can be withdrawn by it from the “inferior courts.”

The debates indicate that the framers meant Congress to play the leading role, that they regarded Congress “as the primary organ for the implementation of the guarantees of privileges and immunities, due process, and equal protection.” It was “necessary,” said Senator Poland, that Congress “enforce the provision . . . and compel its observance.” Stevens explained that the Amendment “allows Congress to correct the unjust legislation of the States”; and Charles Fairman observed that “Stevens’ thought ran to political rather than judicial action.” Other framers also looked to Congress to undertake “corrective” action. The overtones of such expressions were amplified by Senator Howard: section 5

constitutes a direct affirmative delegation of power to Congress to carry out all the principles of these guarantees, a power not found in the Constitution . . . It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith, and that no State infringes the rights of person and property . . . I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty. It enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional amendment.

Some explanation is required why this “responsibility” to “carry out the principles” of the Amendment did not contemplate congressional rather than judicial initiatives. Why did Hotchkiss protest that §5 “proposes to leave it to the caprice of Congress” whether or not to enforce antidiscrimination, if it was assumed that the courts could act in the face of congressional inaction? At the outset Conkling stated that all questions “arising upon the construction” of the Amendment would go to the “appropriate forum . . . the forum would be Congress, and also, perhaps the courts.” But §5 made no provision for enforcement by the courts.

Justice Douglas, apparently unaware of the implications of his statement for judicial review, stated that “the manner of enforcement involves discretion; but that discretion is largely entrusted to Congress, not to the courts.” The face of §5 indicates that the “discretion” was entirely confided to Congress, and the debates confirm that the “responsibility” for enforcement was imposed upon Congress, thus confirming the maxim that a direction to act in one mode excludes another. Judge Learned Hand’s inference that the grant to Congress was exclusive is strengthened by the legislative history. So far as I could find that history affords no basis for reading into §5 the judicial power of enforcement it so plainly withheld. Minimally the legislative history indicates that where Congress has spoken, that policy ought to be respected.

A reasoned argument for a judicial power of enforcement of the Fourteenth Amendment—apart from that derived from the grant in the Civil Rights Act of 1866, which Congress is free to withdraw—has yet to be made. Section 5, I would insist, raises questions which go to the heart of judicial enforcement of the Amendment, questions which the Court has never attempted to answer, which have been neglected by scholars, and to which they might well devote further study.

13

Incorporation of Abolitionist Theory in Section One

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

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

We have been tracing and stressing, not a precise, finished, coherent, consistent body of constitutional doctrine, still less an authoritative one; rather something still inchoate, derivative, opportunist, “sporty and sporting” —hence really a climate of usage, and the sociology and the geography of professional association, influence and knowledge by which due process and equal protection became what they did, when and how they did.

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

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

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

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

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

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

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

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

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

The intent of certain Radical leaders to go beyond the restrictive enumeration of the Civil Rights Act and to incorporate a series of expansive guarantees in the Constitution is quite clear. In a general sense, the best evidence of this is the language of the guarantees which Bingham and the other authors of the Fourteenth Amendment incorporated in the first section. The guarantees they finally adopted—privileges and immunities, due process and equal protection—were not at all derived from the Civil Rights Act, which, with the exception of one vague phrase in its final form, had used the restrictive enumerative device. Instead the authors derived their guarantees deliberately from the pre-war Radical antislavery movement.

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

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

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

the limitation imposed by the essentially federal character of the American constitutional system, which at last made it impossible to set up a comprehensive and unlimited program for the integration of the negro into the southern social order. Such a program could have been effected only by a revolutionary destruction of the states and the substitution of a unitary constitutional system . . . [T]he commitment to traditional state-federal relations meant that the radical Negro reform program could be only a very limited one.

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

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

The most avid proponents of the post-War amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents just as certainly were antagonistic to both the letter and spirit of the Amendments and wished them to have the most limited effect. What others in Congress and in the state legislatures had in mind cannot be determined with any degree of certainty.

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

we cannot turn back the clock to 1868 when the Amendment was adopted . . . We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives plaintiffs of the equal protection of the laws.

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

Supplementary Note on Abolitionist Influence

PART II

14

From Natural Law to Libertarian Due Process

Substantive Economic Due Process

The development of substantive due process was described by Robert G. McCloskey, a friend of the Court, as “the classic example of ‘government by judiciary.’ ” So accustomed are we grown to this development—whereby courts substitute their own views of policy for those of legislative bodies—that one recalls with a start that the doctrine was only launched in the late nineteenth century.

The shift from judicial supervision of procedure in the courts to control of legislative policymaking constitutes a truly extraordinary transformation. For judicial review was conceived in narrow terms—as a means of policing the constitutional boundaries, the “limits” of a given power. Little did the Framers dream that the judicial power would be construed as a license to supersede the exercise of power by the other branches within those boundaries. In fact, judicial participation in legislative policymaking was unmistakably excluded. Under the guise of substantive due process, therefore, the Court has invaded the exclusive jurisdiction of a sister branch; it has violated the injunction of the separation of powers, made explicit in the 1780 Massachusetts Constitution, that “the judiciary shall never exercise the legislative power.” And it has encroached on the sovereignty reserved to the States by the Tenth Amendment. It has done this in the name of a self-created doctrine to legitimate the exercise of power once rationalized under the garb of natural law. But neither the Framers of the Constitution nor of the Fourteenth Amendment entertained such notions.

It is axiomatic that all wielders of power, judges included, ever thirst for more. This appetite for extraconstitutional power found classical expression in Justice Samuel Chase’s opinion in Calder v. Bull (1798). Taking off from an hypothetical horrible— “a law that takes property from A and gives it to B ” —Chase declared that even in the absence of express restraint by the Constitution, “it is against all reason and justice, for a people to entrust a Legislature with such powers . . . the general principles of law and reason” forbid such acts. His appeal to extraconstitutional power was flatly rejected by Justice James Iredell, whose cogent advocacy of judicial review had anticipated that of Hamilton. True, “some speculative jurists,” Iredell noted, had stated that “a legislative act against natural justice must, in itself, be void”; but, given a “constitution which imposed no limits on the legislative power . . . whatever the legislative power chose to enact would be lawfully enacted, and the judicial power would never interpose to declare it void.” Reflecting David Hume, he said that “the ideas of natural justice are regulated by no fixed standard: the ablest and purest men have differed upon the subject.” Natural law therefore differed little from the “mandate from heaven” of a Chinese emperor, which was “so vague that emperors could readily identify their own will with the will of heaven.” Dean Pound justly characterized it as “purely personal and arbitrary.”

Iredell, not Chase, represented the received opinion. The Founders were deeply committed to positivism, as is attested by their resort to written constitutions—positive law. Adams, Jefferson, Wilson, Madison, and Hamilton, states Robert Cover, “were seldom, if ever, guilty of confusing law with natural right.” For them a constitution represented the will of the people “that would determine explicit . . . allocations of power and its corresponding limits.” Chase’s notion, to borrow from Cover, “that out beyond [a constitution] lay a higher law,” departed from the Founders’ commitment to written limits on all power. That commitment sprang from an omnipresent dread of the greedy expansiveness of power, graphically expressed by Jefferson: “It is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Cover’s view may seem to be contradicted by Chief Justice Marshall’s reference to natural law in Fletcher v. Peck, but Marshall’s allegiance to the doctrine is debatable. Justice Frankfurter considered his occasional references to natural law “not much more than mere literary garniture . . . and not a guiding means for adjudication.” Let the contrary be assumed, and the Marshall view must yet yield to the Founders’ ceaseless emphasis on a federal government of “limited” powers, to the deep distrust of a federal judicial system. Incorporation of natural law as a basic presupposition would set at naught the Framers’ efforts to temper federal judicial control over the States. And the ongoing debate about the legitimacy of judicial review itself counsels against adoption of the most extreme view of the power—one infinitely expansible by calling on “higher law”; for, as Lord Camden stated, “One should naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant.” On this score, finally, when M’Culloch v. Maryland came under attack nine years later, Marshall repeatedly and emphatically disclaimed any intimation that constitutional powers could be expanded by construction, assurances that were meaningless if the result could be achieved through the medium of natural law.

The Founders’ commitment to written limits on all power received powerful endorsement when a succession of judges, including Shaw, Story, and McLean, put the commands of the Fugitive Slave Act above the agonizing demands of conscience and the higher law. In a typical fugitive slave case, Miller v. McQuerry, Justice John McLean stated, “It is for the people . . . in making constitutions and in the enactment of laws, to consider the laws of nature . . . This is a field which judges cannot explore . . . They look to the law, and to the law only.” Such were also the views of Justice Story and Chief Justice Lemuel Shaw.

Against this background, judges in whom Chase’s yearning for extraconstitutional power survived understandably would be more comfortable with a constitutional catchphrase that “disguised individual opinions and gave them the sanction and prestige of a supreme fundamental law.” They found it in Wynehamer v. The People (1856), the locus classicus of substantive due process. But first they too dismissed the doctrine of natural law. Justice Selden declared, “the doctrine that there exists in the judiciary some vague, loose and undefined power to annul a law, because in its judgment it is ‘contrary to natural equity and justice,’ is in conflict with the first principles of government and can never, I think, be maintained.” His associates were equally plainspoken. This, however, did not exemplify a triumph of judicial self-restraint. While barring abolitionist reliance upon natural law, Corwin said, the Court fashioned substantive due process as a means of confining protection to vested property rights. But Justice A. S. Johnson cited much the same type of horrible example that had been adduced for resort to natural law, without explaining the leap from procedural due process in a criminal trial to invalidation of a statute, content to appeal to the ostensibly discarded natural law reasoning under a new label.

Wynehamer, it needs to be underscored, was a sport; it “found no place in the constitutional law that was generally recognized” in 1856; nor did it thereafter find acceptance. When its argument was pressed on Chief Justice Ames of the Rhode Island Supreme Court in 1858, he held that the due process clause of the State constitution was not “designed to inhibit the legislature from regulating the vendibility of property” but was the “shield of one accused of crime,” as almost all State constitutions made quite plain. Shortly thereafter, in 1866, the New York Court itself repudiated “the inconsiderate dicta of some of the judges” in Wynehamer. Nevertheless, Justice Miller, recurring to typical natural law examples in 1874, averred, “It must be conceded that there are such rights in every free government beyond the control of the State.” Yet Miller himself had categorically rejected such concepts in 1869:

This whole argument of the injustice of the law . . . and of its opposition to the spirit of the Constitution, is too abstract and intangible for application to courts of justice, and is, above all, dangerous as a ground on which to declare the legislation of Congress void by the decisions of a court. It would authorize this court to enforce theoretical views of the genius of government, or vague notions of the spirit of the Constitution and of abstract justice, by declaring void laws which did not square with those views. It substitutes our views of policy for judicial construction, an undefined code of ethics for the Constitution, and a court of justice for the natural legislature.

That substitution persists now that “due process has come to be the main provision through which natural law theories were made a part of current constitutional law.” And it bears emphasis that until deep into the twentieth century the Court did not employ due process to succor the Negro for whose benefit the Fourteenth Amendment was framed, but rather as “a judicial weapon to strike down social legislation.”

The “convenient vagueness” of due process is of the Court’s own making. After noting the “fixed” procedural character of due process, Charles P. Curtis, who rejoiced in judicial “adaptation” of the Constitution, asked: “But who made it a large generality? Not they [the Framers]. We [the Court] did.” Justly did Justice Black state that “any broad unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the ‘conscience of our people’ . . . was not given by the Framers, but rather has been bestowed on the Court by the Court.” It is the Court that made due process an obscurantist phrase.

Among the remarkable aspects of this transformation is that Justice Frankfurter, the apostle of “self-restraint,” should so warmly have embraced its end-product: “once we go beyond its strictly procedural aspects . . . [it is] precisely defined by neither history nor in terms.” How could it be when the Court drew substantive due process out of thin air? His revered predecessors, Justices Holmes and Brandeis, understood this full well. His frequent references to the “vagueness” of due process ill fits his deference to the common law meaning of words which have a “deposit of history.” Whatever the scope of procedural due process, the “deposit of history” incontrovertibly shows that it did not comprehend a judicial veto of legislation on policy grounds. Frankfurter acknowledged that the “vagueness” of due process “readily lends itself to make of the Court a third chamber with drastic veto power.” He wrote in 1926 that, “through its steady expansion of the meaningless meaning of the ‘due process’ clause of the Fourteenth Amendment, the Supreme Court is putting constitutional compulsion behind the private judgment of its members upon disputed and difficult questions of social policy.” Now that he had donned the robe he apparently was satisfied that such power was safe in his hands—a familiar and very human reaction. But he disclaimed enforcement of his own “private view rather than the consensus of society’s opinion which, for purposes of due process, is the standard enjoined by the Constitution.” “What is this consensus?” George Braden asked, and showed that it bristles with complexities in both definition and ascertainment. “Essentially,” Frankfurter explained, what is involved is a “judgment that reflects deep, even if inarticulate, feelings of our society. Judges must divine that feeling as best they can.” Does not repudiation of the Court’s strictures against the death penalty by legislation in some thirty-odd States demonstrate that the Court is not in possession of a divining rod? The overwhelmingly negative public reaction to Frankfurter’s flag-salute opinion indicates that his own powers of divination were unreliable. It furnished proof for his statement that “As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements,” and confirmed Learned Hand’s belief that the judge “has no right to divination of public opinion which runs counter to its last formal expression.”

Frankfurter’s “canons of decency and fairness which express the notions of justice of English-speaking people” were scornfully dismissed—paradox of paradoxes—by Justices Black and Douglas, whose record of writing their predilections into the Constitution will long be unsurpassed. Justice Black labeled such tests the “catchwords and catchphrases invoked by judges who would strike down under the Fourteenth Amendment laws which offend their notions of natural justice.” To him such tests represented a claim of “unlimited power to invalidate laws”; for Douglas, judgment would then turn on “the idiosyncracies of the judges.” Lest this stamp me as a Black partisan in his running debate with Frankfurter, let me avouch Arthur Sutherland, a Frankfurter friend. He concludes that though Justice Frankfurter was “dissatisfied” with Black’s position on incorporation of the Bill of Rights in the Fourteenth Amendment, he “could find no substitute adequate to explain the revisory function of the Supreme Court,” that one of his formulas “left us as much at large as we were with mere ‘due process of law.’ ” Is “outraging the Supreme Court’s sense of justice,” Sutherland asked, “any more definite . . . ?”

Not that Justice Black’s insistence on his “impersonal” standard was free of self-delusion. To accomplish control over the States he jumped off from the untenable assumption that the Fourteenth Amendment incorporates the Bill of Rights; upon closer examination it appears that the “specifics” of the Bill of Rights also exhibit “subjective” open spaces. It would take us far afield once more to compare the Black and Frankfurter philosophies. Let it suffice, as George Braden concludes, that both “put into the Fourteenth Amendment what they want to”; [e]ach theory collapses, on analysis, into little more than a front for policy-making.” “How can a strict constructionist, so-called, like Black,” Philip Kurland rightly asks, “have acquiesced in the reapportionment cases?” Those decisions, in the words of Justice Stewart, “mark a long step backward into that unhappy era when a majority of the members of the Court were thought by many to have convinced themselves and each other that the demands of the Constitution were to be measured not by what it says, but by their own notions of wise political theory.” Black it was who declared, “there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add substantive constitutional changes which a majority of the Court at any given time believes are needed to meet present day problems. ” What were the “one man, one vote” decisions in which Black concurred but exactly such instances? For the Fourteenth Amendment, by virtue of its unmistakable history, as good as provides that control of suffrage was left to the States. And what happened, Miller and Howell justly ask, to Frankfurter’s “vaunted sense of self-restraint” in the desegregation case, which, to quote his condemnation of a reapportionment decision, was also “a massive repudiation of the experience of our whole past in asserting destructively novel power.” That case also interfered with matters that had been a matter of State concern from the beginning, and which the framers of the Fourteenth Amendment plainly intended to leave with the States. Yet Frankfurter “was wary of judicial efforts to impose Justice on the people—to force upon them ‘better’ government than they were able at the moment to give themselves. It was his deepest conviction that no five men, or nine, are wise enough or good enough to wield such power over an entire nation.” The lesson to be drawn from the cross-recriminations of the Justices is that the cry for self-restraint is directed to the other fellow, to decry identification of his predilections with constitutional mandates. Each Justice has a blind spot for the identification of his own predilections with constitutional dogma. A beautiful illustration is furnished by Justice Douglas in the contraceptive case Griswold v. Connecticut: “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems . . . or social conditions. This law, however, operated directly on an intimate relation of husband and wife.” The inarticulate premise, as Alpheus Thomas Mason points out, is that “the Court does sit as a super-legislature in safeguarding the penumbral rights of privacy.” To justify the differentiation Douglas relies on the cobwebby “penumbras formed by emanations,” but in essence he exemplifies the readiness of the Justices to act as a “super-legislature” when their own emotions are engaged.

In the economic realm the Court itself has confessed error. In 1970 it recalled the “era when the Court thought the Fourteenth Amendment gave it power to strike down state laws ‘because they may be unwise, improvident, or out of harmony with a particular school of thought’ . . . That era has long ago passed into history.” “We have returned,” it said on another occasion, “to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws,” as had earlier been stated by Justice Holmes. These statements, however, are only accurate in part. At the same time it engaged in this overdue renunciation of usurped power in the economic sphere, the Court expanded the application of substantive due process to libertarian categories to which at length it assigned a “preferred position.” To the uninitiated it might seem that if the Fourteenth Amendment, in Justice Holmes’ famous phrase, “does not enact Herbert Spencer’s Social Statics,” no more does it incorporate Kenneth Clark’s social psychology. In this Black and Frankfurter professedly were in accord. Justice Frankfurter stated: “The Constitution does not give us greater veto power when dealing with one phase of liberty than another . . . Our power does not vary according to the particular provision of the Bill of Rights which is invoked.” Justice Black affirmed that “The Due Process Clause with an ‘arbitrary and capricious’ or ‘shocking to the conscience’ formula was liberally used by this Court to strike down economic legislation . . . That formula, based on subjective considerations of ‘natural justice,’ is no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights.” The logic that bars the one equally bars the other.

History reveals that property actually was more highly prized by the Founders than “civil liberties.” “The great and chief end . . . of men,” Locke wrote, in “putting themselves under government, is the preservation of their property.” For the Founders property “was the basic liberty, because until a man was secure in his property, until it was protected from arbitrary seizure, life and liberty could mean little.” Hence they “warmly endorsed John Adams’ deep-seated conviction that ‘property is as sacred as the laws of God’ ”; and such views were expressed in the Convention by Madison: “The primary objects of civil society are in the security of property and the public safety.” Neither the Fifth nor the Fourteenth Amendment drew a distinction between “liberty” and “property,” and, as Learned Hand remarked, the Framers would have regarded the current reading of the Fifth Amendment as “constituting severer restrictions as to Liberty than Property” as a “strange anomaly.” “There is no constitutional basis,” he averred, “for asserting a larger measure of judicial supervision over” liberty than property. There is no escape, to my mind, from Stanley Morrison’s summation that the difference merely represents “the subjective preferences or convictions of the individual judge.”

To this Fred Rodell replies that “regardless of syllogistic consistency about judicial review—this nation puts, or should put, a higher premium on individual dignities and freedoms than on material matters like the getting and keeping of money, and that the Court should honor that preference under the Constitution.” Patently what this nation “should put” merely reflects Rodell’s own preferences; whether the “nation puts” raises the question: at what point in time? Not from 1788 to the mid-twentieth century of a certainty. If it be the nation today, we have only Rodell’s conjecture, a very insecure footing for constitutional doctrine. Leonard Levy correctly points out that such views merely reject the Court’s earlier economic predilections because they were “illiberal,” not because the Court “made policy,” often arbitrarily. And he comments that this view “loses nothing of its monstrous character when the Court is praised simply for reaching the right or just result.” Let us now briefly consider the means whereby the distinction was judicially fashioned.

From Economic Due Process to the “Preferred Position”

The “preferred position” assigned by the Court to “civil liberties” may be traced back to the brief vogue of “liberty of contract.” To preserve it, the Court struck down a statute in Lochner v. New York (1905) that limited working hours to 10 hours daily and 60 weekly as an interference with a bakery worker’s right to work longer hours. Casuistry seldom rose to greater heights. “There is grim irony,” Justice Stone later wrote, “in speaking of the freedom of contract of those who, because of their economic necessities, give their services for less than is needful to keep body and soul together.” First adopted in Allgeyer v. Louisiana (1897), “liberty of contract” flourished so lustily that by 1923 Justice McReynolds could say in Meyer v. Nebraska, “without doubt, it denotes not merely freedom from bodily restraint.” History disproves the claim. The learning was assembled in two landmark articles by Charles E. Shattuck (1891) and Charles Warren (1926). After collating the earlier history, Shattuck noted Blackstone’s summation, defining personal liberty as the “power of locomotion, of changing situation . . . without imprisonment or restraint of the person.” When Warren reviewed the materials some twenty-five years later, he concluded, “there seems to be little question that, under the common law, ‘liberty’ meant simply ‘liberty of the person,’ or in other words, ‘the right to have one’s person free from physical restraint.’ ” This was the established connotation of “liberty” when the Thirteen State constitutions adopted the “life, liberty, or property” phrase.

Before “liberty of contract” was abandoned, the Justices had timidly extended the concept of “liberty” to freedom of speech. As late as 1922 the Court had held that the Constitution “imposes upon the States no obligation to confer upon those within their jurisdiction . . . the right of free speech.” Three years later, in Gitlow v. New York, the Court “assume[d] that freedom of speech and of the press are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Justice Holmes furnished the clue in his dissenting opinion: free speech “must be taken to be included in the Fourteenth Amendment in view of the scope that has been given to the word ‘liberty.’ ” But this was precarious footing; Justice Brandeis averred that free speech and press are protected “from invasion by the States” because they are “fundamental rights comprised within the term ‘liberty.’ ” In one of his finest perorations he attributed it to those “who won our independence,” who believed “that this should be a fundamental principle of the American government.” Brandeis’ attribution to the Founders, as will appear, falls afoul of historical fact. On the eve of Gitlow, his foremost disciple, Professor Frankfurter, wrote: “Even the most rampant worshipper of judicial supremacy admits that wisdom and justice are not the tests of constitutionality . . . Particularly in legislation affecting freedom of thought and freedom of speech much that is illiberal would be clearly constitutional.” In the post–Warren Court euphoria, when the test of constitutionality is assumed to be that the result is socially desirable, we are apt to overlook Chief Justice Marshall’s caution that “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

Charles Warren tellingly argues that the “free speech” of the First Amendment could not have been comprehended in the due process of the Fifth Amendment because, “having already provided in the First Amendment an absolute prohibition on Congress to take away certain rights,” it is “hardly conceivable that the framers” would, in the Fifth, provide that “Congress might take away the same rights by due process of law.”

“The right of free speech,” Warren points out, “was not included as one of a person’s fundamental . . . rights in any Bill of Rights adopted by any of the States prior to the Federal Constitution.” More important, when the First Amendment was proposed, Madison urged the First Congress that “it was equally necessary that [free speech] be secured against the State Governments,” but his plea was fruitless. Jefferson, the great champion of free speech and free press, wrote in 1804 to Abigail Adams: “While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right to do so.” This was the premise on which the First Congress had acted. One may agree with Justice Cardozo that free speech is “the matrix, the indispensable condition, of nearly every other form of freedom,” but the fact remains that the one time the American people had the opportunity to express themselves on whether free speech was “so rooted in the tradition and conscience of our people as to be ranked as fundamental” was in the First Congress, which drafted the Bill of Rights in response to popular demand. There they voted down interference with State control. Justice Byron White brushed the 1789 history aside as of “little relevance in interpreting the Due Process Clause of the Fourteenth Amendment, adopted specifically to place limitations upon the States.” That begs the question. Where is the evidence that in 1866 the framers meant to advance beyond the limited goals of the Civil Rights Act? Where is the evidence that they meant to enlarge the meaning due process had for the Founders in 1789? Instead, the record establishes that the framers had limited objectives; that they carefully avoided encroaching on the States beyond those limits; that they chose technical words apt for their purpose, which, in the case of due process, meant to them access to the courts according to due course of law, not a roving commission to revise State institutions. On the heels of the Fourteenth Amendment Thomas Cooley concluded that “Obstacles stood in the way of an unconditional commitment to human freedom. Innovations, he believed, required historical basis, and American history was singularly lacking in precedents for national power used in behalf of individual freedom.”

Charles Warren had prophesied in 1926 that by enlarging the Fourteenth Amendment to protect free speech, the Court had opened the door to adoption of the rest of the Bill of Rights. Faced with mounting pressure to do so, Justice Cardozo, in Palko v. Connecticut (1937), fashioned a confining doctrine— “ordered liberty”: some “immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the States.” Such portions of the Bill of Rights as had been “absorbed” in the Amendment rested on “the belief that neither liberty nor justice would exist if they were sacrificed.” “Absorption” proceeded from those “principle[s] of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental.” As in the case of the Chinese “mandate from heaven,” we learn a right is “fundamental” only after the Court attaches that label. Cardozo, it needs to be borne in mind, took due process as it was handed to him and therefore could say, “Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form.” “Ordered liberty,” as Louis Lusky states, “is too vague to describe a national objective. It says that order and liberty are both to be sought, but provides no standard for reconciling the eternal conflict between them.” “It is a vehicle,” he justly comments, “for whatever meaning the Court gives it, and thus enables the Court to apply its own conceptions of public policy.” Several Justices concur in this view. In a book written by Justice Owen Roberts after his retirement, he stated, in a passage quoted by Justice Douglas, that the cases will fall “on the one side of the line or the other as a majority of nine justices appraise conduct as either implicit in the concept of ordered liberty or as lying without the confines of that vague concept.” Justice Byron White likewise regards the concept as no more than a means whereby a majority of the Court can impose “its own philosophical predilections upon State legislatures or Congress.” And Justice Black maintained that the concept merely embodied “ ‘natural law due process’ notion[s] by which this Court frees itself from the limits of a written Constitution.” Like that of Brandeis, Cardozo’s reliance on the “traditions and conscience of our people” is rebutted by the refusal of the First Congress to proscribe State interference with free speech and free press. That, to borrow from Learned Hand, was the “last formal expression” of the will of the people. No departure from that will can be found in the history of the Fourteenth Amendment; instead, but for the narrow enclave of the Civil Rights Act, the framers plainly withheld from the Court power to intrude into State regulation of domestic affairs.

About four months after Palko, Lusky tells us, Justice Stone, in a footnote to United States v. Carolene Products Co., “undertook to articulate a more satisfactory justification.” At that time Lusky was Justice Stone’s law clerk, and he submitted a draft of what eventuated as the second and third paragraphs of the footnote. “It is unnecessary to consider,” reads paragraph two, “whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting scrutiny . . . than are most other types of legislation.” “Nor need we enquire,” paragraph three states, whether statutes that impinge upon religious or racial minorities that were objects of prejudice which might hamper relief through political processes should also be subjected to “more searching judicial scrutiny.” Thus, by a disclaimer of the need to decide, in a case that had “curiously not involved liberties in any way,” the Court, as it has so often done, launched a major constitutional doctrine. Notwithstanding that it was tucked away in a footnote, it “disturbed” Chief Justice Hughes; consequently, the present first paragraph was added, stating that “there may be a narrower scope” for operation of the presumption of constitutionality when legislation “appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments . . when held to be embraced within the Fourteenth.” Paragraph one was designed to qualify the second and third paragraphs in order to still Hughes’ doubts, as the exchanges between him and Stone make plain.

Lusky explains that paragraphs two and three “make no reference to the words or intentions of the Constitutors. They speak, rather of the dynamics of government,” that is, they assume that “government by the people, and government for the whole people” are “fairly ascribable to the Constitutors,” and that the Court has a “special ability to effectuate them” by acting in the two described situations. And it is the Court itself which is to decide for which purposes it has “special aptitude.” Once more the “genius of government” is to override the sovereignty in domestic matters that the Framers reserved to the States; once more their rejection of judicial participation in policymaking and the reservation in 1866 of suffrage and other local matters to the States is ignored. Although the Hughes first paragraph seems narrower, Lusky considers that by it “the Court is left entirely at large. There is virtually no limit to its ability to attribute new meaning to the ‘specific prohibitions,’ once it is liberated from the need to interpret them as the Constitutors expected.” This has “come to be known as the ‘preferred position’ theory, which affirms that certain rights are . . . so important that the Court should protect them . . . and that the Court’s power to select them is limited only by its ability to manipulate words contained in the Constitution. It . . . assumes that any meaning the Court chooses to ascribe to the sacred text will be accepted as authentic revelation.” These strictures, it seems to me, are no less applicable to a theory divorced from “the words or intentions of the Constitutors” and founded on “the dynamics of government.”

Lusky’s pronounced preference for the Stone-Lusky second and third paragraphs of the Carolene footnote derives from the belief that it fits in with his newly fashioned theory of the Court’s “implied power” to revise the Constitution, his answer to the anguished question, “ By what right does it revise the Constitution?” His search for a new theory to undergird judicial revision testifies that the footnote is without constitutional roots, that as George Braden says, “it is simply a part of one man’s set of values for his society which he holds strongly enough to be willing to enforce when the opportunity arises.”

Stone himself, according to Lusky, “seems to have underestimated” the importance of the distinction Lusky draws, illustrating anew the tendency to read into an utterance meaning never contemplated by the author. And before long he was disenchanted with the course pursued by the Court. Long before the Warren Court worked its revolution, Chief Justice Stone wrote (1945): “My more conservative brethren in the old days [read their preferences] into the Constitution . . . [H]istory is repeating itself. The Court is now in as much danger of becoming a legislative and Constitution making body, enacting into law its own predilections, as it was then.” His forebodings were overfulfilled; “the Warren Court,” Archibald Cox stated, “behaved even more like a Council of Wise Men and less like a Court than the laissez faire Justices.” Once again Stone exemplifies that the measure of tolerance is effectuation of one’s own predilections; when they are exceeded at the hands of other Justices, they are anathematized.

This drastically telescoped survey of divers judicial rationalizations of expanded judicial revision for the benefit of libertarian ideals underlines the wisdom of Judge Learned Hand’s conclusion that judges

wrap up their veto in a protective veil of adjectives such as . . . “reasonable,” “inherent,” “fundamental” . . . whose office usually, though quite innocently, is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.

Because Frankfurter overlooked the fact that “due process” was not a provision “without a fixed technical meaning” —minimally it excluded control over legislation, both in 1789 and 1866—he could allude to “the evolution of social policy by way of judicial application of Delphic provisions of the Constitution.” And struggling to arrive at an adequate rationalization of the “desegregation” decision, Frankfurter, we are told, stated in the Conference of the Justices: “It was too bad history had conspired to make the Court the trustee of that incorrigible changeling, the due process clause, and therefore impose upon the Justices a policy-making function unlike that borne by any other court in any other nation.” The burden, however, was self-assumed—not unlike the “white man’s burden” once employed to justify imperialism. On the most charitable view, Justice Frankfurter had induced a state of self-hypnosis by his frequent incantations to the “convenient vagueness” of due process. Justice Harlan was content, in a case that outraged his sympathies, to state that the historical arguments, among others the limitation of due process to “procedural fairness,” “have not been accepted by this Court as delineating its scope.” Yet he later insisted, with respect to suffrage, that the Court was bound by the framers’ intention to exclude it from the scope of the Fourteenth Amendment.

With vision unclouded by claims to power, there is no reason why students of the judicial process should be caught in such toils. It is their duty to discern and proclaim that it is the judges, not the Constitution, that speak, as Frankfurter himself advised President Franklin Roosevelt on the eve of the Court-packing plan, just as in a simpler age the words which fell from the lips of the Delphic Oracle were spoken into a speaking tube by priests secreted below.

Those who consider that judgment is inescapably subjective will chortle that thus far I have merely proved the obvious. But even in their magisterial survey of such inescapability, Arthur S. Miller and Ronald F. Howell state: “It is, of course, only those constitutional provisions of inherent ambiguity that pose problems of interpretation. Where the intention is clear . . . no interpretation is necessary. ” Even less is 180-degree revision “necessary”; the “ambiguity” of substantive due process was not “inherent” but judicially contrived. Miller and Howell, however, suggest a constrictive criterion, instancing “clear” provisions for the number of Senators, for a President and a Vice-President, and dismissing as a “filo-pietistic notion” something “called the intention of the framers.” Nevertheless, they do not suggest that “the judge is wholly free” to sit “kadi-like under a tree dispensing ‘justice’ by whim or caprice,” calling attention to one limitation on such freedom— “adherence to precedent.” Why should “adherence to precedent” rise above effectuation of the framers’ clearly expressed intention, which expresses the value choices of the sovereign people, not merely of judicial predecessors? The Justices themselves are by no means in accord with the now widely shared Miller-Howell view that it is the function of the Court to “update the Constitution.” The powerful and repeated dissents across the judicial spectrum, condemning or disclaiming subjective judgment, evidence ongoing soul-searching by members of the Court whether the broad policymaking role academe strenuously defends comports with constitutional limits and the demands of a democratic society.

But this in turn compels us to face the naked question wrung from the lips of Graham. Confronted with the framers’ imperfect “understanding of equal protection as applied to educational matters,” their acceptance of “segregation in schools,” he stated:

To argue that this means we today are bound by that understanding and practice is to transform the mores and laws of slave code days into constitutional sanctions impossible to be cast off or even moderated . . . Does it follow—dare it follow . . . [that] we today are bound by that imperfect understanding of equal protection of the laws?

Graham’s inarticulate premise was that change could not be accomplished by amendment as the Constitution provides—desegregation could not win assent of two-thirds of the Congress and three-fourths of the States. Accordingly, it fell to the Court to strike the shackles of the past. Whence does the Court derive the power to free the American people from the “chains of the Constitution,” from the “tyranny of the dead,” that is, the Founders? Such questions will be considered in subsequent chapters.

15

“The Rule of Law”

For a generation the constitutional basis for the “revolutionary” changes wrought by the Warren Court has gone virtually unchallenged. Justice Black, to be sure, unremittingly attacked decisions which to his mind rested on supraconstitutional authority, but his views could be heavily discounted because he himself was guilty of wholesale importation and participated in some of the Court’s most debatable constitutional revisions. In a perceptive essay, Thomas C. Grey noticed a turning of the tide, the joinder of distinguished commentators in Black’s criticisms; although he dissents, he called for a clear statement and adequate defense of the position. With Grey, I consider the question whether the Court may “enforce principles of liberty and justice” when they are “not to be found within the four corners” of the Constitution as “perhaps the most fundamental question we can ask about our fundamental law,” excluding only “the question of the legitimacy of judicial review itself.” The issue may for present purposes be stated more concretely: given that the Fourteenth Amendment plainly left suffrage and segregation to the States, may the Court “interpret” it in exact contradiction of the framers’ design—to take control away from the States? Where is the constitutional authority for a power so awesome?

It is important to make clear at this point what Part II of this study is not about. It does not deal with the interpretation of amorphous constitutional provisions such as “commerce,” which, unlike “due process,” have no historical content; nor with the weight to be accorded “enigmatic” history. As Part I demonstrated, the framers of the Fourteenth Amendment made their intention abundantly plain: to exclude suffrage and segregation from the ambit of its terms. For me those terms, “equal protection” and “due process,” illuminated by clear history, are neither “vague” nor “ambiguous.” Nor will I deal with whether or not judicial review is antidemocritarian, for if judicial review of the Warrenite scope was authorized by the Constitution, its antidemocratic nature has constitutional sanction. Nor will the craftsmanship of the Court, about which rivers of ink have been spilled, come into question. If judicial intervention with respect to suffrage, for example, is without constitutional warrant, it cannot be excused by the most elegant craftsmanship. Nor will consideration be given to the extensive debate about “neutral principles,” because I concur with John Ely that if a “neutral principle” “lacks connection with any value the Constitution marks as special,” that is, if it is not rooted in the Constitution, “it is not a constitutional principle and the Court has no business imposing it.” What is of paramount importance, as Ely stresses, is that the Court “is under obligation to trace its premises to the charter from which it derives its authority.” Finally, the “subjectivity” involved in making value choices plays no role in my view of the meaning of the Fourteenth Amendment, for it was not given to the courts to prefer federal judicial control of suffrage to the State control the Amendment deliberately left untouched. The Justices’ value choices may not displace those of the Framers, or, as Chief Justice Marshall stated, the words of the Constitution are not to be “extended to objects not . . . contemplated by its framers” —let alone to those which unmistakably were excluded.

Intoxicated by the Warren Court’s libertarian breakthrough, academicians have dismissed such restrictions. Fred Rodell exulted that Chief Justice Warren “brush[ed] off pedantic impedimenta to the results he felt were right,” that he was not a “look-it-up-in-the-library” intellectual, and that he was “almost unique” in his “off-hand dismissal of legal and historical research from both sides and in [his] pragmatic dependence on the present day results of separate schools.” On this view the Constitution itself is a superfluous, even obstructive, “scrap of paper.” Leonard Levy labeled this approach as “anti-intellectual,” but Rodell merely expressed in pungent terms what is more decorously phrased by his fellow “instrumentalists.” The underlying reality, as another Warren enthusiast, Edmond Cahn, stated, was that “as a practical matter it would have been impossible to secure adoption of a constitutional amendment to abolish ‘separate but equal,’ only the Court possessed effective power to relieve American education of this incubus,” thereby assuming that it had constitutional warrant.

Inquiry into the source of power to set aside Article V of the Constitution, “which prescribes the Amendment process,” and to impose a solution on the people that confessedly could not have obtained their assent is hardly a sheerly antiquarian exercise. Given a Constitution designed to “limit” the exercise of all delegated power, it is a response to the admonition contained in the Massachusetts Constitution of 1780, drafted by John Adams and paralleled in a number of early State constitutions, that “A frequent recurrence to the fundamental principles of the constitution . . . [is] absolutely necessary to preserve the advantages of liberty and to maintain a free government . . . The people . . . have a right to require of their law givers and magistrates an exact and constant observance of them.” Such provisions evidence what Willard Hurst considers to be “a very basic principle of our constitutionalism . . . a distrust of official power,” as Jefferson’s insistence on binding officials “with the chains of the Constitution” attests.

Constitutionalism and the Rule of Law

When Howard Jay Graham acknowledged that the framers excluded segregation from the compass of “equal protection,” but concluded that we dare not be bound by their “imperfect understanding,” he premised that the Court, as it had done in Brown v. Board of Education (1954), should strike the “chains of the Constitution.” The demands of justice, in short, must rise above the law, or, as libertarians put it, humanitarian goals must override what they regard as arid legalism. To dismiss adherence to “the rule of law,” observance of the limitations imposed by a written Constitution, is to strike at the very root of our democratic system. History confirms Justice Black’s statement that the struggle for a written constitution was “to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power,” “according to the ‘law of the land,’ ” not by the “law of judges.” The Framers, as will appear, had no stomach for the dispensation of “justice” by a kadi under a tree. Justice, to be sure, is the aim of a democratic state, but there can be no justice without a government of laws, least of all when power is uncurbed. It is for this reason, I suggest, that judges are not required by Article VI, §3, to take an oath to do justice but rather “to support this Constitution.” Our system is committed to “Equal Justice Under Law,” not to “Justices Above the Law.” They were not authorized to revise the Constitution in the interests of “justice.”

Mechanical repetition over the years—like a child’s unthinking daily pledge of allegiance—has dulled the significance of the rule of law; it has been called a “useful fiction.” For the Framers, however, it was the essence of constitutional government. “The government of the United States,” said Chief Justice Marshall in one of his earliest decisions, “has been emphatically termed a government of laws and not of men.” That the judiciary, too, was meant to stay within bounds was spelled out in the 1780 Massachusetts Constitution, which ordained that the legislature should never exercise judicial power, and never should the judiciary exercise legislative power, so that this may be a “government of laws and not of men.” Even more plainly, judges were not left free to exercise the supreme “legislative power” of the people, to revise the Constitution in accordance with their own predilections. As the Massachusetts House wrote to the Earl of Shelburne in 1768, “There are, my Lord, fundamental rules of the Constitution . . . which neither the supreme Legislative nor the supreme executive can alter. In all free states, the constitution is fixed; it is from thence, that the legislative derives its authority; therefore it cannot change the constitution without destroying its own foundation.” This was addressed to an “omnipotent” Parliament and the Crown under an unwritten Constitution; it was an article of faith among the colonists and Founders. In substituting a written Constitution and expressly providing for change by amendment, they evidenced that they had created a “fixed” Constitution, subject to change by that process alone. That “fixity” was meant to serve as a bulwark for cherished liberties, not a mere parchment. “Our peculiar security,” Jefferson declared, “is the possession of a written Constitution. Let us not make it a blank paper by construction.” The written Constitution was thus the highest expression of the “rule of law,” designed to limit the exercise of power and to make the agents of the people accountable. Once limits are prescribed, Chief Justice Marshall stated, they may not “be passed at pleasure.” It was because constitutions were bulwarks against oppression that, in his words, “written constitutions have been regarded with so much reverence.”

The Constitution represents fundamental choices that have been made by the people, and the task of the Courts is to effectuate them, “not [to] construct new rights.” When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power. No dispensation was given to the Court to step outside its powers; it is no less bound by constitutional limits than are the other branches, as the historical evidence makes plain. First, it was clearly excluded from participation in the making of policy, the function of the legislature. No agent, said Hamilton, “can new-model his commission,” and the most benign purpose does not authorize the judiciary to remodel its powers. Indeed, we need to be rid of “the illusion that personal power can be benevolently exercised.” The Founders knew, in Jacob Burckhardt’s phrase, that “Power is of its nature evil, whoever wields it.” They knew, as Madison stated, that all “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” “Judicial power,” Justice Frankfurter remarked, “is not immune against this human weakness”; and the Court’s progressive intrusion over the years into the domain of policymaking, from which it was plainly excluded, points the moral. Second, as Chief Justice Warren recognized, “We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution.” Substituted judicial made-to-order “standards” are not really the “standards” of the Constitution, as the State “reapportionment” cases plainly evidence. The significance of the judicial oath is illuminated by that of the President, who does not swear to defend the nation, but to “preserve and defend the Constitution,” on the inarticulate premise that the life of the nation hangs on the preservation of the Constitution. Third, conclusive evidence that the judiciary was designed only to police constitutional boundaries, not to exercise supraconstitutional policymaking functions, was furnished by Hamilton. In Federalist No. 78 he stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments” —a note repeatedly sounded in the subsequent Ratification Conventions. The word “encroachments” posits prior legislative action; it excludes judicial policymaking initiatives on ground of legislative inaction. This is confirmed by Hamilton’s statement that the judiciary “can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” Chief Justice Marshall rephrased this in unmistakable terms: the Court was only to give “effect to the will of the legislature.” Hamilton rejected the argument that the courts were empowered “to construe the laws according to the spirit of the Constitution”; “penumbras formed by emanations” were not for him. What he meant is made quite clear by his rejection of the notion “that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature,” a statement, Louis Lusky notes, that “is hard to square with anticipation of judicial constitution-making power.” Finally, well aware that there existed considerable distrust of the proposal for judicial review, Hamilton sought to allay it in Federalist No. 81 by calling attention to the

important constitutional check which the power of instituting impeachments . . . would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There can never be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it.

These were no idle words, for both the English and the Founders regarded “usurpation” or subversion of the Constitution as the most heinous of impeachable offenses.

Today there is a tendency to reduce the Constitution to the status of a “symbol” of continuity and unity, but for the Founders it was a living reality. They swore the President to “preserve and defend the Constitution” because it represented a “bulwark” of their liberties, not a mere symbol. They indited a charter which delegates power to the “servants and agents of the people,” with “limits,” “checks and balances” to guard against its abuse. It bears witness to the creation of a government by consent of the sovereign people; “just government,” stated the Declaration of Independence, “is founded on the consent of the governed.” The terms of that consent are spelled out in the Constitution. “The people,” averred James Iredell, one of the ablest of the Founders, “have chosen to be governed under such and such principles. They have not chosen to be governed or promised to submit upon any other.” Substitution by the Court of its own value choices for those embodied in the Constitution violates the basic principle of government by consent of the governed. We must therefore reject, I submit, Charles Evans Hughes’ dictum that “the Constitution is what the Supreme Court says it is.” No power to revise the Constitution under the guise of “interpretation” was conferred on the Court; it does so only because the people have not grasped the reality—an unsafe foundation for power in a government by consent.

Too much discussion of constitutional law is centered on the Court’s decisions, with not enough regard for the text and history of the Constitution itself. We need to recall Justice Gibson’s great statement in 1825:

in questions of this sort, precedents ought to go for absolutely nothing. The Constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine . . . the judge who asserts [the right of judicial review] ought to be prepared to maintain it on the principles of the Constitution.

Like Chief Justice Burger and Justices Douglas and Frankfurter, I assert the right to look at the Constitution itself stripped of judicial incrustations, as the index of constitutional law and to affirm that the Supreme Court has no authority to substitute an “unwritten Constitution” for the written Constitution the Founders gave us and the people ratified.

Constitutionalism—limited government under the rule of law—was a paramount aim, not to be warped in order to achieve some predilection of any given bench. Solicitor General, later Justice, Robert H. Jackson, perceived, as Chief Justice Warren did not, that “the rule of law is in unsafe hands when courts cease to function as courts and become organs for control of policy.” Even a celebrant of the Warren era, Thurman Arnold, stated that without a continuing pursuit of “the ideal of the rule of law we would not have a civilized government.” But although he labeled it as of “tremendous importance,” he viewed it as “unattainable.” That is a romantic view which can be invoked to shirk the attainable. Effectuation of the Fourteenth Amendment’s decision to leave suffrage to the States, for example, was not “unattainable”; attainment was balked only by the Court’s drive to restructure the Constitution. For the Founders “the rule of law” was no “unattainable” ideal, but a basic imperative. And so it must remain. As Charles McIlwain wrote, “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.”

If this be arid legalism, it was shared by Washington, who stated in his Farewell Address:

If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But 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. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

It is because Americans continue to regard the Constitution as the bulwark of their liberties that they hold it in reverence. “ [E]very breach of the fundamental laws, though dictated by necessity,” said Hamilton, “impairs the sacred reverence which ought to be maintained in the breasts of the rulers towards the constitution.”

16

The Judiciary Was Excluded From Policymaking

The Council of Revision

It is a singular fact that the most significant single piece of evidence that the Framers excluded the judiciary from policymaking—rejection of their participation in a Council of Revision of legislation—went unnoticed by bench and bar until it was called to their attention by a political scientist, Benjamin F. Wright. Not the least remarkable aspect of judicial neglect of this history is that it should finally be invoked by Justices Black (1965) and Douglas (1968), oblivious to the shattering effect that it has on their own sweeping policymaking decisions.

Edmund Randolph proposed in the Convention that the President, “and a convenient number of the National Judiciary, ought to compose a council of revision” to examine every act of Congress and by its dissent to constitute a veto. When his fellow Virginian George Mason argued for judicial participation in the presidential veto, he recognized that judges already

could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished further use to be made of the Judges, of giving aid in preventing every improper law.

A similar differentiation was drawn by James Wilson:

Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet be not so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power [in order to “counteract” ] the improper views of the Legislature.

Despite the fact that the proposal had the support of Madison, and, therefore, of perhaps the most influential trio in the Convention, it was rejected for reasons that unmistakably spell out the exclusion of the judiciary from even a share in policymaking. Nathaniel Gorham saw no “advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” Elbridge Gerry, one of the most vigorous advocates of judicial review, opposed judicial participation in the Council:

It was quite foreign from the nature of ye office to make them judges of the policy of public measures . . . It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights and Interests. It was making the Expositors of the Laws, the Legislators which ought never to be done.

Charles Pinckney also “opposed the interference of the Judges in the Legislative business.” Rufus King joined in the opposition on the ground that as “the judges must interpret the Laws they ought not to be legislators.” Roger Sherman “disapproved of Judges meddling in politics and parties.” It is reasonable to infer that John Dickinson expressed a widely shared view in cautioning that “The Justiciary of Aragon . . . became by degrees the law-givers.” Plainly the Framers refused to make the judiciary “law-givers,” even to the extent of allowing them to share in the legislative making of law, let alone finally to decide on policy, an exclusive legislative function. They drew a line between the judicial reviewing function, that is, policing grants of power to insure that there were no encroachments beyond the grants, and legislative policymaking within those bounds. “Dangerous” and “destructive” as such policies might be, they were yet to be the exclusive province of the legislature. That is the inescapable inference from the facts, and, as will appear, it is fortified by still other historical facts.

Justice Douglas therefore stood on solid ground in stating that “when the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention.” In a remarkable example of compartmentalized thinking he went on to say, “we no longer exercise that kind of power,” just as he had earlier stated in Griswold v. Connecticut that the Court no longer acts as a “super legislature” —except in a case touching the “right of privacy.”

The history of the Council of Revision also serves to refute the view that judicial review is an expression of “distrust in popular government,” or, in Corwin’s oft-quoted phrase, having bet on democracy, the Framers then “covered their bet.” The “cover,” however, went no further than to prevent the legislature from “overleaping its bounds.” In fact the judiciary was excluded from halting “dangerous . . . destructive” legislation that was within those bounds. If the Framers “covered their bet,” they gave the last trump to Congress: judges who usurped power, for example, exercised a power withheld, said Hamilton, could be impeached. The Founders unequivocally rejected the judiciary as “guardians of the people”; they preferred, in Gerry’s words, to put their trust in “the Representatives of the people.” For judicial review was an innovation by no means universally admired; it was a departure from Blackstone’s “omnipotent parliament.” Having “smarted” under the “omnipotent power of the British parliament,” said James Iredell, we should “have been guilty of . . . the grossest folly” had we “established a despotic power among ourselves.” If this could be said of a legislature that could be turned out of office periodically, constitution-makers were even less ready to entrust unlimited power to an untried, unelected judiciary appointed for life.

The judicial role, it cannot be unduly emphasized, was limited to policing constitutional boundaries. James Wilson said it is necessary that Congress be “kept within prescribed bounds, by the interposition of the judicial department.” The courts, said Oliver Ellsworth, were a “check” if Congress should “overleap their limits,” “make a law which the Constitution does not authorize.” Judges, John Marshall stated in the Virginia Convention, could declare void “a law not warranted by any of the powers enumerated.” Hamilton stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments.” But “within those limits,” Madison said, there were “discretionary powers.” The exercise of that discretion, as we have seen, is for the branch to whom it has been confided. No one, so far as my search of the several convention records uncovered, looked to the Court for “leadership” in resolving problems that Congress, the President, or the States failed to solve. That view is a product of post-Warren euphoria. The courts were expected to “negative” or set aside unauthorized action, to “check” legislative excesses, to “restrain” Congress within its prescribed “limits,” to prevent the “usurpation” of power. The Court, in other words, was to act as nay-sayer, not as initiator of policy. Justice Stephen Field, supreme activist of his time, stated upon his retirement in 1897 that “This negative power, the power of resistance, is the only safety of a popular government.”

When, therefore, James Bradley Thayer and Learned Hand insisted that the role of the Court was to police the boundaries of constitutional grants, not to interfere with the exercise of legislative or executive discretion within those boundaries, they rested firmly on the authority of Hamilton and the preponderant view of the Founders. For 150 years the Court was content with this policing function; even the headstrong laissez-faire Court merely acted as a nay-sayer. It fell to the Warren Court to initiate policy when the legislative and executive failed to act, to take the lead in deciding what national policy ought to be. But the failure of Congress to exercise legislative power does not vest it in the Court.

Judicial “Discretion” in 1787

A common historicist fallacy is to import our twentieth-century conceptions into the minds of the Founders. At the adoption of the Constitution the notion that judges, for example, could make law as an instrument of social change was altogether alien to colonial thinking. “Instrumentalism” was yet to come. In a valuable essay Morton J. Horwitz observed that “fear of judicial discretion had long been part of colonial political rhetoric” and described the prevalent jural conceptions that combined to circumscribe the judicial function in the eighteenth century. There was first the fact that the common law rules—that is, judicially enunciated rules in the field of contracts and the like— “were conceived of as ‘ founded in principles, that are permanent, uniform and universal.’ ” Consequently, judges “conceived their role as merely that of discovering and applying preexisting legal rules” and derived “the rule of strict precedent” from such “preexisting standards discoverable by judges.” It followed that “judicial innovation itself was regarded as an impermissible exercise of will.” Horwitz cites the statement of Chief Justice Hutchinson of Massachusetts in 1767: “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.” Not long afterward Edward Gibbon wrote, “the discretion of the judge is the first engine of tyranny.” Horwitz concluded that “In eighteenth century America, common law rules were not regarded as instruments of social change; whatever legal change took place generally was brought about through legislation . . . American judges . . . almost never self-consciously employed the common law as a creative instrument for directing men’s energies towards social change.” Those who would rest an implied power of judges to act as such instruments of social change in the field of constitutional law have the burden of producing evidence that the Framers intended to depart from these norms. The exclusion of judges from the Council of Revision alone points to the contrary.

“Instrumentalism,” Horwitz shows, largely began to develop in the early nineteenth century—after the adoption of the Constitution; the examples he cites are all drawn from application of common law; not once is a judicial claim of power to alter a statute, let alone a constitution, asserted. To such negative implications may be added Hamilton’s statement in the very context of judicial review (Federalist No. 78), that the judicial role is one of “judgment” not “will,” that “to avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” What could be further from the current freewheeling conception of judicial review than these words by the foremost apologist for judicial review, designed to reassure opponents of ratification? Courts were not merely to be “bound down” by the “chains of the Constitution,” but by “strict rules and precedents” as well. Even when the tide began to turn toward instrumentalism, Judge William Cranch of the Circuit Court for the District of Columbia stated in his preface to 1 Cranch of the Supreme Court’s decisions (1803): “In a government which is emphatically stiled a government of laws, the least possible range ought to be left for the discretion of the judge.”

There are also contemporary judicial statements that display the circumspection with which the judges approached the novel task of judicial review. In one of the earliest State cases, Commonwealth v. Caton (1782), Edmund Pendleton, president of the highest Virginia court, stated: “how far this court . . . can go in declaring an act of the Legislature void, because it is repugnant to the Constitution, without exercising the Power of Legislation, from which they are restrained by the same Constitution? is a deep, important, and I will add, an awful question” —which, he rejoiced, he had no occasion to decide. Subsequently, Pendleton served as the presiding officer of the Virginia Ratification Convention, and it is unlikely that he translated the examples furnished by his colleagues, all addressed to checking encroachments on reserved powers, into unlimited power of review. No one remotely intimated that there would be judicial power to rewrite the Constitution. Nothing could have been better calculated to defeat ratification than a claim of judicial power that would leave the States altogether at the mercy of the federal courts; and such State jealousy was met by the Judiciary Act of 1789 which withheld from the inferior federal courts jurisdiction of cases “arising under” the Constitution.

Even with respect to the policing function, Justice James Iredell, who had been one of the most cogent advocates of judicial review, stated in 1798 that the power to declare a legislative act “void is of a delicate and awful nature, [hence] the Court will never resort to that authority but in a clear and urgent case.” In M’Culloch v. Maryland Chief Justice Marshall indicated that something like a “bold and plain usurpation to which the constitution gave no countenance” was required “to invoke the judicial power of annulment.” And in 1824 he averred that “judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature.” For Chief Judge Cardozo, Marshall’s statement was the expression “of an ideal,” which “Marshall’s own career” illustrates “is beyond the reach of human faculties to attain.” It would be more accurate to say, as Charles L. Black pointed out, that it reflected the colonists’ conception that “ Law is a body of existing and determinate rules,” which “ is to be ascertained ” by the judge by consulting “statutes, precedents and the rest,” and that “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.” So Marshall understood the judicial role: “Courts are mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law ” —that is, by the legislators or the people gathered in Convention.

Marshall, it needs always to be remembered, had fought on behalf of judicial review in the Virginia Ratification Convention and was well aware of the views entertained by the Founders. His 1824 statement confirms that among the presuppositions the Founders brought to the several conventions was a bias against judicial discretion and policymaking. There is no evidence whatsoever that these presuppositions were thrown overboard in the creation of the judiciary. To the contrary, the established presumption is that the Founders created a judiciary in familiar terms, except insofar as they envisaged its “policing” function. Judicial alteration of the fundamental law ran counter to their belief in a “fixed Constitution”; it was altogether outside their contemplation, as Hamilton made plain. Justice Frankfurter, therefore, was close to the mark in stating that the Framers were on guard “against the self-will of the courts.”

Supplementary Note on Exclusion of the Judiciary

17

The Turnabout of the Libertarians

Why did the libertarians, after decades of berating the Court for reading its laissez-faire predilections into the Constitution and imposing its own economic policy on the nation, turn around and defend it for pursuing the same course with respect to libertarian values? One may view the turnabout merely as another illustration of “whose ox is gored”; but perhaps the explanation lies deeper. Arthur Sutherland explained that between 1920 and 1940 academe “viewed the federal judiciary with dismay” and was “deeply imbued with faith in majorities.” A “change of political theory developed” between 1938 and 1948, deriving from “Hitler’s popularity among the German people, public support of the Un-American Activities Committee and McCarthy Hearings” and so on, for “votaries of unreviewed majoritarianism” suddenly realized that “unrestricted majorities could be as tyrannical as wicked oligarchs . . . We could not say in plain terms that occasionally we have to select wise and able people and give them the constitutional function of countering the democratic process.” Looking back in 1976 and writing with equally praiseworthy candor, Archibald Cox, who had played a major role as Solicitor General in persuading the Supreme Court to adopt some of the epochal decisions of the 1960s, stated:

By the 1950s the political atmosphere had changed. The legislative process, even at its best, became resistant to libertarian, humanitarian, and egalitarian impulses. At worst, the legislatures became repressive, in the libertarian view, because of the Cold War, increased crime, the fear of social disorder, and perhaps, the strength of established economic and political power . . . [I]n the new era these impulses were not shared so strongly and widely as to realize themselves through legislation. They came to be felt after the early 1950s by a majority of the Supreme Court Justices, perhaps by the fate which puts one man upon the Court rather than another, perhaps because the impulses were felt more strongly in the world of the highly educated.

Mark that these “impulses” were “not shared so strongly and widely as to realize themselves through legislation,” that they “were felt more strongly in the world of the highly educated,” and were realized through the “fate which puts one man upon the Court rather than another.” Because for the nonce the majority of the Court shared the predilections of the “highly educated,” the latter looked kindly upon the Court’s imposition of its will upon the people. But, as Myres McDougal wrote some years ago, “Government by a self-designated elite—like that of benevolent despotism or Plato’s philosopher kings—may be a good form of government for some, but it is not the American way.” No intellectual but can from time to time be disappointed by the vox populi, whether it be by the choices it makes—Richard Nixon, for example—or its imperviousness to the cultural values intellectuals cherish. In some it leads to a sense of alienation from the commonality; but, as Winston Churchill observed, the alternatives to democracy are even worse. With Lincoln, I cling to faith in the ultimate good sense of the people; I cannot subscribe to the theory that America needs a savior, whether in the shape of a President or of nine—oftimes only five—Platonic Guardians.

It does not dispose of the uncomfortable historical facts to be told that “the dead hand of the past need not and should not be binding,” that the Founders “should not rule us from their graves.” To thrust aside the dead hand of the Framers is to thrust aside the Constitution. The argument that new meanings may be given to words employed by the Framers aborts their design; it reduces the Constitution to an empty shell into which each shifting judicial majority pours its own preferences. It is no answer to argue, as did Charles Curtis, “we cannot have our government run as if it were stuck in the end of the eighteenth century when we are in the middle of the twentieth,” because, as Willard Hurst replied, “the real issue is who is to make the policy choices in the twentieth century: judges or the combination of legislature and electorate that makes constitutional amendments.” Since, for example, it would have been impossible to secure a desegregation amendment, the libertarians premise that submission of such an issue to the people by amendment is at all costs to be avoided. McDougal and Lans genteelly explained that because “the process of amendment is politically difficult, other modes of change have emerged.” In less opaque terms, the cumbersomeness of the process authorizes the servants of the people informally to amend the Constitution without consulting them! That, however, collides head-on with Hamilton’s assurance in the midst of his defense of judicial review in Federalist No. 78:

Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

Neither Frankfurter’s finely tuned antennae for ascertaining the inarticulate sentiments of the people, nor “even knowledge of their sentiments, can warrant” a “departure from” the Constitution by the Justices. Change, thus laid down the leading expositor of judicial review, must come via amendment. The reason was put in a nutshell by Bruce Claggett. The Constitution requires that:

changes in our fundamental law be made only when and if they have been subjected to the degree of deliberation and commanded the preponderance of assent, involved in adoption and ratification of a constitutional amendment . . . [T]he requirement was agreed upon (what legitimacy has our scheme of government had except as a compact?) and unilateral change involves usurpation, at least as much when effected by a court as by a majority in Congress. If one thinks the more-than-simple majorities required for constitutional change are too onerous, one disagrees with the Constitution itself.

It is not as if the difficulties of amendment were unperceived by the Founders. Patrick Henry argued in the Virginia Ratification Convention that “four of the smallest states, that do not collectively contain one tenth part of the population . . . may obstruct the most salutary . . . amendments.” But James Iredell expressed the prevailing view: the Constitution “can be altered with as much regularity, and as little confusion, as any Act of Assembly; not, indeed, quite so easily, which would be extremely impolitic . . . so that alterations can without difficulty be made, agreeable to the general sense of the people.” In Massachusetts, Charles Jarvis said, “we shall have in this article an adequate provision for all purposes of political reformation.” In the First Congress, Elbridge Gerry, one of the important Framers and erstwhile President of the Continental Congress, stated: “The people have” directed a “particular mode of making amendments, which we are not at liberty to depart from . . . Such a power [to alter] would render the most important clause of the Constitution nugatory.” In other words, Article V constitutes the exclusive medium of change, under the long-standing maxim that to name a particular mode is to exclude all others. And, as Gerry stated, “an attempt to amend” the Constitution in “any other way” but by Article V “may be a high crime and misdemeanor,” that is, an impeachable offense for subversion of the Constitution. Because arguments to the contrary are couched obliquely—for example, “each generation of citizens must in a very real sense interpret the words of the Framers to create its own Constitution” —one is apt to overlook that these are arguments for “change” outside Article V, by the judicial “interpreters” rather than the people. Libertarians, in short, would read the exclusivity of Article V out of the Constitution and cede to the Court a power that is to be exercised only by the people, and then only in accordance with its terms. The “shackles” from which libertarians would free us had the sanction of the people expressed through their State conventions, whereas judicial revision represents only the will of judges who would circumvent submission of a change to the people.

The Court itself, however, has not been overeager to acknowledge the crown academe would press upon its brow; it has never in terms asserted a right to strike the shackles of the past. Though it has often repudiated the design of the Framers, it has done so by indirection, by resort to “lawyer’s history,” to far-fetched theorizing in search of an anchor in the Constitution. Robert Bork justly comments that “The Supreme Court regularly insists that its results . . . do not spring from the mere will of the Justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution . . . Value choices are attributed to the Founding Fathers, not to the Court.” Let Chief Justice Warren himself furnish an example: “The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital living principles that authorize and limit governmental power in our Nation. They are the rules of government.” As Bork observes, “The way an institution advertises tells you what it thinks its customers demand.” Were the issue put squarely to the American people whether they would elect to have the Court strike the “shackles” of the past or to live under the constraints of the Constitution, I doubt not that they would resoundingly prefer the “idiosyncratic purposes of the Framers” to those of the Justices.

Some have sought a rationale in common law affirmations. Alexander Bickel referred to Holmes’ statement that it is “revolting” to adhere to a rule of law, the grounds of which “have vanished long since.” Holmes wrote in the frame of the common law, where the courts have long been entrusted with the task of shaping the law of contracts and the like. If the results were at times displeasing to Parliament, they could be overruled in easy fashion by an act of Parliament. Decisions of constitutional question cannot, however, be overruled by the legislature; resort must be had to the “cumbersome” amendment process—it took eighteen years to overrule the income tax decision! Then, too, if the common law is to serve as a model, it needs to be remembered that at the adoption of the Constitution judicial discretion was feared and confined by strict adherence to precedent as a curb on the “impermissible exercise of will,” a course far removed from the present Court’s habit of leaving “precedents in a shambles.” Nevertheless, a free and easy judicial approach to constitutional “adaptation” derived in no small part from the freedom American courts assumed in the early nineteenth century to reshape the common law for the benefit of an emerging entreprenurial system. Witting or unwitting, it was a carryover from a practice so plainly described by Chancellor Kent in extolling his own role in the shaping of American equity jurisdiction: “I might once & a while be embarrassed by a technical rule, but I most always found principles suited to my views of the case.” This remarkable confession that law was to be manipulated to achieve a desired result— “my views of the case” —might perhaps be extenuated in an area where courts had been left to make the initial choices. But no such authority was conferred in the policing of constitutional boundaries. For, as Judge J. Skelly Wright observed (in an article devoted to castigating the “self-appointed scholastic mandarans” who criticized the Warren Court): “Constitutional choices are in fact different from ordinary decisions . . . the most important value choices have already been made by the framers of the Constitution.” Judicial “value choices,” he continued, “are to be made only within the parameters” of those choices. If, as Judge Wright declared, even “imprecise” constitutional guarantees “provide a direction, a goal,” and “rule out many alternative directions, goals,” all the more does the exclusion of suffrage from the Fourteenth Amendment, for example, leave no room for judicial choices such as “one man, one vote.”

“Instrumentalism” describes the approach derived from early-nineteenth-century common law practice, a view, Hans Linde points out, later expressed in the “realist canon” that new decisions are to “be measured by instrumental success in effecting a socially desirable outcome.” But at the adoption of the Constitution judges were considered to be without discretion to alter the law. And “desired” by whom? Oft-times the “sense of the community” has turned on the opinion of a swing man, for example, Justice Owen Roberts, whose change of position in 1937 on minimum wages was perhaps not entirely coincidental. When the Court splits 5 to 4 it evidences a deep cleavage as to the “desired” result. Frequently an “outcome” that is stubbornly resisted by a dominant majority of the Court is quickly adopted upon the retirement of one or more Justices when their replacements transform the dissenting minority into a new majority. On the heels of a decision that declared the greenback law unconstitutional, President Grant “carefully chose men who he had reason to believe would uphold the Legal Tender Acts.” His hopes were gratified by a 5-to-4 reversal. Such swings of the pendulum are a commonplace of Supreme Court history: constitutional law is given a “new look” when a Warren succeeds a Vinson, a Goldberg succeeds a Frankfurter. The changes can be fateful. Vinson “held fast to the position that the judiciary should not be an aggressive instrument for invalidating school segregation.” He was succeeded in the midst of the desegregation case by Warren, and Rodell tells us he learned from law clerks that “in conference at least three Justices came close to dissenting until their new Chief put on all the pressure he could wield.” A similar “major turning point” marked the succession of Frankfurter by Goldberg. Citations can be multiplied. Should what is “socially desirable” for a nation of 200 million people turn on such accidents? Should grave national policy be the sport of circumstance? Justices themselves have inveighed against the creation of novel constitutional doctrine on so fortuitous a base. These shifts in opinion underscore Justice Jackson’s aphorism: “we are not final because we are infallible, but we are infallible only because we are final.” Just as “perception of community standards varies” from Justice to Justice, so no agreement on such matters is to be found in academe, for law professors also are not agreed upon what results are “good.” Were there such agreement, the judgment of cloistered scholars is no substitute for the will of the people.

Even when the Court is unanimous, it is not peculiarly fitted to be a thermometer of community feeling, as the Framers emphasized during their discussion of judicial participation in the Council of Revision. The Sixteenth Amendment attests that the Court did not represent the sense of the community when it declared the income tax unconstitutional. Its recent decision that the age-old death penalty for murder constitutes “cruel and unusual punishment” quite plainly is opposed to popular sentiment. So, too, the procedural safeguards required of States for criminals run counter to public opinion. Some consider that the Court’s rulings on obscenity do not reflect popular opinion; and in the result the nation is deluged by a flood of blatant pornography and filth that the people are powerless to deal with. Even desegregation, an undeniably noble goal, did not have and does not have the consent of the nation. The Report of the National Advisory Commission on Civil Disorders found “pervasive racism” across the country, as is evidenced by continued resistance in the North to busing. An admirer of Brown v. Board of Education, Anthony Lewis, ruefully wrote in May 1974 that the issues of race and poverty are “much more complicated, more intractable than we imagined.” Soberly appraising the situation in the Fall of 1975 Derrick Bell, a black scholar, stated that “Today, opposition to desegregation is, if anything, greater than it was in 1954.” He referred to “nationwide opposition to meaningful implementation of school desegregation,” saying, “it should now be clear that Brown can [not] integrate our schools.” The “real sickness is that our society in all its manifestations is geared to the manifestations of white superiority.” Bell’s careful bill of particulars raises large doubts whether the disease is curable by judicial fiat. This is not to deny that the side-effects of Brown in other areas of desegregation have been beneficial in the extreme. Here our focus is on the absence of a national consensus, the fact that the desegregation decree did not and still does not represent the “sense of the community,” but is rather a prime example of how the Justices imposed their will upon the people. Justice Black, who was ready enough to impose his own will, rightly declared that there is no “gadget which the Court can use to determine what traditions are rooted in the conscience of the people.”

If the argument of necessity can be made for desegregation because segregation is a reproach to our society, what need was there for the Court’s decision that the centuries-old requirement of trial by a jury of 12 was not binding on the present? No social urgency called for judicial tampering with what had been a central concern of the Founders. What urgent necessity dictated overthrow of the death penalty to which more than half of the States are attached? Such decisions confirm Hamilton’s prescient caution in Federalist No. 25: “every breach of the fundamental laws, though dictated by necessity, . . . forms a precedent for other breaches where the same plea of necessity does not exist at all.”

For a realistic and unusually candid disclosure of the uses of instrumentalism we are indebted to a member of the Nixon administration, Donald E. Santarelli, an Associate Deputy Attorney General, who described himself in April 1973 as in charge of “an idea shop,” which “work[s] on concepts” and “plans” for the President. He considered that the “separation of powers is obsolete,” that the

Constitution is flexible . . . Your point of view depends on whether you’re winning. The constitution isn’t the real issue in this; it is how you want to run the country, and achieve national goals. The language of the Constitution is not at issue. It is what you can interpret it to mean in the light of modern needs. In talking about a “Constitutional crisis” we are not grappling with the real needs of running the country but are using the issues for the self-serving purpose of striking a new balance of power . . . Today, the whole Constitution is up for grabs.

To my knowledge, the Nixon administration did not repudiate this interview, and it was tacitly confirmed by Richard Nixon himself. As said by Leonard Levy, “Nixon’s search for conservative strict constructionists has been more than a candid attempt to alter the trend of decisions, it is an acknowledgment that at the very apex of our government of laws and not of men, the men who interpret the laws, rather than the laws themselves, are the decisive factors. It is difficult to deny that “a result-oriented adjudication . . . is a corruption of the judicial process, that leaves too far behind the rule of law enforced by impersonal and objective judges.”

Instrumentalism, in short, substitutes the will of the Justices for that of the people. That requires more than jurisprudential justification, more than a response to the needs of a changing world; it calls for the informed “consent of the governed.” Although Justice Harlan, in measuring the impact of the Fourteenth Amendment on voting, stated that “the amending process is not the only way in which constitutional understanding alters with time . . . as conditions change the Constitution changes as well,” he went on to say:

when the Court gives the language of the Constitution an unforeseen application, it does so, whether explicitly or implicitly, in the name of some underlying purpose of the Framers . . . [T]he federal judiciary . . . has no inherent general authority to establish norms for the rest of society . . . When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect.

In terms of this discussion, the limited goals of the Fourteenth Amendment were explained to the people; they gave their consent in conformity with Article V, and if their decision needs to be changed, let it be, as President Washington counseled, by action in the same constitutional manner: let the people decide.

Instead of searching for the “sense of community,” some would have the Court serve as a “national conscience,” as “an educational body . . . teachers in a vital national seminar.” That notion, Wallace Mendelson stated, “sounds strange in the mouths of its liberal sponsors. By their standards, most of the Court’s teaching in this area has been erroneous” —let alone that the Court has not been content merely to teach but has imposed its teachings on the nation. There is no need to dwell on the fact that judges of high stature—Black, Frankfurter, Learned Hand, and Robert Patterson—have rejected the roles of preacher, teacher, crusader; instead, let us examine how this “conscience” has served the nation. Careful scholars confirm Robert H. Jackson’s stricture: “time has proved that [the Court’s] judgment was wrong on most of the outstanding issues upon which it has chosen to challenge the popular branches.” Consider first the Japanese relocation case, which stands as a dreadful precedent for racial concentration camps; the Court failed 70,000 Japanese at the very moment they stood most in need of protection against West Coast hysteria. From the very outset the Court gutted the minimal protection afforded the Negro by the Fourteenth Amendment. By a series of decisions, Leonard Levy said, “the Court crippled and voided most of the comprehensive program for protecting the civil rights of Negroes after the Civil War. These decisions paralyzed or supplanted legislative and community action and played a crucial role in destroying public opinion that favored meeting the challenge of the Negro problem.” The record, said Henry Steele Commager, with respect to the pre-1937 Court,

discloses not a single case, in a century and a half, where the Supreme Court has protected freedom of speech, press . . . against Congressional attack. It reveals no instance . . . where the Court has intervened on behalf of the underprivileged—the Negro, the alien, women, children, workers, tenant farmers. It reveals, on the contrary, that the Court has effectively intervened, again and again, to defeat Congressional attempts to free the slave, to guarantee civil rights to Negroes, to protect workingmen, to outlaw child labor, to assist hard-pressed farmers, and to democratize the tax system.

So wretched a performance, I suggest, inspires little confidence in the Court as the “national conscience.” In their rapture over the Warren Court’s adoption of their predilections, the libertarians tend to overlook that “A single generation’s experience with judicial review . . . does not wipe out the experience of a century and a half.” Already there are anguished outcries that the Burger Court is acting “against the law.” But the name of the game is “Two Can Play”; once the legitimacy of judicial policymaking is recognized, new appointees may properly carry out the policies which they were appointed to effectuate.

What the “national conscience” is at any given moment depends on shifting personnel and the nature of the appointees. The replacement of one or two Justices may result in a complete reversal of the prevailing conscience, as when Chief Justice Warren succeeded Chief Justice Vinson. How can we put our trust in a conscience that changes color with every judicial succession, itself subject to shifting political winds?

The conscience of the nation is a tender thing, and one may well shrink from entrusting it to some of the incumbents who have served over the years. Shall we prefer the Four Horsemen to Brandeis and Stone as keepers of the conscience? Learned Hand believed that judges “must be expected to express the points of view of the class to which they belong rather than that of the whole community.” Justice Field’s close ties with the railroad barons of the West Coast furnishes one example, Chief Justice Taft another. Although Taft confessed to feeling “less acute and more confused” as he grew older, he felt duty-bound “to stay on the Court in order to prevent the Bolsheviki from getting control.” Presumably Brandeis was one of the “Bolsheviki”; and Taft opposed the appointments of Cardozo and Learned Hand because they might “herd” with Brandeis. Justice Brewer’s overheated warnings against the “black flag of anarchism . . . and the red flag of socialism” long furnished the rallying cry of the embattled Court, which felt duty-bound to save “society from itself.”

Now it was the turn of the libertarians to look to the Court as the savior of democracy. Edmond Cahn considered that it was incumbent upon a judge to shoulder his moral responsibility rather than to defer to community standards, preferring the “wisdom” of such a judge as Learned Hand. But Learned Hand in his wisdom wanted Platonic Guardians no more than did Elbridge Gerry 173 years earlier. It is disheartening to go over the roster of “wise and able men” to whom Arthur Sutherland would confide “the constitutional function of countering the democratic process.” Rodell justly refers to Truman’s “inept cronies”; the revulsion not long since against some proposed Nixon appointments, including an ineffable trio who shall here be nameless, illustrates that the nation’s salvation is dependent upon the “luck of the draw.” Anthony Lewis observed that “the run of Supreme Court appointments in our history has not been particularly distinguished.” Levy more bluntly stated that they have run from “mediocre to competent” —with a few distinguished exceptions such as Holmes and Brandeis, who often were relegated to dissent. Learned Hand, one of the wisest and most profound jurists, disclaimed any knowledge of how to choose Platonic Guardians. A succession of presidents have demonstrated that they know still less.

One who studies the course of events since the advent of the Warren era is struck by how short is the memory of man. One hundred years of judicial misrule have been wiped out by a fifteen-year interlude during which libertarian aspirations at length were gratified. Now the intellectuals eagerly embraced the Court as a “law-giver,” forgetful of Tocqueville’s comment on the then prevailing respect for the judiciary that imprudent appointments might bring forth evil fruit. Do we need Hitler or Indira Gandhi to remind us that the lesson of history is: put not your trust in saviors? The enduring strength of our institutions is not a little due to our veneration of the Constitution as the bulwark of our liberties. We need to take to heart a statement made by Jefferson when he was President and had been urged to take a dubiously broad view of his own powers:

I had rather ask for an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. If [power is boundless] then we have no Constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.

For him those definitions were to be read in light of the explanations made to those who ratified the Constitution.

18

Liberals and the Burger Court

Lamentations over the “regressive” course of the Burger Court in the field of civil liberties fill the air. The New York Times, for example, stated: “There was a time not so far distant when the United States Supreme Court was the staunch and ultimate defender of civil rights and liberties . . . [T]he Court seems clearly to be beating a path of retreat from its once proud forward position in this delicate and difficult area of the relationship between citizen and state.” Undoubtedly the Court is tilting the scales from what many regarded as excessive tenderness toward criminals; it is haltingly attempting to return some criminal administration to the States. But, as Leonard Levy points out, “That the Nixon Court favored law-enforcement values” should come as “no surprise. Burger, Blackmun, Powell and Rehnquist got their seats on the bench because of their supposed or known lack of sympathy for the rights of the criminally accused.” This, however, is only the latest of what G. E. White felicitously described as a “series of minor court-packing plans.” Now that a new set of predilections is displacing their own, libertarians who rejoiced in the “creative” role of the “wise and able men” are despondent. But the “revolutionary” changes in the criminal process by the Warren Court had not won the assent of the people. And it cannot be gainsaid that the Burger Court rulings in this area are closer to the original design than were those of the Warren Court. For, as we have seen, the Bill of Rights was not made applicable to the States, either by its framers or in the 39th Congress.

Not that the Burger Court is abjuring lawmaking; its “six-man jury” decision furnished evidence to the contrary. It has not held that the Court has no business regulating State death penalties because the “cruel and unusual punishment” phrase of the Bill of Rights has no application to the States, or because, as Chief Justices Warren and Burger and Justice Black stated, it did not encompass a death penalty for murder. Instead, in Gregg v. Georgia and companion cases it has weighed whether a death penalty is or is not a “cruel and unusual punishment” on an apothecary’s scale. It would be inopportune to show in detail that the “strict constructionist” Burger Court clings as firmly to judicial governance as its predecessor. Archibald Cox observed that “the new Justices seem not to shrink from using constitutional law as an instrument of reform when an existing rule offends their preferences.”

It is more to the purpose to examine how the Burger Court has thrown “liberal” analysis into disarray, as Leonard Levy’s recent book Against the Law: The Nixon Court illustrates. Levy’s earlier studies give evidence of incisive analysis and a richly stocked mind; but Against the Law leaves one with a baffling sense of ambivalence, of seeming unawareness that his views are often incongruent. In what follows I am not to be taken as a partisan of the Burger Court, but rather as seeking to test Levy’s theories by his criticism of that Court. By way of background let us begin with his sympathetic introduction to a group of articles on the Warren Court. The phrases of the Constitution are “Delphic”; the Court

is indeed, and cannot help but be [a superlegislature]. The reason is simply that the Constitution, as Jefferson said in exasperation, is “merely a thing of wax” which the Court “may twist and shape into any form they please . . .” Judge Learned Hand observed that . . . “The words [a judge] must construe are empty vessels into which he can pour nearly anything he will.” Legal erudition, legal rules, legal logic, legal precedents do not decide cases involving the ambiguous clauses of the Constitution . . . Inevitably, then, our constitutional law is subjective in character and to a great degree result oriented.

Levy continues in this strain in his commentary on the Burger Court: “From the beginning . . . the Court . . . read the Constitution to mean whatever it wanted. Despite pretenses to the contrary, the Court could do no other, for . . . American constitutional law exists in the collective eye of those who happen at any moment in time to dominate the Court.” If this be so, how can the decisions of the “Nixon Court” be “Against the Law”? And “why,” to borrow Levy’s adoption of Justice Black’s rhetorical question, “have a written Constitution at all if its interpreters are left only to the admonitions of their own consciences?” Is this reconcilable with Levy’s view that the Court “is and must be for all practical purposes a ‘continuous constitutional convention’ in the sense that it must keep updating the original charter . . . it simply cannot decide cases on the basis of what the Constitution says”?

Given that constitutional law is “inevitably . . . result-oriented,” one can understand Levy’s view that any decision other than Brown v. Board of Education “would have been unthinkable, unbearable, unspeakable” (though not to Chief Justice Vinson and Justices Reed and Jackson), that “strict constructionism means reversing the decision of Appomatox . . . a return to . . . Jim Crow.” That is not a return that I should recommend, but is this not the very “reasoning backwards” so vigorously condemned by Levy: “In constitutional cases . . . the judge who first chooses what the outcome should be and then reasons backwards to apply a rationalization replete with rules and precedents has betrayed his calling; he has decided on the basis of prejudice and prejudgment, and has made constitutional law little more than the embodiment of his policy preferences, reflecting his subjective predilections.” That, however, is “inevitable” once it is postulated that “our constitutional law is subjective in character and to a great degree result-oriented.” Nevertheless Levy states that “result-oriented constitutional adjudication . . . is a corruption of the judicial process that leaves too far behind the rule of law enforced by impersonal or objective judges.” He himself avers, however, “We may not want judges who start with the answer rather than the problem . . . but as long as mere mortals sit on the Court and must construe that majestic but muddy Constitution, we will rarely get any other kind.” Yet he emphasizes in Against the Law that “result-oriented jurisprudence . . . [is a] judicial monstrosity that gains nothing when the Court reaches a just result merely because of its identification with underdog litigants.”

Now unless I am sadly at sea, it seems to me that Levy is riding off in opposite directions. He cannot at one and the same time maintain that the words of the Constitution “are empty vessels into which [a judge] can pour nearly anything he will” and then insist that the “ purpose of the Sixth Amendment was to bind the federal government to the system of trial by jury that was traditional and familiar. ” On that analysis the words “trial by jury” are not “empty vessels” but have a fixed content. So, too, he has been unable to decide whether a result-oriented jurisprudence is “inevitable” or a “monstrosity.” It may be one or the other, but it cannot be both. The core of Levy’s complaint, unless I grossly misconceive his concluding remarks, seems to be against the Burger Court’s craftsmanship, its failure “to weigh criticism,” “to develop carefully reasoned judgments,” “to make bad law in the sense of being badly crafted.” But, as he recognizes, “experts will doubtless disagree” about “the Nixon Court’s craftsmanship” as “they have about the Warren Court’s craftsmanship.” Whether it be good or bad, however, is of no moment in a jurisprudence that is “inevitably . . . result-oriented.” The result, not the reasoning, is what counts.

Some of Levy’s severest strictures are reserved for the Burger Court’s treatment of precedents: one new reading “left its precedents in shambles”; the Court “obliterates them.” Yet, he considers that “precedents do not decide cases.” And in disregard of precedents the Burger Court yields the palm to its predecessor. “The list of opinions destroyed by the Warren Court,” Philip Kurland observed, “reads like a table of contents from an old constitutional law casebook.” It is difficult to agree that Chief Justice Burger “displayed an egregious contempt for precedents” when he rejected the “thesis that what the Court said lately controls over the Constitution.” He may be indulged in returning to older precedents that the Warren Court had only recently discarded, particularly since, as Justice Henry Baldwin early observed, “There is no more certainty that a last opinion is more correct than the first.” Let Levy sum up:

In all these cases . . . the Burger Court no less than the Warren Court displayed an audacious disregard for and circumvention of precedents, clearly revealing its own values and policy choices. Despite pretenses to the contrary, it could do no other for as beauty exists in the eye of the beholder, so American constitutional law exists in the collective eye of those who happen at any moment to dominate the Supreme Court.

Such are the fruits of a value-oriented system which makes of “constitutional [case] law” a veritable whirligig. No rhetoric can disguise that this is but the kadi administering justice under a tree.

Where Levy entertained misgivings about judicial review but swallowed them, Charles Black was an uncurbed partisan of the Warren Court, a panegyrist of Justice Black who sought to justify the policymaking ways of the Court to man. Now Black has come forth with a semi-recantation, taking on himself some of the blame for encouraging a result-focused jurisprudence. The “fresh raw wound” caused by the Burger Court’s death penalty cases of July 2, 1976, set him to “wondering whether we liberals . . . may not be in part to blame for a . . . quite evident trend toward the point of view that reason doesn’t matter much, and can be brushed aside, if only the result is thought desirable.” One should not be captious with a repentant sinner, but Black’s semi-recantation contains the seeds of further error; and, as one who wrote in 1942 that the test of constitutionality cannot be the embodiment of predilections which I share, I may be forgiven for seeking to lay those errors bare.

There is first Black’s repeated appeal to “reason.” The recent death-penalty cases moved him to ask “whether we do well to entrust this Court with the job of a rational defense of ordered liberty—and even whether we did well to refrain from talking too loud about it when the same [Burger] Court without adequate reason given, decided the abortion case as it did.” Like Professor Black, I too am a devotee of reason and well recall the richly deserved criticisms of the Warren Court, couched in terms of deplorable “craftsmanship” —without a peep from Black. He himself recognizes that “painstaking reason often leads to different results in different minds” and that “no important result is dictated wholly by reason; there must lie at its heart a normative judgment not reachable by reason alone.” In other words, “reason” starts from premises that another may reject. Chief Justice Warren proceeded in Reynolds v. Sims (reapportionment) from the Declaration of Independence and the Gettysburg Address, notwithstanding that the framers of the Fourteenth Amendment found that the Declaration had not deprived the States of control over suffrage, and that Lincoln saw no prospect of Negro “equality.” And he totally ignored the incontestable evidence that Justice Harlan spread before the Court that the framers excluded suffrage from the scope of the Amendment. Even now Black does not ask whether the Justices may displace the framers’ value-choices with their own “normative judgments.”

The frailty of “reason” is further illustrated by Black himself; he regards Brown v. Board of Education “as nearly syllogistic as a real law case can be. The Fourteenth Amendment, in the clear light of its history . . . forbade all discrimination against black people.” He may be indulged for his inability to abandon a view to which he was committed as a member of the NAACP legal counsel in that case; he “threw all his passionate brilliance into the NAACP effort.” But, to the astonishment of Kelly, Graham, and others, the “clear” neoabolitionist history they pressed on the court was branded by Chief Justice Warren—anxious though he was to rule in favor of desegregation—as “inconclusive.” How can we rely on “reason” that converts the very limited and “clear” purposes of the framers into a ban on “all” discrimination?

Black recalls that he “expressed some doubt about the application of the equal protection clause to legislative apportionment, in Baker v. Carr, but, looking back, I know that I muted that doubt.” Came Oregon v. Mitchell, and Professor Black perceived “that the plurality opinion of four was plainly wrong, and the deciding concurrence of Mr. Justice Black so egregiously wrong as to be . . . all but incredible.” In justice to Justice Black, it deserves to be repeated that he recanted (though without so stating) with respect to apportionment for State offices, saying that he “agreed” with Justice Harlan’s demonstration that control over suffrage was deliberately left by the framers with the States. Of this Professor Black says not a word. One of the remarkable aspects of his address in fact is that not once does he advert to the historical limitations on judicial policymaking with respect to the Bill of Rights, segregation, and reapportionment set forth by Fairman, Bickel, and Harlan; he puts his trust in “reason.” Because reason can lead in different directions, however, the all-but-incontestable proof that suffrage was left by the framers to the States, offers a safer, surer mooring.

But to resume Professor Black’s threnody; looking back to the Warren Court’s extension of the school desegregation case “to other forms of segregation, involving neither schools nor children” in cases “decided per curiam and without opinion,” Black now wishes that he “had fullthroatedly joined Herbert Wechsler in his protest against this procedure, which was so self-evidently wrong that one is ashamed to have glossed it over just because the result was what one wanted and thought right.” This was more than a departure from a lawyer’s “commitment . . . to reason”; it represents a departure from standards that led the people to place their trust in scholars. Like scientists, constitutional scholars, as Thomas Huxley said upwards of a century ago, should “respect nothing but evidence, and . . . believe that their highest duty lies in submitting to it, however it may jar against their inclinations.” That duty carries with it, I submit, publication, not suppression, of scholarly findings.

Oregon v. Mitchell induced some soul-searching in Black: “What if all this is turned on us? If real reason goes out of fashion, can we be sure it will not happen? . . . Have we not, after all, asked for it?” It is not unfair to conclude, I trust, that Black’s jeremiad illustrates once more the “whose ox is gored” adage. He held his peace when “the result was what one wanted and thought right,” but now protests against a departure from “reason” when he is “heartbroken that the legal killing of people is to be resumed.” Not a word about the manifest preference of the people to the contrary, about the formidable evidence that the Fourteenth Amendment did not make the Bill of Rights applicable to the States, that the death penalty was not deemed a “cruel and unusual punishment” by the Framers—a view to which the Supreme Court adhered until 1972. Instead Black apparently remains faithful to a judicial power to revise the Constitution—if only it be clothed in “reason.”

19

The Legitimacy of Judicial Review

The most fundamental question of all, as Thomas Grey rightly stated, is “the legitimacy of judicial review itself,” a question that goes beyond the scope of the power to its very existence, however limited. After remarking, “Whether this enormous power can fairly be deduced from the language of the Constitution, and whether the framers of that instrument intended to confer it on the Justices, has been the subject of vast learned controversy . . . unlikely ever to be resolved,” Joseph Bishop reassuringly stated, “No matter; the power exists.” It is true that the power has long been exercised, but whether it “exists” —has constitutional warrant—is something else again. Edmond Cahn, however, opined that “it is too late to reopen the question of whether the Court ought to determine constitutional issues.” On the contrary, it is never too late to challenge the usurpation of power; one gains no title by prescription against the government, still less against the sovereign people. Power reserved to the people by the Tenth Amendment cannot be taken over by “squatter sovereignty.” “It will not be denied,” Chief Justice Marshall stated, “that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this.” In Erie Ry. Co. v. Tompkins the Court, per Justice Brandeis, branded its own course of conduct stretching over one hundred years as “unconstitutional,” in a situation not nearly as important as the “enormous power” to impose the judicial will upon the nation. Usurpation—the exercise of power not granted—is not legitimated by repetition. The people, as John Adams inscribed in the Massachusetts Constitution of 1780, are ever entitled to demand of their magistrates an “exact and constant observance” of the principles of the Constitution, above all, to exercise no powers not granted. We may not, therefore, shut our eyes to the issue of legitimacy.

In the course of a penetrating summary of the issues posed by judicial review, Leonard Levy states: “The charges of usurpation most certainly cannot be proved; it is without merit. The difficulty is that the legitimacy of judicial review in terms of the original intent cannot be proved either.” This attempt at even-handed analysis overlooks the fact that under a Constitution which delegates and limits power, the burden is on a claimant to point to the source of his power—failing which, it is a usurpation. After dwelling on the materials which led him to conclude that the framers left a “very incomplete and extraordinarily ambiguous record,” Levy comments on Charles Black’s argument that judicial review has been “legitimized by popular acquiescence, and therefore popular approval, over the course of American history.” In Black’s own words, “the people have, precisely through the political process, given the stamp of approval in the only way they could give approval to an institution in being—by leaving it alone.” To this Levy retorts: “The simple fact is that at no time in our history have the American people passed judgment, pro or con, on the merits of judicial review over Congress. Consent freely given, by referendum, by legislation, or by amendment is simply not the same as failure to abolish or impair.” If in fact no provision for judicial review was made by the Constitution, Black’s argument would substitute for the constitutional machinery for change by amendment revision by tacit acquiescence. Neglect or inaction would excuse noncompliance with the amendment provision; usurpation would be legitimized by inertia. But, as Hamilton stated in Federalist No. 78, the Constitution is “binding” — “until the people have, by some solemn and authoritative act, annulled or changed the established form.” The Black argument, which takes little or no account of historical roadblocks, is, as Willard Hurst said in an analogous context, “a way of practically reading Article V out of the Constitution.”

To read popular acquiescence in judicial vetoes as ratification of a judicial power to change the Constitution offends against still another requirement: complete disclosure. The people could rely on Hamilton’s rejection in Federalist No. 78 of the possibility that “the courts on the pretense of repugnancy, may substitute their own pleasure to the constitutional intention of the legislature,” on his representation that the judges had no warrant to depart from the Constitution. As Lusky put it, the people expect the Justices to view the Constitution as expressing “the will of those who made” it and “to ascertain their will.” Until the Court candidly discloses—as Justice Jackson vainly urged—that it is “making new law for a new day,” the people can hardly be held to acquiesce in what they have not been told. They have been told that the Court speaks with the voice of the Constitution; they are constantly told that “the Constitution (not the Justices) requires.” And that cannot be converted into ratification of progressive judicial violation of its limits.

On Levy’s view that judicial review has no sure constitutional basis and that it has not been “approved” by the American people, it is, like Mahomet’s coffin, suspended in midair. Thus, the awesome power of judicial review is left altogether without footing. My own studies, set forth in Congress v. The Supreme Court (1969), convinced me that judicial review was contemplated and provided for by the Framers, albeit limited to policing constitutional boundaries and divorced from participation in policymaking. The fundamental importance of legitimacy impels me to comment briefly on Levy’s objections to the evidence avouched for it.

Levy begins by asking, if the Framers “intended the Court to have the power, why did they not provide for it?” In my view they did. Article III, §2, extends the judicial power to cases “arising under this Constitution”; one who claims that a constitutional right was invaded presents such a case. Article VI, §2, provides that “This Constitution and the Laws . . . which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Federal judges and all federal and State officials were no less “bound” than State judges by the “supreme Law.” If a judge is “bound” only by a law “in pursuance” of the Constitution, that is, consistent therewith, by necessary implication he is not bound by an inconsistent law. Obviously a judge would be required to make a preliminary decision whether or not he was “bound” by the law, exercising the judicial power to decide lodged in a federal judge by Article III. As said by Herbert Wechsler, federal judges “enforce the Constitution” because “they must decide a litigated issue that is otherwise within their [Article III] jurisdiction and in doing so must give effect to the supreme law of the land.” In other words, a judicial issue is presented by the question whether a statute is the “supreme Law of the Land” and the Article III “judicial power” embraces such questions. Read together, Articles III and VI therefore confer the power of judicial review. Those who find it difficult to draw these deductions should bear in mind that the Framers so understood the two provisions, the evidence for which I have supplied in 86 heavily documented pages.

Next Levy turns to “Corwin’s vacillations” which allegedly testify “to the confusing and inconclusive nature of the evidence.” Undeniably Corwin swung like a pendulum, but the important question is not what he thought but what are the facts. Now the facts, set forth by Charles Beard, criticized by Corwin in 1913, but richly confirmed by Corwin in 1914, are in the words of his 1914 summary:

That the members of the Convention of 1787 thought the Constitution secured to the courts . . . the right to pass on the validity of acts of Congress under it cannot reasonably be doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, as I think it only proper to do, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case . . . True these were only seventeen names out of a possible fifty-five, but let it be considered whose names they are. They designate fully three-fourths of the leaders of the Convention.

Only two men, Gunning Bedford and John Mercer, who carried little weight, expressed a contrary view. As Corwin stated, “on no other feature of the Constitution with reference to which there has been any considerable debate is the view of the Convention itself better attested.” To these seventeen are added a number of prominent Founders, such as Oliver Ellsworth of Connecticut and John Marshall of Virginia, who spoke in the Ratification Conventions. After painstakingly sifting all the evidence I concluded that Beard and the 1914 Corwin evaluation were fully supported.

A few comments seriatim on the selected items Levy would discredit will suffice. When the Convention discussed the “arising under” clause, Madison “expressed doubt about ‘going too far’ and advocated that jurisdiction over such cases be ‘limited to cases of a Judiciary Nature.’ ” This merely sought to obviate a roving commission to declare legislation unconstitutional and to confine that function to properly litigated cases. Levy himself explains that the Court “cannot strike down an act at will, however unconstitutional, it must wait passively for a zealous litigant to raise a real case or controversy over which it has jurisdiction.” The Convention did not see need to act on Madison’s suggestion because of the general belief that “the jurisdiction given was constructively limited to cases of a Judiciary Nature” —to “cases or controversies.” Levy also stresses Madison’s inconsistent positions. Undoubtedly Madison was inconsistent over the years. Who is not? But if we look to what he said in the Federal and State Conventions—the proper frame, as Corwin noted, because those utterances were meant to influence fellow delegates—there is actually little or no inconsistency. On July 23, 1787, Madison declared that “A Law violating a constitution established by the people themselves, would be considered by the judges as null and void,” a view often expressed by other Founders, including Marshall in the Virginia Convention. On August 27 Madison stated: “The right of expounding the Constitution in cases not of this [Judiciary] nature ought not to be given to that Department.” By plain implication, if the right was of a Judiciary Nature, “the right of expounding” was given, and “expounding” had been employed by the Members to include decisions on constitutionality, which embraced “laws of the United States [congressional acts] . . . in pursuance” of the Constitution.

Then Levy turns to Hamilton: “it is not irrelevant” that Hamilton’s own plan made no provision “for any sort of judicial review.” I suggest that it is utterly irrelevant. Hamilton did not propose to submit a complete scheme of government, but merely “to suggest the amendments which he should probably propose to the plan of Mr. R[andolph] in the proper stages of its future discussion.” The Randolph plan provided for a judiciary as a “check” on the legislature. Levy also depreciates Hamilton’s exposition of judicial review in Federalist No. 78 because it adopted Robert Yates’ demonstration (in opposition to adoption of the Constitution) that it provided for judicial review. Adoption of an opponent’s argument generally is a tacit tribute to its force. Levy explains that

Hamilton tried to convince his readers that the Court’s power was intended to hold Congress in check, thereby safeguarding the states against national aggrandizement. A few [?] advocates of the Constitution, like Oliver Ellsworth and John Marshall, sought in the same manner to allay popular apprehensions that Congress might exceed its power . . . Their remarks, like Hamilton’s in #78, are evidence of shrewd political tactics, not of the framers’ intention to vest judicial review in the Supreme Court over acts of Congress.

If they did not mean what they were saying (as to which there is no evidence whatever), they were guilty of false representations to “allay” fears on which votes depended. Those who voted for adoption of the Constitution were entitled to rely on such representations; consequently, the Constitution is to be construed, in Jefferson’s words, in accordance with the “meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanation of those who advocated it.” Let it be assumed that the remarks of Madison and Hamilton are open to Levy’s doubts, they cannot tip the scales against the clear recognition of judicial review by 15 members who spoke to the issue in the Convention, plus 6 or 7 delegates who spoke thereafter.

Finally, Levy finds it “striking . . . that there were so few State precedents prior to the Convention.” That is not surprising in view of the short span between 1776 and 1787, during most of which the States were fighting for survival. If some “precedents” are “spurious” in light of present-day research, the important fact is that they were thought to exemplify judicial review. What men think the facts are is more influential than the actual facts. Levy himself says, “The idea of judicial review was, nevertheless, rapidly emerging, a fact which adds retrospective significance to the few precedents.” The decade preceding adoption of the Constitution was one of great intellectual ferment in which, Gordon Wood has shown, a revolution in political thinking was taking place. The postulate, for example, that sovereignty was in the people, that rights need not flow from the Crown, was far more revolutionary than judicial review. The Founders, as Corwin emphasized, took “Federalism, checks and balances, judicial review . . . not in the form of institutions tested and hammered into shape by practice, but as raw ideas.” What has since become obscure to this generation was clear enough to a great contemporary, James Wilson, second only to Madison as an architect of the Constitution and chief advocate in Pennsylvania of its adoption. In 1790–1791 he was a Justice of the Supreme Court as well as a professor of law in Philadelphia. In the course of a series of Lectures on Law he declared that under the Constitution the effect of legislative “extravagancies may be prevented . . . by the judicial authority.” “Every transgression” of the constitutional “bounds of legislative power” shall thus be “adjudged and rendered vain and fruitless.”

Were the evidence that judicial review was contemplated and provided for by the Framers far less weighty, it should yet be preferred to a theory which rests judicial review on no evidence at all, for that represents a naked usurpation of power nowhere granted. If, however, judicial review is in fact derived from the text and history of the Constitution, it must be within the compass envisaged by the Framers—policing of boundaries and exclusion of policymaking reserved to the legislature. History cannot be invoked to establish the power, then discarded when seen to limit its scope.

Supplementary Note on the Role of the Court

activist theorizing

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

20

Why the “Original Intention”?

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

Nor should it ever be lost sight of that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is pro tanto, the establishment of a new Constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator.

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

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

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

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

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

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

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

Like the Constitution, the Fourteenth Amendment was written against the Bacon-Rutherforth background, clearly restated in 1860. Even Charles Sumner, archradical of the 39th Congress, was well aware that

Every Constitution embodies the principles of its framers. It is a transcript of their minds. If its meaning in any place is open to doubt, or if words are used which seem to have no fixed signification, we cannot err if we turn to the framers; and their authority increases in proportion to the evidence which they left on the question.

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

Supplementary Note on Original Intention

the american scene

english sources

james hutson’s critique of the sources

This is an attestation that the records confirmed his recollection. Because few constitutional cases nowadays arise under the 1787 Constitution, Hutson’s critique has little practical consequence. Nevertheless a historian may take exception to Hutson’s criticism of the 1787 records.

On several occasions it has fallen to me to trace a particular issue through the several Conventions, and I have found remarkable unanimity. That all reports were unreliable in such particulars is highly improbable. Widely scattered “inexpert” transcribers do not commit one and the same error unless they are engaged in a widespread conspiracy. Thus:

(1) There was remarkable unanimity in the Federal Convention, The Federalist, and the Ratification Conventions that the Senate was to participate in making treaties, not merely to rubber-stamp them after they had been made by the President. The unanimity on so important an issue deserves a detailed account.

21

Arguments for Judicial Power of Revision

Chief Justice Marshall

Where early claims to extraconstitutional power were made in the name of “natural law,” the present fashion is to invoke the “living Constitution” when it is sought to engraft or amputate a limb. Commentators at a loss to justify judicial arrogations fall back on Marshall’s sonorous reference to a “constitution intended to endure for ages to come.” In an oft-quoted apostrophe, Justice Frankfurter declared that it “expressed the core of [Marshall’s] constitutional philosophy . . . the single most important utterance in the literature of constitutional law.” It has become a mythic incantation. Chief Justice Hughes, when confronted by the “mortgage moratorium”-“impairment of contract” problem, declared:

If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered a memorable warning— “We must never forget that it is a Constitution we are expounding . . . a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

At best Marshall’s dictum represents a self-serving claim of power to amend the Constitution. In Justice Black’s words, “in recalling that it is a Constitution ‘intended to endure for ages to come,’ we also remember that the Founders wisely provided for the means of that endurance: changes in the Constitution are to be proposed by Congress or conventions and ratified by the States.” Claims to the contrary need to be measured by Lord Chief Justice Denman’s observation that “The practice of a ruling power in the State is but a feeble proof of its legality.” Such judicial claims stand no better than the bootstrap “precedents” created by a number of presidents for reallocation to themselves of the warmaking power confided to Congress, in justification of single-handed commitments of the nation to war, as in Vietnam. But the fact is, as I shall show, that Marshall’s words have been removed from context, that he flatly repudiated the revisory power Hughes attributed to him, and that other Marshall utterances also show that the conventional view of M’Culloch does not represent the “core of his constitutional philosophy.”

Marshall’s dictum was uttered in M’Culloch v. Maryland; the issue was whether the Constitution empowered Congress to establish the Bank of the United States, and that turned on whether a bank was a proper means for execution of other expressly granted powers. Marshall reasoned that a government “intrusted with such ample powers” as “the great powers, to lay and collect taxes; to borrow money; to regulate commerce,”

must also be intrusted with ample means for their execution. The power being given, it is in the interest of the nation to facilitate its execution . . . This could not be done, by confining the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate . . . To have prescribed the means by which government should, in all future time execute its powers, would have been . . . [to give the Constitution] the properties of a legal code.

Manifestly, this was merely a plea for some freedom in the “choice of means” to execute an existing power, not for license to create a fresh power at each new crisis. Marshall himself flatly denied such license-claims in a pseudonymous debate with Judges Spencer Roane and William Brockenbrough of Virginia.

M’Culloch immediately had come under attack. To Madison the Court’s ruling seemed

to break down the landmarks intended by a specification of the powers of Congress, and to substitute, for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limits can be assigned . . . [A] regular mode of making proper alteration has been providently provided in the Constitution itself. It is anxiously to be wished . . . that no innovation may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted.

Thus, the chief architect of the Constitution rejected the replacement of the amendment process by judicial revision as an “assumption of powers never meant to be granted.” Even more severe strictures were published by Roane and Brockenbrough. Marshall leapt to the defense under a pseudonym; speaking to the “intended to endure for ages” phrase, he said:

it does not contain the most distant allusion to any extension by construction of the powers of congress. Its sole object is to remind us that a constitution cannot possibly enumerate the means by which the powers of government are to be carried into execution.

Again and again he repudiated any intention to lay the predicate for such “extension by construction.” There is “not a syllable uttered by the court” that “applies to an enlargement of the powers of congress.” He rejected any imputation that “those powers ought to be enlarged by construction or otherwise.” He emphasized that “in all the reasoning on the word ‘necessary’ the court does not, in a single instance, claim the aid of a ‘latitudinous’ or ‘liberal’ construction.” He branded as a “palpable misrepresentation” attribution to the Court of the view of the “necessary and proper clause” “as augmenting those powers, and as one which is to be construed ‘latitudinously’ or even ‘liberally.’ ” “It is not pretended,” he said of the “choice of means,” “that this right of selection may be fraudulently used to the destruction of the fair landmarks [Madison’s term] of the constitution.” Finally, the exercise of the judicial power to decide all questions “arising under the constitution and laws” of the United States “ cannot be the assertion of a right to change that instrument. ” Slender as was the justification for invocation of Marshall’s dictum prior to Gerald Gunther’s discovery of Marshall’s Defense, it has been shattered altogether by Marshall’s categorical disclaimer of judicial “right to change that instrument.”

Before leaving M’Culloch, account should be taken of a proposal in the Federal Convention to authorize Congress “to grant charters of incorporation.” Rufus King pointed out that it “will be referred to the establishment of a Bank, which has been a subject of contention” in Philadelphia and New York. Modified to apply only to canals, it was voted down 8 to 3. Louis Pollak points out that “This legislative history was known at the time M’Culloch v. Maryland was decided, for Jefferson had utilized it in his 1791 memorandum to Washington opposing the Bank Bill.” As a successor to Jefferson as Secretary of State, Marshall had more reason than most to know. His omission to notice it is the more puzzling in light of his allusion to the heated debate on the subject in 1789. For the moment discussion of a possible clash between word and deed may be deferred to examination of other Marshall opinions—strangely never mentioned in the “living Constitution” incantations—which adhere to the “constitutional philosophy” he proclaimed in the Roane-Brockenbrough debates.

In Ogden v. Saunders, Marshall stated that the words of the Constitution are not to be “extended to objects not . . . contemplated by its framers.” In Gibbons v. Ogden he stated that if a word was understood in a certain sense “when the Constitution was framed . . . [T]he convention must have used it in that sense,” and it is that sense that is to be given judicial effect. In Osborn v. Bank of the United States, he stated: “Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature” —that is, of the “original intention.” In Providence Bank v. Billings, he stated: “The constitution . . . was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body and its relation with its constituents furnish the only security . . . against unwise legislation generally,” echoing Gerry’s rejection of judicial “guardians.” These statements are irreconcilable with the interpretation Hughes put on the M’Culloch dictum. Their significance was summed up by Marshall’s associate, Justice Henry Baldwin, who, after noting Marshall’s “a constitution we are expounding,” went on to say, “no commentator ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language.”

The evidence, I submit, calls for an end to the incantatory reliance on Marshall’s “a Constitution . . . to be adapted to the various crises of human affairs.” If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.

Mr. Justice Holmes

Another lofty dictum canonized by proponents of judicial lawmaking is that of Justice Holmes in Missouri v. Holland:

when we are dealing with words that also are a constituent act, like the Constitution . . . we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in what was said a hundred years ago.

The magic spell of the superb literary artist must not blind us to the narrow issue actually decided; for it is a fundamental tenet of case law that all statements in a case are to be confined to that decision. At issue was whether the treatymaking power extended to an agreement with Great Britain for the protection of migratory birds which annually traversed parts of the United States and of Canada. Addressing the argument that the treaty infringed powers reserved to the States by the Tenth Amendment, Holmes held, “Wild birds are not in the possession of any one; and possession is the beginning of ownership. The whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and in a week a thousand miles away.” He therefore found that the “States are individually incompetent to act,” that the national interest in such migratory birds was of the “first magnitude” and “can be protected only by national action in concert with that of another power,” and concluded that “it is not lightly to be assumed that in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.” Holmes might have cited Hamilton’s explanation that the treaty power was to have “the most ample latitude—to render it competent to all the stipulations which the exigencies of national affairs might require.” Instead he rose to one of his great rhetorical flights:

The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty . . . does not contravene any prohibitory words to be found in the Constitution [nor in its history]. The whole question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what the Amendment has reserved.

The reader will indulge an attempt at more pedestrian analysis. The Tenth Amendment, on which Missouri relied, provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Given that in this area a State is “incompetent” to act, it could hardly lay claim to a “reserved” power to do so. According to Hamilton, a power to enter into “ all the stipulations which the exigencies of national affairs might require” had been delegated to the United States. It follows that a plenary treaty power did not invade a nonexistent State power. Consequently Missouri v. Holland furnishes no warrant for encroachment upon actual, reserved State powers, nor for revision of express or implicit constitutional provisions because a new day has dawned.

The cases which confirm that Holmes respected and adhered to the intention of the draftsmen may for the moment be deferred while we consider Holmes’ dicta in Gompers v. United States: “ [the] provisions of the Constitution . . . are organic living institutions transplanted from English soil. Their significance is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth.” Like “living constitution” the words “the line of their growth” have become a shibboleth of judicial lawmaking, for a Constitution, be it remembered, “grows” only by judicial accretions. Gompers merely involved the meaning of a common law term, “contempts” of court, and the legal meaning of that term could no more be ascertained by resort to a dictionary than could that of “trial by jury” or “habeas corpus.” For that purpose resort to the common law was essential, and in traditional fashion Holmes looked to the common law for the “origin” and “line of growth” of contempts. The issue was whether a criminal contempt lies for violation of an injunction. Justice Holmes held: “So truly are they crimes that . . . in the early law they were punishable only by the usual criminal procedure” and in England still “are tried that way.” By this “origin” and “line of growth” he was not remotely claiming judicial power to “change” the Constitution, but was giving a common law term its traditional meaning.

Other Holmes opinions confirm that such a claim was far removed from his thinking. In Johnson v. United States he held that when a legislature “has intimated its will . . . that will should be recognized and obeyed.” Although this referred to a statute, Holmes scarcely attached more importance to the will of a legislature than to that of the people met in convention. Indeed, he applied the parallel rule to an Amendment in the subsequent case of Eisner v. Macomber: “I think that the word ‘incomes’ in the Sixteenth Amendment should be read in ‘a sense most obvious to the common understanding at the time of its adoption.’ ” Earlier, in Lochner v. New York, he had protested against the majority’s identification of its economic predilections with the Fourteenth Amendment, and a few years after Gompers, in Baldwin v. Missouri, he stated:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions . . . Of course the words “due process of law,” if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still 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.

In short, Holmes deplored judicial invasion of rights reserved to the States, condemned uncurbed judicial discretion to identify personal predilections with constitutional mandates, and recognized the perversion of due process that made such practices possible—all of which is diametrically opposed to the current reading of the Gompers and Holland dicta. Those who march under the pennons of those dicta have overlooked Holmes’ statement that “I do not expect or think it desirable that the judges should undertake to renovate the law. That is not their province.”

Mr. Justice Frankfurter

Proponents of a power to “adapt” the Constitution to current needs also quote a dictum of Justice Frankfurter in Youngstown Sheet & Tube Co. v. Sawyer: “It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss that life has written about them.” Once again this is a statement lifted from its context. Frankfurter had in mind the rule that a long-standing executive interpretation illuminates an ambiguous provision: “In short, a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned . . . may be treated as a gloss on ‘Executive Power’ vested in the President.” To avert a too-sweeping implication he explained that “Deeply embedded traditional ways of conducting a government cannot supplant the Constitution or legislation; but they give meaning to the words of the text or supply them,” that is, if the meaning is otherwise obscure.

That Frankfurter did not refer by such a “gloss” to judicial encrustations is inferable from his assertion on another occasion of a right to look to the Constitution itself rather than to what his predecessors had said about it. Then, too, in United States v. Lovett he had distinguished “broad standards,” which “allow a relatively wide play for individual legal judgments,” from “very specific provisions” such as the prohibition of “bills of attainder,” which must be read as “defined by history. Their meaning was so settled by history that definition was superfluous.” To be sure, he placed “due process of law” among the “broad standards”; in this, however, he was mistaken, for history leaves no doubt that there was no “substantive” due process, that due process did not apply to legislative action but was confined to procedure in the courts, as was unmistakably expressed by Hamilton in 1787. The purely “procedural” content of due process was, in the words of Charles Curtis, “as fixed and definite as the common law could make a phrase.” Frankfurter himself adverted to the “fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.” Under his own criterion respecting common law terms—they must be read as “defined by history” —we cannot, to borrow from one of his opinions, “extend the definitions . . . Precisely because ‘it is a constitution we are expounding’ . . . we ought not to take liberties with it.” And precisely because, in Frankfurter’s own words, “there was a deep distrust of a federal judicial system” in 1787, and of the courts in 1866 as well, we should not read “due process” to confer untrammeled lawmaking power on the judiciary. Although the “deepest conviction” he cherished was that “no five men, or nine, are wise enough or good enough to wield such power over an entire nation,” it was not deep enough to overcome his confidence in his own wisdom when he ascended to the bench.

To convert the Marshall-Holmes-Frankfurter statements into constitutional dogma is both to disregard how narrow were their actual decisions and their reaffirmations that judges are under a duty to effectuate the original understanding and to respect the historical meaning of common law terms. Reliance on those statements for a doctrine of judicial power to “change” the Constitution only exposes the hollowness of the case for judicial revisionism.

Proponents of a “living Constitution” often twit me with the discrepancy between Marshall’s deeds and his words. It is true that some of his decisions may be regarded as judicial lawmaking. Willard Hurst observed that “To rule that a corporation charter enjoyed the protection of a ‘contract’ under the constitutional provision [impairment of contracts clause] was a clear-cut act of judicial law-making.” And if knowledge can be brought home to Marshall that the Convention had specifically rejected a proposal for incorporation of banks, his disclaimers respecting M’Culloch might be regarded as “fraudulent.” But such examples afford a sad triumph for revisionists. To do what one disclaims as he acts is a reproach to any man, all the more when it is done by the oracles of the law whom we are urged to regard as the “national conscience.” Of no one should more fastidious morality be required than of the Supreme Court.

Professors Thomas C. Grey and Louis Lusky

Sensible of the deficiences of conventional arguments for judicial lawmaking, Thomas Grey and Louis Lusky have proffered new theories on which the function should be based. Grey would invoke a continuing “natural law” tradition, while Lusky finds that the Founders conferred an “implied right” of judicial revision.

Grey espouses the Court’s “role as the expounder of basic national ideals of individual liberty and fair treatment, even when the content of these ideals is not expressed as a matter of positive law in the written Constitution.” He concedes, however, that “such a role . . . is more difficult to justify than is the role assigned by the pure interpretive model,” his label for Justice Black’s restrictive view of judicial review. That view, he states, “is one of great power and compelling simplicity . . . deeply rooted in our history and in our shared principles of political legitimacy. It has equally deep roots in our formal constitutional law.” The “grave difficulties” that attend the lawmaking model explain the judicial tendency, he continues, “to resort to bad legislative history” to support desired results. If “judges resort to bad interpretations in preference to honest exposition of deeply held but unwritten ideals, it must be because they perceive the latter mode of decision-making to be of suspect legitimacy.”

To answer the “question whether in our Constitution we have actually granted this large power to our judges” he briefly sketches an argument that he hopes to expand and document later. His posits that the generation that framed the Constitution was attached to “the concept of a ‘higher law’ protecting ‘natural rights,’ and taking precedence over ordinary positive law . . . Thus in the framing of the original American constitutions it was widely accepted that there remained unwritten but still binding principles of higher law. The Ninth amendment is the textual expression of this idea in the Federal Constitution.” It was “widely assumed,” he states, “that judges would enforce as constitutional restraints the unwritten natural rights.” Since Grey postponed documentation for these propositions, detailed commentary is not possible. Robert Cover concluded, however, that the Founders were attached to positive rather than to natural law. Judicial review was an innovation that had excited the animosity of several State legislatures; its proponents advocated it in restricted terms: the policing of constitutional “limits.” My own study of the records of the Federal Convention uncovered no intimations that natural law would empower judges to rise above the positive limitations of the Constitutions; evidence to the contrary may be postponed to examination of the Lusky thesis, for that evidence, I consider, refutes both the Grey and Lusky theories.

Here it may suffice to inquire in what way the “Ninth amendment is the textual expression” of the “idea” that “there remained unwritten but still binding principles of higher law.” Were they binding on the courts? The Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Because certain nonenumerated rights are “retained by the people,” it does not follow that federal judges are empowered to enforce them. Apart from “diversity” suits between citizens of different States, fashioned to “insure fair dealing between citizens of different States,” federal jurisdiction is limited to cases “arising under this Constitution,” for example, one invoking Fourth Amendment guarantees. It needs at least to be asked whether federal courts are authorized to enforce extraconstitutional “rights” that have neither State nor federal sanction. An implication to the contrary may be drawn from Madison’s explanation in the First Congress immediately following his reference to the Ninth Amendment. If the guarantees of the Bill of Rights, he said, would be incorporated in the Constitution, the “independent tribunals of justice . . . will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights.” The appeal to the Ninth Amendment was made by Justice Goldberg in Griswold v. Connecticut, but the cases he cited lend no support for invocation of the Ninth Amendment; they involve either Bill of Rights guarantees that the Court has embodied in the Fourteenth Amendment, or rights like those of the right to travel or to associate which the Court found protected by the “liberty” of the Fifth and Fourteenth Amendment due process clauses. In short, when the Court deemed a right worthy of protection it grounded intervention on the Bill of Rights or the Fourteenth Amendment, rendering resort to the Ninth Amendment superfluous. For me, as for Justice Black, the Amendment “was passed not to broaden the powers of this Court . . . but . . . to limit the Federal Government to the powers granted.”

Grey considers that the Fourteenth Amendment likewise was influenced by “natural rights”:

Natural rights reasoning in constitutional adjudication persisted up to the Civil War, particularly with respect to property and contract rights, and increasingly involving “due process” and “law of the land” clauses in constitutional texts. At the same time, an important wing of the anti-slavery movement developed a natural-rights constitutional theory, built around the concepts of due process, of national citizenship and its rights, and of the human equality proclaimed in the Declaration of Independence.

Though this latter movement had little direct effect on pre-Civil War decisions, it was the formative theory underlying the due process, equal protection and privileges and immunities clauses of the 14th amendment. Section 1 of the 14th amendment is thus properly seen as a reaffirmation and reenactment in positive law of the principle that fundamental human rights have constitutional status.

Prior to the Civil War the courts were most inhospitable to “natural rights” as Robert Cover convincingly shows in his review of the fugitive slave cases. Even in a “property” case, Wynehamer v. The People, the court dismissed claims based on “natural law” and fabricated a novel theory of “substantive due process.” But that theory found no favor with other courts until the Supreme Court, under ceaseless prodding by Justice Field, embraced it in the 1890s. It is true that the framers embodied “fundamental human rights” in the Civil Rights Act and thence in the Fourteenth Amendment, but those were regarded as restricted in scope and enumerated, for example, the right to own property, to contract; “political and social” rights were unmistakably excluded. The equality (only partially) envisaged in the Declaration of Independence plainly found no place in the thinking of the framers of the Fourteenth Amendment. Grey’s reference to the “constitutional theory” of a “wing of the anti-slavery party” that allegedly “was the formative theory” underlying §1 invokes the Graham-tenBroek-Kelly theory, which simply cannot stand up against the historical facts. In the history of the Fourteenth Amendment, it may confidently be stated, there is not a glimmering of intention to authorize judges to enforce rights beyond those enumerated in the Civil Rights Act. Far from endowing the judiciary with a broad power to enforce “natural rights” going beyond those so enumerated, the courts were pointedly omitted from the §5 power to enforce even the rights granted by §1.

Lusky, who sought an improved rationale for judicial intervention in behalf of libertarian ideals as long ago as 1938, when he aided Justice Stone in fashioning the Carolene Products footnote, was at last driven to ask: “ By what right does [the Court] revise the Constitution?” His attempt to supply an answer by way of a theory of “implied power” to do so is set forth in his book By What Right? Many of his comments on the cases are rewarding, but strange is his line of demarcation. Down to 1961 or 1962 “the Court maintained its traditional passive posture,” but after 1962 it engaged in “a dazzling display of seemingly freehand constitution-making without apparent concern for the intention of the Constitutors.” Few would regard Brown v. Board of Education (1954) as exemplifying the Court’s “passive posture”; the evidence set forth in Chapter 6 hereof demonstrates that it was “making new law for a new day. ” In fact, Lusky praises “the tremendously valuable work it has done in the past third of a century.” It “has performed splendidly” as the “citadel of the republic—the main instrument for societal self-perfection,” a performance far removed from a “passive posture.”

Lusky’s anxiety was aroused by the “neoprivacy” (contraceptive and abortion) cases, where the discredited “substantive due process began to reappear . . . under a different banner bearing the watchword privacy.” These are the cases he regards as “usurpation of power.” Yet neither the constitutional text nor its history forbid judicial interference with State regulation of the right of privacy, whereas the history of the Fourteenth Amendment plainly does preclude such interference with State control of suffrage and segregation. We may therefore with Justice Harlan view the State reapportionment cases “as a much more audacious and far-reaching judicial interference with the state legislative process . . . than the comparatively innocuous use of judicial power in the contraceptive case.” Presumably Lusky considers that the desegregation and reapportionment cases meet the criteria he suggests for employment of the “implied power” to revise the Constitution, but he himself recognizes that whether those tests are “so vague as to be illusory” poses a question “on which the validity of the [implied power] must stand or fall.” Examination of that question may be dispensed with because, as will appear, his argument for existence of the “implied power” is fundamentally defective, and because the materials I shall set out to demonstrate that defect equally dispose of Grey’s resort to “natural law.”

Lusky bases his “implied power” to “revise the Constitution . . . exercising the prerogatives of a continuing constitutional convention,” upon a sweeping assumption:

One perpetrates no violence upon logic or known historical facts by assuming that the Founding Fathers intended . . . (c) to empower the Court to serve as the Founders’ surrogate for the indefinite future—interpreting the Constitution not as they themselves would have directed if they had been consulted in 1787, but as is thought right by men who accepted the Founders’ political philosophy—their commitment to self-government and the open society—and consider themselves obligated to effectuate that philosophy in the America of their own day.

This assumes the answer to the very question in issue: did the Framers empower the judges to revise the Constitution. It assumes that the Framers handed the constitution-changing function to a “surrogate,” whose crystal-gazing as to effectuation of their “political philosophy” is made a substitute for the express terms of the Constitution. Such divination recalls the Chinese emperor’s “mandate from heaven.” Lusky’s assumption does in fact do “violence . . . to known historical facts.”

He considers that Marshall “unfolded the doctrine of implied powers” in M’Culloch v. Maryland, drawing on Marshall’s statement that, given ample powers, the government “must also be entrusted with ample means for their execution.” But ample means to execute existing powers cannot stretch to their expansion or to creation of new powers. Marshall himself disclaimed “any extension by construction of the powers of Congress”; he held that the judicial power “cannot be an assertion of a right to change” the Constitution. The generation that framed the Constitution was devoted to a “fixed constitution”; courts “were not regarded as instruments of social change.” Judicial participation in legislative policymaking was forthrightly rejected; despite arguments by George Mason and James Wilson that judicial review confined to violation of some constitutional provision would not allow judges to set aside oppressive though constitutional laws, the Framers would not, as Elbridge Gerry stated, make judges the “guardians of the people.” Now Lusky would have it that the Framers turned policymaking over to the judges in toto, constituting them a super legislature, notwithstanding Hamilton’s reassuring quotation of Montesquieu: “of the three powers—the judiciary is next to nothing.”

Hamilton alone presents an insuperable obstacle to the Grey-Lusky theories. Presumably inspired by States’ Rights distrust of a federal judiciary, he averred that the Constitution is “binding” on all, including the peoples’ representatives, who have no “warrant” to make “a departure” from it “until the people” have changed it by a “solemn and authoritative act,” that is, by amendment. He stated that “the intention of the people [ “ought to be preferred” ] to the intention of their agents.” That he meant to leave no room for displacement of that “intention” by the Justices is underscored by his scornful dismissal of the notion that “the courts on the pretense of a repugnancy may substitute their own pleasure [for] the constitutional intentions of the legislature.” As Lusky himself comments, this “is hard to square with anticipation of judicial constitution-making power.” It is not “hard to square,” it is impossible—as Hamilton’s further statement that judges would be impeachable for “deliberate usurpations on the authority of the legislature” confirms. What “usurpations” could there be if judges were empowered to act as “surrogates” of the Founders or to enforce the wide-open spaces of “natural law”? Both the Grey and Lusky theories set at naught the “limits” so carefully framed by the Founders; both would circumvent the Article V method of change by amendment.

22

“Trial by Jury”: Six or Twelve Jurors?

The increasingly free and easy judicial revision of constitutional norms is strikingly exemplified by Williams v. Florida, wherein the Supreme Court, for the first time in our history, held that a 6-man jury satisfies the requirement of trial by jury. By Justice White’s own testimony a 12-man jury has been the invariable common law practice since “sometime in the 14th century” —600 years. The Court held in 1930 that “it is not open to question . . . that the jury should consist of twelve men, neither more nor less.” But because history furnishes no explanation why the number 12 was chosen, Justice White dismisses it as “an historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” Adherence to a practice for 600 years renders its “accidental” origin irrelevant, for as Coke stated, “usage and ancient course maketh law” —all the more when that usage is embodied with full awareness in a written Constitution. The case for the practical wisdom of 12 jurors has been made by Hans Zeisel, Leonard Levy and others, so I shall focus on Justice White’s extraordinary approach to constitutional interpretation.

From Chief Justice Marshall onward the meaning of common law terms or institutions, which had a fixed content at the time they were incorporated into the Constitution, is to be ascertained by resort to that content. With little short of disdain Justice White rejects that meaning as representing “mystical or superstitious insights into the significance of ‘12.’ ” “Typical” of such “superstition” is a dithyramb by that great “mystic” Lord Coke, in his crabbed explication of Littleton on Tenures: “it seemeth to me, that the law in this case delighteth herselfe in the number of 12; for there must not onely be 12 jurors for the tryall of all matters of fact but 12 judges of ancient time for tryall of matters of law in the Exchequer Chamber . . . And that number of twelve is much respected in holy writ, as in 12 apostles. ” When men are moved to make exalted, mystical-religious explanations, it is because they deeply venerate the established practice.

Trial by jury was a central pillar of the society the colonists sought to erect; for centuries it had served as cherished buffer against oppressive prosecutors and judges. Blackstone, whose Commentaries were widely circulated in the colonies, and whose influence on this issue can be traced into the very terms of a number of State constitutions and utterances of the Founders, stated, “the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate.” The North Carolina Constitution of 1776 provided that “the ancient mode of trial by jury . . . ought to remain sacred and inviolable.” Massachusetts, New Hampshire, Pennsylvania, and Vermont provided that it “shall be held sacred”; Georgia, South Carolina, and New York, that it was “inviolate forever.” In the Virginia Ratification Convention the Wythe Committee recommended an amendment: that “the ancient trial by jury is one of the greatest securities to the rights of the people, and is to remain sacred and inviolable.” George Mason in Virginia termed it “This great palladium of national safety,” and James Iredell in North Carolina referred to it as “that noble palladium of liberty.” No element of judicial proceedings or power aroused such anxious inquiry as did trial by jury. Every facet of an institution held “sacred” by the Founders, therefore, needs to be approached with respectful regard.

Except for partial rejection of a jury of the “vicinage,” of which more hereafter, there is no indication that any incident of trial by jury was to be more “sacred and inviolate” than another. To the contrary, the First Continental Congress laid claim to the “inestimable privilege of being tried by their peers of the vicinage, according to the due course of the common law”; this was repeated in the Maryland Constitution of 1776. South Carolina provided that “the trial by jury, as heretofore used . . . shall be forever inviolably preserved.” That usage had been described by Coke as already “very ancient” and was reformulated in Bacon’s Abridgment as calling for a “petit jury . . . precisely of twelve, and is never to be either more or less,” as Chief Justice Matthew Hale had earlier stated. This “most transcendent privilege,” Blackstone stated, required a jury of 12. In the Virginia Ratification Convention, Governor Edmund Randolph said: “There is no suspicion that less than twelve jurors will be thought sufficient.” Julius Goebel adverted to “popular sensitivity regarding any tampering with the ‘inestimable right of jury trial,’ ” and concluded that “any suggestion that the jury system as then entrenched might be amended in any detail was beyond tolerance.” In the Virginia Ratification Convention, Grayson, for example, stated that “it is generally thought by Englishmen, that [trial by jury] is so sacred that no act of the [omnipotent] Parliament can affect it.” How can this be reconciled with Justice White’s refusal to “ascribe a blind formalism to the Framers”? Far from being “wholly without significance ‘except to mystics,’ ” the Framers would have regarded tampering with the number “12” as shaking the very pillars of the temple.

A Jury of the Vicinage

Justice White attached great weight to the Framers’ refusal to embody in the Constitution a traditional component of trial by jury—that the jury be drawn from the “vicinage,” the “neighborhood, or in medieval England, jury of the county.” Article III of the Constitution provides that the jury trial “shall be held in the State where the said Crimes shall have been committed”; it does not purport to direct how the jury shall be drawn, and no illumination is furnished by the “very scanty history” of the provision. It received opposing interpretations in the Virginia Ratification Convention: Madison met an objection “that there was no provision for a jury from the vicinage” with the reply “if it could have been done with safety, it would not have been opposed,” implying that Article III did not require that jurors be drawn from the vicinage. On the other hand, Randolph, who also had been a delegate to the Federal Convention, stated in Virginia, “nor is a jury from the vicinage in criminal cases excluded. This house has repeatedly resounded with this observation—that where a term is used, all its concomitants follow.” In the upshot, the Virginia Convention attached to its approval an amendment proposing trial by a jury of the vicinage. And Justice White remarked that “concern” over failure to “preserve the common law right to be tried by a ‘jury of the vicinage’ . . . furnished part of the impetus for introducing” the Sixth and Seventh Amendments.

In the First Congress, Madison proposed a jury “of the vicinage, with the requisite unanimity for conviction, of the right of challenge, and other accustomed requisites.” It passed the House but was rejected by the Senate; went to Conference and emerged in what ultimately became the final version of the Sixth Amendment: a “jury of the State and district wherein the crime shall have been committed.” This Justice White properly views as “a compromise between broad and narrow definition” of the term “vicinage.” The compromise sprang from the fact noted by Madison that “In many of the States, juries . . . are taken from the State at large; in others, from districts of considerable extent; in very few from the County alone. Hence a dislike to the restraint with respect to vicinage.” What this history proves, is that the “vicinage” States did not have the votes to overcome a constitutional modification of the common law in this respect. Does it follow that the Founders meant also to curtail the right to challenge jurors, for example, which the Virginia Ratifiers were assured had been left intact by Article III, or to abolish the “mystic” number “12”?

Justice White draws three negative implications, which cast “considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.” First, “the mere reference to ‘trial by jury’ in Article III was not interpreted to include” vicinage. But there was more than a “mere reference”: trial by jury was qualified by “shall be held in the State,” which raised differences of opinion whether or not vicinage was affected. At most, Article III modified the common law in that respect alone. Second, “provisions which would have explicitly tied the ‘jury’ concept to the ‘accustomed requisites’ of the time were eliminated.” Justice White recognizes that this elimination is “concededly open to the explanation that the ‘accustomed requisites’ were thought to be already included in the concept of a ‘jury.’ But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect.” The assumption that the “accustomed requisites” already were thought to be included in the concept of a “jury” was not left to speculation. The Ratifiers had been assured again and again in Virginia by John Marshall, by Edmund Pendleton, the Mentor of its highest court, and by Randolph, that the words “trial by jury” embraced all its attributes, such as the right to challenge jurors. Curtailment of the vicinage requirement responded to the preponderant State practice; but the nonvicinage States were no less attached to a jury of “12” than the “vicinage” adherents, so that curtailment of vicinage does not argue for abandonment of “12.” In Pierson v. Ray the Supreme Court refused to read comprehensive language to abolish a much less treasured common law practice in the absence of a specific expression of intent to do so. Here, where ratification by the people is involved, it is even more important to demand a specific expression of intention to discard the treasured unanimous verdict by a jury of 12. Nothing in the Sixth Amendment phrase “a jury of the State and district” warned the people that by ratification they would surrender those attributes of a jury trial. Then, too, although the Founders, in framing the treason clause, had drastically narrowed the definition of “treason,” Chief Justice Marshall looked to the common law for other aspects of “treason.” Like Marshall, we may conclude that a partial departure from the common law with respect to vicinage does not spell wholesale repudiation of other concomitants of trial by jury, that to embrace the contrary view is to do violence to the Framers’ reverence for the institution.

Third, Justice White reasoned, “where Congress wanted to leave no doubt that it was incorporating existing common law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary Bill . . . provided in certain cases for the narrower ‘vicinage’ requirement which the House had wanted to include in the Amendment.” Now, as Justice White noticed, “the Senate remained opposed to the vicinage requirement, partly because in their view the then-pending judiciary bill—which was debated at the same time as the Amendments—adequately preserved the common law vicinage feature—making it unnecessary to freeze that requirement into the Constitution.” “Vicinage” was specifically named because compromise of a disputed point so required. So, too, Justice White reads the Seventh Amendment provision that in civil cases “no fact tried by a jury, shall be otherwise reexamined in any Court . . . than according to the common law” against adoption of the 12-man jury. Again this arose out of the need to resolve a particular controversy. Strenuous objections had been made in the Ratification Conventions to the provision for the Supreme Court’s appellate jurisdiction of “questions both of law and fact” on the ground that facts found by a jury should be unreviewable. No aspect of judicial review excited greater opposition; as Patrick Henry stated in Virginia: “The unanimous verdict of twelve impartial men cannot be reversed.” From settlement of a particular controversial issue it cannot be deduced that the Framers thereby intended to discard rights that had not once been challenged. Justice White, in my judgment, did not succeed in justifying a departure from the rule that common law terms must be given the meaning they had at the time of adoption.

When Madison sought to explain the relation of Article III to vicinage, he said: “It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary.” There the real “necessity” was that Virginia stood in a decided minority in its attachment to “vicinage”; it could not muster votes to overcome resistance to this aspect of jury trial. Since trial by jury was a fabric woven of many strands—a “seamless web” —we should be slow to countenance a rent, particularly one not dictated by the most urgent need. What necessity impelled the Court to jettison the “very ancient” 12-man jury?

The Court had painted itself into a corner when it held that the Fourteenth Amendment made the “trial by jury” provision of the Bill of Rights mandatory on the States, a position, as we have seen, that is without historical warrant. Since some States employed less than 12 men, the Court, as Justice Harlan observed, recognized that the ‘incorporationist’ view . . . must be tempered to allow the States more elbow room in ordering their own criminal systems.” The Burger Court is presently retreating from the Warren Court’s imposition of federal requirements on State practice, and it might well have concluded that the quite recent extension of the Sixth Amendment’s trial by jury to the States was ill-considered and, therefore, as Justice Harlan stated, the Burger Court’s decision in Duncan v. Louisiana should be overruled. Instead, it chose to rupture a 600-year practice in order to adhere to a dubious decision, illustrating what Washington and Hamilton had warned against: a usurpation to meet a great emergency breeds usurpations where no emergency exists.

23

Conclusion

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.” Or, as James Iredell put it, a law “not warranted by the Constitution . . . is bare-faced usurpation.” Hamilton made clear that action not warranted by the Constitution is no less a usurpation at the hands of the Court 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,” 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.

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.” 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.” 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.” John Stuart Mill cautioned against man’s disposition “to impose [his] own opinions . . . as a rule of conduct on others.” The Inquisition burned heretics at the stake to save their souls.

Then there are the costs to constitutional government 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.” “In a government of laws,” Justice Brandeis cautioned, “existence of the government will be imperilled if it fails to observe the law scrupulously.” Justice Frankfurter added that “Self-willed judges are the least defensible offenders against government under law.” 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.

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.” 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.” But because repudiation of the cases would have undesirable consequences, it does not follow that the prior determinations were authorized by the Constitution. 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 rationalization —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. 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 it 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.

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.” 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.” “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. 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.” 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. 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.” “The Court,” wrote Charles L. Black, “could never have had the strength to prevail in the face of resolute public repudiation of its legitimacy.”

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.” Such awareness is a necessary preliminary for, as Mason observed, “only that power which is recognized can be effectively limited.” 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.”

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.)” 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.” Power in the service of moral imperatives must not rest on a sham. 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.” On a practical level, as Presidents Lyndon Johnson and Richard Nixon learned, nondisclosure to the people creates a credibility gap.

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.” “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.” 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.” 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

appendix a

Van Alstyne’s Critique of Justice Harlan’s Dissent

Professor Van Alstyne’s article constitutes the most extended attempt to refute Justice Harlan’s dissent in Reynolds v. Sims. 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. 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.” 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” 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.” 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.” 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. 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, 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. 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.” 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.”

Rejection of the dissentient appeal to “other” constitutional sources for federal power over suffrage 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,” thereby expressing its view that Congress did not enjoy that power. And it is confirmed by the passage of the Fifteenth Amendment. 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, 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.

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. Those doubts were strongly reinforced by the historical materials Justice Stewart collected in his opinion in Oregon v. Mitchell. 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. 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.” 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.” Senator Howard explained that “the first section of the proposed amendment does not give . . . the right of voting.” Toward the close of the session Senator Sherman said, “we have refused” to require the rebel “States to allow colored persons to vote.” 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” —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” 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.” Eric McKitrick stated, “beyond doubt” Stevens “tipped the balance . . . Being none too keen on direct enactment of Negro suffrage.” 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. 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.” Another Democrat, Andrew Rogers, asserted, “The committee does not dare submit the broad proposition to the people . . . of negro suffrage.” 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.”

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.” “Equal protection” had limited scope for the framers; it barred discriminatory laws with respect to specified “fundamental rights” —no more.

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.

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” 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.” 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.”

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. 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.” 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.” 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.” Howard said that “the theory of this whole amendment is to leave” suffrage with the States. 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.” 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”; 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.” 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.”

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, he echoed Francis Bacon’s admonition two hundred years earlier. 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, 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, what James Bradley Thayer and Learned Hand later called “policing” the constitutional boundaries.Within those boundaries, stated Justice James Iredell, one of the ablest of the Founders, the legislature was to be free of judicial interference.

Unlike the academicians’ current infatuation with a revisory judiciary, the Founders had a “profound fear of judicial independence and discretion.” 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.” 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, the so-called original intention. Jefferson and Madison attached great weight to the rule; 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.” Here law and common sense coincide. Who better knows what the writer means than the writer himself? 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.” Such were the views of Hobbes and Locke. 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 Constitution 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. 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. In their zeal to ameliorate social injustice, academicians undermine the constitutionalism that undergirds our democratic system. 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.” 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.”

When this book appeared in 1977, I anticipated that it would ruffle academic feathers, for it stood athwart the complacent assumption that constitutional limitations must yield to beneficial results, a result-oriented jurisprudence that is a euphemism for the notion that the end justifies the means. The flood of criticism—often ad hominem—surpassed my expectations. Scarcely a month passes without another “refutation,” 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.

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.” 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.” It was this “gap” which the Fifteenth Amendment was designed to fill. Plainly the “one man-one vote” doctrine derogates from the exclusive control of suffrage that was left to the States.

Turn to the sacred cow of modern constitutional law, Brown v. Board of Education, whereby the Court outlawed segregated schools. 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, 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.” 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.” 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.

Contrast a few undeniable facts. Congress had “permitted segregated schools in the District of Columbia from 1864 onward”; and Senator Charles Sumner vainly fought “to abolish segregated Negro schools in the District of Columbia.” 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.’ ” 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. 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.” Prominent academicians, among them leading activists, recognize that segregation was left untouched by the Fourteenth Amendment.

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.” To change existing practices, particularly in the internal zone left to the States, the federal draftsmen minimally must exhibit a purpose to do so. 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. With William James, we should worry about “the presumptuous arrogance of theories that ignore, even disdain, the concreteness of mere fact.” 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.”

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. The Constitution, remarked Paul Brest, “lies at the core” of our “civil religion”; 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.” 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.” 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, upon which activists beat a tattoo and which, I agree with Bork, is “a singularly confused opinion in 1823 by a single Justice [Bushrod Washington] of the Supreme Court,” 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,” as the framers of the Amendment well knew.

The words “privileges and immunities” first appear in Article IV of the Articles of Confederation, which specified “all the privileges of trade and commerce.” 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. 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.”

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.” 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. Early on these courts had construed Article IV in terms of trade and commerce. Chase declared, as did Massachusetts Chief Justice Parker, that the words were to be given a “limited operation.” Activists ignore those opinions and build entirely on Corfield, 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” 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,” 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.

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.” 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.” Judge William Lawrence acknowledged in the House “that the courts have by construction limited the words ‘all privileges’ to mean only ‘ some privileges.’ ” Although the Supreme Court noticed the Bingham incident in Georgia v. Rachel and concluded that the Bill reached only a “limited category of rights,” 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.

The Supreme Court likewise declared that the phrase did not add to the privileges or immunities provided by Article IV. 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.

The Civil Rights Bill and the Fourteenth Amendment, activist William Nelson correctly observed, are “inextricably linked.” 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. 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.” 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.” He is corroborated by the face of the Act. 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.”

So, John Hart Ely rejects the “claim [that] the coverage of the two was meant to be identical.” So, too, Paul Dimond dismisses the “claim that the Fourteenth Amendment dealt solely with the rights enumerated in the 1866 Act.” 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?” By that logic the argument for incorporation of the Bill of Rights—which Zuckert endorses —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.

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.” 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.” In Indiana, Senator Henry Lane “affirmed Trumbull’s statement concerning the first section”; and Senator John Sherman of Ohio endorsed those views in a speech on September 29, 1866. Senator Luke Poland of Maine spoke to the same effect in November 1866. 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.”

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.” 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 [1] of the Amendment was considered as equivalent to the first section of the Civil Rights Bill.” Earlier Justice Bradley had stated, “the first section of the bill covers the same ground as the fourteenth amendment.” 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.” 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” —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.” 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.” 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.” And in 1874, the Supreme Court stated that “the Amendment did not add to the privileges and immunities of a citizen,” which had been construed in terms of trade and commerce.

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.” “In the Convention and later,” wrote Alpheus T. Mason, “states’ rights—not individual rights—was the real worry,” The Founders were concerned with erecting a structure of government that would diffuse and limit delegated power, not with fortifying individual rights. “It was conceivable,” wrote Gordon Wood, “to protect the common law liberties of the people against their rulers, but hardly against the people themselves.” 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.”

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.” By 1765 these had crystallized into Blackstone’s triad: personal security, personal liberty (i.e., freedom to come and go), and property. 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.” 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.” 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.” And Chancellor Kent paraphrased Blackstone. 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,” 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.” And Michael Perry recognizes that the individual rights which activists champion are judicial constructs of the “modern” Court.

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.” 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.” Given that the federal government “ought not to act” in the “excepted” zone, much more was federal action precluded in the “retained” zone. 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. 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.’ ” 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.”

The cheerleader of the cornucopian movement is Randy Barnett. 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.” 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. Recent Supreme Court pronouncements are unsympathetic to “novel,” nontraditional “substantive due process” claims, 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. 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.

In consequence the committee recommended Section 2 because it “would leave the whole question with the people of each State.” 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. The Fifteenth, the Supreme Court said, testifies that suffrage was not conferred by the Fourteenth Amendment. Justly did Justice Harlan conclude after his own exhaustive survey of the debates that the evidence was “irrefutable and still unanswered.” Commentators are widely agreed that suffrage was excluded from the reach of the Fourteenth Amendment.

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.” 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.” 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,” as if such articles could overcome unequivocal statements in the debates.

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.” 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”; 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.” 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. 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.’ ” 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,” 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. Thaddeus Stevens, leader of the Radicals, therefore began drafting the Amendment “to save the Republican party from defeat.” Senator Oliver Morton of Indiana, who had opposed Negro suffrage, now embraced it “as a political necessity.” With Negro votes the Republicans could hope to stay in power, the primary aim from the very beginning. 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.” 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.” Aviam Soifer followed suit, emphasizing “how badly Berger misuses historical materials”; and William Wiecek charged me with “rap[ing] rather than respect[ing] Clio.” Unmistakably, however, the North was firmly opposed to unsegregated schools. Many commentators, among them leading activists, now agree that the Fourteenth Amendment left segregation untouched. 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.” 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.

That prejudice persisted during the Civil War. Congress had “permitted segregated schools in the District of Columbia”; and Senator Charles Sumner vainly sought “to abolish segregated schools in the District.” 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? 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.”

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. 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.” 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.”

Nor should we congratulate ourselves on greatly improved race relations. Arthur Schlesinger, Jr., considers that racism remains “the still crippling disease of American life. 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.” 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.” 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.”

That observation and the foregoing history counsel us to reevaluate Plessy v. Ferguson.Plessy 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. “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.” Plessy merely reiterated what an array of courts had been holding for fifty years.

Most post–Civil War decisions cited Roberts v. City of Boston, 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.” 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. 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.” The Nevada court held in 1872 that separate schools do not offend the Fourteenth Amendment, as did the California court in 1874. 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.”

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.” 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. 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.” 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.” That is a remarkable conclusion. He himself recounts that “no one then imagined that the equal protection clause might affect school segregation.” 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.” And he acknowledges “That the ratifiers probably assumed that segregation was consistent with equality, but they were not addressing segregation.” “The text itself,” he argues, “demonstrates that equality under law was the primary goal, for it alone was written into the text.” 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.” 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. 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.

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. Despite Senator Charles Sumner’s unflagging efforts to abolish segregated schools in the District, 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.”

Nor was “equal protection” conceived in all-encompassing terms. Ely considers the words “inscrutable.” Bork himself remarks that to view the words “equal protection” as “general” is “to leave the judges without guidance.” That is not his aim; he considers the “general” provision to be limited in terms of the primary purpose of the ratifiers—equality. 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.” George Julian, the Indiana Radical, reflecting widespread opinion, said, “the trouble is we hate the Negro.” Although Senator Sumner maintained that suffrage was “the only sufficient guarantee,” it was excluded from the Amendment; and the framers repeatedly rejected proposals to ban all discrimination.

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. 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.” 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.” 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, rights that the Supreme Court, after canvassing the legislative history, described in 1966 as “a limited category of rights.” 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.” 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.” 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. The framers, however, as Bork notes, “assumed that equality and state-compelled separation of the races were consistent,” 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.” 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.” 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.” 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. 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. 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.” Just what in the “text” —due process, privileges or immunities, equal protection— “made clear” that Congress was importing, 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.” 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.” Howard’s remark, Charles Fairman recounts, “seems at the time to have sunk without leaving a trace in public discussion.” 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,” and stated that his goal was to find the “probable Republican understanding of a question to which they had paid little direct attention.” He reasoned that the key to construction of the 1866 debates is furnished by “certain unorthodox constitutional ideas held by a number of Republicans” —never mind that the greatly preponderant Republican view was to the contrary. Amar noted that “many informed men were simply not thinking carefully about the words of Section One at all.” 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. 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.” 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.”

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. Our view of Bingham is shared by Alexander Bickel, Leonard Levy, Wallace Mendelson, and even by William Nelson. Michael Zuckert, who regards Curtis favorably, notes that “there was much disagreement among the former abolitionists”; there was agreement only about the due process clause and the First and Fourth Amendments. The “rights in the other amendments,” wrote Jacobus tenBroek, a neoabolitionist, “received only casual, incidental, and infrequent reference.” 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.” Leonard Levy concluded that “there is no reason to believe that Bingham and Howard expressed the view of the majority of Congress.” Probative legislative history cannot be distilled from such conflicting testimony, characterized by Zuckert as “ambiguity and vacillation.”

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.” “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,” 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.

The extensive researches of Fairman, 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.” 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.

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.” 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, the Bill that was considered on all sides to be “identical” with Section One of the Amendment. 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,” 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), 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. Striking reaffirmation of such requirements was furnished in Pierson v. Ray (1967), 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,” 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. 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.” 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.” 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. And how are we to reconcile with “incorporation” of the Bill of Rights the framers’ repeated rejections of proposals to bar all discrimination? 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.” 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. 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. 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.” And in a decision contemporary with the Amendment, the Court said in Minor v. Happersett that “The Amendment did not add to the privileges or immunities of a citizen.”

A word about Justice Cardozo’s statement in Palko v. Connecticut 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. 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 Cases 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.” 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. 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. 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.” 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, he nevertheless considered that the Bill bound State officials to enforce it against the States by virtue of their oath to support the Constitution. Their oath did not bind them to enforce an inapplicable provision. He located “privileges and immunities” in the Bill of Rights, 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,” —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,” 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” 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.

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. 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.” 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” 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,” 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,” despite the denial of suffrage to the blacks, and the framers’ repeated rejection of proposals to prohibit all manner of discrimination, in which Bingham himself joined.

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.” Senator Timothy Howe spoke of the Amendment in terms of the limited provisions of the Civil Rights Act. 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,” 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.” Leonard Levy concluded, “there is no reason to believe that Bingham and Howard expressed the view of the majority of Congress.”

In 1949 Charles Fairman, in what even an activist regards as a “classic” study, 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. That activists should prefer Curtis’s evaluation of the evidence to that of Fairman 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.” Let it suffice that Forrest McDonald stated that I “devastated” Curtis, but engaged in “overkill, roughly comparable to shooting rabbits with a cannon.”

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.” When Samuel Adams claimed “the primary, absolute, natural rights of Englishmen,” he listed the Blackstonian trio, “Personal Security, Personal Liberty and Private Property,” liberty being defined by Blackstone as unrestrained freedom to come and go. 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.

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.

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.” The individual rights Michael Perry champions, he admits, are constructs of the modern Court. 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.” 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.”

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.” 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.’ ” Second, when rights have been claimed as “fundamental,” the Court has insisted that they “be an interest traditionally protected by our society.” If the claim is novel, its “mere novelty . . . is reason enough to doubt that ‘substantive due process’ sustains it.” 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.” 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.” 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.” 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?” 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.” Michael Curtis himself observed that “Republican congressmen typically insisted on protection of individual liberty . . . in the South.” 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.” 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.” 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.” 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.” 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.” 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. 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.” 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.” 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. 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.” “Vague rhetorical principles” that could mean anything to anybody—for example “equality could mean almost anything” —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.” 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.” “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.” 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.” 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.” Senator Fessenden, chairman of the Joint Committee on Reconstruction, held “the extreme radicals” in “abhorrence.” 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.”

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.” Robert Cover, himself an activist, observed that Graham and tenBroek discovered in the “vision” of this minority “roots for their own constitutional aspirations.” 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.” Thus Joel Tiffany, a leading minority theorist, held that “slavery was unconstitutional.” 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.”

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?” 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.

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.” 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. 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.” 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.” 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,” 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.”

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.” True, Justice Samuel Chase invoked supraconstitutional law, 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.”

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.” 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.

Tacitly, commented Louis Henkin, “framers of constitutions and bills of rights distinguished between rights that preexisted society and civil rights enjoyed in society.” John Adams and his compeers did not “use nature . . . as a source for rules of decision.”

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.” George Mason spoke to the same effect. 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.”

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.” 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.” 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.”

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.” 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.” 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?

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.” That which is paramount—supremely controlling —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.”

Sherry cites Thomas Grey’s attribution to the Framers of a “belief in judicially enforceable natural rights.” Grey’s article deals with pre-1787 “revolutionary thought” 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.” 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.” 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. 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.”

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.

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.” For long that remained the view of the Supreme Court.

Despite the Court’s exclusion from policymaking, activists hail it as “ conscience to the country.” For Bruce Ackerman, the “real significance” of Brown v. Board of Education 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.” This was not a mere “call” but a binding decision, notwithstanding that the citizenry did not demand “a fundamental change in our fundamental law.” 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.”

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.” 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,” 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.” This offers scant support for encroachment on the “residuary and inviolable” jurisdiction of the States over personal affairs of their citizens. 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.

But Suzanna Sherry maintains that we are free to make our own “moral choices.” 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.” 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, 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.” 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.” 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.” Rapaczynski observes the judges’ “absence of special competence . . . in matters of general morality.” Then too, Perry considers that “Political-moral philosophy, after all, is in a state of serious disarray,” a view shared by Larry Simon. But Stephen Macedo protests that preclusion of a judicial moral test will leave unreasonable legislation untouched. That is precisely what the Founders intended.

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.” 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.” 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.” 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,” he echoed Francis Bacon’s admonition two hundred years earlier that making law is not for judges, reiterated by Justice James Wilson in the early days of the Republic and restated down the years. 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.”

In departing from the demands of the separation of powers, 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.” 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.” 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.” Hamilton, and before him Blackstone, stated that “an agent cannot new model the terms of his commission.” 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?

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.” In our own time, Justice Holmes declared that it is not the function of judges to “renovate the law. That is not their province.” 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.”

Activists like to regard the Court as “conscience to the country,” and the guardian of the people —until it happens to go counter to a particular activist desire. 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.” 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.” 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.”

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.” It defies common sense to urge that the judiciary, which Hamilton was constrained to assure the Ratifiers was “next to nothing,” 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.” 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. (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.” (3) They had a “profound distrust” of judicial discretion. (4) They were attached to the separation of powers and insisted that courts should not engage in policymaking but act only as interpreters. (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.

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.” 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.” 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. And wonder of wonders, Justice Brennan declared “Justices are not platonic guardians appointed to wield authority according to their personal moral predilections.” 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.” Judging in terms of personal preferences has long been condemned; Blackstone disapproved of judges whose decisions would be regulated “only by their own opinions.” Marshall declared that “the judicial power is never exercised for the purpose of giving effect to the will of the judge.” “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.” 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.” Even activists acknowledge the rule, perhaps perceiving that the substitution “of the individual sense of justice . . . would put an end to the rule of law.” Then too, as James Wilson emphasized in the Convention, laws “may be unjust” and yet be “constitutional.”

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, that they regarded the rights expressed in Blackstone’s triad as “fundamental,” that this triad, the 39th Congress was told, also represented the American view. 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.” Activists would have the courts decide, Michael Perry observes, “what rights, beyond those specified by the framers, individuals should . . . have against government.”

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.” 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.” And Jefferson concurred that the “will of the Majority should always prevail.” Activists would substitute the “tyranny” of the minority for the “bugaboo” of majority “tyranny”; 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?” 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 legislation 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.” 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. 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, limits which Chief Justice Marshall declared were not to be “transcended.” Incensed by my challenge to cherished Warren dogma, 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.” 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; 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.” 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.” 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.” 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.” 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.” 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.

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.” 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.

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.”

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.’ ” He is horrified that “Berger’s theory would deny us Brown,” the “touchstone of constitutional theory.” 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.

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”; and Chief Justice Thomas Cooley wrote, “Acquiescence for no length of time can legalize a clear usurpation of power.” 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.” Long before, Dante wrote that “usurpation of a right does not create a right.” 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.” 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.” 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?” 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.” 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.”

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.’ ” 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.’ ” Now the due process clause of the Fourteenth Amendment, said the Supreme Court, was identical with that of the Fifth. 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.” 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.

Judge William Lawrence, one of the framers of the Fourteenth Amendment, quoted the Hamilton definition to the House in 1871, 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. 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,” 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.’ ” “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.

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, a prohibition rested in Brown v. Board of Education 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.” 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. John Hart Ely, to whom Warren is a “carefully” chosen “hero,” says Bolling is “gibberish both syntactically and historically.” And Brest considers that it “is not supported by even a generous reading of the fifth amendment.” 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.” Such was the Warren legacy; and as Mark Tushnet notes, activist theorizing is “plainly designed to protect the legacy of the Warren Court.”

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.” Unless the Fourteenth Amendment authorizes this “transformation,” it was a naked arrogation in the teeth of the Founders’ exclusion of the Justices from policymaking, and of Hamilton’s assurance that of the three branches the judiciary was “next to nothing.” 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.” 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.” It was such sentiments that led Congress to withdraw jurisdiction in Ex parte McCardle, 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.

The fundamental error in activist thinking is laid bare by Eric Foner. He regards Reconstruction as effecting a “revolution,” and believes that the Fourteenth Amendment was not “a minor adjustment to the Constitution” but “a change in its basic structure.” Phillip Paludan, whose “major concern . . . is that of the national protection for Negro rights,” comes to the contrary conclusion, for reasons which are incontestable. Apart from the pervasive racism which clogged the way, the vast majority cherished the federal system and clung to States’ rights. Respect for federalism, Paludan concluded, was “the most potent obstacle to the Negroes’ hope for protected liberty.” “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. “Federalism remained a barrier to equal rights.” 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.” 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.” 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.” There was “general acceptance of the constitutional views of Pomeroy and Cooley.”

Let me brush in some confirmatory facts. The immediately antecedent Civil Rights Act, which the Amendment was designed to embody to prevent its repeal, was triggered by the Black Codes, whereby the South sought to return the freedmen to serfdom. 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.” One of the “authorities,” Harold Hyman, whom Foner believes “have greatly expanded the horizon of legal scholarship,” observed that Patterson did not “want to undermine state power in any drastic fashion.” 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.” The North, moreover, was given good reason to believe that the “alterations” in the South did not extend to the North. 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.”

Since Foner invokes the Civil Rights Act of 1866 in aid of his vision, 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.” 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.” These were carried into the Act, and Act and Amendment were viewed as “identical.” 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.” Justice Bradley, a contemporary, declared that the “first section of the bill covers the same ground as the fourteenth amendment,” as leading senators confirmed during the ratification campaign. 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,” 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,” “it is currently fashionable,” Frederick Schauer observes, “to make sport of the ability to determine original intent with any degree of certainty.” 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.” His coadjutor, Paul Brest, flatly declares, “It is simply not possible . . . to determine the adopter’s specific intentions.” Herein I shall collate some historical evidence that refutes such rash assertions.

Early American distrust of the judiciary suggests that a doctrine which confined judicial discretion would be welcome. H. Jefferson Powell, the activist “discoverer” of what original intention really meant, recounts that the English Puritans’ suspicion of judges traveled to America. 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”; and they opposed the “judges imposition of their personal views.” Came the Jeffersonian “revolution of 1800” and the Republican victors, Powell notes, viewed it as “the people’s endorsement” of original intention. 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.

“By the outbreak of the Civil War,” Powell observes, “intentionalism in the modern sense reigned supreme.”

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.” 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.” James Garfield rejected an interpretation that went “far beyond the intent and meaning of those who amended the Constitution.” 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.

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.”

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.

Respecting segregation, Congress “had permitted segregated schools in the District of Columbia,” over which it has plenary control; and Senator Sumner vainly “fought to abolish Negro Schools in the District.” 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.” 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” 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,” 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.” Let us then look at the common law.

We need to remember Hamilton’s “The rules of legal interpretation are rules of common sense,” 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.” 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.” 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.” 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.” Earlier Thomas Hobbes and John Locke had written to the same effect. 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.”

(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.”

(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.”

(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).”

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.” “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.” His answer is a confessedly “curious” theory that “ ‘intention’ was an attribute or concept attached primarily to the document itself, and not elsewhere,” that the “basic notion of ‘intent’ [is] a product of the interpretive process rather than something locked into the text by its author.” 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.” 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.” 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’ ” is Hamilton’s 1791 statement during the controversy over the constitutionality of a national bank. Since the Framers’ intention plainly barred his path, 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.” 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.’ ” 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.” 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”; Powell adds, without any factual basis, “not according to any particular meaning the parties may have intended.” 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.” 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.” 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.” Most enlightening is their own explanation of what they intended by their words.

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. Hart reversed an exclusionary practice that first appeared in 1769, 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, 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.” Noting that the courts consulted other “extraneous material,” 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?” 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?” 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.”

Finally, original intention acts as a brake on unlimited judicial discretion, a discretion the Founders profoundly feared. 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.” 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.

More broadly speaking, Judge Frank Easterbrook points out that “Constitutional interpretation . . . is a process of holding an actual government within certain bounds.”

Activists’ writings do not proffer a viable alternative; they are, Mark Tushnet observed, “plainly designed to protect the legacy of the Warren Court.” 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.” The evidence above set forth, which is but a small part of the facts collected elsewhere, demonstrates, in my judgment, that original intention is deeply rooted in Anglo-American law and that it serves as a brake on judges’ imposition of their personal preferences under the guise of interpretation. 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.”

It remains to examine the doubts shed by James Hutson on the reliability of the sources. 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.

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.” Since, as Hutson recounts, Madison obtained copies of set speeches from the speakers, 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.” 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. So too, Madison’s account of the Convention’s rejection of federal charters of incorporation, which he himself had proposed, was corroborated by McHenry’s notes 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.

But Hutson concluded on the basis of hypothetical calculations that Madison “may have recorded only a small part of each day’s proceedings.” 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. 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.”

Hutson finds another feature of Madison’s notes “troublesome.” 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.” This is a sorry analogy. Driven by his desire to influence the political scene, Genet was not overly scrupulous, and Lloyd, Hutson shows, was probably bought and paid for by the Federalists. 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.” 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.” Shorthand reporting was in its infancy; the reporters were inexpert; some were paid by the Federalists or were biased in their favor; and in Pennsylvania and Connecticut the reporter deleted virtually all of the Antifederalist remarks. 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.

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. Hutson tells us that in Massachusetts “ghostwritten” speeches were inserted in the report, 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. 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,” thereby evidencing their satisfaction with Lloyd’s reporting. Their statements were in fact designed to serve as “Federalist campaign literature,” 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.”

As late as August 6 the Convention’s Committee on Detail draft provided that “the Senate . . . shall have power to make treaties.” During the debate Madison “observed that the Senate represented the States alone,” and consequently “the president should be an agent in Treaties.” 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.” 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.” In Federalist No. 38 Madison wrote that the Constitution “empowers the Senate with the concurrence of the Executive to make treaties.”

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.

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.” And Chancellor Livingston said that the Senate is “to form treaties with foreign nations.” In Pennsylvania James Wilson stated, “nor is there any doubt [that] the Senate and President possess the power of making [treaties].” In North Carolina, Samuel Spencer said that the Senate is “in effect, to form treaties.”

(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. Hutson states that Marshall complained that his speeches were inaccurately recorded. 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. 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. 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. 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 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.” 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.” Today the “very notion of the rule of law is at issue.” 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.” 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.” Preestablished rules serve the requirements of certainty and predictability so that people may conduct themselves accordingly. 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.” 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.”

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.

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.” 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,” 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.”

appendix b

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.

Cox comments:

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.

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.

The Writings of Raoul Berger

books

Congress v. The Supreme Court (Cambridge, Harvard University Press, 1969).

Impeachment: Some Constitutional Problems (Cambridge, Harvard University Press, 1973).

Executive Privilege: A Constitutional Myth (Cambridge, Harvard University Press, 1974).

Government by Judiciary: The Transformation of the Fourteenth Amendment (Indianapolis, Liberty Fund, 1997).

Death Penalties: The Supreme Court’s Obstacle Course (Cambridge, Harvard University Press, 1982).

Federalism: The Founders’ Design (Norman, University of Oklahoma Press, 1987).

Selected Writings on the Constitution. Foreword by Philip B. Kurland (Cumberland, Va., James River Press, 1987).

The Fourteenth Amendment and the Bill of Rights (Norman, University of Oklahoma Press, 1988).

articles

“Usury in Instalment Sales,” 2 Law & Contemporary Problems 148 (1935).

“Exhaustion of Administrative Remedies,” 48 Yale Law Journal 981 (1939).

“From Hostage to Contract,” 35 Illinois Law Review 154, 281 (1940).

“Intervention by Public Agencies in Private Litigation in the Federal Courts,” 50 Yale Law Journal 65 (1940).

“Constructive Contempt: A Post-Mortem,” 9 University of Chicago Law Review 602 (1942).

“Freezing Controls: The Effects of an Unlicensed Transaction” (with Boris Bittker), 47 Columbia Law Review 398 (1947).

“Meeting Competition Under the Robinson-Patman Act” (with Abraham S. Goldstein), 44 Illinois Law Review 315 (1949).

“Government Immunity From Discovery” (with Abe Krash), 50 Yale Law Journal 1451 (1950).

“The Status of Independent Producers Under the Natural Gas Act” (with Abe Krash), 30 Texas Law Review 29 (1951).

“Estoppel Against the Government,” 21 University of Chicago Law Review 680 (1954).

“‘Disregarding the Corporate Entity’ for Stockholders’ Benefit,” 55 Columbia Law Review 808 (1955).

“Removal of Judicial Functions From Federal Trade Commission to a Trade Court: A Reply to Mr. Kintner,” 59 Michigan Law Review 199 (1960).

“Administrative Arbitrariness and Judicial Review,” 65 Columbia Law Review 55 (1965).

“Executive Privilege v. Congressional Inquiry” (Parts 1 & 2), 12 UCLA Law Review 1044, 1288 (1965).

“Administrative Arbitrariness: A Rejoinder to Professor Davis’‘Final Word,’” 114 University of Pennsylvania Law Review 816 (1966).

“Administrative Arbitrariness: A Reply to Professor Davis,” 114 University of Pennsylvania Law Review 783 (1966).

“Administrative Arbitrariness: A Sequel,” 51 Minnesota Law Review 601 (1967).

“Do Regulations Really Bind Regulators?” 62 Northwestern University Law Review 137 (1967).

“Retroactive Administrative Decisions,” 115 University of Pennsylvania Law Review 371 (1967).

“Administrative Arbitrariness: A Synthesis,” 78 Yale Law Journal 965 (1969).

“Dr. Bonham’s Case: Statutory Construction of Constitutional Theory,” 117 University of Pennsylvania Law Review 521 (1969).

“Standing to Sue in Public Actions: Is It a Constitutional Requirement?” 78 Yale Law Journal 816 (1969).

“Impeachment of Judges and ‘Good Behavior’ Tenure,” 79 Yale Law Journal 1475 (1970).

“Impeachment for ‘High Crimes and Misdemeanors,’” 44 Southern California Law Review 395 (1971).

“The Presidential Monopoly of Foreign Relations,” 71 Michigan Law Review 1 (1972).

“War-Making by the President,” 121 University of Pennsylvania Law Review 29 (1972).

“Impeachment: A Counter Critique,” 49 Washington Law Review 845 (1974).

“The Incarnation of Executive Privilege,” 22 UCLA Law Review 4 (1974).

“Judicial Review: Countercriticism in Tranquility,” 69 Northwestern University Law Review 390 (1974).

“The President, Congress, and the Courts,” 83 Yale Law Journal 1111 (1974).

“Congressional Subpoenas to Executive Officials,” 75 Columbia Law Review 865 (1975).

“Executive Privilege: A Reply to Professor Sofaer,” 75 Columbia Law Review 603 (1975).

“Executive Privilege: Some Counter Criticism,” 44 University of Cincinnati Law Review 166 (1975).

“Executive Privilege, Professor Rosenblum, and Higher Criticism,” 1975 Duke Law Journal 921.

“Protection of Americans Abroad,” 44 University of Cincinnati Law Review 741 (1975).

“Bills of Attainder: A Study of Amendment by the Court,” 63 Cornell Law Review 355 (1978).

“The Constitution and the Rule of Law,” 1 Western New England Law Review 261 (1978).

“Dean Green: Some Personal Recollections,” 56 Texas Law Review 475 (1978).

“The Fourteenth Amendment: Facts v. Generalities,” 32 Arkansas Law Review 280 (1978).

“Government by Judiciary: Some Countercriticism,” 56 Texas Law Review 1125 (1978).

“War, Foreign Affairs, and Executive Secrecy,” 72 Northwestern University Law Review 309 (1978).

“‘Chilling Judicial Independence’: A Scarecrow,” 64 Cornell Law Review 822 (1979).

“The Fourteenth Amendment: The Framers’ Design,” 30 South Carolina Law Review 495 (1979).

“The Fourteenth Amendment: Light From the Fifteenth,” 74 Northwestern University Law Review 311 (1979).

“Government by Judiciary: John Hart Ely’s Invitation,” 54 Indiana Law Journal 277 (1979).

“‘Government by Judiciary’: Judge Gibbons’ Argument Ad Hominem,” 59 Boston University Law Review 783 (1979).

“‘Law of the Land’ Reconsidered,” 74 Northwestern University Law Review 1 (1979).

“Must the House Consent to Cession of the Panama Canal?” 64 Cornell Law Review 275 (1979).

“The Scope of Judicial Review: An Ongoing Debate,” 6 Hastings Constitutional Law Quarterly 527 (1979).

“The Scope of Judicial Review and Walter Murphy,” 1979 Wisconsin Law Review 341.

“‘The Supreme Court as a Legislature’: A Dissent,” 64 Cornell Law Review 988 (1979).

“A Comment on ‘Due Process of Law,’” 31 South Carolina Law Review 661 (1980).

“Congressional Contraction of Federal Jurisdiction,” 1980 Wisconsin Law Review 801.

“The Ninth Amendment,” 66 Cornell Law Review 1 (1980).

“A Political Scientist as Constitutional Lawyer: A Reply to Louis Fisher,” 41 Ohio State Law Journal 147 (1980).

“The President’s Unilateral Termination of the Taiwan Treaty,” 75 Northwestern University Law Review 577 (1980).

“The Scope of Judicial Review: A Continuing Dialogue,” 31 South Carolina Law Review 171 (1980).

“Ely’s ‘Theory of Judicial Review,’” 42 Ohio State Law Journal 87 (1981).

“Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat,” 42 Ohio State Law Journal 435 (1981).

“Paul Brest’s Brief for an Imperial Judiciary,” 40 Maryland Law Review 1 (1981).

“Residence Requirements for Welfare and Voting: A Post-Mortem,” 42 Ohio State Law Journal 853 (1981).

“Soifer to the Rescue of History,” 32 South Carolina Law Review 427 (1981).

“Paul Dimond Fails to ‘Meet Raoul Berger on Interpretivist Grounds,’” 43 Ohio State Law Journal 285 (1982).

“Incorporation of the Bill of Rights: A Reply to Michael Curtis’ Response,” 44 Ohio State Law Journal 1 (1983).

“Insulation of Judicial Usurpation: A Comment on Lawrence Sager’s Court-Stripping Polemic,” 44 Ohio State Law Journal 611 (1983).

“Mark Tushnet’s Critique of Interpretivism,” 51 George Washington Law Review 532 (1983).

“Michael Perry’s Functional Justification for Judicial Activism,” 8 University of Dayton Law Review 465 (1983).

“A Study of Youthful Omniscience: Gerald Lynch on Judicial Review,” 36 Arkansas Law Review 215 (1983).

“The Activist Legacy of the New Deal Court,” 59 Washington Law Review 751 (1984).

“Death Penalties and Hugo Bedau: A Crusading Philosopher Goes Overboard,” 45 Ohio State Law Journal 863 (1984).

“G. Edward White’s Apology for Judicial Activism,” 63 Texas Law Review 367 (1984).

“Lawyering v. Philosophizing: Facts or Fancies,” 9 University of Dayton Law Review 171 (1984).

“A Response to D. A. J. Richards’ Defense of Freewheeling Constitutional Adjudication,” 59 Indiana Law Journal 339 (1984).

“Constitutional Law and the Constitution,” 19 Suffolk University Law Review 1 (1985).

“Benno Schmidt v. Rehnquist and Scalia,” 47 Ohio State Law Journal 709 (1986).

“Cottrol’s Failed Rescue Mission,” 37 Boston College Law Review 481 (1986).

“McAffee v. Berger: A Youthful Debunker’s Rampage,” 22 Willamette Law Review 1 (1986).

“New Theories of ‘Interpretation’: The Activist Flight From the Constitution,” 47 Ohio State Law Journal 1 (1986).

“‘Original Intention’ in Historical Perspective,” 54 George Washington Law Review 296 (1986).

“Some Reflections on Interpretivism,” 55 George Washington Law Review 1 (1986).

“Death Penalties: A Response to Stephen Gillers,” 24 Willamette Law Review 1 (1988).

“Federalism: The Founders’ Design: A Response to Michael McConnell,” 57 George Washington Law Review 51 (1988).

“Justice Brennan v. The Constitution,” 29 Boston College Law Review 787 (1988).

“Originalist Theories of Constitutional Interpretation,” 73 Cornell Law Review 350 (1988).

“The Founders’ Views—According to Jefferson Powell,” 67 Texas Law Review 1033 (1989).

“History, Judicial Revisionism, and J. M. Balkin,” 1989 Brigham Young University Law Review 759.

“Original Intent and Leonard Levy,” 42 Rutgers Law Review 255 (1989).

“Fantasizing About the Fourteenth Amendment,” 1990 Wisconsin Law Review 1043.

“The Jury’s Role in Capital Cases Is Immune From Judicial Interference,” 1990 Brigham Young University Law Review 639.

“Justice Samuel Chase v. Thomas Jefferson: A Response to Stephen Presser,” 1990 Brigham Young University Law Review 873.

“The Ninth Amendment: The Beckoning Mirage,” 42 Rutgers Law Review 951 (1990).

“Robert Bork’s Contribution to Original Intention,” 84 Northwestern University Law Review 1167 (1990).

“Activist Censures of Robert Bork,” 85 Northwestern University Law Review 993 (1991).

“Incorporation of the Bill of Rights: A Response to Michael Zuckert,” 26 Georgia Law Review 1 (1991).

“Lawrence Church on the Scope of Judicial Review and Original Intention,” 70 North Carolina Law Review 113 (1991).

“Original Intent: Bittker v. Berger,” 1991 Brigham Young University Law Review 1201.

“Original Intent and Boris Bittker,” 66 Indiana Law Journal 723 (1991).

“Bruce Ackerman on Interpretation: A Critique,” 1992 Brigham Young University Law Review 1035.

“Natural Law and Judicial Review: Reflections of an Earthbound Lawyer,” 61 University of Cincinnati Law Review 5 (1992).

“‘Original Intent’: A Response to Hans Baade,” 70 Texas Law Review 1535 (1992).

“The Transfiguration of Samuel Chase: A Rebuttal,” 1992 Brigham Young University Law Review 559.

“Activist Indifference to Facts,” 61 Tennessee Law Review 9 (1993).

“Constitutional Interpretation and Activist Fantasies,” 82 Kentucky Law Journal 1 (1993).

“Incorporation of the Bill of Rights: Ahkil Amar’s Wishing Well,” 62 University of Cincinnati Law Review 1 (1993).

“Original Intent: The Rage of Hans Baade,” 71 North Carolina Law Review 1151 (1993).

“An Anatomy of False Analysis: Original Intent,” 1994 Brigham Young University Law Review 715.

“The Ninth Amendment, as Perceived by Randy Barnett,” 88 Northwestern University Law Review 1508 (1994).

“Suzannah and—The Ninth Amendment,” 1994 Brigham Young University Law Review 51.

“A Lawyer Lectures a Judge,” 18 Harvard Journal of Law and Public Policy 851 (1995).

“Liberty and the Constitution,” 29 Georgia Law Review 585 (1995).

“Judicial Manipulation of the Commerce Clause,” 17 Texas Law Review 695 (1996).

“The ‘Original Intent’—As Perceived by Michael McConnell,” 91 Northwestern University Law Review 242 (1996).

“Jack Rakove’s Rendition of Original Meaning,” 72 Indiana Law Journal 619 (1997).

“Ronald Dworkin’s ‘Moral Reading of the Constitution,’” 72 Indiana Law Journal [no. 4] (1997).

Bibliography

i. federal documents

Act of April 9, 1866, Ch. 21, 14 Statutes 27.

Annals of the Congress of the United States, 1789–1824, 42 vols. (Washington, Gales & Seaton, 1834).

Avins, Alfred, ed. The Reconstruction Amendments’ Debates (Richmond, Va., Virginia Commission on Constitutional Government, 1967).

The Congressional Globe, 1833–1873, 46 vols. (Blair & Rives, 1834–1873).

Hearings on Executive Privilege Before the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary, 92d Congress, 1st Session (July 1971).

Hearings on the Supreme Court Before the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary, 90th Congress, 2d Session (June 1968).

Richardson, James D., comp. The Messages and Papers of the Presidents (Washington, Government Printing Office, 1889–1905).

ii. books

Acheson, Dean. Morning and Noon (Boston, Houghton Mifflin, 1965).

Ackerman, Bruce. We the People: Foundations (Cambridge, Harvard University Press, 1991).

Adams, Henry. John Randolph (Boston and New York, Houghton Mifflin, 1882).

Adams, John Quincy. Life in a New England Town: 1787, 1788. Diary of John Quincy Adams (Boston, Little, Brown, 1903).

Adams, Samuel. The Writings of Samuel Adams, Harry A. Cushing, ed. 4 vols. (New York, G. P. Putnam’s Sons, 1904–1908).

Allen, Sir C. K. Law in the Making, 6th ed. (Oxford, Clarendon Press, 1958).

Bacon, Francis. Selected Writings of Francis Bacon (New York, Mod. Lib. ed., 1937).

Bacon, Matthew. A New Abridgment of the Laws of England, 8 vols., 3d ed. (London, 1768).

Bailyn, Bernard. The Ideological Origins of the American Constitution (Cambridge, Harvard University Press, 1967).

Baldwin, Henry. A General View of the Origin and Nature of the Constitution and Government of the United States (Philadelphia, J. C. Clark, 1837).

Barnett, Randy E., ed. The Rights Retained by the People, 2 vols. (Fairfax, Va., George Mason University Press, 1993).

Bemis, Samuel F. John Quincy Adams and the Foundation of American Foreign Policy (New York, Knopf, 1949).

———. John Quincy Adams and the Union (New York, Knopf, 1956).

Benedict, Michael Les. A Compromise of Principle: Conservative Republicans and Reconstruction, 1863–1869 (New York, Norton, 1974).

Berenson, Bernard. Conversations With Berenson[by] Umberto Morra. Translated from the Italian by Florence Hammond (Boston, Houghton Mifflin, 1965).

Berger, Raoul. Congress v. The Supreme Court (Cambridge, Harvard University Press, 1969).

———. Executive Privilege: A Constitutional Myth (Cambridge, Harvard University Press, 1974).

———. Tbe Fourteenth Amendment and the Bill of Rights (Norman, University of Oklahoma Press, 1989).

———. Government by Judiciary: The Transformation of the Fourteenth Amendment (Indianapolis, Liberty Fund, 1997).

———. Impeachment: The Constitutional Problems (Cambridge, Harvard University Press, 1973).

———. Selected Writings on the Constitution (Cumberland, Va., James River Press, 1987).

Biancolli, Louis. The Book of Great Conversations (New York, Simon and Schuster, 1948).

Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Bobbs-Merrill, 1962).

———. The Supreme Court and the Idea of Progress (New York, Harper & Row, 1978).

Black, Charles L., Jr. The People and the Court: Judicial Review in a Democracy (New York, Macmillan, 1960).

Blackstone, William. Commentaries on the Laws of England, 4 vols. (London, 1765–1769).

Boorstin, Daniel J. The Discoverers (New York, Random House, 1983).

———, ed. American Primer (New York, Dutton, 1968).

Bork, Robert H. The Tempting of America: The Political Seduction of the Law (New York, Free Press, 1990).

Boswell, James. The Life of Samuel Johnson, Everyman ed. (New York, Knopf, 1992).

Bowen, Catherine D. Francis Bacon: The Temper of a Man (Boston, Little, Brown, 1963).

Bracton, Henry de. Treatise on the Laws and Customs of England, Samuel Thorne, ed. (Cambridge, Harvard University Press, 1968).

Brest, Paul. Processes of Constitutional Decisionmaking: Cases and Materials (Boston, Little, Brown, 1975).

Brinton, Crane, John B. Christopher, and Robert L. Wolff. A History of Civilization (Englewood Cliffs, N.J., Prentice-Hall, 1960).

Brock, W. R. An American Crisis: Congress and Reconstruction, 1865–1867 (London, Macmillan, 1963).

Brodie, Fawn M. Thaddeus Stevens: Scourge of the South (New York, Norton, 1959).

Brooks, Van Wyck. Days of the Phoenix (New York, Dutton, 1957).

Butterfield, Sir Herbert. George III and the Historians (New York, Macmillan, 1969).

Cahn, Edmond N., ed. Supreme Court and Supreme Law (Bloomington, Indiana University Press, 1954).

Cardozo, Benjamin N. The Growth of the Law (New Haven, Yale University Press, 1924).

———. The Nature of the Judicial Process (New Haven, Yale University Press, 1921).

———. The Paradoxes of Legal Science (New York, Columbia University Press, 1928).

———. Selected Writings of Benjamin Cardozo, Margaret Hall, ed. (New York, Fallon, 1947).

Choper, Jesse H. Judicial Review and the National Political Process (Chicago, University of Chicago Press, 1980).

Chrimes, S. B. English Constitutional Ideas in the Fifteenth Century (Cambridge, Cambridge University Press, 1936).

Clark, Ronald W. Einstein: The Life and Times (New York, Thomas Y. Crowell, 1971).

Coke, Edward. Institutes of the Laws of England, 4 vols. (London, 1628–1644).

Commager, Henry Steele, ed. Documents of American History, 7th ed. (New York, Appleton-Century, 1963).

Cooley, Thomas. A Treatise on the Constitutional Limitations, 8th ed. (Boston, Little, Brown, 1927).

Corwin, Edward S. American Constitutional History, A. T. Mason and G. Garvey, eds. (New York, Harper & Row, 1964).

———. The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays (Princeton, Princeton University Press, 1914).

———. The Twilight of the Supreme Court (New Haven, Yale University Press, 1934).

Cover, Robert. Justice Accused: Antislavery and the Judicial Process (New Haven, Yale University Press, 1975).

Cox, Archibald. The Role of the Supreme Court in American Government (New York, Oxford University Press, 1976).

Curtis, Michael B. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, Duke University Press, 1986).

Donald, David. Charles Sumner and the Coming of the Civil War (New York, Knopf, 1960).

———. Charles Sumner and the Rights of Man (New York, Knopf, 1970).

———. The Politics of Reconstruction (Baton Rouge, Louisiana State University Press, 1965).

Durant, Will. The Age of Faith (New York, Simon and Schuster, 1950).

Dwarris, Fortunatus. A General Treatise on Statutes (London, W. Benning, 1848).

Elkins, Stanley, and Eric L. McKitrick. The Age of Federalism: The Early American Republic, 1788–1800 (Oxford, Oxford University Press, 1993).

Elliot, Jonathan, ed. Debates in the Several State Conventions on the Adoption of the Federal Constitution, 4 vols., 2d ed. (Washington, D.C., J. Elliot, 1836).

Elliott, Ward E. Y. The Rise of a Guardian Democracy (Cambridge, Harvard University Press, 1974).

Ely, John H. Democracy and Distrust: A Theory of Judicial Review (Cambridge, Harvard University Press, 1980).

Fairman, Charles. Mr. Justice Miller and the Supreme Court (Cambridge, Harvard University Press, 1939).

———. Reconstruction and Reunion, 1864–1888, vol. 6, pt. 1, of History of the Supreme Court of the United States (New York, Macmillan, 1971).

Farrand, Max, ed. The Records of the Federal Convention of 1787, 4 vols. (New Haven, Yale University Press, 1911).

The Federalist (New York, Modern Library ed., 1937).

The Federalist Papers. Introduction and commentary by Garry Wills (New York, Bantam, 1982).

Flack, Horace. The Adoption of the Fourteenth Amendment (Baltimore, Johns Hopkins University Press, 1908).

Frankfort, Henri A., et al. The Intellectual Adventure of Ancient Man: An Essay on Speculative Thought in the Ancient Near East (Chicago, University of Chicago Press, 1977).

Frankfurter, Felix. The Commerce Clause Under Marshall, Taney, and Waite (Chapel Hill, University of North Carolina Press, 1937).

———. Law and Politics, A. Macleish and E. F. Prichard, eds. (New York, Harcourt Brace, 1938).

———. Mr. Justice Holmes and the Supreme Court (Cambridge, Harvard University Press, 1938).

———. Of Law and Men, Philip Elman, ed. (New York, Harcourt Brace, 1956).

Freedman, M., ed. Roosevelt and Frankfurter: Their Correspondence, 1928–1945 (Boston, Little, Brown, 1967).

Gay, Peter, et al., eds. Historians at Work, 4 vols. (New York, Irvington Publishers, 1975).

Gibbon, Edward. The History of the Decline and Fall of the Roman Empire (New York, Nottingham Society, undated).

Gillette, William. The Right to Vote: Politics and the Passage of the Fifteenth Amendment (Baltimore, Johns Hopkins University Press, 1965).

Goebel, Julius. Antecedents and Beginnings to 1801, vol. 1 of History of the Supreme Court of the United States (New York, Macmillan, 1971).

Goebel, Julius, and T. R. Naughton. Law Enforcement in Colonial New York, 1664–1776 (Montclair, N.J., Patterson Smith, 1970).

Gough, John W. Fundamental Law in English Constitutional History (Oxford, Clarendon Press, 1955).

Graglia, Lino A. Disaster by Decree (Ithaca, Cornell University Press, 1976).

Graham, Howard Jay. Everyman’s Constitution (New York, Norton, 1968).

The Great Debate: Interpreting Our Constitution (Washington, D.C., Federalist Society, 1986).

Griffith, Kathryn. Judge Learned Hand and the Role of the Federal Judiciary (Norman, University of Oklahoma Press, 1973).

Gunther, Gerald, ed. John Marshall’s Defense of McCulloch v. Maryland (Stanford, Stanford University Press, 1969).

Haines, Charles G. The Revival of Natural Law Concepts (Cambridge, Harvard University Press, 1930).

Hale, Sir Matthew. History of the Pleas of the Crown (London, 1736).

Hamilton, Alexander. The Papers of Alexander Hamilton, H. C. Syrett and J. E. Cooke, eds., 27 vols. (New York, Columbia University Press, 1961–1981).

———. Works of Alexander Hamilton, H. C. Lodge, ed., 12 vols. (New York, Knickerbocker Press, 1904).

Hand, Learned. The Bill of Rights (Cambridge, Harvard University Press, 1962).

———. The Spirit of Liberty: Papers and Addresses of Learned Hand, Irving Dilliard, ed. (New York, Knopf, 1952).

Harris, Robert J. The Quest for Equality (Baton Rouge, Louisiana State University Press, 1960).

Hart, Henry M., and Albert Sacks. “The Legal Process: Basic Problems in the Making and Application of Law” (unpublished manuscript, 1958).

Hatton, Christopher. A Treatise Concerning Statutes and Acts of Parliament and the Exposition Thereof (London, 1677).

Hauser, Arnold. The Social History of Art, 4 vols. (New York, Vintage Books, undated).

Heller, Francis H. The Sixth Amendment to the Constitution of the United States (Lawrence, University of Kansas Press, 1951).

Hickok, Eugene W., ed. The Bill of Rights: Original Meaning and Current Understanding (Charlottesville, University Press of Virginia, 1991).

Himmelfarb, Gertrude. Victorian Minds (New York, Knopf, 1968).

Hobbes, Thomas. Leviathan (Cambridge, Cambridge University Press, 1991).

Hockett, H. C. The Constitutional History of the United States, 1826–1876 (New York, Macmillan, 1939).

Hofstadter, Richard. Anti-Intellectualism in American Life (New York, Knopf, 1963).

Holmes, Oliver Wendell, Jr. Collected Legal Papers (New York, Harcourt Brace, 1920).

———. The Common Law (Boston, Little, Brown, 1881).

Hook, Sidney. Philosophy and Public Policy (Carbondale, Southern Illinois University Press, 1980).

Horwitz, Morton J. The Transformation of American Law (Cambridge, Harvard University Press, 1977).

Howe, Mark de W., ed. Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski (Cambridge, Harvard University Press, 1953).

Hughes, Charles Evans. The Autobiographical Notes of Charles Evans Hughes, D. J. Danielski and J. S. Tulchin, eds. (Cambridge, Harvard University Press, 1973).

———. The Supreme Court of the United States: Its Foundation, Methods, and Achievements, an Interpretation (New York, Columbia University Press, 1928).

Hurst, James Willard. The Legitimacy of the Business Corporation in the Law of the United States (Charlottesville, University Press of Virginia, 1970).

Hyman, Harold M. A More Perfect Union (New York, Knopf, 1973).

———, ed. New Frontiers of the American Reconstruction (Urbana, University of Illinois Press, 1966).

Jackson, Robert H. The Struggle for Judicial Supremacy: A Study of a Crisis in American Political Power (New York, Knopf, 1941).

James, Joseph B. The Framing of the Fourteenth Amendment (Urbana, University of Illinois Press, 1965).

Jefferson, Thomas. Writings, Paul Leicester Ford, ed., 10 vols. (New York, G. P. Putnam’s Sons, 1892–1899).

———. The Writings of Thomas Jefferson, Andrew A. Lipscomb, ed., 20 vols. (Washington, D. C., 1903).

Keller, Morton. Affairs of State (Cambridge, Harvard University Press, 1977).

Kendrick, Benjamin. The Journal of the Joint Committee of Fifteen on Reconstruction (New York, Columbia University Press, 1914).

Kent, James. Commentaries on American Law, 9th ed., 4 vols. (Boston, Little, Brown, 1858).

Kluger, Richard. Simple Justice (New York, Knopf, 1976).

Kurland, Philip B. Politics, the Constitution, and the Warren Court (Chicago, University of Chicago Press, 1970).

Lacy, Dan. The White Use of Black in America (New York, Atheneum, 1972).

Lash, Joseph P. From the Diaries of Felix Frankfurter (New York, Norton, 1975).

Lerner, M., ed. The Mind and Faith of Justice Holmes (Garden City, N.Y., Halcyon House, 1943).

Levy, Leonard. Against the Law: The Nixon Court and Criminal Justice (New York, Harper & Row, 1974).

———, et al., eds. Encyclopedia of the American Constitution, 4 vols. (New York, Macmillan, 1986).

———. Judgments: Essays in American Constitutional History (Chicago, Quadrangle Books, 1972).

———, ed. Judicial Review and the Supreme Court (New York, Harper & Row, 1967).

———. Original Intent and the Framers’ Constitution (New York, Macmillan, 1988).

———, ed. The Supreme Court Under Earl Warren (New York, Quadrangle Books, 1972).

Locke, John. An Essay Concerning Human Understanding, Raymond Wilburn, ed. (New York, Dutton, 1947).

———. Two Treatises of Government, Peter Laslett, ed. (Cambridge, Cambridge University Press, 1960).

London, Ephraim, ed. The World of Law: The Law as Literature (New York, Simon and Schuster, 1960).

Lusky, Louis. By What Right? (Charlottesville, Michie, 1975).

McClellan, James. Joseph Story and the American Constitution: A Study in Political and Legal Thought With Selected Writings (Norman, University of Oklahoma Press, 1971).

McCloskey, Robert G. The American Supreme Court (Chicago, University of Chicago Press, 1960).

McDonald, Forrest. The American Presidency: An Intellectual History (Lawrence, University Press of Kansas, 1994).

———. Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, University Press of Kansas, 1985).

McDowell, Gary L. The Constitution and Contemporary Constitutional Theory (Cumberland, Va., Center for Judicial Studies, 1985).

McIlwain, Charles H. Constitutionalism: Ancient and Modern, rev. ed. (Ithaca, Cornell University Press, 1947).

———. The High Court of Parliament and Its Supremacy (New Haven, Yale University Press, 1910).

McKitrick, Eric L. Andrew Johnson and Reconstruction (Chicago, University of Chicago Press, 1960).

McRee, G. J. Life and Correspondence of James Iredell, 2 vols. (New York, Appleton, 1857–1858).

Madison, James. Letters and Other Writings of James Madison, congressional edition, 4 vols. (Philadelphia, J. B. Lippincott, 1865).

———. Writings, Gaillard Hunt, ed., 9 vols. (New York, Putnam, 1900–1910).

Marshall, Burke, ed. A Workable Government? The Constitution After 200 Years (New York, W. W. Norton, 1987).

Mason, Alpheus T. Brandeis: A Free Man’s Life (New York, Viking Press, 1946).

———. Harlan Fiske Stone: Pillar of the Law (New York, Viking Press, 1956).

———. Security Through Freedom: American Political Thought and Practice (Ithaca, Cornell University Press, 1955).

———. The States Rights Debate: Antifederalism and the Constitution (Englewood Cliffs, N.J., Prentice-Hall, 1964).

———. The Supreme Court: Palladium of Freedom (Ann Arbor, University of Michigan Press, 1962).

Mason, Alpheus T., and W. M. Beaney. American Constitutional Law (Englewood Cliffs, N.J., Prentice-Hall, 1954).

Mencken, Henry T. Treatise of Right and Wrong (New York, Knopf, 1934).

Mendelson, Wallace. Justices Black and Frankfurter: Conflict in the Court (Chicago, University of Chicago Press, 1961).

———. The Supreme Court: Law and Discretion (Indianapolis, Bobbs-Merrill, 1967).

Meyer, Michael J., and William A. Parent, eds. The Constitution of Rights: Human Dignity and American Values (Ithaca, Cornell University Press, 1992).

Meyers, Marvin, ed. The Mind of the Founders: Sources of Political Thought of James Madison (Indianapolis, Bobbs-Merrill, 1973).

Miller, Charles A. The Supreme Court and the Uses of History (Cambridge, Harvard University Press, 1969).

Morgan, J. H. John, Viscount Morley; An Appreciation and Some Reminiscences (Boston, Houghton Mifflin, 1924).

Morison, Samuel Eliot. The Oxford History of the American People (New York, Oxford University Press, 1965).

Muller, Herbert. Uses of the Past (New York, Oxford University Press, 1952).

Murphy, Paul. The Constitution in Crisis Times, 1918–1969 (New York, Harper & Row, 1972).

Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Harvard University Press, 1988).

Nevins, Allan. The Emergence of Lincoln (New York, Charles Scribner’s Sons, 1950).

Nock, Albert J. Jefferson (New York, Harcourt, Brace and Company, 1926).

Oakeshott, Michael. Rationalism in Politics and Other Essays (London, Methuen and Co., 1962).

Onuf, Peter, ed. Jeffersonian Legacies (Charlottesville, University Press of Virginia, 1993).

Oxford Dictionary of Quotations, 3d ed. (New York, Oxford University Press, 1979).

Padover, Saul K. Jefferson, abridged ed. (New York, Penguin, 1970).

Paludan, Phillip S. A Covenant With Death (Urbana, University of Illinois Press, 1975).

Patterson, Caleb P. The Constitutional Principles of Thomas Jefferson (Austin, University of Texas Press, 1953).

Pendleton, Edmund. Letters and Papers, D. J. Mays, ed., 2 vols. (Charlottesville, University Press of Virginia, 1967).

Perry, Michael J. The Constitution, the Courts, and Human Rights (New Haven, Yale University Press, 1982).

Pocock, J. G. A. The Ancient Constitution and Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, Cambridge University Press, 1987).

Poore, Benjamin Perley, ed. Federal and State Constitutions, Colonial Charters, 2 vols. (Washington, D.C., Government Printing Office, 1877).

Posner, Richard. The Federal Courts: Crisis and Reform (Cambridge, Harvard University Press, 1985).

Powell, J. Essay Upon the Law of Contracts and Agreements, 2 vo1s. (London, 1790).

Powell, Thomas Reed. Vagaries and Varieties in Constitutional Interpretation (New York, Columbia University Press, 1956).

Randall, J. R. The Making of the Modern Mind (Boston, Houghton Mifflin, 1940).

Ray, Gordon N. Thackeray: The Age of Wisdom, 1847–1863 (New York, McGraw Hill, 1958).

Roberts, C., ed. Has the Court Too Much Power (1974).

Roberts, Owen. The Court and the Constitution (Cambridge, Harvard University Press, 1951).

Rodell, Fred. Nine Men (New York, Random House, 1955).

Rossiter, Clinton. Alexander Hamilton and the Constitution (New York, Harcourt, Brace & World, 1964).

Rowse, A. L. A Cornishman at Oxford (London, J. Cape, 1965).

Rutherforth, Thomas. Institutes of Natural Law, 2 vols. (Cambridge, J. Bentham, 1754–1756).

Samuels, Ernest. Henry Adams: The Major Phase (Cambridge, Harvard University Press, 1964).

Schlesinger, Arthur M., Jr. The Disuniting of America (New York, Norton, 1992).

Schwartz, Bernard, ed. The Fourteenth Amendment: Centennial Volume (New York, New York University Press, 1970).

Selden, John. Table Talk: Being the Discourses of John Selden, Esq. (London, 1696).

Shapiro, Martin. Law and Politics in the Supreme Court (New York, Free Press of Glencoe, 1964).

Skidelsky, Robert. John Maynard Keynes: Hopes Betrayed, 1883–1920 (New York, Viking Press, 1986).

Smith, Homer W. Man and His Gods (Boston, Little, Brown, 1953).

Smith, Page. John Adams, 2 vols. (Garden City, N.Y., Doubleday, 1962).

Speaight, Robert. The Life of Hilaire Belloc (London, Hollis & Carter, 1957).

Stampp, Kenneth M. The Peculiar Institution (New York, Vintage Books, 1956).

Storing, Herbert J., ed. The Complete Antifederalist, 7 vols. (Chicago, University of Chicago Press, 1981).

Story, Joseph. Commentaries on the Constitution of the United States, 2 vols., 5th ed. (Boston, Little, Brown, 1905).

Strickland, S. P., ed. Hugo Black and the Supreme Court: A Symposium. Foreword by C. L. Black (Indianapolis, Bobbs-Merrill, 1967).

Swift, Zephaniah. A System of the Laws of the State of Connecticut, 2 vols. (Windham, Conn., 1795–1796).

Swiggett, Howard. The Extraordinary Mr. Morris (Garden City, N.Y., Doubleday, 1952).

TenBroek, Jacobus. Equal Under Law (London, Collier Books, 1965).

Thorne, Samuel, ed. A Discourse Upon the Exposicion & Understandinge of Statutes (San Marino, Calif., Huntington Library, 1942).

Tocqueville, Alexis de. Democracy in America, 2 vols. (New York, Colonial Press, 1900).

Trevelyan, G. M. An Autobiography and Other Essays (Salem, N.H., Ayer Company Publishers, 1949).

———. Illustrated History of England (London, Longmans, Green, 1956).

Twiss, Benjamin R. Lawyers and the Constitution (Princeton, Princeton University Press, 1942).

Van Doren, Carl. Benjamin Franklin (New York, Viking Press, 1968).

Washington, George. Writings, J. Fitzpatrick, ed., 39 vols. (Washington, D.C., Government Printing Office, 1940).

White, G. Edward. The American Judicial Tradition (New York, Oxford University Press, 1976).

———. Earl Warren: A Public Life (New York, Oxford University Press, 1982).

Wilson, Edmund. Europe Without a Baedeker (New York, Farrar Strauss, 1966).

———. Patriotic Gore (New York, Oxford University Press, 1962).

Wilson, James. The Works of James Wilson, R. G. McCloskey, ed., 2 vols. (Cambridge, Harvard University Press, 1967).

Wood, Gordon S. The Creation of the American Republic, 1776–1789 (Chapel Hill, University of North Carolina Press, 1969).

———. The Radicalism of the American Revolution (New York, Knopf, 1991).

Woodward, C. Vann. The Burden of Southern History (Baton Rouge, Louisiana State University Press, 1960).

Wright, Benjamin F. American Interpretations of Natural Law: A Study in the History of Political Thought (Cambridge, Harvard University Press, 1931).

———. The Growth of American Constitutional Law (New York, Henry Holt, 1942).

iii. articles

Abraham, Henry J. “‘Equal Justice Under Law’ or ‘Justice at Any Cost’”? The Judicial Role Revisited: Reflections on Government by Judiciary,” 6 Hastings Constitutional Law Quarterly 467 (1979).

Adler, Mortimer. “Robert Bork: The Lessons to Be Learned,” 84 Northwestern University Law Review 1121 (1990).

Alexander, Larry A. “Modern Equal Protection Theories: A Metatheoretical Taxonomy and Critique,” 42 Ohio State Law Journal 3 (1981).

Alfange, Dean, Jr. “On Judicial Policymaking and Constitutional Change: Another Look at the ‘Original Intent’ Theory of Constitutional Interpretation,” 5 Hastings Constitutional Law Quarterly 603 (1978).

Allen, Francis. “The Constitution: The Civil War Amendments: XIII-XV,” in Daniel J. Boorstin ed., American Primer 165 (1968).

Amar, Akhil R. “The Bill of Rights and the Fourteenth Amendment,” 101 Yale Law Journal 1193 (1992).

Annan, Noel. “Introduction,” in Isaiah Berlin, Personal Impressions (1981).

Arnold, Thurman. “Professor Hart’s Theology,” 73 Harvard Law Review 1298 (1960).

Aron, Raymond. “Pensées,” New York Times, October 23, 1981, at E19.

Auden, W. H. “Introduction,” in Sydney Smith, Selected Writings of Sydney Smith (W. H. Auden ed. 1956).

Auerbach, Carl. “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 Supreme Court Review 1.

Baade, Hans W. “‘Original Intention’: Raoul Berger’s Fake Antique,” 70 North Carolina Law Review 1523 (1992).

Balkin, J. M. “Constitutional Interpretation and the Problem of History,” 63 New York University Law Review 911 (1988).

Bell, Derrick. “Book Review,” 76 Columbia Law Review 350 (1976).

———. “The Burden of Brown on Blacks: History Based on Observations of a Landmark Decision,” 7 North Carolina Central Law Journal 25 (1975).

Beloff, Max. “Arbiters of America’s Destiny,” The Times Higher Education Supplement (London), April 7, 1978, at 11.

Berger, Raoul. “Bruce Ackerman on Interpretation: A Critique,” 1992 Brigham Young University Law Review 1035.

———. “Constitutional Interpretation and Activist Fantasies,” 82 Kentucky Law Journal 1 (1993).

———. “Constructive Contempt: A Post-Mortem,” 9 University of Chicago Law Review 602 (1942).

———. “Cottrol’s Failed Rescue Mission,” 37 Boston College Law Review 787 (1988).

———. “The Founders’ Views—According to Jefferson Powell,” 67 Texas Law Review 1033 (1989).

———. “The Fourteenth Amendment: Light from the Fifteenth,” 74 Northwestern University Law Review 311 (1979).

———. “‘Government by Judiciary’: Judge Gibbons’ Argument Ad Hominem,” 59 Boston University Law Review 783 (1979).

———. “History, Judicial Revisionism, and J. M. Balkin,” 1989 Brigham Young University Law Review 759.

———. “Incorporation of the Bill of Rights: A Nine-Lived Cat,” 42 Ohio State Law Journal 435 (1981).

———. “Incorporation of the Bill of Rights: A Reply to Michael Curtis’ Response,” 44 Ohio State Law Journal 1 (1983).

———. “Incorporation of the Bill of Rights: A Response to Michael Zuckert,” 26 Georgia Law Review 1 (1991).

———. “Judicial Review: Counter Criticism in Tranquillity,” 69 Northwestern University Law Review 390 (1974).

———. “Justice Brennan’s ‘Human Dignity’ and Constitutional Interpretation,” in Michael J. Meyer and William A. Parent, eds., The Constitution of Rights: Human Dignity and American Values (1992).

———. “Justice Brennan vs. the Constitution,” 29 Boston College Law Review 787 (1988).

———. “Natural Law and Judicial Review: Reflections of an Earthbound Lawyer,” 61 University of Cincinnati Law Review 5 (1992).

———. “Original Intent: The Rage of Hans Baade,” 71 North Carolina Law Review 1523 (1993).

———. “‘Original Intent’: A Response to Hans Baade,” 70 Texas Law Review 1535 (1992).

———. “Original Intention in Historical Perspective,” 54 George Washington Law Review 296 (1986).

———. “Paul Brest’s Brief for an Imperial Judiciary,” 40 Maryland Law Review 1 (1981).

———. “Soifer to the Rescue of History,” 32 South Carolina Law Review 427 (1981).

———. “Some Reflections on Interpretivism,” 55 George Washington Law Review 1 (1986).

———. “War-Making by the President,” 121 University of Pennsylvania Law Review 29 (1972).

Bickel, Alexander M. “Is the Warren Court Too ‘Political’?”The New York Times Magazine, September 25, 1966, in Leonard Levy, ed., The Supreme Court Under Earl Warren 216 (1972).

———. “The Original Understanding and the Segregation Decision,” 69 Harvard Law Review 1 (1955).

Bickel, Alexander M., and Harry Wellington. “Legislative Purpose and the Judicial Process: The Lincoln Mills Case,” 71 Harvard Law Review 1 (1957).

Bishop, Joseph W., Jr. “The Warren Court Is Not Likely to Be Overruled,”The New York Times Magazine, September 7, 1969, in L. Levy, ed., The Supreme Court Under Earl Warren 93 (1972).

———. “What Is a Liberal—Who Is a Conservative?” 62 Commentary 47 (September 1976).

Black, Charles L., Jr. 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., October 16, 1976.

Bork, Robert H. “Address,” in The Great Debate: Interpreting Our Written Constitution (1986).

———. “Foreword,” in Gary L. McDowell, The Constitution and Contemporary Constitutional Theory (Cumberland, Va., Center for Judicial Studies, 1985).

———. “Neutral Principles and Some First Amendment Problems,” 47 Indiana Law Journal 1 (1971).

———. “Styles in Constitutional Theory,” 26 South Texas Law Journal 383 (1985).

Braden, George D. “The Search for Objectivity in Constitutional Law,” 57 Yale Law Journal 571 (1948).

Brest, Paul. “Book Review,” New York Times, December 11, 1977, sec. 11 at 10.

———. “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale Law Journal 1063 (1981).

———. “The Misconceived Quest for the Original Understanding,” 60 Boston University Law Review 204 (1980).

———. “Who Decides?” 58 Southern California Law Review 661 (1985).

Bridwell, Randall. “Book Review,” 1978 Duke Law Journal 907.

———. “The Scope of Judicial Review: A Dirge for the Theorists of Majority Rule?” 31 South Carolina Law Review 617 (1980).

Bronner, Ethan. “S-t-r-e-t-c-h-i-n-g the Constitution,” Boston Sunday Globe, May 8, 1988, at A27.

Burleigh, John. “The Supreme Court vs. The Constitution,” 50 Public Interest 151 (1978).

Burns, James McGregor. “Dictatorship—Could It Happen Here?” in C. Roberts, ed., Has the Court Too Much Power 234 (1974).

Cahn, Edmond. “Brief for the Supreme Court,”The New York Times Magazine, October 7, 1956, in Leonard Levy, ed., The Supreme Court Under Earl Warren 28 (1972).

———. “Jurisprudence,” 30 New York University Law Review 150 (1955).

Calabresi, Guido. “What Clarence Thomas Knows,” New York Times, July 28, 1991, sec. 4, at 15.

Casper, Gerhard. “Constitutionalism,” in 2 Leonard W. Levy et al., eds., Encyclopedia of the American Constitution (1986).

Chayes, Abram. “The New Judiciary,” 28 Harvard Law School Bulletin 23 (1976).

Church, W. Lawrence. “History and the Constitutional Role of Courts,” 1990 Wisconsin Law Review 1071.

Claggett, Bruce M. “Book Review,” 27 Harvard Law School Bulletin 3 (1976).

Coles, William. “A Passionate Commitment to Experience,” New York Times, May 29, 1983 (Book Review Section).

Commager, Henry Steele. “Constitutional History and the Higher Law,” in Conyers Read, ed., The Constitution Reconsidered 225 (1938).

———. “Judicial Review and Democracy,” 19 Virginia Quarterly Review 417 (1943).

Cooper, Tim. “Freund: 40 Years of Supreme Court History Recalled,” 64 Harvard Law School Record 1 (1977).

Corwin, Edward S. “The Decline of Due Process Before the Civil War,” 24 Harvard Law Review 460 (1911).

———. “The ‘Higher Law’ Background of American Constitutional Law,” 42 Harvard Law Review 149 (1928).

Cover, Robert. “Book Review,”New Republic, January 14, 1978, at 26.

Cox, Archibald. “The New Dimensions of Constitutional Adjudication,” 51 Washington Law Review 791 (1976).

Curtis, Charles P. “A Better Theory of Legal Interpretation,” 3 Vanderbilt Law Review 407 (1950).

———. “Judicial Review and Majority Rule,” in Edmond N. Cahn, ed., Supreme Court and Supreme Law 170 (1954).

———. “The Role of the Constitutional Text,” id. 64.

Curtis, Michael K. “The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger,” 16 Wake Forest Law Review 45 (1980).

Dahl, Robert. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” 6 Journal of Public Law 279 (1957).

Dershowitz, Alan M. “Book Review,”New York Times Book Review, September 21, 1975, at 1.

———. “Inside the Sanctum Sanctorum,” New York Times, November 2, 1980.

Dimond, Paul. “Strict Construction and Judicial Review of Racial Discrimination Under the Equal Protection Clause: Meeting Raoul Berger on Interpretivist Grounds,” 80 Michigan Law Review 462 (1982).

Dixon, Robert. “Reapportionment in the Supreme Court and Congress: Constitutional Struggle for Fair Representation,” 63 Michigan Law Review 209 (1964).

Douglas, William O. “Stare Decisis,” 49 Columbia Law Review 735 (1949).

Downing, Rondel G. “Judicial Ethics and the Political Role of the Courts,” 35 Law and Contemporary Problems 94 (1970).

Dworkin, Ronald. “The Forum of Principle,” 56 New York University Law Review 469 (1981).

Easterbrook, Frank H. “The Influence of Judicial Review on Constitutional Theory,” in Burke Marshall, ed., A Workable Government? The Constitution After 200 Years (1987).

Ely, John Hart. “Constitutional Interpretivism: Its Allure and Impossibility,” 53 Indiana Law Journal 399 (1978).

———. “Foreword: On Discovering Fundamental Values,” 92 Harvard Law Review 5 (1978).

———. “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal 920 (1973).

Erler, Edward J. “The Ninth Amendment and Contemporary Jurisprudence,” in Eugene W. Hickok, ed., The Bill of Rights: Original Meaning and Current Understanding 432 (1991).

Fairman, Charles. “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stanford Law Review 5 (1949).

Farber, Daniel. “Book Review,” 6 Constitutional Commentary 564 (1989).

Finn, Chester E. “Book Review,”Commentary 78, April 1, 1976.

Fiss, Owen M. “The Supreme Court, 1978 Term—Foreword: The Forms of Justice,” 93 Harvard Law Review 1 (1979).

Foner, Eric. “The Supreme Court’s Legal History,” 23 Rutgers Law Journal 243 (1992).

Frank, John. “Review and Basic Liberties,” in Edmond Cahn, ed., Supreme Court and Supreme Law 109 (1954).

Frankfurter, Felix. “John Marshall and the Judicial Function,” 69 Harvard Law Review 217 (1955).

———. “Memorandum on ‘Incorporation’ of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment,” 78 Harvard Law Review 764 (1965).

———. “The Supreme Court and the Public,” 83 Forum 329 (1930).

Frantz, Laurent B. “Congressional Power to Enforce the Fourteenth Amendment Against Private Acts,” 73 Yale Law Journal 1353 (1964).

———. “Is the First Amendment Law?—A Reply to Professor Mendelson,” 51 California Law Review 729 (1963).

Fried, Charles. “Jurisprudential Responses to Legal Realism,” 73 Cornell Law Review 331 (1988).

Friendly, Henry J. “The Bill of Rights as a Code of Criminal Procedure,” 53 California Law Review 929 (1965).

Gangi, William. “Judicial Expansionism: An Evaluation of the Ongoing Debate,” 8 Ohio Northern University Law Review 1 (1981).

Garrison, William Lloyd. “The Liberator,” in Henry Steele Commager, ed., Documents of American History, 7th ed. (1963).

Gibbons, John. “Book Review,” 31 Rutgers Law Review 839 (1978).

Graglia, Lino A. “‘Interpreting’ the Constitution: Posner on Bork,” 44 Stanford Law Review 1019 (1992).

Grant, J. A. C. “The Natural Law Background of Due Process,” 31 Columbia Law Review 56 (1931).

Grey, Thomas C. “Do We Have an Unwritten Constitution?” 27 Stanford Law Review 703 (1975).

———. “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” 30 Stanford Law Review 843 (1978).

Griswold, Erwin N. “Due Process Problems Today in the United States,” in Bernard Schwartz, ed., The Fourteenth Amendment (1970).

Gunther, Gerald. “Some Reflections on the Judicial Role: Distinctions, Roots, and Prospects,” 1979 Washington University Law Quarterly 817.

———. “Too Much a Battle with Strawmen,” Wall Street Journal, November 25, 1977, at 4.

Haines, Charles G. “The Law of Nature in State and Federal Judicial Decision,” 25 Yale Law Journal 617 (1916).

Hamilton, Walton H. “The Path of Due Process of Law,” in Conyers Read, ed., The Constitution Reconsidered 167 (1938).

Hand, Learned. “Chief Justice Stone’s Conception of the Judicial Function,” 46 Columbia Law Review 696 (1946).

Hawkins, Vaughan. “On the Principles of Legal Interpretation, With Reference Especially to the Interpretation of Wills,” 2 Juridical Society Papers 298 (1860).

Henkin, Louis. “Human Dignity and Constitutional Rights,” in Michael J. Meyer and William A. Parent, eds., The Constitution of Rights 210 (1992).

———. “‘Selective Incorporation’ in the Fourteenth Amendment,” 73 Yale Law Journal 74 (1963).

———. “Some Reflections on Current Constitutional Controversies,” 109 University of Pennsylvania Law Review 637 (1961).

Hooker, Roger W. “A ‘Quiet, Undramatic’ Leader,” New York Times, August 19, 1976.

Horn, Robert H. “Book Review,” 88 Harvard Law Review 1924 (1975).

Horwitz, Morton J. “The Conservative Tradition in the Writing of American Legal History,” 17 American Journal of Legal History 275 (1973).

———. “The Emergence of an Instrumental Conception of American Law, 1780–1820,” in 5 Perspectives in American Legal History 287 (1971).

Hurst, James Willard. “The Process of Constitutional Construction,” in Edmond N. Cahn, ed., Supreme Court and Supreme Law 55 (1954).

———. “The Role of History,” in Edmond N. Cahn, ed., Supreme Court and Supreme Law 60 (1954).

Hutcheson, Joseph C. “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” 14 Cornell Law Quarterly 274 (1929).

Hutchinson, Allan C. “Alien Thoughts: A Comment on Constitutional Scholarship,” 58 Southern California Law Review 701 (1985).

Hutson, James. “The Creation of the Constitution: The Integrity of the Documentary Record,” 65 Texas Law Review 1 (1986).

Hyman, Harold. “Federalism: Legal Fiction or Historical Artifact?” 1987 Brigham Young University Law Review 905.

Jaffe, Louis. “The Supreme Court Debated—Another View,”The New York Times Magazine, June 5, 1960, in Leonard Levy, ed., The Supreme Court Under Earl Warren 199 (1972).

———. “Was Brandeis an Activist? The Search for Intermediate Premises,” 80 Harvard Law Review 986 (1967).

Jurow, Keith. “Untimely Thoughts: A Reconsideration of the Origins of Due Process,” 19 American Journal of Legal History 265 (1975).

Kauper, Paul. “Penumbras, Peripheries, Emanations, Things Fundamental, and Things Forgotten: The Griswold Case,” 64 Michigan Law Review 235 (1965).

———. “Some Comments on the Reapportionment Cases,” 63 Michigan Law Review 243 (1964).

Kay, Richard S. “Book Review,” 10 Connecticut Law Review 800 (1978).

Kelly, Alfred H. “Clio and the Court: An Illicit Love Affair,” 1965 Supreme Court Review 119.

———. “Comment on Harold M. Hyman’s Paper,” in Harold M. Hyman, ed., New Frontiers of the American Reconstruction 41 (1966).

———. “The Fourteenth Amendment Reconsidered: The Segregation Question,” 54 Michigan Law Review 1049 (1956).

Kommers, Donald. Book Review, “Role of the Supreme Court,” 40 Review of Politics 409 (1978).

Korman, Edward R. “Book Review,” 4 Hofstra Law Review 549 (1976).

Kurland, Philip. “Curia Regis: Some Comments on the Divine Right of Kings and Courts ‘To Say What the Law Is,’” 23 Arizona Law Review 581 (1981).

Kutler, Stanley I. “Raoul Berger’s Fourteenth Amendment: A History or Ahistorical,” 6 Hastings Constitutional Law Quarterly 511 (1979).

Levinson, Sanford. “‘The Constitution’ in American Civil Religion,” 1979 Supreme Court Review 123.

———. “Fidelity to Law and the Assessment of Political Activity,” 27 Stanford Law Review 1185 (1975).

———. “The Turn Toward Functionalism in Constitutional Theory,” 8 University of Dayton Law Review 567 (1983).

Levitan, David. “The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory,” 55 Yale Law Journal 467 (1946).

Lewin, Nathan. “Avoiding the Supreme Court,”The New York Times Magazine, October 17, 1976, at 31.

Lewis, Anthony. “Historical Change in the Supreme Court,”The New York Times Magazine, June 2, 1962, in Leonard Levy, ed., The Supreme Court Under Earl Warren 77 (1972).

———. “A Man Born to Act, Not to Muse,”The New York Times Magazine, June 30, 1968, in Leonard Levy, ed., The Supreme Court Under Earl Warren 151 (1972).

———. “A Time to Celebrate,” New York Times, May 13, 1974, at 29.

———. “What Qualities for the Court?”The New York Times Magazine, October 6, 1957, in Leonard Levy, ed., The Supreme Court Under Earl Warren 114 (1972).

———. “Winners and Losers,” New York Times, October 18, 1989, at A17.

Linde, Hans. “Judges, Critics, and the Realist Tradition,” 82 Yale Law Journal 227 (1972).

Lofgren, Charles A. “United States v. Curtiss-Wright Export Corporation: An Historical Reassessment,” 83 Yale Law Review 51 (1973).

Lusky, Louis. “Government by Judiciary: What Price Legitimacy?” 6 Hastings Constitutional Law Quarterly 403 (1979).

Lynch, Gerald. “Book Review,” 63 Cornell Law Review 1091 (1978).

McArthur, John B. “Abandoning the Constitution: The New Wave in Constitutional Theory,” 59 Tulane Law Review 280 (1984).

McCloskey, Robert G. “Due Process and the Supreme Court: An Exhumation and Reburial,” 1962 Supreme Court Review 33.

McConnell, Michael W. “Review of Federalism: The Founders’ Design, by Raoul Berger,” 54 University of Chicago Law Review 1484 (1987).

McDonald, Forrest. “How the Fourteenth Amendment Repealed the Constitution,”Chronicles 29 (October 1989).

McDougal, Myres, and Asher Lans. “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale Law Journal 184 (1945).

McGovney, D. O. “Privileges and Immunities Clause, Fourteenth Amendment,” 4 Iowa Law Bulletin 219 (1918).

Macedo, Stephen. “Originalism and the Inescapability of Politics,” 84 Northwestern University Law Review 1203 (1990).

———. “Reason, Rhetoric, and the Ninth Amendment: A Comment on Sanford Levinson,” 64 Chicago-Kent Law Review 163 (1988).

Maitland, Frederic W. “The History of English Law Before the Time of Edward I,” in Peter Gay et al., eds., 3 Historians at Work 320 (1975).

Maltz, Earl M. “Federalism and the Fourteenth Amendment: A Comment on Democracy and Distrust,” 42 Ohio State Law Journal 209 (1981).

———. “Murder in the Cathedral: The Supreme Court as Moral Prophet,” 8 University of Dayton Law Review 623 (1983).

Martin, Douglas. “Yale Chief Opens Constitution Talks by Faulting Meese,” New York Times, February 22, 1987, sec. 1 at 46.

Mason, Alpheus T. “The Burger Court in Historical Perspective,” 47 New York State Bar Journal 87 (1975).

———. “Myth and Reality in Supreme Court Drama,” 48 Virginia Law Review 1385 (1962).

Mendelson, Wallace. “Mr. Justice Black’s Fourteenth Amendment,” 53 Minnesota Law Review 711 (1969).

———. “Mr. Justice Frankfurter: Law and Choice,” 10 Vanderbilt Law Review 333 (1957).

———. “Raoul Berger’s Fourteenth Amendment: Abuse by Contraction vs. Abuse by Expansion,” 6 Hastings Constitutional Law Quarterly 437 (1979).

Miller, Arthur S. “The Elusive Search for Values in Constitutional Interpretation,” 6 Hastings Constitutional Law Quarterly 487 (1979).

———. “An Inquiry Into the Relevance of the Intention of the Founding Fathers, With Special Emphasis Upon the Doctrine of Separation of Powers,” 27 Arkansas Law Review 584 (1973).

Miller, Arthur S., and Ronald F. Howell. “The Myth of Neutrality in Constitutional Adjudication,” 27 University of Chicago Law Review 661 (1960).

Mommsen, Theodor. “History of Rome,” in Peter Gay et al., eds., 3 Historians at Work 288 (1975).

Monaghan, Henry P. “The Constitution Goes to Harvard,” 13 Harvard Civil Rights-Civil Liberties Law Review 117 (1978).

———. “Our Perfect Constitution,” 56 New York University Law Review 353 (1981).

Morrison, Stanley. “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stanford Law Review 140 (1949).

Murphy, Walter. “Book Review,” 87 Yale Law Journal 1752 (1978).

Nathanson, Nathaniel. “Book Review,” 56 Texas Law Review 579 (1978).

Neal, Phil C. “Baker v. Carr: Politics in Search of Law,” 1962 Supreme Court Review 252.

Nelson, William E. “History and Neutrality in Constitutional Adjudication,” 72 Virginia Law Review 1237 (1986).

Newmeyer, Kent. “Book Review,” 19 American Journal of Legal History 66 (1975).

Nye, R. B. “Comment on C. V. Woodward’s Paper,” in Harold M. Hyman, ed., New Frontiers of the American Reconstruction 148 (1966).

“Opinions Considered: A Talk With Tom Wicker,” New York Times, January 5, 1992, sec. 4 at 4.

Packer, Herbert. “The Aim of Criminal Law Revisited: A Plea for a New Look at ‘Substantive Due Process,’” 44 Southern California Law Review 490 (1971).

Perry, Michael J. “The Authority of Text, Tradition, and Reason: A Theory of Constitutional Interpretation,” 58 Southern California Law Review 551 (1985).

———. “Interpretivism, Freedom of Expression, and Equal Protection,” 42 Ohio State Law Journal 261 (1981).

———. “Review of Government by Judiciary: The Transformation of the Fourteenth Amendment, by Raoul Berger,” 78 Columbia Law Review 685 (1978).

Pollak, Louis. “The Supreme Court Under Fire,” 6 Journal of Public Law 428 (1957).

Pollock, Frederick. “Judicial Caution and Valour,” in Jurisprudence in Action (The New York Bar Association, 1953).

Posner, Richard. “Address,” 35 Harvard Law Bulletin 34 (1987).

———. “Bork and Beethoven,” 42 Stanford Law Review 1365 (1990).

Pound, Roscoe. “Common Law and Legislation,” 21 Harvard Law Review 383 (1908).

Powell, H. Jefferson. “How Does the Constitution Structure Government? The Founders’ Views,” in Burke Marshall, ed., A Workable Government? The Constitution After 200 Years (1987).

———. “The Modern Misunderstanding of Original Intent,” 54 University of Chicago Law Review 1513 (1987).

———. “The Original Understanding of Original Intent,” 98 Harvard Law Review 885 (1985).

Rapaczynski, Andrzej. “The Ninth Amendment and the Unwritten Constitution: The Problems of Constitutional Interpretation,” 64 Chicago-Kent Law Review 177 (1988).

Richards, David A. J. “Abolitionist Political and Constitutional Theory and the Reconstruction Amendments,” 25 Loyola of Los Angeles Law Review 1187 (1992).

Richardson, H. G., and G. O. Sayles. “Parliament and Great Councils in Medieval England,” 77 Law Quarterly Review 213 (1961).

Rodell, Fred. “The Crux of the Court Hullabaloo,”The New York Times Magazine, May 29, 1960, in Leonard Levy, ed., The Supreme Court Under Earl Warren 192 (1972).

———. “It Is the Warren Court,”The New York Times Magazine, March 13, 1966, in Leonard Levy, ed., The Supreme Court Under Earl Warren 136 (1972).

———. “The ‘Warren Court’ Stands Its Ground,”The New York Times Magazine, September 27, 1964, in Leonard Levy, ed., The Supreme Court Under Earl Warren 209 (1972).

Rostow, Eugene V. “The Democratic Character of Judicial Review,” 66 Harvard Law Review 193 (1952).

———. “The Japanese-American Cases—A Disaster,” 54 Yale Law Journal 489 (1945).

Sandalow, Terrance. “Constitutional Interpretation,” 79 Michigan Law Review 1033 (1981).

———. “The Distrust of Politics,” 56 New York University Law Review 446 (1981).

———. “Judicial Protection of Minorities,” 75 Michigan Law Review 1162 (1977).

Saphire, Richard B. “Judicial Review in the Name of the Constitution,” 8 University of Dayton Law Review 45 (1983).

Scalia, Antonin, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849 (1989).

Schauer, Frederick. “Easy Cases,” 58 Southern California Law Review 399 (1985).

Shattuck, Charles E. “The True Meaning of the Term ‘Liberty’ in Those Clauses in the Federal and State Constitutions Which Protect ‘Life, Liberty and Property,’” 4 Harvard Law Review 365 (1891).

Sherry, Suzanna. “The Ninth Amendment: Righting an Unwritten Constitution,” 64 Chicago-Kent Law Review 1010 (1989), reprinted in 2 Randy E. Barnett, ed., The Rights Retained by the People 283 (1993).

Simon, Larry. “The Authority of the Constitution and Its Meaning: A Preface to a Theory of Constitutional Interpretation,” 56 Southern California Law Review 603 (1985).

Sloan, Herbert. “The Earth Belongs in Usufruct to the Living,” in Peter Onuf, ed., Jeffersonian Legacies 281 (1993).

Soifer, Aviam. “Protecting Civil Rights: A Critique of Raoul Berger’s History,” 54 New York University Law Review 651 (1979).

Sowell, Thomas. “A Black ‘Conservative’ Dissents,”The New York Times Magazine, August 8, 1976, at 14.

Steel, Lewis M. “Nine Men in Black Who Think White,”The New York Times Magazine, October 13, 1968, in Leonard Levy, ed., The Supreme Court Under Earl Warren 82 (1972).

Stephenson, D. G. “Book Review,” 61 Virginia Law Review 1338 (1975).

Sutherland, Arthur E. “Privacy in Connecticut,” 64 Michigan Law Review 283 (1965).

TenBroek, Jacobus. “Use by the United States Supreme Court of Extrinsic Aids in Constitutional Construction,” 27 California Law Review 399 (1939).

Thayer, James Bradley. “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harvard Law Review 129 (1893).

Tushnet, Mark. “Civil Rights and Social Rights: The Future of the Reconstruction Amendments,” 25 Loyola of Los Angeles Law Review 1207 (1992).

———. “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harvard Law Review 781 (1983).

———. “Legal Realism, Structural Review, and Prophecy,” 8 University of Dayton Law Review 809 (1983).

———. “A Note on the Revival of Textualism in Constitutional Theory,” 58 Southern California Law Review 683 (1985).

———. “Truth, Justice, and the American Way: An Interpretation of the Public Law Scholarship in the Seventies,” 57 Texas Law Review 1307 (1979).

Van Alstyne, William W. “The Fourteenth Amendment, The ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” 1965 Supreme Court Review 33.

Warren, Charles. “The New ‘Liberty’ Under the Fourteenth Amendment,” 39 Harvard Law Review 431 (1926).

White, G. Edward. “Judicial Activism and the Identity of the Legal Profession,” 67 Judicature 246 (1983).

———. “Reflections on the Role of the Supreme Court: The Contemporary Debate and the ‘Lessons’ of History,” 63 Judicature 162 (1979).

Wiecek, William M. “The Constitutional Snipe Hunt,” 23 Rutgers Law Journal 253 (1992).

Wilkins, Roger. “Racial Outlook: Lack of Change Disturbs Blacks,” New York Times, March 3, 1978, sec. A at 26.

Wills, Garry. “Introduction,” in Garry Wills, ed., The Federalist Papers of Alexander Hamilton, James Madison, and John Jay (1982).

Wofford, John. “The Blinding Light: The Uses of History in Constitutional Interpretation,” 31 University of Chicago Law Review 502 (1964).

Woodward, C. Vann. “Seeds of Failure in Radical Race Policy,” in Harold M. Hyman, ed., New Frontiers of the American Reconstruction 12 (1966).

Wright, J. Skelly. “Professor Bickel, the Scholarly Tradition, and the Supreme Court,” 84 Harvard Law Review 769 (1971).

Zuckert, Michael. “Book Review,” 8 Constitutional Commentary 149 (1991).

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