Читать книгу Government by Judiciary - Raoul Berger - Страница 14
ОглавлениеMy 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.
—THOMAS H. HUXLEY*
THE Fourteenth Amendment is the case study par excellence of what Justice Harlan described as the Supreme Court’s “exercise of the amending power,” 1 its continuing revision of the Constitution under the guise of interpretation. Because the Amendment is probably the largest source of the Court’s business2 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.3 Others consider that a democratic system requires adherence to constitutional limits, by courts no less than presidents.4 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,” 5 that the role assigned to it was far more modest: to police the boundaries drawn in the Constitution.6 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.” 7
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.” 8 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.” 9 In the economic sphere that finally made due process a “dirty phrase.” 10 The logic whereby that process becomes sanctified when employed for libertarian ideals has yet to be spelled out.11 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,12 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.13 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.14 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 historians15 have been engaged in what has been described as an “extraordinary revolution in the historiography” of Reconstruction,16 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 195517 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.18 Little analysis has been devoted to the role of the privileges or immunities clause in the original scheme of things;19 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.20 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” 21 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.” 22 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.” 23
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.24 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.” 25 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.” 26
In an area of warring interpretations no useful purpose is served by delivering another ex cathedra opinion.27 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.28 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.29 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,30 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.” 31 Even more, the historian, in the words of C. Vann Woodward, has “a special obligation to sobriety and fidelity to the record.” 32
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.” 33 Tocqueville’s impression in 1831–1832 was equally abysmal.34 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.” 35
Little wonder that the abolitionist campaign was greeted with loathing! In 1837 Elijah Lovejoy, an abolitionist editor, was murdered by an Illinois mob.35a 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.36
Fear of Negro invasion—that the emancipated slaves would flock north in droves—alarmed the North.37 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.38 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.” 39
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.40 Then there were the Democratic racists who unashamedly proclaimed that the Union should remain a “white man’s” government.41 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.” 42 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.” 43 Consider, too, that the Indiana Constitution of 1851 excluded Negroes from the State, as did Oregon,44 that a substantial number of Northern States recently had rejected Negro suffrage,45 that others maintained segregated schools.46 It is against this backdrop that we must measure claims that the framers of the Fourteenth Amendment swallowed abolitionist ideology hook, line, and sinker.47
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.48 While emancipation largely hit slavery in the South, eradication of inequality, as Vann Woodward remarked, required “a revolution for the North as well,” 49 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.50 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.51 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.” 52
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.” 53
As Stevens revealed, most Republicans were politicians first and ideologues afterward.54 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.55 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,” 56 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.57 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.” 58 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.” 59 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’?” 60 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.” 61 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
It is the thesis of this book that the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power. When Chief Justice Marshall stated that the function of the legislature is to make the law, that of the judiciary to interpret it,1 he echoed Francis Bacon’s admonition two hundred years earlier.2 Much less are judges authorized to revise the Constitution, for as Justice Black, deriding the notion that the Court was meant to keep the Constitution “in tune with the times,” stated, “The Constitution makers knew the need for change and provided for it” by the amendment process of Article V,3 whereby the people reserved unto themselves the right to change the Constitution. Having created a prepotent Congress, being well aware of the greedy expansiveness of power, and knowing that power can be malign as well as benign, the Founders designed the judiciary to keep Congress within its prescribed bounds,4 what James Bradley Thayer and Learned Hand later called “policing” the constitutional boundaries.5 Within those boundaries, stated Justice James Iredell, one of the ablest of the Founders, the legislature was to be free of judicial interference.6
Unlike the academicians’ current infatuation with a revisory judiciary,7 the Founders had a “profound fear of judicial independence and discretion.” 8 They were influenced by the English Puritans’ fear that “the laws’ meaning could be twisted by means of judicial construction”; they feared the judges’ “imposition of their personal views.” 9 An important brake on such arrogation was the rule that a document is to be construed in light of the draftsmen’s explanation of what they meant to accomplish,10 the so-called original intention. Jefferson and Madison attached great weight to the rule;11 and Chief Justice Marshall declared that he could cite from the common law “the most complete evidence that the intention is the most sacred rule of interpretation.” 12 Here law and common sense coincide. Who better knows what the writer means than the writer himself?13 John Selden, the preeminent seventeenth-century scholar, stated, “A Man’s writing has but one true sense, which is that which the Author meant when he writ it.” 14 Such were the views of Hobbes and Locke.15 To maintain the contrary is to insist that the reader better knows what the writer meant than the writer himself. To recapitulate, antiactivists (originalists) maintain that judges are not authorized to revise the Constitution16 and that it is to be construed in light of the Founders’ explanations of what they meant to accomplish, no more, no less.
Leading activists Michael Perry and Paul Brest observe that no activist has come up with a satisfactory antioriginalist theory.17 There are as many theories as activist writers. Indeed, Brest pleads with academe “simply to acknowledge that most of our writings are not political theory but advocacy scholarship—amicus briefs ultimately designed to persuade the Court to adopt our various notions of the public good” —result-oriented propaganda.18 In their zeal to ameliorate social injustice, academicians undermine the constitutionalism that undergirds our democratic system.19 Their defense of the Justices’ substitution of their own meaning for that of the Founders displaces the choices made by the people in conventions that ratified the Constitution, and it violates the basic principle of government by consent of the governed. The people, said James Iredell, “have chosen to be governed under such and such principles. They have not chosen to be governed or proposed to submit upon any other.” 20 Academe has forgotten Cardozo’s wise caution: the judges’ “individual sense of justice . . . might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.” 21
When this book appeared in 1977, I anticipated that it would ruffle academic feathers, for it stood athwart the complacent assumption that constitutional limitations22 must yield to beneficial results, a result-oriented jurisprudence that is a euphemism for the notion that the end justifies the means.23 The flood of criticism—often ad hominem—surpassed my expectations.24 Scarcely a month passes without another “refutation,” 25 testimony that the corpse simply will not stay buried. Almost all activist critics turn their back on discrepant evidence; they simply will not examine, for example, my detailed demonstration that “privileges or immunities” had become words of art having a limited compass.26
Consider the “one man-one vote” doctrine. Section 2 of the Fourteenth Amendment provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionally reduced. This constitutes the sole provision for federal intervention. Senator William Fessenden, chairman of the Joint Committee on Reconstruction, explained that the Amendment “leaves the power where it is, but it tells [the States] most distinctly, if you exercise that power wrongfully, such and such consequences will follow.” 27 Senator Jacob Howard, to whom fell the task of explaining the amendment because of Fessenden’s illness, said, “the theory of this whole amendment is, to leave the power of regulating the suffrage with the people or legislatures of the States, and not to assume to regulate it.” 28 It was this “gap” which the Fifteenth Amendment was designed to fill.29 Plainly the “one man-one vote” doctrine derogates from the exclusive control of suffrage that was left to the States.30
Turn to the sacred cow of modern constitutional law, Brown v. Board of Education, whereby the Court outlawed segregated schools.31 Robert Cover of Yale chided me for engaging in a lengthy tour of the historical sources instead of starting from Brown, in short, beginning with the end, the fait accompli,32 for Brown had no popular mandate. Brown, wrote Bruce Ackerman, another advocate of activism, “did not come at [a moment] when a mobilized citizenry was demanding a fundamental change in our fundamental law.” 33 The “real significance” of Brown, he opines, “lies elsewhere, in the Court’s courage in confronting modern Americans with a moral and political agenda that calls upon them to heed the voice of their better selves.” 34 Put baldly, the Court had no popular mandate for its revolutionary decision but assumed the role of an Old Testament prophet, enhanced by the sanctions at its disposal.35
Contrast a few undeniable facts. Congress had “permitted segregated schools in the District of Columbia from 1864 onward”;36 and Senator Charles Sumner vainly fought “to abolish segregated Negro schools in the District of Columbia.” 37 How can it be maintained that Congress, after steadfastly refusing to abolish segregated schools in the District, over which it had plenary control, would cram desegregation down the throats of the States? “Negroes were barred from public schools of the North,” wrote neoabolitionist Howard Jay Graham, and were “still widely regarded as ‘racially inferior’ and ‘incapable of education.’ ” 38 Had the framers proposed to bar segregated schools in the North, such interference with state control of internal affairs would have imperiled enactment and adoption of the Fourteenth Amendment.39 Such a proposal was far from the framers’ minds, as is demonstrated by James Wilson’s (chairman of the House Judiciary Committee) assurance that the parallel Civil Rights Bill—regarded as “identical” with the Fourteenth Amendment, whose purpose was to safeguard the Bill from repeal—did not require that all “children shall attend the same schools.” 40 Prominent academicians, among them leading activists, recognize that segregation was left untouched by the Fourteenth Amendment.41
Compare with such incontrovertible facts the imaginary conversation the leading activist theoretician, Ronald Dworkin, held with a framer of the Fourteenth Amendment about segregation: “I don’t know what the right answer is to the question of what we’ve done . . . Nor do I, as it happens, have any particular preferences myself, either way, about segregated schools. I haven’t thought much about that either.” 42 To change existing practices, particularly in the internal zone left to the States, the federal draftsmen minimally must exhibit a purpose to do so.43 Ignorance of, or indifference to, such practices does not spell a purpose to alter them. Dworkin’s imaginary framer must have lived in an airtight cocoon to be oblivious to an issue that reached to the very wellsprings of the pervasive racism.44 With William James, we should worry about “the presumptuous arrogance of theories that ignore, even disdain, the concreteness of mere fact.” 45 Activist criticism of originalism is generally akin to Dworkin’s reverie: fantasizing opposed to concrete fact. Of earlier criticism Lord (Max) Beloff, an Oxford emeritus and longtime student of American constitutionalism, wrote in a review of my book in the Times of London, “The quite extraordinary contortions that have gone into proving the contrary make sad reading for those impressed by the high quality of American legal-historical scholarship.” 46
I came to my study of the Fourteenth Amendment in the service of no other cause than the integrity of constitutional construction. For that purpose I sought to ascertain what the framers sought to accomplish, being without preconceptions as to what the Amendment ought to mean.47 The Constitution, remarked Paul Brest, “lies at the core” of our “civil religion”;48 until it is changed by amendment, the people are free to govern their own destiny, not to be ruled by “Platonic Guardians” who often are creatures of political accident, virtually irremovable and irreversible. Activist fulminations have not shaken the hope, in the words of Samuel Johnson, that “the most obdurate incredulity may be shamed or silenced by facts.” 49 The facts will speak for themselves long after the present controversialists are gone.
* T. H. Huxley, Man’s Place in Nature (1863), quoted in Homer W. Smith, Man and His Gods 372 (1953).
1. Reynolds v. Sims, 377 U.S. 533, 591 (1964).
2. Felix Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev. 217, 229 (1955).
3. For example, Anthony Lewis hailed the Warren Court as the “keeper of the national conscience,” in “Historical Change in the Supreme Court,” The New York Times Magazine, June 17, 1962, at 7, reprinted in Supreme Court Under Earl Warren 73, 79, 81 (L. Levy ed. 1972). See also A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 686, 689 (1960).
4. Chief Justice Marshall stated in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.” “The theory of our governments,” said Justice Samuel Miller, “is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.” Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 663 (1874). “ [W]ritten constitutions,” and Justice Stanley Matthews, “were limitations upon all the powers of government, legislative as well as executive and judicial.” Hurtado v. California, 110 U.S. 516, 531–532 (1884).
5. In The Constitution of the United States (1922), Beck compared “the work of the Supreme Court to that of a ‘continuous constitutional convention’ which adapts the original charter by reinterpretation.” Quoted in Leonard W. Levy, Judgments: Essays in American Constitutional History 18 (1972). In his recent critique of the “Nixon Court,” Levy states 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 by reinterpretation.” L. Levy, Against the Law 29, 30 (1974). “Adaptation” and “reinterpretation” are euphemisms for “revision” or “rewriting” the Constitution, the function of a constitutional convention, not the Court. See Louis Lusky, By What Right? 21 (1975); Louis Henkin, “Some Reflections on Current Constitutional Controversies,” 109 U. Pa. L. Rev. 637, 658–659 (1961).
Solicitor General Robert H. Jackson, later a Justice of the Court, did not share Beck’s enthusiasm; the pre-1937 Court, he said, “sat almost as a continuous constitutional convention which, without submitting its proposals to any ratification or rejection, could amend the basic law.” R. Jackson, The Struggle for Judicial Supremacy x-xi (1941). Ward Elliott reports that Anthony Lewis (who was a leader in the drive that led to the “reapportionment” decision) asked Solicitor General Archibald Cox (who had filed a brief amicus for reapportionment in Reynolds v. Sims, supra note 1) when the Court announced its decision, “ ‘How does it feel like to be present at the second American Constitutional Convention?’ Cox retained enough of his old perspective to answer, ‘It feels awful.’ ” Ward Elliott, The Rise of a Guardian Democracy 370 (1974). See infra Chapter 5 note 1.
6. See infra Chapter 16 at notes 20–28.
7. 9 James Madison, The Writings of James Madison 191 (G. Hunt ed. 1900–1910).
8. Joseph H. Choate comprehended that he could rely on the Court to react to the red flag of communism which he waved in Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, 532 (1895). Justice Stephen Field responded in a concurring opinion: “The present assault upon capital is but the beginning. It will be but the stepping stone to others, larger and more sweeping, till our own political contests will become a war of the poor against the rich.” Id. 607. On rehearing, Justice Henry B. Brown dissented, saying, “the decision involves nothing less than a surrender of the taxing power to the moneyed class . . . Even the spectre of socialism is conjured up.” 158 U.S. 601, 695 (1895). In 1893 Justice David J. Brewer referred to “ ‘the black flag of anarchism, flaunting destruction to property,’ and ‘the red flag of socialism, inviting a redistribution of property.’ ” XVI Proceedings of the N.Y. State Bar Association 37, 47 (1893), quoted in A. T. Mason, “Myth and Reality in Supreme Court Drama,” 48 Va. L. Rev. 1385, 1393 (1962). Such citations can be multiplied.
Justice Black reminded the Court of “the extent to which the evanescent standards of the majority’s philosophy have been used to nullify state legislative programs passed to suppress evil economic practices.” Rochin v. California, 342 U.S. 165, 177 (1952), concurring opinion.
9. Oliver Wendell Holmes, Jr., Collected Legal Papers 184 (1920).
10. Herbert Packer, “The Aim of the Criminal Law Revisited: A Plea for a New Look at ‘Substantive Due Process,’ ” 44 S. Cal. L. Rev. 490 (1971). See infra Chapter 14 at notes 64, 77–78.
11. See infra Chapter 14 at notes 80–90; and see Robert G. McCloskey, “Due Process and the Supreme Court: An Exhumation and Reburial,” 1962 S. Ct. Rev. 34, 44–45. Although McCloskey was very sympathetic to the Warren Court’s goals, he concluded that the distinction does not stand up. Id. at 51. Chief Justice Stone, wrote Learned Hand, “could not understand how . . . when concerned with interests other than property, the courts should have a wider latitude for enforcing their own predilections than when they were concerned with property itself.” Learned Hand, “Chief Justice Stone’s Conception of the Judicial Function,” 46 Colum. L. Rev. 696, 698 (1946).
12. One reads with horror of the Negro lynchings and torture that found their way into the courts as late as 1938. Paul Murphy, The Constitution in Crisis Times, 1918–1969 95, 123 (1972).
13. Raoul Berger, “Constructive Contempt: A Post Mortem,” 9 U. Chi. L. Rev. 602, 604–605, 642 (1942).
14. For a withering condemnation of the Court’s antidemocritarian course before 1937, see Henry Steele Commager, “Judicial Review and Democracy,” 19 Va. Quarterly Rev. 417 (1943).
15. W. R. Brock, Eric L. McKitrick, C. Vann Woodward, David Donald, Harold M. Hyman, Michael L. Benedict. Their works are listed in the bibliography.
16. Alfred H. Kelly, “Comment on Harold M. Hyman’s Paper” in New Frontiers of the American Reconstruction 40 (Harold M. Hyman ed. 1966).
17. C. Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stan. L. Rev. 5 (1949); Alexander Bickel, “The Original Understanding and the Segregation Decision,” 69 Harv. L. Rev. 1 (1955).
18. See Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 132, 134–135; A. H. Kelly, “The Fourteenth Amendment Reconsidered: The Segregation Question,” 54 Mich. L. Rev. 1049, 1081 (1956); Howard J. Graham, Everyman’s Constitution 314 (1968); William W. Van Alstyne, “The Fourteenth Amendment, The ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” 1965 S. Ct. Rev. 33; Robert J. Harris, The Quest for Equality 55–56 (1960).
19. The leading article, D. O. McGovney, “Privileges and Immunities Clause, Fourteenth Amendment,” 4 Iowa L. Bull. 219 (1918) states (at 222 note 2), “this essay . . . might have been entitled the Rule of the Slaughter-House Cases.”
20. In Justice Holmes’ words, a “party’s conduct” may “consist in uttering certain words.” Oliver Wendell Holmes, Jr., The Common Law 132 (1923).
21. “A Better Theory of Legal Interpretation,” 3 Vand. L. Rev. 407, 409 (1950).
22. H. M. Hart and A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1266 (1958). Justice Frankfurter stated, “It has never been questioned in this Court that Committee reports, as well as statements by those in charge of a bill or of a report, are authoritative elucidations of the scope of a measure.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 399–400 (1951), dissenting opinion. See also Lusky 45.
23. Oregon v. Mitchell, 400 U.S. 112, 200 (1970), dissenting opinion. Van Alstyne, who is critical of Justice Harlan’s view in Reynolds v. Sims (supra note 1), states: “in none of the other kinds of cases where it was brought to bear did it [the historical record] cast the kind of blinding light that Mr. Justice Harlan sees here.” Van Alstyne 36.
24. “A thing may be within the letter of a statute and not within its meaning, and within its meaning though not within its letter. The intention of the lawmaker is the law.” Hawaii v. Mankichi, 190 U.S. 197, 212 (1903); United States v. Freeman, 44 U.S. (3 How.) 556, 565 (1845); United States v. Babbitt, 66 U.S. 55, 61 (1861); Matthew Bacon, A New Abridgment of the Laws of England, “Statutes” 1 (5) (7th ed. 1832); infra Chapter 9 note 22.
25. “Parliament and Great Councils in Medieval England,” 77 L. Q. Rev. 213, 224 (1961). Miller and Howell label it an “historicist fallacy” to “appraise a former historical era by the criteria of values that have become important since.” Supra note 3 at 673.
26. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 267 (1796). In “the construction of the language of the Constitution . . . as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.” Ex parte Bain, 121 U.S. 1, 12 (1887).
27. It is unsatisfying to have the fastidiously detailed study of Fairman dismissed with the phrase that it is “in the opinion of this writer against the weight of the evidence.” Kelly, Fourteenth 1081 note 106. As will develop, Kelly was altogether wrong.
28. Sir Herbert Butterfield, George III and the Historians 225 (1969).
29. See Bickel; Joseph B. James, The Framing of the Fourteenth Amendment (1956); and Horace Flack, The Adoption of the Fourteenth Amendment (1908). Walter Bagehot considered that “history should be like a Rembrandt etching, casting a vivid light on important causes and leaving all the rest unseen, in shadow.” Quoted in Van Wyck Brooks, Days of the Phoenix 135 (1957).
30. Graham; Jacobus tenBroek, Equal Under Law (1965). For discussion of the Graham-tenBroek neoabolitionist theory, see infra Chapter 13.
31. 4 Arnold Hauser, The Social History of Art 76 (Vintage Books, undated). Hauser states that Flaubert’s view was shared by the Goncourts, Maupassant, Gide, Valéry, and others. “To get at the truth of our system of morality (and equally of the law),” said Holmes, “it is useful to omit the emotion and ask ourselves [how far] those generalizations . . . are confirmed by fact accurately ascertained.” Oliver Wendell Holmes, Jr., Collected Legal Papers 306 (1920).
32. The Burden of Southern History 87 (1960).
33. David Donald, Charles Sumner and the Coming of the Civil War 29 (1960).
34. “ [W]e can scarcely acknowledge the common features of mankind in this child of debasement whom slavery has brought among us. His physiognomy to our eyes is hideous, his understanding weak, his tastes low; and we are almost inclined to look upon him as a being intermediate between man and the brutes.” 1 Alexis de Tocqueville, Democracy in America 363 (1900). In the 39th Congress, Robert Hale of New York stated that the District of Columbia “contains a black population which, undoubtedly, approaches to the very extreme of ignorance and degradation . . . a population that has come into this District suddenly, just freed from slavery, with all the marks and burdens upon them that a state of slavery necessarily fixes upon its victims.” Cong. Globe, 39th Cong. 1st Sess. 280 (1865–1866), hereinafter cited as Globe. In citations to the Globe, Senators will be identified as such; all others are representatives.
Even one sympathetic to the Negro cause, Senator Henry Wilson of Massachusetts, was constrained to hope in 1864 that “the school house will rise to enlighten the darkened intellect of a race imbruted by long years of enforced ignorance.” Quoted in tenBroek, 164.
35. Tocqueville, supra note 34 at 365, 364.
35a. “ [T]he abolitionists were regarded throughout most Northern circles as disagreeable and intemperate radicals and were heckled, harrowed, assaulted and even killed by Northern mobs.” Dan Lacy, The White Use of Blacks in America 54 (1972).
36. Woodward, supra note 32 at 81. “In virtually every phase of existence Negroes found themselves systematically separated from whites [in the North, 1860] . . . in most places he encountered severe limitations to the protection of his life, liberty, and property.” Leon Litwack, North of Slavery: The Negro in the Free States 91–97 (1961), quoted in C. Vann Woodward, “Seeds of Failure in Radical Race Policy” in Hyman supra note 16 at 126.
37. Woodward, “Seeds,” supra note 36 at 127, 128, 131, 132. Senator Thomas A. Hendricks of Indiana stated, “The policy of the State has been to discourage their immigration . . . to protect white labor. The presence of negroes in large numbers tends to degrade and cheapen labor, and the people have been unwilling that the white laborer shall be compelled to compete for employment with the Negro.” Globe 2939. The Freedmen’s Bureau and Civil Rights Acts “were intended not only to protect the freedmen but also to secure a contented black labor force who . . . stayed in the South.” Morton Keller, Affairs of State 65, 143 (1977).
38. Woodward, supra note 32 at 82, 83. Senator James R. Doolittle of Wisconsin reported that “four out of five” Wisconsin soldiers “voted against Negro suffrage.” Globe 2165.
39. Donald, Sumner II 156–157. An Illinois Radical, John F. Farnsworth, said,“ ‘Negro equality’ is the everlasting skeleton which frightens some people.” Globe 204. William E. Niblack of Indiana reminded the Congress that in 1851 Indiana ratified a Constitution that excluded Negroes from the State by a vote of 109,976 to 21,084. Globe 3212.
“A belief in racial equality,” said W. R. Brock, “was an abolitionist invention”; “to the majority of men in the midnineteenth century it seemed to be condemned both by experience and by science.” “Even abolitionists,” he states, “were anxious to disclaim any intention of forcing social contacts between the races.” Brock, An American Crisis: Congress and Reconstruction 285, 286 (1963). See infra, Derrick Bell, Chapter 10 at note 6. Racism, Phillip Paludan states, 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.” Phillip S. Paludan, A Covenant with Death 54 (1975). See also Keller, supra note 37. Many Republican newspapers in the North opposed “equality with the Negroes.” Flack 41. See also Keller, id. 51, 58, 65.
40. Globe 257, 739, 911, 2799, 2948.
41. John W. Chanler of New York, Globe 48, 218; Senator James W. Nesmith of Oregon, id. 291; Aaron Harding of Kentucky, id. 448; Senator Hendricks of Indiana, id. 880; Senator Garrett Davis of Kentucky, id. 246–250. The sympathetic reformer, Senator William M. Stewart of Nevada, stated, the “white man’s government . . . should not be scoffed at; that it was a prejudice in the country that no man has a right to disregard.” Id. 1437.
42. Id. 935.
43. Butterfield, supra note 28 at 226; cf. Stewart, supra note 41.
44. For Indiana see supra note 39; for Oregon see Fairman, Stanford 32 note 58.
45. See Van Alstyne’s summary, infra Chapter 4 at note 16.
46. See infra Chapter 7 at note 41. As late as 1859 the Ohio Court rejected an attack on segregated schools. Van Camp v. Board of Education, 9 Ohio 407.
47. For additional details see infra Chapter 13.
48. Donald, Sumner II 232–233; see also id. 158.
49. Woodward, supra note 32 at 79; see infra Chapter 10 at note 6.
50. David Donald, The Politics of Reconstruction 12–13, 61–62 (1965).
51. Speaking on June 4, 1866, James Wilson of Iowa said, “I know that many look forward to the fall elections and shiver in the presence of impartial suffrage.” Globe 2948.
52. Donald, Sumner II 158.
53. Thaddeus Stevens: Scourge of the South 287 (1959).
54. See James 71.
55. Globe 74; Samuel E. Morison, The Oxford History of the American People 714 (1965). Senator John Sherman of Ohio said, “never by my consent shall these rebels gain by this war increased political power, and come back here to wield that political power.” Globe 745. “I would no more admit the rebels to control these States,” said Senator Daniel Clark of New Hampshire, “than I would sail a ship with the mutinous part of a crew, and confine those who were faithful to the captain in the hold or put them in irons.” Id. 835.
56. “Comment on C. V. Woodward’s Paper,” in Hyman, supra note 16 at 148, 151.
57. The governing rule was laid down by Chief Justice Marshall: “an opinion which is . . . to establish a principle never before recognized, should be expressed in plain and explicit terms.” United States v. Burr, 25 F. Cas. (No. 14,693) 55, 165 (C.C. Va. 1807). Long before it was stated, “statutes are not presumed to make any alteration in the com mon law, farther or otherwise than the act expressly declares: therefore in all generalmatters the law presumes the act did not intend to make any alteration; for if the parliament had had that design they would have expressed it in the act.” Bacon’s Abridgment, supra note 24, “Statutes” I (4). An analogous rule was applied to the Constitution in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 78 (1872).
Such views were given striking reaffirmation in Pierson v. Ray, 386 U.S. 547, 554–555 (1967). After adverting to the common law immunity of judges from suits for acts performed in their official capacity, the Court stated, “We do not believe that this settled principle was abolished by §1983, which makes liable ‘every person’ who under color of law deprives another person of his civil rights . . . The immunity of judges [is] well established and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” Thus the all-inclusive “every person” was curtailed because of an existing common law immunity; the express reservation of power to the States by the Tenth Amendment demands an even more exacting standard.
58. The Legitimacy of the Business Corporation in the Law of the United States 140 (1970).
59. Baldwin v. Missouri, 281 U.S. 586, 595 (1930), dissenting opinion.
60. The Supreme Court: Law and Discretion 16 (1967).
61. Globe 675.
1. This principle lies at the heart of the separation of powers, as Chief Justice Marshall perceived: “The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825). Marshall was anticipated by Justice Samuel Chase in Ware v. Hylton, 3 U.S. (3 Dall.) 199, 223 (1796): “The people delegated power to a Legislature, an Executive, and a Judiciary; the first to make; the second to execute; and the last to declare or expound the laws” (emphasis added). Of the three branches, Hamilton assured the ratifiers, the judiciary is “next to nothing.” Federalist No. 78 at 504 (Mod. Lib. ed. 1937).
2. 1 Selected Writings of Francis Bacon 138 (Mod. Lib. ed. 1937). Blackstone stated, “Though in many other countries everything is left in the breast of the Judge to determine, yet with us he is only to declare and pronounce, not to make or new-model the law.” 3 William Blackstone, Commentaries on the Laws of England 335 (1769). James Wilson, second only to Madison as an architect of the Constitution, instructed the judge to “remember, that his duty and his business is, not to make the law but to interpret and apply it.” 2 James Wilson, Works 502 (Robert McCloskey ed. 1967).
3. Griswold v. Connecticut, 381 U.S. 479, 522 (1965), dissenting opinion. In McPherson v. Blacker, 146 U.S. 1, 36 (1892), the Court rejected the notion that the Constitution may be “amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made.” See also Hawke v. Smith, 253 U.S. 221, 239 (1920).
4. In the Virginia Ratification Convention, for instance, John Marshall stated that if Congress were “to go beyond the delegated powers . . . if they were to make a law not warranted by the powers enumerated, it would be considered by the judges as an infringement of the Constitution . . . They would declare it void.” 3 Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 551, 553 (1836).
5. See infra Chapter 16, note 26.
6. Referring to constitutional limitations on legislative power, Justice Iredell declared, “Beyond these limitations . . . their acts are void, because they are not warranted by the authority given. But within them . . . the Legislatures only exercise a discretion expressly confided to them by the constitution . . . It is a discretion no more controllable . . . by a Court . . . than a judicial determination is by them.” Ware v. Hylton, 3 U.S. (3 Dall.) 199, 266 (1726). South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 190–191 (1938), per Stone, J. Champion v. Ames, 188 U.S. 321, 363 (1902): “if what Congress does is within the limits of its power, and is simply unwise or injurious, the remedy is that suggested by Chief Justice Marshall in Gibbons v. Ogden,” i.e., look to the people at elections.
7. It was not ever thus. Stanley Kutler, a perfervid activist, noted that “From the early twentieth century throughout the later 1930s, academic and liberal commentators . . . criticized vigorously the abusive powers of the federal judiciary. They accused . . . the Supreme Court of consistently frustrating desirable social policies.” He noted that “the judges had arrogated a policy-making function not conferred upon them by the Constitution,” which “negated the basic principles of representative government.” “After 1937,” he observed, “most of the judiciary’s long time critics suddenly found a new faith and promoted it with all the zealousness of new converts.” Now the courts “matched a new libertarianism . . . with an activist judiciary to protect those values.” Stanley I. Kutler, “Raoul Berger’s Fourteenth Amendment: A History or Ahistorical,” 6 Hastings Const. L.Q. 511, 512, 513 (1978).
Contemporary academicians, Robert Bork noted, “encourage the courts to yet more daring adventures in constitution-making.” Robert Bork, Foreword to Gary L. McDowell, The Constitution and Contemporary Constitutional Theory viii (1985). However, the new judicial role was extolled only so long as it satisfied activist aspirations. A putative departure from the judicial path of the last forty years (which is no more sacrosanct than the dumped precedents of the prior 150 years) led Dean Guido Calabresi of Yale to declare, “I despise the current Supreme Court and find its aggressive, wilful behavior disgusting.” N.Y. Times, July 28, 1991, Op. Ed. Calabresi’s complaint is clarified by Anthony Lewis: “we now have a Court dominated by conservative activists, construing laws so as to reach results that they desire.” Anthony Lewis, “Winners and Losers,” N.Y. Times, Oct. 18, 1989, at A17. But Lewis lauded that very practice when the Warren Court reached results that Lewis desired. See infra note 17.
8. Gordon Wood, The Creation of the American Republic, 1776–1787 298 (1969).
9. H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885, 891 (1985).
10. Richard Kay, “Book Review,” 10 Conn. L. Rev. 800, 805–806 (1978): “To implement real limits on government the judges must have reference to standards which are external to, and prior to the matter to be decided . . . The contents of those standards are set at their creation. Recourse to ‘the intention of the framers’ in judicial review, therefore can be understood as indispensable to realizing the idea of government limited by law.” See also W. Lawrence Church, “History and the Constitutional Role of the Courts,” 1990 Wis. L. Rev. 1071, 1087–1088.
11. Jefferson pledged in his Inaugural Address to administer the Constitution “according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanations of those who advocated it.” 4 Elliot, supra note 4 at 466. Madison wrote, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.” 3 Letters and Other Writings of James Madison 441, 442 (1865).
12. John Marshall’s Defense of McCulloch v. Maryland 167 (Gerald Gunther ed. 1969).
13. William Cullen Bryant asked, are we “to admit that the Constitution was never before rightly understood, even by those who framed it?” 1 Allan Nevins, The Emergence of Lincoln 95 (1950).
14. Table Talk: Being the Discourses of John Selden, Esq. 10 (1696). See Supplementary Note on Original Intention.
15. Hobbes wrote that the judge is to be guided by “the final causes, for which the law was made; the knowledge of which final causes is in the legislator.” Thomas Hobbes, Leviathan pt. 2, chap. 26, §21, p. 191 (1991). Locke stated, “when a man speaks to another, it is . . . [to] make known his ideas to the hearer. That then which words are the marks of are the ideas of the speaker . . . this is certain, their signification, in his use of them, is limited to his ideas, and they can be signs of nothing else.” John Locke, An Essay Concerning Human Understanding 204–206 (Raymond Wilburn ed. 1947).
16. Louis Lusky, himself an activist, observed that the Court has “a new and grander conception of its own place in the governmental scheme,” resting on “two basic shifts in its approach to constitutional adjudication”: “assertion of the power to revise the Constitution, bypassing the cumbersome amendment procedure prescribed by Article V,” and “repudiation of the limits on judicial review that are implicit in the doctrine of Marbury v. Madison.” Louis Lusky, “Government by Judiciary: What Price Legitimacy?” 6 Hastings Const. L.Q. 403, 406, 408 (1979). In holding that Congress could not “alter” the Constitution, Marbury made the “implicit” “explicit.”
17. By “activists” I mean those who claim that judges are empowered to revise the Constitution and to look for authority outside its text and history. Thus, Paul Brest challenges the assumption that judges are “bound by the text or original understanding of the Constitution.” Paul Brest, “The Misconceived Quest for the Original Understanding,” 60 B.U. L. Rev. 204, 234 (1980). And the late Robert Cover thrust aside the “self-evident meaning of the Constitution,” let alone “the intention of the framers,” in favor of an “ideology” framed by judges. Robert Cover, “Book Review,” New Republic, Jan. 14, 1978, at 26, 27.
Perry urged activists “to get on with the task of elaborating a defensible non-originalist conception of constitutional text, interpretation and judicial role.” Michael Perry, “The Authority of Text, Tradition, and Reason: A Theory of Constitutional Interpretation,” 58 S. Cal. L. Rev. 551, 602 (1985). For Brest’s disappointment with seven activist attempts to frame such a theory, see Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale L.J. 1063, 1067–1089 (1981). He considers that “no defensible criteria exist” whereby to assess “value-oriented constitutional adjudication.” Id. 1065.
18. Brest, supra note 17 at 1109. Anthony Lewis exulted because in the fifteen years since Earl Warren became Chief Justice, the Court “has brought about more social change than most Congresses and most presidents” — “years of legal revolution.” Anthony Lewis, “A Man Born to Act, Not to Muse,” New York Times Magazine, June 30, 1968, reprinted in The Supreme Court Under Earl Warren 151 (Leonard Levy ed. 1972); cf. Calabresi, supra note 7.
19. “The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete responsibility of government to the governed.” Charles H. McIlwain, Constitutionalism: Ancient and Modern 146 (rev. ed. 1947). “The fabric of American empire,” said Hamilton, “ought to rest on the solid basis of THE CONSENT OF THE PEOPLE,” Federalist No. 22 at 141 (Mod. Lib. ed. 1937). James Wilson and others considered that “the binding power of the law flowed from the continuous assent of the subjects of law.” Bernard Bailyn, The Ideological Origins of the American Constitution 174 (1967).
20. 2 G. J. McRee, Life and Correspondence of James Iredell 146 (1858).
21. Benjamin N. Cardozo, The Nature of the Judicial Process 136 (1921).
22. Chief Justice Marshall asked, “To what purpose are powers limited, and to what purpose is that limitation committed to writing; if those limits may, at any time, be passed by those intended to be restrained?” If, he continued, the Constitution is “alterable when the legislature shall please to alter it . . . then written constitutions are absurd attempts, on the part of the people, to limit a power in its nature illimitable.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–177 (1803).
23. Sidney Hook observed that “whoever places greater emphasis upon the product rather than the process, upon an all-sanctifying end rather than upon the means for achieving it, is opening the doors of anarchy.” Sidney Hook, Philosophy and Public Policy 36 (1980).
24. “ ‘Criticism,’ wrote Johnson in the 60th Idler, ‘is a study by which men grow important and formidable at a very small expense.’ ” Augustine Birrell, Obiter Dicta 110 (2d series 1905). Daniel Boorstin observes that most men “hate the necessity of revising their convictions.” Daniel J. Boorstin, The Discoverers 476 (1983).
Referring to the desegregation and reapportionment decisions, Richard Kay wrote, “These doctrines have now become almost second nature to a generation of lawyers and scholars. Thus it is hardly surprising that the casting of a fundamental doubt on such basic assumptions should produce shock, dismay, and sometimes anger.” Kay, supra note 10 at 801.
Aviam Soifer charged me with “the worst type of law-office history,” “emphasiz[ing] how badly Berger misuses historical materials.” Quoted in Raoul Berger, “Soifer to the Rescue of History,” 32 S.Car. L. Rev. 427, 428 (1981). Judge John G. Gibbons (3d Cir.) fired off a papal bull: Berger “is neither talented enough as an advocate nor knowledgeable enough as an historian to be taken seriously in either discipline.” Quoted in Raoul Berger, “ ‘Government by Judiciary’: Judge Gibbons’ Argument Ad Hominem,” 59 B.U. L. Rev. 783 (1979). Hans Baade entitled his critique “ ‘Original Intention’: Raoul Berger’s Fake Antique” and declared that his conclusion is summarized by the title of an article, “Misrepresentation in North Carolina,” quoted in Raoul Berger, “Original Intent: The Rage of Hans Baade,” 71 N.C. L. Rev. 1151, 1152 (1993). William Wiecek dismisses my views as “empty bombast.” William H. Wiecek, “The Constitutional Snipe Hunt,” 23 Rutgers L.J. 253, 254 (1992).
25. E.g., Baade, supra note 24; Bruce Ackerman, We the People: Foundations 91, 334–336 (1991).
26. For an encapsulation of this history, see Supplementary Note on the Civil Rights Act, text accompanying notes 7 through 24.
27. The Reconstruction Amendments’ Debates 143 (Alfred Avins ed. 1967).
28. Id. 237. See also the Report of the Joint Committee on Reconstruction, which drafted the Amendment. Id. 94.
29. For the “gap” materials, see Raoul Berger, “The Fourteenth Amendment: Light From the Fourteenth,” 74 Nw. U. L. Rev. 311, 321–323 (1979); United States v. Reese, 92 U.S. 214, 217–218 (1876): the Fifteenth Amendment “has invested the citizen of the United States with a new right.” Mark that the “one man-one vote” doctrine rests on the Fourteenth Amendment.
30. Justice Story declared that “we are not at liberty to add one jot of power to the national government beyond what the people have granted by the constitution.” Houston v. Moore, 18 U.S. (5 Wheat.) 1, 48 (1820), dissenting opinion.
31. 347 U.S. 483 (1954). An activist sympathizer asked, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under the amendment?” Richard Kluger, Simple Justice 635 (1976).
32. “It is in this recognition of the practical, present and future-looking consequences of constitutional symbols that a proper beginning point for a book on constitutional law must lie.” Robert Cover, “Book Review,” New Republic, Jan. 14, 1978, at 26, 27. The duty of an historian is to ascertain what happened, not to ignore the historical facts for fear of “future consequences.”
33. Bruce Ackerman, We the People: Foundations 133 (1991). “Only a mobilized mass movement,” Ackerman noted, “might encourage progressive Democrats and Republicans to overcome massive Southern resistance to new civil rights legislation.” At the time Brown was “argued and reargued . . . such a mass movement did not exist.” Id. 135. During the oral argument Justice Jackson commented, “realistically the reason the case is here is that action could not be obtained from Congress.” Alexander Bickel, The Supreme Court and the Idea of Progress 6 (1978). Edmond Cahn stated, “it would have been impossible to secure adoption of a constitutional amendment to abolish ‘separate but equal.’ ” Edmond Cahn, “Jurisprudence,” 30 N.Y.U. L. Rev. 150, 156–157 (1955).
34. Ackerman, supra note 33 at 133; Cahn, supra note 33.
35. A similar messianic role is assumed by Justice Brennan with respect to death penalties. Despite the Fifth Amendment’s recognition that a person may be deprived of life provided he is accorded due process, despite Brennan’s recognition that the majority of his brethren and of his fellow Americans do not share his views, he persists in “striving for human dignity for all,” that is, abolition of the death penalty. For extended discussion, see Raoul Berger, “Justice Brennan vs. the Constitution,” 29 B.C. L. Rev. 787, 796–798 (1988). See also Supplementary Note on the Role of the Court, notes 19 and 20.
36. Richard Kluger, Simple Justice 635 (1976).
37. Kelly, Fourteenth 1049, 1085. When desegregation of the District of Columbia schools was under discussion in April 1860, Senator James Harlan of Iowa said, “I know that there is an objection to the association of colored children with white children in the same schools. This prejudice exists in my own State. It would be impossible to carry a proposition to educate the few colored children that now live in that State in the same school houses with white children. It would be impossible, I think, in every one of the States of the Northwest.” Avins, supra note 27 at 22.
38. Howard Jay Graham, Everyman’s Constitution 290 note 70 (1968).
39. For continued attachment to State sovereignty, see infra pp. 77–80; Berger supra note 29 at 324–326. Lord Acton described the preservation of States’ rights as the “redemption of democracy.” Robert Speaight, The Life of Hilaire Belloc 132 (1957).
Justice Story stated, “it is perfectly clear that the sovereign powers vested in the state governments . . . remain unaltered and unimpaired, except so far as they were granted to the government of the United States.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 325 (1816). Federal invasion of that zone bears the burden of proving that it is authorized by the federal delegation.
Henry Adams wrote, “The doctrine of states’ rights was itself a sound and true doctrine; as a starting point of American history and constitutional law there is no other which will bear a moment’s examination . . . its prostitution to the base uses of the slave power was one of those unfortunate enlargements which often perturb and mislead history.” Henry Adams, John Randolph 273 (1882).
40. Avins, supra note 27 at 163.
41. Paul Brest, “Book Review,” N.Y. Times, Dec. 11, 1977, §11 at 10; Sanford Levinson, “The Turn Toward Functionalism in Constitutional Theory,” 8 U. Dayton L. Rev. 567, 578 (1983); Nathaniel Nathanson, “Book Review,” 56 Tex. L. Rev. 579, 580–581 (1978); Michael Perry, “Interpretivism, Freedom of Expression, and Equal Protection,” 42 Ohio St. L.J. 261, 292 (1981); David A. J. Richard, “Abolitionist Political and Constitutional Theory and the Reconstruction Amendments,” 25 Loyola L.A. L. Rev. 1143, 1187 (1992); Mark Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harv. L. Rev. 781, 800 (1983). Judge Learned Hand said of Brown v. Board of Education, “I have never been able to understand on what basis it does or can rest except as a coup de main.” Learned Hand, The Bill of Rights 55 (1962).
42. Ronald Dworkin, “The Forum of Principle,” 56 N.Y.U. L. Rev. 469, 486–487 (1981). Similar fantasizing is exhibited by John Hart Ely: the framers of the Fourteenth Amendment issued on “open-and-across-the-board invitation to import into the constitutional decision process considerations that will not be found in the amendment nor even . . . elsewhere in the Constitution.” John Hart Ely, “Constitutional Interpretivism: Its Allure and Impossibility,” 53 Ind. L.J. 399, 415 (1978). This at a time when the Dred Scott decision was execrated by the framers. See infra Supplementary Note on the Conclusion, text accompanying notes 21–24. In the introduction to The Intellectual Adventures of Ancient Man 3 (Henri Frankfort & H. A. Frankfort eds. 1977), the Frankforts decry the “irresponsible meandering of the mind which ignores reality and seeks to escape from its problems.”
John Bingham, draftsman of the Fourteenth Amendment, said that of late the Court had “dared to descend from its high place in the discussion of decisions of purely judicial questions [to “settlement of political questions” ] which it has no more right to decide for the American people than the Court of St. Petersburg.” 6 Charles Fairman, History of the Supreme Court of the United States 462 (1971). Small wonder that section 5 of the Amendment entrusted Congress, not the Court, with power to enforce the Amendment. Ex parte Virginia, 100 U.S. 339, 345 (1879).
43. The governing rule was laid down by Chief Justice Marshall: “an opinion which is . . . to establish a principle never before recognized, should be expressed in plain and explicit terms.” United States v. Burr, 25 F.Cas. 55, 165 (C.C.D.Va. 1807) (No. 14, 693). Striking reaffirmation was given to this view in Pierson v. Ray, 386 U.S. 547, 554–555 (1967). After adverting to the common-law immunity of judges from suits for acts performed in their official capacity, the Court stated, “We do not believe that this settled principle was abolished by §1983, which makes liable ‘every person’ who under color of law deprives another of his civil rights . . . The immunity of judges [is] well established and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” In a similar context, the Supreme Court declared, “so important a change . . . if intended, would have been expressly declared.” Minor v. Happersett 88 U.S. (21 Wall.) 162, 173 (1874).
44. For citations see supra p. 13; and Index, s.v. “racism.” Dworkin might ponder Benjamin Franklin’s belief that “patience and accuracy in making observations” are the foundation “on which alone true philosophy can be founded.” Carl van Doren, Benjamin Franklin 168 (1968). His contemporaries considered Franklin to be one of the foremost thinkers.
45. William Coles, “A Passionate Commitment to Experience,” N.Y. Times, May 29, 1983, §7.
46. Max Beloff, “Arbiters of America’s Destiny,” Times (London), Higher Ed. Supp., April 7, 1978, at 11.
47. With Charles McIlwain I can say, “I entered upon this study without preconceptions. During the course of it I came to the conclusion that the weight of contemporary evidence was against some views . . . [T]his has unavoidably given to certain parts of the book a polemical cast, and might lead one to think that it was written from the beginning to bolster a preconceived theory. Such is not the case.” Charles McIlwain, The High Court of Parliament and Its Supremacy ix (1910).
48. Paul Brest, “The Misconceived Quest for Original Understanding,” 60 B.U. L. Rev. 204, 234 (1980).
49. James Boswell, The Life of Samuel Johnson 1114 (Everyman ed. 1992).
