Читать книгу Government by Judiciary - Raoul Berger - Страница 15

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 1866,¹ 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 Hale² 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.³

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.” ⁴ Blackstone, whose work was widely circulated in the Colonies, was cited in Federalist No. 84 and paraphrased by Kent.⁵ 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.⁶

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.” ⁷ 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.⁸ 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, §2.⁹

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.” ¹⁰ 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.” ¹¹ In fact, the Amendment was designed to “ constitutionalize ” the Act,¹² 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.” ¹³

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.¹⁴

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.” ¹⁵ 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.¹⁶ It was these “enumerated rights,” “stated in the bill,” said Martin Thayer of Pennsylvania, that were “the fundamental rights of citizenship.” ¹⁷

Section 1 of the Bill was a studied response to a perceived evil, the Black Codes,¹⁸ 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.” ¹⁹ 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.” ²⁰ References to the Black Codes stud the debates:²¹ they were described as “atrocious” and “malignant.” ²² 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.” ²³ 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.” ²⁴ 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.²⁵

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.²⁶ 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.” ²⁷ 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.” ²⁸ Wilson emphasized that the rights enumerated were no “greater than the rights which are included in the general terms ‘life, liberty, and property.’ ” ²⁹ 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.” ³⁰

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.” ³¹ 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.³²

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.” ³³ Trumbull stated that the Bill “has nothing to do with the right of suffrage, or any other political rights.” ³⁴ 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.” ³⁵ And he reiterated that the Bill “carefully avoided conferring or interfering with political rights or privileges of any kind.” ³⁶ 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.” ³⁷ 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.” ³⁸ Thayer stressed that the bill did not “extend the right of suffrage,” that suffrage was not a “fundamental right.” ³⁹ 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.⁴⁰

Since Corfield v. Coryell ⁴¹ 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,⁴² 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,⁴³ 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.⁴⁴

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.” ⁴⁵ 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.⁴⁶ 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.” ⁴⁷ Graham dwells on the Corfield phrase “Protection by the government; the enjoyment of life and liberty . . . and to pursue and obtain happiness.” ⁴⁸ 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.” ⁴⁹ 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.” ⁵⁰ 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.⁵¹

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.” ⁵² 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.” ⁵³ 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.⁵⁴ As the citations to Blackstone and Kent show, “fundamental,” “natural” rights had become words of received meaning.⁵⁵ 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.” ⁵⁶

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.⁵⁷ 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.⁵⁸

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

The Fourteenth Amendment provides: “No state shall . . . abridge the privileges or immunities of citizens of the United States.” Robert Bork considers that the “intended meaning” of the clause “remains largely unknown.” ¹ I beg to differ. The “intended meaning” of “privileges or immunities” can be explicated by (1) the relation between the Civil Rights Act of 1866 and the Fourteenth Amendment, and (2) by the historical derivation of the terms. We may put to one side Corfield v. Coryell,² upon which activists beat a tattoo³ and which, I agree with Bork, is “a singularly confused opinion in 1823 by a single Justice [Bushrod Washington] of the Supreme Court,” ⁴ and look rather to the historical derivation of the terms. For as Justice Story stated, if the Framers used terms that had been defined at common law, that definition was “necessarily included as much as if they stood in the text,” ⁵ as the framers of the Amendment well knew.⁶

A

The words “privileges and immunities” first appear in Article IV of the Articles of Confederation, which specified “all the privileges of trade and commerce.” ⁷ The words were adopted in Article IV of the Constitution, which, according to Chief Justice White, was intended “to perpetuate [the] limitations ” of the earlier Article IV.⁸ White repeated Justice Miller’s statement in the Slaughter-House Cases that “There can be but little question that . . . the privileges and immunities intended are the same in each.” ⁹

Privileges or immunities came into the Fourteenth Amendment by way of the Civil Rights Bill of 1866, which initially referred to “ civil rights or immunities.” ¹⁰ In explaining these terms, Lyman Trumbull, chairman of the Senate Judiciary Committee, read from the Maryland (per Samuel Chase, soon to ascend to the Supreme Court) and Massachusetts cases.¹¹ Early on these courts had construed Article IV in terms of trade and commerce.¹² Chase declared, as did Massachusetts Chief Justice Parker, that the words were to be given a “limited operation.” ¹³ Activists ignore those opinions and build entirely on Corfield,¹⁴ notwithstanding that Trumbull did not read Corfield broadly, stating that it “enumerates the very rights set forth in the Bill” and explaining that “the great fundamental rights set forth” ¹⁵ in the Bill are “the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts,” ¹⁶ rights embodied in the Act.

A telling illustration of the “limited” scope of “privileges or immunities” was furnished by John Bingham, an activist mainstay. Despite repeated assurances that the Civil Rights Bill was limited to the specifically enumerated rights, Bingham protested vehemently:

[C]ivil Rights . . . include and embrace every right that pertains to the citizen . . . [it would] strike down . . . every State constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen . . . [it would] reform the whole civil and criminal code of every State government.¹⁷

Consequently the phrase “civil rights and immunities” was deleted, explained James Wilson, chairman of the House Judiciary Committee, in order to remove “the difficulty growing out of any other construction beyond the specific rights named in the section . . . [leaving] the bill with the rights specified.” ¹⁸ The House approved the deletion of the “oppressive” words. No activist has attempted to explain why Bingham, after strenuously protesting against the oppressive invasion of the States’ domain by “civil rights,” embraced in the lesser “privileges” of the Amendment the very overbroad scope he had rejected in the Bill.

In truth, the framers regarded “privileges or immunities” as words of art, having a circumscribed meaning. After reading to the Senate from the cases, Trumbull remarked, “this being the construction as settled by judicial decisions.” ¹⁹ Judge William Lawrence acknowledged in the House “that the courts have by construction limited the words ‘all privileges’ to mean only ‘ some privileges.’ ” ²⁰ Although the Supreme Court noticed the Bingham incident in Georgia v. Rachel and concluded that the Bill reached only a “limited category of rights,” ²¹ it is ignored by activists.

That is likewise the fate of other striking evidence. On January 20, 1871, Bingham submitted a Report of the House Committee on the Judiciary, from which he did not dissent, reciting that the privileges or immunities clause of the Fourteenth Amendment

does not in the opinion of the committee, refer to privileges and immunities . . . other than those privileges and immunities embraced in the original text of the Constitution, Article IV, Section 2. The Fourteenth Amendment, it is believed, did not add to the privileges and immunities before mentioned.²²

The Supreme Court likewise declared that the phrase did not add to the privileges or immunities provided by Article IV.²³ What manner of scholarship is it that ignores such weighty evidence? Instead, Erwin Chemerinsky and Bruce Ackerman would attribute to the 1823 Corfield case power to expand the 1866 Bill, whose spokesman, after reading from Corfield, said it enumerated the “very rights” listed in the Bill.²⁴

B

THE CIVIL RIGHTS BILL OF 1866

The Civil Rights Bill and the Fourteenth Amendment, activist William Nelson correctly observed, are “inextricably linked.” ²⁵ The Amendment was designed to embody the Act in order to prevent its subsequent repeal or, in the alternative, to give it constitutional footing. The evidence that the framers deemed the Act and Amendment “identical” is unequivocal and uncontroverted.²⁶ That identity is highly important because, as the Supreme Court stated in 1966, “The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights.” ²⁷ The sponsor of the Act, Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, described its provisions as the “right to acquire property, the right to come and go at pleasure, the right to enforce rights, to make contracts.” ²⁸ He is corroborated by the face of the Act.²⁹ If Act and Amendment are “identical,” it follows that the Amendment likewise protects only a “limited category of rights,” an unpalatable conclusion that activists simply cannot bring themselves to swallow. But, as Alexander Bickel concluded, “It remains true that an explicit provision going further than the Civil Rights Act would not have carried in the 39th Congress.” ³⁰

So, John Hart Ely rejects the “claim [that] the coverage of the two was meant to be identical.” ³¹ So, too, Paul Dimond dismisses the “claim that the Fourteenth Amendment dealt solely with the rights enumerated in the 1866 Act.” ³² Although Michael Zuckert considers my “unrelenting effort” to identify Act and Amendment of “greatest importance,” he rejects it on the ground that the language of the Act and that of the Amendment are different, and he asks, if the framers “merely sought to get the Civil Rights Act into the Constitution why did they not simply take the first section and use it for the amendment?” ³³ By that logic the argument for incorporation of the Bill of Rights—which Zuckert endorses³⁴ —collapses. Indeed, the argument for embodiment of the Civil Rights Act is far stronger, because the framers unmistakably and repeatedly stated that Act and Amendment are “identical.” Unlike incorporation of the Bill of Rights, there was no confusion on this score. To Zuckert’s triumphant query “Why didn’t they say so,” the answer in Justice Holmes’ words is that if “the Legislature has . . . intimated its will, however indirectly, that will should be recognized and obeyed.³⁵

To dispose of activist caviling, herewith some additional evidence. Martin Thayer of Pennsylvania explained that “it is but incorporating in the Constitution . . . the principle of the Civil Rights Bill which has lately become a law” in order that it “shall be forever incorporated in the Constitution.” ³⁶ On the ratification trail in August 1866, Senator Trumbull “clearly and unhesitatingly declared [Section 1 of the Amendment] to be ‘a reiteration of the rights as set forth in the Civil Rights Bill.” ³⁷ In Indiana, Senator Henry Lane “affirmed Trumbull’s statement concerning the first section”;³⁸ and Senator John Sherman of Ohio endorsed those views in a speech on September 29, 1866.³⁹ Senator Luke Poland of Maine spoke to the same effect in November 1866.⁴⁰ In sum, Joseph James concluded, “Statements of congressmen before their constituents definitely identify the provisions of the first section of the amendment with those of the Civil Rights Bill.” ⁴¹

Horace Flack’s canvass of “speeches concerning the popular discussion of the Fourteenth Amendment” led him to conclude that “the general opinion held in the North . . . was that the amendment embodied the Civil Rights Bill.” ⁴² In 1871, James Garfield emphasized that “he not only heard the whole debate [in the 39th Congress] at the time, but I have lately read over, with scrupulous care, every word of it as recorded in the Globe,” and stated “this section [1] of the Amendment was considered as equivalent to the first section of the Civil Rights Bill.” ⁴³ Earlier Justice Bradley had stated, “the first section of the bill covers the same ground as the fourteenth amendment.” ⁴⁴ Subsequently Justice Field, dissenting in the Slaughter-House Cases from emasculation of the “privileges or immunities” clause, stated on behalf of the four dissenters, “In the first section of the Civil Rights Act Congress has given its interpretation to those terms.” ⁴⁵ Activist far-fetched inferences from generalities are no counter to such hard facts.

The modern rights extracted from the Civil Rights Act of 1866 are at a long remove from those envisioned by its framers. Some additional evidence will make that plain. Radical Senator Henry Wilson of Massachusetts urged the framers to ensure that the freeman “can go where he pleases, work when and for whom he pleases, that he can sue and be sued, that he can lease and buy and sell and own property, real and personal” ⁴⁶ —measures to strike the shackles of the Black Codes. Senator William Windom of Minnesota said that the Civil Rights Bill afforded the blacks “an equal right, nothing more . . . to make and enforce contracts [etc.] . . . It merely provides safeguards to shield them from wrong and outrage and to protect them in the enjoyment of the right to exist.” ⁴⁷ The framers responded to what Senator Timothy Howe of Wisconsin termed the South’s denial to blacks of “the plainest and most necessary rights of citizenship. The right to hold land . . . the right to collect wages by processes of law . . . the right to appear in the courts for any wrong done them.” ⁴⁸ In 1871, Senator Trumbull reminded the Senate that the Act declared that the rights of blacks “should be the same as those conceded to whites in certain respects, which were named in the Act.” ⁴⁹ And in 1874, the Supreme Court stated that “the Amendment did not add to the privileges and immunities of a citizen,” ⁵⁰ which had been construed in terms of trade and commerce.⁵¹

FUNDAMENTAL RIGHTS

The current preoccupation with individual rights obscures the Founders’ concern in 1787 with the rights of the community rather than the individual. For them “individual rights, even the basic civil liberties that we consider so crucial, possessed little of their modern theoretical relevance when set against the will of the people.” ⁵² “In the Convention and later,” wrote Alpheus T. Mason, “states’ rights—not individual rights—was the real worry,” ⁵³ The Founders were concerned with erecting a structure of government that would diffuse and limit delegated power, not with fortifying individual rights.⁵⁴ “It was conceivable,” wrote Gordon Wood, “to protect the common law liberties of the people against their rulers, but hardly against the people themselves.” ⁵⁵ As Louis Henkin observed, “the Constitution said remarkably little about rights” because the federal government “was not to be the primary government . . . governance was left principally to the States.” ⁵⁶

The Colonists claimed “the rights of Englishmen”; what were they? When people in the seventeenth century “talked about rights,” Sir William Holdsworth concluded, “they meant the rights which the existing laws gave them.” ⁵⁷ By 1765 these had crystallized into Blackstone’s triad: personal security, personal liberty (i.e., freedom to come and go), and property.⁵⁸ The opening resolve of the First Continental Congress affirmed that the Colonies by “the principles of the British Constitution . . . are entitled to life, liberty and property.” ⁵⁹ In the Virginia Ratification Convention, Edmund Pendleton declared, “our dearest rights—life, liberty and property—as Virginians are still in the hands of our state legislatures.” ⁶⁰ Later Justice Story wrote that “the most general rights, which belong to all mankind, may be said to be the right to life, to liberty and to property.” ⁶¹ And Chancellor Kent paraphrased Blackstone.⁶² In 1866, James Wilson, chairman of the House Judiciary Committee, read the Blackstone triad to the 39th Congress and commented, “Thus, sir, we have the English and American doctrine harmonising,” ⁶³ thereby indicating that the rights conferred by the Fourteenth Amendment were confined by the triad, as its due process clause confirmed.

Manifestly the historically limited view of “fundamental rights” cannot sustain the inexhaustible activist claims. Indeed, two leading activist theoreticians admit as much. Paul Brest acknowledges that “Fundamental Rights adjudication is open to criticism that it is not authorized and not guided by the text and original history of the Constitution.” ⁶⁴ And Michael Perry recognizes that the individual rights which activists champion are judicial constructs of the “modern” Court.⁶⁵

Substantive due process not being as fruitful as of yore, activists have been turning to the Ninth Amendment as a fresh cornucopia of “rights.” It provides that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” ⁶⁶ What is enumerated is embodied in the Constitution; what is retained is not. Reservations are not grants of power to deal with what is retained. Put differently, what is retained is excluded from the federal jurisdiction. This is made clear by Madison’s explanation in introducing the Bill of Rights: “the great object in view is to limit and qualify the power of Government by excepting out of the grant of power those cases in which the Government ought not to act.” ⁶⁷ Given that the federal government “ought not to act” in the “excepted” zone, much more was federal action precluded in the “retained” zone.⁶⁸ Instead of expanding federal jurisdiction, the Bill of Rights was meant to curtail it. To obviate the implication that the nonmentioned rights “were intended to be assigned into the hands of the general Government,” Madison stated, this danger would be “guarded against” by the draft precursor of the Ninth Amendment.⁶⁹ Justice Black, who read the Bill of Rights into the Fourteenth Amendment, observed that the Ninth Amendment “was intended to protect against the idea that ‘by enumerating particular exceptions to the grant of power’ to the Federal Government ‘those rights which were not singled out, were intended to be assigned into the hands of the General Government.’ ” ⁷⁰ The fact that Amendments One through Eight were meant to limit the powers of the federal government militates against a reading of the Ninth that would confer unlimited federal judicial power to create new “rights.” ⁷¹

The cheerleader of the cornucopian movement is Randy Barnett.⁷² Deploring the Supreme Court’s “neglect” of the Ninth Amendment’s expansive possibilities, Barnett proffers a “powerful method of protecting unenumerated rights,” a “presumption of liberty” that would require a State “to show that the legislation [claimed to be] infringing the liberty of its citizens was a necessary exercise of its police power.” ⁷³ But it is for a plaintiff to set forth a cause of action before the State is called upon to prove the negative. To shift the burden of persuasion to the State by Barnett’s “presumption of liberty,” more is required than bare assertion of an unheard-of claim.⁷⁴ Recent Supreme Court pronouncements are unsympathetic to “novel,” nontraditional “substantive due process” claims,⁷⁵ which are the more compelling when claimants invoke the unidentified rights “retained by the people.”