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8

Incorporation of the Bill of Rights in the Fourteenth Amendment

INVOCATION of the Bill of Rights against the States is of fairly recent origin,¹ whether it be regarded within the older framework of “adoption” or the more recent theory of “incorporation.” ² From the First Amendment’s “Congress shall make no law” may be gathered that it was to apply exclusively to Congress, and it was held in Barron v. Baltimore ³ that the Bill of Rights had no application to the States, as in fact the First Congress, which drafted the Bill, had earlier made clear.⁴ Justice Harlan spoke truly in stating that “every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.” ⁵ And for a long time the Supreme Court found that the Fourteenth Amendment had made no change in this respect.⁶ By means of “selective” incorporation or adoption the Court has worked “a revolutionary change in the criminal process” ⁷ of the States. Some consider that the Court was “trying to legislate a detailed criminal code for a continental country.” ⁸

Historically the citizenry have relied upon the States for protection, and such protection was afforded before the Constitutional Convention by a Bill of Rights in virtually every state Constitution. It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State Constitutions already provided against the States. This was understood by the framers of the Fourteenth Amendment,⁹ and their own attachment to State sovereignty led them to refrain from intruding beyond the ban on discrimination against blacks with respect to certain rights. All else, including suffrage, was left to the States. In particular, Chairman Wilson emphasized during the debates on the Civil Rights Bill, “We are not making a general criminal code for the States.” ¹⁰ Since the Amendment indisputably was designed to “incorporate” the guarantees of the Civil Rights Act, evidence is required to show that the framers had moved beyond the limited purposes of the Act.

The architect of the “incorporation” theory, Justice Black, invoked some fragmentary history—utterances in connection with an explanation of “privileges or immunities” by two leading Republican spokesmen, Bingham, author of §1, and Senator Jacob M. Howard, who purported to express the views of the Joint Committee.¹¹ Such statements are not lightly dismissed, after the manner of Justice Frankfurter, because “Remarks of a particular proponent of the Amendment, no matter how influential, are not to be deemed part of the Amendment.” ¹² Accepted canons of construction are to the contrary; the paramount consideration is to ascertain the intention of the legislature. That intention may be evidenced by statements of leading proponents,¹³ and, if found, is to be regarded as good as written into the enactment: “the intention of the lawmaker is the law.” ¹⁴ But Black’s history falls far short of the “conclusive demonstration” he thought it to be in his famous Adamson dissent.¹⁵ The contrary, it may fairly be said, was demonstrated in Charles Fairman’s painstaking and scrupulous impeachment of Black’s history,¹⁶ buttressed by Stanley Morrison’s telling companion article.¹⁷

Absorption of one or another portion of the Bill of Rights—free speech, for example—antedated Adamson,¹⁸ but this was on a selective basis, under cover of due process. To Black this was an abhorrent claim to “boundless power under ‘natural law’ periodically to expand and contract constitutional standards to conform to the court’s conception of what at a particular time constitutes ‘civilized decency’ and ‘fundamental liberty and justice.’ ” Why, he asked, should the Bill of Rights “be ‘absorbed’ in part but not in full?” ¹⁹ The cure, he maintained, was “incorporation” en bloc. His condemnation was not, however, wholehearted, for he was ready to accept “selective” adoption if he could not obtain wholesale incorporation, suggesting that sacrifice of a desired result was more painful than “boundless power to expand or contract constitutional standards.” ²⁰ The words “privileges or immunities” seemed “an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.” ²¹ The two concepts, however, are of entirely different provenance and deal with quite different matters. “Privileges or immunities” has its roots in Article IV, §2, which requires States to accord certain privileges to citizens of a sister State; the Bill of Rights, on the other hand, was designed to protect certain rights against the federal government. The debates in the First Congress contain not the faintest intimation that the “privileges and immunities” of Article IV were being enlarged or, indeed, that the Bill of Rights was in any way related to “privileges and immunities.” And, when Justice Bushrod Washington later enumerated those “privileges and immunities,” he too made no reference to the Bill of Rights. To read the Bill of Rights into “privileges or immunities” is therefore no more “reasonable” than to read a “bill of attainder” into “habeas corpus.”

In Adamson, Black appealed to “the original purpose of the Fourteenth Amendment.” ²² as disclosed by the Bingham-Howard statements. These statements had reference to the “privileges or immunities” clause, but that clause had been emasculated in the Slaughter-House Cases. ²³ Hence Black relied on “the provisions of the Amendment’s first section, separately, and as a whole” for incorporation of the Bill of Rights.²⁴ The “privileges or immunities” clause gains no fresh vitality as a component of the “whole” of §1. Reliance on the due process clause runs afoul of Black’s statement in the Adamson case that in Chicago, M. & St. P. R. Co. v. Minnesota (1890)²⁵ the Court “gave a new and hitherto undisclosed scope for the Court’s use of the due process clause to protect property rights under natural law concepts.” ²⁶ Substantive due process was fashioned in Wynehamer v. The People (1856) to bar abolitionist natural law claims and confine protection to property; and libertarian due process came long after economic substantive due process. No one in the 39th Congress intimated that the due process clause would incorporate the Bill of Rights; Bingham looked to the judicial decisions for the scope of due process, then purely procedural.²⁷ Speaking to the Bingham amendment, Chairman Wilson indicated that the due process clause was considered to furnish a “remedy” to secure the “fundamental rights” enumerated in the Civil Rights Act.²⁸ To transform it into a “source” of other unspecified rights is to set at naught the careful enumeration of rights in the Act, “constitutionalized” by the Amendment, which is incompatible with Black’s invocation of the original purpose. In truth, expansion of due process to libertarian claims is largely a product of the post-1937 era; and “substantive equal protection” is a very recent concept indeed. Black’s reliance on §1 “as a whole” can therefore be met with the adage “when nothing is added to nothing, the sum is and remains the same—nothing.”

Bingham’s remarks were addressed to H. R. No. 63, the antecedent Bingham amendment: “The Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States (Art. IV, §2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th amendment).” This proposal, said Bingham, “stands in the very words of the Constitution . . . Every word . . . is today in the Constitution.” ²⁹ It is a mark of Bingham’s sloppiness that “every word” was not “in the Constitution”: “equal protection” was missing altogether. “ [T]hese great provisions of the Constitution,” he continued, “this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.” ³⁰ As Fairman pointed out, the antecedent of his remark was Article IV, §2, and the Fifth Amendment due process clause which Bingham equated with “equal protection.” ³¹ There is no reason to believe that his subsequent references to the Bill of Rights had broader compass.³² Certainly his fellow Republicans did not so read his proposed amendment. The radical William Higby of California thought that the Article IV, §2, clause and the Fifth Amendment due process clause constituted “precisely what will be provided” by the Bingham amendment.³³ Another radical, Frederick E. Woodbridge of Vermont, stated: “It is intended to enable Congress by its enactments when necessary to give a citizen of the United States in whatever State he may be, those privileges and immunities which are guarantied to him under the Constitution [Article IV] . . . that protection to his property which is extended to other citizens of the State [due process clause].” ³⁴ Bingham’s reference to “the enforcement of the bill of rights, touching the life, liberty, and property . . . within every organized State . . .” ³⁵ would convey to his fellows the technical meaning that had been attached to “life, liberty, and property” in the Civil Rights Bill debate.

Bingham, it will be recalled, had proposed his amendment to avoid doubts as to the constitutionality of the Civil Rights Bill. Wilson, chairman of the Judiciary Committee, joined issue: “in relation to the great fundamental rights embraced in the bill of rights, the citizen . . . is entitled to a remedy. The citizen is entitled to the right of life, liberty and property. Now if a State intervenes, and deprives him, without due process of law, of those rights . . .” And he said, “I find in the bill of rights which the gentleman desires to have enforced by an amendment . . . that ‘No person shall be deprived of life, liberty and property without due process of law.’ I understand that these constitute the civil rights . . . to which this bill relates.” ³⁶ Implicit in Wilson’s formulation is the assumption that no more is needed; and that is likewise the implication of the Higby and Woodbridge remarks about the Bingham amendment.

Far from accepting every word that fell from Bingham as gospel, the framers gave his proposal a chilly reception. According to Kendrick, he “stood almost alone . . . a great many Republicans, including particularly the entire New York delegation, were opposed to the amendment.” ³⁷ He tried to soften the opposition by arguing that to oppose his amendment was “to oppose the grant of power to enforce the bill of rights,” to perpetuate statutes of confiscation, of banishment, of murder.³⁸ Bickel considers that Bingham “was suggesting to those members who were alarmed that he had some definite evils in mind, limited and distinct in nature.” ³⁹ When we add: (1) the fact that Bingham’s amendment was shelved argues against adoption of his views;⁴⁰ (2) the fact that the Joint Committee’s subsequent rejection of Bingham’s motion to add to Owen’s proposed amendment the phrase “nor take private property for public use without just compensation” ⁴¹ is incompatible with blanket adoption of the first eight Amendments; (3) the fact that Bingham made no reference to inclusion of the Bill of Rights during debate on the final proposal which became §1 of the Amendment; (4) Wilson’s emphasis during debate that the Civil Rights Bill embodied the very civil rights embraced by due process protection of life, liberty, and property; and (5) Wilson’s assurances during that debate that “we are not making a general criminal code for the States” ⁴² (suggesting that what was unpalatable in the Bill would be no more acceptable in the Amendment)—it becomes apparent that beyond due process the framers had no intention to adopt the Bill of Rights.

Bingham was in fact utterly at sea as to the role of the Bill of Rights. At first he considered it to be binding upon the States. Thus, after reading the due process clause of the Fifth Amendment as the source of his own proposed amendment, he stated: “this proposed amendment does not impose upon any State . . . an obligation which is not now enjoined upon them by the very letter of the Constitution.” ⁴³ For this he appealed to the “supremacy clause” of Article VI, which makes the Constitution binding,⁴⁴ hurdling the preliminary question whether the Constitution made the Fifth Amendment binding on the States. Although he noted that Barron v. Baltimore ⁴⁵ held that the Bill of Rights is “not applicable to and do[es] not bind the States,” ⁴⁶ he stated on February 28: “A State has not the right to deny equal protection . . . in the rights of life, liberty, and property.” On March 9 he stated:

the care of the property, the liberty, and the life of the citizen . . . is in the States, and not in the Federal Government. I have sought to effect no change in that respect . . . I have advocated here an amendment which would arm Congress with the power to punish all violations by State officers of the bill of rights . . . I have always believed that protection . . . within the States of all the rights of person and citizen, was of the powers reserved to the States.⁴⁷

Reservation of “protection” to the States runs counter to rejection of a State’s denial of an existing “right to equal protection”; it is incompatible with State “violations” of the Bill of Rights. Apparently unaware that Article IV, §2, protected nonresident migrants, not residents,⁴⁸ Bingham said: “No State ever has the right . . . to abridge . . . the privileges and immunities of any citizen of the Republic.” Shifting again, he stated: “we all agree . . . that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” ⁴⁹ “Exclusive control” authorizes a State to “abridge” the privilege. In truth, as Morrison, concurring with Fairman, stated, Bingham’s “many statements . . . are so confused and conflicting as to be of little weight.” ⁵⁰ This goes beyond the issue of credibility, which courts test by inconsistent statements. It poses the question: upon which of his conflicting explanations did the framers rely? How can “conclusive” legislative history rest on shifting sands?⁵¹

In the eyes of Justice Black, “Bingham may, without extravagance be called the Madison of the first section of the Fourteenth Amendment.” ⁵² Shades of Madison! Bingham was a muddled thinker,⁵³ given to the florid, windy rhetoric of a stump orator, liberally interspersed with invocations to the Deity,⁵⁴ not to the careful articulation of a lawyer who addresses himself to great issues. Recall his location of the words “equal protection” in the Constitution from which they were notably absent. Hale attributed to Bingham the view that “there had been from first to last, a violation of the provisions of this bill of rights by the very existence of slavery itself,” ⁵⁵ thereby, as Judge Hale doubtless was aware, converting the Bill into a repealer of several existing provisions that sanctioned slavery—and this in the teeth of the First Congress’ express intention to exclude the States from the ambit of the Bill of Rights.⁵⁶

Presumably the framers who listened to Bingham found his frequent shifts of position no less perplexing than they seem to us; consequently, they had an added incentive to cling to the vastly preponderant view that they were merely incorporating the limited provisions of the Civil Rights Act in the Amendment. Whatever be the weight that attaches to Bingham’s utterances, it needs to be noted that even his admirers read them restrictively. So, Kelly states that his speech of February 29 “makes it clear that by ‘bill of rights’ Bingham meant both the guarantees of the comity clause and the guarantee of due process in the Fifth Amendment.” ⁵⁷ And tenBroek asks, “What Bill of Rights? Certainly not the first eight amendments to the Constitution. The answer is not left open to conjecture: the Bill of Rights that contain (1) the comity clause . . . which guarantees the privileges and immunities of citizens of the United States; (2) the due process clause of the Fifth Amendment; and (3) the requirement that all shall be protected alike in life, liberty, and property, not explicitly mentioned in either body or amendments . . . this was the ‘immortal Bill of Rights’ of John A. Bingham.” ⁵⁸ Among the abolitionists themselves there was general agreement only about the due process clause and the First and Fourth Amendments; the “rights in the other amendments,” tenBroek says, “received only casual, incidental, and infrequent reference.” ⁵⁹ Justice Black, therefore, would impute to Bingham views which far outran the abolitionist program that allegedly was the source of his inspiration. Before we marshall the evidence which further undermines attribution of Bingham’s views to the framers, let us consider the companion remarks of Senator Jacob M. Howard.

By a caprice of fortune—the sudden illness of Chairman Fessenden—it fell to Senator Howard to act as spokesman for the Joint Committee in explaining the Amendment. Up to this point his participation in the debates on the Civil Rights Bill and the several aspects of the Amendment had been negligible. Poles removed from Chairman Fessenden, who “abhorred” extreme radicals, Howard, according to Kendrick, was “one of the most . . . reckless of the radicals,” who had “served consistently in the vanguard of the extreme Negrophiles.” ⁶⁰ He had expended “fruitless efforts” to include the right to vote; he and Elihu B. Washburne of Illinois “had been the only Republicans to hold out for black suffrage to the end, all the others proved willing to abandon it.” ⁶¹ That such a man should speak “for” a Committee in which the “non-radicals clearly outnumbered the radicals,” in which, by the testimony of the co-chairmen Fessenden and Stevens, there “was very considerable difference of opinion,” ⁶² needs to be taken, in the words of the “immortal” Samuel Goldwyn, with “a bushel of salts.”

On May 23 Senator Howard rose in the Senate, alluded to Fessenden’s illness, and stated that he would present “the views and the motives which influenced the committee, so far as I understand [them].” After reading the privileges and immunities listed in Corfield v. Coryell, he said, “to these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments.” ⁶³ That is the sum and substance of Howard’s contribution to the “incorporation” issue. Justice Black assumed without more ado that Howard “emphatically stated the understanding of the framers.” ⁶⁴ No one, to be sure, rose to challenge Howard’s remark, casually tucked away in a long speech.⁶⁵ “The argument from silence,” as Alfred Kelly observed, “is always more than a little dangerous.” ⁶⁶ But was there really silence? Consider Senator Poland’s subsequent statement: “Great differences have existed among ourselves; many opinions have had to yield to enable us to agree upon a plan.” A similar statement had been made by Fessenden and repeated by the radical leader Senator Benjamin Wade.⁶⁷ Now, after the compromise of such differences about known objectives, we are asked to infer that there was unquestioning acceptance of a sweeping, brand-new element, which had received no consideration whatever! Then too, others who spoke after Howard, repeated that the goal was legitimation of the Civil Rights Act. So, Senator Poland observed, “The clause . . . that ‘no State shall . . . abridge the privileges and immunities of citizens of the United States’ rsecures nothing beyond what was intended by the original [Article IV, §2] provision in the Constitution.” ⁶⁸ If this be not regarded as a delicately phrased repudiation of Howard’s addition, at the very least it exhibits a more limited view than that of Howard by a respected Republican.⁶⁹ Senator Doolittle stated that the Civil Rights Bill “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward.” ⁷⁰ Such reminders of known and limited objectives were designed to reassure those whose consent had thus far been won; and they rob Howard’s remark of uncontroverted standing.⁷¹

Account must also be taken of expressions in the House after Howard’s speech, for even if his words be taken to express the sentiment of the Senate, it must not be facilely assumed that it was shared by the House. Nothing was said about the Bill of Rights upon return of the measure to the House⁷² —surely a remarkable silence about an extraordinary expansion of jointly accepted goals! Instead, George R. Latham, a West Virginia Republican, remarked, “The ‘civil rights bill’ which is now a law . . . covers exactly the same ground as this amendment.” ⁷³ Henry Van Aernam of New York said that the Amendment gives “constitutional sanctions and protection to the substantial guarantees of the civil-rights bill.” ⁷⁴ The Latham–Van Aernam remarks, parenthetically, afford additional proof that the earlier Bingham remarks did not represent the thinking of the House. Also significant are Stevens’ final remarks lamenting his failure to abolish “all” “inequality” and “distinctions” and explaining that he was constrained to accept so “imperfect a proposition” because he lived “among men and not among angels . . . who . . . do not choose to yield their opinions to mine.” ⁷⁵ It strains credulity to attribute to “men” who had rejected abolition of “all” distinctions readiness to swallow whole-hog reconstruction of their Northern institutions which had not even been discussed. Instead, the specific incorporation of one portion of the Bill of Rights—the due process clause—and the rejection of another—the just compensation clause—gave the framers ample reason to conclude that “due process” alone was to be “incorporated.” ⁷⁶

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

the general opinion held in the North . . . was that the Amendment embodied the Civil Rights Act . . . There does not seem to have been any statement at all as to whether the first eight amendments were to be made applicable to the States or not, whether the privileges guaranteed by those amendments were to be considered as privileges secured by the amendment.⁷⁷

Senator Sherman, for example, told Cincinnati during the campaign for adoption that “the first section was an embodiment of the [Civil Rights] Act.” ⁷⁸ Fairman has collected remarks by five Senators and five Representatives, not one of whom “said that the privileges and immunities clause would impose Articles I to VIII upon the States.” ⁷⁹ We must assume that they knew of no such purpose; men of Sherman’s stature may not be charged with a conspiracy to conceal the proposed imposition from the people—certainly not without substantial proof. There is no need to retrace Fairman’s examination of the State ratification proceedings;⁸⁰ let it suffice that there is no intimation therein that ratification would produce radical changes in the States’ judicial machinery, for example, the replacement of an information by a grand jury indictment, of a six-man jury by a jury of twelve.⁸¹ If this was in fact the purpose of the framers, honesty required disclosure.⁸² None was made, and the reason, I suggest, is that no such purpose was entertained.

Then there is the remarkable fact that the cases which followed on the heels of the Fourteenth Amendment continued to hold the Bill of Rights inapplicable to State action, without mentioning the Amendment.⁸³ Oversight will not account for the omission; the Amendment had been widely discussed; bench and bar are alert to every new and relevant enactment; they would not be oblivious to the revolution worked by the alleged incorporation of the Bill of Rights.⁸⁴

In sum, the framers were motivated by discriminatory denials of “fundamental rights” to the blacks.⁸⁵ No trace of a purpose to reconstruct Northern institutions for the protection of white inhabitants against the State will be found in the debates; the frequent expressions of jealous regard for State sovereignty repel such a purpose. When Judge Robert Hale insisted that “the American people have not yet found their State governments are insufficient to protect the rights and liberties of the citizen,” ⁸⁶ Bingham translated this as “the citizens must rely upon the State for their protection,” and added, “I admit that such is the rule under the Constitution as it now stands.” ⁸⁷ It cannot be presumed that the States which, in Stevens’ words, would not “allow Congress to come within their jurisdiction to fix the qualifications of their voters,” ⁸⁸ would tolerate a federal overhaul of their judicial processes that went beyond making them available to Negroes. Such a presumption runs counter to Senator Trumbull’s assurance that the “provisions of the [Freedmen’s Bureau] bill in regard to holding courts . . . are confined entirely to the rebellious States.” “Certainly nobody has ever complained,” Senator Cowan said, “that a full and exact measure of justice has not been meted out to him in all our courts . . . I do object to extending it to the loyal States of the North.” ⁸⁹ Subsequently, Trumbull twice stated that the Civil Rights Bill had no application to a State that did not discriminate between its citizens.⁹⁰ The constant reiteration that the purpose of the Amendment was to constitutionalize the Civil Rights Act, the frequent tributes to State sovereignty, and recognition of powers reserved to the States by the Tenth Amendment, in which Bingham joined,⁹¹ unite to repel an inference that the framers intended to interfere with State conduct of its own affairs otherwise than is described in that Act. The pervasive attachment to federalism—State control of local institutions—Phillip Paludan repeatedly emphasizes, was “the most potent institutional obstacle to the Negroes’ hope for protected liberty” ⁹² —and even more of an obstacle to federal encroachment on Northern States’ control of their own white citizens. If there was a concealed intention to go beyond the Civil Rights Act, it was not ratified because, first, ratification requires disclosure of material facts,⁹³ whereas there was no disclosure that the Amendment was meant to uproot, for example, traditional State judicial procedures and practices; and, second, a surrender of recognized rights may not be presumed but must be proved. In truth, the Fourteenth Amendment “was presented to the people as leaving control of suffrage in state hands, as representing no change in previous constitutional conditions so far as protection of rights was concerned [beyond banning discrimination], as stripped of radical character.” ⁹⁴

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

The states did not adopt the Amendment with knowledge of its sweeping meaning under its present construction. No section of the Amendment gave notice to the people that, if adopted, it would subject every state law . . . affecting [judicial processes] . . . to censorship of the United States courts. No word in all this Amendment gave any hint that its adoption would deprive the states of their long recognized power to regulate [judicial processes].⁹⁵

Supplementary Note on Incorporation

For William Nelson, “the puzzle of incorporation of the Bill of Rights” has “plagued Fourteenth Amendment historiography for a century.” ¹ But arguments for “incorporation” are a Johnny-come-lately. For 135 years, Justices Harlan and Stewart reminded the Court, every member had agreed that the Founders exempted the States from the Bill of Rights.² It was Justice Black who, in a dissent, relied on some remarks of John Bingham and Senator Jacob Howard in the 1866 Congress to urge that the Bill of Rights was “incorporated” into the Fourteenth Amendment.³ For a truly wild flight of fancy, however, Akhil Amar of Yale takes the prize: “both the text of Section One [of the Fourteenth Amendment] and the public gloss Congress placed upon the text made clear that what Congress was proposing was nothing less than a transformation of the original Bill of Rights.” ⁴ Just what in the “text” —due process, privileges or immunities, equal protection— “made clear” that Congress was importing,⁵ let alone “transforming,” the Bill of Rights, deponent sayeth not. As the Supreme Court stated in 1874 with respect to Negro suffrage, “So important a change . . . if intended, would have been expressly declared.” ⁶ Unlike “incorporation,” which has at least the flimsy basis of Bingham’s and Howard’s remarks, there is no intimation that the Fourteenth Amendment would “transform” the Bill of Rights. Then there is the fact that those remarks caused hardly a ripple. Horace Flack found no published statement that “the first eight amendments were made applicable to the States.” ⁷ Howard’s remark, Charles Fairman recounts, “seems at the time to have sunk without leaving a trace in public discussion.” ⁸ This obliviousness is remarkable, for incorporation of the Bill of Rights would drastically reduce the States’ self-rule—an unlikely surrender of States’ Rights.

The current activist icon, Michael Kent Curtis, who set out to supply an historical footing for “incorporation,” admitted that his “thesis is intensely controversial,” ⁹ and stated that his goal was to find the “probable Republican understanding of a question to which they had paid little direct attention.” ¹⁰ He reasoned that the key to construction of the 1866 debates is furnished by “certain unorthodox constitutional ideas held by a number of Republicans” ¹¹ —never mind that the greatly preponderant Republican view was to the contrary.¹² Amar noted that “many informed men were simply not thinking carefully about the words of Section One at all.” ¹³ Are we to ground a massive invasion of rights reserved to the States on a fit of absentmindedness? Not if we are to be guided by the Supreme Court.¹⁴ In the Slaughter-House Cases Justice Samuel Miller, an informed contemporary of the Fourteenth Amendment, rejected a construction of the Amendment that would subject the States “to the control of Congress, in the exercise of powers heretofore universally conceded to them,” in the absence of “language which expresses such a purpose too clearly to admit of doubt.” ¹⁵ The Federal expansion that activists urge today without a qualm led Justice Brandeis to say, “in every extension of governmental functions lurks a new danger to civil liberty.” ¹⁶

For the moment let me postpone the evidence which led Charles Fairman, and after my own minute scrutiny, myself, to reject the confused and contradictory statements of Bingham, and the remarks of Howard.¹⁷ Our view of Bingham is shared by Alexander Bickel, Leonard Levy, Wallace Mendelson,¹⁸ and even by William Nelson.¹⁹ Michael Zuckert, who regards Curtis favorably, notes that “there was much disagreement among the former abolitionists”;²⁰ there was agreement only about the due process clause and the First and Fourth Amendments.²¹ The “rights in the other amendments,” wrote Jacobus tenBroek, a neoabolitionist, “received only casual, incidental, and infrequent reference.” ²² Alfred Kelly, a dedicated activist, said that Bingham “made it clear that by ‘bill of rights’ Bingham meant both the guarantees of the comity clause and the guarantees of due process in the Fifth amendment.” ²³ Leonard Levy concluded that “there is no reason to believe that Bingham and Howard expressed the view of the majority of Congress.” ²⁴ Probative legislative history cannot be distilled from such conflicting testimony, characterized by Zuckert as “ambiguity and vacillation.” ²⁵

It bears emphasis that the claim of incorporation “constitutes an invasion of rights reserved to the States by the Tenth Amendment, an invasion of such magnitude as to demand proof that such was the framers’ intention.” ²⁶ “Incorporation” has not won the Court’s assent. Rebuffing Black’s theorizing in Adamson v. California, the Court approved the Slaughter-House Cases saying, “It accords with the constitutional doctrine of federalism by leaving to the States the responsibility of dealing with the privileges and immunities of their citizens except those inherent in national citizenship,” ²⁷ a meager exception indeed. In 1959 Justice Frankfurter declared on behalf of the Court:

We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first ten amendments as such. The relevant historical materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States, did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.²⁸

The extensive researches of Fairman,²⁹ which I confirmed, corroborate Frankfurter; our view has won assent even from activists. Michael Perry concluded that Berger’s “finding that the fourteenth amendment was not intended to make the Bill of Rights . . . applicable to the States . . . is amply documented and widely accepted.” ³⁰ Among those who agree are Dean Alfange, Jr., Alexander Bickel, John Hart Ely, Judge Henry Friendly, Lino Graglia, Thomas Grey, Erwin Griswold, Louis Henkin, Forrest McDonald, Richard A. Posner, and Mark Tushnet.³¹

Let me set forth some confirmatory considerations. In seeking to read corporations out of the Fourteenth Amendment, Justice Black observed that “the people were not told that they [were ratifying] an amendment granting new and revolutionary rights to corporations.” ³² No more were the Northern States told that by the Amendment they were massively curtailing their own rights of self-government. Incorporation was not discussed in the Joint Committee on Reconstruction that drafted the Amendment; it was not debated on the floors of Congress, an extraordinary omission given the vast incursion on State sovereignty by the Bill of Rights. Indeed the North was given to understand that it was unaffected by the companion Civil Rights Bill,³³ the Bill that was considered on all sides to be “identical” with Section One of the Amendment.³⁴ Plainly the provisions for due process, privileges or immunities, and equal protection did not disclose that the Bill of Rights was incorporated therein. As Justice Frankfurter remarked of the due process clause, it would be “a strange way of saying” that “every State must thereafter initiate prosecutions through indictments by grand jury, must have a trial by a jury of twelve in criminal cases,” ³⁵ for which the Fifth and Sixth Amendments made express provision. Even stranger is the notion that by those terms the North was surrendering its control over its own internal affairs.

The governing law in 1866 was represented by Barron v. Baltimore (1833),³⁶ which had held that the Bill of Rights did not apply to the States. There Chief Justice Marshall demanded “plain and intelligible language” to demonstrate an intention to curtail the States’ control of their internal affairs.³⁷ Striking reaffirmation of such requirements was furnished in Pierson v. Ray (1967),³⁸ wherein it was held that a statute making “liable ‘every person’ who under color of law deprived another of his civil rights” did not abolish the common law immunity of judges for acts performed in their official capacity. Congress, the Court stated, “would have specifically so provided had it wished to abolish the doctrine,” ³⁹ this notwithstanding that a judge undeniably is a “person.” The “inviolable residuary” sovereignty retained by the States ranks higher than the common law immunity of a judge. Even more does it demand clear expression of a purpose to take over control from the States of their own internal affairs.

The activist “historian” Michael Curtis observed that the framers made “explicit provision” for three distinct changes in existing law. They overruled Dred Scott and made a native born black a citizen; they provided for State due process; and they provided that no State could abridge the “privileges or immunities” of a United States citizen.⁴⁰ Curtis himself was moved to ask “why ‘the Bill of Rights’ was not explicitly written into the Fourteenth Amendment, as due process and citizenship were.” ⁴¹ In the weird and wonderful way that passes for legal reasoning in activist circles, he explained: “the reason, of course, is that the rights in the Bill of Rights make up the most important . . . of the rights of a citizen.” ⁴² By this logic, the greater the invasion of the “residuary” sovereignty retained by the States and confirmed by the Tenth Amendment, the less need for disclosure. Put differently, omission of explicit “incorporation” of the Bill of Rights testifies to an intention to comprehend all of its provisions. Why, then, did the framers explicitly include the due process of the Fifth Amendment? Under the expressio unius rule all other provisions of the Bill were excluded.⁴³ And how are we to reconcile with “incorporation” of the Bill of Rights the framers’ repeated rejections of proposals to bar all discrimination?⁴⁴ Curtis himself says of an early draft of the Amendment “which prohibited discrimination in civil rights” that “Its general language failed to take account of and overrule the doctrine of Barron v. Baltimore that the Bill of Rights did not limit the States.” ⁴⁵ Total nonmention of “incorporation” weighs more heavily than the ineffectiveness of “general language.”

Let me briefly note that the “privileges or immunities” clause was borrowed from Article IV, which had been construed to allow a visitor from one State to engage in trade or commerce in another.⁴⁶ A Report of the House Committee on the Judiciary submitted in 1871 by John Bingham recited that the Fourteenth Amendment “ did not add to the privileges or immunities” of Article IV.⁴⁷ The report also quoted Daniel Webster’s emphasis that Article IV put it beyond the power of any State to hinder entry “for the purposes of trade, commerce, buying and selling.” ⁴⁸ And in a decision contemporary with the Amendment, the Court said in Minor v. Happersett ⁴⁹ that “The Amendment did not add to the privileges or immunities of a citizen.”

A word about Justice Cardozo’s statement in Palko v. Connecticut ⁵⁰ that there are principles—among them free speech— “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Unhappily, Madison’s proposal that the First Amendment’s “free speech” be extended to the States was rejected.⁵¹ That which the Framers rejected cannot be regarded as part of our tradition. Finally, like Marshall before him, Justice Samuel Miller, a sagacious observer of the political scene, rebuffed in the Slaughter-House Cases ⁵² a construction of the Fourteenth Amendment that would subject the States “to the control of Congress in the exercise of powers heretofore universally conceded to them” in the absence of “language which expressed such a purpose too clearly to admit of doubt.” ⁵³ Special force attaches to this statement with respect to “incorporation” of the Bill of Rights, for, apart from the remarks of Bingham and Howard, it is without footing in the debates and the text of the Amendment.

It is time to focus on Bingham and Howard. Justice Black declared that “Bingham may, without extravagance, be called the Madison” of the Fourteenth Amendment.⁵⁴ What a comparison! Madison, the informed, precise, painstakingly analytical thinker was worlds removed from Bingham, the careless, inaccurate, stump speaker. This view of Bingham is shared by others.⁵⁵ What were his fellows to make of his confused, contradictory utterances? Let me cite chapter and verse.

Bingham’s draft of the Fourteenth Amendment provided for “equal protection,” and he categorically stated that it “stands in the very words of the Constitution . . . Every word . . . stands in the very words of the Constitution.” ⁵⁶ But the words “equal protection” were not in the Constitution until the Fourteenth Amendment put them there. Although he noted that under Barron v. Baltimore the Bill of Rights did not apply to the States,⁵⁷ he nevertheless considered that the Bill bound State officials to enforce it against the States by virtue of their oath to support the Constitution.⁵⁸ Their oath did not bind them to enforce an inapplicable provision. He located “privileges and immunities” in the Bill of Rights,⁵⁹ whereas they appear in Article IV of the Constitution, not in the Bill of Rights. He affirmed that the care of life, liberty, and property of a citizen “is in the States, and not in the Federal Government. I have sought to make no change in that respect,” ⁶⁰ —and then casually stated that the first eight amendments were part of the “privileges or immunities” contained in the Fourteenth Amendment, oblivious to the fact that this entailed a tremendous incursion on the States’ right to care for their own citizens. He asserted that “contrary to the express letter of your Constitution, ‘cruel and unusual punishments’ have been inflicted under State laws,” ⁶¹ unaware that the Eighth Amendment did not apply to the States. What sense did it make to inveigh against “a reform of the whole civil and criminal Code of every State” ⁶² and simultaneously maintain that the criminal provisions of the Bill of Rights must be enforced against the States?

Other confused and contradictory utterances could be cited, but I shall close with Bingham’s crown jewel. After noting that the first eight amendments did “not bind the States,” he declared,

They are nevertheless to be enforced and observed in the States by the grand utterance of that immortal man [Daniel Webster] who, while he lived, stood alone in his intellectual power among the living men of his country, and now that he is dead, sleeps alone in his honored tomb by the sounding sea.⁶³

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

There is no need to dwell on the contrariety of opinion among the framers respecting which of the amendments should be embodied in the Fourteenth Amendment.⁶⁴ Let it suffice that Thaddeus Stevens, a leader of the Republicans, said of Bingham, “In all this contest about reconstruction, I do not propose to listen to his counsel, recognize his authority, or believe a word he says.” ⁶⁵ No critic of Bingham has been as excoriating. One large question remains; repeatedly I have called upon activists to reconcile Bingham’s vehement condemnation of “ civil rights and immunities” —the original words of the Civil Rights Bill—because the words would reform “the whole criminal and civil Code of every State” ⁶⁶ with his incorporation of the Bill of Rights, which entailed a massive takeover of State criminal administration.

To comment on Senator Howard in similar detail would be intolerably boring. Because of Senator Fessenden’s sudden illness, he was called upon to present the Amendment to the Senate. According to Benjamin Kendrick, the editor of the journal of the Joint Committee on Reconstruction, Howard was “one of the most reckless radicals,” who had consistently been “in the vanguard of the extreme Negrophiles,” ⁶⁷ wherein he was far removed from the pervasive racism of the North. How little his loose utterances are to be trusted is disclosed by his statement that the Amendment “abolishes all class legislation,” ⁶⁸ despite the denial of suffrage to the blacks, and the framers’ repeated rejection of proposals to prohibit all manner of discrimination,⁶⁹ in which Bingham himself joined.⁷⁰

After Howard spoke, a number of speakers went the other way. Senator Luke Poland said that the Amendment “secures nothing beyond what was intended by the original provision [Article IV] of the Constitution.” ⁷¹ Senator Timothy Howe spoke of the Amendment in terms of the limited provisions of the Civil Rights Act.⁷² In the House, William Windom summarized the meaning of the Amendment as “your life shall be spared, your liberty shall be unabridged, your property shall be protected,” ⁷³ remarks that are incompatible with incorporation of the Bill of Rights. And George Latham stated that the Civil Rights Act “covers exactly the same ground as the Amendment.” ⁷⁴ Leonard Levy concluded, “there is no reason to believe that Bingham and Howard expressed the view of the majority of Congress.” ⁷⁵

In 1949 Charles Fairman, in what even an activist regards as a “classic” study,⁷⁶ thoroughly deflated Bingham and Howard. My independent study of the debates in the 39th Congress confirmed Fairman. At length an activist champion rose to the defense of Bingham and Howard in the person of Michael Curtis, a youthful practitioner in Greensboro, North Carolina, who has made a career of assailing Fairman and myself.⁷⁷ That activists should prefer Curtis’s evaluation of the evidence to that of Fairman⁷⁸ shows the low estate of activist scholarship. For there is a hierarchy of authority; Albert J. Nock adverted to the “great peril” posed by “the inability to appraise and grade one’s authorities, the tendency to accept whatever appears on the printed page.” ⁷⁹ Let it suffice that Forrest McDonald stated that I “devastated” Curtis, but engaged in “overkill, roughly comparable to shooting rabbits with a cannon.” ⁸⁰

MODERN RIGHTS

In its transformation of the Fourteenth Amendment, the Court has soared beyond the confines of the Bill of Rights to fashion a congeries of individual rights undreamed of by the Founders. Sir William Holdsworth “continually insisted . . . that when people in the seventeenth century [to which the Founders looked] talked about fundamental rights or laws they meant the rights which the existing law gave them.” ⁸¹ When Samuel Adams claimed “the primary, absolute, natural rights of Englishmen,” he listed the Blackstonian trio, “Personal Security, Personal Liberty and Private Property,” ⁸² liberty being defined by Blackstone as unrestrained freedom to come and go.⁸³ An activist, Alfred Kelly, concluded that

The “rights of Englishmen” were not vacuous; instead they were quite well defined and specific. The notion of pulling new natural rights from the air to allow for indefinite expansion can hardly be considered to be within the original spirit of the [Fourteenth] Amendment.⁸⁴

It is still less within the spirit of the Founders. When the Bill of Rights was added, it largely responded to British excesses before and during the Revolutionary War—free speech, quartering of soldiers, unreasonable searches and seizures, the right to bear arms, and sundry procedural provisions to ensure fair trials. How activists can conjure out of these facts provision for illimitable individual rights passes understanding.⁸⁵

Leading activists agree that the modern individual “rights” created by the Court are without foundation in the Constitution. Paul Brest acknowledged that “Fundamental rights adjudication is open to the criticism that it is not authorized and not guided by the text and original history of the Constitution.” ⁸⁶ The individual rights Michael Perry champions, he admits, are constructs of the modern Court.⁸⁷ Robert McCloskey, long a student of the Supreme Court, concluded that “during the past 30 years, the Court has built a whole body of constitutional jurisprudence in this field broadly called civil liberties almost out of whole cloth.” ⁸⁸ Activists, Henry Monaghan observed, “outdo one another in urging the imposition of constitutional constraints on the basis of ‘rights’ whose origins cannot be traced to either the constitutional text or the structure it created.” ⁸⁹

There are signs on the horizon that a new day is dawning; the talismanic “liberty” is being viewed in more Blackstonian terms. First, the Court recalled that the core of “liberty is freedom from bodily restraint.” ⁹⁰ And Justice Scalia stressed that “Without that core textual meaning as a limitation, defining the scope of the Due Process Clause ‘had at times been a treacherous field for the Court,’ giving ‘reason for concern lest the only limits to . . . judicial intervention become the predilections of those who happened at the time to be Members of this Court.’ ” ⁹¹ Second, when rights have been claimed as “fundamental,” the Court has insisted that they “be an interest traditionally protected by our society.” ⁹² If the claim is novel, its “mere novelty . . . is reason enough to doubt that ‘substantive due process’ sustains it.” ⁹³ Third, “the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open ended . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” ⁹⁴ In sum, the Court is putting the brakes on fresh claims of rights unknown to the law.

Finally, not enough attention has been paid to the impact of “incorporation” on the North, which was led to believe that the draftsmen were aiming at the South alone. “Disturbed by the revolutionary changes Sumner hoped to bring about in the South,” his biographer recounted, “Republican Congressmen were horrified when they learned that he proposed to extend them to the North as well.” ⁹⁵ There were few blacks, no Black Codes, no peonage in the North. Almost invariably references in the debates were to oppression in the South, harassment of whites who came South. Congressman William Kelley complained that “Northerners could go South but once there they could not express their thoughts as freemen.” ⁹⁶ Article IV, however, conferred on visitors only the privileges enjoyed by residents, and they criticized slavery at their peril. Richard Yates asked in the Senate, “Do you suppose any of you can go South and express your sentiments freely and in safety?” ⁹⁷ Columbus Delano pointed out that “the first section [of the Amendment] was made necessary by the perilous position of Northern men and loyal Southerners in the South.” ⁹⁸ Michael Curtis himself observed that “Republican congressmen typically insisted on protection of individual liberty . . . in the South.” ⁹⁹ A “particularly telling passage,” Michael Zuckert exclaims, is James Wilson’s statement that blacks “must have the same liberty of speech in any part of the South as they have always had in the North.” ¹⁰⁰ This statement is indeed “telling”; what it tells us is that the authors of the Fourteenth Amendment believed that the North would not be affected by the Amendment.

There is proof positive that intervention in Northern affairs was not contemplated. Senator Trumbull said, “This bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property. It would have no operation in Massachusetts, New York, Illinois, or most of the States of the Union.” ¹⁰¹ John Bingham, a mainstay of the activist cause, assured the House that “under no possible interpretation can [the Fourteenth Amendment] ever be made to operate in the State of New York while she occupies her present proud position.” ¹⁰² Referring to the Southern laws that “reduce the negro to a system of peonage,” Senator William Stewart said that if all the Southern States would repeal such laws, the Civil Rights Bill would “simply be a nullity,” it would have “no operation.” ¹⁰³ After sifting the ratification materials, Joseph James concluded, “wherever the framers discussed the amendment, it was presented as a necessary limitation to be placed on the South.” ¹⁰⁴ No activist has explained why, in light of this limited purpose, the framers decided to take from the North control in large part of its internal affairs.