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

© 1997 by Liberty Fund, Inc.

This eBook edition published in 2013.

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1. Introduction

Supplementary Note on the Introduction

2. “Privileges or Immunities”

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

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

4. Negro Suffrage Was Excluded

Supplementary Note on Suffrage

5. Reapportionment

6. The “Open-Ended” Phraseology Theory

7. Segregated Schools

Supplementary Note on Segregated Schools

8. Incorporation of the Bill of Rights in the Fourteenth Amendment

Supplementary Note on Incorporation

9. Opposition Statements Examined

10. “Equal Protection of the Laws”

11. “Due Process of Law”

12. Section Five: “Congress Shall Enforce”

13. Incorporation of Abolitionist Theory in Section One

Supplementary Note on Abolitionist Influence

PART II

PART I

Introduction

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

—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

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

NARROW as was the protection afforded blacks by the “privileges or immunities” clause, it was at least designed to shield them from violence and oppression. Even that limited goal was soon aborted when the Supreme Court divorced the rights of “a citizen of the United States” from the freedom from the discrimination proscribed by the Amendment. Consequently, the provision has become the all-but-forgotten clause of the Constitution.¹ In the Slaughter-House Cases the Supreme Court grounded this view in part on the differentiation between the declaration in the first sentence of §1 that “all persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside” and the second-sentence provision that no State “shall abridge the privileges or immunities of a citizen of the United States.” From this Justice Miller deduced that a “citizenship of the United States and a citizenship of a State . . . are distinct from each other,” and that §1 secured only the privileges of a “citizen of the United States.” ² So meager was his catalog of those privileges as to move Justice Field to exclaim that if this was all the privileges or immunities clause accomplished, “it was a vain and idle enactment.” ³ Slaughter-House was a five-to-four decision, and Field was joined by Chief Justice Chase and Justices Bradley and Swayne in an opinion that took more accurate account of the framers’ intention than did that of Miller.

Preliminarily it will be useful to pull together a few strands that tie the privileges or immunities of §1 to the specific enumeration of the Civil Rights Act of 1866. There is first the correspondence to the Civil Rights Bill’s “civil rights and immunities,” “privileges” being narrower than “civil rights,” which had been deleted at Bingham’s insistence.⁴ Second, Chairman Trumbull explained that the Bill had been patterned on the “privileges and immunities” of Article IV, §2, and its construction by Justice Washington. Third, in introducing the prototype of §1, Bingham said that the “privileges or immunities” had been drawn from Article IV; fourth, Senator Howard similarly referred back to the Article.⁵ Speaking after Howard, Senator Luke P. Poland stated that §1 “secures nothing beyond what was intended by” the original privileges and immunities provision.⁶ More important is the all but universal identification of §1 with the Civil Rights Act. Why, then, were not the terms of the Act incorporated bodily in §1? Constitutional drafting calls for the utmost compression, avoidance of the prolixity of a code;⁷ “the specific and exclusive enumeration of rights in the Act,” as Bickel remarked, presumably was considered “inappropriate in a constitutional provision.” ⁸ In sum, the words “privileges or immunities,” it is safe to say, were designed to secure “person and property” against violence and oppression by the rights auxiliary to such protection. How was this design separated from the “privileges or immunities of a citizen of the United States”?

Justice Miller correctly stated that Article IV, §2, did not “profess to control the powers of State governments over the rights of its own citizens.” Its sole purpose was to require that the rights granted by a State to its “own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” ⁹ Without mentioning “citizens of the United States,” the courts had construed Article IV to mean that a migrant citizen from one State would enjoy the “fundamental rights” accorded by a sister State to its own citizens.¹⁰ This the framers understood; the cases were quoted, explained, and used as a platform for the Civil Rights Bill.¹¹ The task, however, was not one of outright adoption but of adaptation. For the Negro did not become a migrant by emancipation; generally speaking, he remained in the same State. But he had experienced a transmigration, from that of a slave, a nonperson,¹² to a freeman, and the framers meant to secure to this transmigrant the rights that Article IV, §2, had guaranteed to a migrant citizen.

Early on, James A. Garfield of Ohio stated, the goal was that “personal liberty and personal rights are placed in the keeping of the nation, that the right to life, liberty, and property shall be guarantied to the citizen in reality . . . We must make American citizenship the shield that protects every citizen, on every foot of our soil.” ¹³ That motive manifestly was at the heart of the Civil Rights Bill: “all persons born in the United States . . . are hereby declared to be citizens of the United States,” and it went on to proscribe “discrimination in civil rights or immunities among the inhabitants of any State.” ¹⁴ A citizen of the United States who was an “inhabitant” of a State was to be free from discrimination. The Bill, Chairman Wilson stated, “refers to those rights which belong to men as citizens of the United States and none other.” ¹⁵ Raymond of New York said that it provided protection for “citizens of the United States . . . against anticipated inequality of legislation in the several States.” ¹⁶ Cook of Illinois understood the Bill to provide “that as between citizens of the United States there shall be no discrimination in civil rights or immunities. When these rights which are enumerated in this bill are denied to any class of men on account of race or color, when they are subject to a system of vagrant laws which sells them into slavery or involuntary servitude, which operates upon them as upon no other part of the community, they are not secured in the rights of freedom.” ¹⁷

In the Senate, Trumbull stated that Corfield v. Coryell “enumerates the very rights belonging to a citizen of the United States which are set forth in the first section of the bill.” ¹⁸ Senator Garrett Davis of Kentucky understood full well what Trumbull was about, and therefore proposed to substitute the Article IV, §2, formula— “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States” —explaining that it would apply “only when a citizen of one State goes into another State,” whereas, he stated, Trumbull “proposes now to apply his bill to every citizen of the United States . . . where that citizen is domiciled in the State in which he was born.” In other words, Trumbull would legislate “for the resident Negro in Kentucky, born there, who has always lived there, and who intends to remain there,” to which, he stated, Corfield has no application.¹⁹ Thus, Davis sought to restrict the Bill exactly as Justice Miller later did, but his proposal was stillborn. Instead, Trumbull reasoned from Corfield that were a law to declare a “person born in the United States a citizen of the United States, the same rights [listed in Corfield ] would then appertain to all persons who were clothed with American citizenship.” ²⁰ After President Johnson’s veto of the Bill, Trumbull again stated that “citizens of the United States” have “fundamental rights . . . such as the rights enumerated in this bill,” among them, citing Blackstone, that “restraints introduced by law should be equal to all ” and, quoting Kent, “the right of personal security, the right of personal liberty, and the right to acquire and enjoy property.” ²¹ In short, the Senate rejected the Davis-Miller view in favor of a United States citizenship that would clothe residents of a State with the “fundamental rights” theretofore conferred on migrants.

Did these views, expressed in connection with the Civil Rights Bill, carry over into the Fourteenth Amendment? Here there is more than the intention to constitutionalize the Civil Rights Act. Frederick E. Woodbridge of Vermont stated that the proposed Bingham prototype was “intended to enable Congress . . . to give all citizens the inalienable rights of life and liberty, and to every citizen in whatever State he may be . . . that protection for his property which is extended to the other citizens of the State.” ²² George R. Latham of West Virginia understood the Fourteenth Amendment “privileges and immunities of citizens of the United States” to “provide that no State shall make any discrimination in civil rights of citizens of the United States on account of race . . . the ‘civil rights bill’ which is now a law . . . covers exactly the same ground.” ²³ So, too, John M. Broomall of Pennsylvania stated, “We propose, first, to give power to the Government . . . to protect its own citizens within the States,” a proposition for which the House had “already voted . . . in the civil rights bill.” ²⁴ Ephraim R. Eckley of Ohio also stressed the need to provide “security for life, liberty and property to all citizens of all the States.” ²⁵ And Senator Howard referred to the privileges and immunities of Article IV, quoted Corfield to explain the terms, and stated that these rights “are secured to the citizens solely as a citizen of the United States.” ²⁶ Apart from Garrett Davis’ abortive attempt to limit this objective, no one, so far as I could find, disputed that the purpose of both the Civil Rights Act and the Amendment was to guarantee to “citizens of the United States,” whether they were migrants to or residents of a State, the enumerated fundamental rights.

In the process of hammering out the Amendment, the framers had lost sight of the definition of citizenship contained in the Civil Rights Bill, so it was late in the day when Senator Benjamin F. Wade of Ohio remarked anent the word “citizen” in §1, “that is a term about which there has been a great deal of uncertainty in our government.” To “put the question beyond cavil,” he proposed to “strike out the word ‘citizen’ [in what is now the second sentence of §1], and substitute all persons born in the United States.” ²⁷ Howard advanced a counterproposal, the present introductory sentence, “All persons born in the United States . . . are citizens of the United States and of the State wherein they reside.” Wade then withdrew his proposal.²⁸ Presumably the Howard formulation struck Wade as a satisfactory substitute for, not a repudiation of, his own proposal. Although the Negro had been emancipated, the Dred Scott decision threw a shadow over his citizenship;²⁹ the matter had been a source of interminable argument. Trumbull wished “to end that very controversy, whether the Negro is a citizen or not.” ³⁰ Howard stated that his definitional amendment of §1 “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” And he further explained, “we desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power” of those who would “expose the freedmen again to the oppression of their old masters,” ³¹ thus confirming that his definition was not a sub rosa abandonment of the paramount goal throughout: protection of the resident Negro against State discrimination. In the House, Thaddeus Stevens of Pennsylvania regarded the Howard interpolation as an “excellent amendment, long needed to settle conflicting decisions.” ³² This limited purpose of Howard’s definition throws doubt on Miller’s view that it was designed to demark the rights of a citizen of the United States from those of a State citizen. Against the manifest purpose of the framers, of which Justice Miller was well aware,³³ his reliance on a rule of construction—to express at one point is to exclude at another—should carry little weight.³⁴ Rules of construction are useful guides where other light is lacking, but they are not meant to dim or extinguish available light. The cardinal purpose of interpretation, it cannot too often be emphasized, is to ascertain and effectuate, not defeat, the intention of the framers. Once that purpose is ascertained, it may not be thwarted by a rule of construction.³⁵

In sum, the purpose of the framers was to protect blacks from discrimination with respect to specified “fundamental rights,” enumerated in the Civil Rights Act and epitomized in the §1 “privileges or immunities” clause. To achieve that purpose they made the black both a citizen “of the United States and of the State in which he resides.” They did not intend by the addition of State citizenship to diminish the rights they had been at such pains to specify, but the better to secure them. The notion that by conferring dual citizenship the framers were separating said rights of a citizen of the United States from those of a State citizen not only is without historical warrant but actually does violence to their intention. Fessenden stated that the definition was framed “ to prevent a State from saying that although a person is a citizen of the United States he is not a citizen of the State.” ³⁶ He did not mean to safeguard State citizenship in order to leave blacks at the mercy of Southern States. It was precisely their abuse of the freedmen that led to the Amendment.

Justice Miller next stressed the serious consequences that would follow adoption of a construction contrary to his own; the effect would be to “degrade the State governments by subjecting them to the control of Congress” in unwonted manner. He read “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” as transferring “the entire domain of civil right” from the States to the federal government, so that Congress could even “pass laws in advance, limiting and restricting the exercise of legislative power by the States.” ³⁷ Here Miller imported a term into the clause; “abridge” presupposes preliminary State action; before such abridgment there is nothing upon which to act “in advance.” Moreover, Congress was confined to corrective measures, as Miller was aware: “If, however, the States did not conform their laws to its [the Amendment’s] requirements, then by the fifth section . . . Congress was authorized to enforce it by suitable legislation.” ³⁸ It was emphatically not authorized to promulgate a general code “in advance.”

Miller himself found that “the existence of laws in the States where the newly emancipated negroes reside, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied” —that is, the Black Codes.³⁹ The “one pervading purpose,” he stated, was “protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.” ⁴⁰ Consequently, the Amendment did not encompass “all legislation,” ⁴¹ but only discriminatory legislation with respect to specified rights, as Justice Field pointed out: “What, then, are the privileges and immunities which are secured against abridgment by State legislation? In the first section of the Civil Rights Act Congress has given its interpretation of these terms [which] . . . include the right ‘to make and enforce contracts . . .’ ” ⁴² The correction of discriminatory laws with respect to the enumerated “fundamental rights” would hardly constitute the “court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens.” ⁴³ When Miller held that “the citizen of a State” must look to the State for protection,⁴⁴ he aborted what he himself had declared to be the “pervading purpose”: to protect the Negro from the “evil” of the Black Codes, Codes that handed the Negro back to his oppressors.

Paradoxically, Justice Miller was ready to protect Negroes from “gross injustice and oppression” by resort to the equal protection clause.⁴⁵ How, one wonders, did “equal protection” escape the blight that struck down “privileges or immunities”? It equally “degrad[ed] the State governments by subjecting them to the control of Congress”; it too constituted a “great departure from the structure and spirit of our institutions.” ⁴⁶ And whereas the limits of “privileges or immunities” can be discerned in the rights specified in the Civil Rights Act which §1 incorporated, there is no clue whatever to the rights comprehended by the Miller formula—equal protection against “gross injustice and hardship.” One of the ironies that bestrews the path of the Court is that the censorship abjured by Miller under “privileges or immunities” really became unlimited under the converted due process clause.⁴⁷

No discussion of Slaughter-House may fail to take account of Justice Bradley’s dissent. Where Field won the concurrence of three associates, Bradley stood alone; where Miller held that protection of the citizen was for the State, Bradley propounded a theory of “absolute” rights that neither State nor nation may invade.⁴⁸ That theory, as will hereinafter appear, can draw small comfort from the intention of the framers; and he himself stated with respect to the preexisting Article IV, §2: “It is true that courts have usually regarded [it] . . . as securing only equality of privileges with the citizens of the State in which the parties are found.” ⁴⁹ In holding that the Amendment was designed to assure similar equality with respect to specified rights among residents of a State, Justice Field staked out a position midway between the extremes of Miller and Bradley, one that honestly reflected the intention of the framers.

There remain some remarks by Senator Trumbull in 1871, which Graham reads as a denial “that the Fourteenth Amendment authorized Congress to protect citizens in their rights of person and property in the States. Such an interpretation [Trumbull] declared, would mean ‘annihilation of the States.’ ” ⁵⁰ Little weight has been attached by the Supreme Court to postenactment remarks, even of the Congress itself.⁵¹ When they contradict representations made by the speaker during the enactment process, upon which others have been led to rely, they should be treated with special reserve.⁵² Consider, too, the circumstances that gave rise to Trumbull’s 1871 remarks. President Grant, Graham recounts, “had just called for a second Force Bill to cope with extralegal suppression of Negro rights. The problem . . . had risen not in the contemplated or familiar form of discrimination by carriers, theaters and inns but in the infinitely more tangled context of Southern whites fighting misrule and military government.” Trumbull “flatly declined to go along with the latest proposal”; the tug of new political considerations shaped his version of the past. Now he maintained that the protection afforded by the Fourteenth Amendment was no greater than that accorded by Article IV, §2, that that section “did not have reference to the protection of those persons in individual rights in their respective States, except so far as being citizens of one State entitled them to the privileges and immunities of citizens in every other”; and that the “fourteenth amendment does not define the privileges and immunities of a citizen of the United States any more than the Constitution originally did.” ⁵³

This was only half the story. Trumbull did not mention his rejection of that very argument by Garrett Davis, that he had read the judicial definitions of the Article IV, §2, privileges and immunities to the framers and patterned the Civil Rights Bill on Corfield v. Coryell, that he adapted the Article IV, §2, conception—a migrant citizen was entitled to the same fundamental rights as a resident citizen—to the transmigrant black so suddenly released from slavery, named him a citizen of the United States to assure him of the same rights the migrant enjoyed under Article IV. To say in these circumstances that the Fourteenth Amendment “does not define the privileges and immunities” is therefore a half-truth. The terms, in lawyers’ jargon, had become “words of art”; in borrowing them (with the exclusion of suffrage), Trumbull expressly gave them the meaning which courts had given under Article IV and which he had carefully spelled out in the Civil Rights Bill. It follows that Trumbull’s 1871 argument that “the privileges and immunities belonging to a citizen of the United States as such are of a national character,” that “National citizenship is one thing and State citizenship another” ⁵⁴ —the precursor of the Slaughter-House dichotomy—was a repudiation of his own explanation to the framers, his enumeration of specific rights in the Bill that were to belong to “citizens of the United States.” He could change his mind but he could not change that of the 39th Congress which had adopted the Civil Rights Act on the strength of his representations and then went on to incorporate the Act in the Amendment.

Negro Suffrage Was Excluded

NO area of Negro rights considered by the 39th Congress was so extensively discussed as Negro suffrage.¹ The issue was crucial to the maintenance of Republican ascendancy, a goal boldly proclaimed by Stevens at the very outset. Such ascendancy, the mass of Republicans believed, was to be assured through the reduction of Southern representation in the House of Representatives in proportion as a State denied or abridged suffrage, the device embodied in §2 of the Amendment.² Some strongly doubted whether the rebel ruling class, outnumbered by blacks, could be induced to “divest itself of the government and hand it over to a subject and despised caste.” ³ But it was more important, Senator George H. Williams of Oregon, member of the Joint Committee, candidly avowed, to limit Southern representation than to provide “that negroes anywhere should immediately vote.” ⁴ The fact that Negro suffrage was unmistakably excluded from the ambit of the Civil Rights Bill, which proceeded on a parallel track with debate on “representation,” lends substance to his avowal. The intention to exclude suffrage from the Amendment as well⁵ need not rest entirely on its incorporation of the Civil Rights Act, for there is ample affirmative evidence of that purpose.

Chief Justice Warren held in Reynolds v. Sims, a State reapportionment case, that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” The premise, he said, that a State may not deny suffrage was derived from a “conception of political equality . . . [that] can mean only one thing—one person, one vote.” ⁶ Equality, however, did not carry that meaning for the framers;⁷ and in a powerful dissent, Justice Harlan reproached the Court “for its failure to address itself at all to the Fourteenth Amendment as a whole or to [its] legislative history.” ⁸ Even one who regards the reapportionment decisions with favor, Carl Auerbach, lamented that “the failure of the Court to mention, let alone deal with, [Harlan’s] argument is indeed, as he charged, remarkable and confounding.” ⁹ Another proponent of those decisions, William Van Alstyne, states that “the majority seems tacitly to have conceded the argument.” ¹⁰ In 1970 Justice Harlan amplified his dissent in Oregon v. Mitchell;¹¹ both of his dissents are models of scholarly exactitude. Having combed the debates for myself, I can confirm his accuracy and scrupulousness in drawing inferences from the facts; one can only complain that he left so few gleanings for those who came after. Since his discussion in the two opinions covers many pages, and since it is contained in law reports that only scholarly specialists are likely to consult, I have undertaken to compress the materials into smaller compass, particularly because they furnish the springboard for much that is to follow.

The Grant of Suffrage Was Excluded From §1

Senator Sumner labeled the right to vote “the Great Guarantee; and the only sufficient Guarantee,” ¹² without which, said Senator Samuel C. Pomeroy of Kansas, the Negro “has no security.” ¹³ Similar sentiments were expressed by James A. Garfield and James M. Ashley of Ohio, George S. Boutwell of Massachusetts, Ignatius Donnelly of Minnesota, and William A. Newell of New Jersey—Republicans all.¹⁴ Nevertheless, as Senator Trumbull emphasized, it was not included in the Civil Rights Bill. Why not? Because, in the words of David Donald, it was “political dynamite.” ¹⁵ The reasons have been so admirably compressed by Professor Van Alstyne as to bear quotation in extenso. He notes that the Joint Committee considered a forthright proposal to abolish “any distinctions in political or civil rights . . . on account of race” and states,

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

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

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

All these things and more had a conspicuous and significant influence on the Thirty-Ninth Congress.¹⁶

Indeed they had! They explain why the framers rejected Negro suffrage, as may immediately be gathered from two statements among many. Senator Pomeroy stated: “This nation . . . has not yet reached the point of giving all men their rights by a suffrage amendment; three-fourths of the States are not ready.” ¹⁷ In opening the debate on the Amendment, Senator Jacob Howard stated on behalf of the Joint Committee, “it was our opinion that three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race.” ¹⁸ These views were repeated in the Final Report of the Joint Committee on Reconstruction.¹⁹

If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general terms “equal protection” the very grant they could not swallow? Van Alstyne also notes a number of proposals that would expressly abolish distinctions “in the exercise of the legislative franchise on account of race or color” (including one by Sumner that was rejected by a vote of 38 to 8),²⁰ and explains that “there was not sufficient prospect that the necessary number of States would ratify such an amendment.” Are we to impute to the framers an intention to shroud in ambiguity the Negro suffrage they dared not “advertise” by a “blunt,” unequivocal proposal? Something of the sort is suggested by Van Alstyne,²¹ but there is no evidence of representations that the Fourteenth would mean one thing in 1866 and the very thing then “feared” in the future. A legislative intention to have words mean one thing in 1866 and the opposite in the future is so remarkable as to call for strict proof, not speculation, particularly when disclosure spelled political disaster.²² But let me defer comment on this “open-ended” theory, fathered by Alexander Bickel, embraced by Alfred Kelly and Van Alstyne, and then picked up by Justice Brennan, to a later chapter, and for the moment permit the framers to speak for themselves. Because the suffrage issue is so vital for my subsequent discussion of the scope of judicial review, because in the eyes of Justice Brennan the historical record is “vague and imprecise,” ²³ it is essential by copious documentation to establish firmly the deliberate exclusion of Negro suffrage.

NEGRO SUFFRAGE WAS UNACCEPTABLE

With but “6% of the Negro population,” New England’s advocacy of Negro suffrage, Senator Edgar Cowan of Pennsylvania acidly lectured Sumner, came cheap: “he simply had no understanding of what it is to live in a community surcharged with an idle, dissolute, vicious, ignorant negro population just emerged from slavery.” ²⁴ At the other end of the political spectrum, the Radical leader Thaddeus Stevens, also of Pennsylvania, wrote, “In my county are fifteen hundred escaped slaves. If they are specimens of the negroes of the South, they are not qualified to vote.” ²⁵ Stevens told Robert Dale Owen, “We haven’t a majority, either in our committee or in Congress, for immediate suffrage; and I don’t believe the States have yet advanced so far that they would ratify it.” ²⁶ William Lloyd Garrison, the indomitable abolitionist, “came out against the forcing of Negro suffrage upon the South.” ²⁷

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

The northern states, most of them, do not permit negroes to vote. Some of them have repeatedly and lately pronounced against it. Therefore, even if it were defensible as a principle for the Central Government to absorb by amendment the power to control the action of the States in such a matter, would it not be futile to ask three-quarters of the States to do for themselves and others, by ratifying such an amendment, the very thing most of them have already refused to do in their own cases?²⁸

Senator Fessenden, chairman of the Joint Committee, said of a suffrage proposal, there is not “the slightest probability that it will be adopted by the States . . . [it] would not commend itself to anybody.” ²⁹ Sumner’s own Massachusetts colleague, Senator Henry Wilson, a leading Radical, commented on Senator Henderson’s proposal of suffrage without distinction of race, “I cannot think . . . there is any hope of adoption after the indications of the last six months.” ³⁰ Another Senator who favored Negro suffrage, Doolittle of Wisconsin, said, “out of New England there are not three States in this Union, neither Nevada nor Colorado, nor any of the new States or the old States that will vote for an amendment . . . by which negro suffrage shall be imposed upon the States.” ³¹ Similar remarks were made by still others.³² On July 21, 1866, shortly after the Amendment passed the Congress, Sumner proposed an amendment to a bill for admission of Tennessee that “there shall be no denial of the electoral franchise, or of any other rights, on account of color or race, but all persons shall be equal before the law.” It was voted down without debate, 34 to 4.³³ This background lends meaning to Senator Howard’s assurance that “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured” ³⁴ —an echo of assurances during debate on the Civil Rights Bill. Bingham likewise stated that “The amendment does not give . . . the power to Congress of regulating suffrage in the several States.” ³⁵ In any event, how can we attribute to the ratifiers approval of Negro suffrage when midway in the course of ratification, in the elections of April 1867, Bingham’s own State, Ohio, “overwhelmed a negro suffrage amendment by 40,000? In every state where the voters expressed themselves on the Negro suffrage issue they turned it down.” ³⁶

ATTACHMENT TO STATE SOVEREIGNTY

Notwithstanding that the States’ Right doctrine had been badly tarnished by its association with secession, a potent factor in the exclusion of Negro suffrage was a deep-seated attachment to State sovereignty. That this was no mere rationalization for Negrophobia may be gathered from the objection of Senator James W. Grimes of Iowa to a national livestock quarantine measure: “Let us go back to the original condition of things, and allow the States to take care of themselves.” ³⁷ On the eve of the Civil War, Lincoln stated in his First Inaugural Address, “The right of each State to order and control its own domestic institutions according to its own judgment exclusively is essential to the balance of powers on which the perfection and endurance of our political fabric depends.” ³⁸ So Story had earlier stated,³⁹ and this view was reiterated by Republicans like Thomas T. Davis, Robert S. Hale, and Giles W. Hotchkiss of New York⁴⁰ and Latham of West Virginia. Congress, Latham said, “has no right to interfere with the internal policy of the several states.” ⁴¹ “The proposition to prohibit States from denying civil or political rights to any class of persons,” said Conkling, “encounters a great objection on the threshold. It trenches upon the principle of existing local sovereignty . . . It takes away a right which has been always supposed to inhere in the States.” ⁴² Bingham, a leader in the Negro cause, stated that “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” ⁴³ It was because of the prevalence of such sentiment that Trumbull, defending the Civil Rights Bill after President Johnson’s veto, felt constrained to reassure the Senate that the Bill “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property.” ⁴⁴

This sentiment emerges even more sharply when suffrage is in issue, as when Conkling stated that interference therewith “meddles with a right reserved to the States . . . and to which they will long cling before they surrender it.” ⁴⁵ Early in the session, the Radical leader Stevens said of a proposed amendment to reduce State representation in proportion to a denial of Negro suffrage: “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualification of their voters? . . . You could not get five in this Union.” ⁴⁶ In the Senate, Chairman Fessenden stated, “everybody has admitted from the foundation of the Government down to the present day that the power to fix the qualifications of voters rested with the States,” and that the proposed “representation” provision “leaves it just as it was before, and does not change it.” ⁴⁷ After stating his preference for Negro suffrage, Senator Doolittle said that “the Federal Government had no right or constitutional power to impose on a State negro suffrage . . . the right of a State to determine that question was one of the reserved rights of every State.” Like Stevens, he averred that “out of New England” no three States would vote for an amendment “by which negro suffrage shall be imposed upon the States.” ⁴⁸ Although Senator Henderson of Missouri was an advocate of Negro enfranchisement, he too stated that he was “not now ready to take away from the States the long-enjoyed right of prescribing the qualifications of electors in their own limits.” ⁴⁹ “The Radical leaders,” Flack stated, “were aware as any one of the attachment of a great majority of the people to the doctrine of States rights . . . the right of the States to regulate their own internal affairs.” ⁵⁰ These sentiments were accurately summarized by Justice Miller in 1872, shortly after adoption of the Fourteenth and Fifteenth Amendments:

we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the states with power for domestic and local government . . . was essential to the working of our complex form of government.⁵¹

This “commitment to traditional state-federal relations meant,” in the words of Alfred Kelly, that “the radical Negro reform program could be only a very limited one.” ⁵² That it was in fact a program “limited” to a ban on discrimination with respect to “fundamental rights” from which suffrage was excluded is confirmed by §2.

The Effect of §2

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

Representation shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State. But when the right to vote at any election . . . is denied . . . or in any way abridged . . . the basis of representation therein shall be reduced.⁵³

The denial is not prohibited, it is not declared void, but as Eckley of Ohio put it, if a State “persists in withholding the ballot” from blacks, she will be “confine[d] . . . to the white basis of representation.” ⁵⁴ It is difficult to dispute Justice Harlan’s conclusion that §2 “expressly recognizes the State’s power to deny ‘or in any way’ abridge the right . . . to vote.” ⁵⁵ Were this doubtful, doubts are dispelled by the “blinding light” of the legislative history.⁵⁶ Since that is disputed by Van Alstyne and Justice Brennan, the evidence must be permitted to speak for itself, unfiltered by a commentator’s paraphrase.

Bingham, a leading Republican member of the Joint Committee, the pillar of the neoabolitionists, said, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” ⁵⁷ Instead, as he said of a predecessor proviso, it “offers an inducement to those States . . . to make the franchise universal.” ⁵⁸ On the Senate side, Chairman Fessenden said of an earlier provision, H.R. No. 51, couched in terms of racial discrimination respecting suffrage, “It takes the Constitution just as it finds it, with the power in the States to fix the qualifications of suffrage precisely as they see fit . . . If in the exercise of the power you [States] have under the Constitution you make an inequality of rights, then you are to suffer such and such consequences.” ⁵⁹ When illness prevented Fessenden from explaining §2, Senator Howard stated: “The second section leaves the right to regulate the elective franchise with the States, and does not meddle with that right.” Later he added: “We know very well that the States retain the power which they have always possessed of regulating the right of suffrage . . . the theory of this whole amendment is to leave the power of regulating the suffrage with . . . the States.” ⁶⁰ Senator Yates of Illinois recognized that “we do not obtain suffrage now”; Senator Doolittle of Wisconsin stated, the “amendment proposes to allow the States to say who shall vote”; Senator Poland of Vermont would have preferred that “the right of suffrage had been given at once,” but realized it was not “practicable”; Senator Howe of Wisconsin likewise preferred to say “no man shall be excluded from the right to vote” to saying “hereafter some men may be excluded from the right of representation.” ⁶¹

In the House, Blaine of Maine stated, “The effect contemplated . . . is perfectly well understood, and on all hands frankly avowed. It is to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that people shall be denied political rights. Give them the vote or lose representation.” ⁶² Conkling stated that the Joint Committee rejected proposals “to deprive the States of the power to disqualify or discriminate politically on account of race or color” and preferred “to leave every State perfectly free to decide for itself . . . who shall vote . . . and thus to say who shall enter into its basis of representation.” “ [E]very State,” he reiterated, “will be left free to extend or withhold the elective franchise on such terms as it pleases, and this without losing anything in representation if the terms are impartial to all.” And he summed up, “every State has the sole control, free from all interference, of its own interests and concerns,” spelling out that if New York chose to withhold suffrage, “her right cannot be challenged.” ⁶³ Stevens, co-chairman of the Joint Committee, stated that the right of a State to disfranchise “has always existed under the Constitution” and the proposed “representation” provision “acknowledges it.” He repeated that “the States have the right . . . to fix the elective franchise” and that the proposed representation provision “does not take it from them.” In fact, he preferred the reduction of representation to an “immediate declaration” that “would make them [Negroes] all voters”; he did not “want them to have the right of suffrage” until they had been educated in “their duties . . . as citizens.” ⁶⁴ Although Garfield expressed his “profound regret” that the Joint Committee had been unable to “imbed . . . [suffrage] as a part of the fundamental law of the land,” he stated, “I am willing . . . when I cannot get all I wish to take what I can get.” ⁶⁵ Similarly, John F. Farnsworth of Illinois stated, “I should prefer to see incorporated into the Constitution a guarantee of universal suffrage; as we cannot get the required two-thirds for that, I cordially support this proposition as the next best.” ⁶⁶

Nathaniel P. Banks of Massachusetts congratulated the Joint Committee for “waiv[ing] this matter in deference to public opinion,” and George F. Miller of Pennsylvania stated, “This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself.” ⁶⁷ Against this mass three Democrats raised the possibility in the House that the amendment might affect suffrage qualifications.⁶⁸ On the other hand, leading Democrats—Senators Reverdy Johnson and Garrett Davis—better understood that it left suffrage to the States.⁶⁹ These historical materials, which by no means exhaust the quotable statements,⁷⁰ seem to me, as to Robert Dixon and Ward Elliott, “overpowering,” “overwhelming.” ⁷¹ In discreetly skirting the issue the Court tacitly acknowledged their unimpeachability. The rebuttal thus eschewed by Chief Justice Warren was undertaken by Professor Van Alstyne, and it emboldened Justice Brennan to pick up the cudgels in a later case, Oregon v. Mitchell.

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

Supplementary Note on Suffrage

Reapportionment

BAKER v. Carr (1962), the unprecedented reapportionment decision, said Paul Kauper, opened a “new chapter of judicial adventurism.” ¹ When the issue was once again presented in Reynolds v. Sims, Justice Harlan wrote a dissent that to my mind is irrefutable. The majority of the Court made no pretense of meeting his historical demonstration; it remained for William Van Alstyne to essay a rebuttal. Harlan’s reliance on the legislative history to establish the “original understanding,” Van Alstyne writes, pertains solely to “exclusive state power over suffrage qualifications” and has no bearing on “the separate issue of malapportionment”; “there was almost no mention of the subject.” ² That fact alone gives one pause: how can a revolution in Northern apportionment be based on nonmention?

The dominant purpose of the 39th Congress was to maintain Republican hegemony by reducing Southern representation; and only secondarily did they think to secure the “person and property” of the Negro from oppression.³ There were repeated disclaimers of any intention to interfere with State sovereignty beyond those objectives. Moreover, while Negro suffrage was predominantly a Southern problem, reapportionment would invade long-established State practices with respect to white voters in the North.⁴ But Van Alstyne argues that to read malapportionment in the equal protection clause “is to say only that among the enfranchised [white] elite,” qualified by the State to vote, “no invidious distinction shall be permitted. The States may be as capricious as they please in withholding the ballot but not in perpetuating elites within the elite.” ⁵ That is a tremendous “only.” Republicans who shrank from interfering with State control of Negro suffrage in the South would scarcely have dared to impose on the North a radical reconstruction of white apportionment patterns.⁶ Certainly there was no disclosure that such intrusion was contemplated;⁷ there is in fact striking evidence that malapportionment was an accepted practice. Speaking with respect to reduced representation, Blaine of Maine said,

if you cut off the blacks from being enumerated in the basis of representation in the southern States the white population of those States will immediately distribute Representatives within their own territory on the basis of white population. Therefore the most densely populated negro districts will not be allowed to offset the most densely populated white districts . . . Do you suppose that the upland districts of Georgia and South Carolina, inhabited largely by whites, will, in the event of adoption of this amendment, allow the distribution of Representatives to be made on the basis of the whole population? By no means. They will at once insist on the white basis within the State.⁸

Not a hint that this would be unlawful, but, rather, clear recognition that States were free to apportion representation to suit themselves. Although, as Van Alstyne notices, this would leave “areas populated by non-voters without representation (and not merely without a vote in the choice of ‘their’ representatives),” ⁹ Bingham replied, “no possible amendment . . . will answer the purpose unless it is followed by further legislation.” ¹⁰ Bingham thus confirms Blaine’s recital of the plenary State power over apportionment and implies that the “representation” (§2) proposal was not designed to meet this situation. Van Alstyne’s comment that “Blaine’s remarks were directed only to the apportionment of congressional rather than state representation” implausibly suggests that the States would be readier to surrender control over their own internal patterns—a suggestion that is incompatible with the pervasive attachment to State sovereignty.

Blaine’s remarks did not reflect a fleeting improvisation, but responded to established practice. Earlier he had stated: “As an abstract proposition no one will deny that population is the true basis of representation; for women, children and other nonvoting classes may have as vital an interest in the legislation . . . as those who actually cast the ballot.” But, he noted, recognizing existing practice, as had Federalist No. 54 and James Wilson long before,¹¹ “the ratio of voters to population differs very widely in different sections, from a minimum of nineteen per cent to a maximum of fifty-eight per cent.” ¹² Even that uncompromising abolitionist Charles Sumner was reconciled to such practices because they reflected “custom and popular faith,” and could not be changed “unless supported by the permanent feelings and conditions of the people.” ¹³ Then, too, in the congressional debate of June 1868 (that is, prior to ratification of the Fourteenth Amendment), on the readmission of the rebel States, Farnsworth pointed out that the Florida apportionment provision gave “to the sparsely populated portions of the State the control of the Legislature.” But Ben Butler responded that the Senate Judiciary Committee “have found the [Florida] constitution republican and proper,” as did the Senate, the House Committee on Reconstruction,¹⁴ and the House itself, thus reaffirming that such malapportionment did not violate the guarantee of a “republican form of government,” nor the equal protection clause which was the work of Butler and his fellows. The Blaine, Sumner, and Butler statements constitute hard evidence which is not overcome by mere speculation.¹⁵ Since, moreover, most of the States were malapportioned, it is a strained assumption that by ratification they surrendered a right they had excercised from the outset, and of which surrender they were totally unapprised.¹⁶

When Van Alstyne dismissed Harlan’s reading of the §2 phrase “or in any way abridged” because “once the congressional history” of this phrase is “canvassed . . . it becomes clear that the phrase had nothing at all to do with malapportionment,” he scuttled his whole case. For, by the same token, the history of the equal protection clause likewise “had nothing at all to do with malapportionment.” “There is,” he states, “no evidence that §2 was applicable to abridgment of the right to vote resulting from malapportionment of state legislatures.” “It is even likely,” he avers, “that had the subject been discussed there might have been a disavowal of an intention to apply the Equal Protection Clause to malapportionment.” But “hypothetical answers to hypothetical questions . . . would be a most dubious basis for expounding the content of ‘equal protection’ one hundred years later.” ¹⁷ There is no need to speculate because Blaine and others plainly recognized malapportionment as an existing practice that was left untouched. I, too, prefer to eschew speculation, particularly when it is unnecessary. One who would bring an unmentioned departure from settled practice within the perimeter of the Amendment has the burden of proof, made heavier here by (1) the fact that Negro suffrage, on which the Court rested its case for reapportionment, was unmistakably excluded; (2) the plainly expressed attachment of the framers to State sovereignty and their intention to intrude no further than the limits of the Civil Rights Act; and (3) the presumption that a diminution of powers reserved to the States by the Tenth Amendment will be clearly stated.¹⁸

In one form or another, Van Alstyne would put asunder what the Warren Court hath joined; he would jettison the Court’s “one man, one vote” postulate. Granting arguendo State power “with respect to outright denials of the right to vote,” he asks, “is it equally so with respect to partial disfranchisement through malapportionment?” ¹⁹ The simple answer is that the greater includes the less.²⁰ If a State may altogether deny the vote, it may dilute it. It was in these terms that Chief Justice Warren rationalized reapportionment: the Constitution, he held, protects the right to “vote,” the “right to have one’s vote counted.” And “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” ²¹ His premise—that the Constitution, that is, the Fourteenth Amendment, protects the right to vote—is contradicted by historical facts. But his logic is impeccable and may be stated inversely: given a right to deny suffrage, it follows that there is a right to dilute it.

Republican Form of Government

One of the “other” powers invoked by radical extremists was the guarantee of a “republican form of government.” ²² Senator Sumner, its leading advocate, could do no better than to find it “obscure” and to write in 1865 that “the time has come to fix meaning to those words.” ²³ They were not wrapped in obscurity by the Founders. In the Federal Convention, Edmund Randolph stated that “a republican government must be the basis of a national union; and no state in it ought to have it in their power to change its government into a monarchy.” ²⁴ This was echoed by Madison in Federalist No. 43: “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations . . . [the members of the Union have] the right to insist that the forms of government under which the compact was entered should be substantially maintained.” The guarantee “supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States they are guaranteed by the federal Constitution.” ²⁵ Although Federalist No. 52 stated that the “definition of the right of suffrage is very justly regarded as a fundamental act of republican government,” it concluded that the right must be left to the States because “the different qualifications in the different States [could not be reduced] to one uniform rule.” ²⁶ Finally, Federalist No. 54, alluding to the allocation of representation according to the number of inhabitants, added, “the right of choosing their allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate . . . In every State, a certain proportion of inhabitants are deprived of this right by the Constitution of the State.” ²⁷

Fessenden therefore stood on solid ground when he rebutted Sumner’s reliance on the guarantee, saying, “in the very instrument in which the fathers provided that the United States should guaranty to every State a republican form of government they recognized the existence of slavery unmistakably . . . Did they then consider that the obligation to guaranty a republican form of government extended thus far, giving Congress the right to interfere in Virginia to examine her constitution?” When Sumner argued that the guarantee places Congress under a duty to “see that every man votes who ought to vote,” said Fessenden, “he goes considerably further than those who made the Constitution ever intended to go.” If a State “should choose to have a monarchy, or the controlling portion of the people should choose to have an oligarchy, it then becomes the duty of Congress to interfere.” ²⁸ Such was the view of the Fathers, and it was reiterated by other leaders in the 39th Congress. Meeting a query whether a State would “cease to be republican” if it excluded a race from the franchise, Conkling responded that this “has always been permitted with universal acquiescence by the courts and the nation.” ²⁹ On the admission of Tennessee without provision for Negro enfranchisement, Bingham said in July 1866 that if this was in violation of the guarantee, then Tennessee was in the company of many Northern States. His critics were defeated by a vote of 125 to 12.³⁰ In the Senate, Trumbull stated, “most of us are here under republican forms of government, just like this in Tennessee.” ³¹

One of the dissentients, William Higby of California—whom Van Alstyne quotes as saying that no “State which excludes any class of citizens [from voting] on account of race or color is republican in form,” and that he was opposed to H.R. No. 51 because “it gives a power to the States to make governments that are not republican in form,” ³² —revealed tellingly that he was merely engaged in wishful thinking. He admitted that by his disenfranchisement test his own State of California is “not republican in form”: “I do not believe there is a single State in the Union, except it may be one of the New England States, which is an exception to that general rule . . . Now, sir, I am aware that the practice has been very different . . . from the establishment of the Government.” ³³ When Ralph Hill of Indiana stated that, in placing the guarantee in the Constitution, the Framers “spoke with reference to such governments as then existed, and such as these same framers recognized for a long time afterwards as republican governments,” Higby replied: “that is a very good answer. It is an answer from a standpoint of seventy-five years ago. I speak from the standpoint of the present time.” ³⁴ Like our contemporary apologists for a judicial revisionary power, Higby would displace the established, original meaning with his own new one. Given that the Northern States discriminated against voting by blacks, “they were as subject to reconstruction by the federal authority” as was the South. For Radicals, “this whole argument contained political dynamite”;³⁵ and Higby himself admitted, “I do not know that there are half a dozen in this House who will sustain me.” ³⁶ Like the 125 to 12 vote on the admission of Tennessee, Higby’s concession underscores the framers’ indifference to the dissentient views on which Van Alstyne largely pitches his case.

Is it to be wondered that the Court, as Carl Auerbach noted, “agreed in Baker v. Carr that ‘any reliance’ on the Guarantee clause would be futile?” Auerbach pointed out that the Court “never adequately answered Mr. Justice Frankfurter’s argument that the equal protection claim it held to be justiciable was ‘in effect a Guarantee Clause claim masquerading under a different label.’ In fact the Court was being asked ‘to establish an appropriate form of government . . . for all the States in the Union.’ ” ³⁷ Congress, as Auerbach noticed, had expressed its judgment, in one form or another, “as to the nature of a republican form of government,” and it is Congress, not the Court, Luther v. Borden held, to whom that function is confided.³⁸ Where is the evidence that the framers who rejected the argument that Congress had power over State suffrage by virtue of the “republican form of government” guarantee meant to confer that power by the “equal protection” clause? It speaks volumes that Sumner, who employed “equality before the law” in a school desegregation case (wherein Chief Justice Shaw held against him),³⁹ should have turned to the “republican form of government” guarantee in the 39th Congress. After passage of the Amendment he proposed that the admission of Tennessee and Nebraska be conditioned upon no denial of suffrage, a confession that the “equal protection” clause did not preclude such denials.⁴⁰

Van Alstyne attaches considerable weight to Bingham’s “unusually rewarding” appeal to “a republican form of government,” which Bingham translated as a guarantee of the “right of franchise.” ⁴¹ His view was not shared by influential Republicans, and in the course of the debates he shifted his position, stating, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States.” ⁴² Shortly thereafter he changed course on the very “republican form” guarantee. He had moved for the admission of Tennessee, and Boutwell proposed “a condition precedent” that would require Tennessee to establish “suffrage for all male citizens,” without which, he argued, Tennessee would not have a “republican form of government” because of the exclusion of 80,000 blacks.⁴³ Boutwell was twitted by Bingham: “Why does not the gentleman move for an expulsion of Missouri from representation?” “When [the blacks] shall vote rests with the people of the State. There I leave it.” And, he concluded, with respect to the exclusion of Negroes, “So does Ohio, so does Pennsylvania, and so, also, do a majority of the States.” Boutwell was voted down 125 to 12.⁴⁴

Bingham is invoked still again by Van Alstyne:

The second section excludes the conclusion that by the first section suffrage is subjected to congressional law; save indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people.⁴⁵

Although Van Alstyne finds this statement “puzzling,” it suffices to read the words in their ordinary sense: §2 shows that Congress was given no control of suffrage by §1, except in a case of a treasonable shift to a despotic government which does away with all voting. Manifestly, a change from representative government to a dictatorship calls for effectuation of the guarantee. But what light does this shed on the general control of suffrage? No subtle elucidation of this passage can cancel out Bingham’s flat-footed statement that “the exercise of the elective franchise is exclusively under the control of the States,” at a time when he completely abandoned the “guarantee” as a limitation on State control of suffrage.⁴⁶ The Supreme Court confirmed the views of the framers in 1874: “All the States had governments when the Constitution was adopted . . . These governments the Constitution did not change. They were accepted precisely as they were . . . Thus we have unmistakable evidence of what was republican in form.” ⁴⁷ Unless some special magic was deemed to inhere in the words “equal protection” —a supposition hereinafter examined—the evidence, to my mind, that suffrage was excluded from the Amendment is all but incontrovertible.⁴⁸

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

Doubts were entertained whether Congress had power, even under the amended Constitution, to prescribe the qualifications of voters in a State, or could act directly on the subject. It was doubtful, in the opinion of your committee, whether the States would consent to surrender a power they had always exercised, and to which they were attached. As the best if not the only method of surmounting the difficulty, and as eminently just and proper in itself, your committee came to the conclusion that political power should be possessed in all the States exactly in proportion as the right of suffrage should be granted, without distinction of color or race. This it was thought would leave the whole question with the people of each State, holding out to all the advantage of increased political power as an inducement to allow all to participate in its exercise.⁴⁹

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

Chief Justice Warren’s Opinion in Reynolds v. Sims

Chief Justice Warren made no allusion to Justice Harlan’s historical demonstration of the limited scope of the Fourteenth Amendment, and instead struck off a new version of constitutional principle and history. He premised that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” ⁵⁰ Were Warren drafting a new Constitution that principle would be unexceptionable. But that was not the established principle at the adoption of the Constitution; nor was it embodied therein. On the contrary, Federalist No. 54 recognized that “in every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State.” ⁵¹ In the 39th Congress itself, Fessenden said that “everybody has admitted from the foundation of the Government down to the present day that the qualification of voters rested with the States.” ⁵² Such was the clear consensus in the 39th Congress.

Warren postulated that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth and Nineteenth Amendments can mean only one thing—one person, one vote.” ⁵³ But Lincoln also bowed to “the right of each State to order and control its own domestic institutions,” ⁵⁴ and reminded a Negro delegation of the ineradicable prejudice toward blacks, who were “far removed from being placed on an equality with the white man.” ⁵⁵ And if we are to extract a principle from the Fifteenth and Nineteenth Amendments it is that Congress and the people considered that express Amendments were needed to confer suffrage on Negroes and women, that absent these Amendments neither enjoyed “political equality.” ⁵⁶ The point was made by the Court itself in Minor v. Happersett (1874), wherein a woman claimed that the Fourteenth Amendment endowed her with suffrage: “after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth . . . If suffrage was one of the privileges and immunities [of the Fourteenth], why amend the Constitution to prevent its being denied on account of race.” ⁵⁷

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

Reliance upon the Declaration of Independence, to which the Radical left frequently appealed in the 39th Congress, might be dismissed with the remark of neoabolitionist tenBroek: “ ‘All men are created equal’ proclaimed the Declaration of Independence. All men? Well not quite all—not negro slaves like those owned by Jefferson, among others.” ⁵⁸ To import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the “excesses” of popularly controlled legislatures.⁵⁹ Men of substance felt threatened and, in the words of John Dickinson, sought to protect “the worthy against the licentious.” ⁶⁰ TenBroek noted that “Equality was the dominant note in the Declaration,” whereas a “stronger position” was accorded in the Constitution to “property,” ⁶¹ including property in slaves as the fugitive slave clause testifies. There is no blinking the fact, as Kent Newmeyer recently reminded us, that the Constitution was “racist.” ⁶² Jefferson himself, author of the Declaration, predicted emancipation, but wrote: “it is equally certain that the two races will never live in a state of equal freedom . . . so insurmountable are the barriers which nature, habit and opinions have established between them.” ⁶³ Stevens powerfully summarized this history at the outset of the 39th Congress:

Sir, our fathers made the Declaration of Independence; and that is what they intended to be the foundation of our Government. If they had been able to base their Constitution on the principles of that Declaration it would have needed no amendment during all time, for every human being would have had his rights; every human being would have been equal before the law. But it so happened when our fathers came to reduce the principles on which they founded this Government into order, in shaping the organic law, an institution hot from hell appeared among them . . . It obstructed all their movements and all their actions, and precluded them from carrying out their own principles into the organic law of this Union.⁶⁴

It needs also to be borne in mind that the Declaration was drawn by the Continental Congress, a league of independent States, each of which jealously guarded its independence.⁶⁵ One of the reasons advanced by Senator Poland for §1 of the Fourteenth Amendment was doubts as to Congress’ power to “destroy all such partial State legislation” as violated the “principles” of the Declaration of Independence.⁶⁶ Senator Howard, a favorite of the neoabolitionists, stated that he could not discover the Negro right to vote in the Declaration of Independence and that, “notwithstanding the Declaration of Independence, it is the right of every organized political community to regulate the right of suffrage.” ⁶⁷ Manifestly, Warren’s appeal to the Declaration as a guiding principle of constitutional construction is out of tune with the historical facts.

A word about his appeal to James Wilson’s 1791 Lectures in Philadelphia: “all elections ought to be equal. Elections are equal, when a given number of citizens, in one part of the State, choose as many representatives, as are chosen by the same number of citizens, in any other part of the state.” ⁶⁸ This stated an ideal, not a constitutional requirement. When Wilson turned to the Article I, §2, provision that “the Electors in each state shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature,” he said, “the regulation is generous and wise. It is generous for it intrusts to . . . the several states, the very important power of ascertaining the qualifications” of the Electors. It was evidence of confidence, “that this foundation should be continued or altered by the States themselves.” ⁶⁹ Wilson was thoroughly aware of the disparate State exclusions from suffrage, having made a survey of the different State constitutions, even noticing that Connecticut provided power to exclude freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” And he praises “the wisdom . . . which rested one of the principal pillars of the national government upon the foundations prepared for it by the governments of the several states.” ⁷⁰ Warren’s use of Wilson affords striking illustration of the “lawyers history” so justly condemned by Alfred Kelly.

Warren’s pervasive error, to my mind, is to substitute twentieth-century logic for the framers’ intention, so clearly expressed in the legislative history: “Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people in a State would elect a majority of that State’s legislators.” ⁷¹ “Ostensibly grounded” refuses to come to terms with the historical fact that suffrage and apportionment were the province of the States. Once again is demonstrated the wisdom of Holmes’ aphorism, “a page of history is worth a volume of logic.” ⁷² That history was summarized with crystal clarity in the Report of the Joint Committee on Reconstruction.⁷³

Justice Brennan’s Opinion in Oregon v. Mitchell

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

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

Meeting in the winter and spring of 1866 and facing elections in the fall of the same year the Republicans thus faced a difficult dilemma: they desperately needed Negro suffrage in order to prevent total Democratic resurgence in the South, yet they feared that by pressing for suffrage they might create a reaction among northern white voters that would lead to massive Democratic electoral gains in the North. Their task was thus to frame a policy that would prevent total Democratic resurgence and simultaneously would serve as a platform upon which Republicans could go before their northern constituents in the fall. What ultimately emerged as the policy and political platform of the Republican Party was the Fourteenth Amendment.⁷⁴

Why could not the Republicans in Congress tell their constituents that unless Negro suffrage was granted Republican hegemony was doomed? Unless Northern voters preferred Democratic resurgence to Negro suffrage, the interests of Republican voters and members of Congress were one and the same. In fact the framers shared the prejudices of their Northern constituency, to recall only George W. Julian’s statement in the House: “The real trouble is we hate the Negro.” ⁷⁵ If the Republicans entertained a secret design to slip suffrage into the Amendment over voter opposition in order to hang on to office, they were betraying their constituency, and for this firm evidence needs to be adduced.

Given the framers’ awareness of voter antipathy to suffrage, one would expect Justice Brennan to resolve all doubts in favor of those sentiments. Instead he substitutes twentieth-century speculation for historical fact to effectuate his own predilections and commits the very sin he incorrectly lays at Harlan’s door: “historical analysis is flawed by ascription of 20th century meanings to the words of 19th century legislators.” ⁷⁶ For example, Harlan’s “view would appear to allow a State to exclude any unpopular group on the basis of its political opinions.” ⁷⁷ But if State control over suffrage was plenary, if the Amendment left States free to exclude Negroes on account of their color, they were equally free to exclude others for their “political opinions,” unpalatable as that appears to twentieth-century thinking. It will be recalled that James Wilson noticed the Connecticut provision for exclusion of freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” Historical analysis must proceed from the 1866 facts, not reason backward from 1970 predilections. Justice Brennan would substitute his choices for those of the framers; because we dislike a policy today, it does not follow that it is unconstitutional. That standard was rejected both by the Founders and by Chief Justice Marshall.⁷⁸

Justice Brennan’s opinion runs to some 38 pages; refutation, as is well known, requires more space than bare assertion; hence only a sampling of the Brennan opinion can here be analyzed. A few examples, however, should suffice to disclose Justice Brennan’s preference for speculation over fact. Section 1 began, he notices, as a “provision aimed at securing equality of ‘political rights and privileges’ ”; but the Joint Committee rejected an express reference “to political and elective rights”; it dropped all references to “political rights” and spoke in terms of “privileges and immunities” and equal protection of “life, liberty, and property” by a vote of seven to six. Commenting on these facts, Justice Brennan stated, “the breakdown of the committee vote suggests that . . . no change in meaning was intended,” because the “substitute was supported by men of all political views,” among them Howard and Boutwell, “who had earlier sought to make the section’s coverage of suffrage explicit,” and Stevens and Fessenden.⁷⁹ But Boutwell, Fessenden, Howard, and Stevens later agreed that the Amendment did not grant suffrage and signed the Joint Committee Report that so stated. To deduce that Bingham merely “sought to do no more than substitute for his earlier specific language more general language” ⁸⁰ ignores the repeated rejection of the specific proposals. General language may be construed to comprehend specific language that was earlier approved; but when specific language was rejected, evidence is required to explain why the rejected specific was now embodied in the general, evidence, not speculation. Then, too, Bingham cannot be lifted out of the mainstream of Republican statements that the Amendment did not confer suffrage; in fact he himself so stated.⁸¹

At the instigation of Robert Dale Owen, a reformer, Stevens had submitted a proposal that after July 4, 1876, “no discrimination shall be made . . . as to . . . the right of suffrage because of race.” This provision was deleted by the Joint Committee, Justice Brennan notes, but “the reasons for the rewriting are not entirely clear.” He notices, however, that in 1875 Owen furnished Stevens’ explanation: “several state delegations held caucuses which decided that the explicit references to ‘negro suffrage,’ in any shape, ought to be excluded from the platform.” ⁸² Is this not a “clear” explanation? By Brennan’s own testimony the Republicans feared to endanger the Fall elections by the submission of Negro suffrage. He reasons, however, “Perhaps the changes in §1 of the Amendment were thought by the Committee to be mere linguistic improvements which did not substantially modify Owen’s meaning.” ⁸³ The fact is that the 1876 provision was dropped to avoid alienating the electorate. That the “changes” were not “thought by the Committee to be mere linguistic improvements” is once more demonstrated by the unequivocal statement in its Report that suffrage had proven impossible of achievement and was left in the control of the States.

At “the very least,” states Justice Brennan, “the Committee must have realized that it was substituting for Owen’s rather specific language Bingham’s far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” ⁸⁴ Because, Brennan amplified, “political considerations militated against clarification of issues and in favor of compromise,” because “much of the North . . . opposed Negro suffrage, and many Republicans in Congress had to seek reelection from constituencies where racial prejudice remained rampant,” “what Republicans needed, in the words of Wendell Phillips . . . was ‘a party trick to tide over the elections and save time.’ ” ⁸⁵ This is the Bickel “open-ended” theory which I shall hereafter examine; and I shall also collate the evidence which repels the conclusion that the framers purposely employed “elastic language” to dupe the voters.

For Justice Brennan “the purpose of §1 in relation to the suffrage emerges out of the debates . . . with an equal obscurity.” ⁸⁶ As exhibit #1 he instances Howard’s statement that “the first section of the proposed amendment does not give to either of these classes the right of voting,” which is “not as unambiguous as [it] initially appear[s].” This is because after stating that “the right of suffrage was not one of the privileges and immunities protected by the Constitution . . . he read into the record an excerpt from . . . Corfield v. Coryell . . . which listed the elective franchise as among the privileges and immunities.” ⁸⁷ But Senator Trumbull, after calling attention to this Corfield listing, had pointed out that suffrage was not included in the Civil Rights Bill.⁸⁸ One might deduce that Howard felt no need to repeat such a statement after twice stating that the Amendment did not grant suffrage. Moreover, if an ambiguity be assumed, it was cured by his final statement: “the theory of this whole amendment is to leave the power of regulating the suffrage . . . with the States . . . and not to assume to regulate it.” ⁸⁹

For exhibit #2, Justice Brennan turns to Bingham’s “completely incongruous statement”: “the exercise of the elective franchise though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” ⁹⁰ Now Bingham was a confused thinker, as I shall show, but on one thing he was clear: the Amendment did not confer suffrage. At a later point he said: “We all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” He further stated, “the second section excludes the conclusion that by the first section suffrage is subjected to congressional law.” ⁹¹ Thereafter Bingham vigorously defended the exclusion of Negro suffrage from the Tennessee Constitution. When Boutwell objected during the debate on the readmission of Tennessee that in consequence it did not have a “republican form of government,” Bingham replied that whether a black “shall vote rests with the people of [Tennessee]. There I leave it . . . I ask the gentlemen to weigh well the question when they come to vote, whether Tennessee shall be rejected only because the majority exercises the same power as to colored suffrage claimed for and exercised by all the other States.” ⁹² This was after Congress submitted the Amendment with its “equal protection” clause to the people, and Bingham was upheld by a vote of 125 to 12,⁹³ an irreducible fact that speaks more loudly than all of Justice Brennan’s speculations. Here were materials that cured the “ambiguity,” ⁹⁴ that dissipated the “obscurity” conjured up by Justice Brennan, of which he took no notice. And why lean so heavily on the alleged “ambiguities” of two leaders when the vast majority of the leadership and rank and file affirmed or recognized that suffrage was excluded from the Amendment?

Then there is Brennan’s citation of Sumner, who was all but ostracized in the Senate, whose proposals were regularly voted down by very large majorities;⁹⁵ and his appeal to Stevens’ statement that the Amendment “merely allowed ‘Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.’ ” ⁹⁶ Stevens sought equality with respect to the rights enumerated in the Civil Rights Act, from which suffrage was excluded. But on the issue of suffrage, he stated, “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this [ “representation” proposal] does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualifications of their voters . . . You could not get five in this Union.” ⁹⁷ It was on Stevens’ motion that the Joint Committee adopted a reduction of representation proposal; and it rejected Boutwell’s motion to “abolish” any distinction.⁹⁸

Justice Brennan also refers to three Democratic opponents of the Amendment who, more or less clearly, saw in it a grant of suffrage.⁹⁹ Opponents of a measure, particularly those who seek to discredit it, are given slight credence, as I shall show; their testimony is not employed to define its scope.¹⁰⁰ What are we to think of Brennan’s reference to Senator Stewart, who, “while unhappy that the Amendment did not directly confer suffrage, nevertheless could ‘support this plan’ because it did ‘not preclude Congress from adopting other means by a two-thirds vote’ ”?¹⁰¹ Of course Congress could later propose another amendment by a “two-thirds vote”; Stewart plainly had no reference to congressional implementation by statute, for that could be done by majority vote, given authorization by the Amendment.

Finally, Justice Brennan takes over Van Alstyne’s critique of Harlan’s alleged view that “ §2 is specifically concerned with voting rights, and it provides an exclusive remedy that precludes or preempts application of §1.” ¹⁰² Apparently this is based on Harlan’s reference to the “Court’s utter disregard of the second section which expressly recognized the State’s power to deny the right . . . to vote and its express provision of a remedy for such denial or abridgment.” ¹⁰³ This unduly exalts a loose, passing reference to “remedy.” Remedies are given for “wrongs”; it is no “wrong” to exercise the “recognized . . . power to deny the right . . . to vote.” Then, too, since §1 conferred no suffrage, §2 obviously created no remedy for a nonexistent right. Certainly it gave no “remedy” to the black who was denied a vote. Senator Stewart, a Republican, sardonically commented that §2 relieves the Negro “from misrepresentation in Congress by denying him any representation whatever.” ¹⁰⁴ Justice Brennan explains that §2 “was of critical importance in assuring that, should the Southern States deny the franchise to Negroes, the Congress called upon to remedy that discrimination would not be controlled by the beneficiaries of discrimination themselves.” ¹⁰⁵ The truth is that §2 was the core of the Republican program because, as Brennan himself states, the Republicans needed to “prevent total [Democratic] resurgence,” “massive electoral gains in the North.” Reduction of representation when Negro suffrage was denied was deemed more important than endowing blacks with the vote; perceptive Republicans doubted whether the South would be “induced” to enfranchise Negroes and thus lose control.¹⁰⁶ Section 2, therefore, was not so much a “remedy” to enforce rights which §1 had not granted as a mechanism to preserve Republican hegemony. Forlorn hopes that the South could thereby be “induced” to confer suffrage were doomed to disappointment.

Enough has been set forth to exhibit Justice Brennan’s strange preference for minority Democrats and dissentient radicals like Sumner over the Republican leadership and its followers who enacted the measure and whose utterances are virtually ignored by him, his preference for “ambiguous” utterances rather than the crystal-clear explanations of the self-same speakers, and for speculation over the mass of stubborn evidence to the contrary.¹⁰⁷ Future historians, I confidently predict, will not prefer the “history” of Brennan to that of Harlan.

The “Open-Ended” Phraseology Theory

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

—SENATOR WILLIAM P. FESSENDEN^*

THE “open-ended” theory, shortly stated, is that the framers dared not submit Negro suffrage and the like to the electorate in 1866 and therefore discarded “specific” terms, as Justice Brennan put it, in favor of “far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” ¹ This is the classic invocation to extraconstitutional power,² power to revise the Constitution under the theory that the framers gave a “blank check to posterity.” ³ Bickel had cautiously advanced the theory as a hypothesis; it found favor in scholarly circles,⁴ and more positively formulated variants were proffered by Alfred Kelly and William Van Alstyne. It has since been enshrined in an opinion by Justice Brennan; and Justice Black, jumping off from Brennan’s paraphrase, announced that it made “the history of the Fourteenth Amendment . . . irrelevant to the present problem.” ⁵ The theory is therefore deserving of close analysis.

ALEXANDER BICKEL

At the time the “desegregation” case, Brown v. Board of Education,⁶ was first argued before the Supreme Court, Bickel was a law clerk of Justice Frankfurter, who assigned to him the task of compiling the legislative history of the Fourteenth Amendment, a task he performed brilliantly. When he delivered his memorandum in August 1953, he stated in a covering letter:

It was preposterous to worry about unsegregated schools, for example, when hardly a beginning had been made at educating Negroes at all and when obviously special efforts, suitable only for the Negroes, would have to be made . . . It is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.⁷

In 1962 he again wrote:

Was it the intention of the framers . . . to forbid the states to enact and enforce segregation statutes? If one goes to the historical materials with this specific question, the only answer is in the negative. The framers did not intend or expect then and there to outlaw segregation, which, of course, was a practice widely prevalent in the North.⁸

Upon the termination of his clerkship Bickel wrote a farewell letter to Frankfurter in which he adverted to the “living Constitution” dictum of Marshall.⁹ But when he revised his memorandum for publication in 1955 he sought more solid footing. Were the amendment a statute, he concluded, a “Court might very well hold” on the basis of the evidence “that it was foreclosed from applying it to segregation in the public schools.” Apart from the “immediate effect of the enactment,” he asked, “what if any thought was given to the long-range effect” in the future—a possibility he had labeled “impossible” in 1953. Noting the shift from “equal protection in the rights of life, liberty and property” to “equal protection of the laws, a clause which is plainly capable of being applied to all subjects of state legislation,” ¹⁰ he asked,

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

So, too, Reverdy Johnson, a Democrat, “confessed his puzzlement about the same clause.” ¹¹ How does the Howard-Johnson “puzzlement” about “privileges or immunities” advance the argument that “due process” and “equal protection” were understood to be open-ended? Neither Johnson nor Howard expressed uncertainty as to the meaning of those terms, and the implication is that there was none, an implication I shall flesh out in subsequent chapters. And given the Republican commitment to a “limited” program of protection for “enumerated” rights,¹² why did Bingham, who had insisted on deletion from the Civil Rights Bill of the words “civil rights” as “oppressive,” too “latitudinarian,” ¹³ now, as author of the Amendment’s §1, resort to phraseology that was “roomier, more receptive to ‘latitudinarian’ construction?” No explanation of his turnabout has been offered, and when we descend from speculation to the facts we shall find that they offer no support for the Bickel hypothesis.

Bickel states that some Republicans referred to “the natural rights of man,” ¹⁴ but those rights had been specified in the Civil Rights Act, and the Act was understood to exclude suffrage and desegregation of schools, as Bickel himself noted.¹⁵ The Act, with its restrictive “enumeration” of the rights to be protected, was represented to be embodied in the Amendment. A repudiation of such representations by the framers, in the teeth of their attachment to State sovereignty, their respect for the rights reserved to the States by the Tenth Amendment, needs to be proved, not assumed. And as will appear, the words “equal protection of the laws” evolved side by side with the framers’ limited objectives and gave perfect expression to their central goal: to prevent discriminatory legislation with respect to the enumerated rights, and those alone.

Howard knew well enough what “privileges or immunities” comprised. He stated, “we may gather some intimation of what probably will be the opinion of the judiciary by referring to . . . Corfield v. Coryell.” He quoted therefrom the reference to those “privileges and immunities which are in their nature fundamental . . . They may be comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire property” and so on.¹⁶ The correlation between these rights, the “privileges and immunities” of Article IV, §2, and the Civil Rights Act had been explained by Trumbull. After Howard’s speech, Reverdy Johnson moved to strike the “privileges or immunities” clause because he “did not understand what will be the effect of that”; but his motion fell to the ground,¹⁷ testimony that the Senate did not share his doubts. The “puzzlement” of Howard and Johnson cannot cancel out the repeated association of “privileges or immunities” with “security of person and property”; it cannot vitiate the all but universal understanding that the Amendment was to embody the Civil Rights Act, reiterated after Howard spoke. The Act, said Latham, “covers exactly the same ground as this amendment.” Senator Doolittle said it “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward,” a view also expressed by Henry Van Aernam of New York.¹⁸ The “privileges or immunities” clause, Senator Poland stated, “secures nothing beyond what was intended by the original provision [Article IV, §2] of the Constitution.” ¹⁹ In fact, Senator Howard undercuts Bickel, for toward the close of the debates he stated, “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not in law, one of the privileges . . . thus secured.” ²⁰ With respect to suffrage, the “Great Guarantee,” Howard was quite clear that it was excluded; that concept, at least, could not in future change its skin.

Bickel noticed that the “no discrimination in civil rights” sentence of the Act had been deleted because Republicans “who had expressed fears concerning its reach . . . would have to go forth and stand on the platform of the fourteenth amendment.” “It remains true,” he said, “that an explicit provision going further than the Civil Rights Act would not have carried in the 39th Congress.” And he noted that the Republicans drew back from “a formulation dangerously vulnerable to attacks pandering to the prejudice of the people.” But, he asked, “may it not be that the Moderates and Radicals reached a compromise permitting them to go to the country with language which they could, where necessary, defend against damaging alarms raised by the opposition but which at the same time was sufficiently elastic to permit reasonable future advances?” ²¹ Talk of a “compromise” between Moderates and Radicals on “vague” language is without factual basis. Consider the “radical” opposition to readmission of Tennessee because its constitution excluded Negro suffrage, voted down by 125 to 12; or the rejection of Senator Sumner’s suffrage proposal by 34 to 4.²² What need was there to “compromise” with so insignificant a group? Senator Sherman told a Cincinnati audience in September 1866, while the Amendment was up for ratification, “we defeated every radical proposition in it.” ²³

Bickel’s theory, to speak plainly, is that the compromisers concealed the future objectives that they dared not avow lest the whole enterprise be imperiled; it is an elegant reformulation of conspiratorial purpose. To begin with, this theory posits that the 39th Congress harbored designs not shared by the voters, when, in fact, as Morton Keller remarks, “most congressional Republicans were aware of (and shared) their constituents’ hostility to black suffrage.” ²⁴ Anticipating that his hypothesis might be “disparaged as putting forth an undisclosed, conspiratorial purpose such as has been imputed to Bingham and others with regard to the protection of corporations,” ²⁵ Bickel invoked statements by Stevens and the Joint Committee Report to the effect that the Amendment’s “imperfections” may be cured by “further legislation, enabling acts,” by “legislative wisdom” ²⁶ —hardly a warrant for judicial changes! What member of the 39th Congress would conclude that by such words was meant that Congress had conferred sub rosa for the future the suffrage it dared not propose in the present? Bickel himself torpedoed that inference.

Observing that Stevens stated the Amendment “falls far short of my wishes . . . but . . . is all that can be obtained in the present state of public opinion . . . I . . . leave it to be perfected by better men in better times, ” Bickel states; “In all probability, the disappointment of Thaddeus Stevens centered on failure to make any provision for negro suffrage, immediate or prospective.” ²⁷ Disappointment over failure to provide for prospective suffrage rules out an open-ended design to authorize such provision in the future. What Stevens meant by “further legislation” does not need construction. As Senator Stewart stated, the Amendment “does not preclude Congress from adopting other means by a two-thirds vote [another amendment] when experience shall have demonstrated . . . the necessity for a change of policy,” ²⁸ as it did before long in recommending the Fifteenth Amendment. Studied ambiguity also collides with Fessenden’s suggestion of a change because “there is a little obscurity or, at any rate, the expression in section 4 might be construed to go further than was intended.” ²⁹ A “blank check to posterity” is likewise refuted by Chairman Wilson’s statement: “I fear that comprehensive statesmanship which cares for posterity as well as for itself will not leave its impress upon the measure we are now considering.” ³⁰

There are also several disclaimers of concealed objectives, of playing a trick upon an unsuspecting people.³¹ Charged with “indirection,” Fessenden said:

where a legislator avows his object and his purpose, states what he wishes to accomplish and the mode by which he is to accomplish it, he is [not] to be charged, although it operates indirectly, with what is properly understood by the term “indirection,” which conveys the idea of a trick, a contrivance, to do something by taking advantage of others which you cannot do if you make plain to their senses what is the object.³²

Shortly after congressional approval of the Amendment, and during the warm-up for the elections of 1866, a leading Radical, Congressman Robert C. Schenck of Ohio, averred the Democrats “are afraid that it may have some concealed purpose of elevating negroes . . . [to] make them voters. It goes to no such length.” ³³

“Equal protection,” as will appear, emerged from the framers’ intention to outlaw laws which discriminated against blacks with respect to the “coverage of the Civil Rights Act.” “Indeed,” Bickel himself concluded, “ no specific purpose going beyond the [limited] coverage of the Civil Rights Act is suggested; rather an awareness on the part of the framers that it was a constitution they were writing, which led to a choice of language capable of growth.” ³⁴ His appeal to the “awareness” of the framers assumes what needs to be proved—that there was in fact such a “choice.” Such speculation is rebutted by the very limited objectives of the Civil Rights Act, embodied in the Amendment, the absence of explanation for a change of direction, and the fact that “due process” and “privileges or immunities” were deemed to be used in their established sense. If there was such a “choice,” ³⁵ it cannot harbor a purpose they confessedly dared not submit. Senator Howard, who has been regarded as “one of the most reckless of the radicals,” one who “served consistently in the vanguard of the extreme negrophiles,” ³⁶ explained to the Senate that he would have preferred to

secure suffrage to the colored race to some extent at least . . . But sir, it is not a question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage . . . the question really is, what will the Legislatures of the various States . . . do in the premises; what is likely to meet the general approbation of the people. The Committee were of the opinion that the States are not yet prepared to sanction so fundamental a change.³⁷

How is Bickel’s “undisclosed” purpose to be reconciled with the fact that an attempt to provide for Negro suffrage after 1876 was rejected? Robert Dale Owen, a pro-suffrage reformer, had brought a proposal which Stevens placed before the Joint Committee. Section 2 of the proposal provided that after July 4, 1876 (a fitting anniversary for enfranchisement), “no discrimination shall be made . . . as to . . . the right of suffrage.” ³⁸ Owen’s reason for the “prospective suffrage,” he explained to Stevens, was that “the negro is, for the present, unprepared wisely to use the right of suffrage.” ³⁹ When this provision was noised about, Stevens told Owen,

members from New York, from Illinois . . . from Indiana held, each separately, a caucus to consider whether equality of suffrage, present or prospective, ought to form a part of the Republican programme for the coming canvass. They were afraid . . . some of them . . . might lose their elections . . . [E]ach one of these caucuses decided that negro suffrage, in any shape, ought to be excluded.⁴⁰

In consequence, the 1876 proposal was dropped and the Committee substituted a “new section simply eliminating from the basis of representation persons to whom the vote was denied,” ⁴¹ the present §2. Add to this Senator Howard’s statement of the Joint Committee’s opinion that “three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race,” ⁴² and we have solid evidence which overcomes speculation that there was an unrevealed purpose to confer broader powers in the future.

ALFRED KELLY

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

The intent of certain Radical leaders to go beyond the restrictive enumeration of the Civil Rights Act and to incorporate a series of expansive guarantees in the Constitution is quite clear . . . the best evidence of this is the language of the guarantees which Bingham and the other authors of the Fourteenth Amendment incorporated in the first section. The guarantees they finally adopted—privileges and immunities, due process and equal protection—were not at all derived from the Civil Rights Act, which . . . had used the restricted enumerative device. Instead, the authors derived their guarantees deliberately from the prewar Radical antislavery movement.⁴³

A Constitution, Chief Justice Marshall stated, cannot have “the prolixity of a code”;⁴⁴ there the drive is for the most compressed utterance. Moreover, the terms of §1 were far from “vague and amorphous.” ⁴⁵ “Privileges or immunities” was drawn from Article IV, §2, via the Civil Rights Bill, which adopted the established judicial construction.⁴⁶ An abolitionist departure needs to be proved, not assumed by reference to “expansive” language. Bingham himself repudiated such notions when he declared that the meaning of “due process” was to be found in the decisions of the courts.⁴⁷ That his conception of “equal protection” did not go beyond the ban on discriminatory laws with respect to the enumerated “fundamental rights” is again demonstrated by his defense of Tennessee’s disenfranchisement of blacks, regretting that though “We are all for equal and exact justice . . . justice for all is not to be secured in a day.” ⁴⁸

Next Kelly notices a “curious ambiguity . . . in the Radicals’ advocacy of the measure . . . It was as though the Radical leaders were avoiding a precise delineation of legal consequences,” this on the basis of their resort to the “technique of lofty, expansive and highly generalized language.” ⁴⁹ Why such avoidance? He explains that

there was a substantial block of moderate Republicans who had not yet committed themselves entirely to the Radical position . . . if [Bingham et al.] drove home too far the proposition that this amendment would undoubtedly consummate the destruction of all caste and class legislation . . . moderate Republican support might be alienated and the requisite two-thirds majority necessary to the amendment’s adoption might not be obtained. Political strategy called for ambiguity not clarity.⁵⁰

Stripped of fig leaves, the Kelly rationale would give the Amendment a meaning which the radicals had concealed even from their Moderate confreres! In truth, there is no evidence of a concealed purpose. How did Bingham’s “lofty generalizations” become freighted with a cargo he had severely condemned as “oppressive” and “unjust” when he insisted upon deletion of the words “civil rights” from the Civil Rights Bill?^50a Although Bingham was given to windy oratory,⁵¹ his own words show that he did not regard “due process,” “equal protection,” and “privileges or immunities” as “lofty generalizations,” but rather as terms of known and limited content. For example, he explained that “privileges or immunities” was drawn from Article IV, §2, that “due process” had been judicially defined. Then, too, Bingham and Stevens are an odd couple to conspire to pull the wool over the eyes of their colleagues. On the floor of the House in the 39th Congress, Stevens said of Bingham: “In all this contest about reconstruction I do not propose either to take his counsel, recognize his authority, or believe a word he says.” ⁵²

WILLIAM VAN ALSTYNE

After downgrading some statements in the debates, Van Alstyne nevertheless concludes that “the case can safely be made that there was an original understanding that §1 of the proposed Fourteenth Amendment would not itself immediately invalidate state suffrage laws severely restricting the right to vote.” But, he states, “we cannot safely declare that there was also a clear, uniform understanding that the open-ended phrases of §1 . . . would foreclose a different application in the future [because invalidation of State Negro suffrage laws] was avoided . . . from fear that such an amendment would not be ratified and that its Republican sponsors would be turned out of office at the next congressional election.” ⁵³ Van Alstyne reverses the normal order of proof, that a departure from the norm was intended, that what was unmistakably excluded in 1866 was to be embraced in 1966. For such extraordinary drafting proof, not speculation, is required.

In an attempt to offer some proof Van Alstyne argues that Congress had based its authority to enact the Civil Rights Act on the fact that it was “appropriate legislation to enforce the mere ban on ‘slavery’ in §1 of the Thirteenth Amendment.” He continues: “fresh from their own experience in developing new applications of the Thirteenth Amendment . . . the Radicals could scarcely have failed to foresee that the still broader contours of the Fourteenth Amendment would offer greater possibilities for the future.” ⁵⁴ Undeniably some appealed to the Thirteenth Amendment for constitutional authority to enact the Civil Rights Act. But there was vigorous opposition. Conkling declared that “Emancipation vitalizes only natural rights, not political rights.” ⁵⁵ And most Republicans held that natural rights did not include the right to vote. Senator Henry Wilson, a Massachusetts Radical, stated that the Thirteenth Amendment “was never understood by any man in the Senate or House to confer upon Congress the right to prescribe or regulate the suffrage in any State . . . If it had been supposed that it gave that power the amendment would never have passed the Congress, never have received the sanction of the States.” ⁵⁶ Considerable impetus to the Fourteenth Amendment was given by Bingham’s insistence that there was no constitutional authority for the Civil Rights Bill and that an amendment was required.⁵⁷ And the fact that Congress went on to enact the Fourteenth Amendment refutes the view that the Thirteenth was conceived to be “open-ended,” to authorize legislation going beyond emancipation.

Even “more significance” is attached by Van Alstyne to what he views as an important parallel between the Civil Rights Act and the Fourteenth Amendment.⁵⁸ When Bingham objected that the “no discrimination in civil rights” sentence of the Act was oppressive and invaded States’ Rights,⁵⁹ the Committee deleted the sentence, and Chairman Wilson explained, “I do not think it materially changes the bill, but some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.” ⁶⁰ In contrast, Van Alstyne points out, although “several of the Democrats declared . . . that the Privileges and Immunities Clause would eventually be applied to suffrage . . . the Republicans declined to limit the language of §1 [of the Amendment] to avoid such application.” The moral he draws is that the “Civil Rights Act was, of course, a statute; a law not expected to ‘endure for ages to come.’ The Fourteenth Amendment was something else again.” ⁶¹ A more prosaic explanation can serve. Bingham was an influential Republican with a following, and the deletion of the “civil rights” sentence, regarded as gratuitous, was a small price to pay for bringing him into camp; whereas the objections of “several Democrats” could safely be ignored because their votes could be written off.⁶² The Republicans, who had been assured both during enactment of the Civil Rights Bill and consideration of the Amendment that neither purported to grant suffrage, needed no express exception to make that plain. The established rule is that if a thing is within the intention of the framers, it is as good as written in the text.⁶³

The hypotheses of Bickel, Kelly, and Van Alstyne seem to me a speculative fabric that collapses under the fact, made so clear by the framers, that they did not mean to confer Negro suffrage, present or prospective. And the theory runs into another formidable obstacle. During the ratification process, in the summer election campaign of 1866, the Republicans repeatedly assured the people that, in the words of Senator John Sherman of Ohio, the Amendment “was an embodiment of the Civil Rights Bill,” itemizing several of its provisions. A similar assurance was given by Senator Lane of Indiana.⁶⁴ Congressman Schenck of Ohio repudiated “a concealed purpose” to confer Negro suffrage; his Ohio colleague Columbus Delano stressed that the Amendment was designed to make citizens “safe in the South.” ⁶⁵ Logan of Illinois said it was meant to permit the citizen “to sue and be sued, to own property, to have process of court,” a reminder of the limited objectives of the Civil Rights Act, accompanied by a specific disclaimer that §1 “gives the negro the right of suffrage.” ⁶⁶ These and still other representations collected by Charles Fairman militate against a concealed purpose to go beyond the confines of the Act.

Finally, be it assumed that there was an undisclosed purpose, the question arises whether “ratification” extends to objectives that were not disclosed, that were in fact expressly disclaimed. The doctrine of ratification premises that the principal knows what he is ratifying; without full disclosure there can be no ratification.⁶⁷ And there is the larger issue of political morality. Ours is a generation insistent on full disclosure, for example, in the marketing of corporate securities. To accept dissimulation as a means of obtaining a constitutional amendment would be to condone lower morals in the halls of Congress than is demanded in the marketplace.⁶⁸

Segregated Schools

THE “desegregation” decision in Brown v. Board of Education ¹ was, as Richard Kluger called it, an act of “Simple Justice,” ² a long overdue attempt to rectify the grievous wrongs done to the blacks. For the legal historian, however, the question is whether the Fourteenth Amendment authorized the Supreme Court to perform that act.³ For the Court, like every agency of government, may act only within the limits of its constitutional powers. As Lee stated in the Virginia Ratification Convention, “When a question arises with respect to the legality of any power, exercised or assumed,” the question will be, “ Is it enumerated in the Constitution? . . . It is otherwise arbitrary and unconstitutional.” ⁴

In his illuminating study of the way in which the desegregation case was handled in the Supreme Court, Kluger asks, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under that amendment?” ⁵ Given the rampant racism in the North of 1866—which still has to loose its grip—it needs to be explained how a North which provided for or mandated segregated schools⁶ was brought to vote for desegregation in the Amendment.

When the “desegregation” case came to the Court in 1952, Justice Frankfurter assigned the task of compiling the legislative history of the Amendment to his brilliant clerk, Alexander Bickel,⁷ who was destined to become one of the foremost authorities in the field of constitutional law. Upon completing the assignment, in August 1953, Bickel delivered his memorandum to Frankfurter with a covering letter in which he stated: “it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” ⁸ When he later published a revision of that memorandum, he concluded: “there is no evidence whatever showing that for its sponsors the civil rights formula had anything to do with unsegregated schools. Wilson, its sponsor in the House, specifically disclaimed any such notion.” ⁹ Wilson, chairman of the House Judiciary Committee and the House Manager of the Bill, who could therefore speak authoritatively, had advised the House that the words “civil rights . . . do not mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights.” ¹⁰ Wilson’s statement is proof positive that segregation was excluded from the scope of the bill.

Another piece of evidence, which Alfred Kelly, one of the historians drawn into the case by the NAACP,¹¹ considered “very damning,” was the “removal of the ‘no discrimination’ clause from the Civil Rights Bill.” The Bill, he stated, “was amended specifically to eliminate any reference to discriminatory practices like school segregation . . . it looked as if a specific exclusion had been made.” ¹² The deletion was made at the insistence of John A. Bingham, the architect of the Fourteenth Amendment, whom neoabolitionists regard as the conduit through which abolitionist concepts of substantive due process and equal protection were poured into the Amendment.¹³ Roughly speaking, he moved for instructions to the Judiciary Committee to strike the “no discrimination” sentence of the Bill,¹⁴ in order to render it “less oppressive and therefore less objectionable.” The enactment of laws “for the general government of the people” was reserved to the States; “civil rights,” he continued, “include and embrace every right that pertains to a citizen as such,” including “political rights.” On this view the Bill, according to Bingham, proposed “simply to strike down by congressional enactment every state constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen.” With “some few exceptions every state in the Union does make some discrimination . . . in respect of civil rights on account of color.” Hence the “no discrimination” sentence “must be striken out or the constitutions of the States are to be abolished by your act.” Deletion of this sentence would remove what he considered the Bill’s “oppressive and I might say its unjust provisions,” all of which adds up to a States’ Rights manifesto. Bingham’s censure, however, does not extend to the enumerated rights that follow the “no discrimination” clause; these he quotes with approval, but asserts that the needed reform should be accomplished “not by an arbitrary assumption of power, but by amending the Constitution . . . expressly forbidding the States from any such abuse [that is, denial of said specified rights] in the future.” ¹⁵ In short, the enumerated rights should be protected by Amendment against State abuse, whereas the “civil rights,” which embraced any and every right, should be excised because “oppressive.” In this Bingham was in accord with the restricted objectives of almost all of his Republican colleagues who spoke to the measure.¹⁶ Bickel therefore correctly concluded that Bingham, “while committing himself to the need for safeguarding by constitutional amendment the specific rights enumerated in the body of section 1, was anything but willing to make a similar commitment to ‘civil rights’ in general.” ¹⁷

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

In calling for the deletion, Bingham, the former abolition theorist, had openly acknowledged that the bill as drafted would have prohibited statutes such as school segregation. Since that broad language was in fact deleted from the final form of the bill and since many of the proponents of the Fourteenth held that the amendment had no purpose beyond constitutionalizing the Civil Rights Act, it had therefore seemed to Kelly, [Thurgood] Marshall, Ming, and others in the NAACP camp that they could not reasonably argue that the framers intended the amendment to prohibit school segregation.¹⁸

Finally, a “light” broke through, “a really plausible interpretation” dawned on Kelly: “Bingham’s objection to the ‘no discrimination’ was based solely on the apparent lack of constitutional authority for so sweeping a congressional enactment.” ¹⁹ This was a “light” that failed. Kelly completely overlooked Bingham’s separation between the too-inclusive “civil rights,” which were deleted, and the enumerated rights, which, because they also trenched on traditional State governance, required an amendment. Justice Black understood this if Kelly did not.²⁰

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

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

The deletion, Wilson further explained, was made because “some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.” ²¹

To Kelly, who later defended the desegregation decision, Bickel’s view “seems a very doubtful reading of Bingham’s position. It ignores his extensive extremist antislavery background as well as his position in Congress as one of the strong Radical Republicans.” ²² But neither Bingham’s background nor his position had dissuaded him from opposition to Negro suffrage.²³ Moreover, as Bickel informed Justice Frankfurter, “It was doubtful that an explicit ‘no discrimination’ provision going beyond the enumerated rights in the Civil Rights Bill as finally enacted could have passed in the Thirty-Ninth Congress.” ²⁴ At this time “Eight [Northern] states either provided for separate schools or left it up to local communities to adopt that practice if they wished. Five states outside the old Confederacy either directly or by implication excluded colored children entirely from their public schools.” ²⁵ Kluger comments, “If Congress and state legislatures had understood that the amendment was to wipe away the practices, surely there would have been more than a few howls.” ²⁶ With suffrage unequivocally barred there was no reason to infer that desegregation, a far more touchy matter, was required.

Then there was another thorny fact: “Congress had permitted segregated schools in the District of Columbia from 1864 onward.” ²⁷ Sumner’s “long fight to abolish segregated Negro schools in the District of Columbia” had been “unavailing.” ²⁸ With good reason did Judge E. Barrett Prettyman hold in Carr v. Corning ²⁹ that congressional support for segregated schools in the District of Columbia contemporaneously with the adoption of the Amendment (and the Civil Rights Act) was conclusive evidence that Congress had not intended §1 of the Amendment to invalidate school segregation laws. Kelly too lightly dismissed this: “technically the parallel is not constitutionally precise or apposite.” ³⁰ To the contrary, the parallel is both “precise and apposite.” It has long been the rule that laws dealing with the same subject—in pari materia—must be construed with reference to each other, “as if they were one law.” ³¹ The Amendment originated as a congressional Joint Resolution, so it is entirely appropriate to look to the light shed contemporaneously by the District of Columbia bills on the meaning of the Resolution. In truth, it is unrealistic to presume that a Congress which has plenary jurisdiction over the District and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States. The difference was fully appreciated by Senator Henry Wilson, a Radical Republican from Massachusetts, who introduced a bill providing for suffrage in the District of Columbia, but lamented that in “dealing with the States,” State “constitutions block up the way and we may not overleap the barriers.” ³²

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

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

I will go even further . . . and will vote for all measures to elevate their condition and to educate them separate and apart from the whites . . . [B]ut when it comes to placing him upon the same social and political level as my own race, I must refuse to do it.³³

There is yet other evidence that the framers had no intention of striking down segregation. The Senate gallery itself was segregated, as Senator Reverdy Johnson mordantly remarked.³⁴ The Carl Schurz report Education of the Freedmen spoke throughout of “ ‘colored schools,’ ‘school houses in which colored children were taught.’ There were no references to unsegregated schools, even as an ultimate objective.” ³⁵ Instead there was a pervasive assumption that segregation would remain. Referring to the burning of black schools in Maryland, Josiah B. Grinnell of Iowa said, give them schoolhouses and “invite schoolmasters from all over the world to come and instruct them.” Senator Daniel Clark of New Hampshire stated, “you may establish for him schools.” Ignatius Donnelly of Minnesota stated, “Educate him and he will himself see to it that the common schools shall forever continue among his people.” ³⁶ Senator William P. Fessenden said of the “representation” proposal that was to become §2 of the Fourteenth Amendment: it “should serve as an inducement to the southern States to build school houses . . . and educate their colored children until they are fit to vote.” ³⁷ In vetoing the antecedent Freedmen’s Bureau Bill, President Johnson noted that it provided for the “erection for their benefit of suitable buildings for asylums and schools,” and objected that Congress “has never founded schools for any class of our own people.” ³⁸ Thaddeus Stevens “did not publicly object to the separation of the races in the schools although he was against segregation in theory . . . But he never pressed for legal enforcement of this kind of equality, as Charles Sumner did, believing it achievement enough that the South would have free schools at all.” ³⁹

Additional light may be gathered from post–Fourteenth Amendment developments, part of Sumner’s continuing campaign for desegregated schools. On March 16, 1867, Sumner moved to amend a Supplementary Bill to require “that State constitutions provide for a system of non-discriminatory public schools.” The motion failed; it “went beyond what majority sentiment would sustain.” ⁴⁰ Let an impassioned apostle of the incorporation of abolitionist ideology—Howard Jay Graham—sum up:

There were many reasons why men’s understanding of equal protection, as applied to educational matters, was imperfect in 1866 . . . Negroes were barred from public schools of the North and still widely regarded as “racially inferior” and “incapable of education.” Even comparatively enlightened leaders then accepted segregation in the schools.⁴¹

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

In his painstaking reconstruction of the progress of Brown v. Board of Education, Richard Kluger has furnished some fascinating glimpses behind the portals of the Supreme Court.⁴² The case was first argued before the Vinson Court; Chief Justice Vinson “found it ‘Hard to get away’ from the contemporary view by its framers that the Fourteenth Amendment did not prohibit segregation.” Jackson noted, “For 90 years segregated schools [existed] in the city [Washington].” ⁴³ Frankfurter, “a keen observer of his colleagues’ voting inclinations,” listed Clark—along with Vinson, Reed, and Jackson—as “probable dissenters if the Court voted to overturn Plessy in the spring of 1953.” ⁴⁴ If they were to be brought about, time was needed; a decision outlawing segregation by a divided Court would have produced tremendous shock waves.⁴⁵ With Bickel’s aid Frankfurter framed five questions for reargument, which the Court submitted to counsel and put the case over to the next term.⁴⁶ The Frankfurter tactic paid off in an unexpected way: the sudden demise of Chief Justice Vinson just before the Brown reargument. How much that mattered may be gathered from Frankfurter’s remark: “This is the first indication I have ever had that there is a God.” ⁴⁷ And that remark also reveals that men and votes, not the impalpable “consensus of society” picked up by judicial antennae, are what count.

The most interesting figure was Frankfurter himself. According to William Coleman, who had clerked for him a few years earlier and was the coordinator of research for the NAACP in the various States, Frankfurter “was for ending segregation from the very start.” ⁴⁸ A remarkable fact: Frankfurter, the sworn foe of subjective judgment, who disclaimed enforcement of his own “private view rather than the consensus of society’s opinion,” ⁴⁹ had made up his mind “from the day the cases were taken” ⁵⁰ that segregation must go! This was before hearing argument or reading briefs in a case of extraordinary national importance.⁵¹ Not that he was unaware of the constitutional obstacles. Kluger recounts that Frankfurter “had studied the history of the Fourteenth Amendment” and concluded that “in all likelihood, the framers of the amendment had not intended to outlaw segregation.” ⁵² His conclusion must have been greatly strengthened by the Bickel memorandum, which he found so impressive that “he had it set up in type in the Court’s basement print shop and distributed among the Justices a few days before the Brown reargument.” ⁵³ Bickel showed, and his demonstration is yet to be successfully controverted, that the 39th Congress meant to leave segregation “as is” —to the States. After the distribution of the Bickel memorandum, Jackson wrote a file memorandum dated February 15, 1954, in which he stated: “despite my personal satisfaction with the Court’s [forthcoming] judgment, I simply cannot find, in surveying all the usual sources of law, anything which warrants me in saying that it is required by the original purpose and intent of the Fourteenth or Fifth Amendment.” ⁵⁴ He told the Conference that he would “file a separate concurring opinion” if the “Court feigned that the Justices were doing anything other than declaring new law for a new day.” ⁵⁵ This, Kluger comments, was asking the majority to admit that “there was no judicial basis for its decision,” that “it was acting in a frankly unjudicial way.” ⁵⁶ Kluger considers it “a scarcely reasonable request to make of the brethren.” ⁵⁷ Why not? What kind of “consensus of society” (which the Court purportedly effectuates) is it that cannot withstand the truth—that effectuation required “new law for a new day”? An adult jurisprudence for an age of “realism” surely called for an end to the pretense that it was the Constitution, not the Justices, who spoke.⁵⁸ Concealment suggests there may in fact have been no consensus.⁵⁹ Perhaps Jackson’s insistence impelled Chief Justice Warren—after labeling the history “inconclusive” ⁶⁰ —to state that “we cannot turn back the clock to 1868,” ⁶¹ a veiled declaration that the intention of the framers was irrelevant and that the Court was revising the Constitution to meet present-day needs.⁶²

Justice Frankfurter, the professed devotee of “self-restraint,” reached a similar conclusion, but in different rhetoric. He had asked, Justice Burton noted, “What justifies us in saying that what was equal in 1868 is not equal now?” ⁶³ and in a file memorandum he formulated his own answer:

the equality of laws enshrined in a constitution which was “made for an undefined and expanding future . . .” . . . is not a fixed formula defined with finality at a particular time. It does not reflect, as a congealed summary, the social arrangements and beliefs of a particular epoch . . . The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether a discrimination denies the equal protection of the laws.⁶⁴

Although the framers were well aware of the nation’s “expanding future,” they nonetheless, for example, rejected suffrage, “present or prospective.” They knew that Article V provided the means to avoid “congealment,” ⁶⁵ as was before long evidenced by adoption of the Fifteenth Amendment. The real issue, therefore, was not whether the Constitution must be “congealed,” but rather who was to make the change—the people or the Justices. Buried in Frankfurter’s fine phrases is a confession that the people could not be trusted to reflect the “changes in men’s feelings” by an amendment, and that in consequence the Justices had to rewrite the Constitution. Even in a memorandum for his own use, Frankfurter could not bring himself to admit that he was “making new law for a new day,” but sought to disguise the fact with “majestic generalities.”

In Chapter 10 I shall show that the framers employed “equal protection of the laws” to express their limited purpose: to secure the rights enumerated in the Civil Rights Act, and those only, against discriminatory State legislation. With respect to those rights there could no longer be one law for whites and another for blacks. The limitless objectives that Frankfurter read into the phrase were utterly beyond the contemplation of the framers. For the stubborn fact is that racism was, and still remains, an ugly fact of American life;⁶⁶ as Jackson’s file memorandum stated, “Neither North nor South has been willing to adapt its racial practices to its professions.” ⁶⁷ “It was into this moral void, ” Kluger states, “that the Supreme Court under Earl Warren now stepped,” ⁶⁸ not to give effect to a national consensus, still less to the Fourteenth Amendment, but to revise it for the people’s own good. But “the criterion of constitutionality,” said Justice Holmes, “is not whether we believe the law to be for the public good.” ⁶⁹

Supplementary Note on Segregated Schools

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