The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 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
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

It is the thesis of this book that the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power. When Chief Justice Marshall stated that the function of the legislature is to make the law, that of the judiciary to interpret it,1 he echoed Francis Bacon’s admonition two hundred years earlier.2 Much less are judges authorized to revise the Constitution, for as Justice Black, deriding the notion that the Court was meant to keep the Constitution “in tune with the times,” stated, “The Constitution makers knew the need for change and provided for it” by the amendment process of Article V,3 whereby the people reserved unto themselves the right to change the Constitution. Having created a prepotent Congress, being well aware of the greedy expansiveness of power, and knowing that power can be malign as well as benign, the Founders designed the judiciary to keep Congress within its prescribed bounds,4 what James Bradley Thayer and Learned Hand later called “policing” the constitutional boundaries.5Within those boundaries, stated Justice James Iredell, one of the ablest of the Founders, the legislature was to be free of judicial interference.6

Unlike the academicians’ current infatuation with a revisory judiciary,7 the Founders had a “profound fear of judicial independence and discretion.” 8 They were influenced by the English Puritans’ fear that “the laws’ meaning could be twisted by means of judicial construction”; they feared the judges’ “imposition of their personal views.” 9 An important brake on such arrogation was the rule that a document is to be construed in light of the draftsmen’s explanation of what they meant to accomplish,10 the so-called original intention. Jefferson and Madison attached great weight to the rule;11 and Chief Justice Marshall declared that he could cite from the common law “the most complete evidence that the intention is the most sacred rule of interpretation.” 12 Here law and common sense coincide. Who better knows what the writer means than the writer himself?13 John Selden, the preeminent seventeenth-century scholar, stated, “A Man’s writing has but one true sense, which is that which the Author meant when he writ it.” 14 Such were the views of Hobbes and Locke.15 To maintain the contrary is to insist that the reader better knows what the writer meant than the writer himself. To recapitulate, antiactivists (originalists) maintain that judges are not authorized to revise the Constitution16 and that it is to be construed in light of the Founders’ explanations of what they meant to accomplish, no more, no less.

Leading activists Michael Perry and Paul Brest observe that no activist has come up with a satisfactory antioriginalist theory.17 There are as many theories as activist writers. Indeed, Brest pleads with academe “simply to acknowledge that most of our writings are not political theory but advocacy scholarship—amicus briefs ultimately designed to persuade the Court to adopt our various notions of the public good” —result-oriented propaganda.18 In their zeal to ameliorate social injustice, academicians undermine the constitutionalism that undergirds our democratic system.19 Their defense of the Justices’ substitution of their own meaning for that of the Founders displaces the choices made by the people in conventions that ratified the Constitution, and it violates the basic principle of government by consent of the governed. The people, said James Iredell, “have chosen to be governed under such and such principles. They have not chosen to be governed or proposed to submit upon any other.” 20 Academe has forgotten Cardozo’s wise caution: the judges’ “individual sense of justice . . . might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.” 21

When this book appeared in 1977, I anticipated that it would ruffle academic feathers, for it stood athwart the complacent assumption that constitutional limitations22 must yield to beneficial results, a result-oriented jurisprudence that is a euphemism for the notion that the end justifies the means.23 The flood of criticism—often ad hominem—surpassed my expectations.24 Scarcely a month passes without another “refutation,” 25 testimony that the corpse simply will not stay buried. Almost all activist critics turn their back on discrepant evidence; they simply will not examine, for example, my detailed demonstration that “privileges or immunities” had become words of art having a limited compass.26

Consider the “one man-one vote” doctrine. Section 2 of the Fourteenth Amendment provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionally reduced. This constitutes the sole provision for federal intervention. Senator William Fessenden, chairman of the Joint Committee on Reconstruction, explained that the Amendment “leaves the power where it is, but it tells [the States] most distinctly, if you exercise that power wrongfully, such and such consequences will follow.” 27 Senator Jacob Howard, to whom fell the task of explaining the amendment because of Fessenden’s illness, said, “the theory of this whole amendment is, to leave the power of regulating the suffrage with the people or legislatures of the States, and not to assume to regulate it.” 28 It was this “gap” which the Fifteenth Amendment was designed to fill.29 Plainly the “one man-one vote” doctrine derogates from the exclusive control of suffrage that was left to the States.30

Turn to the sacred cow of modern constitutional law, Brown v. Board of Education, whereby the Court outlawed segregated schools.31 Robert Cover of Yale chided me for engaging in a lengthy tour of the historical sources instead of starting from Brown, in short, beginning with the end, the fait accompli,32 for Brown had no popular mandate. Brown, wrote Bruce Ackerman, another advocate of activism, “did not come at [a moment] when a mobilized citizenry was demanding a fundamental change in our fundamental law.” 33 The “real significance” of Brown, he opines, “lies elsewhere, in the Court’s courage in confronting modern Americans with a moral and political agenda that calls upon them to heed the voice of their better selves.” 34 Put baldly, the Court had no popular mandate for its revolutionary decision but assumed the role of an Old Testament prophet, enhanced by the sanctions at its disposal.35

Contrast a few undeniable facts. Congress had “permitted segregated schools in the District of Columbia from 1864 onward”;36 and Senator Charles Sumner vainly fought “to abolish segregated Negro schools in the District of Columbia.” 37 How can it be maintained that Congress, after steadfastly refusing to abolish segregated schools in the District, over which it had plenary control, would cram desegregation down the throats of the States? “Negroes were barred from public schools of the North,” wrote neoabolitionist Howard Jay Graham, and were “still widely regarded as ‘racially inferior’ and ‘incapable of education.’ ” 38 Had the framers proposed to bar segregated schools in the North, such interference with state control of internal affairs would have imperiled enactment and adoption of the Fourteenth Amendment.39 Such a proposal was far from the framers’ minds, as is demonstrated by James Wilson’s (chairman of the House Judiciary Committee) assurance that the parallel Civil Rights Bill—regarded as “identical” with the Fourteenth Amendment, whose purpose was to safeguard the Bill from repeal—did not require that all “children shall attend the same schools.” 40 Prominent academicians, among them leading activists, recognize that segregation was left untouched by the Fourteenth Amendment.41

Compare with such incontrovertible facts the imaginary conversation the leading activist theoretician, Ronald Dworkin, held with a framer of the Fourteenth Amendment about segregation: “I don’t know what the right answer is to the question of what we’ve done . . . Nor do I, as it happens, have any particular preferences myself, either way, about segregated schools. I haven’t thought much about that either.” 42 To change existing practices, particularly in the internal zone left to the States, the federal draftsmen minimally must exhibit a purpose to do so.43 Ignorance of, or indifference to, such practices does not spell a purpose to alter them. Dworkin’s imaginary framer must have lived in an airtight cocoon to be oblivious to an issue that reached to the very wellsprings of the pervasive racism.44 With William James, we should worry about “the presumptuous arrogance of theories that ignore, even disdain, the concreteness of mere fact.” 45 Activist criticism of originalism is generally akin to Dworkin’s reverie: fantasizing opposed to concrete fact. Of earlier criticism Lord (Max) Beloff, an Oxford emeritus and longtime student of American constitutionalism, wrote in a review of my book in the Times of London, “The quite extraordinary contortions that have gone into proving the contrary make sad reading for those impressed by the high quality of American legal-historical scholarship.” 46

I came to my study of the Fourteenth Amendment in the service of no other cause than the integrity of constitutional construction. For that purpose I sought to ascertain what the framers sought to accomplish, being without preconceptions as to what the Amendment ought to mean.47 The Constitution, remarked Paul Brest, “lies at the core” of our “civil religion”;48 until it is changed by amendment, the people are free to govern their own destiny, not to be ruled by “Platonic Guardians” who often are creatures of political accident, virtually irremovable and irreversible. Activist fulminations have not shaken the hope, in the words of Samuel Johnson, that “the most obdurate incredulity may be shamed or silenced by facts.” 49 The facts will speak for themselves long after the present controversialists are gone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My view, echoing that of Justice Harlan, is that the framers excluded suffrage from the Fourteenth Amendment. Consideration of the opposing view will be facilitated by encapsulating a few striking evidential items. Section 2 of the Amendment provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionately reduced. Senator William Fessenden, chairman of the Joint Committee on Reconstruction, explained that this “leaves the power where it is but tells them [the States] most distinctly, if you exercise the power wrongfully, such and such consequences will follow.1 Senator Jacob Howard of Michigan, to whom it fell to explain the Amendment because of Fessenden’s illness, said,

In consequence the committee recommended Section 2 because it “would leave the whole question with the people of each State.” 3 It was this “gap” in the Fourteenth Amendment that led to the adoption of the Fifteenth, which prohibited discrimination with respect to voting on racial grounds.4 The Fifteenth, the Supreme Court said, testifies that suffrage was not conferred by the Fourteenth Amendment.5 Justly did Justice Harlan conclude after his own exhaustive survey of the debates that the evidence was “irrefutable and still unanswered.” 6 Commentators are widely agreed that suffrage was excluded from the reach of the Fourteenth Amendment.7

My reliance on Senator Howard and others indicates to William Nelson that I read “the intention of the authors and ratifiers of the Fourteenth Amendment narrowly,” that is, as “not intended . . . to grant blacks voting rights.” 8 Yet he notes that “the statement most frequently made in debates on the Fourteenth Amendment is that it did not, in and of itself, confer upon blacks . . . the right to vote.” 9 The saving phrase “in and of itself” presumably reflects his fondness for newspaper articles, which prompted him to criticize Alexander Bickel because “Bickel did not spend time examining newspapers systematically,” 10 as if such articles could overcome unequivocal statements in the debates.11

More noteworthy are the comments by Chief Justice Warren and Justice Brennan. “The conception of political equality,” said Warren, “can mean only one thing—one person–one vote.” 12 The framers, however, made unmistakably plain that control of suffrage was to be left to the States notwithstanding their provision for “equal protection.” Thus Warren fashioned a principle to override the unmistakable will of the framers. In the eyes of Justice Brennan, the historical record is “vague and imprecise”;13 hence he reasons that “Recognition of the principle ‘one man, one vote’ as a constitutional one redeems the promise of self-governance by affirming the essential dignity of every citizen to equal participation in the democratic process.” 14 In their exercise of actual “self-governance,” the people adopted the Fifteenth, Sixteenth, and Twenty-sixth Amendments, thereby adjudging that expansion of federal jurisdiction over suffrage required action by the people themselves, never mind the demands of “dignity.” Brennan’s attachment to “human dignity” led him to pronounce that it is offended by capital punishment, though he acknowledges that neither the majority of the people nor that of the Court share his view.15 For him the clear implication of the due process clauses that life may be taken after a fair trial is of no moment. In the face of the ineluctable facts, the conclusions of Warren and Brennan seem to me perverse.

Mention of the Fifteenth Amendment recalls John Hart Ely’s assertion that adoption of that Amendment is “extremely damaging . . . to Berger’s general claim of the dominance of ‘Negrophobia.’ ” 16 Instead of testifying to abatement of racial prejudice, the Fifteenth Amendment was a response to shifting political exigencies. The primary goal, William Gillette concluded, was enfranchisement of Negroes “outside the deep South” in order to obtain the necessary swing votes of Negroes in the North. A secondary objective, he found, “was to protect the southern Negro against future disfranchisement,” 17 for it had become apparent that military occupation must come to an end and continued control must rest on Negro voters, who would help perpetuate Republican ascendancy.18 Thaddeus Stevens, leader of the Radicals, therefore began drafting the Amendment “to save the Republican party from defeat.” 19 Senator Oliver Morton of Indiana, who had opposed Negro suffrage, now embraced it “as a political necessity.” 20 With Negro votes the Republicans could hope to stay in power, the primary aim from the very beginning.21 Contrast Ely’s denial of “the dominance of ‘Negrophobia’ ” with the 1869 statement by Senator Henry Wilson, the Massachusetts Radical: “There is not today a square mile in the United States where the advocacy of the equal rights and privileges of those colored men has not been in the past and is not now unpopular.” 22 So much, then, for activist denials that suffrage was excluded from the Fourteenth Amendment.

My demonstration in 1977 that the framers excluded segregated schools from the scope of the Fourteenth Amendment prompted Paul Brest to brand me as a “racist” who “persistently distorted [the historical data] to support his thesis.” 1 Aviam Soifer followed suit, emphasizing “how badly Berger misuses historical materials”;2 and William Wiecek charged me with “rap[ing] rather than respect[ing] Clio.” 3 Unmistakably, however, the North was firmly opposed to unsegregated schools.4 Many commentators, among them leading activists, now agree that the Fourteenth Amendment left segregation untouched.5 For example, Michael Perry noted that “Berger made it painfully clear that the framers of the Fourteenth Amendment did not mean to prohibit segregated public schooling, (or segregation generally) . . . [a] tragic morally indefensible consensus.” 6 Let me add some evidence.

When the District of Columbia schools were under discussion in 1860, Senator James Harlan of Iowa protested,

That prejudice persisted during the Civil War. Congress had “permitted segregated schools in the District of Columbia”;8 and Senator Charles Sumner vainly sought “to abolish segregated schools in the District.” 9 How can it be assumed that the self-same Congress would require the States to adopt the very desegregated schools which it refused to allow in the District?10 Such an assumption is precluded by James Wilson’s assurance that the Civil Rights Bill did not require that all “children should attend the same schools.” 11

The persistent acceptance of segregated schools in the North is further evidenced by the history of the Civil Rights Act of 1875. Although the Act prohibited discrimination with respect to inns, public conveyances, and theaters, Congress, despite Sumner’s unflagging efforts, rejected a ban against segregated schools.12 Senator Aaron Sargent of California urged that the common school proposal would reinforce “what may be perhaps an unreasonable prejudice, but a prejudice nevertheless—a prejudice powerful, permeating every part of the country, and existing more or less in every man’s mind.” 13 In the House, William Phelps of New Jersey stated, “You are trying to legislate against human prejudice, and you cannot do it. No enactment will root out prejudice, no bayonet will prick it. You can only educate away prejudice.” 14

Nor should we congratulate ourselves on greatly improved race relations. Arthur Schlesinger, Jr., considers that racism remains “the still crippling disease of American life.15 A liberal columnist, Tom Wicker, wrote that “the attitudes between the races, the fear and the animosity that exist today, are greater than, let us say, at the time of the Brown case, the famous school desegregation decision in 1954.” 16 Roger Wilkins, a black commentator, noted that “the attitude of whites towards blacks is basic in this country, and that attitude has changed for the worse.” 17 Such citations can be multiplied. They caution academe against reading back its sentiments into the minds of the 1866 framers. As Peter Gay observed, one who approaches “empirical data . . . by way of a preconceived theoretical bias” is “a poor historian.” 18

That observation and the foregoing history counsel us to reevaluate Plessy v. Ferguson.19Plessy has become a symbol of evil, but that is because we impose “upon the past a creature of our own imagining” instead of looking to “contemporaries of the events we are studying.20 “Separate but equal” was rooted in a harsh reality, noted by Alexander Bickel: “It was preposterous to worry about unsegregated schools . . . when hardly a beginning had been made at educating Negroes at all and when obviously special efforts, suitable only for the Negroes, would have to be made.” 21Plessy merely reiterated what an array of courts had been holding for fifty years.

Most post–Civil War decisions cited Roberts v. City of Boston,22 decided in 1849 by the Massachusetts Court per Chief Justice Lemuel Shaw. The school committee had ruled that the common good would be best promoted by maintaining separate primary schools for colored and for white children; the court held that the separation rule was “founded on just grounds of reason and experience.” 23 In 1850 the Ohio Supreme Court declared, “As a matter of policy it is unquestionably better that white and colored youth should be placed in separate schools.24 When the Fourteenth Amendment was invoked in 1871, the Ohio court declared that “Equality of rights does not involve the necessity of educating white and colored persons in the same school.” 25 The Nevada court held in 1872 that separate schools do not offend the Fourteenth Amendment,26 as did the California court in 1874.27 In 1874 the Indiana court held that the Constitution does not empower Congress “to exercise a general or special supervision over the states on the subject of education.” 28

These earlier cases were cited by Judge William Woods, soon to be elevated to the Supreme Court, in an 1887 Federal circuit court case which held that separate schools for blacks did not constitute a denial of “equal protection.” 29 Passing on a New York statute of 1864, the New York court noted in 1883 that separate schools obtain generally in the states of the Union, and do not offend equal protection.30 Thus Plessy was faithful to the framers’ design and rested on a long train of cases. We need to recall Huxley’s admonition that scientists “respect nothing but evidence” and believe that “their highest duty lies in submitting to it, however it may jar against their inclinations.” 31 Are we to demand less of judges?

We should not leave the issue of segregation without taking note of Robert Bork’s view that the “result in Brown is . . . compelled by the original understanding of the fourteenth amendment’s equal protection clause.” 32 That is a remarkable conclusion. He himself recounts that “no one then imagined that the equal protection clause might affect school segregation.” 33 Further, he observes that an “inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in every aspect of life.” 34 And he acknowledges “That the ratifiers probably assumed that segregation was consistent with equality, but they were not addressing segregation.” 35 “The text itself,” he argues, “demonstrates that equality under law was the primary goal, for it alone was written into the text.” 36 Thus his conclusion that “equal protection” overturned an established State institution—segregation—in the North as well as the South rests entirely on the fact that “equal protection” alone “was written into the text.” 37 There was no need, however, to write segregation into the text because confessedly “no one then imagined that the equal protection clause might affect school segregation.” Why provide against the unimagined?

To overturn the established State control of segregation, the silence of the framers is not enough; minimally there must be an express intent to do so. Pierson v. Ray makes the point.38 It arose under §1983, which provided that “every person who deprives another of his civil rights” shall be liable. At issue was whether a judge was a “person” within the meaning of the Act. To abolish the common law immunity of judges from suits for acts performed in their official capacity, the Court required a specific provision. Before a State’s control over its own residents is curtailed, an equally exacting standard should be demanded.39

There is positive evidence that there was no design to impose segregation on the States. Segregated schools were deeply entrenched in the North. The climate of opinion is reflected by the objection of Senator James Harlan in 1860, when the District of Columbia schools were under discussion, to the association of colored children with white in the same schools.40 Despite Senator Charles Sumner’s unflagging efforts to abolish segregated schools in the District,41 Congress maintained them. It can hardly be assumed that by the word equal Congress intended to require the States to adopt the very desegregated schools that it refused to institute in the District of Columbia. Indeed, James Wilson, chairman of the House Judiciary Committee, assured the House that the Civil Rights Bill did not require “that in all things . . . all citizens . . . shall be equal,” instancing that it did not require that “their children shall attend the same schools.” 42

Nor was “equal protection” conceived in all-encompassing terms. Ely considers the words “inscrutable.” 43 Bork himself remarks that to view the words “equal protection” as “general” is “to leave the judges without guidance.” 44 That is not his aim; he considers the “general” provision to be limited in terms of the primary purpose of the ratifiers—equality.45 This is circular reasoning—equal is equal. History discloses a more limited purpose. David Donald, a Reconstruction historian, wrote, “the suggestion that Negroes should be treated as equals to white men woke some of the deepest and ugliest fears in the American mind.” 46 George Julian, the Indiana Radical, reflecting widespread opinion, said, “the trouble is we hate the Negro.” 47 Although Senator Sumner maintained that suffrage was “the only sufficient guarantee,” 48 it was excluded from the Amendment; and the framers repeatedly rejected proposals to ban all discrimination.49

The fact is that the framers restricted “equality” to a few specified State-created rights. Let me begin with the Civil Rights Bill of 1866, the history of which is highly germane because the framers, without dissent, regarded the Fourteenth Amendment as “identical” with the Bill.50 It was designed to protect the Bill from repeal by embodying it in the Amendment. Justice Bradley, a contemporary, declared that “the first section of the Bill covers the same ground as the Fourteenth Amendment.” 51 Senator William Stewart explained that the Bill was designed “simply to remove the disabilities” imposed by the Black Codes, “tending to reduce the negro to a system of peonage . . . It strikes at that, nothing else.” 52 To enable the freedmen to exist, the Bill banned discrimination with respect to the right to own property, to contract, and to have access to the courts,53 rights that the Supreme Court, after canvassing the legislative history, described in 1966 as “a limited category of rights.” 54 Samuel Shellabarger explained that the Bill secures “ equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” 55 Leonard Myers stated that the Amendment was needed “to provide equal protection to life, liberty and property, to sue and be sued, to inherit, to make contracts.” 56 Thus was “equal protection” wedded to the “limited category of rights” enumerated in the Civil Rights Bill.

Because Bork overlooked the framers’ limited conception of “equality,” he concluded that “equality and segregation were mutually inconsistent,” leaving the courts free to choose between them.57 The framers, however, as Bork notes, “assumed that equality and state-compelled separation of the races were consistent,” 58 a perfectly rational assumption given their limited conception of “equal protection.”

Judge Posner and Lino Graglia agree that Bork’s version of originalism is quite flexible, and Graglia notes that Bork defines originalism “in a way that leaves judges with overly broad discretion.” 59 For my part, the framers’ incontrovertible exclusion of suffrage from the Fourteenth Amendment, for example, leaves no room for judicial “flexibility.” So too, Bork finds “majestic generalities” in the Constitution, which Graglia justifiably describes as “the first step toward an expansive view of judicial power.” 60 Neither “due process” nor “privileges or immunities” were “majestic generalities”; each had an historically limited content. And equal protection, the legislative history discloses, was also meant to have limited scope.

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

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

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

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

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

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

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

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

Let me briefly note that the “privileges or immunities” clause was borrowed from Article IV, which had been construed to allow a visitor from one State to engage in trade or commerce in another.46 A Report of the House Committee on the Judiciary submitted in 1871 by John Bingham recited that the Fourteenth Amendment “ did not add to the privileges or immunities” of Article IV.47 The report also quoted Daniel Webster’s emphasis that Article IV put it beyond the power of any State to hinder entry “for the purposes of trade, commerce, buying and selling.” 48 And in a decision contemporary with the Amendment, the Court said in Minor v. Happersett49 that “The Amendment did not add to the privileges or immunities of a citizen.”

A word about Justice Cardozo’s statement in Palko v. Connecticut50 that there are principles—among them free speech— “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Unhappily, Madison’s proposal that the First Amendment’s “free speech” be extended to the States was rejected.51 That which the Framers rejected cannot be regarded as part of our tradition. Finally, like Marshall before him, Justice Samuel Miller, a sagacious observer of the political scene, rebuffed in the Slaughter-House Cases52 a construction of the Fourteenth Amendment that would subject the States “to the control of Congress in the exercise of powers heretofore universally conceded to them” in the absence of “language which expressed such a purpose too clearly to admit of doubt.” 53 Special force attaches to this statement with respect to “incorporation” of the Bill of Rights, for, apart from the remarks of Bingham and Howard, it is without footing in the debates and the text of the Amendment.

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

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

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

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

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

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

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

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

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

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

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

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