Government by Judiciary. Raoul Berger

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