Government by Judiciary. Raoul Berger

made by Fessenden and repeated by the radical leader Senator Benjamin Wade.⁶⁷ Now, after the compromise of such differences about known objectives, we are asked to infer that there was unquestioning acceptance of a sweeping, brand-new element, which had received no consideration whatever! Then too, others who spoke after Howard, repeated that the goal was legitimation of the Civil Rights Act. So, Senator Poland observed, “The clause . . . that ‘no State shall . . . abridge the privileges and immunities of citizens of the United States’ rsecures nothing beyond what was intended by the original [Article IV, §2] provision in the Constitution.” ⁶⁸ If this be not regarded as a delicately phrased repudiation of Howard’s addition, at the very least it exhibits a more limited view than that of Howard by a respected Republican.⁶⁹ Senator Doolittle stated that the Civil Rights Bill “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward.” ⁷⁰ Such reminders of known and limited objectives were designed to reassure those whose consent had thus far been won; and they rob Howard’s remark of uncontroverted standing.⁷¹

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

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

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

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

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

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

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

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

Supplementary Note on Incorporation

      For William Nelson, “the puzzle of incorporation of the Bill of Rights” has “plagued Fourteenth Amendment historiography for a century.” ¹ But arguments for “incorporation”