Government by Judiciary. Raoul Berger

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

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

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

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

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

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

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

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

      The activist “historian” Michael Curtis observed that the framers made “explicit provision” for three distinct changes in existing law. They overruled Dred Scott and made a native born black a citizen; they provided for State due process; and they provided that no State could abridge the “privileges or immunities” of a United States citizen.⁴⁰ Curtis himself was moved to ask “why ‘the Bill of Rights’ was not explicitly written into the Fourteenth Amendment, as due process and citizenship were.” ⁴¹ In the weird and wonderful