Government by Judiciary. Raoul Berger

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. Happersett ⁴⁹ that “The Amendment did not add to the privileges or immunities of a citizen.”

      A word about Justice Cardozo’s statement in Palko v. Connecticut ⁵⁰ 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 Cases ⁵² 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,

      They are nevertheless to be enforced and observed in the States by the grand utterance of that immortal man [Daniel Webster] who, while he lived, stood alone in his intellectual power among the living men of his country, and now that he is dead, sleeps alone in his honored tomb by the sounding sea.⁶³

      He was ever intoxicated by his own rhetoric. Webster, of course, would not conceive that his statement would override a Supreme Court decision. And the “grand utterance” cited by Bingham had no more to do with the case than the flowers that bloom in the spring.

      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