Government by Judiciary. Raoul Berger

constitutional dogma in order to halt the spread of “socialism.” ⁸ With Brahmin restraint, Justice Holmes commented, in fear of socialism, “new principles had been discovered outside the bodies of those instruments [constitutions] which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago.” ⁹ In the economic sphere that finally made due process a “dirty phrase.” ¹⁰ The logic whereby that process becomes sanctified when employed for libertarian ideals has yet to be spelled out.¹¹ Logic, it is true, must yield to history, but history affords the Court even less support than logic.

Commentary on the Court’s decisions frequently turns on whether they harmonize with the commentator’s own predilections. My study may be absolved of that imputation: I regard segregation as a blot on our society,¹² and before I began to study the reapportionment issue I was taken with the beguiling slogan “one man, one vote.” But almost thirty-five years ago I wrote of a decision that responded to my desires that I liked it no better when the Court read my predilections into the Constitution than when the Four Horsemen read in theirs.¹³ Against the fulfillment of cherished ideals that turns on fortuitous appointments must be weighed the cost of warping the Constitution, of undermining “the rule of law.” The Court has shown in the past that the Constitution can also be twisted to frustrate the needs of democracy.¹⁴ These statements raise a congeries of questions which have been the subject of interminable controversy to which Part II is addressed.

The task here undertaken is that of an historian, to attempt accurately and faithfully to assemble the facts; that effort constitutes its own justification. For a decade the revisionist historians¹⁵ have been engaged in what has been described as an “extraordinary revolution in the historiography” of Reconstruction,¹⁶ throwing fresh light on the reasons for its limited objectives and its failure. To some extent the legal studies of Charles Fairman in 1949 and Alexander Bickel in 1955¹⁷ had shown that the objectives of the framers of the Fourteenth Amendment were limited. Like the revisionist historians, a lawyer too may take another look after the passage of about a quarter-century. Despite the wilderness of commentary, largely devoted to the due process clause, the historical warrant for desegregation, reapportionment, and incorporation of the Bill of Rights in the due process clause remains controversial.¹⁸ Little analysis has been devoted to the role of the privileges or immunities clause in the original scheme of things;¹⁹ nor have studies of the equal protection and due process clauses adequately explored what those terms meant to the framers.

In reconstructing the past, historians generally are compelled to rely on accounts written after the event by participants and witnesses, or on the hearsay versions of those who learned at second-hand what had occurred. Such writings are subject to the infirmities of recollection, or of bias arising from allegiance to one side or the other. The historical records here relied on—the legislative history of the Fourteenth Amendment—are of a far more trustworthy character, being a stenographic transcription of what was said in the 39th Congress from day to day by those engaged in framing the Amendment. It is a verbatim account of what occurred, recorded while it was happening, comparable to a news film of an event at the moment it was taking place and free from the possible distortion of accounts drawn from recollection or hearsay. What men say while they are acting are themselves facts, as distinguished from opinions about facts.²⁰ Such statements constitute a reliable record of what happened as the Amendment was being forged by the framers.

It needs to be emphasized that the records of the 39th Congress are free from the reproach often leveled at legislative history—that it is “enigmatic.” A statement such as that of Charles P. Curtis, “It is a hallucination: this search for intent. The room is always dark” ²¹ simply cannot stand up against these records. Instead of sparse, cryptic remarks there are, for example, with respect to suffrage, the unequivocal Joint Report of the Committee on Reconstruction which drafted the Amendment; explanations of the Amendment and the antecedent Civil Rights Act of 1866 by the committee chairmen who had them in charge, and by other members of the committees; statements by leaders of the Republican Party which sponsored both, accompanied by a virtually unanimous chorus of fellow Republicans. These are commonly regarded as the best evidence of legislative “intention.” ²² Then there are repeated rejections, by heavy pluralities, of extremist efforts to put through legislation or amendments that would confer suffrage. Thus, the records richly confirm Justice Harlan’s comment: “The history of the Fourteenth Amendment with respect to suffrage qualifications is remarkably free of the problems which bedevil most attempts to find a reliable guide to present decision in the pages of the past. Instead, there is virtually unanimous agreement, clearly and repeatedly expressed, that §1 of the Amendment did not reach discriminatory voter disqualifications.” ²³

In short, the proof is all but incontrovertible that the framers meant to leave control of suffrage with the States, which had always exercised such control, and to exclude federal intrusion. On traditional canons of interpretation, the intention of the framers being unmistakably expressed, that intention is as good as written into the text.²⁴ It is, therefore, as if the Amendment expressly stated that “control of suffrage shall be left with the States.” If that intention is demonstrable, the “one man, one vote” cases represent an awesome exercise of power, an 180-degree revision, taking from the States a power that unmistakably was left to them. That poses the stark issue whether such revisory power was conferred on the Court. Because the “intention” of the framers is so crucial to examination of this issue, because a commentator should not pit his mere ipse dixit against the Court’s finding, for example, that the historical evidence respecting desegregation is inconclusive, it is not enough to retort that the evidence is overwhelming. It is necessary to pile proof on proof, even at the risk of tedium, so that the reader may determine for himself whether it is overwhelming or inconclusive.

Whether the “original intention” of the framers should be binding on the present generation—a question hereafter discussed—should be distinguished from the issue: what did the framers mean to accomplish, what did the words they used mean to them. That must be the historical focus, not what we should like the words to mean in the light of current exigencies or changed ideals. In the words of the eminent British historians H. G. Richardson and G. O. Sayles, “We must learn, not from modern theorists, but from contemporaries of the events we are studying.” We should not impose “upon the past a creature of our own imagining.” ²⁵ One hundred and fifty years earlier Justice James Iredell, one of the first Founders to spell out the case for judicial review, stated, “We are too apt, in estimating a law passed at a remote period, to combine in our consideration, all the subsequent events which have had an influence upon it, instead of confining ourselves (which we ought to do) to the existing circumstances at the time of its passing.” ²⁶

In an area of warring interpretations no useful purpose is served by delivering another ex cathedra opinion.²⁷ A commentator should spread before the reader the evidence on which his opinion is based and comment both on discrepant evidence and on opposing inferences.²⁸ Consequently, a polemical tone is inescapable; a student of history can no more avoid criticism of views which seem to him erroneous than did the chemists who disputed the tenability of the phlogiston theory of combustion. To avoid that responsibility is to court the charge of ignoring an influential body of contrary opinion, of selecting only the evidence that advances one’s own argument, and, even worse, to cast the reader adrift on a sea of conflicting opinions.

Now that the dust has settled, a synthesis of the historical materials that bear on the three controversial areas will furnish some cross-illumination. No synthesis need undertake to trace in complete detail the development of the Amendment and its antecedent bills. Not only is there no need to duplicate the chronological labors that others have already performed, but to do so is to risk swamping the reader in a mass of detail that is bewildering rather than illuminating.²⁹ Instead my effort will be to focus on the facts that seem to me crucial, to take account of discrepant facts, and to analyze views that are opposed to mine.

Following the lead of Howard Jay Graham and Jacobus tenBroek,³⁰ academicians have shown a growing tendency to attribute to