Government by Judiciary. Raoul Berger

      In its transformation of the Fourteenth Amendment, the Court has soared beyond the confines of the Bill of Rights to fashion a congeries of individual rights undreamed of by the Founders. Sir William Holdsworth “continually insisted . . . that when people in the seventeenth century [to which the Founders looked] talked about fundamental rights or laws they meant the rights which the existing law gave them.” ⁸¹ When Samuel Adams claimed “the primary, absolute, natural rights of Englishmen,” he listed the Blackstonian trio, “Personal Security, Personal Liberty and Private Property,” ⁸² liberty being defined by Blackstone as unrestrained freedom to come and go.⁸³ An activist, Alfred Kelly, concluded that

      The “rights of Englishmen” were not vacuous; instead they were quite well defined and specific. The notion of pulling new natural rights from the air to allow for indefinite expansion can hardly be considered to be within the original spirit of the [Fourteenth] Amendment.⁸⁴

      It is still less within the spirit of the Founders. When the Bill of Rights was added, it largely responded to British excesses before and during the Revolutionary War—free speech, quartering of soldiers, unreasonable searches and seizures, the right to bear arms, and sundry procedural provisions to ensure fair trials. How activists can conjure out of these facts provision for illimitable individual rights passes understanding.⁸⁵

      Leading activists agree that the modern individual “rights” created by the Court are without foundation in the Constitution. Paul Brest acknowledged that “Fundamental rights adjudication is open to the criticism that it is not authorized and not guided by the text and original history of the Constitution.” ⁸⁶ The individual rights Michael Perry champions, he admits, are constructs of the modern Court.⁸⁷ Robert McCloskey, long a student of the Supreme Court, concluded that “during the past 30 years, the Court has built a whole body of constitutional jurisprudence in this field broadly called civil liberties almost out of whole cloth.” ⁸⁸ Activists, Henry Monaghan observed, “outdo one another in urging the imposition of constitutional constraints on the basis of ‘rights’ whose origins cannot be traced to either the constitutional text or the structure it created.” ⁸⁹

      There are signs on the horizon that a new day is dawning; the talismanic “liberty” is being viewed in more Blackstonian terms. First, the Court recalled that the core of “liberty is freedom from bodily restraint.” ⁹⁰ And Justice Scalia stressed that “Without that core textual meaning as a limitation, defining the scope of the Due Process Clause ‘had at times been a treacherous field for the Court,’ giving ‘reason for concern lest the only limits to . . . judicial intervention become the predilections of those who happened at the time to be Members of this Court.’ ” ⁹¹ Second, when rights have been claimed as “fundamental,” the Court has insisted that they “be an interest traditionally protected by our society.” ⁹² If the claim is novel, its “mere novelty . . . is reason enough to doubt that ‘substantive due process’ sustains it.” ⁹³ Third, “the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open ended . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” ⁹⁴ In sum, the Court is putting the brakes on fresh claims of rights unknown to the law.

      Finally, not enough attention has been paid to the impact of “incorporation” on the North, which was led to believe that the draftsmen were aiming at the South alone. “Disturbed by the revolutionary changes Sumner hoped to bring about in the South,” his biographer recounted, “Republican Congressmen were horrified when they learned that he proposed to extend them to the North as well.” ⁹⁵ There were few blacks, no Black Codes, no peonage in the North. Almost invariably references in the debates were to oppression in the South, harassment of whites who came South. Congressman William Kelley complained that “Northerners could go South but once there they could not express their thoughts as freemen.” ⁹⁶ Article IV, however, conferred on visitors only the privileges enjoyed by residents, and they criticized slavery at their peril. Richard Yates asked in the Senate, “Do you suppose any of you can go South and express your sentiments freely and in safety?” ⁹⁷ Columbus Delano pointed out that “the first section [of the Amendment] was made necessary by the perilous position of Northern men and loyal Southerners in the South.” ⁹⁸ Michael Curtis himself observed that “Republican congressmen typically insisted on protection of individual liberty . . . in the South.” ⁹⁹ A “particularly telling passage,” Michael Zuckert exclaims, is James Wilson’s statement that blacks “must have the same liberty of speech in any part of the South as they have always had in the North.” ¹⁰⁰ This statement is indeed “telling”; what it tells us is that the authors of the Fourteenth Amendment believed that the North would not be affected by the Amendment.

      There is proof positive that intervention in Northern affairs was not contemplated. Senator Trumbull said, “This bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property. It would have no operation in Massachusetts, New York, Illinois, or most of the States of the Union.” ¹⁰¹ John Bingham, a mainstay of the activist cause, assured the House that “under no possible interpretation can [the Fourteenth Amendment] ever be made to operate in the State of New York while she occupies her present proud position.” ¹⁰² Referring to the Southern laws that “reduce the negro to a system of peonage,” Senator William Stewart said that if all the Southern States would repeal such laws, the Civil Rights Bill would “simply be a nullity,” it would have “no operation.” ¹⁰³ After sifting the ratification materials, Joseph James concluded, “wherever the framers discussed the amendment, it was presented as a necessary limitation to be placed on the South.” ¹⁰⁴ No activist has explained why, in light of this limited purpose, the framers decided to take from the North control in large part of its internal affairs.