Government by Judiciary. Raoul Berger

to read those conceptions of substantive due process and equal protection into the Amendment. Noble enthusiasm is no less prone to distort the vision than vulgar prejudice. In evaluating the historical facts we do well to bear in mind Flaubert’s view that “personal sympathy, genuine emotion, twitching nerves and tear-filled eyes only impair the sharpness of the artist’s vision.” ³¹ Even more, the historian, in the words of C. Vann Woodward, has “a special obligation to sobriety and fidelity to the record.” ³²

       Background

The key to an understanding of the Fourteenth Amendment is that the North was shot through with Negrophobia, that the Republicans, except for a minority of extremists, were swayed by the racism that gripped their constituents rather than by abolitionist ideology. At the inception of their crusade the abolitionists peered up at an almost unscalable cliff. Charles Sumner, destined to become a leading spokesman for extreme abolitionist views, wrote in 1834, upon his first sight of slaves, “My worst preconception of their appearance and their ignorance did not fall as low as their actual stupidity . . . They appear to be nothing more than moving masses of flesh unendowed with anything of intelligence above the brutes.” ³³ Tocqueville’s impression in 1831–1832 was equally abysmal.³⁴ He noticed that in the North, “the prejudice which repels the negroes seems to increase in proportion as they are emancipated,” that prejudice “appears to be stronger in the States which have abolished slavery, than in those where it still exists.” ³⁵

Little wonder that the abolitionist campaign was greeted with loathing! In 1837 Elijah Lovejoy, an abolitionist editor, was murdered by an Illinois mob.^35a How shallow was the impress of the abolitionist campaign on such feelings is graphically revealed in a Lincoln incident. A delegation of Negro leaders had called on him at the White House, and he told them,

There is an unwillingness on the part of our people, harsh as it may be, for you free colored people to remain with us . . . [E]ven when you cease to be slaves, you are far removed from being placed on an equality with the white man . . . I cannot alter it if I would. It is a fact.³⁶

Fear of Negro invasion—that the emancipated slaves would flock north in droves—alarmed the North.³⁷ The letters and diaries of Union soldiers, Woodward notes, reveal an “enormous amount of antipathy towards Negroes”; popular convictions “were not prepared to sustain” a commitment to equality.³⁸ Racism, David Donald remarks, “ran deep in the North,” and the suggestion that “Negroes should be treated as equals to white men woke some of the deepest and ugliest fears in the American mind.” ³⁹

One need not look beyond the confines of the debates in the 39th Congress to find abundant confirmation. Time and again Republicans took account of race prejudice as an inescapable fact. George W. Julian of Indiana referred to the “proverbial hatred” of Negroes, Senator Henry S. Lane of Indiana to the “almost ineradicable prejudice,” Shelby M. Cullom of Illinois to the “morbid prejudice,” Senator William M. Stewart of Nevada to the “nearly insurmountable” prejudice, James F. Wilson of Iowa to the “iron-cased prejudice” against blacks. These were Republicans, sympathetic to emancipation and the protection of civil rights.⁴⁰ Then there were the Democratic racists who unashamedly proclaimed that the Union should remain a “white man’s” government.⁴¹ In the words of Senator Garrett Davis of Kentucky, “The white race . . . will be proprietors of the land, and the blacks its cultivators; such is their destiny.” ⁴² Let it be regarded as political propaganda, and, as the noted British historiographer Sir Herbert Butterfield states, it “does at least presume an audience—perhaps a ‘public opinion’ —which is judged to be susceptible to the kinds of arguments and considerations set before it.” ⁴³ Consider, too, that the Indiana Constitution of 1851 excluded Negroes from the State, as did Oregon,⁴⁴ that a substantial number of Northern States recently had rejected Negro suffrage,⁴⁵ that others maintained segregated schools.⁴⁶ It is against this backdrop that we must measure claims that the framers of the Fourteenth Amendment swallowed abolitionist ideology hook, line, and sinker.⁴⁷

The framers represented a constituency that had just emerged from a protracted, bitterly fought war, a war that had left them physically and emotionally drained. It had begun with a commitment to save the Union and had gone on to emancipate the slaves. Now the war-weary North was far from anxious to embark on fresh crusades for the realization of still other abolitionist goals.⁴⁸ While emancipation largely hit slavery in the South, eradication of inequality, as Vann Woodward remarked, required “a revolution for the North as well,” ⁴⁹ a revolution for which most Republicans were utterly unprepared. Then too, the fact that Republicans and Democrats had been pretty evenly matched over the years, that some districts definitely were swing areas, led Republicans in those areas to be cautious of affronting their constituents.⁵⁰ Many moderate and conservative Republicans, as we shall see, were acutely aware of the impact on elections of sweeping radical claims for political, let alone social, equality for the blacks.⁵¹ While most men were united in a desire to protect the freedmen from outrage and oppression in the South by prohibiting discrimination with respect to “fundamental rights,” without which freedom was illusory, to go beyond this with a campaign for political and social equality was, as Senator James R. Doolittle of Wisconsin confessed, “frightening” to the Republicans who “represented States containing the despised and feared free negroes.” ⁵²

      A striking reflection of Northern sentiment was furnished by Thaddeus Stevens, the foremost Radical leader. According to his biographer, Fawn M. Brodie, he

sensed . . . that talk of “social equality” was dangerous politics. When he heard that the ex-slave Frederick Douglass . . . had paraded arm-in-arm with editor Theodore Tilton, he wrote . . . “A good many people here are disturbed by the practical exhibition of social equality in the arm-in-arm performance of Douglass and Tilton. It does not become radicals like us to particularly object. But it was certainly unfortunate at this time. The old prejudice, now revived, will lose us some votes.” ⁵³

As Stevens revealed, most Republicans were politicians first and ideologues afterward.⁵⁴ Not civil rights for blacks but the dreaded take-over of the federal government by the South was their obsessive preoccupation. Emancipation brought the startling realization that Southern representation would no longer be limited in the House of Representatives to three-fifths of the blacks, as article I, §3, provided. Now each voteless freedman counted as a whole person; and in the result Southern States would be entitled to increased representation and, with the help of Northern Democrats, would have, Thaddeus Stevens pointed out at the very outset of the 39th Congress, “a majority in Congress and in the Electoral College.” With equal candor he said that the Southern States “ought never to be recognized as valid States, until the Constitution shall be amended . . . as to secure perpetual ascendancy” to the Republican party.⁵⁵ The North had not fought and quelled rebellion in order to surrender the fruits of victory to the unrepentant rebels. How to circumvent this possibility was the central concern of the Republicans, and it found expression in §2 of the Fourteenth Amendment, which reduced representation in proportion as the right to vote was denied or abridged. Unless we seize hold of the fact that, to borrow from Russell R. Nye, “what lies beneath the politics of the Reconstruction period, so far as it touched the Negro, is the prevailing racist policy tacitly accepted by both parties and by the general public,” ⁵⁶ we shall fail to appreciate the limited objectives of the Fourteenth Amendment. That is the reality underlying the limited purposes of the framers of the Fourteenth Amendment, and which circumscribes the so-called “generality” of “equal protection” and “due process.”

Proponents of a broad construction of the Amendment have assumed that advocates of a restricted construction have the burden of proving that the framers’ objectives were limited. The shoe is on the other foot; an interpretation that invades what had long been considered the exclusive province of the States, as, for example, criminal procedure, requires some justification. It is not enough in that situation that the words are capable of a broad meaning; the reservation to the States in the Tenth Amendment of powers not delegated to the