Government by Judiciary. Raoul Berger

Justice Henry B. Brown dissented, saying, “the decision involves nothing less than a surrender of the taxing power to the moneyed class . . . Even the spectre of socialism is conjured up.” 158 U.S. 601, 695 (1895). In 1893 Justice David J. Brewer referred to “ ‘the black flag of anarchism, flaunting destruction to property,’ and ‘the red flag of socialism, inviting a redistribution of property.’ ” XVI Proceedings of the N.Y. State Bar Association 37, 47 (1893), quoted in A. T. Mason, “Myth and Reality in Supreme Court Drama,” 48 Va. L. Rev. 1385, 1393 (1962). Such citations can be multiplied.

      Justice Black reminded the Court of “the extent to which the evanescent standards of the majority’s philosophy have been used to nullify state legislative programs passed to suppress evil economic practices.” Rochin v. California, 342 U.S. 165, 177 (1952), concurring opinion.

      9. Oliver Wendell Holmes, Jr., Collected Legal Papers 184 (1920).

      10. Herbert Packer, “The Aim of the Criminal Law Revisited: A Plea for a New Look at ‘Substantive Due Process,’ ” 44 S. Cal. L. Rev. 490 (1971). See infra Chapter 14 at notes 64, 77–78.

      11. See infra Chapter 14 at notes 80–90; and see Robert G. McCloskey, “Due Process and the Supreme Court: An Exhumation and Reburial,” 1962 S. Ct. Rev. 34, 44–45. Although McCloskey was very sympathetic to the Warren Court’s goals, he concluded that the distinction does not stand up. Id. at 51. Chief Justice Stone, wrote Learned Hand, “could not understand how . . . when concerned with interests other than property, the courts should have a wider latitude for enforcing their own predilections than when they were concerned with property itself.” Learned Hand, “Chief Justice Stone’s Conception of the Judicial Function,” 46 Colum. L. Rev. 696, 698 (1946).

      12. One reads with horror of the Negro lynchings and torture that found their way into the courts as late as 1938. Paul Murphy, The Constitution in Crisis Times, 1918–1969 95, 123 (1972).

      13. Raoul Berger, “Constructive Contempt: A Post Mortem,” 9 U. Chi. L. Rev. 602, 604–605, 642 (1942).

      14. For a withering condemnation of the Court’s antidemocritarian course before 1937, see Henry Steele Commager, “Judicial Review and Democracy,” 19 Va. Quarterly Rev. 417 (1943).

      15. W. R. Brock, Eric L. McKitrick, C. Vann Woodward, David Donald, Harold M. Hyman, Michael L. Benedict. Their works are listed in the bibliography.

      16. Alfred H. Kelly, “Comment on Harold M. Hyman’s Paper” in New Frontiers of the American Reconstruction 40 (Harold M. Hyman ed. 1966).

      17. C. Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stan. L. Rev. 5 (1949); Alexander Bickel, “The Original Understanding and the Segregation Decision,” 69 Harv. L. Rev. 1 (1955).

      18. See Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 132, 134–135; A. H. Kelly, “The Fourteenth Amendment Reconsidered: The Segregation Question,” 54 Mich. L. Rev. 1049, 1081 (1956); Howard J. Graham, Everyman’s Constitution 314 (1968); William W. Van Alstyne, “The Fourteenth Amendment, The ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” 1965 S. Ct. Rev. 33; Robert J. Harris, The Quest for Equality 55–56 (1960).

      19. The leading article, D. O. McGovney, “Privileges and Immunities Clause, Fourteenth Amendment,” 4 Iowa L. Bull. 219 (1918) states (at 222 note 2), “this essay . . . might have been entitled the Rule of the Slaughter-House Cases.”

      20. In Justice Holmes’ words, a “party’s conduct” may “consist in uttering certain words.” Oliver Wendell Holmes, Jr., The Common Law 132 (1923).

      21. “A Better Theory of Legal Interpretation,” 3 Vand. L. Rev. 407, 409 (1950).

      22. H. M. Hart and A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1266 (1958). Justice Frankfurter stated, “It has never been questioned in this Court that Committee reports, as well as statements by those in charge of a bill or of a report, are authoritative elucidations of the scope of a measure.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 399–400 (1951), dissenting opinion. See also Lusky 45.

      23. Oregon v. Mitchell, 400 U.S. 112, 200 (1970), dissenting opinion. Van Alstyne, who is critical of Justice Harlan’s view in Reynolds v. Sims (supra note 1), states: “in none of the other kinds of cases where it was brought to bear did it [the historical record] cast the kind of blinding light that Mr. Justice Harlan sees here.” Van Alstyne 36.

      24. “A thing may be within the letter of a statute and not within its meaning, and within its meaning though not within its letter. The intention of the lawmaker is the law.” Hawaii v. Mankichi, 190 U.S. 197, 212 (1903); United States v. Freeman, 44 U.S. (3 How.) 556, 565 (1845); United States v. Babbitt, 66 U.S. 55, 61 (1861); Matthew Bacon, A New Abridgment of the Laws of England, “Statutes” 1 (5) (7th ed. 1832); infra Chapter 9 note 22.

      25. “Parliament and Great Councils in Medieval England,” 77 L. Q. Rev. 213, 224 (1961). Miller and Howell label it an “historicist fallacy” to “appraise a former historical era by the criteria of values that have become important since.” Supra note 3 at 673.

      26. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 267 (1796). In “the construction of the language of the Constitution . . . as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.” Ex parte Bain, 121 U.S. 1, 12 (1887).

      27. It is unsatisfying to have the fastidiously detailed study of Fairman dismissed with the phrase that it is “in the opinion of this writer against the weight of the evidence.” Kelly, Fourteenth 1081 note 106. As will develop, Kelly was altogether wrong.

      28. Sir Herbert Butterfield, George III and the Historians 225 (1969).

      29. See Bickel; Joseph B. James, The Framing of the Fourteenth Amendment (1956); and Horace Flack, The Adoption of the Fourteenth Amendment (1908). Walter Bagehot considered that “history should be like a Rembrandt etching, casting a vivid light on important causes and leaving all the rest unseen, in shadow.” Quoted in Van Wyck Brooks, Days of the Phoenix 135 (1957).

      30. Graham; Jacobus tenBroek, Equal Under Law (1965). For discussion of the Graham-tenBroek neoabolitionist theory, see infra Chapter 13.

      31. 4 Arnold Hauser,