Chapter 4

The Constitutional Word Incarnate:

The Ends and the Means of the Fourteenth Amendment

 

I.  The Fourteenth Amendment in the Moment: Dealing with the South

 

What exactly was the Fourteenth Amendment supposed to do – not in 1868, but in the future of American constitutionalism?  Understandably, the question was slow to appear in the years following the Civil War and Reconstruction Era.  In the 1860s, the structure and purpose of the Amendment was determined by immediate needs: it was critical that the Constitution empower Congress “to enforce, by appropriate legislation, the provisions of this article,” to decisively bring the South back into the Union, and bring Southern Society into line accordingly.  The hostility in the South was predictable.  One Southern protestor, a certain “G.T.C,” wrote in The Round Table in 1868 that “without scruple, straight to its object, and directly athwart the sovereign rights of those peoples, the Radical Congress moved in a solid phalanx to the accomplishment of its purpose, and crushed out beneath the heel of military power the very political and sovereignty which it should have respected as constituting the state.” Even more horrific for Southern sensibilities was the policy of “equalizing” the races.  It was an impossible thing for the South, so convinced it was that “there is to be subordination of one race to the other,” he wrote – and that Reconstruction could only mean its turn to be dominated had come.  This was the disruption of a critical social hierarchy for most Southerners; they were sure that freedmen could not possibly use their new voting rights merely for their own interests, and an equal station as citizens; given their condition of slavery, it was perfectly logical to assume that they would use whatever political power they could find to strike back in any number of horrific ways, allowing African Americans “to wield an undue proportion of political power,” and “hold a majority of the whites in a condition of disenfranchisement just so long as they please.”[1] Much like President Johnson’s veto of the Civil Rights Act in 1866, these circumstances also revealed the need for a carefully crafted amendment that would make the precepts of republicanism clear – a system that guarantees the equal rights of all sides, rather than allowing the proverbial “oppressed to become the oppressors.”

 

The difficulty of framing the Fourteenth Amendment came above all from the urgency of the task.[2] Looking back on the critical days, Congressman James G. Blaine, who had opposed many of the Radical policies for a more moderate approach, still admitted that it was “not uncharitable or illogical to assume that the ultimate reenslavement of the race was the fixed design of those who framed the [Jim Crow] laws, and of those who attempted to enforce them.” The only way to prevent this, beyond the Thirteenth Amendment, was to grant a basis for liberty that was far broader than the immediate problem – and to do so quickly, completely, and decisively.  Legislative action had to happen before Southern states could escape the Union’s intent for the nation; at the same time, though, they had to ensure a just and fair new solution.  Plainly, these were not easy things to reconcile.  Such haste in the formation of a constitutional amendment would, no doubt, come with a great lack of foresight, especially when Congress proceeded on what Blaine thought to be inevitable circumstances.  “To restore the Union on a safe foundation,” he wrote, “to reestablish law and promote order, to insure justice and equal rights to all, the Republican party was forced to its Reconstruction policy,” i.e., forced by conditions in the South.  “To have destroyed the rebellion on the battlefield, and then permit it to seize the power of eleven States and cry check on all changes in the organic law necessary to prevent future rebellions, would have been a weak and wicked conclusion to the grandest contest ever waged for human rights and for constitutional liberty.”[3]

 

But, for all of their haste, the Fourteenth Amendment did feature a thoughtful and deliberate structure – at least for a society where the pre-modern assumptions about republicanism still prevailed.  Section One of the Amendment was, in truth, only half of is intent.  Far more important for the Reconstruction Congress was Section 2, which would base representation on “the whole number of persons” (rather than the previous three-fifths of the slaves); this, in turn, would bring greater representation of Republican interests in the House, and enable Congress to more fully realize its goals.  The importance of Section 2 was obvious “when South Carolinians by the hundreds were indicted for interfering with the freedom of elections in killing negroes by the score, it was found impossible to convict one them,” Blaine wrote.  “Against the clearest and most overwhelming evidence, those murderers were allowed to go free, and the prosecutions were abandoned.” Such horrors were plainly in defiance of the principles stated in Section One; but no amount of congressional power could actualize them on its own.  It required a method by which Congress could overcome these things.  It was the distinctly republican means to liberty – the very sort of active state liberalism that many state governments would later employ to remedy economic injustices.  But again, the necessary assumptions about republicanism – that there is a place for active state liberalism in the service of the right end, as my thesis holds – are the only ideas that make sense of the Amendment.

 

Section One did not occupy much time for the Reconstruction Congress, nor did Blaine have anything to say about it.  Yet the idea of Section One was abundantly present in Blaine’s words: “In a fair and generous struggle for partisan power let us not forget those issues and those ends which are above party.” Achieving those ends, though, meant that “the Republic must be strong enough, and shall be strong enough, to protect the weakest of its citizens in all of their rights.”[4] These claims are plainly full of ideas about “privileges and immunities,” “equal protection” and “due process” – all of which are quite “above party”; there was nothing partisan about them, because they were the precepts which made the political life of a republic possible.  Blaine simply stated them as the assumptions of the time, or ideas that were inherent in all republican forms of government.

 

For Congressman Blaine and his fellow Republicans, only Congress could make the guarantees of Section One a reality for freedmen, especially now that it was empowered by the electoral support from the Amendment’s Section 2, as well as the Fifteenth Amendment.  They were aware that even the noblest legal promises, though declared in the law of the land, would not enforce themselves – that right always depends on a tremendous amount of political might.  Never did it seem to cross their minds that that the judiciary – inherently the weakest, most un-enforcing branch of government – would eventually become the institution devoted to protecting the rights, liberties, and equality of citizens as stated in the Amendment, thus protecting the end of government regardless of the means.

 

In truth, later twentieth century civil rights cases, as well as rulings on sexual and reproductive privacy, and the whole range of liberties guaranteed by the “incorporated” Bill of Rights, were, I propose, entirely because of the Fourteenth Amendment.  It stated in fact what was supposed to only exist in theory; the purpose of the law became present within the law.  In this, it was the gateway to modern judicial review.  In our own time, many of those rights would eventually detach themselves from the Constitution altogether, depending entirely on the Court’s own will rather than the law.  The Supreme Court in the late nineteenth century struggled to avoid such a duty.  Its approach in Munn v. Illinois (1876), and subsequent case, was but a crude attempt to sever itself from such a role; so too were the cases dealing with the more direct issues of race, and Reconstruction legislation aimed at the South, which were almost equally as simplistic.

 

A.  Freedmen, the South, and the Judiciary

 

The strongest feelings toward the Supreme Court’s Fourteenth Amendment jurisprudence came from the ruling in Strauder v. West Virginia (1880), and its companion case, Ex Parte Virginia.  The cases were plainly judicial questions: they upheld major civil rights legislation, which declared that a state cannot forbid freedmen from serving on juries in criminal trials, especially when the defendant was black.  Justice William Strong, who wrote the opinion in both cases, appeared to understand the true intent of the Amendment, i.e., that it was designed to empower Congress to compel states to grant the rights of United States citizens, now seen as individuals before the law.  True, state governments were well within their rights to determine who was fit to serve on a jury.  “But, in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power,” Strong wrote.  “Her rights do not reach to that extent.  Nor can she deny to the general government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted.” At the same time, he was not entirely clear on why Congress could do such a thing.  It appeared to be a transaction of enumerated powers, that “every addition of power to the general government involves a corresponding diminution of the governmental powers of the States” – that it was in fact “carved out of them.”[5] Did the national government exist merely because it had “carved out” a space for itself?  If so, how did that justify Congress’ ability to enforce such civil rights – much less the Court’s authority to rule on them?

 

This confusion explains Justice Strong’s ruling in Strauder.  Speaking of the Fourteenth Amendment, he asked: “What is this but declaring that the law in the States shall be the same for the black as for the white,” or “that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?” Justice Strong acknowledged that all juries are more or less slanted, and that the selection of jurors in a criminal case was never perfect; but with random selection, careful screening, and the requirement of a unanimous majority for the more serious crimes, it was the best method of justice a free people could find – and one that was most certainly promised to those who had been formerly enslaved.  But Justice Strong and the majority could not allow that the Amendment meant anything more than this: states could still have requirements for who could and could not serve on a jury, and those rules might exclude women, the poor, or the uneducated.  “The Fourteenth Amendment makes no attempt to enumerate the rights it designs to protect,” Strong wrote.  The Amendment did not grant privileges, because “its language is prohibitory.”[6]

 

Hence, the case actually did little in favor of former slaves.[7] Though one would never guess that based on popular reactions to the case.  The “Legal Department” section of the Christian Advocate declared the ruling a victory for freedmen.  Forbidding them from serving on juries was the worst denial of equal protection, “since the constitution of juries is a very essential part of the protection which the trial by jury is intended to secure.” The article expressed how sacred the jury was in the American mind, and how great the responsibility of citizens was in light of life-and-death questions in criminal law.  Yet it was for the same fundamental reason that such guarantees had to be extended to former slaves, who were now part of the polity.  A jury is “composed of the peers or equals of the person whom rights it is selected or summoned to determine; that is, of persons having the same legal status in society as that which he holds,” the article stated.  “These decisions of the Supreme Court leave no doubt that the Fourteenth Amendment is broad enough and plain enough to secure to colored citizens the enjoyment of those rights which have been flagrantly denied to them.”[8] The Independent had much the same praise for the Court: “[t]he exclusion of the colored race, as s race, from the jury-box is at an end in this country.” It was here that the article declared Dred Scott officially overturned, showing that “the American people have taken a long stride in the direction of equal rights… Chief Justice Taney, if now living, would not repeat the utterance of 1856.”[9]

 

The truth, however, was not so glorious: the ruling was not that broad in its protections, nor was the Fourteenth Amendment very broad at all when it came to later civil rights legislation.  And, of course, compliance with the act and the subsequent ruling was minimal.  The Albany Law Journal, for instance, reported that a certain Judge Christian in Richmond, Virginia, would “summon them whenever he deems it best for the enforcement of the laws.  ‘When I find that I can best do this by selecting colored juries, I will do so, but not till then,’” he said.  All of this is quite true for the proper functioning of a jury in a criminal trial: “’Education, elevation of character, and the legal qualifications are the only things that I know of necessary to render any person ‘liable’ to such duty in this court.’”[10] Yet, much like literacy tests for voting, it was plain that it left much room for the sort of jury selection that would appease white Southerners, and avoid both the civil rights law and the intent of the Amendment as the Court has interpreted it Strauder.

 

The Court further minimized the effect of the Fourteenth Amendment in the Civil Rights Cases (1883), when it struck down Congress’ protection of freedmen to use “public conveyances on land or water, theaters, and other places of public amusement.” Just before the cases were handed down, the New York Times reported that in the last few years, “Congress appears to have gone far beyond its limits in what was assumed to be appropriate legislation for the enforcement of its provisions”; at the same time “judicial interpretation has been gradually undoing some of its work.” Such legislation would not stand “until public sentiment is brought into accord with it” – which was plainly something that Congress could never do, at least not through sheer force.  “[T]he national Government cannot deal with offenses which are those of persons or corporations and not of States.”[11] The Independent concurred: “It is just as important that the Federal Government should keep within the sphere assigned to it by the Constitution as it is that the states should keep within the sphere of the powers reserved to them by the same Constitution,” the columnist wrote.  “In this way and in no other way can our duplicate system of government be harmoniously and successfully worked.”[12]

 

The Court largely agreed with this view.  The Fourteenth Amendment, according to Justice Joseph P. Bradley, only meant to empower Congress to regulate states – not society.  “In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action for the state or its authorities.” To do so would be to state a whole range of nation-wide laws of interpersonal conduct.  The intent of the Fourteenth Amendment was aimed only at state governments, not the values or chosen lifestyles of individual white Southerners.  “An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the fourteenth amendment on the part of the states,” Justice Bradley wrote.  “It is not predicated on any such view.  It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offenses, and shall be prosecuted and punished by proceedings in the courts of the United States.”[13] This, the Supreme Court could not allow, especially when so many civil rights were already granted protection.

 

Such narrowing of the congressional use of the Fourteenth Amendment was, of course, complete when the Court handed down the infamous Plessy v. Ferguson decision (1896); the case held that “separate but equal” Jim Crow laws were in perfect accordance with the Equal Protection Clause, thus undermining once and for all civil rights legislation that might prevent broad social injustices against freedmen.

Many critics of failed civil rights legislation came to the conclusion that Congress was not supposed to concern itself with constitutional issues as construed by the Court.  It was instead meant to simply enforce the sort of nationwide racial equality that they deemed appropriate.  Max West, writing for the American Journal of Sociology in 1900, observed that the Amendment’s “language is so mathematically explicit that it requires no interpretation, but requires simply to be enforced.” This meant the power of Congress to ensure voting rights, which in turn would secure the legislative basis for enforcing the desired social equality.  This was most essential, according to West, in the issue that would come to dominate civil rights cases in the mid-twentieth century: education.  “Evidently something must be done either to prevent or to neutralize the discriminations of the state educational systems,” he wrote.  “If discrimination in educational facilities be a violation of the Fourteenth Amendment in letter as well as in spirit, Congress has the power to order it stopped.” It was plain, though, that Congress did not have that power, at least under the Supreme Court’s ruling in the Civil Rights Cases.  Yet West did not even bother to criticize that ruling; Congress had the mandate, and that was final.  This reveals the new vision of legislation then emerging: it was to proceed on experimental grounds, informed by the social science research that flooded West’s article – not on matters of law, or even justice.  “If discrimination cannot be altogether prevented, the national government should make an effort to counterbalance its effects by supplementing the educational work carried on by the states,” he wrote.[14]

 

This was, of course, the spirit of the coming progressive era, i.e., unlimited government action in the name of ideal goals.  But, as history shows, it would have very little regard for the plight of African Americans and their promises under the Reconstruction amendments, as West hoped: it would turn attention entirely to class relations, and the need to engineer a perfect democratic order, albeit exclusively among white people.  But this would still bring about a great clash of ideas: are there enduring rights, precepts of equality, and a proper end of government, as the Fourteenth Amendment holds?  Or is there only social evolution, to which governments are meant to conform – if not enforce?  This, the latter view of government, would inevitably collide with such constitutional protections, especially when the Supreme Court is sworn to uphold them.

 

But, as we can see in the judicial thought of Justice John Marshall Harlan on racial questions, this did not need to happen.

 

B. John Marshall Harlan’s “Corrective” Solution

 

When the Court announced its ruling in the Civil Rights Cases, the New York Times reported: “it seems as though nothing were necessary but a careful reading of the amendment [to see] that it did not authorize such legislation as the Civil Rights act.” Perhaps freedmen were entitled to a basic social equality, beyond merely political rights.  “But it is doubtful if social privileges can be successfully dealt with by legislation of any kind… If anything can be done for their benefit it must be through state legislation.”[15] This was, of course, an indictment of Justice John Marshall Harlan’s reading of the Fourteenth Amendment, which he explained in his dissenting opinion.  For the Times, it seemed Marshall was “laboring to give a forced construction to the amendment and to import into it something which the ordinary mind cannot find there.” The Amendment granted certain specific, basic rights; but “[i]t does not say that no person or corporation within a State shall interfere with the rights of citizens or make discriminations in their treatment.” To read it as Harlan did would give Congress a power that “could be exercised in every case in which the privileges and immunities of citizens are liable to infringement,” calling for endless, confusing, and potentially oppressive legislation.[16] Indeed, for all its authority and noble intentions, Congress could have no legislative power over people’s hearts.

 

But this was a grave misunderstanding of Justice Harlan’s legal reasoning.  The ruling in the Civil Rights Cases, he believed, was a plain denial of the full authority of Congress – not a claim for itself of the things that states could not do, as Justice Strong would have it, but, as my thesis holds, a way of compelling the states into what they were supposed to be.

 

It was contended, of course, that a broad reading of the Fourteenth Amendment would amount to a congressional takeover of the entire nation.  “Not so,” Harlan insisted.

 

Prior to the adoption of that amendment the constitutions of the several states, without, perhaps, an exception, secured all persons against deprivation of life, liberty, or property, otherwise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws.  These rights, therefore, existed before that amendment was proposed or adopted.
 

It was therefore the purpose of the Amendment to return the states to their own constitutions and republican principles, and the guarantees that existed for all citizens, regardless of race (or class).  “If, by reason of that fact, it be assumed that protection in these rights of persons still rests, primarily, with the states, and that congress may not interfere except to enforce, by means of corrective legislation,” he wrote, “it does not at all follow that privileges which have been granted by the nation may not be protected by primary legislation upon the part of congress.”[17]

 

Hence, the critical difference between “correction” and “domination” of the national government over the states – an important aspect of my thesis.  Congress was empowered to correct the states, to recover their lost heritage, and bring them back to their own first principles, through the persistence of slavery before the war and Jim Crow laws after.  Such legislation, though, was never meant to overpower them completely, or to practice social engineering as the majority in the Civil Rights Cases held.  Such corrective measures, aimed at the states, had a clear problem to solve; once that task was finished, the Amendment’s purpose would be complete.

 

Perhaps Justice Harlan did apply the idea of “corrective” legislation too broadly in this case (as he was always prone to do).  It might have been an instance of Congress doing too much, or reaching too deeply into social legislation, perhaps seeking reforms in the South that were premature and excessive.  But his point was clear, and crucially important: the best Fourteenth Amendment legislation proceeded, not on the arbitrary whim of the Union (or its own “values,” as we might call it today) but on the basis of a truth so plain that we might call it self-evident, according to Justice Harlan: if, at one time, “it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom [then at] some future time it may be some other race that will fall under the ban,” Harlan wrote. Indeed, any principle that one part of society lays down to deny others their basic natural rights is equally applicable to themselves.  “If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant.”[18] In practice, Harlan assured his critics that any law that overstepped the “corrective” intent – one that imposed any of the abuses or acts of class legislation that white Southerners feared – would indeed be declared unconstitutional for precisely that reason.  But truly corrective legislation was, or had to be, perfectly legitimate.

 

But, of course, this view of the Fourteenth Amendment was rejected in the Civil Rights Cases, and it continued to decline by the end of the nineteenth century, even as the Court’s involvement in such questions increased.  “Correction” assumes that there is a proper condition of the thing corrected; if it is corrupt, then correction recovers what it is supposed to be.  This is not simple when the thing corrected is as vast and complicated as a state.  Nonetheless, that is what the Reconstruction amendments were meant to do, in the most prudent way possible.  Yet with the onslaught of Darwinism, historicism, and the overall sense that nothing is fixed and permanent in human affairs, what could “correction” possibly mean?

 

Inevitably, this original intent for the Fourteenth Amendment slowly broke down into two parts: political power on one hand, and “fundamental rights” on the other.  It was the latter that gave rise to the idea that there was, in fact, a new American regime, entirely different than the one left us by the Founders.

 

II.  The Fourteenth Amendment in the Future: A New Regime of Rights

 

It was no doubt difficult to read the Fourteenth Amendment without a sense of novelty in the text, at least when it came down to serious judicial questions about Section One.  There had certainly been such a spirit in Abraham Lincoln’s understanding of the Civil War, which inspired the Reconstruction Congress.  What else could the President have meant in the Gettysburg Address when he said that “that this nation, under God, shall have a new birth of freedom”?  This appeared to be the spirit of Reconstruction: the new order would be based only in part – or perhaps not at all – on the older order.  Just as the old regime was framed and ratified, so too was the new one.

 

Was the Amendment the foundation of a new regime?  Was it substantially different from the previous order of the American Founders, thus requiring the Supreme Court to promulgate its substantive grants and restrictions?  Or was it in fact an outgrowth of that order, as Justice Harlan saw it, featuring a great deal of both institutional and philosophic continuity – and therefore still demanding the “that veneration which time bestows on every thing,” as James Madison described it?[19] Which of the two options prevailed – and which one ought to have prevailed?

 

A.  States in the New Regime of Rights

 

Critics of the Fourteenth Amendment, aware of what it meant in the long run, knew that for all its noble intentions, it still contained a “fatal defect.” That defect “consists in an assumption which, if it were true, would revolutionize our whole system of government,” one editor wrote in an 1876 issue of The Independent.  It was correct to say that “the object aimed at by Congress was to extend the protection of the General Government to the colored people of the Southern States”; had it been a question of pure justice, “it would have our hearty sympathy,” the editor wrote.  But that should have stayed a concern of legislation, not the reason for altering the constitutional basis for federalism.  “Here we insist that the General Government shall not keep within the limit of its constitutional power, and not undertake to discharge its police duties, which the Constitution assigns exclusively to the state governments.”[20] For all his concern about the dignity of the states, one thing was obviously missing from this editor’s point of view, i.e., that state governments had any respective ends to fulfill.  Plainly, according to this editor, police power was more a matter of local self-legislation than the realization of republicanism; the national government was best when it stood by a policy of non-interference.  “Corrective” Fourteenth Amendment legislation, as Justice Harlan described it, was in fact the display of political power by a new regime, itself a threat to the old one.

 

The Independent, though a Boston-based magazine, was adamant in this view of states rights in the face of the Fourteenth Amendment’s political novelty.  Over a decade later, one editorialist wrote that “the Government of the United States is one of enumerated powers.” The rights of citizens came above all from the states, as an aspect of their collective consciousness.  “[I]n respect to these rights the states are supreme, except as limited by the Federal Constitution,” he wrote.  Yet this editor had a peculiar way of describing popular sentiment, claming that “[t]he states themselves are Republican in their form of government.” This meant that “although there may be great abuses in the exercise of their powers, the theory of the Constitution is to take the hazard of such possible abuses, rather than dispossess them of these powers and virtually absorb them in the powers of the General Government.” Something had happened, it seemed, to the definition of a “republic” after the Civil War: it was no longer the sort of government that, theoretically, recognized certain basic rights of citizens; nor was it practically a set of institutions arranged by a neutral laws into a self-checking system.  In fact, it did not resemble any of the classic definitions.[21] It was instead little more than local self-determination.  It was still the rule of the majority in the interest of the whole.  It did not conform to any idea of “interests” as pre-existing rights.  Instead, it created them.  To forget this, though, was to “not understand the political system under which we are living.”[22] It was, in short, a confusion of the basic difference between a democracy and a republic.  At the state level, there was only democracy, and any tampering, whether to make a state more republican or to directly protect the basic rights of its citizens, was nothing less than usurpation of sovereignty.

 

For all these objections, the revolutionary nature of the Fourteenth Amendment was a quite favorable idea for most Americans at the end of the nineteenth century.  The enduring sense after the Civil War was that the original system was indeed broken and irredeemable; the nation was therefore better off as it left the old American proposition behind.  The destruction of federalism, the most prominent feature of that old order, was an easy thing to accept for a society that had lost over six-hundred thousand of its own in an effort to realize that ideal.  The American founders had left it a puzzle for future generations; yet no one imagined there would be such a high cost of solving it.  The war “tore a hole in their lives,” according to Louis Menand in his study on the origins of modern America.  “To some of them, the war seemed not only just a failure of democracy, but a failure of culture, a failure of ideas,” and in this it had “discredited the beliefs and assumptions that preceded it.” While the war had effectively destroyed the South, “it swept away almost the whole intellectual culture of the North along with it.  It took nearly half a century for the United States to develop a culture to replace it, to find a set of ideas, and a way of thinking, that would help people cope with the conditions of modern life.”[23] The Fourteenth Amendment and its place in the judiciary was at least the initial attempt (before the Progressive Era) to do that for the United States, and contrary to the earlier protests, many interpreted it accordingly.

 

In practice, though, this meant that the days of federalism, in any original sense, were numbered.  Far more than the design of political institutions or separation of powers, people like David Dudley Field, a prominent Union Democrat who had a change of heart after the Civil War, maintained the idea that “a Federative Union” was itself the single greatest protection of freedom.  In 1881 he wrote: “The vital principle of this system is the balancing of the governments national and State, in such manner as to hold them forever in equipoise.” But from its earliest days, that dual system of federalism had been gradually declining, and leading to the sort of “consolidation” that the early defenders of state sovereignty had feared all along; the Fourteenth Amendment had only finalized that trend, and now threatened to complete it – and public opinion seemed to give its strongest approval.  “There is not a city in any of the States, there is not a village along the rivers, and scarce a hamlet among the hills, that does not look to Congress more than to its own legislature to determine the occupations of its people,” Field wrote.[24] This was a tremendous departure from the American way of politics and self-government.[25]

 

Mr. Field knew that the Supreme Court’s involvement was a far greater thing than that of Congress.  The Court’s decisions, “it must not be forgotten, are reasoned out of the doctrine that Congress is the sole judge of the means it may use to carry its express powers into effect.”[26] Obviously, his worry could not have been about the Court’s rulings on the state regulatory laws in Slaughterhouse, Munn, Mugler, or Powell, which allowed extensive regulation at the state level, and had nothing to say about the power of Congress over the states.  About these rulings, Field could have no complaint.  It seems, therefore, that he saw something else changing at the heart of American constitutional law.  It was the allure of “fundamental rights,” which the Court could only refuse appellants so many times, as it tried to deny the regime that had emerged.

 

Others, though, focused on the cases themselves, and gave strong criticism of the Court when it refused to realized its new duty and apply the principles of the new regime.  Congressman John S. Wise wrote in The North American Review that the Court had “reestablish[ed] the very States Rights doctrines for the suppression of which the country had expensed so much blood and treasure.” He was sure that when the scholar of the future “shall come to examine into the changes in our written Constitution resulting from the war, he will doubtless be astonished to see how few changes there are” – despite how many there should have been.  The Supreme Court had essentially undermined those efforts, and left state sovereignty just as it always was, thus greatly undermining the new order.  Yet, much like Mr. Field, Wise understood that this existing interpretation of the Fourteenth Amendment would not stand for long, and that the Court could not refuse its latent duty.  There was something about Amendment, and about the nature of the Court’s jurisprudence, that would eventually come together.  One need only consider the Court’s early history, particularly in the era of Chief Justice John Marshall, to see its essential role in national life: so long as the Constitution was the supreme law of the land, the rulings of the Supreme Court were final, and provided the bedrock on which all other national questions stood.  There was no denying that “a tribunal essentially Federal, more independent of the power of the States than any other body or officer in any of the departments of Government, has from the beginning oftener pointed out the boundary where Federal power ends and State power begins than any other in our Government.” It was, after all, entrusted with protecting the Constitution, and it was always aware of those forces and ideas that wished “the Constitution shall be blotted out.”[27] When the time came, it would prefer that fundamental law over any concept of state sovereignty.

 

A new regime of liberty, a new emphasis on substantive “fundamental” rights, a “new birth of freedom” – what else could these things mean but a movement away from the political institutions of government, and toward the one that would articulate them, and protect them accordingly?  Those political departments, which were elected by the people, would proceed with legislation and enforcement as they always had; but it was the judiciary who would limit and contain their power, drawing the line for the extent of legislation into the lives of individual citizens.  Eaton S. Drone, long-time Editor of the New York Herald and frequent commentator on the Supreme Court, promoted the view that the judiciary was quite simply the voice of the Constitution itself.  The Constitution was at once the “supreme law of the land” and an ambiguous document.[28] But, according to Drone, such open-endedness was meant for the Court itself, and only the Court, as “the authoritative interpreter of the Constitution of the United States.” As such, the Court’s rulings “are binding on the executive and legislative departments of the general government, and on every State government,” he wrote.  “When the Supreme Court interprets the Constitution, its opinion practically becomes a part of the fundamental law of the land, a part of the Constitution itself.”[29]

 

Such a view of judicial duty was, of course, amplified greatly by the Fourteenth Amendment.  The limits on state governments were “more radical and far-reaching than are imposed by all the rest of the Constitution,” Drone wrote.  “It brought the States, in their internal affairs, under federal power to an extent unknown before its adoption” – and, most importantly, it “transferred from the State to national control the great body of the people’s civil rights.”[30] As other critics pointed out, the Supreme Court had so far failed to fulfill this reading of the Amendment; but Drone, like so many others, remained confident that it would eventually live out its true purpose: to be the consistent guardian of fundamental rights against all political forces – once thought to be the main practices of a republican form of government, but now reduced to mere democratic power that had to be contained and restricted in its authority over the fundamental rights of United States citizens.

 

B.  The New Regime and the Professors

 

The place of the judiciary in the new regime was received well by major figures in the legal community, which was developing a whole new sense of itself by the end of the nineteenth century.  Few perceived it as a grant of excessive power or “judicial supremacy,” in the modern sense; it was precisely what many popular figures thought it was, as they called for professionals to act as guardians of the public interest against the broad range of political forces in the states.  This was, after all, the era of specialization, where the measure of a professional was not experience or even character so much as formal schooling, which immersed students into their respective “science,” and awarded them the essential degree.  This did not eliminate the bar exam as the final entrance into the legal profession, but the education that preceded it was gaining much more importance than it had in the days of common law apprenticeships and self-taught jurists.  Law, like other professions, now consisted of “graduates” who relied greatly on those new publications that could perpetuate the critical discussions that informed the craft: the law review.  Here, “doing law” was gradually mixing with “the study of law,” and though lawyers and judges no doubt maintained a distinction between the two, it was inevitable that they would blend as new generations of specialists emerged from American law schools.  Such a transition in the legal profession could not help but be shaped by the Fourteenth Amendment; the Amendment and the legal profession, it seemed, were made for each other.

 

“Political Science”: Westel W. Willoughby

 

Legal specialization did not begin in law, but in the new field of study known as “political science,” which emerged in the late nineteenth century alongside economics and sociology.  Westel W. Willoughby, the first professor of political science at Johns Hopkins University, was one of many figures who developed a new view of the Court.  Law, of course, was merely a sub-discipline of his own study of political behavior and the administration of the State; but his most important writings focused greatly on the Supreme Court.  Willoughby held that of all the innovations of 1789, the greatest was none other than the judiciary; it was in fact a critical institution for the success of the American system, and its role would become all the more essential in the new century with the advent of “the State.”

 

As we know, later progressive critics, as well as many other American political figures informed by this new social science, would oppose this concept of the Supreme Court as the institution entrusted with maintaining this version of the older version of liberalism, limited government, and natural rights.[31] How exactly did Willoughby square his view of the Court with its actual tendencies in American political life – particularly when it shows greater willingness to review and possibly strike down popular progressive legislation, as it finally did in Lochner v. New York (1905)?

 

The answer appears in Willoughby’s aptly titled essay, “The Right of the State to Be.” The central truth about in modern political thought is that there are no “rights,” in the natural sense.  What rights people have, i.e., “claims of the individual to certain spheres of activity within which they shall not be limited by other individuals,” he wrote, “are not only rendered possible of realization by society and the State, but they are created by society and the State, and cannot be conceived as existing either actively or potentially apart from the social and political body.” Rights, in the older liberal tradition, had existed as the measure of good government: that government was best which protected the rights that citizens already had.  But this was no longer the case in modern times, according to Willoughby: the standard of goodness of the State came from within the State itself. “It is not until the State manifests its power and authority that material is afforded to which moral estimates may be applied,” he wrote.  The only concern for the citizen as an individual “morally responsible person,” was whether he “should obey or disobey,” knowing that the state is in fact the purest reflection of the general will.  Rights were therefore granted, and liberties protected, but only so far as they were conducive to the State’s own supremacy.  The only liberty is “social freedom”; “social freedom and restraint are but the obverse sides of the same shield,” he wrote; “freedom has no meaning apart from restraint… metaphysically as well as practically the two concepts are united.”[32]

 

Accordingly, the Supreme Court – whether it applied the most stringent fundamental rights, or allowed unlimited state regulation – was in fact working from within the State.  The rights and liberties protected were meant to serve the State’s ends, and no other.  Given such a duty, the Court could essentially complete the State, and make it the sole horizon in the lives of citizens.[33] The supremacy of the State, after all, “could be peacefully maintained only by clothing the federal government with judicial and executive power adequate to interpret and carry into execution its commands.”[34] Such a role for the Supreme Court, now unified with the executive who stood at the top of a vast bureaucratic order, was essential for the development of the modern State.  The legislative branch, the legislative process, and the republican form of government at the state level – none of these things could ensure “the right of the state to be” like the full exercise of judicial power.

 

It was obvious to Willoughby how such judicial authority in the service of Congress was essential in the early Reconstruction years, when there was tremendous doubt on all sides about constitutionality of such radical measures imposed on the South.  “The exercise of all these powers was claimed, of course, to rest upon constitutional authority,” Willoughby wrote, “and in connection with them arose constitutional questions which had to be settled by the Supreme Court.” Far more than granting a constitutional basis for the acts of Congress, and especially the ensuing Amendments, the Court was “a barrier against the tide of opinion which threatened to set too strongly towards centralization.”[35] The judiciary had to be part of the organic whole, and to ensure that the nation could move in unison with all other departments toward the correct end, at once latent in the public mind and discerned by visionary who understood the grain of History.[36] In short, the judiciary’s most important role, which it was yet to fully realize, was to use the all-American respect for the rule of law to ensure the broad public acceptance of those policies deemed essential.  It was true that “more than any other nation in the world,” the American people “possess this law-abiding spirit,” he wrote; after all, such “[o]bedience to the rule of law is characteristic of all Teutonic folk.”[37]

 

Law Professors on a New Judicial Duty: William Dameron Guthrie

 

Carl Evans Boyd observed the open-ended character of such a judicial philosophy when he wrote that it is “altogether too early to expect any elaborate and well-rounded treatise upon this newest branch of our constitutional law.” Though the decisions of the Court were numerous, there was still no definite rule on how the Fourteenth Amendment actually applied in a long-term sense.  Until such an idea emerged in the actual practice of law, “discussions of decisions rendered and of the principles underlying them will form an important part of our legal literature.”[38] Still, there were a variety of guesses, which pulled Lochner Era lawyers and judges in different directions in their legal education, and which members of the Supreme Court would bring with them to the bench.

 

Boyd wrote this in his review of William Dameron Guthrie’s collection of lectures published in 1898.  Guthrie was a professor of law at Yale University, who went on to become President of the Bar Association in 1926, and made much of his scholarship justify the “guardian” approach to judicial review exemplified by Justice Stephen Field.  His series of lectures in the 1890s described the law as a true profession, in much the same sense as Willoughby understood his own political science.  Guthrie announced that the Fourteenth Amendment had done precisely what many popular sources believed: it created a new regime – one that placed his own legal discipline at its foundation.

 

True, most of the provisions left with the judiciary were already in the state constitutions, and had been the aim of those republics from the beginning.  But the conditions of the Civil War had proved how inefficient the states actually were in protecting those rights and liberties, meaning that neither the power of Congress nor the interpretive authority of the Court could redeem them.  Indeed, there was no “corrective” legislation, as Justice Harlan understood it.  This had “convinced the people that fundamental rights could no longer coexist in safety with unrestrained power in the States to alter their constitutions and laws as local prejudice or interest might prompt or passion impel,” Guthrie wrote.  For this reason, “[t]he rights of the individual to life, liberty and property had to be secured by the Federal Constitution itself, as, indeed, they should have been when it was originally framed.” This was the reason for the Amendment’s limitations, which compensated for the defects of the original Constitution.  But, as the Civil War proved, those defects were so extreme that only a new order could truly compensate for them.  Those provisions are “universal in their application,” he wrote.  “They are directed against any and every mode and form of arbitrary and unjust state action.”[39]

 

Professor’s Guthrie’s judicial philosophy was based on his concept of American political life: politics was little more than power, which was by definition “arbitrary,” even when it was “constitutional” by state standards.  The only rational response to such a dangerous force was judicial containment; the Court’s role was not a matter of teaching the presuppositions of legislation, but of merely defining its boundaries, and curbing its excesses.  It assumed, of course, that the law of the Constitution was itself a fundamentally different thing in kind from American political life, thus breaking a great deal of continuity with the American political tradition.  Politics had made the Constitution at the convention in Philadelphia, and politics had given it life and substance for almost two generations since.  But now, deliberation, compromise, and even prudence were in conflict with the fundamental law, and it was the duty of the judiciary to make it prevail.

 

It was one thing to hear this from popular sources; it was quite another thing, though, for the members of the legal community to announce it with such boldness.  Professor Guthrie did not view this new role of the judiciary with any caution: there was no question in his mind, it seemed, that judicial power was nothing if not absolute in its ability constantly limit politics.  “Great cases involving constitutional rights are continually being decided and should be carefully studied by lawyers.  The importance which the Fourteenth Amendment has attained in our system of constitutional law will then be realized,” he wrote.  “We shall also be led to the immense labors which the Supreme Court performs and the inestimable services which it renders to the nation sometimes unperceived and frequently by the people at large.” Those entering the legal profession, his own students, no longer faced the expectations of judges and lawyers; more than wisdom or a love for justice, it was competence that truly mattered, and an awareness of the heritage behind their honored profession.  Previous generations of lawyers and judges “solved the great problems of the war and of the reconstruction period and in the Fourteenth Amendment they gave us as our heritage a new Magna Charta” – and what Magna Charta had done to contain the arbitrary power of the King, the Fourteenth Amendment would do to the power of American politics.[40] Each generation of jurists, at least in the great English tradition of freedom, faced the same problems, and were called upon to exercise the same heroic duty.  This would continue to be the role of the American judge, according to Professor Guthrie.

 

Such a fear of political power was not entirely unfounded.  Given the popular trends of modern times, Guthrie found that judicial power was no ordinary method of heroism.  The “levers of legislative power” were designed to be quite responsive to local majorities; but, according to figures like Guthrie, this made them quite legitimate threats.  He reminded his students that there is “a growing tendency to invade the liberty of the individual and to disregard the rights of property, a tendency manifesting itself in many forms and concealing itself under many pretexts.”[41] This was not the usual class hostility, which had always existed to some extent in free societies.  Socialism, or the American version known as “nationalism,” had tremendous allure, and while the way to achieve it was not as violent as it was in Europe, it was nonetheless a great threat to American liberty.

 

But how exactly could judges “act” in such a way?  As always, they had “neither the sword nor the purse.” For Guthrie, much like Professor Willoughby, it depended entirely on the respect for the rule of law, then so engrained into the American mind.  “So long as the Constitution of the United States continues to be observed as the political creed as the embodiment of the conscience of the nation, we are safe,” he said.  It was the enduring “veneration” for the Constitution that would allow judges to take the sort of drastic action necessary to contain these dangerous impulses.  But far more than guardians on the old order, the judges entrusted with this duty were the ones who could make the Constitution adapt – and do so even better than the elected branches could.  “A constitution is designed to be a frame or organic law of government and to settle and determine the fundamental rights of the individual.” This “organic” structure, rather than its intended meaning, was what allowed it to “endure for all time,” he wrote.  “Its provisions should not in any sense be limited to the conditions happening to exist when it is adopted although those conditions and the history of the times may well throw light upon the provisions and reveal their true scope.”[42] So while the most modern rights happened to involve property and the economic liberties the Guthrie believed were under such threat, there was no denying that this too could change – that, in time, there could be a new set of fundamental rights, and that the Court would discover and protect them accordingly.  The problem for dangerous popular movements was not their disregard for the rule of law understood as an enduring thing; it was instead their tendency to seize the sort of adaptations and changes that could usurp the Court’s own authority.[43]

Hence, there were two philosophies that sought to define the new regime, and the place of the Supreme Court in it.  One, following Professor Willoughby, allowed for the full power of national and state government, especially with the advent of the progressive philosophies that would constitutionally justify such broad and unlimited use of active state liberalism.  The other, according to Professor Guthrie, meant the opposite need to limit and curb that state power when it went too far.  Neither understanding of judicial duty looked to constitutionalism in the original sense.  As always, the advocate of judicial rationalization of regulatory laws saw the means without any fixed or permanent end, while advocates of the “guardian” of Court saw the end of government existing without the means.  Ultimately, though, it was the latter, Professor Guthrie’s view, that won out, at least in the study and training of law.

 

The Modern Jurist: Thomas McIntyre Cooley

 

Professor Guthrie represented the judicial philosophy that continued to embrace the Fourteenth Amendment as formal permission to review practically any piece of legislation.  One reviewer of Guthrie’s book noted that “[h]is views are the ‘views of the day’ in an exaggerated degree,” in that he “expresses in the most pronounced form the present increasing tendency to shoulder upon the Federal courts responsibility for everything.”[44] Other legal scholars presented a much tamer approach.  As Dean of the University of Michigan Law School, Thomas M. Cooley became an American jurist in the style of Joseph Story and James Kent, doing for the modern Constitution what William Blackstone had done for the common law. A mind so attuned to the law would certainly reflect the sort of shift that occurred with the Fourteenth Amendment.  It was, for Cooley, a constitutional fact; unlike Guthrie, he at times accepted the Amendment with apprehension, but more often a simple acceptance of what the Amendment meant for the judicial craft.  He knew that the days of the Munn doctrine were truly numbered, though not by any choice of the Supreme Court.[45]

 

Such a transition was meant to happen as it did under Article V: the nation had calmly and deliberately altered its Constitution to fit certain dire needs, precisely as the Founders anticipated.  “The Constitution provides a simple, easy, and peaceful method of modifying its own provisions, in order that needed reforms may be accepted and violent changes forestalled,” Cooley wrote.  Such a quiet method had occurred fifteen times.  But plainly the newer amendments had done far more than the older ones.  The most recent amendments were shaped by the destructive effects of the Civil War, which actually lasted well after the fighting was over; even in peace, “the same divergence in sentiment and a like estrangement in feeling still prevailed, and were now found to centre on the policy to be adopted for restoring and strengthening the shattered fabric of government,” Cooley wrote.  In such conditions, there was, quite simply, no way to preserve the old Constitutional order, at least not in its entirety; the amendment process, for all its careful steps, could still take on a revolutionary intent – in this case, putting rights and liberties at the forefront, and leaving institutions and procedures in obscurity.  Such a transition was plain in the design of the older amendments themselves.  “While, therefore, the first amendments were for the purpose of keeping the central power within due limits, at a time when the tendency to centralization was alarming to many persons, the last were adopted to impose new restraints on state sovereignty, at a time when state powers had nearly succeeded in destroying the national sovereignty.”[46] The guarantees in the first set of amendments were, for the most part, superfluous: the government checked and limited itself through the interaction of its institutions, and therefore required no preventative measures in law to keep it from abusing its power.  The latter amendments, however, called for another method entirely.[47]

 

This was most apparent in the Privileges and Immunities clause – a right that was abundantly obvious even without the Fourteenth Amendment.  “It is plain that State laws cannot impair what they cannot reach,” he wrote.  The national government, by its mere existence, ensured the privileges and immunities of citizens.  The postal service, patients, copyrights, or assistance with trouble overseas – these things were never in doubt.  “Nevertheless this portion of the Fourteenth Amendment has its importance in the fact that it embodies in express law what before, to some extent, rested in implication merely” – an implication that was far to weak to deserve respect, much less command the consent of the public for the existing government.[48]  The new Amendment, however, commanded far greater consent (or, in some cases, provoked repugnance) for the existing regime.  This, in turn, indicated that there truly was a new order, a transformed regime that had very little in common with the previous one, and the prominence of its substantive rights called for some kind of direct recognition and enforcement.

 

Cooley enumerated and explained the significance of “due process of law,” “life, liberty, and property,” and “equal protection” knowing that they would gradually become, in many issues, the sole concern of judges facing Fourteenth Amendment questions.  Cooley allowed that the extent of police powers was still quite broad within the states, and that the Amendment is held “held not to have taken from the States the police power reserved to them at the time of the adoption of the Constitution,” he wrote.  Still, in the exercise of police power, “regard must be paid to the fundamental principles of civil liberty, and to processes that are adapted to preserve and secure civil rights; persons cannot arbitrarily be deprived of equal protection of the laws, or of life, liberty, or property.”[49] Again, the possibility that the police power of the state was meant to protect certain rights – keeping and pursuing property, in particular – was no longer present for Cooley.  Legislation was merely power, and rights were rights.

 

Professor Cooley elaborated on this in his most famous work, A Treatise on the Constitutional Limitations.  The massive two-volume set, which went through seven editions between 1868 and 1927, was constantly looked to and cited in both popular and professional writings of the Lochner Era; it made him “the high priest of the theory that revolutionized thinking about the power of state legislatures and the role of the courts,” according to Paul Kens.[50] There, he wrote, that for all the sensible legislation a state legislature may produce, “general rules may sometimes be as obnoxious as special if they operate to deprive individual citizens of vested rights.” His concern was very much about the problem of class legislation, or the tendency of state regulations to favor one interest over another.  But, “[w]hile every man has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors,” he wrote, “the whole community is also entitled at all times to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its operation.” Even impartial legislation, which did not single out or favor one class over another at all, could still quite easily deprive individual persons of the fundamental rights to which they are entitled.  “It is not the partial nature of the rule so much as its arbitrary and unusual character that condemns it as unknown to the law of the land.” Should such cases come to the Supreme Court, its duty was clear: assume that the state is not equipped to protect such rights, that all exercises of police power were potential threats to property, and that state constitutions are only the feeblest safeguards.  “When the government through its established agencies interferes with the title to one’s property, or with his independent enjoyment of it, and its action is called in question as not in accordance with the law of the land,” Cooley wrote, “we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of laws, and not generally by rules that pertain to forms of procedure merely.”[51] Concerns about procedural due process could only go so far; at some point, the rights that such a process was designed to protect emerged on their own, and required the careful attention of the judiciary.[52]

 

In this, of course, both Guthrie and Cooley (perhaps one more than the other) endorsed the jurisprudence of Justice Stephen Field, who he praised throughout his lectures as “one of the greatest judges that ever sat in the Supreme Court.”[53] They shared the view that there could be no other institution, nor institutions checking each other, nor any other method, that could secure the new substantive rights of the Fourteenth Amendment than the Supreme Court could.  Yet Justice Field, for all his generalizations about rights and liberties, did restrict his view of “fundamental rights” considerably, as would anyone who tried to protect rights in such a way: they were absolute on some points, but non-existent in others.  Field’s dissent in Ex Parte Virginia (the companion case to Strauder), for instance, could not have sounded more out of character for Justice Field.  When the question was whether or not a state could bar freedmen from serving on a jury, suddenly the sovereignty of state governments was immensely important.  “The government created by the Constitution was not designed for the regulation of matters of purely local concern,” he wrote, while “the central government was created chiefly for matters of a general character, which concerned all the States and their people, and not for matters of interior regulation.” To say otherwise, as the majority did in this case, was to “destroy the independence and the autonomy of the States,” and “reduce them to a humiliating and degraded dependence upon the central government, engender constant irritation, and destroy that domestic tranquility which it was one of the objects of the Constitution to insure.”[54] But Field did not contradict himself: for him, if the Amendment was meant to grant solid, undeniable, untouchable protections of business interests, then it had to come at some expense – in this case, the due process guarantees of criminal procedure for blacks.  To broaden in one area, such fundamental rights had to be narrowed in another.

 

This rationing of rights exposes the problem of a “new regime” reading of the Fourteenth Amendment, especially when the sole institution entrusted with that task is the judiciary.[55] While it might have been based on a great many claims about the equality and rights and liberties of citizens, and while the Court would be the institution to secure such things, this reading was, in fact, greatly limited in what it had to offer.  This was usually the case with generalizations: when such dogmas about “rights” and “liberties” “are once dragged down into the mud of practical politics, and are cut to the measure of party tactics,” William Graham Sumner wrote, “they are the most pernicious falsehoods,” in that they always result very favorably for one group, and not at all for another.[56] It was quite predictable that African Americans would be the ones to not receive these protections – even though they were supposed to be the primary recipients when the Amendment was framed.  By the time of Plessy v. Ferguson in 1896, the judicial process of rights-rationing was complete: by interpreting the Equal Protection Clause to allow for “separate but equal” Jim Crow laws, the rights and freedoms there stated were left to white men only, and it would stay that way for some time.  Indeed, in this respect, there is a greater continuity between Justice Field and the Plessy decision than there is between the fundamental rights jurisprudence and the Lochner Court.

 

Still, despite these problems, the advocates of Fourteenth Amendment judicial supremacy proceeded with their teaching, so certain that this was the judicial philosophy of the future.  As the new century arrived, “proponents of liberty of contract had argued that the intended role of the Court was to protect individuals from the tyranny of the majority,” according to Paul Kens.  “For people such as William D. Guthrie [and] Thomas Cooley, substantive due process and liberty of contract represented not only reasonable but necessary interpretations of the Constitution.”[57] As prominent as this view was, it was but one theory of judicial review that competed for adherence on the Supreme Court itself.

 

III.  Justice John Marshall Harlan’s Road Not Taken

 

According to Justice Thurgood Marshall, in his reflections on the bicentennial of the Constitution in 1987, the Civil War had in fact destroyed the American regime.  It was reborn, however, in the Reconstruction Era.  Marshall did not believe “that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention” anyway; nor, for that matter, was there anything worth maintaining in the original American regime.  Far more important was what it had become in practice, particularly in modern times.  Indeed, “[w]hen contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago,” he wrote.  When the original Constitution ended, “[i]n its place arose a new, more promising basis for justice and equality, the fourteenth amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.”[58] True, even this Amendment would require almost a century of interpretation before its promises could be realized, especially for African Americans.  Yet Justice Marshall did not credit political figures like Martin Luther King, or the Civil Rights Movement, nor the Civil Rights Acts of the 1960s, with realizing that promise; those, after all, gave far too much credit to the Founding, and relied too much on the political process.  Instead, Marshall credited none other than his own Supreme Court.  With Brown v. Board of Education (1954) and subsequent cases, the new regime matured, as the judiciary finally asserted itself as its primary institution. The Court’s humanity and good sense were what prevented American life from descending into barbarism, which, he was sure, lay just beneath the surface of even the most thoughtful election or sensible legislative process.[59] This was, of course, an easy thing to believe for a man who witnessed the abusive tendencies of police powers against African Americans, both before and after Brown.  What could state police power be if not a façade for institutionalized hatred and oppression?  And what was the Fourteenth Amendment for if not to reduce all state and local government to the absolute minimum level of activity?

 

Historian Howard Jay Graham, a contemporary of Justice Marshall’s in the days of Brown, offered a different answer.  The Civil War did not mark the end of the old regime, nor did the Fourteenth Amendment bring the birth of a new one.  Nor were police powers inherently oppressive; in their right condition, they were, in fact, the surest enjoyment of liberty and civic participation.  The Amendment was “declaratory” of the original American proposition, in that it restated basic truths on which the nation had been founded, thus reviving them in positive law.  It was therefore a means of assessing state police powers – and a congressional means of correcting them when they were in error, as they were with the variety of segregation laws.

 

The passage of the Fourteenth Amendment “was one of the most subtle and evanescent of all the possible changes in law and government,” Graham wrote,

 

a transubstantiation of values from the ethical to the civil and constitutional plane.  It was a delicate, uneven and above all a continuing change – a ‘constitutionalization’ of the old law of nature.  It modern terms, under our system of government, it meant that there was under way a large-scale shift from general, abstract, and really hypothetical rights to specific, concrete and enforceable constitutional ones.
 

Such “transubstantiation” – the real presence of such an abstract truth appearing in positive law – made it inevitable that the judiciary would soon be quite involved in Fourteenth Amendment jurisprudence, as it was to a great extent by Graham’s time.  “Enlarged judicial responsibility was for the most part implicit in the antislavery generation’s position,” Graham wrote, “just as was the acceptance of evolving standards of public ethics and protection in matters pertaining to race.” The framers of the Amendment, Congressman John Bingham in particular, “really were trying to convert ethical into political power, and moral into constitutional rights.”[60]

 

But in this, Graham observed a whole new problem: that the written Constitution “was competing with, and must somehow be articulated with, another ‘higher law.’”[61] This put tremendous strain on words and ideas; theoretical concepts simply did not belong in practical politics.  The Fourteenth Amendment was the American truth incarnate, or the presence of abstract reality about “personhood,” “life,” “liberty,” “equality,” and, of course, “property.” Despite the simplicity and clarity of these ideas, when it came to realizing them in political practice, “it was readily conceivable that thinking and communicating might break down entirely” in congressional deliberation as well as public discourse about how to apply those principles in practice – not to mention the truth of the principles themselves, in light of the onslaught of Darwinism and other progressive philosophies of government.  Americans “were left without adequate points of reference,” he wrote; “they did not agree about what their old Constitution meant because they never squarely faced the problem of who decided what it meant.”[62]

 

So which view is correct?  Whatever the case, it is clear from the historical evidence that Justice Marshall’s judicial philosophy was advancing toward triumph from day one, while that of Justice John Marshall Harlan would pass into obscurity.[63] But what if it had not?

 

Justice Harlan maintained what thoughtful Americans had long understood: that the institutional design of a republican government, for all its flaws, was still the best possible means of both protecting basic rights and ensuring a neutral government.  Legions of lawyers and judges, despite their public respect and good will, simply could not compete with political power; such power therefore had to be restricted in such a way that it could do that protecting on its own.  It was by arranging the “several offices in such a manner as that each may be a check on the other,” according to James Madison, “that the private interest of every individual may be a sentinel over the public rights”; and, of course, this was “requisite in the distribution of the supreme powers of the State” as well.[64]

 

Yet limitations alone were not the sole feature of republican government: there was also “energy.” Checks and balances – ambition “made to counteract ambition” – would compel each institution toward its highest end, and make them actively fulfill the purpose of republican government.  It was not the checks and limitations, but the energetic outcome that would ensure the “protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice,” Alexander Hamilton wrote, and provide the “security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”[65]

 

This was Justice Harlan’s position, among many others, prior to the end of the nineteenth century.  It was especially true of earlier justices on the Court who had “always given a broad and liberal construction to the constitution, so as to enable congress, by legislation, to enforce rights secured by that instrument,” he wrote.  “The legislation congress may enact, in execution of its power to enforce the provisions of this amendment, is that which is appropriate to protect the right granted.” Reviewing such laws, therefore, meant determining if the means were inappropriate to the end, and of ensuring that the end was actually in view.  “Under given circumstances, that which the court characterizes as corrective legislation might be sufficient,” he wrote.[66] This was the view of his namesake Chief Justice John Marshall, who wrote that “[t]he sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, – let it be within the scope of the constitution, – and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.”[67]

 

Obviously, though, such a proper function is a delicate thing, especially at the state level.  It can be distorted and corrupted, and made to fall terribly short of the ends for which they were intended.  Mass-democratic impulses can use the levers of local government for its advantage – against ethnic, religious, and indeed economic minorities.  At the same time, such state police powers can move in a very good direction.  Knowing this, it is also obvious what “correction” of that error means: it is a matter of ensuring that the power of government is designed to meet its purpose.  Congress framed Fourteenth Amendment to do precisely that: to empower Congress to make states live up to their respective ends in the Reconstruction Era.  But just as it fell to the Court to review those acts – to ensure that they did not surpass the means – it also fell to them to review such acts at the state level.  Yet it assumed that the essential terms – “persons,” “privileges and immunities,” “due process,” and “equal protection” – would go on meaning what they had always meant, and that the assumptions about the nature of republican government would not change in the future.  Indeed, if Justice Harlan’s understanding is correct, the Fourteenth Amendment should have fulfilled its role, and then gone the way Article VII on the ratification process, or the Third Amendment on quartering soldiers.  But, given the nature of Section One, as well as the onslaught of modernity, this could not last.

 

Section One of the Fourteenth Amendment was nothing less than an attempt to make might not only obey right, but somehow become right – to convert the “ought” into an “is.” It was assumed, of course, that Congress would do what it had always done, and that such broad statements about fundamental rights would not disrupt the political process, nor cause the sort of philosophic conflicts that would call for intense judicial power in later years.  It was only a matter of time, though, before Americans would begin to accept that the “ought” really did come from the “is” – the “is” of judicial ruling, rather than an act of Congress.  They would cease to find the fundamentals at the core of American political consciousness, or at the bedrock of our self-understanding, and find it instead an aspect of written law.  Like all written laws, it would not have life until it was enforced – and, resist though they might, it would fall to the judicial branch to make that happen.[68]

 

 

 Notes

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