Posted on 08/21/2005 7:00:15 AM PDT by Carry_Okie
In the practice of Zen Buddhism, a koan is a statement that is intentionally insoluble to the rational mind, a tool by which to master life’s seemingly paradoxical events. Yet the Japanese Zen masters have nothing on us red-blooded Americans, who for over a century have become unconsciously adept at sustaining such conflicts, easily accepting contradictory interpretations of Constitutional Law, between the original scope of the Bill of Rights and that since the Fourteenth Amendment.
As Madison elaborated in Federalist 45, the Constitution for the United States of America was sold as a list of strictly limited powers; leaving the bulk of governance up to the several States. The reason for the extent of this preference is that the Anti-Federalists largely represented States that so feared centralized power that they would never have ratified the Constitution had it not so carefully proscribed the national government.
During the ratification process, the Constitution’s detractors insisted that it be further amended; else ratification would fail. Madison (a Federalist), in an attempt to broker a deal, authored most of the proposed articles, designed to further restrain the Federal government. As an example of this tension between States rights and Federal guarantees for individual rights, he made an early attempt to incorporate elements of the Bill of Rights against the States in an original Fourteenth Article:
No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.
That Article passed in the House but then failed in the Senate (then consisting of the appointees of State legislatures). The Anti-Federalists had got their way.
The Preamble to the Bill of Rights stated the purpose of those Amendments with an appropriate tone of warning, “in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.”
Further restrictive clauses, for an already limited government, to prevent abuse of power.
Among these restrictive clauses was the Tenth Amendment, which reserved all powers, not enumerated in the Constitution, either to the States or to the people. It was a simple one-liner. Nothing could be clearer.
The Tenth Amendment was the key to Federalism. Its constraints empowered a hierarchy of representative governments with accountability kept local to the people, which effectively kept injustices confined to the smallest possible scope, albeit with little recourse. The Tenth also permitted wide differences in State laws. If the people of a State wanted a government religion, the Tenth Amendment permitted that. If a State wanted to regulate speech, or to socialize private property, the Constitution was mute. None of the rights articulated in the Bill of Rights could be enforced by the national government in Federal Court. If the people didn’t like the government of a particular State and couldn’t change it, their principal recourse was the freedom to move and apply their energies in another State.
The States exercised the latitude in their powers routinely, particularly in numerous eminent domain cases throughout the nation’s first eighty years. Many involved takings on behalf of private consortia to help finance construction of everything from canals to railroads. In fact, Abraham Lincoln largely made his living as a lawyer advocating for precisely such public takings on behalf of private interests. There was nothing the Federal government could do about it.
After the Civil War, depending upon whom you choose believe, the Fourteenth Amendment was meant either to change that relationship between the Federal government and the States; or it was only meant to address the inequities of slavery.
The nexus of that Constitutional change was in Section 1, which made the scope of Federal power less clear that it was originally:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 1 clearly showed the potential to make the will of the people as expressed through their legislators of far less importance, because the power to determine the manner in which laws “abridge the privileges and immunities of citizens” could easily be interpreted as equivalent to prescriptive veto power over all State and local legislation. Still, the Tenth Amendment remained on the books. So, to what degree would States retain their powers, versus the degree the Courts would determine how “equal protection” applied?
There are those who argue that concern about that potential is misplaced, contending that the current activist interpretation of the Fourteenth Amendment is at odds with its original intent, which was merely to incorporate black slaves into American life with the rights of full citizenship and no more. Such was indeed the first Supreme Court interpretation of the Fourteenth Amendment in the Slaughterhouse Cases (83 U.S. 36 (1872)), which held for almost fifty years.
Others contend that the original intent of the Fourteenth Amendment was not to be constrained to matters of race, but that it was meant to incorporate the entire Bill of Rights from its inception.
Still a third group holds that the Fourteenth Amendment was a Trojan Horse aimed at paying off European bondholders after the Civil War by empowering investors in corporations with the legal tools by which to gain gradual control the Federal government and therewith the States.
That such enormous ambiguity should exist in an amendment to the Constitution, speaks volumes to its secret construction, hasty passage, and coerced ratification. Such gives one cause to reconsider the intent behind the Constitutional mischief we have seen over the last hundred-twenty years.
At the time of its adoption, there were competing factions within the controlling Republican Party: conservatives, who believed in the narrow interpretation of the Fourteenth Amendment, with no conflict with the Tenth, and so-called radical Republicans who advocated full incorporation of the Bill of Rights under Federal jurisdiction. There was also an overlay of lawyers representing industrial interests among both groups, particularly railroads. From what I can tell, without having read the Congressional Record, given the urgency of post-war Reconstruction, these factions simply agreed to the Fourteenth Amendment, each believing that they could later control what it meant according to their preferences. The radicals got the language they wanted while the conservatives (then in control of the Presidency and the Supreme Court) retained the power to control it by interpretation (hence the full elaboration of the Amendment in the Slaughterhouse Cases, including elements having nothing to do with the case). Those factions, conservative and radical (now including the Democratic left), have fought over the meaning of the Fourteenth Amendment ever since, with the integrity of the Constitution being the clear victim.
As evidence of the intrigue involved in that fight, consider the seemingly innocuous Citizenship Clause.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Two railroad lawyers then in Congress, Roscoe Conkling and John A. Bingham, had taken the trouble to omit the word “natural” from the usual legal term “natural persons.” Both of them later admitted that their purpose in the omission was to confer the rights of citizenship to corporations (this link is to a book chapter that contains a fascinating history, the source of these few paragraphs). The railroads managed to get that interpretation out of the Supreme Court via the COURT CLERK, John Chandler Bancroft Davis (a railroad lawyer, former Assistant Secretary of State, a socialist, and quite possibly a Marxist). When he published the ruling in the case, County of Santa Clara (California) v. the Southern Pacific Railroad (118 U.S. 394 (1886)) Mr. Davis inserted his own headnotes (supposedly) quoting Chief Justice Waite prior to issuing his ruling. The note states that the Court was of the unanimous opinion that corporate persons were equivalent to Fourteenth Amendment citizens. That headnote wasn’t a ruling and therefore carried no force of law, nor is there any other record of whether a Court majority (that included several former railroad lawyers) supported such a conclusion. Chief Justice Waite was so sickly that it was unlikely he would have even known of the publication. Worse, there is evidence on the historical record of Mr. Davis having distorted for political effect his reports of a Marxist confab in Europe. In other words, Mr. Davis was not a reliable reporter of fact.
Legitimate or not, the dam had broken. Attorneys began citing Santa Clara v. Southern Pacific as if it was established precedent. Of the 307 subsequent Fourteenth Amendment cases brought before the Supreme Court, only 19 were about equal rights for human beings, while 288 were suits brought by corporations seeking the rights of natural persons. “Equal protection” had become available only for those who could afford it: corporations who had become, for the first time, “citizens” under the Fourteenth Amendment.
Corporations have limited liability, pooled risk, immortality, and can more easily concentrate capital in the hands of a few than can individuals. They can lavish executive perquisites equivalent to personal income and not a dime of tax need be paid by either. They don’t have to contend with raising children, sickness, old age, inheritance taxes, or plan for retirement. Equal protection of corporations had thus become an unequal playing field intended to benefit the investor class at the expense of small business and private land ownership, something the Founders had rightly feared, being only too familiar with the excesses of the corporations of European royalty.
"I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country." — Thomas Jefferson
That’s but one problem with the Fourteenth Amendment, and by far not the least.
Over the fifty years following the Slaughterhouse Cases, various attempts were made to invoke the radical interpretation of Fourteenth Amendment privileges and immunities. The conservative interpretation was first diluted in Gitlow v. New York (268 U.S. 652 (1925)). In that case, Mr. Benjamin Gitlow successfully invoked First Amendment protection of free speech via Fourteenth Amendment privileges and immunities against a State law prohibiting the crime of anarchy, in this case, his publication of the Communist Manifesto!
You can’t make this stuff up. Either the communists have better lawyers, or Satan has a sense of humor.
Over several ensuing decades, bits and pieces of the Bill of Rights were brought under Fourteenth Amendment protection under a doctrine known by the Orwellian name of, “selective incorporation.” The modern Court has been ruling selectively ever since.
Under this new (some say original) interpretation of the Fourteenth Amendment , a constitutional orginalist now has a very tricky problem applying the original Tenth Amendment:
OR
The Court could now have it both ways: If the emperors in black robes prefer the States have the option to decide that “public use” includes increased tax revenues from taking private property and turning it over to another private party (ala Kelo), have at it! Deny Federal jurisdiction to determine what constitutes “public use” in the spirit of Federalism. On the other hand, if State representatives pass legislation to squelch pornography or outlaw sodomy as a risk to public health, easy stuff! Just call pornography or sodomy free expression, cite the First Amendment via Fourteenth Amendment privileges and immunities, and deny the will of the voters expressed by their State representatives.
It is a koan so simple and elegantly twisted as to mystify any self-respecting Zen Master.
It was the Fourteenth Amendment selective incorporation doctrine that made the Supreme Court political, because it allowed unelected courts to usurp powers otherwise held by elected representatives. The mere existence of such judicial primacy inhibits self-government. People rightly don’t pay as much attention to discovering, promoting, and electing outstanding state and local representatives when they know that every law is subject to the very slow, expensive, remote, and seemingly indomitable powers exerted by Federal courts. Everybody’s hands are tied, nobody can make a decision, and your vote doesn’t matter much anyway because some judge can toss out the law.
But, but, but… there had been the injustice of slavery under the old system and afterward with Jim Crow laws in the reconstructed South! So, what was so bad about equal protection? Well, it goes back to that the tension that existed at the very founding of this country: Powers sufficient to reverse historic injustices can have their perverse consequences when directed to unjust purposes…
Or in other words: There’s nothing quite so malleable as a complicated web of partially contradictory precedent acknowledging countervailing truths, the construction of which the Fourteenth Amendment has transformed into a judicial entitlement.
After eighty years of selective incorporation, people have become so accustomed to an intrusive Supreme Court protecting individual rights at the expense of the majority, that it is natural that property rights activists would assume that in Kelo v. New London (No. 04—108 (2005) the Court would constrain individual protection against eminent domain takings to a uniform Federal standard. But what was particularly fascinating in the case of Kelo is that it was the Court liberals who uncharacteristically took the Federalist route: permitting any local government to define what constitutes “public use” and call THAT “equal protection.” This includes the latitude to find that “public use” includes increased tax revenues resulting from taking land from one owner and give it to another private interest (usually corporate). One need only notice how many local governments are dominated by Democrats to understand why the “liberals” on the Court ruled in such a classically conservative fashion: they were “conserving” political power sufficient to be power for sale.
Nobody should really be surprised. The majority opinion in Kelo is consistent with the selective incorporation doctrine as applied to the Fifth Amendment over the last eighty years (not to mention the corporate intent behind the drafting of the Fourteenth Amendment). Kelo merely cemented in place a status quo ante particularly common here in California, what is effectively government corruption in speculative land use. “Just compensation” is then at a price suppressed by the mere threat of such action, with much of the land’s former speculative value taken from its owner and handed to the developer as a purchase discount. The most common application is forced “redevelopment” of large blocks within cities to be replaced with high-density complexes of commercial and residential housing. Some call it Sustainable Development. This author calls it “Sustained Developers,” a system too often resembling highly organized crime.
Although anyone who believes in the sanctity of private property rights should be unhappy about how Kelo will work out for small landowners in Connecticut, one must be cautious where desirable ends are pursued by dubious means. We already have too much Federal power expressed through the courts and need to make local elections more meaningful to voters; else they will keep asking for (usually totally uncompensated) regulatory takings of uses of other people’s land, expecting that there won’t be any adverse consequences when it comes to their houses. Now, with Kelo, more people surely will focus on confining the scope of legitimate takings through their State representatives, as we have already seen in several instances (notably Utah). So, in that respect, Kelo may work out eventually to have increased property rights protections at the State level, especially when people in States without them retaliate against their more craven representatives.
Such is the beauty of representative Federalism, but it comes at an often heavy price: one has to tolerate confined injustices; else one falls to the siren song of centralized control architecture. Just as we bewail reckless borrowing in California, or democratic brutality in Venezuela, any system capable of enforcing a uniform “justice” among governments is also capable of forcing uniform tyranny without any alternatives. Just as central planning and a top-down bureaucratic global police state is inherently unaccountable because it lacks recourse, on the other hand, when a small country is left alone to develop nuclear weapons…
It’s that tension again, between distributed power and centralized control. It’s bad enough when left to representatives, but it’s worse when it is the province of judges, unaccountable to the people, and armed with laws that allow situational interpretation. Either way, unless the people are educated, mature, vigilant, and virtuous, laws will reflect narrow and temporal interests.
The lesson of selective incorporation is not constrained to the Fifth Amendment. Consider the Second Amendment, the original intent of which clearly restrains the Federal government from passing gun control laws. Although the Framers of the Constitution indisputably regarded the natural right to self-defense as individual, it is doubtful that they intended the Second Amendment to violate State power to regulate their militias in any manner they chose. Now, with the Fourteenth Amendment, if the Court wants gun control, too bad! They’ll just say that the original intent was to leave gun control up to the States and then lean on State governments to exert more gun controls using the inducement of Federal funds. If, on the other hand, the Court wants to end gun control, molon labe! Extend Federal protection under the Second Amendment to individuals via the Fourteenth. Either way, judges have the latitude to decide upon our laws.
Finally, let’s consider one of the most important natural rights of a people, that of free association. It goes without saying that for free association to exist it is just as important for a group to be able to exclude an individual as it is for an individual to be able to join that group. For example, if a group chooses to get together as a church, they rightly have the option to exclude those who express the intent to corrupt the principals and practices of that faith; else what is the point in having a church?
Now, let’s assume these folks want to do more together than just worship, but as part of the free exercise of their religion, specifically protected under the First Amendment, they also want to live with each other in a full blown city and exclude those who disagree. When the Constitution was written, such was perfectly legal. Maryland was Catholic, Pennsylvania was Quaker, New England was Protestant; now… well, that would be illegal. The ACLU would sue!
Thus, in the name of protecting the liberty of a few to live wherever they will, what we have allowed is slow destruction of free association among the many to set their own rules for common conduct. It doesn’t matter if the issue is religion, sexual orientation, or simply a common interest in rational precaution (such as keeping male homosexuals away from boys in large organized groups), free association is under attack through the courts, with far reaching consequences when it comes to developing tightly knit communities reflecting the combined will of individual people. Liberty has been tightly circumscribed in the name of “freedom” and “equality.”
This is a Constitutional koan approaching Orwellian doublethink.
On the other hand, let’s assume those folks want to do more together than just worship, but as part of the free exercise of their religion, specifically protected under the First Amendment, they also advocate a fully blown city, if it refuses to subjugate to Sharia Law. Obviously, free exercise has limits when it includes sedition, so, why is Islam seemingly off-limits? The ACLU would sue!
It is a koan in the hands of lawyers that could cost you your life.
It is the expediency with which elites and interest groups view Court action, and the high cost of access to anybody else that have led us to this state of affairs. It is government by the few, unrepresentative, inconsistent, tyrannical, and now getting dangerous.
These fundamental changes in our laws were brought about by means of Congressional perfidy and have been executed through the courts, without representation, accountability, or recourse. If the people had really wanted these changes, their elected representatives should have amended the Constitution LEGITIMATELY. While some would argue that racism is an offense so onerous as to deserve exception, one could also reasonably argue that the moral force exerted by the black leadership of the early civil rights movement had more to do with improvements in racial equality than did orders from Federal judges.
The point is: the several States and local representatives used to have the option of deciding how such things were managed by consent of the people, with the natural law of competition among communities as a the principal mediating force. Just as slavery might have become economically untenable without a horrendously expensive and destructive Civil War, now market competition among States is far less likely to exert its discipline over real estate racketeering as it normally would. As a consequence to this enforced uniformity via creeping mandates from the Federal bench, a nation in foolish lockstep wanders ever farther down the path to legal perdition, heedless of the evil foisted upon it.
I agree that the 14th Amendment was ratified in order to constitutionalize the Civil Rights Act, but that is made quite clear in both the debates surrounding the adoption of the 14th Amendment and to some extent in the passage of the Civil Rights Act itself, the constitutionality of which was debated extensively.
Government doesn't ensure prosperity; it can (or should) ensure a legal environment conducive to individual liberty which is essential to prosperity.
The article above (and its "citations," if one can call them that) make no reference to any real scholarship in the field whatsoever.
This is false.
First of all (since it says "vanity" at the top of the article and you therefore don't read very carefully), I wrote this article. So, allow me to point out the deficiency of your assertion:
Consider the first link to Article the Fourteenth in the submission to be considered for the BOR. There are enough "scholarly citations" in that piece to satisfy anybody. Strike one.
The second link contains 53 references to original sources. Strike two.
The third link to the Constitution Society contains 149 references to original sources. Strike three.
The article wasn't meant to be a scholarly discussion on the origins of the 14th Amendment, it was to be a synthesis of a number of reliable sources concerning the way it has been used and why. It was intended to help people articulate how the court has twisted the Constitution. It is intended to caution "conservatives" from relying upon federal protection through the courts, and how in the case of Kelo it backfired, thus admonishing them from future cases involving, for example, the Second Amendment. It was written for public fora (whatever you may think of them), not a scholarly law or history journal. It therefore refers to reasonably reliable sources containing appropriate citations with links, which is perfectly appropriate for a public forum.
The article attempts to portray Bingham as a crafty lawyer with a grand plan, but the debates show that Bingham was, at best, extremely sloppy and inconsistent, and at worst, an idiot.
Even the most intelligent people can easily look that way when they are covering for something, especially on paper and particularly in a setting where bombast, coercion, posturing, and butt-kissing are the currency of discourse, certainly not scholarly reason. Not to consider that possibility as the source of the record is indicative of the kind of self-reinforcing condescension that led you to conclude errantly the intent of the article.
The amendment itself appears to make a distinction (due process to persons, P&I to citizens) but the conduct of Bingham and others during the debates seems to imply that there was no distinction intended.
What they said later notwithstanding?
There isn't any reference to the debate surrounding the Civil Rights Act or the 13th Amendment, which are absolutely key to understanding the 14th Amendment. It's a joke. It's not serious.
Simply because the article did not focus upon the topic you would have preferred is not reason to say it isn't serious. I could easily say the same things about your post, because it offers nothing constructive.
It doesn't even make reference to the Congressional Globe, which the author can't even properly identify, referring to the Congressional Record, which didn't even begin publication until 1873!
How many people reading this piece would know what the Congressional Globe was? I'd bet they would think it was a newspaper. Seeing as it had a similar function as the Congressional Record, dubbing it by its modern name avoids confusion for the reader. If you think that dishonest, mea culpa.
There isn't any reference to the debate surrounding the Civil Rights Act or the 13th Amendment, which are absolutely key to understanding the 14th Amendment. It's a joke. It's not serious.
Are you defending the selective incorporation doctrine here or Miller's interpretation in the Slaughterhouse Cases? Try contributing something instead of posturing about what a studly scholar you are. It actually would be appreciated.
I am an engineer doing habitat restoration, not a legal academic or historian. I am trying, in my own limited way, to get SOMEONE to ask serious questions of Judge Roberts that will indicate his opinions on federalism, equal protection for fictitious persons, and particularly about the manner in which the 14th Amendment has been abused. I am trying, in my own limited way, to get conservatives to reconsider using the Federal courts as a venue whereby to regain accountability in government and respect for the Constitution. Are you doing that? Have you taken the time and trouble to write one? Maybe it's worth your time; maybe it isn't.
“It doesn't even make reference to the Congressional Globe, which the author can't even properly identify, referring to the Congressional Record, which didn't even begin publication until 1873! And I'm supposed to take him seriously”
Experts Honor Life of Raoul Berger
CHICAGO --- Distinguished scholars and jurists will gather at Northwestern University School of Law for a symposium to honor the life and work of the late Raoul Berger, who was one of the nation’s leading authorities and most prolific commentators on the U.S. Constitution and legal history.
The symposium honoring Berger, a 1935 graduate of the law school who passed away on Sept. 23, 2000, at age 99, is open to the public. It will be held at 4 p.m. Friday, Oct. 25, at the law school, 357 E. Chicago Ave.
The symposium will feature speeches by Judge Danny J. Boggs of the 6th U.S. Circuit Court of Appeals; Judge Edith H. Jones of the 5th U.S. Circuit Court of Appeals; Gary L. McDowell, director of the Institute of United States Studies at the University of London; and Edwin Meese III, the Ronald Reagan Distinguished Fellow of Public Policy at The Heritage Foundation.
"Raoul Berger was one of the most loyal and fervent supporters of the rule of law in general and Northwestern’s law school in particular," said Stephen B. Presser, who also will deliver a speech at the symposium. Presser, the Raoul Berger Professor of Legal History at Northwestern, knew Berger well.
Berger was the author of more than 100 articles and seven books. Among his most recent works are "Federalism: The Founder’s Design" (1987) and "The Fourteenth Amendment and the Bill of Rights" (1989).
Born in Russian Ukraine in 1901, Berger moved to the United States as a child and subsequently attended the Institute of Musical Art in New York. After leading a distinguished career as a young concert violinist for a number of years, Berger decided to pursue a different career path.
At the age of 35, he graduated from Northwestern University School of Law and first practiced law in Chicago. He worked for the Securities and Exchange Commission and as special assistant to the U.S. attorney general and general counsel to the alien property custodian during World War II. Berger began teaching law at the University of California at Berkeley in 1962 and was the Charles Warren Senior Fellow in American Legal History at Harvard University from 1971 to 1976.
His fond memories of Northwestern inspired Berger to establish the Raoul Berger Chair in Legal History, the Raoul Berger Fellowship in Legal History and the Raoul Berger Prizes Fund.
Adamson v. California (No. 102)
27 Cal.2d 478, 165 P.2d 3, affirmed.
MR. JUSTICE FRANKFURTER, concurring.
No. 102 Argued: January 15-16, 1947 --- Decided: June 23, 1947
Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court -- a period of seventy years -- the scope of that Amendment was passed upon by forty-three judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States. Among these judges were not only those who would have to be included among the greatest in the history of the Court, but -- it is especially relevant to note -- they included those whose services in the cause of human rights and the spirit of freedom are the most conspicuous in our history. It is not invidious to single out Miller, Davis, Bradley, Waite, Matthews, Gray, Fuller, Holmes, Brandeis, Stone and Cardozo (to speak only of the dead) as judges who were alert in safeguarding and promoting the interests of liberty and human dignity through law. But they were also judges mindful of the relation of our federal system to a progressively democratic society, and therefore duly regardful of the scope of authority that was left to the States even after the Civil War. And so they did not find that the Fourteenth Amendment, concerned as it was with matters fundamental to the pursuit of justice, fastened upon the States procedural arrangements which, in the language of Mr. Justice Cardozo, only those who are "narrow or provincial" would deem essential to "a fair and enlightened system of justice." Palko v. Connecticut, 302 U.S. 319, 325. To suggest that it is inconsistent with a truly free [p63] society to begin prosecutions without an indictment, to try petty civil cases without the paraphernalia of a common law jury, to take into consideration that one who has full opportunity to make a defense remains silent is, in de Tocqueville's phrase, to confound the familiar with the necessary.
After all, an amendment to the Constitution should be read in a "‘sense most obvious to the common understanding at the time of its adoption.' . . . For it was for public adoption that it was proposed." See Mr. Justice Holmes in Eisner v. Macomber, 252 U.S. 189, 220. Those reading the English language with the meaning which it ordinarily conveys, those conversant with the political and legal history of the concept of due process, those sensitive to the relations of the States to the central government, as well as the relation of some of the provisions of the Bill of Rights to the process of justice, would hardly recognize the Fourteenth Amendment as a cover for the various explicit provisions of the first eight Amendments. Some of these are enduring reflections of experience with human nature, while some express the restricted views of Eighteenth-Century England regarding the best methods for the ascertainment of facts. The notion that the Fourteenth Amendment was a covert way of imposing upon the [p64] States all the rules which it seemed important to Eighteenth Century statesmen to write into the Federal Amendments was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution. Arguments that may now be adduced to prove that the first eight Amendments were concealed within the historic phrasing [*] of the Fourteenth Amendment were not unknown at the time of its adoption. A surer estimate of their bearing was possible for judges at the time than distorting distance is likely to vouchsafe. Any evidence of design or purpose not contemporaneously known could hardly have influenced those who ratified the Amendment. Remarks of a particular proponent of the Amendment, no matter how influential, are not to be deemed part of the Amendment. What was submitted for ratification was his proposal, not his speech. Thus, at the time of the ratification of the Fourteenth Amendment, the constitutions of nearly half of the ratifying States did not have the rigorous requirements of the Fifth Amendment for instituting criminal proceedings through a grand jury. It could hardly have occurred to these States that, by ratifying the Amendment, they uprooted their established methods for prosecuting crime and fastened upon themselves a new prosecutorial system.
Indeed, the suggestion that the Fourteenth Amendment incorporates the first eight Amendments as such is not unambiguously urged. Even the boldest innovator would shrink from suggesting to more than half the States that [p65] they may no longer initiate prosecutions without indictment by grand jury, or that, thereafter, all the States of the Union must furnish a jury of twelve for every case involving a claim above twenty dollars. There is suggested merely a selective incorporation of the first eight Amendments into the Fourteenth Amendment. Some are in and some are out, but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which stay out. If the basis of selection is merely that those provisions of the first eight Amendments are incorporated which commend themselves to individual justices as indispensable to the dignity and happiness of a free man, we are thrown back to a merely subjective test. The protection against unreasonable search and seizure might have primacy for one judge, while trial by a jury of twelve for every claim above twenty dollars might appear to another as an ultimate need in a free society. In the history of thought, "natural law" has a much longer and much better founded meaning and justification than such subjective selection of the first eight Amendments for incorporation into the Fourteenth. If all that is meant is that due process contains within itself certain minimal standards which are "of the very essence of a scheme of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325, putting upon this Court the duty of applying these standards from time to time, then we have merely arrived at the insight which our predecessors long ago expressed. We are called upon to apply to the difficult issues of our own day the wisdom afforded by the great opinions in this field, such as those in Davidson v. New Orleans, 96 U.S. 97; Missouri v. Lewis, 101 U.S. 22; Hurtado v. California, 110 U.S. 516; Holden v. Hardy, 169 U.S. 366; Twining v. New Jersey, 211 U.S. 78, and Palko v. Connecticut, 302 U.S. 319. This guidance bids us to be duly mindful of the heritage of the past, with its great lessons of how liberties are won and [p66] how they are lost. As judges charged with the delicate task of subjecting the government of a continent to the Rule of Law, we must be particularly mindful that it is "a constitution we are expounding," so that it should not be imprisoned in what are merely legal forms, even though they have the sanction of the Eighteenth Century.
It may not be amiss to restate the pervasive function of the Fourteenth Amendment in exacting from the States observance of basic liberties. See Malinski v. New York, 324 U.S. 401, 412 et seq.; Louisiana v. Resweber, 329 U.S. 459, 466 et seq. The Amendment neither comprehends the specific provisions by which the founders deemed it appropriate to restrict the federal government nor is it confined to them. The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government. It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth. The Fifth Amendment specifically prohibits prosecution of an "infamous crime" except upon indictment; it forbids double jeopardy; it bars compelling a person to be a witness against himself in any criminal case; it precludes deprivation of "life, liberty, or property, without due process of law. . . ." Are Madison and his contemporaries in the framing of the Bill of Rights to be charged with writing into it a meaningless clause? To consider "due process of law" as merely a shorthand statement of other specific clauses in the same amendment is to attribute to the authors and proponents of this Amendment ignorance of, or indifference to, a historic conception which was one of the great instruments in the arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen. [p67]
A construction which gives to due process no independent function, but turns it into a summary of the specific provisions of the Bill of Rights would, as has been noted, tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom. It would assume that no other abuses would reveal themselves in the course of time than those which had become manifest in 1791. Such a view not only disregards the historic meaning of "due process." It leads inevitably to a warped construction of specific provisions of the Bill of Rights to bring within their scope conduct clearly condemned by due process but not easily fitting into the pigeonholes of the specific provisions. It seems pretty late in the day to suggest that a phrase so laden with historic meaning should be given an improvised content consisting of some, but not all, of the provisions of the first eight Amendments, selected on an undefined basis, with improvisation of content for the provisions so selected.
And so, when, as in a case like the present, a conviction in a State court is here for review under a claim that a right protected by the Due Process Clause of the Fourteenth Amendment has been denied, the issue is not whether an infraction of one of the specific provisions of the first eight Amendments is disclosed by the record. The relevant question is whether the criminal proceedings which resulted in conviction deprived the accused of the due process of law to which the United States Constitution entitled him. Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward [p68] those charged with the most heinous offenses. These standards of justice are not authoritatively formulated anywhere as though they were prescriptions in a pharmacopoeia. But neither does the application of the Due Process Clause imply that judges are wholly at large. The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice, and is not to be based upon the idiosyncrasies of a merely personal judgment. The fact that judges, among themselves, may differ whether, in a particular case, a trial offends accepted notions of justice is not disproof that general, rather than idiosyncratic, standards are applied. An important safeguard against such merely individual judgment is an alert deference to the judgment of the State court under review.
*
The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law is not new in the constitutional history of the English race. It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the fourteenth amendment, in the year 1866.
FRANKFURTER, J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
Bartkus v. Illinois
No. 1 Argued: November 19, 1957 --- Decided: March 30, 1959
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
2. The Fourteenth Amendment does not impliedly extend the first eight amendments to the States. Pp. 124-126.
Since the new prosecution was by Illinois, and not by the Federal Government, the claim of unconstitutionality must rest upon the Due Process Clause of the Fourteenth Amendment. Prior cases in this Court relating to successive state and federal prosecutions have been concerned with the Fifth Amendment, and the scope of its proscription of second prosecutions by the Federal Government, not with the Fourteenth Amendment's effect on state action. We are now called upon to draw on the considerations which have guided the Court in applying the limitations of the Fourteenth Amendment on state powers. We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. [n2] The relevant historical materials have been canvassed by this Court and by legal scholars. [n3] These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a shorthand incorporation of the first eight amendments, making them applicable as explicit restrictions upon the States.
Evidencing the interpretation by both Congress and the States of the Fourteenth Amendment is a comparison of the constitutions of the ratifying States with the Federal [p125] Constitution. Having regard only to the grand jury guarantee of the Fifth Amendment, the criminal jury guarantee of the Sixth Amendment, and the civil jury guarantee of the Seventh Amendment, it is apparent that, if the first eight amendments were being applied verbatim to the States, ten of the thirty ratifying States would have impliedly been imposing upon themselves constitutional requirements on vital issues of state policies contrary to those present in their own constitutions. [n4] Or, to approach the matter in a different way, they would be covertly altering provisions of their own constitutions in disregard of the amendment procedures required by those constitutions. Five other States would have been undertaking procedures not in conflict with, but not required by, their constitutions. Thus, only one-half, or fifteen, of the ratifying States had constitutions in explicit accord with these provisions of the Fifth, Sixth, and Seventh Amendments. Of these fifteen, four made alterations in their constitutions by 1875 which brought them into important conflict with one or more of these provisions of the Federal Constitution. One of the States whose constitution had not included any provision on one of the three procedures under investigation adopted a provision in 1890 which was inconsistent with the Federal Constitution. And so, by 1890, only eleven of the thirty ratifying States were in explicit accord with these provisions of the first eight amendments to the Federal Constitution. Four were silent as to one or more of the provisions, and fifteen were in open conflict with these same provisions. [n5] [p126]
Similarly imposing evidence of the understanding of the Due Process Clause is supplied by the history of the admission of the twelve States entering the Union after the ratification of the Fourteenth Amendment. In the case of each, Congress required that the State's constitution be "not repugnant" to the Constitution of the United States. [n6] Not one of the constitutions of the twelve States contains all three of the procedures relating to grand jury, criminal jury, and civil jury. In fact, all twelve have provisions obviously different from the requirements of the Fifth, Sixth, or Seventh Amendments. And yet, in the case of each admission, either the President of the United States or Congress or both have found that the constitution was in conformity with the Enabling Act and the Constitution of the United States. [n7] Nor is there warrant to believe that the States, in adopting constitutions with the specific purpose of complying with the requisites of admission, were, in fact, evading the demands of the Constitution of the United States.
391 U.S. 145
Duncan v. Louisiana
APPEAL FROM THE SUPREME COURT OF LOUISIANA.
No. 410 Argued: January 17, 1968 --- Decided: May 20, 1968
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting.
I believe I am correct in saying that every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States. [n2] They were wont to believe rather that the security of liberty in America rested primarily upon the dispersion of governmental power across a federal system. [n3] The Bill of Rights was considered unnecessary by some, [n4] but insisted upon by others in order to curb the possibility of abuse of power by the strong central government they were creating. [n5]
9. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949). Professor Fairman was not content to rest upon the overwhelming fact that the great words of the four clauses of the first section of the Fourteenth Amendment would have been an exceedingly peculiar way to say that
The rights heretofore guaranteed against federal intrusion by the first eight Amendments are henceforth guaranteed against state intrusion as well.
He therefore sifted the mountain of material comprising the debates and committee reports relating to the Amendment in both Houses of Congress and in the state legislatures that passed upon it. He found that, in the immense corpus of comments on the purpose and effects of the proposed amendment, and on its virtues and defects, there is almost no evidence whatever for "incorporation." The first eight Amendments are so much as mentioned by only two members of Congress, one of whom effectively demonstrated (a) that he did not understand Barron v. Baltimore, 7 Pet. 243, and therefore did not understand the question of incorporation, and (b) that he was not himself understood by his colleagues. One state legislative committee report, rejected by the legislature as a whole, found § 1 of the Fourteenth Amendment superfluous because it duplicated the Bill of Rights: the committee obviously did not understand Barron v. Baltimore either. That is all Professor Fairman could find, in hundreds of pages of legislative discussion prior to passage of the Amendment, that even suggests incorporation.
To this negative evidence the judicial history of the Amendment could be added. For example, it proved possible for a Court whose members had lived through Reconstruction to reiterate the doctrine of Barron v. Baltimore, that the Bill of Rights did not apply to the States, without so much as questioning whether the Fourteenth Amendment had any effect on the continued validity of that principle. E.g., Walker v. Sauvinet, 92 U.S. 90; see generally Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 Stan.L.Rev. 140 (1949).
It's probably not, for the simple reason that no matter what anyone would like, we're not going to roll the clock back to 1868 and re-adopt an "originalist" 14th Amendment. These issues are settled, and at this point, it's just too much to undo--it's too much to undo even the jurisprudence from, say, 1954 on. It can't happen, for a lot of reasons.
As I mentioned on another thread, while a lot of people say they don't like "judicial activism," what they mean is NOT that they don't like judges expanding the meaning of the constitution, what they don't like is judges expanding the meaning of the constitution in a way with which they disagree. For instance, take Brown. I think it's really beyond debate that Brown was wrongly decided from a legal perspective. Shoot, Warren didn't even really try to defend it in the opinion, other than to say that it's obvious that segregation is unconstitutional. It's really not so obvious, but that's not the point; while Brown was certainly controversial at the time--especially in the South--Brown is pretty much universally accepted now as a "right" or "progressive" decision by the Court. Everyone knowns that Brown was wrong and feels guilty about it, which is why there are about a zillion law review articles that try and defend it, but everyone also agrees, for the most part, that it was a good thing on balance.
That's the hard part. An original intent 14th Amendment world is very different than the one we live in today. Schools could be segregated on the basis of race, the government could (at least indirectly, if not outright) discriminate on the basis of race with respect to the franchise, 15th Amendment notwithstanding (it's hardly been used, anyhow), the government could discriminate on the basis of sex in every manner, it could discriminate against the handicapped or the mentally ill or whatever. Are you totally comfortable with that? Even if you are, that's great, I applaud you for your consistency, but anyone has to admit that it leads to uncomfortable results.
But, of course, uncomfortable results would be fine if the political process worked correctly. Democracy (or Republicanism, whatever) is great if everyone acts in good faith, but what if one group in power systemically discriminates against other minority groups? The political process breaks down because people don't act in good faith. They are rent-seeking. There is an interesting law review article that talks about game theory and the political process theory that addresses this very point: that game theory drives majority groups to systemically discriminate against minority groups in order to maximize their own benefit.
So if the political deck is stacked, then relying on the political process to rectify the failings of government is self-defeating. Moreover, even if you don't accept the notion that the political deck is stacked, you have to admit that there is a breakdown when majority groups attempt to circumvent the political process by restricting either access to the franchise (or by diluting voting strength) or reducing the practical ability of certain groups to participate in the political process (by, say, substandard education). In both these situations, the political process is no answer at all. Take Brown again, for instance. Let's say Vinson didn't die and Brown was decided the other way, which would have been a distinct possibility. Assuming the judiciary stayed out of the civil rights movement altogether, how long would it have taken to desegregate schools? 1970? 1980? It probably would have happened eventually, but how much longer? Is 25 or 35 years an acceptable time frame for the political process to correct errors? If not, what's the answer?
Look, I'm not saying this to mean that originalism should be questioned or doubted; I think it's the best way to interpret the constitution. What I am saying that's it's not such a black and white issue as some folks want to make it out to be. Originalism leads to some bad results sometimes that might not always be fixed by the political process, and then you've got a real dilemma. I don't think Ely's political process theory is an acceptable answer, but I don't know what the answer is. That's the hard part.
I don't know who this "everyone" is that you're referring to, but the vast majority of Americans have no idea that it was wrongly decided. They've all been told from grade school on that it was a triumph of the Constitution against a corrupt system that managed to resist its dictates for so long.
In fact, not only do they not know that it was wrongly decided, they don't even really know what it decided. Contrary to widespeard popular belief, it did not overturn Plessy vs Ferguson. Instead, it went through contortions to try to uphold that earlier precedent while insisting that it didn't apply to the field of public education. The upshot was that the court decided, probably for the first time ever, that a law or policy can be unconstitutional because of the way it makes those affected by it "feel". That's a horrible precedent to set.
If "everyone" was aware of these things, then it's highly likely that not "everyone" would consider it a good thing.
If "everyone" was aware of these things, then it's highly likely that not "everyone" would consider it a good thing.
As I said, just run a search on Brown on Lexis or Westlaw and you'll find about 10,000 law review articles defending Brown. As I mentioned in my post above, begin with Bickel's 1955 Harvard Law Review article. Bickel was a clerk for Frankfurter on the 1954 Court that decided Brown and whose task was to compile the legislative history of the 14th Amendment.
Or, they would have to have been told by someone who knows the law. But as it is, such voices have been completely shut out from the public forum. If, however, that were to change, then public opinion would almost certainly change. So the only question remaining is, are you helping to make that change, or are you helping to keep it the way it is? If you're helping to keep it the way it is, then you're helping judicial activism to reign supreme, because once it's accepted in this one case, there's no objective standard that can be invoked that would prevent it in other cases.
[Reprinted from Issues & Views July 15, 2003]
The following was originally sent by legal analyst Ellis Washington as a letter to Detroit News reporter Kimberly Hayes Taylor, in reference to her article about a recent fundraiser hosted by Judge Damon J. Keith, of the U.S. Circuit Court of Appeals, and Michigan Governor Jennifer Granholm. This gala event celebrated the 1954 Brown v. Board of Education Supreme Court decision. Washington had planned to attend the event but, upon reflection, decided he could not give it his support. He tells why.
Dear Ms. Kimberly Hayes Taylor:
This letter is in regard to your article, "Judge Damon Keith, governor host fund-raiser on Saturday." I just heard about this event listening to NPR today and planned on attending because I have always wanted to meet Judge Keith, however, after further reflection, I decided not to attend this event on principle.
What is the principle you might ask? Brown v. Board of Education, arguably one of the most famous cases of the 20th century, is the reason. Ms. Taylor, let me be clear, as a law scholar, writer and lecturer, I have studied this opinion in great detail and even more importantly, I have studied the constitutional law and legal history behind this decision and have come to the following conclusions about this most noted case:
Allow me to sarcastically surmise that "self esteem" was why black people for over 250 years suffered the incessant rapes, the torturing, the lynchings, the back breaking work, the maniacal mayhem of slavery in America; that avoiding "feelings of inferiority" was why hundreds of thousands of people (black and white) were killed in the Civil War that ended slavery; and that improving "their status in the community" and going to school with white people was why millions of black people suffered for another 100 years after slavery ended under the bondage of Jim Crow segregation.
Bluntly speaking, Ms. Taylor, the type of pop psychology masquerading as legal reasoning the Court used in the 1954 Brown decision was totally fraudulent then as it is totally fraudulent now--lacking in any legitimate judicial precedent, a valid historical context, or plausible constitutional foundation. The Brown opinion forever created in the minds of American society that black people are not equal to white people based on the moral suppositions of the Constitution.
The entire Brown opinion should have been one, perhaps two paragraphs long. All the Court had to do was rely on the explicit text of the Constitution that all nine members of the Supreme Court are sworn to uphold by mandate of impeachment.
For over 100 years it has been settled Supreme Court precedent that all American citizens have a "liberty interest" in education, earning a living, etc. The 13th Amendment [Anti-slavery Clause] ended the savage practice of one man owning another man as property; 14th Amendment --"No State shall . . . abridge the privileges and immunities of citizens of the U.S. [or of] life, liberty, or property, without due process of law [Privileges and Immunities Clause]; nor deny . . . the equal protection of the laws" [Equal Protection Clause]. The 15th Amendment stipulates that "The right of citizens of the U.S. to vote shall not be denied or abridged by the U.S. or by any State on account of race, color, or previous condition of servitude."
Instead of relying on these explicit constitutional guarantees, the Court chose to compromise and used sophistic social science in a legal case that would cripple the education and lives of millions of black children for generations to come.
With all due respect to Judge Damon Keith (a jurist of the highest order) this gala event tomorrow [May 17, 2003] celebrating the Brown v. Board of Education case, is a terrible tragedy, not because I don't believe that black people should be allowed to attend school with whites. I am a black man--born and raised in Detroit and attended Detroit public schools with white children from K-12. However, to celebrate a court case such as Brown, which is obviously not based on a single judicial precedent, diminishes the Constitution that every American should put its faith in to uphold.
In 1954, there was a Faustian bargain made among the eight voting members of the U.S. Supreme Court, Congress, the President, as well as every court in America, every political leader, every public school, private school, law school, university, academy, and every responsible American citizen. To give legitimacy to Brown v. Board of Education, is to sacrifice lawful constitutional due process and sound constitutional jurisprudence for the expediency of the public policy fiction, which the Brown opinion solidified in American culture--that is, that black children must be allowed to attend public school with white children in order to get [equally] educated.
This type of misguided public policy presupposes that black people, prior to 1954, were totally uneducated, ignorant and, just waiting for Masser to open up the school house door so us poor negroes can finally get educated by going to school with the white folks! Ms. Taylor, the hateful assumptions Brown makes about our people should be publicly denounced by all rational persons of any race, class or creed.
In the final analysis, I hope that you will read the selected passages on the Brown opinion in my book, The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law (University Press of America,); mtownsend@univ.press.com, or http://www.univpress.com.
-- Ellis Washington, J.D., is Adjunct Professor of Business Law and Contracts at Davenport University, Dearborn, Michigan.
[See also The Issue is Economics, Not Who Likes You: The Damage of Brown v. Board of Education]
Copyright © 2005 Issues & Views
Good article. This koan permits legislating from the bench regardless of the clear intent of the Constitution.
Which "clear intent" are you talking about?
OR
A 14th Amendment that fully incorporates the BOR and injects federal power to protect individuals against State laws?
Favorite line from this piece on some issues that have always bothered me, without realizing exactly why.
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