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You are reading the appendix to"The
37th Amendment," a novel by Susan Shelley. Copyright 2002. All
rights reserved. This material may not be republished, retransmitted,
printed, copied or distributed in any manner, in whole or in part, without
the written consent of the author. Permission is granted for publication
of short excerpts in the context of a review or commentary, provided the
material is appropriately credited.
Incorporation of the Bill of Rights into the Fourteenth Amendment, Why It's a Problem, and How to Fix It Copyright 2002
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(This essay is the appendix to The 37th Amendment, a novel by Susan Shelley. Available at BarnesandNoble.com, Amazon.com, and wherever books are sold, or read it online by clicking here.)
In 1991, the Supreme Court of the United States considered this question: Do the dancers at the Kitty Kat Lounge in South Bend, Indiana, have a First Amendment right to perform totally nude, or can they be forced under the state's public indecency law to wear pasties and G-strings? "Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment," Chief Justice William Rehnquist noted. "Pasties and a G-string moderate the expression to some degree," Justice David Souter observed. "Nude dancing conveys an erotic message," Justice Byron White argued, and "the message would be muted if the dancers wore pasties and G-strings." The justices applied a complex four-part balancing test to determine if the Indiana indecency law was sufficiently justified to warrant an intrusion on the Kitty Kat dancers' constitutionally-protected right to freedom of speech.1 This case would have shocked James Madison, but not because there were nude dancers in Indiana. What would have floored the man who has been called "the father of the Constitution"2 was the sight of the U.S. Supreme Court using the First Amendment to question the validity of a state law. You see, he proposed exactly that to the First Congress in 1789. Rep. James Madison's proposal was voted down. The fact is, the people of the United States never agreed to have the First Amendment, or the rest of the Bill of Rights, restrict the actions of state governments. Ridiculous, you might say. State laws on everything from pornography to school prayer have been struck down by the Supreme Court as a violation of the First Amendment. Local police are required to read suspects their rights in accordance with the Fifth Amendment. Evidence seized illegally is inadmissible in a state court under the Fourth Amendment. How could any of that be possible if the Bill of Rights doesn't apply to the states? Here's how: Over the course of the 20th century, the justices of the U.S. Supreme Court made a fundamental change to the structure of government set up by the Constitution. They did it without a public debate and without a constitutional amendment. They did it by inventing an interpretation of the clause in the Fourteenth Amendment that reads, "nor shall any State deprive any person of life, liberty or property, without due process of law." This interpretation is known as the "incorporation" doctrine. It is the surprisingly recent assertion that some of the protections listed in the first ten amendments to the U.S. Constitution--the Bill of Rights--are "incorporated" into the Fourteenth Amendment's due process clause, and therefore binding on the states as well as the federal government. The incorporation doctrine gradually expanded to include all rights that a majority of justices considered "fundamental" to the conception of due process of law. The justices acknowledged that there might be times when a state legitimately needed to restrict a fundamental right, but the Court established that the states must show a compelling reason for such a law or it would not be permitted to stand. In this manner, the U.S. Supreme Court gave itself a veto over state and local laws as well as control of police procedures in every jurisdiction in the country. These are powers that were specifically denied to the federal government by the framers of the Constitution and the Fourteenth Amendment. The carefully-constructed division of powers in the American system of government owes much to one historical fact: the states were first. In 1776, when the thirteen original colonies declared their independence from Great Britain, each former colony adopted its own state constitution and established its own state government. There was general agreement on the immediate need for some sort of national union. Articles of Confederation were drafted, but Congress debated them for a year before they were sent out to the states for approval, and the states took three years to ratify them. Apparently there was some disagreement as well.3 The Articles of Confederation, which formally took effect in 1781, established a weak central government with no ability to enforce its policies on the states. It consisted of a Congress in which each state had one vote. Nothing important could be done unless at least nine states agreed, so, for all intents and purposes, nothing important could be done.4 After the Revolutionary War, with various disputes between the states proving unresolvable under the existing structure, the Congress called a federal convention in Philadelphia "for the sole and express purpose of revising the Articles of Confederation."5 The convention met on the second Monday of May, 1787, and spent the summer drafting what became the Constitution of the United States. It was not an easy job. The states were cautiously willing to strengthen the powers of the national government, but they were unwilling to give up their own general power to govern internal state affairs.6 It is in this context that the constitutional structure, known as federalism, was created.
Federalism was an entirely new system in which there would be two governments
over the same physical area, co-existing through a division of powers. James
Madison explained it this way: The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce....The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.7
A lot of people felt this still gave the federal government too much wiggle room. The call went up for a Bill of Rights, a clearly written list of limits on the federal government's power. Former New York delegate and future Treasury Secretary Alexander Hamilton was irritated. "[W]hy declare that things shall not be done which there is no power to do?" he asked.8 Former Virginia delegate and future President James Madison agreed. He worried that by listing rights which the federal government could not infringe, the Constitution would imply that any right not on the list could be infringed.9 The whole idea of a written Constitution was to limit the federal government to those powers specifically listed in the document, not to create unlimited federal power by implication.10 But Madison had a problem. He had just been out-maneuvered in his attempt to win a Senate seat from Virginia and was now running for election to the House. Facing a public outcry in support of a Bill of Rights he opposed, Madison changed his position and decided to support it. "It is my sincere opinion that the Constitution ought to be revised," he wrote during the campaign, "and that the first Congress meeting under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights...." Madison was elected easily.11
When the First Congress convened, Rep. Madison took the lead in drafting
the amendments that would become the Bill of Rights. While he was at it,
he pointed out to his colleagues that infringement of rights by the federal
government was only part of the threat to liberty. "[T]he State governments
are as liable to attack these invaluable privileges as the General Government
is," Madison said, "and therefore ought to be as cautiously guarded
against."12 Madison
suggested this amendment: No state shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases.13
So the states would continue to have the power, subject to their own state constitutions, to violate all the rights Madison's amendment would have protected.
Can that be right? Is it possible that the Founding Fathers really meant
for state governments to have the power to restrict freedom of the press?
Consider this statement from one of them, contained in an 1804 letter to
Abigail Adams: While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right, to do so.
That was Thomas Jefferson.15 You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley. Copyright 2002. All rights reserved. This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author. Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited. James Madison did persuade the Congress to accept an amendment designed to eliminate the unlimited-federal-power-by-implication problem that concerned him. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Many people still feared, despite repeated assurances, that the federal government would find a way to trample on the states' reserved powers. The Congress attempted to lay those fears to rest with what became the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." What did the U.S. Supreme Court think of all this? What did it matter? The Constitution gave the Supreme Court no role in the amending process, no role in the making of law, no role in the making of public policy. No kidding. The delegates to the Constitutional Convention in Philadelphia actually considered a proposal to involve the justices in the lawmaking process. Edmund Randolph of Virginia suggested that "a convenient number of the national judiciary" should join with the president to form a Council of Revision, which would have veto power over legislative acts passed by Congress. The Council of Revision would be empowered to consider the wisdom of the legislation, in recognition of the fact, as James Wilson of Pennsylvania explained, that "laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect."16 Not only was the Council of Revision proposal voted down, it was voted down twice.17 Nathaniel Gorham of Massachusetts pointed out that judges "are not to be presumed to possess any peculiar knowledge of the mere policy of public measures." John Dickinson of Delaware opposed the idea on the grounds that as "the Judges must interpret the Laws, they ought not to be legislators." James Madison supported the proposal, arguing that a check on the legislature was necessary, but once again he was voted down. More in line with the majority view was Elbridge Gerry of Massachusetts, who argued that the judges would have "a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality."18 The veto power was given to the president alone.19 The Bill of Rights, which everybody agreed applied only to the national government and not to the states,20 was passed by the First Congress, ratified by the states, and made part of the Constitution in December, 1791. Here's the final version:
No, it doesn't, said Chief Justice John Marshall, not if it's a state that's
taking the property. He wrote: [T]he provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.21
Federalism might have lived happily ever after, if the states hadn't ratified a Constitution that permitted slavery. In the annals of catastrophic mistakes, that was a lulu.
After the Civil War, in 1865, the Thirteenth Amendment
was ratified, establishing that "Neither slavery nor involuntary
servitude...shall exist within the United States, or any place subject to
their jurisdiction." In 1868, the Fourteenth Amendment was ratified. Its
first section reads: 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. 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.
It's easier to say what it didn't mean. It didn't mean blacks could vote, serve on juries, hold public office, attend desegregated schools, or intermarry with whites. It didn't mean every unfair state law violated the United States Constitution. And it still didn't mean the Bill of Rights applied to the states. Then what did it mean? To the U.S. Congress in 1866, it meant states would not be permitted to enact grotesque new laws to keep the former slaves in a condition as near to slavery as possible. In late 1865, after the Civil War had ended but before the 39th Congress had convened, the legislatures of eight Southern states began work on a body of new laws to regulate the lives of the former slaves. And what a piece of work it was. In Mississippi, to take one state as an example, the law banned blacks from owning land and prohibited them from renting or leasing except in places controlled by local authorities. The law restricted blacks from testifying against whites in court. It imposed fines and imprisonment on blacks who falsely reported themselves to be the victim of a crime committed by whites. The law required blacks to contract to do a year's work, and if they quit early without good cause, to forfeit their entire year's wages. Employers had the legal right to recapture any black employee who deserted. New laws against vagrancy made it a crime for a black person to be unemployed, to "misspend" his earnings or to fail to pay a head tax that was imposed exclusively on blacks in order to establish a Freedman's Pauper Fund. Also against the law, just for blacks: "insulting gestures, language or acts," and "exercising the function of a Minister of the Gospel without a license from some regularly organized church."23 These types of laws were known generally as the Black Codes. When the 39th Congress convened in December, 1865, an immediate effort was begun to wipe the Black Codes off the books. The leadership began work on both a civil rights bill and a constitutional amendment that would duplicate its provisions. They reasoned that a future Congress might try to repeal the civil rights bill, but a constitutional amendment could not be reversed by a simple majority vote.24 Any change to the Constitution requires a two-thirds vote of each house of Congress (or a Constitutional Convention requested by two-thirds of the state legislatures), and the ratification of three-quarters of the states.25
The Civil Rights Bill of 1866, as originally considered in the House and
Senate, had two clauses in Section I: [1] That there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery....
At least that's what the 39th Congress thought, and that's why they took it out. They took it out. The first clause of Section I of the Civil Rights Bill, guaranteeing no discrimination in civil rights on account of race, was stricken from the bill before the House of Representatives passed it. Judiciary Committee Chairman James F. Wilson of Iowa cordially explained,
Not intended. The Civil Rights Act of 1866 was not intended to strike down all racially discriminatory state laws. Senator Lyman Trumbull assured the Senate, and Rep. James F. Wilson promised the House, that the Civil Rights Act would not abolish state laws that prohibited blacks from voting or serving on juries, required racially segregated schools, or banned interracial marriage.28 Congress took out the "no discrimination" language to remove any possibility that a future court would give the Civil Rights Act a "latitudinarian construction," or what we would call a broad interpretation. This matters because, as legal historian Charles Fairman pointed out many years later, the Fourteenth Amendment was considered to be identical (in its first section) with the Civil Rights Act of 1866. "Over and over in this debate," Fairman wrote, "the correspondence between Section One of the Amendment and the Civil Rights Act is noted. The provisions of the one are treated as though they were essentially identical with those of the other."29
There is more evidence that the amendment was not intended to secure full
equality to black Americans. Rep. Thaddeus Stevens of Pennsylvania proposed
on January 12, 1866, that the first section of the Fourteenth Amendment should
read: All laws, state or national, shall operate impartially and equally on all persons without regard to color or race.
The intent of the 39th Congress was to secure a limited category of rights
to the freedmen. To explain these fundamental rights, Judiciary Committee
Chairman Wilson read to the House the definition written by 18th-century
English legal scholar William Blackstone in a chapter from his Commentaries
on the Laws of England entitled "The Absolute Rights of Individuals":
[T]hese may be reduced to three principal or primary articles...
That's why slavery was both a tragedy and a mockery: for the first 76 years of its existence, the U.S. Constitution permitted some human beings to be property, thereby requiring the nation to protect freedom by enforcing slavery. This bitter contradiction was not corrected until 1865 with the ratification of the Thirteenth Amendment, abolishing slavery in the United States and all its territories. So the framers of the Fourteenth Amendment thought they were doing quite a lot for black Americans. Having removed the ex-slaves from the category of property, they now guaranteed to them as free citizens all of Blackstone's fundamental rights. The freedmen would have the protection of the full force of the United States government to secure their right to life, liberty and property. Political rights, however, including the right to vote,32 serve on juries and hold public office, were left to the states to determine, as were social matters such as intermarriage and segregation.
Is it really possible that the North fought a Civil War and ended slavery
without ever intending to confer full equality on the freed slaves? Consider
this statement from one Northern politician in 1859: I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and the black races . . . I am not, nor ever have been, in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this, that there is a physical difference between the white and the black races, which, I believe, will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I, as much as any other man, am in favor of having the superior position assigned to the white race.
That was Abraham Lincoln.33 You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley. Copyright 2002. All rights reserved. This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author. Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited. It's a harsh but revealing view of the political climate in mid-19th century America. Even the leaders who spoke out against slavery spoke out against racial equality with equal force, especially if they were running for office. In this light, the limited goals of the Fourteenth Amendment may be plainly seen and comprehended. The amendment prohibited states from abridging the "privileges and immunities" of U.S. citizens or denying "due process of law" or "the equal protection of the laws" to any person, but those terms were understood far more narrowly in 1868 than they are today. The language of the new Fourteenth Amendment was put to the test almost immediately by people who thought the Supreme Court would use it to strike down oppressive state laws. Hopes were dashed abruptly by the Slaughter-House Cases in 1872, when the Court ruled 5-4 that a New Orleans law requiring butchers to give up their own facilities and work in a monopoly-controlled slaughter-house did not infringe the privileges and immunities of U.S. citizens under the Fourteenth Amendment, because everybody knew the "pervading purpose" of the Fourteenth Amendment was to secure fundamental rights to black people.34 Once the Court took "privileges and immunities" out of the game as a weapon to strike out state laws, it was perhaps only a matter of time before "due process" got the call. The bullpen phone rang in 1897 with the case of Chicago, Burlington & Quincy Railroad Co. v. Chicago.35 The case involved a railroad company that had sued the city of Chicago for opening a public street across the railroad's land. The constitution of the state of Illinois provided that "Private property shall not be taken or damaged for public use without just compensation," and the railroad went to court to demand payment. There was a trial. The jury agreed that the railroad was entitled to be compensated for the loss of its land, and the jurors awarded damages of exactly one dollar. The Illinois Supreme Court upheld the decision. The railroad appealed to the U.S. Supreme Court, arguing that a payment of one dollar was so low that it deprived them of their property without due process of law, a plain violation of the Fourteenth Amendment. Was the railroad company really denied due process of law? What exactly is due process of law?
In his opinion for the Court, Justice John Marshall Harlan explained:
[T]his court has said that a trial in a court of justice according to the modes of proceeding applicable to such a case, secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government...met the requirement of due process of law. 36
[A] state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form.37
"[W]e do not wish to be understood as holding that every order or ruling of the state court in a case like this may be reviewed here," Justice Harlan wrote.38 Well, that clears that up.
Incidentally, the Court affirmed the Illinois Supreme Court's decision to
let the one-dollar award stand, ruling that the railroad did receive due
process, and the jury had reasonably concluded that nobody would pay more
than a dollar for a piece of land when anything built on it would be hit
by a train. Continued
Due process is for bakeries, not people. Buy this book now at: BarnesandNoble.com Amazon.com
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