target="_blank" rel="nofollow" href="#ulink_83953e38-da70-5bb7-bf7b-2bd8fdfcc8bc">26. For an encapsulation of this history, see Supplementary Note on the Civil Rights Act, text accompanying notes 7 through 24.
27. The Reconstruction Amendments’ Debates 143 (Alfred Avins ed. 1967).
28. Id. 237. See also the Report of the Joint Committee on Reconstruction, which drafted the Amendment. Id. 94.
29. For the “gap” materials, see Raoul Berger, “The Fourteenth Amendment: Light From the Fourteenth,” 74 Nw. U. L. Rev. 311, 321–323 (1979); United States v. Reese, 92 U.S. 214, 217–218 (1876): the Fifteenth Amendment “has invested the citizen of the United States with a new right.” Mark that the “one man-one vote” doctrine rests on the Fourteenth Amendment.
30. Justice Story declared that “we are not at liberty to add one jot of power to the national government beyond what the people have granted by the constitution.” Houston v. Moore, 18 U.S. (5 Wheat.) 1, 48 (1820), dissenting opinion.
31. 347 U.S. 483 (1954). An activist sympathizer asked, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under the amendment?” Richard Kluger, Simple Justice 635 (1976).
32. “It is in this recognition of the practical, present and future-looking consequences of constitutional symbols that a proper beginning point for a book on constitutional law must lie.” Robert Cover, “Book Review,” New Republic, Jan. 14, 1978, at 26, 27. The duty of an historian is to ascertain what happened, not to ignore the historical facts for fear of “future consequences.”
33. Bruce Ackerman, We the People: Foundations 133 (1991). “Only a mobilized mass movement,” Ackerman noted, “might encourage progressive Democrats and Republicans to overcome massive Southern resistance to new civil rights legislation.” At the time Brown was “argued and reargued . . . such a mass movement did not exist.” Id. 135. During the oral argument Justice Jackson commented, “realistically the reason the case is here is that action could not be obtained from Congress.” Alexander Bickel, The Supreme Court and the Idea of Progress 6 (1978). Edmond Cahn stated, “it would have been impossible to secure adoption of a constitutional amendment to abolish ‘separate but equal.’ ” Edmond Cahn, “Jurisprudence,” 30 N.Y.U. L. Rev. 150, 156–157 (1955).
34. Ackerman, supra note 33 at 133; Cahn, supra note 33.
35. A similar messianic role is assumed by Justice Brennan with respect to death penalties. Despite the Fifth Amendment’s recognition that a person may be deprived of life provided he is accorded due process, despite Brennan’s recognition that the majority of his brethren and of his fellow Americans do not share his views, he persists in “striving for human dignity for all,” that is, abolition of the death penalty. For extended discussion, see Raoul Berger, “Justice Brennan vs. the Constitution,” 29 B.C. L. Rev. 787, 796–798 (1988). See also Supplementary Note on the Role of the Court, notes 19 and 20.
36. Richard Kluger, Simple Justice 635 (1976).
37. Kelly, Fourteenth 1049, 1085. When desegregation of the District of Columbia schools was under discussion in April 1860, Senator James Harlan of Iowa said, “I know that there is an objection to the association of colored children with white children in the same schools. This prejudice exists in my own State. It would be impossible to carry a proposition to educate the few colored children that now live in that State in the same school houses with white children. It would be impossible, I think, in every one of the States of the Northwest.” Avins, supra note 27 at 22.
38. Howard Jay Graham, Everyman’s Constitution 290 note 70 (1968).
39. For continued attachment to State sovereignty, see infra pp. 77–80; Berger supra note 29 at 324–326. Lord Acton described the preservation of States’ rights as the “redemption of democracy.” Robert Speaight, The Life of Hilaire Belloc 132 (1957).
Justice Story stated, “it is perfectly clear that the sovereign powers vested in the state governments . . . remain unaltered and unimpaired, except so far as they were granted to the government of the United States.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 325 (1816). Federal invasion of that zone bears the burden of proving that it is authorized by the federal delegation.
Henry Adams wrote, “The doctrine of states’ rights was itself a sound and true doctrine; as a starting point of American history and constitutional law there is no other which will bear a moment’s examination . . . its prostitution to the base uses of the slave power was one of those unfortunate enlargements which often perturb and mislead history.” Henry Adams, John Randolph 273 (1882).
40. Avins, supra note 27 at 163.
41. Paul Brest, “Book Review,” N.Y. Times, Dec. 11, 1977, §11 at 10; Sanford Levinson, “The Turn Toward Functionalism in Constitutional Theory,” 8 U. Dayton L. Rev. 567, 578 (1983); Nathaniel Nathanson, “Book Review,” 56 Tex. L. Rev. 579, 580–581 (1978); Michael Perry, “Interpretivism, Freedom of Expression, and Equal Protection,” 42 Ohio St. L.J. 261, 292 (1981); David A. J. Richard, “Abolitionist Political and Constitutional Theory and the Reconstruction Amendments,” 25 Loyola L.A. L. Rev. 1143, 1187 (1992); Mark Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harv. L. Rev. 781, 800 (1983). Judge Learned Hand said of Brown v. Board of Education, “I have never been able to understand on what basis it does or can rest except as a coup de main.” Learned Hand, The Bill of Rights 55 (1962).
42. Ronald Dworkin, “The Forum of Principle,” 56 N.Y.U. L. Rev. 469, 486–487 (1981). Similar fantasizing is exhibited by John Hart Ely: the framers of the Fourteenth Amendment issued on “open-and-across-the-board invitation to import into the constitutional decision process considerations that will not be found in the amendment nor even . . . elsewhere in the Constitution.” John Hart Ely, “Constitutional Interpretivism: Its Allure and Impossibility,” 53 Ind. L.J. 399, 415 (1978). This at a time when the Dred Scott decision was execrated by the framers. See infra Supplementary Note on the Conclusion, text accompanying notes 21–24. In the introduction to The Intellectual Adventures of Ancient Man 3 (Henri Frankfort & H. A. Frankfort eds. 1977), the Frankforts decry the “irresponsible meandering of the mind which ignores reality and seeks to escape from its problems.”
John Bingham, draftsman of the Fourteenth Amendment, said that of late the Court had “dared to descend from its high place in the discussion of decisions of purely judicial questions [to “settlement of political questions” ] which it has no more right to decide for the American people than the Court of St. Petersburg.” 6 Charles Fairman, History of the Supreme Court of the United States 462 (1971). Small wonder that section 5 of the Amendment entrusted Congress, not the Court, with power to enforce the Amendment. Ex parte Virginia, 100 U.S. 339, 345 (1879).