As we have seen, the Fourteenth Amendment cannot be said to be a part of our Constitution, as it was neither constitutionally proposed and submitted to the states nor constitutionally ratified. Even were we to push all of that aside and concede that the Amendment is constitutional, however, the past three-quarters of a century of jurisprudence has deliberately obfuscated the intended restrictive meaning of the Fourteenth Amendment by investing its specifically limited terms of art, “privileges or immunities”, “due process of law”, and “equal protection of the laws”, with infinitely expanding meanings to fit the policy goals of the Egalitarian Regime. Again, even were we to take the Fourteenth Amendment seriously as a piece of the Constitution, the past seventy years of result-oriented jurisprudence, employing strenuous mental gymnastics to reason backwards to preordained conclusions, has been patently incorrect. The late Raoul Berger’s Government by Judiciary launched a blistering attack on the modern Supreme Court and its transformation of the Fourteenth Amendment from “civil rights” to Civil Rights ideology. Berger, it must be stated, was no reactionary; he had been a darling of the Leftist legal elite up until its publication. Berger had the “standard political principles of the moderate left of the Democratic party”, but, unlike his colleagues, simply had “no pretense of identifying them with constitutional mandates.”
Berger concluded, perhaps more accurately than he knew, that the Supreme Court of the United States “had been handing down decisions interpreting the Fourteenth Amendment improperly, willfully ignoring or willfully distorting the history of its enactment…the authors of the Amendment, far from contemplating a social and political revolution…intended only to protect the freedmen…the two key passages in the Fourteenth Amendment — privileges or immunities of citizens and due process of law — far from being vague and elastic…were ‘terms of art’ that had precise, well-understood, and narrow legal meanings. ‘Equal protection’, a new concept, was identified by the framers with the right to contract, to own property, and to have access to the courts.” By implication, then, nearly every case involving the Fourteenth Amendment, many of which irredeemably reorganized American society, had been “decided unconstitutionally, representing not law but the whims and values of the Justices of the Supreme Court.” Forrest McDonald, in his foreword to Berger’s work, noted that “so thoroughly did Berger rout his critics that, after a decade or so, they virtually stopped trying. Instead, advocates of judicial activism began to assert that neither the words of the Constitution nor the intentions of the Framers are any longer relevant.”
In 1985, Justice William Brennan declared that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” In response to this abhorrent revolutionary mantra, we are well-served to recall Justice Scalia’s words in his Sebelius dissent: “The Constitution…enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers.” Wallace Mendelson responded to Brennan’s statement by noting that the only “great principles” are “the consent of the governed, the diffusion of power, and the rule of law”, all of which have been undermined by the Supreme Court. Brennan’s acolyte, Justice Thurgood Marshall, better known as the lawyer for the NAACP in Brown, made a similarly grotesque statement at the 1987 bicentennial of the Constitution: “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start.’” Marshall continued that “several Amendments, civil war [sic], and momentous social transformation” were necessary before we achieved a truly “constitutional government.” This is merely shades of the abolitionist William Lloyd Garrison, who burned a copy of the Constitution on Independence Day 1854 and, in the pages of The Liberator, described the Constitution as “the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villainy ever exhibited on earth” and “null and void from the beginning”, and, “dripping as it is with human blood”, a “covenant with death” and “agreement with Hell.”
James Madison, the primary drafter of the Constitution, stated definitively that if “the sense in which the Constitution was accepted and ratified by the Nation…be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers.” The Fourteenth Amendment is the “case study par excellence” of the transformation of the federal judiciary into what Berger described a “continuing constitutional convention.” Masquerading as “interpretation”, the Justices of the Supreme Court have deformed the Constitution into a malleable and contentless open-source code, declaring that specifically limited terms of art are in fact “conveniently vague” sphinxes into which any contrivances may be injected. Rather than do its duty, solely “to police the boundaries drawn in the Constitution”, the Court has used the Fourteenth Amendment to legislate, rewriting the Constitution in order to achieve policy ends which the American public do not support. The exclusive method of amending the Constitution, the amendment process outlined in Article V, has thus been circumvented ad infinitum. The American people have been reduced to a state of peonage; the most controversial, life-altering decisions that have been made in the past seventy years — decisions that have drastically changed the face of our nation — have been made not by them, or even by their elected representatives, but rather by a panel of unelected attorneys whose power stems from pure historical accident. As Berger wrote, the Constitution “‘lies at the core’ of our ‘civil religion’; until it is changed by amendment, the people are free to govern their own destiny, not to be ruled by ‘Platonic Guardians’ who often are creatures of political accident, virtually irremovable and irreversible.”
The key to understanding the Fourteenth Amendment is that its framers were not interested in radical abolitionist goals of reorganizing society, but rather in maintaining and reinforcing Republican hegemony. Indeed, Berger remarked, “the North was shot through with Negrophobia” and was “far from anxious to embark on fresh crusades for the realization of still other abolitionist goals.” Witness the meaning of “civil rights” for Radical Republican Representative Henry Davis, for whom the Freedmen’s Bureau was “a cunningly devised machinery…that is itself a government”, a weapon to “keep up distrust and hostility between the black and white races in the Southern States…with the aid of our friends and accomplices, the officers and agents of the Freedmen’s Bureau, and their supporting police, we will be the cotton kings, and control the political power of the Southern States.”
The three clauses of section one, “privileges or immunities”, “due process of law”, and “equal protection of the laws, were three facets of “one and the same concern”, which was simply to secure for newly-freed blacks the “fundamental rights” of life, liberty, and property. As Sumner said, the freedman was to have “the shield of impartial laws. Let him be heard in court.” Berger elaborated, noting that this “shield…was expressed in ‘equal protection of the laws’; access to protection by the courts found expression in ‘due process of law.’ The framers…had no thought of creating unfamiliar rights of unknown, far-reaching extent by use of the words ‘equal protection’ and ‘due process.’ Instead, they meant to secure familiar, ‘fundamental rights’, and only those.” The Amendment was not written to reach segregation or suffrage, nor the voting qualifications attached to suffrage; indeed, “the proof is all but incontrovertible that the framers meant to leave control of suffrage with the States…and to exclude federal intrusion.” There exists not a whiff of evidence to suggest anything otherwise. Indeed, Justice Oliver Holmes would later warn that “we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe…the Fourteenth Amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the State may pass.”
Berger called attention to a common error in judicial activist ideology; proponents of the infinite expansion of the Amendment “have assumed that advocates of a restricted construction have the burden of proving that the framers’ objectives were limited. The shoe is on the other foot; an interpretation that invades what had long been considered the exclusive province of the States…requires some justification. It is not enough in that situation that the words are capable of a broad meaning; the reservation to the States in the Tenth Amendment of powers not delegated to the federal government calls for a clear showing that the successor Amendment was designed to curtail those reserved powers.” Such a showing, as we shall see, cannot be made; indeed, quite the opposite. Judicial revisionism was anathema to the Founders, who had a “profound fear of judicial independence and discretion.” Influenced by the English Puritans’ concerns that legal meanings “could be twisted by means of judicial construction” and “the corruptive process” of interpretation, Madison and Thomas Jefferson attached great weight to the rule of originalism, a brake on judicial arrogation asserting that “a document is to be construed in light of the…original intention”, for “who knows better what the writer means than the writer himself?” In the words of John Selden, “A man’s writing has but one true sense, which is that which the author meant when he writ it.” Berger remarked that “to maintain the contrary is to insist that the reader better knows what the writer meant than the writer himself.”
The robed kritarchs of the Court believe just that; the Justices “have taken over from the people control of their own destiny, an awesome exercise of power.” The Justices have substituted their own meanings for those of the Founders, thereby displacing the choices made by the people in ratifying the Constitution and abrogating “the basic principle of consent by the governed.” This sordid state calls to mind the words of G.K. Chesterton, who wrote in his Orthodoxy that “tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man’s opinion, even if he is our groom; tradition asks us not to neglect a good man’s opinion, even if he is our father.” To rewrite the Constitution by way of the invidious misconstruction of the Fourteenth Amendment is thus to desecrate the hallowed graves of all of those better men on whose shoulders we meagerly stand.
What are the “privileges or immunities” protected by the Fourteenth Amendment?
The framers of the Fourteenth Amendment intended the “privileges or immunities” clause to be its central provision; the key to its meaning “is furnished by the immediately preceding Civil Rights Act of 1866, which…it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their ‘life, liberty, and property’ — no more. For the framers, those words did not have the sprawling connotations later given them by the Court but, instead, [had] restricted aims that were expressed in the Act. The legislative history of the Amendment frequently refers to [the] ‘fundamental rights’ [of] ‘life’ liberty, and property.’” William Blackstone, widely read and respected in colonial America, defined “life” in terms of personal security, as the “legal and uninterrupted enjoyment of his life, his limbs.” Blackstone defined “liberty” in terms of the freedom of locomotion, of “changing situations or moving one’s person…without imprisonment, or restraint, unless by due course of law”; “property” was defined in terms of acquisition, ownership, and disposition, as “the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” Blackstone’s “due course of law” and “laws of the land”, Berger explained, “did not enlarge…the ‘absolute rights’ of an Englishman, but rather marked the sole means whereby those rights might be diminished.” Blackstone’s formulation is important to understand, for, as Justice Joseph Story stated, “if the Framers used terms that had been defined at common law, that definition was ‘necessarily included as much as if they stood in the text.’”
The Fourteenth Amendment was designed to “constitutionalize” the Civil Rights Act of 1866 so as to “place it beyond the power of a later Congress to repeal.” By that act, “freedmen were to have the same enumerated rights (as white men), be subject to like punishment, suffer no discrimination with respect to civil rights, and have the equal benefit of all laws for the security of person and property. Patently these were limited objectives; the rights enumerated, said [Representative] William Lawrence…were the ‘necessary incidents of these absolute rights’, that is, of ‘life, liberty, and property’, lacking which those ‘fundamental rights’ could not be enjoyed. It was these ‘enumerated rights’…said [Representative] Martin Thayer…that were ‘the fundamental rights of citizenship.’” House Chairman James Wilson elucidated the Civil Rights Bill thus: “What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed…Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights and immunities. Well, what is the meaning? …I understand civil right to be simply the absolute rights of individuals, such as ‘the right of personal security, the right of personal liberty, and the right to acquire and enjoy property.’”
As to “immunities”, the framers meant that blacks should “not be subjected to obligations, duties, pains, and penalties from which other citizens are exempted…This is the spirit and scope of the Bill, and it does not go one step beyond.” Thayer asserted that the enumeration of the aforementioned “fundamental rights” of life, liberty, and property precluded “any possibility that the general words which have been used can be extended beyond the particulars which have been enumerated.” Thayer affirmed that the Bill was for “the protection of the fundamental rights of citizenship and nothing else”, no “greater than the rights which are included in the general terms ‘life, liberty, and property.’” He was opposed only “to any law discriminating against [blacks] in the security of life, liberty, person, property, and the proceeds of their labor. These civil rights all should enjoy. Beyond this I am not prepared to go, and those pretended friends who urge political and social equality…are…the worst enemies of the colored race.” Senator Lyman Trumbull, the principal drafter of the Bill, declared that it was “applicable exclusively to civil rights. It does not propose to regulate political rights of individuals; it has nothing to do with the right of suffrage, or any other political right.” The term “privileges or immunities” was borrowed from Article IV, Section II, of which Trumbull said signified that a citizen has “certain great fundamental rights, such as the right to life, to liberty, and to avail oneself of all the laws passed for the benefit of the citizen to enable him to enforce his rights.” Representative John Bingham affirmed that the “privileges or immunities” of the Fourteenth Amendment “did not add to the privileges or immunities” of Article IV, Section II.
In Bradwell v. Illinois, Justice Bradley wrote for the Court that the “privileges or immunities” clause of the Fourteenth Amendment did not bar States from prohibiting women from joining certain professions; to claim otherwise, Bradley argued, “assumes that it is one of the privileges or immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed…that this has ever been established as one of the fundamental privileges or immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.” If the “privileges or immunities” clause did not enlarge the rights of white women, how could it be said to have done so for black men? To reiterate, the purpose of the Amendment was to enshrine the Bill into the Constitution, and the purpose of the Bill “was to prevent discrimination with respect to enumerated, fundamental not political or social rights.” Justice Bushrod Washington, in Corfield v. Coryell, confirmed that “privileges or immunities” were confined to what are inherently “fundamental…Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole…The right of a citizen of one State to pass through, or reside in any other State…to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold, and dispose of property…But we cannot accede to the proposition…that the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state.”
Trumbull, along with Justice Bradley in the Slaughter-House Cases and many others, explicitly stated that “the pursuit of happiness” was understood to be synonymous with “property.” Property was, for the Founders, the source from which happiness flowed. Indeed, “property actually was more highly prized by the Founders than ‘civil liberties.’…For the Founders property ‘was the basic liberty, because until a man was secure in his property, until it was protected from arbitrary seizure, life and liberty could mean little.” John Adams believed that “property is as sacred as the laws of God.” At the Constitutional Convention, James Madison said that “the primary objects of civil society are in the security of property and the public safety.” As Anatole France remarked, “The poor are as free as the rich to sleep under a bridge.” For the Framers, “to be deprived of…private property would be a far greater and more deeply felt loss of liberty than to be deprived of the right to speak freely.” The “rights of Englishmen” that the Founders claimed were indeed “life, liberty, and property.” These were the “fundamental rights” that the framers of the Amendment intended to be secured, the very same rights described by Blackstone as “personal security, freedom to move about and to own property; they had been picked up in the ‘privileges and immunities’ of Article IV, Section II; the incidental rights necessary for their protection were ‘enumerated’ in the Civil Rights Act of 1866; that enumeration…marked the bounds of the grant; and at length those rights were embodied in the ‘privileges or immunities’ of the Fourteenth Amendment.” The framers again and again demonstrated that “privileges or immunities” was a term of art, with a specific and restrictive meaning. They deemed the Amendment to be “identical” with the Bill; Trumbull described these fundamental “privileges or immunities” as “the right to acquire property, the right to come and go at pleasure, the right to enforce rights, to make contracts” and noted that the Bill declared only that the rights of freedmen “should be the same as those conceded to whites in certain respects, which were named in the Act.”
The present obsession with “individual rights”, Berger asserted, “obscures the Founders’ concern in 1787 with the rights of the community rather than the individual.” The animating spirit of our Constitution was States’ Rights, not individual rights; the Constitution was written in order to protect the States from the federal government, with the details of the governance of the people almost wholly inhered in the States. Berger also pointed out that the Ninth Amendment is not a source of “rights” either; the purpose of the Ninth Amendment is to say that “what is enumerated is embodied in the Constitution; what is retained is not. Reservations are not grants of power to deal with what is retained…what is retained is excluded from the federal jurisdiction.” James Madison had said that “the great object in view is to limit and qualify the power of Government by excepting out of the grant of power those cases in which the Government ought not to act.” Quite obviously, the Ninth Amendment, along with the entirety of the Bill of Rights, was meant to curtail federal jurisdiction, not to expand it. Berger reinforced this by remarking that “the fact that Amendments One through Eight were meant to limit the powers of the federal government militates against a reading of the Ninth that would confer unlimited federal judicial power to create new ‘rights.’”
Notably, in the Slaughter-House Cases, the Supreme Court effectively neutered the “privileges or immunities” clause, which, it will be remembered, had been intended to be the operative provision of the Fourteenth Amendment. The Court did this by differentiating between the “privileges or immunities of a citizen of the United States” and those of citizens of any States in particular, such that the “privileges or immunities” clause was only applied to the former. Justice Samuel Miller wrote in his opinion, “Was it the purpose of the Fourteenth Amendment, by simple declaration that no State should make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned [citing Corfield], from the States to the Federal government? And where is it declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? …these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions…the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character…it radically changes the whole theory of the relations of the State and Federal governments to each other and of both…to the people…We are convinced that no such results were intended by the Congress which proposed [the Amendment], nor by the legislatures of the States which ratified [it].” Thus, even the terms of the Fourteenth Amendment as drafted were deemed too radical and intrusive; how, then, could it be used for the extreme Leftism with which it has been used since? Furthermore, we must note that the Court, speaking through Miller, believed that by neutering the “privileges or immunities” clause, it was eliminating the abusive potentiality of the Amendment; this suggests that the Court read the “due process” and “equal protection” clauses as they had been written, i.e., as relatively harmless, which again belies the extraconstitutional engorgement of those two clauses in the present day.
The “privileges or immunities” clause also serves as a window through which we may examine the doctrine of “birthright citizenship.” The “privileges or immunities” of Article IV, Section II, with which those of the Amendment are identical, was not intended to “control the powers of State governments over the rights of its own citizens.” Its sole purpose was to require that, of rights granted by State to its own citizens, “the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” The Civil Rights Bill, with which the Fourteenth Amendment was identical, merely meant to apply this right of migrant citizens to the freedmen; “birthright citizenship”, then, was meant only with reference to freedmen. Citizenship, along with suffrage, is a privilege, not a right. Trumbull had wished only to settle the matter of “whether the Negro is a citizen or not.” Justice Miller expounded upon this matter, writing that the first section of the Amendment “opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress… [Dred Scott] had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only citizens, but were incapable of becoming so by anything short of an Amendment to the Constitution. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship…the first clause of the section was framed…It declares that persons may be citizens of the US without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the US and subject to its jurisdiction citizens of the United States. That its…purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’, was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Regarding the current argument that the Amendment applies to all persons, and not citizens alone, Berger noted that, based on the records of the Thirty-Ninth Congress, “the minds of most framers were concentrated on the protection of citizens…they may not have appreciated that the word ‘persons’ was carrying them further.” In any case, “persons” were certainly not meant to have broader rights than “citizens.”
Was the Fourteenth Amendment intended to touch suffrage?
Berger concluded that black suffrage was “unmistakably excluded from the ambit of the Civil Rights Bill”, and is thus unmistakably excluded from the ambit of the identical Fourteenth Amendment. In fact, the very existence of the Fifteenth Amendment necessarily means that suffrage was not conferred by the Fourteenth. Moreover, the debates of the Thirty-Ninth Congress quite clearly manifest the fact that the framers of the Amendment held suffrage to be a “political privilege, not a civil right”, to be left to the States. The second section of the Amendment “provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionally reduced. This constitutes the sole provision for federal intervention. Senator William Fessenden…explained that the Amendment ‘leaves the power where it is, but it tells [the States] most distinctly, if you exercise that power wrongfully, such and such consequences will follow.’ Senator Jacob Howard…said, ‘the theory of this whole Amendment is, to leave the power of regulating the suffrage with the people or legislatures of the States, and not to assume to regulate it.’” Berger explained that the issue of black suffrage was “crucial to the maintenance of Republican ascendancy…Such ascendancy, the mass of Republicans believed, was to be assured through the reduction of Southern representation in the House of Representatives in proportion as a State denied or abridged suffrage, the device embodied in section two…But it was more important…to limit Southern representation than to provide ‘that negroes anywhere should immediately vote.’”
In Reynolds v. Sims, Chief Justice Earl Warren argued that States cannot deny suffrage because “political equality…can mean only one thing — one person, one vote.” Notwithstanding the fact that Warren’s “one man-one vote” formulation “derogates from the exclusive control of suffrage that was left to the States”, as the framers had made “unmistakably plain”, Berger noted that Warren’s lofty “political equality” was most assuredly not the equality conceived of by the framers of the Fourteenth Amendment. Indeed, Senator Garrett Davis said that “Negro suffrage is political arsenic. If it is not, why do not the free States open wide their throats and gulp down the graceful and invigorating draught?” In 1866, only five States gave blacks the right to vote, representing only six percent of the black population; another State gave blacks qualified suffrage. The year prior, three States rejected unqualified black suffrage. One of these, Colorado, was still admitted as a State; the same situation occurred with Nevada. Tennessee was “readmitted” after submission of the Fourteenth Amendment despite having denied blacks the right to vote. In the midst of the ratification process, Ohio overwhelmingly rejected black suffrage.
Most telling are the framers’ own statements. As Berger remarked, “If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general term ‘equal protection’ the very grant they could not swallow?” Senator Edgar Cowan acidly lectured Senator Sumner that, “‘with but six percent of the Negro population’, New England’s advocacy of Negro suffrage came cheap: ‘he simply had no understanding of what it is to live in a community surcharged with an idle, dissolute, vicious, ignorant Negro population just emerged from slavery.’” Cowan ridiculed the notion that the “antipathy that never sleeps, that never dies, that is inborn, down at the very foundation of our natures” is “to be swept away by half a dozen debates and the reading of half a dozen reports from certain abolitionist societies.” Even the Radical Thaddeus Stevens said, “In my county are 1,500 escaped slaves. If they are specimens of the Negroes of the South, they are not qualified to vote.” This is the same Stevens whose “Negro mistress horrified the abolitionists” and who was portrayed as the face of Black Republicanism in Thomas Dixon’s The Clansman and D.W. Griffith’s The Birth of a Nation. Stevens was hated among his colleagues. No less than the lunatic William Lloyd Garrison “came out against the forcing of Negro suffrage upon the South.”
The members of the Thirty-Ninth Congress were deeply attached to State sovereignty — for their own States, if not the Southern States. Representative Bingham, in the vanguard of radical abolitionism, affirmed that “the care of the property, the liberty, and the life of the citizen…is in the States and not in the federal government. I have sought to effect no change in that respect.” Trumbull defended the Amendment after President Johnson’s veto, soon to be overridden, stating that it “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property.” Translation: suffrage excluded. Senator Doolittle, a friend to the cause of black suffrage, conceded that “the Federal Government had no right or constitutional power to impose on a State Negro suffrage…the right of a State to determine that question was one of the reserved rights of every State.” Stevens asked, “How many States would allow Congress to come within their jurisdiction to fix the qualification of their voters? …You would not get five in this Union.”
The purpose of the second section of the Amendment was “perfectly well understood…to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that people shall be denied political rights. Give them the vote or lose representation.” In other words, this portion of the Amendment was written to preserve Republican hegemony by presenting the former Confederacy with an illusory “choice” — Republicans in Congress knew that the Southern States would not willingly confer suffrage upon freed blacks, so the animating mission of section two was quite baldly to deprive the Southern States, and by implication the Democratic Party, of their seats in Congress. Berger expanded upon this, stating that “most Republicans were politicians first and ideologues afterward. Not civil rights for blacks but the dreaded take-over of the federal government by the South was their obsessive preoccupation. Emancipation brought the startling realization that Southern representation would no longer be limited in the House of Representatives to three-fifths of the blacks, as Article I, Section III, provided. Now each voteless freedman counted as a whole person; and in the result Southern States would be entitled to increased representation and, with the help of Northern Democrats, would have, Thaddeus Stevens pointed out at the very outset of the 39th Congress, ‘a majority in Congress and in the Electoral College.’ With equal candor he said that the Southern States ‘ought never to be recognized as valid States, until the Constitution shall be amended…as to secure perpetual ascendancy’ to the Republican Party. The North had not fought and quelled rebellion in order to surrender the fruits of victory to the unrepentant rebels.”
As aforementioned, Berger emphasized that “the dominant purpose of the Thirty-Ninth Congress was to maintain Republican hegemony by reducing Southern representation; and only secondarily did they think to secure the ‘person and property’ of the Negro from oppression. There were repeated disclaimers of any intention to interfere with State sovereignty beyond those objectives. Moreover, while Negro suffrage was predominantly a Southern problem, reapportionment would invade long-established State practices with respect to white voters in the North…Republicans who shrank from interfering with State control of Negro suffrage in the South would scarcely have dared to impose on the North a radical reconstruction of white apportionment patterns…no such intrusion was contemplated; there is in fact striking evidence that malapportionment was an accepted practice.” Especially considering the ubiquity of malapportionment across the United States, “it is a strained assumption that by ratification they surrendered a right they had exercised from the outset, and of which surrender they were totally unapprised.” Contrary to the diktats of the Warren Court, then, apportionment is a political and thus nonjusticiable question, the determination of which inheres exclusively in the States.
To the judicial revisionist argument holding that suffrage is made “fundamental” by the guarantee of a “republican form of government” in Article IV, Section IV, we must recall the Supreme Court’s opinion in Minor v. Happersett: “All the States had governments when the Constitution was adopted…These governments the Constitution did not change. They were accepted precisely as they were…Thus we have unmistakable evidence of what was republican in form.” Berger noted that “unless some special magic was deemed to inhere in the words ‘equal protection’ [and there is not] …the evidence…that suffrage was excluded from the Amendment is all but incontrovertible.” The Report of the Joint Committee on Reconstruction stated conclusively that “the whole question” of suffrage was left “with the people of each State”; to reiterate, section one left suffrage untouched, while section two was nothing but a nominal inducement, “not so much a ‘remedy’ to enforce rights which section one had not granted as a mechanism to preserve Republican hegemony.”
The Warren Court, as alluded to, occasioned the large-scale intrusion of the federal government into the State power of reapportioning its electoral districts, a patently unconstitutional exercise of nonexistent power. Chief Justice Warren declared in Reynolds v. Sims that “the right to vote freely…is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” The Founders, Framers, and framers of the Fourteenth Amendment could hardly have disagreed more with any statement. The Constitution was largely a reaction against popular democracy; as Berger stated, “Were Warren drafting a new Constitution that principle would be unexceptionable. But that was not the established principle at the adoption of the Constitution; nor was it embodied therein. On the contrary, Federalist No. 54 recognized that ‘in every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State.’ In the Thirty-Ninth Congress itself, [Senator] Fessenden said that ‘everybody has admitted from the foundation of the Government down to the present day that the qualification of voters rested with the States.’”
Warren’s formulation is irredeemably problematized by his assertion that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Sixteenth, and Seventeenth Amendments can mean only one thing — one person, one vote.” First, we must notice that Warren never once appeals to the original Constitution itself. More importantly, however, President Abraham Lincoln, in his Gettysburg Address, completely rewrote the American Founding as having sprung from the Declaration of Independence, fully formed as one nation as Athena sprung from the head of Zeus, “dedicated to the proposition that all men are created equal” and instituted “of the people, by the people, for the people.” The Declaration of Independence was a work of political rhetoric, not a Founding document or nationalist exposition; as Berger put it, “to import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the ‘excesses’ of popularly controlled legislatures.” That Declaration was also drawn by the Continental Congress, “a league of independent States, each of which jealously guarded its independence.”
The Gettysburg Address is doubly fraudulent, for not only does it falsely trace the Founding to the Declaration, but it also totally misconstrues that document. Jared Taylor has time and again splendidly exposed what the Founders truly thought about race. When Thomas Jefferson Founders wrote that “all men are created equal”, he did not share the Regime definition of “equality.” This was an argument by Englishmen, directed at Englishmen, an argument that was directed upwards, not downwards as some sort of levelling. The American colonists were asserting their rights as Englishmen against the British Crown, to be treated as the Englishmen that they believed they were, rather than a second-class peonage. Additionally, even if we were to concede that the Second Continental Congress actually meant that “all men are created equal” — and they did not, according to our present “individual rights” fixation — this phrase still does not mean what the Regime has taught us. As we have seen, legal or civil equality was never understood as coextensive with social equality; we must also remember that the antebellum Southern planters did believe that all men were created equal. “Equal” in the eyes of God is not “equal” in the eyes of man. Perhaps even more than in the South, whites in the North were completely unprepared for and did not contemplate “reconstruction of their institutions to accommodate total Negro integration in the North.” We must remember that even those who were ardently opposed to slavery did not do so for any lofty theories of egalitarianism. They were just as equally opposed to racial equality, and most abolitionists supported black colonization, back to Africa. Only an infinitesimal lunatic fringe within the lunatic fringe of the Republican Party actually advocated for anything remotely approximating the Egalitarian Regime.
Let us consider a famous incident in which President Lincoln was visited by a black abolitionist group; Lincoln said to them, “Even when you cease to be slaves, you are far removed from being placed on an equality with the white man…I cannot alter it if I would. It is a fact.” The Radical Senator Howard confirmed that, “notwithstanding the Declaration of Independence, it is the right of every organized political community to regulate the right of suffrage.” As Berger wrote, if there is any principle to be gleaned from the Fifteenth and Nineteenth Amendments, it is that “Congress and the people considered that express Amendments were needed to confer suffrage on Negroes and women, that absent these Amendments neither enjoyed ‘political equality.’” The Court made much the same point in Minor v. Happersett: “If suffrage was one of the privileges or immunities, why amend the Constitution to prevent its being denied on account of race? …Certainly, if the courts can consider any question settled, this one. For nearly 90 years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage.” The Court recognized in United States v. Cruikshank that the Fifteenth Amendment had “invested the citizens of the United States with a new constitutional right.” Even the Seventeenth Amendment, a great step towards the institution of popular democracy in our nation, provided that, with respect to the popular election of Senators, “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.” These “qualifications” were always under State control, and were left intact by the Fourteenth Amendment.
In support of his “one man-one vote” doctrine, Warren also wrote, “How then can one person be given twice or ten times the voting power of another person…merely because he lives in a rural area.” This appears to directly presage the present screeching and squalling to abolish the Senate and the Electoral College. Berger answered Warren by stating, “Given that discrimination in favor of ‘rural areas’ is historically deep-rooted, orthodox analysis would conclude: because the Fifteenth and Nineteenth Amendments govern only ‘race and sex’, not ‘rural areas.’” Warren’s “pervasive error”, Berger remarked, was that which all judicial revisionists commit — the substitution of their will for that of the framers’, the maxim that whatever they favor must be “constitutional” and that everything else is “unconstitutional.” The faculties of the mind are compulsorily drafted into service to find some method, any method, by which their policy can be grafted onto the Constitution. As Justice Holmes quipped, “A page of history is worth a volume of logic.”
From the preceding discussion, then, it also follows that the Voting Rights Act of 1965 is unconstitutional. In fact, the Court ruled as such for a portion of the Act within the past decade, in Shelby County v. Holder. The Voting Rights Act was predicated upon both the Fourteenth and Fifteenth Amendments; as we have and will continue to focus on the Fourteenth, we will focus our efforts here only on the Fifteenth. The Fifteenth Amendment states that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”, and gives enforcement power to Congress. As we have seen, voting is a privilege conferred by the States, not a national “fundamental right.” The Voting Rights Act went far beyond the scope of the Fifteenth Amendment and gleefully trampled upon the reserved States’ rights of the Tenth Amendment; the Fifteenth Amendment says nothing about voting qualifications, nor does it make suffrage a “fundamental right.” The Amendment did not create a right where previously none had existed, but rather prohibited legislation denying suffrage explicitly “on account of” race and prior condition of slavery; to extend, as did the Voting Rights Act, this “on account of” to facially neutral laws was undergirded by an odious forerunner to discriminatory or “disparate impact.” “Disparate impact” is not a constitutional doctrine, but rather an artificial superimposition; it is the height of folly to believe that different outcomes, for example in school performance, are evidence of that great dragon that dare not rear its ugly head, the incantatory cry of “racism.” This is the consequence of blind faith in the Regime doctrine that there are no race or sex differences between people. The Regime would have us believe that if any results differ, the law, the institution, or “society” writ large must be to blame, serving merely as another vehicle for judicial usurpation and the intrusion into all nooks and crannies of American life. As with the Fourteenth Amendment, we must also examine the Fifteenth from the vantage point of the framers, best expressed as: “How can we maintain Republican hegemony?”
Was the Fourteenth Amendment intended to reach segregation?
Before we proceed, we must again take care to state that the terms included in the Fourteenth Amendment were neither vague, nor general, nor “open-ended”, but were rather restrictive, specifically limited terms of art that the framers understood as common coinage. “Due process of law”, “equal protection of the laws”, and “privileges or immunities” each had an “historically limited content.” The postconstitutional Regime employs a “classic invocation to extraconstitutional power…to revise the Constitution under the theory that the framers gave a ‘blank check to posterity.’” This “open-ended” theory would have us believe that “the framers dared not submit Negro suffrage and the like to the electorate in 1866 and therefore discarded ‘specific’ terms, as Justice Brennan [Oregon v. Mitchell] put it, in favor of ‘far more elastic language…far more ‘capable of growth.’” By this logic, the framers were postmodernists, or perhaps absurdists, leaving us with contentless phrases that their successors, 150 years later, could invest with any meanings whatsoever. By this logic, the Constitution is an inscrutable sphinx. The “open-ended” theory also imbues the Thirty-Ninth Congress with conspiratorial purpose, positing that the framers “concealed the future objectives that they dared not avow, lest the whole enterprise be imperiled.” In other words, the nefarious uses to which the Court put their words almost a full century later were what the framers had actually meant. In a word, this is preposterous. Berger makes the crucial observation that ratification necessarily implies “that the principal knows what he is ratifying; without full disclosure there can be no ratification.”
Some Democrats at the time did fear that the language of the Amendment might be deployed for dastardly ends through the very chicanery that eventually did occur. A handful of Democrats worried that the “right to contract” incipient in the “equal protection” clause might be used as an end-run to circumvent anti-miscegenation laws, but Berger demonstrated that “to attribute to the framers an intention by the word ‘contract’ to authorize intermarriage runs counter to all intendments.” Representative Samuel Moulton explicitly denied that intermarriage was a “right”, and Berger further elucidated that, “although a contract of marriage, strictly speaking, is a contract, marriage is not in ordinary usage conceived in terms of contract. Given the stated purposes of the Bill, the association of contracts with other property rights, authority to contract could be read as a license for intermarriage only by a strained construction.” For good measure, President Johnson urged that miscegenation be specifically excluded; though he vetoed the Civil Rights Bill, later overridden, he “referred to ‘the enumeration of the rights to be enjoyed’ and noted that it did not repeal ‘State laws on the subject of marriage between the two races.’” There were similar concerns that the Bill would lead to the seating of blacks as jurors, to which we recall Chairman Wilson’s firm assurance that its limited objectives did not extend to “setting aside the school and jury laws.” Moulton denied “that it is a civil right for anyone to sit on a jury.” Representative Lawrence further reiterated that the Bill did “not affect any political rights, as that of suffrage, the right to sit on juries…That it leaves to the States to be determined each for itself.”
Opposition to the “readmission” of Tennessee on the grounds that its constitution excluded black suffrage was voted down in the Radical Congress by 125 to 12; over and over, the framers made clear that they “did not mean to confer Negro suffrage, present or prospective.” Senator Sumner, a pariah among his peers, proposed the addition of black suffrage to the Amendment and was rejected by 34 to 4. Senator Fessenden stated that “we cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.” Senator John Sherman, during the ratification process, sold the Amendment to the people by assuring them that “we defeated every radical proposition in it.” To those who cite Representative Stevens’ statement that any “imperfections” in the Amendment may be cured by “further legislation” with “legislative wisdom”, we respond that Stevens was nearly as ostracized as Sumner, and that, as Berger pointed out, this call for “further legislation” is “hardly a warrant for judicial changes!” Likewise, those who point to the fifth section of the Amendment, which provides that “the Congress shall have power to enforce by appropriate legislation the provisions of this article”, neglect to recall Ex parte Virginia, in which the Court held that “it is not said that the judicial power of the general government shall extend to enforcing the prohibitions and protecting the rights and immunities guaranteed. It is not said that branch of government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.” The judiciary is thus expressly disempowered from enforcing any of the Fourteenth Amendment. Regardless of what an infinitesimal minority of extremists may have desired, not one of the framers intended that the Fourteenth Amendment be a conferral of future powers, even if any of those future ends were contemplated — and the evidence that they were is scant at best. Numerous Radicals insisted that the Amendment only meant to embody the Civil Rights Bill, to permit blacks “to sue and be sued, to own property, to have process of court”; Berger again underlined the fact that “‘equal protection’…emerged from the framers’ intention to outlaw laws which discriminated against blacks with respect to the [very limited] ‘coverage of the Civil Rights Act.’”
We now arrive at Brown v. Board of Education, the “sacred cow of modern constitutional law.” Witness cocktail “conservative” Justice Brett Kavanaugh’s confirmation hearings, in which he called Brown not merely “inspirational”, but the “single greatest moment in Supreme Court history…the unanimity that Chief Justice Warren achieved, which is a great moment, the fact that it lived up to the text of the Equal Protection Clause, the fact that it understood the real-world consequences of segregation on African-American students who were segregated.” Kavanaugh’s entire statement, as we shall see, is ludicrous. Berger noted that the Supreme Court “had no popular mandate for its revolutionary decision but assumed the role of an Old Testament prophet, enhanced by the sanctions at its disposal.” To this, it will be argued that the Court needs no “popular mandate” to ascertain the constitutionality of a given issue, but we will shortly see that this is an exercise in futility. Leaving aside the fact that schools in the District of Columbia and the rest of the Northern States were segregated, we may look to House Chairman Wilson’s statement that “there is not today a square mile in the US where the advocacy of the equal rights and privileges of those colored men has not been in the past and is not now unpopular.” As Berger concluded, “Had the framers proposed to bar segregated schools in the North, such interference with State control of internal affairs would have imperiled enactment and adoption…Such a proposal was far from the framers’ minds, as is demonstrated by James Wilson’s assurance that the parallel Civil Rights Bill — regarded as ‘identical’ with the Fourteenth Amendment, whose purpose was to safeguard the Bill from repeal—did not require that all ‘children shall attend the same schools.’…segregation was left untouched by the Fourteenth Amendment.”
When Brown was first argued, Justice Felix Frankfurter assigned Alexander Bickel to compile the legislative history of the Fourteenth Amendment, on which Frankfurter sought to rest his preordained conclusion. Bickel conceded that “it was preposterous to worry about unsegregated schools…when hardly a beginning had been made at educating Negroes at all and when obviously special efforts, suitable only for the Negroes, would have to be made…It is impossible to conclude that the Thirty-Ninth Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” He wrote that the framers “who sponsored this [civil rights] formula assigned a limited and well-defined meaning to it”, namely, “the right to contract” and so on, “also a right to equal protection in the literal sense of benefiting equally from the laws for the security of person and property.” Bickel continued that, even with that restrictive language and repeated assurances as to its limited power, “it required potent persuasion, reinforced by the severest party discipline, to prevent a serious break in both Houses against the bill.” Berger observed that only four defectors in the Senate, as we have seen, would have defeated the Amendment. Bickel also noted later “the shift from ‘equal protection in the rights of life, liberty, and property’ to ‘equal protection of the laws, a clause which is plainly capable of being applied to all subjects of State legislation.’” In Plessy v. Ferguson, Justice Henry Brown concluded that “a statute which implies merely a legal distinction between the white and colored races…has no tendency to destroy the legal equality of the two races…The object of the Fourteenth Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation…do not necessarily imply the inferiority of either race to the other, and have been generally…recognized as within the competency of the State legislatures in the exercise of their police power.”
Segregated schools, Justice Brown continued, had repeatedly “been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.” He asserted that “the enforced separation of the races…neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment”, and that the desegregation argument “also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities…Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences…If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Plainly, the Fourteenth Amendment was never understood to touch segregation, a point made especially clear given our determination that it did not touch suffrage. In light of this history, Berger underlined that “to import into the Civil Rights Act views of abolitionists and opponents that so plainly had been rejected, is to thwart, not to effectuate, the intention of its framers.”
Segregation was a deeply-ingrained part of American life, North and South. Plessy was based on long precedent and was “faithful to the framers’ design.” In 1871, the Ohio Supreme Court held that “equality of rights does not involve the necessity of educating white and colored persons in the same school.” This principle was affirmed by Nevada in 1872, and again in California in 1874. That same year, the Indiana Supreme Court ruled that Congress was not empowered “to exercise…supervision over the States on the subject of education.” In 1887, future Supreme Court Justice William Woods affirmed yet again that segregation did not conflict with the “equal protection” clause. The Senate gallery of the Thirty-Ninth Congress was segregated, and, as Berger emphasized, “it is unrealistic to presume that a Congress which has plenary jurisdiction over [the District of Columbia] and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States.” The Radical Representative George Julian said that “the trouble is we hate the Negro.” Senator Sherman agreed, stating that “we do not like Negroes. We do not conceal our dislike.” It cannot be overstated that the Fourteenth Amendment was regarded by its framers to be “identical” with that which it was meant to constitutionalize, the Civil Rights Bill of 1866.
That Bill “banned discrimination with respect to the right to own property, to contract, and to have access to the courts, rights that the Supreme Court, after canvassing the legislative history, described in 1966 as a ‘limited category of rights.’” The Bill only secured “equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races”, while 14A provided “equal protection to life, liberty, and property, to sue and be sued, to inherit, to make contracts. Thus was ‘equal protection’ wedded to the ‘limited category of rights’ enumerated in the Civil Rights Bill.” The framers employed “equal protection”, Berger explained, in order to “express their limited purpose: to secure the rights enumerated in the Civil Rights Act, and those only, against discriminatory State legislation. With respect to those rights there could no longer be one law for whites and another for blacks. The limitless objectives that Frankfurter read into the phrase were utterly beyond the contemplation of the framers.” Representative John Thomas said of the Bill that, “as a freeman, he is entitled to acquire and dispose of real and other property…to have his life, liberty, and person protected by the same laws that protect me…so shall he not only have the right to enforce his contract, but to that end shall be received as a witness in a court of justice on the same terms…I will go even further…and will vote for all measures to elevate their condition and to educate them separate and apart from the whites…but when it comes to placing him upon the same social and political level as my own race, I must refuse to do it.” A “no discrimination” clause had actually been deleted from the Civil Rights Bill, leading Bickel to conclude that it had been “amended specifically to eliminate any reference to discriminatory practices like school segregation”; indeed, Chairman Wilson expressly stated that “our amendment strikes out all of those general terms and leaves the bill with the rights specified in that section.” The exclusion of segregation from the ambit of the Amendment is further belied by the explanation of Senator Fessenden on its second section: It “should serve as an inducement to the Southern States to build schoolhouses…and educate their colored children until they are fit to vote.” Clearly, the Fourteenth Amendment did not authorize the Court to make its Brown decision; as we will see, Chief Justice Warren was well aware of that disquieting truth.
Brown was first argued before the Vinson Court. Justice Frankfurter, as alluded to, was eager for the opportunity to enact desegregation; he noted that Chief Justice Fred Vinson, as well as Justices Robert Jackson, Stanley Reed, and Tom Clark, were probable dissenters. Frankfurter thus decided to stall for time by working with Bickel to frame five questions for reargument in order to push the case to the next term. His gambit paid off, for Chief Justice Vinson suddenly and unexpectedly died just before reargument commenced. With glee, Frankfurter wrote that “this is the first indication I have ever had that there is a God.” William Coleman, the NAACP research coordinator, was a former Frankfurter clerk; he would later recall that his former boss “was for ending segregation from the very start.” Frankfurter arrived at his decision before even reading the case briefs, but he still agreed with Bickel that “the framers had not intended to outlaw segregation.” Justice Jackson, though he also agreed with desegregation as a matter of public policy, knew too that there was nothing to warrant “me in saying that it is required by the original purpose and intent of [the Fourteenth Amendment”; as such, Jackson promised to “file a separate concurring opinion” if the “Court feigned that the Justices were doing anything other than declaring new law for a new day.” Berger remarked that, in essence, this was asking the majority to admit that “there was no judicial basis for its decision”, that “it was acting in a frankly unjudicial way.” This would not do.
Jared Taylor has filled in more of the sordid details surrounding the Brown decision. The oral arguments before the Vinson Court had gone horribly for the NAACP; its attorney, future Supreme Court Justice Thurgood Marshall, did not even attempt to make a legal argument. He knew there wasn’t one to be made. His case rested on the “harms and benefits” theory that segregation caused blacks to have psychological feelings of inferiority, relying on the doll studies of Kenneth Clark. Clark “reported that if he showed a pair of black and white dolls to black children attending segregated schools and asked them which doll they liked better, a substantial number picked the white doll. He argued to the Court that this proves segregation breeds feelings of inferiority. He failed to mention that he had shown his dolls to hundreds of blacks attending integrated schools in Massachusetts, and that even more of these children preferred the white doll. If his research showed anything, it was that integration lowers the self-image of blacks, but he deliberately slanted his findings.” John Davis, an attorney for the defense, “pointed out that Clark’s conclusions contradicted his own published results in the Massachusetts findings. Davis later told a colleague that the ruling would surely go his way ‘unless the Supreme Court wants to make the law over.’” Justice Jackson was wary of the fact that Marshall’s case “start[ed] and end[ed] with sociology”, and had no illusions about what was happening. He remarked, “I suppose that realistically the reason this case is here is that action couldn’t be obtained from Congress.”
As aforementioned, Frankfurter knew that Brown was doomed in the Vinson Court. As Taylor explains, “if the Court had decided the case immediately after oral arguments, Brown might have been decided the other way or at best, with a five-to-four majority that would have given it little authority in the South.” Philip Elman, an assistant to the Solicitor General at the Department of Justice, was another former Frankfurter clerk, and “was in constant communication with his old boss about Brown.” Though the Eisenhower Administration had wanted to stay out of the proceedings, Elman “told the Solicitor General that a Supreme Court invitation to comment on a case was like a command performance, and he offered to handle the case.” Elman and Frankfurter engaged in wildly unethical collusion, whereby “one side of the case…had utterly improper inside knowledge about what every justice thought, and could craft arguments specifically to appeal to them.” Taylor notes that “Elman conceded that what he did ‘probably went beyond the pale’ but, he added, ‘I considered it a cause that transcended ordinary notions about propriety in a litigation.’ He wrote that he and Frankfurter kept an appropriate professional distance on all other cases, but made an exception for Brown. To them, ending school segregation was so important it justified unscrupulous maneuvering.” The two men spoke in code over the phone and sometimes met in person; “William Douglas was Yak because he was from Yakima, Washington. Stanley Reed was Chamer, because it means dolt or mule in Hebrew, and Reed thought desegregation was a political and not a judicial matter.” Elman considered Marshall to be beneath contempt, and “wrote that Marshall made bad, ineffective arguments, but that Elman’s collusion with Frankfurter had so rigged the Court in favor of desegregation, it made no difference: ‘Thurgood Marshall could have stood up there and recited ‘Mary had a little lamb,’ and the result would have been exactly the same.’”
As aforementioned, very shortly after Chief Justice Vinson died, Frankfurter and Elman made despicable remarks in celebration; as Taylor recounts: “‘I’m in mourning’, [Frankfurter] said with a huge grin. ‘Phil, this is the first solid piece of evidence I’ve ever had that there really is a God.’ Elman writes that ‘God takes care of drunks, little children, and the American people’, and showed His concern for America ‘by taking Fred Vinson when He did.’ The new Chief Justice was Earl Warren, an ambitious former Governor of California, who saw his job not as interpreting the Constitution but as a chance to exercise power.” Because Bickel had discovered incontrovertibly that segregation was light-years away from the purview of the Fourteenth Amendment, Frankfurter simply “began to urge that original intent did not matter, and that the Amendment’s language should be reinterpreted according to the needs of the time. He reported to Elman that Warren and some of the other justices were sympathetic to this view, so not surprisingly, when the Justice Department filed Elman’s 600-page brief in December 1953, it too argued that the language of the Amendment was broad enough to be reinterpreted.” During the reargument of Brown, Marshall rehashed Clark’s shoddy doll studies, of which evidence was suppressed, and Frankfurter “wrote long memos to the other justices insisting that the law must respond to ‘changes in men’s feelings for what is right and just.’” Justices Jackson and Reed were the final holdouts, both of whom had a deep-seated (though clearly not too deep-seated) abhorrence to judicial activism. Another curious deus ex machina occurred — Jackson suffered a serious heart attack. Debilitated and in hospital, he was visited by Chief Justice Warren, who persuaded Jackson to sign on to his newly-drafted opinion. Warren then “cornered Reed, telling him he would be all alone if he did not go along. Reed, who never agreed with the ruling, bowed to pressure and joined the majority.”
Despite all of the foregoing evidence that the framers of the Fourteenth Amendment expressly did not mean to touch segregation, either then or at any point in the future, and despite Bickel’s research proving the same, Warren wrote that, “although these sources cast some light, it is not enough to resolve the problem…At best, they are inconclusive…What…Congress and the State legislatures had in mind cannot be determined with any degree of certainty.” As aforementioned, the Court conceded that separate schools could in fact be equal, and that many, if not most, were equal; although this should have closed the issue, Warren said, “Our decision, therefore, cannot turn on merely a comparison of…tangible factors…We must look instead to the effect of segregation itself on public education.” As previously stated, Warren made the outrageous declaration that “we cannot turn back the clock to 1868 when the Amendment was adopted…We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives plaintiffs of the equal protection of the laws.” Warren asked, “Does segregation of children in public schools…deprive the children of the minority group of equal educational opportunities?” With literally nothing to support the decision but the extremely dubious and tainted doll studies, Warren simply wrote, “We believe that it does.” He continued that, contrary to nearly a century of precedent, “separate educational facilities are inherently unequal” and thus violative of the “equal protection” clause of the Fourteenth Amendment, because “to separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.” Warren implied that the “due process” clause would also be violated, but declined to elaborate.
Caldwell remarks that Brown “was not just a landmark decision but an unusual one. It was brief to the point of curtness: Shorn of footnotes and case references, each of its two parts ran about the length of a newspaper column. It was less a judicial argument than a judicial order…in constitutional terms, the decision was arbitrary and open-ended [and] granted the government the authority to put certain public bodies under surveillance for racism…there was no obvious limit to this surveillance…the Civil Rights Act introduced into the private sector this assumption that all separation was prima facie evidence of inequality.” Warren ignored the Fourteenth Amendment, tying his farcically, flimsily supported conclusion to the Amendment simply by declaring a connection. In truth, Warren’s opinion is a castle in the sky; the Fourteenth Amendment had nothing at all to do with the ruling, and was wholly disconnected from it — the doll studies had been the only basis for the decision. As Taylor put it, “because the Court could find no Constitutional justification for overturning the doctrine of ‘separate but equal’, it based its ruling on then-fashionable sociological theories. These theories were wrong.” Indeed, Taylor emphasizes, “it should not require pointing out that whether segregation makes blacks feel inferior is not a Constitutional issue. Even if the evidence that segregation did have that effect had been solid — and it was not — it did not justify reinterpreting the Constitution.”
Inexplicably, as if self-evident, Warren said that, because of “intangible considerations” and “qualities which are incapable of objective measurement”, separation “is usually interpreted as denoting” inferiority. Caldwell notes that the Court thus rewrote the Constitution and transformed American society “on the authority of vague pronouncements about the way things are ‘usually interpreted.’” Taylor gives us a glimpse of the social carnage wrought by Brown: “…integration orders were among the most intrusive and damaging ever issued by American courts. Judges took over the most minute school-related decisions as if they were one-man school boards. Mandatory racial balancing — usually accomplished by busing — provoked white flight that in many cases left schools even more segregated than before. Beginning in 1991, the Court eased its requirements for mandatory busing, but by then it had already caused incalculable dislocation and had turned most big-city school districts into minority ghettos.” Warren’s remark that “we cannot turn back the clock”, Berger explained, was “a veiled declaration that the intention of the framers was irrelevant and that the Court was revising the Constitution to meet present-day needs…Stated baldly, what the framers meant by the words they employed is not binding on the Court; the Court lays claim to power to revise the Constitution to meet present needs.” Berger noted that Warren “did not merely ‘shape’ the law, he upended it; he revised the Fourteenth Amendment to mean exactly the opposite of what its framers designed it to mean, namely, to leave suffrage and segregation beyond federal control, to leave it with the States, where control over internal, domestic matters resided from the beginning.”
As Taylor briefly touched upon, Justice Frankfurter wrote that the Constitution “was ‘made for an undefined and expanding future’” and “is not a fixed formula…The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether a discrimination denies the equal protection of the laws.” Berger aptly replied that, “although the framers were well aware of the nation’s ‘expanding future’, they nonetheless…rejected suffrage, ‘present or prospective.’…Buried in Frankfurter’s fine phrases is a confession that the people could not be trusted to reflect the ‘changes in men’s feelings’ by an Amendment, and that in consequence the Justices had to rewrite the Constitution.” As Americans, it is one of our foremost duties to interrogate each and every action taken by the government; we must trace each exercise of power to its source. Often, we find, as we have thus far, that there either is no source, or that the given source bears no relation to the power exercised. Henry “Light-Horse Harry” Lee III, hero of the War of Independence and father of the gallant General Robert E. Lee, warned us to be vigilant; at the Virginia Ratification Convention, he said, “When a question arises with respect to the legality of any power, exercised or assumed”, the question will be, “Is it enumerated in the Constitution? …It is otherwise arbitrary and unconstitutional.” Justice Holmes further warned that “the criterion of constitutionality is not whether we believe the law to be for the public good.” Taylor made what is perhaps the best statement on Brown: Its final reckoning “has yet to be made, but it is a ruling to be mourned, not celebrated.”
In response to Brown, “massive resistance” in the Southern States was initiated. This is not the space to examine white resistance to Brown and the ensuing Civil Rights movement, but it is worth remembering the Declaration of Constitutional Principles, better known as the Southern Manifesto. Senators Harry F. Byrd, Sr., Strom Thurmond, and Richard Russell drafted the rallying cry, an announcement of a Solid South unified in resistance, signed by 101 Congressmen. They wrote that Brown “climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people”, and that “the original Constitution does not mention education. Neither does the Fourteenth Amendment nor any other Amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.” They noted, as have we, that “the very Congress which proposed the Amendment subsequently provided for segregated schools in the District of Columbia. When the Amendment was adopted…Every one of the 26 States that had any substantial racial differences among its people, either approved the operation of segregated schools already in existence or subsequently established such schools.” They declared that segregation, which did not conflict with the Fourteenth Amendment, “became a part of the life of the people of many of the States and confirmed their habits, traditions, and way of life. It is founded on elemental humanity…for parents should not be deprived by Government of the right to direct the lives and education of their own children.” They asserted that, “though there has been no constitutional Amendment…changing this established legal principle almost a century old, the Supreme Court, with no legal basis for such action, undertook to exercise [its] naked judicial power and substituted their personal political and social ideas for the established law of the land.” They stated that “this unwarranted exercise of power by the Court, contrary to the Constitution, is creating chaos and confusion in the States principally affected”, and that, “without regard to the consent of the governed, outside mediators are threatening immediate and revolutionary changes in our public-school systems. If done, this is certain to destroy the system of public education in some of the States.” Finally, they said, “We decry the Supreme Court’s encroachment on the rights reserved to the States and to the people, contrary to established law, and to the Constitution.” How right they were.
Does the Fourteenth Amendment include the doctrine of “incorporation”?
I have probably mentioned some form of the “vitiation of the Tenth Amendment” a dozen or more times by now. The poor Tenth Amendment is like Shel Silverstein’s Giving Tree, the tree that gives, and gives, and gives, until there is nothing left to give. Perhaps another analogy is a dying man, bleeding out on the street as bystanders rush by, on their way to bigger and more important things. The Tenth Amendment has been under sustained assault essentially since the birth of the Republic, and at this point essentially no longer exists. The last bullet in its riddled body was the doctrine of incorporation, conjured through yet another “interpretation” of the Fourteenth Amendment, whereby the Bill of Rights has been applied to the States. Most of us simply take it for granted that the Bill of Rights are “national”, applicable to every person within the United States, and that it has always been so. This could not be further from the truth. As Berger summarized, “Invocation of the Bill of Rights against the States is of fairly recent origin, whether it be regarded within the older framework of ‘adoption’ or the more recent theory of ‘incorporation.’ From the First Amendment’s ‘Congress shall make no law’ may be gathered that it was to apply exclusively to Congress, and it was held in Barron v. Baltimore that the Bill of Rights had no application to the States, as in fact the First Congress, which drafted the Bill, had earlier made clear. Justice Harlan spoke truly in stating [in Duncan v. Louisiana] 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.’…for a long time the Supreme Court found that the Fourteenth Amendment had made no change in this respect. By means of ‘selective’ incorporation or adoption the Court has worked a ‘revolutionary change.’”
For the entirety of American history, the people “have relied upon the States for protection, and such protection was afforded before the Constitutional Convention by a Bill of Rights in virtually every State constitution. It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State constitutions already provided against the States.” The modern phenomenon whereby the people look to the omnipotent federal Leviathan for protection is just that — modern, i.e., without any historical precedent whatsoever. It is a way for the favored puppets of the Regime to have their way with the States that would protect the American people from them. This arose in parallel with the erosion of State sovereignty by such instruments as the Seventeenth Amendment, as the American Republic was incrementally pushed toward the chasm of popular democracy. Justice Hugo Black was the architect of “incorporation” in his dissent in Adamson v. California, reading into “privileges or immunities” the idea that “henceforth the Bill of Rights shall apply to the States.” In response, Berger pointed to the undeniable fact that the two concepts are wholly estranged from one another, “of entirely different provenance and [dealing] with quite different matters.” “Privileges or immunities”, as we have seen, is grounded in Article IV, Section II, “which requires States to accord certain privileges to citizens of a sister State.” The Bill of Rights, by contrast, was designed to protect the rights of States against the federal government. Berger noted that “the debates in the First Congress contain not the faintest intimation that ‘privileges or immunities’ of Article IV were being enlarged, or…that the Bill of Rights was in any way related to ‘privileges or immunities.’ And, when Justice Bushrod Washington later enumerated those ‘privileges or immunities’, he too made no reference to the Bill of Rights. To read the Bill of Rights into ‘privileges or immunities’ is therefore no more ‘reasonable’ than to read a ‘bill of attainder’ into ‘habeas corpus.’”
Justice Black cited Representative Bingham’s proposal to “incorporate” the Fifth Amendment, allegedly inspired by abolitionists who advocated the “incorporation” of the First and Fourth Amendments, as well as Senator Howard’s proposal to “incorporate” the First through Eighth Amendments. As to Bingham’s proposal, it was shelved immediately, with Bingham its only advocate. After the proposal was rejected, Bingham never mentioned it again, making no reference to the inclusion of the Bill of Rights during the debate on the final draft of the first section of the Fourteenth Amendment. Berger examined Bingham’s often self-contradictory statements on many issues during the Thirty-Ninth Congress, and came to the unavoidable conclusion that the man was “a muddled thinker”, a “careless, inaccurate, stump speaker.” As Representative Stevens said of his colleague, “In all this contest about Reconstruction, I do not propose to listen to his counsel, recognize his authority, or believe a word he says.” Howard explained the Amendment to the Senate only “by caprice of fortune — the sudden illness of Chairman Fessenden.” Howard was another pariah, “one of the most…reckless of the Radicals”, who had “served consistently in the vanguard of the extreme Negrophiles.” Howard and Representative Elihu Washburne were the only members of the Thirty-Ninth Congress to advocate for black suffrage until the bitter end. Howard proposed his addition of the first eight Amendments into the Fourteenth as one casual sentence in an exceedingly long speech, almost as an aside; it was completely ignored by the members present, and clearly did not represent a majority, or even a minority, opinion.
Senator Luke Poland affirmed that “privileges or immunities” “secures nothing beyond what was intended by the original [Article IV, Section II] provision in the Constitution.” Representative William Wisdom described the Fourteenth Amendment thus: “Your life shall be spared, your liberty shall be unabridged, your property shall be protected.” Moreover, Berger noted, “there is the remarkable fact that the cases which followed on the heels of the Fourteenth Amendment continued to hold the Bill of Rights inapplicable to State action, without mentioning the Amendment. Oversight will not account for the omission…they would not be oblivious to the revolution worked by the alleged incorporation of the Bill of Rights.” When James Madison proposed that the First Amendment protection of “free speech” be applied against the States, he was rebuffed; the lesson from this, Berger emphasized, was clear: “That which the Framers rejected cannot be regarded as part of our tradition.” To reiterate, the understanding which pervaded the Thirty-Ninth Congress was that the sole purpose of the Amendment was to constitutionalize the Civil Rights Bill. The framers were attached to the sovereignty of their States, and indeed believed that only the targeted South, not the North, would even be affected by the Amendment. All of this, Berger asserted, unites “to repel an inference that the framers intended to interfere with State conduct of its own affairs otherwise than is described in that Act.”
Again, “no trace of a purpose to reconstruct Northern institutions for the protection of white inhabitants against the State will be found in the debates; the frequent expressions of jealous regard for [their own] State sovereignty repel such a purpose.” Justice Black’s so-called “incorporation” was never discussed in the Joint Committee on Reconstruction which drafted the Fourteenth Amendment. “Incorporation” was never even debated on the floor of that Congress, or any other, for that matter; if “incorporation” had been intended, this fact would constitute “an extraordinary omission given the vast incursion on State sovereignty by the Bill of Rights. Indeed, the North was given to understand that it was unaffected by the companion Civil Rights Bill, the Bill that was considered on all sides to be ‘identical’ with the first section of the Amendment. Plainly, the provisions of ‘due process’, ‘privileges or immunities’, and ‘equal protection’ did not disclose that the Bill of Rights was incorporated therein.” We must never forget what the term “ratification” means — it is a voluntary compact, much like the United States were a voluntary compact. This means that, even “if there was a concealed intention to go beyond the Civil Rights Act, it was not ratified because…ratification requires disclosure of material facts…and…a surrender of recognized rights may not be presumed but must be proved.” “Incorporation”, then, is yet another facile bastardization through which the Fourteenth Amendment has been fundamentally transformed. In this transformation, Berger declared, “the Court has soared beyond the confines of the Bill of Rights to fashion a congeries of individual rights undreamed of by the Founders.”
When seventeenth-century scholars, to whom the Founders looked, referenced “fundamental rights or laws”, they meant “the rights which the existing law gave them”, not the “rights” which a ruling class antithetically opposed to all that they held dear might fashion. When Samuel Adams claimed “the primary, absolute, natural rights of Englishmen”, he listed the aforementioned Blackstonian trio of “Personal Security, Personal Liberty, and Private Property.” “Liberty” was defined as “unrestrained freedom to come and go.” The Bill of Rights was a direct response to British atrocities before and during the War of Independence; this is the source of the Framers’ desire, itself hotly debated, for protection of the States from the federal government for “free speech, quartering of soldiers, unreasonable searches and seizures, the right to bear arms, and sundry procedural provisions to ensure fair trials. How activists can conjure out of these facts provision for illimitable individual rights passes understanding.” The remaking of American history into a utopian struggle for ever-greater “individual rights” to the final pyrrhic frontier is without precedent; indeed, “the modern individual ‘rights’ created by the Court are without foundation in the Constitution.” Judicial revisionists, handmaidens to the Regime, “outdo one another in urging the imposition of constitutional constraints on the basis of ‘rights’ whose origins cannot be traced to either the constitutional text or the structure it created.”
What does “equal protection of the laws” guarantee?
As our investigation has proven, “the framers meant to outlaw discrimination only with respect to enumerated privileges. Even the abolitionists shrank from complete equality.” They carefully and deliberately chose the words that they felt most “aptly expressed, and throughout were wedded to, their limited purposes…there is virtually no evidence that the framers meant by resort to those words to open goals beyond those specified in the Civil Rights Act and constitutionalized in the Amendment.” Equal application of the law is a long and well-established doctrine of Anglo-American jurisprudence; this, and only this, was the purpose of the Civil Rights Bill which the Amendment meant to embody. That Bill, it bears repeating, “secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the ‘equal benefit of all laws for security of person and property.’ ‘Political rights’ were excluded. In describing these aims the framers interchangeably referred to ‘equality’, ‘equality before the law’, and ‘equal protection’ (but always in the circumscribed context of the rights enumerated in the Bill), so that it is reasonable to infer that the framers regarded these terms as synonymous.” Equality before the law, the framers insisted time and again, is not social equality. Representative Thomas Davis agreed that blacks “must be made equal before the law, and be permitted to enjoy life, liberty, and the pursuit of happiness [property]”, but he was against “the establishment of perfect equality between the colored and the white race of the South.” “Equal protection of the laws” was a particularized expression of the framers’ central object, aside from maintaining Republican hegemony: “to prevent statutory discrimination with respect to the rights enumerated in the Civil Rights Act.”
The framers of the Fourteenth Amendment “sought only to secure to blacks the same specified rights as were enjoyed by whites; if whites did not have them there was no State duty to supply them to anyone, still less a Congressional power to fill the gap.” In other words, the Amendment did not create any “rights”, but only sought to restrict States from discriminating against blacks with respect to extant “rights.” The “equality” that was to be protected was a Statewide standard, “within its jurisdiction”, not a national standard. Representative Samuel Shellabarger evinced this when he said that the Bill secures “equality of protection in these enumerated civil rights which the States may deem proper to confer upon any race.” A State statute might be “unequal” when placed in comparison with another State’s, but “if it is impartial, uniformly applied to all within the State, it satisfies the meaning of ‘equal.’” The framers repeatedly stated that their purpose was “to prevent one law for blacks, another for whites. It was a ban on such discrimination that was expressed in ‘equality before the law’ and ‘equal protection’ — not a mandate that the States must confer rights not theretofore enjoyed by any citizen.”
The first section of the Amendment, wherein the three operative clauses are located, was agreed-upon to be a restriction on the States, not a conferral of new power onto Congress, let alone the judiciary. The Congressional power of section five was extremely limited to corrective measures addressed to specific unequal application of State laws, not expansive general national legislation. Future President James Garfield explained at the time that Congress had rejected “a clear grant of power to Congress to legislate directly for the protection of life, liberty, and property within the States” in favor of the final form that “limited but did not oust the jurisdiction of the State over the subjects.” In United States v. Cruikshank, Chief Justice Morrison Waite denied the “incorporation” doctrine that the “equal protection” clause has been distorted to create, writing, “For their protection in its [the First Amendment protection of the right to assemble against “encroachment by Congress”] enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.” Justice Bradley concurred, asking, “How can a prohibition…be enforced until it is violated?” He elaborated that “to convert ‘No State shall deny’ into ‘Congress shall make’ does violence to the text. The distinction between a prohibition of action and a grant of power was well understood by the Thirty-Ninth Congress.” Bradley continued that “surely Congress cannot guaranty to the colored people admission to every place of gathering and amusement. To deprive white people of the right of choosing their own company would be to introduce another kind of slavery… [The Civil Rights Bill] has already [guaranteed] to the blacks the right of buying, selling, and holding property, and of equal protection of the laws. Are these not the essentials of freedom? Surely a white lady cannot be enforced by Congressional enactment to admit colored persons to her ball or assembly or dinner party…does freedom of the blacks require the slavery of the whites? And enforced fellowship would be that.”
What does “due process of law” mean?
In 1787, Alexander Hamilton declared at the New York Assembly that “the words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.” Berger confirmed that “no statement to the contrary will be found in any of the Constitutional Conventions, in the First Congress, nor in the 1866 debates.” The concept of “due process of law” can be traced back to the 29th chapter of the Magna Carta, which provided that “no man should be deprived of his life, liberty, or property, except by judgment of his peers or the law of the land. Edward Coke stated that ‘by the law of the land’ was meant ‘by the due course and process of law’…both related to judicial procedures preliminary to the described forfeitures.” Berger noted that “due process” was “conceived in utterly procedural terms, specifically, that a defendant must be afforded an opportunity to answer by service of process in proper form, that is, in due course.” As conceived, “process” was by indictment or writ, served “in ‘due course’, that is, in regular course, if the ‘appropriate’ writ was employed. ‘Due process’ should therefore be regarded as shorthand for Coke’s ‘by the due course and process of law’ in judicial proceedings…due process was not a catchall for all the other safeguards the Bill of Rights provided to a defendant; it had a special and limited function: to insure through service of proper, that is, ‘due’, process that a defendant would be given a chance to answer.”
Given the extreme prominence to which “due process” has been elevated by judicial “construction” of the Fourteenth Amendment, Berger remarked that “it is surprising how scanty were the allusions to the clause in the debates of the Thirty-Ninth Congress. It was altogether unmentioned in the Civil Rights Bill; instead the Bill spelled out the concrete rights ‘to sue, be parties, and give evidence’; and it inclusively provided for the ‘equal benefit of all laws and proceedings for the security of person and property.” The conversion of the “due process” clause into the behemoth that it is today has turned the Amendment on its head, such that its framers would hardly recognize it. As aforementioned, “the original design was to make ‘privileges or immunities’ the pivotal provision in order to shield the ‘fundamental rights’ enumerated in the Civil Rights Act…Intertwined with that enumeration was repeated emphasis on the enjoyment of the ‘same rights’, and ‘equal benefit of all laws and proceedings for the security of person and property.’” Senator Trumbull stated clearly that the Bill “contains but one single principle…to establish equality in the civil rights of citizens.” We have already examined at length just what those “civil rights” were — a far cry from engorged Civil Rights. Representative John Farnsworth said that the Amendment “might as well in my opinion read, ‘No State shall deny to any person within its jurisdiction the equal protection of the laws’”, as the rest was “surplusage.” For the framers, Berger concluded, “the three clauses of the Fourteenth Amendment were a trinity, three facets of one and the same purpose.” In summary, “privileges or immunities” protected the substantive civil rights of the freedmen, through the medium of two ancillary rights, the first of which being the impartial and “equal protection” under and application of State laws to prohibit statutory discrimination with respect to those enumerated civil rights, and the second of which being judicial “due process” to prohibit judicial discrimination of the same enumerated rights.
The framers, Berger asserted, “were content to bar discrimination, to assure blacks that they would have judicial protection on the same State terms as whites, no more, no less… ‘due process of law’ was not meant to create a new, federal criterion of justice. Like State laws at which ‘equal protection’ was aimed, State justice had to be nondiscriminatory.” Representative Stevens explained that “due process” meant only that “whatever means of redress is afforded to one shall be afforded to all.” In Hurtado v. California, Justice Stanley Matthews wrote that “due process” as written in the Fourteenth Amendment “refers to that law of the land in each State…’Each State prescribes its own mode of judicial proceeding.’” Berger continued that the framers were even less of a mind “in requiring nondiscriminatory laws and equal judicial process to create a fresh congeries of rights that ranged beyond those enumerated. Having in mind that the Amendment was designed to constitutionalize the Civil Rights Act, it is clear that the ‘equal protection’ and ‘due process’ clauses were merely a compressed version of the original design…these clauses simply echoed the Blackstonian formula that the ‘fundamental rights’ could be diminished only by ‘due course of law’ or by the ‘laws of the land’, by which was meant general laws that would apply to all alike.” Chairman Wilson stated that “it is not the object of this Bill to establish new rights.” For the protection of the enumerated “fundamental rights” of “life, liberty, and property”, which we have seen are specifically limited terms of art, “the framers fashioned impartial access to judicial process and nondiscriminatory legislation. They did not seek to supplant State proceedings and lawmaking, but only to insure…that an oppressed race should have the ‘equal benefit of all laws for security of person and property’ ‘as is enjoyed by white citizens.’” The Court has ignored all of the foregoing discussion, and has chosen instead to substitute its whims for the careful deliberation of the framers.
 Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment (Indianapolis: Liberty Fund, 1997).
 Taylor, Jared. “The Racial Revolution: Race and Racial Consciousness in American History,” in Race and the American Prospect, Francis, Samuel T. (Ed.); See also Weyl, Nathaniel. American Statesmen on Slavery and the Negro (Arlington House, 1971).
 Taylor, Jared. “Brown v. Board: The Real Story”, in If We Do Nothing: Essays and Reviews from 25 Years of White Advocacy (New Century Books, 2017).