America's Unwritten Constitution: The Precedents and Principles We Live By (27 page)

The same pattern can be seen in other corners of case law. In the 1951 case of
Dennis v. United States
, the Court largely blessed Congress’s crusade against Communists and other allegedly subversive speakers. Only after the incorporation revolution began did the Court adamantly and unwaveringly back free expression, in a long line of cases including
Brown v. United States
(a 1965 Communist Party case),
Brandenburg v. Ohio
(a Ku Klux Klan free-expression case decided in June 1969, Warren’s last month on the Court), and
New York Times Co. v. United States
(a 1971 case in which the federal government sought to block the publication of the Pentagon Papers).

In the 1971
New York Times
case, federal censorship efforts were (unsuccessfully) defended in Court by none other than Solicitor General Griswold, who saw up close how the incorporation revolution that he had criticized was making his job of justifying federal censorship more difficult than the task that had confronted his 1950s predecessors. Notably, it was an incorporation-era case involving a state government’s assault on political dissenters—the celebrated 1964 lawsuit,
New York Times v. Sullivan
—that had prompted the Court to admit for the first time in its history that the federal Sedition Act of 1798 really
had
violated the central meaning of the First Amendment. In
Sullivan
, the Court confronted repressive Alabama officials who were seeking to shut down antigovernment speech. In
response, the Court declared that Alabama libel law had many of the same vices as the infamous federal seditious libel law of 1798, a law that, in the
Sullivan
Court’s words, stood condemned by “the court of history.” Once the justices were officially on record that President John Adams had been too thin-skinned in the midst of a naval quasi-war against France, it became easier for the justices a few years later to see that the same might be true of President Richard Nixon in the midst of a land war in Asia. Thus,
The New York Times’
s landmark Fourteenth Amendment victory against state suppression in 1964 not only foreshadowed but also facilitated
The New York Times’s
landmark First Amendment victory against federal censorship in 1971. Of the six remaining justices who had voted for the
Times
the first time around, five voted for the
Times
once again.
²⁰

With few exceptions, the biggest cases in the American “Bill of Rights” canon are thus either cases in which the pre-Warren Court laid the groundwork for incorporation, cases in which the Warren Court itself incorporated previously unincorporated rights against states, cases in which the Warren Court applied previously incorporated clauses with new vigor, or post-Warren cases building on this Warren Court legacy.
^*

FORTUNATELY FOR THE GENERAL CONDITION
of the American constitutional project, the Warren Court basically got it right on incorporation.

The Court’s initial critics claimed otherwise, attacking incorporation on several fronts. One camp of critics—the textualists—argued that incorporation lacked a sturdy foundation in the Fourteenth Amendment’s language. But the amendment’s words plainly call for incorporation of some sort: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Ask a roomful of Americans to name their basic rights, freedoms, privileges, and immunities as citizens and they are apt to quote or paraphrase virtually every entitlement in the Bill of Rights along with other claims of right rooted in American tradition and practice.
²¹

What is true of ordinary language and American culture today was also
true in 1866, when the Fourteenth Amendment was composed. Key congressional sponsors of the Fourteenth Amendment made clear that the “privileges [and] immunities of citizens” at the amendment’s core included all the individual rights found in the Bill of Rights. Ohio Representative John Bingham, the lead draftsman of this language, invoked “the Bill of Rights” more than a dozen times in one major speech, which he quickly published (in time for the congressional election of 1866) as a popular pamphlet subtitled “In support of the proposed amendment to enforce the Bill of Rights.” In the Senate, fellow draftsman Jacob Howard of Michigan reported to his colleagues and his countrymen—who could follow the proceedings through detailed and high-profile press accounts—that “the privileges and immunities of citizens of the United States as such” encompassed “the personal rights guaranteed and secured by the first eight amendments of the Constitution,” amendments that Howard then quoted and paraphrased in detail.
²²

Despite this compelling evidence from plain meaning and legislative history, some textualist critics of the Warren Court have remained skeptical. If the Reconstruction Congress really meant to incorporate the Bill of Rights against states, why didn’t Congress say so more clearly in the amendment’s text?

Actually, in 1866, the words that Congress chose to express the basic incorporation idea were clearer and more technically accurate than various alternative formulations would have been. For example, had the Fourteenth Amendment spoken explicitly of “the Bill of Rights,” what would this phrase have meant? Amendments I–VIII? I–IX? I–X? Unlike many state constitutions, the federal Constitution does not contain a separate section formally captioned as a “Bill of Rights.” Prior to 1866, the Supreme Court had never referred to the early amendments as a “Bill of Rights.” In prominent case law, the Court had, however, described various provisions of the Bill, such as the freedoms of speech and assembly and the right to keep and carry arms, as paradigmatic “privileges and immunities of citizens.” Other notable antebellum legal documents—treaties of territorial accession and statutes regulating federal territories—had likewise referred to various provisions of the Bill of Rights as “privileges” and “immunities” of “citizens.”
²³

The popularity of the phrase “the Bill of Rights” in modern discourse and the synonymy of this phrase with the early amendments are themselves products of Reconstruction. In the mid-1860s, Democratic opponents of the proposed Fourteenth Amendment did not typically describe the early amendments as “a Bill of Rights” or “the Bill of Rights.” Reconstruction Republicans, led by Bingham, did repeatedly refer to these amendments as the federal “Bill of Rights,” thereby helping to bring the phrase into vogue. Republicans’ repeated references—nearly twenty by Bingham alone in a pair of high-profile speeches—occurred as the drafters of the Fourteenth Amendment clearly explained to Congress and the American people that this amendment aimed to make all the entitlements of this “Bill of Rights” applicable against states.
²⁴

But not just these entitlements. Thus, any textual mention of “the Bill of Rights” and only the Bill of Rights would have fallen far short of the Reconstruction Republicans’ goal of ensuring state obedience to
all
fundamental rights, freedoms, privileges, and immunities of Americans. Some fundamental rights, such as the privilege of the writ of habeas corpus, were mentioned elsewhere in the Constitution. Additional rights derived from America’s lived Constitution of actual practice and from landmarks of liberty such as state constitutions and the Declaration of Independence. Still other entitlements had yet to be recognized in 1866 but were intended to be protected by future courts and especially by future Congresses tasked by section 5 to enact legislation declaring newfound fundamental civil rights.

Perhaps some problems of textual underinclusiveness might have been avoided if the framers of the Fourteenth Amendment had made clear that they meant to incorporate not simply the enumerated rights of the first eight amendments but also the unenumerated rights referred to by the Ninth Amendment. But any textual reference to, or explicit incorporation of, the Ninth Amendment as such would likely have prompted states’ rights’ advocates in the 1860s to cry foul: One of the animating ideas of the Ninth Amendment was to limit
federal
power in the interest of
states
’ rights. After all, the Ninth Amendment textually locked arms with the Tenth: These back-to-back clauses both spoke of rights and powers retained and reserved to “the people.” Undeniably, the Tenth was largely, if not wholly, a
federalism-based
provision safeguarding the structure of enumerated powers
in Article I. The driving idea of the Tenth Amendment—limiting Congress so as to preserve a policy domain for state governments—made the very thought of incorporating the Tenth against the states seem perverse, if not preposterous. How could a states’-rights amendment be incorporated
against
states? And to the extent that the Ninth textually and conceptually intertwined with the Tenth—for the Ninth, too, was originally designed to ensure, among other things, that Congress did not go beyond its proper enumerated powers—how could the Ninth Amendment apply against states?

All of which leads to the second major objection to incorporation, an objection leveled by a camp of structuralist critics of the Warren Court. According to this structuralist objection, the Bill of Rights contains various states’-rights elements that cannot sensibly be applied or “incorporated” against states. The Ninth and the Tenth Amendments did not stand alone; other amendments in the Bill of Rights were also states’-rights provisions, at least in part. For example, the First Amendment establishment clause affirmed the complete absence of any express or implied federal power to regulate religion. The First Amendment words
“Congress shall make no law”
echoed (and marked the outer edge of) Article I, section 8, which said that
“Congress shall
have Power…To
make all Laws”
—but only in some domains. Religion was a domain left outside of Congress’s enumerated power, and this Article I understanding was affirmatively reiterated by Amendment I. In this respect, the First Amendment resembled the Tenth Amendment, reserving an area for state regulation. How could this states’-rights clause be applied
against
states? Ditto with the Second Amendment: If a key point of this amendment was to preserve states’ rights to field state-organized militias as checks against federal officialdom, then how could this states’-rights amendment be swiveled around to check states (and to empower federal officials in Congress and the Court)?

The answer to all these structural riddles can be found in the Fourteenth Amendment’s text. The amendment does not say that any specific
amendment
or
clause
originally designed as a limit on the federal government must henceforth apply against states. Rather, it says that various “privileges” and “immunities” of individual “citizens” apply against states. Thus, it invites interpreters to separate and refine out the individual-rights components
(that is, the “privileges” and “immunities” of “citizens”) contained within the First and Second Amendments—and indeed contained within all the other parts of the Constitution, for that matter—from their comingled states’-rights components.
²⁵

This separation, refining the essence of individual rights from the mixed ore in which they are textually embedded, is precisely what antebellum interpreters had been obliged to do in applying the federal Constitution to the federal territories and the District of Columbia. If a particular constitutional clause was merely a federalism rule—based on the idea that federal power should be limited so that state policy could govern a given domain—then that clause did not have bite in the territories. (For example, the limits on the jurisdiction of federal courts in the federal Judicial Article were designed to let state courts hear all the remaining cases. This idea of limiting federal courts so as to protect state courts across the street made little sense in the territories, where the only sitting courts were federal courts, with no other backstop.) Conversely, if a constitutional clause was a pure individual right, then surely it should limit the federal government in D.C. or any other federal enclave just as it would in Virginia or Maryland.

Alternatively, if a clause was partly a federalism rule and partly an individual right, then interpreters would need to refine the clause in deciding exactly how to apply it in a territory. Consider, for example, the Second Amendment. To the extent this amendment merely protected official state-organized militias, it had no bite in a federal territory that lacked a state government to organize such a militia. But to the extent the amendment also protected an individual right to keep a gun at home for self-protection, the amendment did sensibly operate in this—refined—way in the territories in the same way that it operated in states.
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Reconstruction Republicans, many of whom hailed from states that had begun as territories, believed that the same refined individual-rights limits that applied when Congress legislated for the territories—and that also obviously applied against any territorial governments that Congress had established—should continue to apply when these territorial governments
ripened into state governments. Hence, Republicans drafted an amendment inviting interpreters to refine the essence of individual rights from the Constitution’s text and then apply these refined rights against states.
²⁶

The two major camps of incorporation’s critics—the textualists and the structuralists—thus inadvertently canceled each other out. The very reason the Fourteenth Amendment used wording that the textualist critics found oddly indirect was that such wording elegantly avoided the perversity that troubled the structuralist critics—namely, the perversity of incorporating states’ rights against states themselves. Thus, Reconstruction Republicans deftly threaded a legal needle, directing interpreters: (1) to apply the basic individual rights in the first eight amendments against states; (2) to apply all other fundamental civil rights—rights found both elsewhere in the federal Constitution and in other sources—against states; (3) not to apply states’ rights against states; and (4) to refine individual-rights elements from states’-rights elements where the two were intermixed in various constitutional passages or other appropriate source material. And Republicans did all this with phrasing that also—in ways and for reasons that will soon become clear—highlighted that their proposed amendment would address only civil rights and not political rights such as voting, jury service, or office-holding. It was quite a feat of constitutional draftsmanship to codify all this in a mere twenty-one words!