Review: No state shall abridge the fourteenth amendment and the bill of rights by Michael Kent Curtis

The Fourteenth Amendment, the longest and most complete, is without doubt the most significant. It was an attempt by the 39th Congress to constitutionalize the Civil Rights Act of 1865 that President Andrew Johnson had vetoed, the first veto of a major piece of legislation to be overridden by Congress. The first section included four significant clauses: the Citizenship Clause, the Equal Protection Clause, the Due Process Clause, and the Privileges or Immunities Clause (note "or" not the "and" of Article IV.) Each of the clauses has had enough of an impact to be worthy of being considered a new Constitution, the third if you count the Articles of Confederation as the first.

Barron v Baltimore(1833) had applied the Bill of Rights to federal jurisdiction only. Recent scholarship, epitomized by Curtis in this book is arguing that jurisprudence since the 1870's has ignored the history of the 39th Congress discussions that, he says, clearly intended to apply to Billof Rights to the states. Certainly the text would seem to so indicate. Section 1, following the first sentence that made freed slaves citizens (thus overturning Dred Scott, begins "No state shall..." On the face of it, that would seem to be as clear an indication as of intent as possible.

Nevertheless, the Supreme Court decisions, beginning with the infamous Slaughterhouse Cases, and the Cruikshank case refused to accept this and argued the due process clause still applied only to federal jurisdiction. Thus was the 14th amendment completely defanged leaving many of the Black Codes and segregation laws in place and making the Civil Rights Act of 1875 just a piece of paper. Justices Hugo Black (ironically former KKK member) and Frankfurter (former darling of the left who became a staunch advocate of judicial restraint) battled over the historical basis for the 14th. Black's dissents in cases made it clear that he believed the 14th was intended to apply the Bill of Rights to the states. Frankfurter and Charles Fairman belittled any opposition to their view that this position was nonsense. Frankfurter believed the Due Process Clause just gave the Supreme Court too much power, and I'm sure he is spinning in his grave at what was accomplished by the Warren Court that used the Due Process Clause to selectively apply much of the Bill of Rights to the states. Brown v. Board of Education, overturning the infamous Plessy decision of "separate but equal" notoriety would never have been possible without it.

Professor Curtis and others like William Crosskey challenged Frankfurter and Fairman and their view seems to have won, even though antagonism to application of the Bill of Rights under the 14th was rampant even in the eighties. Justice Clarence Thomas has taken an even more interesting approach arguing that the Due Process Clause has been used inconsistently to apply the Bill of Rights to the states and he maintains, referring to historical evidence, that the clear intent of the 39th Congress, under Bingham, Stevens, and Trumbell, and the Republican majority, was to use the Privileges or Immunities Clause to make the application. His concurrence in MacDonald lays it out very nicely.

Curtis has written an excellent summary of the history of the controversy including a thorough rebuttal to Supreme Court's jurisprudence in this regard in the late 19th and early 20th centuries. Curtis points out that Slave Power suppression of free speech rights, the "gag rule" for example, and the suppression of due process through the Fugitive Slave Acts, before the Civil War radicalized the Republican Party, which, thanks to secession, gave them complete control of the Senate and the House. The attempts to push slavery into the territories of Kansas and Nebraska, the elimination of the Missouri Compromise, and their justifiable fear that Justice Taney might declare in the Lemmon v New York case then moving its way through the courts, that slavery could not be declared illegal in the states, all contributed to this radicalization. Clearly, their intent was to force the Bill of Rights on the states and overturn Barron (Bingham had even brought a copy of the decision to read on the floor of the House, many members not being familiar with it.

Good companion books to read with this one:

1. Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863-1869 (New York: Norton, 1974)

2. Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post Civil War America (New York: Henry Holt, 2013), Kindle

3. Gerard N Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment ([Place of publication not identified]: New York University Press, 2016), Kindle

4. Epps, Garrett, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (New York: MacMillan, 2013) Kindle

I rarely watch TV, in fact it hasn't even been on in weeks except for one Netflix movie. This morning I was reminded why. We were staying at a hotel while visiting the kids, and I thought rather than fire up the laptop I could quickly tune in to the weather. Wrong. All I found on the morning shows -- all of them -- was incessant self-promotional babel and giggle time about the each person's silly little peccadilloes. The weather, what there was of it, scrolled across the bottom of the screen providing only the barest hint that the ice might be a problem. The narcissistic clamor was interrupted only by a multitude of commercials. Wasteland doesn't begin to describe it. And these folks make millions?