By the 1920s the U.S. was still grappling with the thorny question of how, and to what extent, the Bill of Rights of 1791 would be incorporated within the scope of the Equal Protection and Due Process clauses of the Fourteenth Amendment (1868). Incorporation represented a significant evolution in American constitutional jurisprudence towards the
317 The generalities in the text may create or perpetuate debate, arguments and conflict, but can also provide a basis for consensus.
318 In post 1949 Germany, by contrast, rights have been seen as a precondition of democracy. 319
Bellah, p. 182. 320 Ibid.
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idea that the Bill of Rights protected individuals as much against abuses of power by their own states as by the federal government.321
The Fourteenth Amendment is by some margin the Constitution’s most litigated provision. Although passed in 1868 as the United States pushed ahead with Reconstruction, its impact did not really begin to be felt until the 1920s―and only then just barely―when the Supreme Court began to hold that its Due Process and Equal Protection clauses applied to the states.322 The evolution of American constitutionalism from a charter of enumerated powers designed to limit government to a value centric orientation focussed on protecting individual rights parallels the incorporation of the Bill of Rights against the states. Whittington observes that the states have occupied far more of the Supreme Court’s constitutional attention than has the federal government, and the states have been the main target of the power of judicial review.323 This is both because of the Court’s role as an agent of national policy since the first decades of the republic324 and the frequent violations of federally protected rights by the states. It is this second point I wish to concentrate on.
The Bill of Rights was ostensibly thought to be a defence of the people against federal power. By the twentieth century it was becoming abundantly clear that they needed to be protected from their own states.325 The Fourteenth Amendment contains within it the simple idea that neither federal nor state laws may negate or diminish the constitutional rights of citizens of the United States. The amendment contains five sections but it is Section 1 which provides some of the Constitution’s most significant constitutional rights guarantees, which also makes it the section about which the vast majority of Supreme Court cases are fought over.326 Still, even as the power of the federal government increased after the Civil War, the innately conservative federal judiciary did not rush to incorporate the protections of the Fourteenth and Fifteenth Amendments against the states. By the beginning of the New Deal period (c.1933) there
321
For more on incorporation see Akhil Reed Amar, 'The Bill of Rights and The Fourteenth Amendment', Yale Law Journal, (1992).
322 Most but not all of the provisions of the Bill of Rights were applied to the states but not until the 1960s. See Grossman and Epp, p. 107.
323 Whittington, 'Political Supports', p. 586. 324
See Dahl, 'Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker'; Whittington, 'Political Supports'.
325 See infra note 331.
326 The key part of Section 1 relevant to most cases and particularly Baker v Carr reads:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
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were as yet few cases dealing with civil liberties, and the constitutional concept of equality in the Equal Protection Clause was generally underdeveloped and “offered little protection against discrimination”.327
In Justice Holmes’s view, the Clause was the “last resort of bad constitutional arguments”.328
Even after over 160 years of interpreting the Constitution, the U.S. Supreme Court in the 1950s and 1960s had only been dealing with the incorporation of the Bill of Rights against the states for a few decades.329
By the 1960s, the expansion of the suffrage to women was no more than two generations old, but the fulfilment of its extension to African Americans promised in the post-Civil War amendments was woefully incomplete. After Brown v Board of Education, many lawyers felt that the emancipatory promise of the Fourteenth Amendment was finally being fulfilled almost ninety years after its adoption. In decisions such as Brown, and other cases330 in the 1950s and 60s that flowed from it, the Supreme Court found itself engaged in what might be called the second great period of reconstruction.331 Lending credence to the idea of the judiciary as a bulwark against ossification, Martin Shapiro observes that “[the Court] rather than the congress or presidency has been the principal agent of domestic reform in post-World War II American politics.”332
One explanation for this was the recognition by many American politicians, lawyers and judges that while slavery had been abolished after the Civil War, many of the states were still a regressive and anti-liberal force within the country. To such lawyers, state governments were “the quintessential threat to individual and minority rights”, while federal officials, particularly federal courts, were the special guardians of the rights promised in the Fourteenth Amendment.333 The idea that the biggest threat to liberty and the Union came from the states rather than the federal government was by no means novel. In 1913, Justice Oliver Wendell Holmes Jr observed:
I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union
327 Grossman and Epp, pp. 107-08. 328 Ibid. p. 108.
329 For example, before 1925 the Supreme Court did not apply the First Amendment to the states. See Morton J Horwitz, 'In Memoriam: William J. Brennan, Jr', Harvard Law Review, (1997), 27.
330 See for example, Gomillion v Lightfoot, 364 U.S. 339 (1960).
331 See for example Akhil Reed Amar, 'The Bill of Rights as a Constitution', Yale Law Journal, (1991), 1133.
332 Martin Shapiro, 'Foreword', in The Modern Supreme Court, ed. by Robert Green McCloskey (Cambridge, Mass: Harvard University Press, 1972), p. v.
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would be imperiled if we could not make that declaration as to the laws of the several States.334
Holmes was, in fact, merely restating what had been a perennial fear of the founders, particularly Jefferson and Madison that the threat to minority interests came from the states and not the incipient federal government. One ironic caveat was that due to the widespread practice of reapportionment, one minority that the states were sublime at protecting was the white rural minority.
The Reconstruction Period after the Civil War created a constitutional and societal architecture which was closer to the twentieth century than to the eighteenth century. However, it took almost a century for some of the promises of the Fourteenth and Fifteenth Amendments to be realised. The catalyst for this much delayed recognition of basic rights was not the civil rights movements of the 1950s and 1960s, but the social and economic crisis of the Great Depression, and a quiet revolution in the Supreme Court’s jurisprudence. Out of the defeat of Roosevelt’s court packing plan and the Court’s belated approval of the hitherto blocked legislation came a new jurisprudence which would take the constitutionality of economic statutes almost as axiomatic, while declaring that legislation which curtails the processes that protect minorities and political participation would be subject to stricter judicial scrutiny.
4.6 Footnote Four and the Rise of the Individual