Everyman's Constitution by Graham Howard Jay;

Author:Graham, Howard Jay;
Language: eng
Format: epub
Publisher: Wisconsin Historical Society

it is mischievous inasmuch as it is an admission, either that the same guarantees do not exist in the present Constitution, or that if they are there, they have been disregarded, and by long usage or acquiesence [sic], this disregard has hardened into a constitutional right; and no security can be given that similar guarantees will not be disregarded hereafter.116

Indeed, a strange and illuminating prophecy!

Precisely the same complaint had been registered in congressional debate,117 but when we find it within earshot of Dane Hall and Professors Washburn, Parker and Parsons, we conclude that these are not simply matters of jurisprudential sophistication. Nicety of legal analysis is a function of the complexity of the legal order. By the same token, sharp appreciation of the pitfalls inherent in the meaning of “constitutionality,” “unconstitutionality,” “law” and “amendment” comes most naturally to those who have had the benefits of well-established tradition in these fields. This appreciation was what the Civil War generation lacked, and it lacked it because judicial control still was largely hypothetical, because the Constitution had not been amended since 1804, because law as a whole was much simpler, and because the natural rights–social compact theory still dominated nearly everyone's thinking.118

Scene two is laid in the United States Senate, April 11, 1871: an extempore exchange between three Republican Senators, Trumbull of Illinois, Carpenter of Wisconsin, and Edmunds of Vermont. By this time the American federal system had jammed its gears. The Vindictives’ program had boomeranged. Reconstruction was at near-impasse. Squarely in the middle, federal courts were swamped by threatened misuse of the new Amendments and laws.119 President Grant had just called for a second Force Bill to cope with extralegal suppression of Negro rights.120 The problem of quasi-public action and invasions had arisen, not in the contemplated or familiar form of discrimination by carriers, theaters and inns, but in the infinitely more tangled context of Southern whites fighting misrule and military government.

Trumbull, a Senator who personified scruple and conscience, had drafted the Civil Rights Act of 1866 to put down the “Black Codes”; but he flatly declined to go along on the latest proposal.121 Informally he surveyed the constitutional system, including the recent changes, and then denied that the Fourteenth Amendment authorized Congress to protect citizens in their rights of person and property in the states. Recalling the various steps previously taken—emancipation, the Thirteenth Amendment, and the Civil Rights and Freedmen's Bureau Acts and their repassage over the President's vetoes—his mind and talk drifted irresistibly into the declaratory mood.

In Trumbull's view the Thirteenth Amendment had worked the really great change; it had ended slavery and enabled Congress to pass the Civil Rights Act. But that Act “did not undertake to protect those who had been slaves, nor whites, in particular rights; but declared that the rights of the colored people should be the same as those conceded to the white people in certain respects, which were named in the act.”122 Further, the definition of citizenship in the Civil Rights Act simply had been “declaratory of what the law already was.

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