No State Shall Abridge
Meyer, Howard N.
REMODELING THE CONSTITUTION NO STATE SHALL ABRIDGE THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS Michael Kent Curtis Duke University, $24.95, 275 pp. Howard H. Meyer W e have ...
...I believe the reader would be right.'' Eminent support for Curtis's reading of the text comes from Learned Hand, probably the most respected federal judge who never made it to the Supreme Court...
...Constitutional history touching on aspects of interracial injustice has been so bedeviled and often distorted by the input of special pleaders, it cannot be safely left to lawyers, law schools, and judges...
...Was the amendment intended to curtail the exemption the states had to ignore individual rights specified in the Constitution...
...racial bars to voting by the Fifteenth...
...The Civil War led to a major remodeling of the federal Constitution, by three 1 extremely significant amendments...
...An 1833 Supreme Court ruling held that the rights thus enumerated shielded people only against abridgment by the national government...
...A two-tiered society could not afford to tolerate dissent or respect the human rights specified in the first eight amendments any more than a slave society could...
...what roles have judges and scholars played in what proves to have been a checkered history...
...That Meese initiative is confounded by Curtis's proof that the fram-ers meant what they said...
...Because its subject has involved intermittent controversy and because of the twists and turns the story takes, it makes fascinating reading...
...Authority over important economic, juridical, and political matters, previously the exclusive concern of the states, was given to the central government...
...To what extent was the amendment allowed to serve as intended...
...Howard H. Meyer W e have traditionally referred to the first ten amendments to the U.S...
...So well done and significant is his contribution that the book, as Leonard W. Levy has written, should "alter the path of scholarship...
...The states could do as they pleased, subject only to their local constitutions...
...This work deserves an audience wider than the legal profession and academic historians...
...The value of the work's demonstration of the amendment's legitimacy in serving as shield against state tyranny is illustrated by the controversial 1985 address of Attorney General Meese to the American Bar Association...
...These ranged from freedom of religion and speech in the First to immunity from cruel and unusual punishment, as specified in the Eighth...
...This unique and immensely valuable book is addressed to only one facet of the Fourteenth, but one of great consequence...
...The Fourteenth Amendment, the guarantor of "equal protection of the laws," actually covers several subjects...
...In the first through eighth there are thirty restrictions on governmental treatment of individuals...
...In the aftermath of the Civil War and the Thirteenth Amendment's outlawry of slavery came Andrew Johnson's too-rapid restoration to power of Confederate adherents...
...emphasis supplied...
...Because the amendment's language was never taken literally, we haven't "amended" common usage to conform with what Judge Hand did when he mentioned the Bill of Rights: "by which I mean the first eight and the fourteenth amendments of the Constitution...
...Michael Curtis is evidently an "emancipated" white Southern attorney, which helps him deal with the subtleties and 19 June 1987: 391 complexities of a legal issue implicating race relations history...
...He artfully introduces his subject by quoting the relevant words of the Fourteenth Amendment and says, "A reasonable reader might conclude that the Fourteenth Amendment was intended to change things so that the states could no longer violate rights in the federal Bill of Rights...
...Constitution as our "Bill of Rights...
...Curtis traces and refutes the contemporary apologists for the Court's performance, notably Charles Fairman and Raoul Berger...
...The 1787 founding framers' kit of slavery-aids included the paramount "state's right" — the license for repression via disregard of the human rights listed in the federal charter's first eight amendments...
...Thus he argued that cases so treating the states were significant examples of a judicial malaise, to be cured by his prescription for a ' 'jurisprudence of original intention...
...Conventional legal scholarship deserves no medals for its performance during the painful, long drawn-out return from nullification...
...Soon after the amendment's ratification, as the author explains, "the Court effectively nullified the intent to apply the Bill of Rights to the states.'' This was the inevitable accompaniment of disregard of the Fourteenth command that the states grant "equal protection of the laws.'' Just as under slavery when equality was denied, courts found it necessary to deny the right that would make it possible to fight for equality...
...One need only read the language of the first paragraph of the Fourteenth in the reflected light of that history to resolve any doubt about what the framers meant...
...If the Curtis book gets the attention it should and its message percolates sufficiently, a full-breadth conception of the Bill of Rights in conformity with Hand's will come to be accepted by the wordsmiths, the iconographers, and the fundraisers "pitching" to finance their defense of the Bill of Rights...
...In his book, The Bill of Rights, Judge Hand declared'' if one were to take literally some of the language, there would be reason to say that the Fourteenth Amendment now had in its bosom all the first eight...
...Slavery was outlawed by the Thirteenth...
...This, it was fo.und, was accompanied by the pattern of repression that members of the Committee, as anti-slavery politicians, had become familiar with in the decades before the war...
...The first great congressional investigation, conducted by the Joint Committee on Reconstruction, found that there had been a re-imposition of economic subjection by introduction of what amounted to a caste system, as economic replacement for slavery...
...This was in 1958, before the Court had gone very far in implementing the intention plainly suggested by the text...
...The speaker's premise was that subjection of the states to Bill of Rights standards was created by judges, not by Constitution draftsmen...
...Sweeping aside the obscurantism and cloudy mythology that so long prevailed about abolitionism, Civil War, and Reconstruction, Curtis makes a compelling case: State support of slavery as a principal economic component of society required freedom to combat opposition, whether from pulpit, soapbox, or handbill, or by direct action from within or without...
...As late as 1947, there were few to protest Justice Frankfurter's dismissal as an "eccentric exception," the one nineteenth-century jurist, John Marshall Harlan (served 1877-1911), who was a persistent dissenter from the Court's abandonment of the Fourteenth's rights role...
Vol. 114 • June 1987 • No. 12
