To Secure the Blessings of Liberty

No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, by Michael Kent Curtis, Durham, N.C.: Duke University Press, 275 pages, $24.95

"Who controls the past controls the future, who controls the present controls the past." So spoke George Orwell's commissar in Nineteen Eighty-Four, in words that seem all too prophetic. Every party has its own version of the past. And so political history seems to become a pliable instrument ready to conform, with unnerving regularity, to the shape required by the political demands of the present.

Nowhere is the plasticity of political history more apparent, or more troubling, than in the field of constitutional law. Constitutional interpreters of all political stripes repair to the "intentions of the framers." But from this apparent agreement on procedure comes, not agreement about the Constitution's meaning, but a diffusion of stories about the past.

Michael Kent Curtis's No State Shall Abridge illustrates two very important points about contemporary debates over the Constitution's history. First, it shows that establishing the intentions of the framers of a constitutional amendment requires examination of a broad historical and political context. And second, its limitations as a work only of history show that, no matter how good our history is, constitutional interpreters cannot live by history alone.

Curtis, an attorney with a number of law journal articles to his credit, takes as his object of attack those conservatives who invoke history on behalf of their efforts to narrow judicial protections for individual rights. Attorney General Edwin Meese is, of course, the prime contemporary example. As Meese put it in an address to the Bar Association in Washington in 1985: "It has been and will continue to be the policy of this administration to press for a Jurisprudence of Original Intention. In the cases we file, and those we join as amicus, we will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment."

Curtis specifically takes issue with the claims of conservative scholars (Raoul Berger being the most prominent) who argue that the framers of the 14th Amendment intended only to secure certain basic equalities for freed slaves and other blacks. To the contrary, Curtis argues, the 14th Amendment was intended to protect a broad array of individual rights, the core of which are found in the Bill of Rights itself. If Curtis is right, the New Right's Jurisprudence of Original Intent justifies liberal activism.

It is hardly surprising that an enormous amount of energy has gone into determining what the framers of the 14th Amendment meant by the portentous but elusive phrases of section 1: "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."

Did those who crafted that amendment intend, as Curtis claims, to "totally incorporate" the protections of the Bill of Rights and apply them to the states? Did they intend to partially incorporate? Or did they intend, as many conservatives claim, not to incorporate at all but only to secure a few basic rights for the formerly enslaved race? (According to Raoul Berger, 14th Amendment protections do not even reach the issues of suffrage and segregation.)

The vehicle by which the framers of the 14th Amendment intended to apply the protections of the Bill of Rights against the states was, according to Curtis, not the oft-debated due process and equal protection clauses but the privileges or immunities clause. His case is a strong one.

On its face, the clause does seem to say that states must respect the protections guaranteed citizens against the national government, and Curtis provides considerable evidence to show that this was in fact the understanding of those who framed and debated the amendment. But most importantly, Curtis argues that opponents of "total incorporation" have misinterpreted the 14th Amendment by misunderstanding the relevant historical context of the amendment. It is the central claim of Curtis's book that the 14th Amendment must be seen as the child, not simply of the 39th Congress, but of a political movement that began decades before the Civil War and only culminated in the 13th, 14th, and 15th amendments to the Constitution.

In the decades leading up to and including the Civil War, more and more Republicans in Congress and across the country developed moral complaints and broad fears about the institution of slavery. At first only the radicals, but eventually a broad range of Republicans, came to believe in the basic moral equality of blacks. They came to fear, moreover, that the institution of slavery threatened not just to perpetuate slavery but to undermine the constitutional rights of the whole society. Having witnessed the banning of abolitionist literature, the breakup of abolitionist meetings, and the denial of the rights of free speech and freedom of movement, all in the name of preserving slavery, Republicans came to regard the crusade against slavery as a crusade on behalf of a broad array of civil rights for society as a whole.

It is against this background of concern with a broad range of civil liberties that, according to Curtis, the intentions of the framers of the 14th Amendment must be interpreted. We must look, in effect, not just to the legislative history of the amendment, but to its political history. Curtis constructs a broader interpretive background than that deployed by the conservatives. At the same time, he rejects Berger's reading of the legislative history, challenging the latter's use of relevant evidence at many points. Curtis's arguments are generally convincing and well stated. But this is, no doubt, a debate that will continue to flourish.

One problem with Curtis's account is that it sometimes suggests that history is an adequate guide to constitutional interpretation. He seems to say that the judicial interpretation of the Constitution properly draws on the text and history of the Constitution but not on the sorts of moral aspirations that Abraham Lincoln invoked to deny the correctness of the Supreme Court's Dred Scott decision, which held that a slave's residence in free territory did not make him free and that Congress had no right to prohibit slavery in U.S. territories. And yet, Curtis also recognizes that many of the Republicans whose intentions he is seeking to recapture would themselves have denied the ultimate interpretive authority of historical intentions (the same, indeed, might be said about the Founders). As a consequence, Curtis's historicist project has a paradoxical quality.

His historicism is broader and deeper than that of conservatives like Raoul Berger, but it is still historicism. In paying homage to the specific intentions of the framers, historicism denies the moral aspirations of the constitutional project the framers gave us. We would do far better to interpret the Constitution in light of the moral ends toward which the Constitution itself, as it declares in the preamble, aspires: ends including justice and the "blessings of liberty."

A principled judicial activism would, I believe, be preferable to even the best historicism. Constitutional interpretation should be grounded in our best interpretation of the moral principles explicit and implicit in the Constitution's text and structure. Principled interpretation has the great advantage of not being held hostage to particular intentions not actually written into our basic law.

Suppose it is true that the framers of the 14th Amendment specifically intended not to desegregate public schools (it seems clear they did not). Why should we be guided by that specific, unstated intention? What the 14th Amendment says is that no state shall deny any person equal protection of the laws—it is left to us to determine what that entails. Suppose it could be shown that everyone connected with the passage of the 14th Amendment specifically intended, though they did not say so, to leave states free to discriminate against homosexuals. Should we then deny that privacy rights extended to heterosexual couples apply also to gay people?

Historicism binds us to intentions of which the framers themselves were not sufficiently confident to write into the Constitution. Historicism prevents us from interpreting the document in the light of the broad ends announced in the preamble; it prevents us from vindicating the Constitution's moral authority in the course of interpreting and applying its broad phrases. A principled activism would ask, instead, What is the morally best interpretation of these broad phrases consistent with the text and structure of the document as a whole? (For a more extended defense of principled judicial activism, see my book, The New Right v. the Constitution, Cato Institute, 1986).

For the most part, however, Curtis argues that history is only one court of appeal among others for constitutional interpreters, that history is only "one source of legitimacy." And so he seems to realize that while telling a story about the past may help to legitimize a constitutional decision by grounding it in a community's practices, such a story cannot, by itself, really justify a decision. Our history, after all, is morally checkered: it includes practices of racism and other forms of injustice. The task of the constitutional interpreter is to distill a valuable tradition from a checkered history and in doing so to show why the Constitution is worth supporting as supreme law.

But these criticisms should not be overdone. Michael Kent Curtis has made an important contribution to a historical debate of great significance. By performing his task in a careful, measured, and judicious way, he has helped to show that history can be more than mere partisanship. And by displaying the weak historical foundations of the New Right's jurisprudence, No State Shall Abridge helps clear the path toward a better understanding of what the Constitution stands for.

Stephen Macedo is a professor of government at Harvard University and the author of The New Right v. the Constitution.