Bickel’s theory, to speak plainly, is that the compromisers concealed the future objectives that they dared not avow lest the whole enterprise be imperiled; it is an elegant reformulation of conspiratorial purpose. To begin with, this theory posits that the 39th Congress harbored designs not shared by the voters, when, in fact, as Morton Keller remarks, “most congressional Republicans were aware of (and shared) their constituents’ hostility to black suffrage.” 24 Anticipating that his hypothesis might be “disparaged as putting forth an undisclosed, conspiratorial purpose such as has been imputed to Bingham and others with regard to the protection of corporations,” 25 Bickel invoked statements by Stevens and the Joint Committee Report to the effect that the Amendment’s “imperfections” may be cured by “further legislation, enabling acts,” by “legislative wisdom” 26 —hardly a warrant for judicial changes! What member of the 39th Congress would conclude that by such words was meant that Congress had conferred sub rosa for the future the suffrage it dared not propose in the present? Bickel himself torpedoed that inference.
Observing that Stevens stated the Amendment “falls far short of my wishes . . . but . . . is all that can be obtained in the present state of public opinion . . . I . . . leave it to be perfected by better men in better times, ” Bickel states; “In all probability, the disappointment of Thaddeus Stevens centered on failure to make any provision for negro suffrage, immediate or prospective.” 27 Disappointment over failure to provide for prospective suffrage rules out an open-ended design to authorize such provision in the future. What Stevens meant by “further legislation” does not need construction. As Senator Stewart stated, the Amendment “does not preclude Congress from adopting other means by a two-thirds vote [another amendment] when experience shall have demonstrated . . . the necessity for a change of policy,” 28 as it did before long in recommending the Fifteenth Amendment. Studied ambiguity also collides with Fessenden’s suggestion of a change because “there is a little obscurity or, at any rate, the expression in section 4 might be construed to go further than was intended.” 29 A “blank check to posterity” is likewise refuted by Chairman Wilson’s statement: “I fear that comprehensive statesmanship which cares for posterity as well as for itself will not leave its impress upon the measure we are now considering.” 30
There are also several disclaimers of concealed objectives, of playing a trick upon an unsuspecting people.31 Charged with “indirection,” Fessenden said:
where a legislator avows his object and his purpose, states what he wishes to accomplish and the mode by which he is to accomplish it, he is [not] to be charged, although it operates indirectly, with what is properly understood by the term “indirection,” which conveys the idea of a trick, a contrivance, to do something by taking advantage of others which you cannot do if you make plain to their senses what is the object.32
Shortly after congressional approval of the Amendment, and during the warm-up for the elections of 1866, a leading Radical, Congressman Robert C. Schenck of Ohio, averred the Democrats “are afraid that it may have some concealed purpose of elevating negroes . . . [to] make them voters. It goes to no such length.” 33
“Equal protection,” as will appear, emerged from the framers’ intention to outlaw laws which discriminated against blacks with respect to the “coverage of the Civil Rights Act.” “Indeed,” Bickel himself concluded, “ no specific purpose going beyond the [limited] coverage of the Civil Rights Act is suggested; rather an awareness on the part of the framers that it was a constitution they were writing, which led to a choice of language capable of growth.” 34 His appeal to the “awareness” of the framers assumes what needs to be proved—that there was in fact such a “choice.” Such speculation is rebutted by the very limited objectives of the Civil Rights Act, embodied in the Amendment, the absence of explanation for a change of direction, and the fact that “due process” and “privileges or immunities” were deemed to be used in their established sense. If there was such a “choice,” 35 it cannot harbor a purpose they confessedly dared not submit. Senator Howard, who has been regarded as “one of the most reckless of the radicals,” one who “served consistently in the vanguard of the extreme negrophiles,” 36 explained to the Senate that he would have preferred to
secure suffrage to the colored race to some extent at least . . . But sir, it is not a question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage . . . the question really is, what will the Legislatures of the various States . . . do in the premises; what is likely to meet the general approbation of the people. The Committee were of the opinion that the States are not yet prepared to sanction so fundamental a change.37
How is Bickel’s “undisclosed” purpose to be reconciled with the fact that an attempt to provide for Negro suffrage after 1876 was rejected? Robert Dale Owen, a pro-suffrage reformer, had brought a proposal which Stevens placed before the Joint Committee. Section 2 of the proposal provided that after July 4, 1876 (a fitting anniversary for enfranchisement), “no discrimination shall be made . . . as to . . . the right of suffrage.” 38 Owen’s reason for the “prospective suffrage,” he explained to Stevens, was that “the negro is, for the present, unprepared wisely to use the right of suffrage.” 39 When this provision was noised about, Stevens told Owen,
members from New York, from Illinois . . . from Indiana held, each separately, a caucus to consider whether equality of suffrage, present or prospective, ought to form a part of the Republican programme for the coming canvass. They were afraid . . . some of them . . . might lose their elections . . . [E]ach one of these caucuses decided that negro suffrage, in any shape, ought to be excluded.40
In consequence, the 1876 proposal was dropped and the Committee substituted a “new section simply eliminating from the basis of representation persons to whom the vote was denied,” 41 the present §2. Add to this Senator Howard’s statement of the Joint Committee’s opinion that “three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race,” 42 and we have solid evidence which overcomes speculation that there was an unrevealed purpose to confer broader powers in the future.
ALFRED KELLY
Kelly does not follow Bickel’s theory of a behind-the-scenes “compromise” between Radicals and Moderates, but suggests that the Radicals attempted, baldly stated, to hoodwink the Moderates. He regards it as “highly probable” that the Civil Rights Act “was not intended to bar racial segregation and classification laws.” But he finds that
The intent of certain Radical leaders to go beyond the restrictive enumeration of the Civil Rights Act and to incorporate a series of expansive guarantees in the Constitution is quite clear . . . the best evidence of this is the language of the guarantees which Bingham and the other authors of the Fourteenth Amendment incorporated in the first section. The guarantees they finally adopted—privileges and immunities, due process and equal protection—were not at all derived from the Civil Rights Act, which . . . had used the restricted enumerative device. Instead, the authors derived their guarantees deliberately from the prewar Radical antislavery movement.43
A Constitution, Chief Justice Marshall stated, cannot have “the prolixity of a code”;44 there the drive is for the most compressed utterance. Moreover, the terms of §1 were far from “vague and amorphous.” 45 “Privileges or immunities” was drawn from Article IV,