No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights

by Michael Kent Curtis

“The book is carefully organized and well written, and it deals with a question that is still of great importance—what is the relationship of the Bill of Rights to the states.”— Journal of American History “Curtis effectively settles a serious legal whether the framers of the 14th Amendment intended to incorporate the Bill of Rights guarantees and thereby inhibit state action. Taking on a formidable array of constitutional scholars, . . . he rebuts their argument with vigor and effectiveness, conclusively demonstrating the legitimacy of the incorporation thesis. . . . A bold, forcefully argued, important study.”— Library Journal

Genres: Politics, History, Law

288 pages, Paperback

First published March 23, 1987

Reviews

[Eric_W · Rating 5 out of 5]

The Fourteenth Amendment, the longest and most complete, is without doubt the most significant. It was an attempt by the 39th Congress to constitutionalize the Civil Rights Act of 1865 that President Andrew Johnson had vetoed, the first veto of a major piece of legislation to be overridden by Congress. The first section included four significant clauses: the Citizenship Clause, the Equal Protection Clause, the Due Process Clause, and the Privileges or Immunities Clause (note "or" not the "and" of Article IV.) Each of the clauses has had enough of an impact to be worthy of being considered a new Constitution, the third if you count the Articles of Confederation as the first.

Barron v Baltimore(1833) had applied the Bill of Rights to federal jurisdiction only. Recent scholarship, epitomized by Curtis in this book is arguing that jurisprudence since the 1870's has ignored the history of the 39th Congress discussions that, he says, clearly intended to apply to Billof Rights to the states. Certainly the text would seem to so indicate. Section 1, following the first sentence that made freed slaves citizens (thus overturning Dred Scott, begins "No state shall..." On the face of it, that would seem to be as clear an indication as of intent as possible.

Nevertheless, the Supreme Court decisions, beginning with the infamous Slaughterhouse Cases, and the Cruikshank case refused to accept this and argued the due process clause still applied only to federal jurisdiction. Thus was the 14th amendment completely defanged leaving many of the Black Codes and segregation laws in place and making the Civil Rights Act of 1875 just a piece of paper. Justices Hugo Black (ironically former KKK member) and Frankfurter (former darling of the left who became a staunch advocate of judicial restraint) battled over the historical basis for the 14th. Black's dissents in cases made it clear that he believed the 14th was intended to apply the Bill of Rights to the states. Frankfurter and Charles Fairman belittled any opposition to their view that this position was nonsense. Frankfurter believed the Due Process Clause just gave the Supreme Court too much power, and I'm sure he is spinning in his grave at what was accomplished by the Warren Court that used the Due Process Clause to selectively apply much of the Bill of Rights to the states. Brown v. Board of Education, overturning the infamous Plessy decision of "separate but equal" notoriety would never have been possible without it.

Professor Curtis and others like William Crosskey challenged Frankfurter and Fairman and their view seems to have won, even though antagonism to application of the Bill of Rights under the 14th was rampant even in the eighties. Justice Clarence Thomas has taken an even more interesting approach arguing that the Due Process Clause has been used inconsistently to apply the Bill of Rights to the states and he maintains, referring to historical evidence, that the clear intent of the 39th Congress, under Bingham, Stevens, and Trumbell, and the Republican majority, was to use the Privileges or Immunities Clause to make the application. His concurrence in MacDonald lays it out very nicely.

Curtis has written an excellent summary of the history of the controversy including a thorough rebuttal to Supreme Court's jurisprudence in this regard in the late 19th and early 20th centuries. Curtis points out that Slave Power suppression of free speech rights, the "gag rule" for example, and the suppression of due process through the Fugitive Slave Acts, before the Civil War radicalized the Republican Party, which, thanks to secession, gave them complete control of the Senate and the House. The attempts to push slavery into the territories of Kansas and Nebraska, the elimination of the Missouri Compromise, and their justifiable fear that Justice Taney might declare in the Lemmon v New York case then moving its way through the courts, that slavery could not be declared illegal in the states, all contributed to this radicalization. Clearly, their intent was to force the Bill of Rights on the states and overturn Barron (Bingham had even brought a copy of the decision to read on the floor of the House, many members not being familiar with it.

Good companion books to read with this one:

1. Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863-1869 (New York: Norton, 1974)

2. Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post Civil War America (New York: Henry Holt, 2013), Kindle

3. Gerard N Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment ([Place of publication not identified]: New York University Press, 2016), Kindle

[Paul Gibson · Rating 5 out of 5]

As one who enjoys considering complex Constitutional issues, I found this book (1986 Duke University Press) very insightful. My stance when I reading a book such as this is to argue against the author’s main points. Sometimes I win but in this case I lost. The author argues the case well and is enough of a scholar to back up his claims with a vast amount of historical evidence. The battle over the meaning of the Fourteenth Amendment is far from over. The author is very fair. His corrections of Raoul Berger's (a constitutional scholar) misquotes are extremely forgiving. Had I been the author I would hope I could have been so gracious. Since I'm not the author, I can say I've read Berger's analysis before (pertaining to 9th Amendment) and his misleading quotes seem to go beyond honest mistakes. But ideology can blind so perhaps he's simply blind. I appreciate Michael Kent Curtis' integrity and fairness in presenting the many valid views and arguments surrounding the amendment.

[Jack · Rating 4 out of 5]

A fantastic history of the creation of the 14th Amendment. According to Curtis, the drafters of this amendment offered no reason to doubt that the 14th Amendment should be expansive and far more aggressively incorporated on a far wider array of liberties than history allowed for. The privileges and immunities clause was harshly ignored shortly after ratification of this amendment, and that was not - according to Curtis - what the founders of this amendment had in mind. Perhaps Curtis restated a few points too often, but according to him, he was arguing against decades or more worth of analyses that erred from the intent of the amendment drafters and leaders.

[Gerry Connolly · Rating 4 out of 5]

Does the 14th amendment incorporate the Bill of Rights and apply it to the states? Michael Curtis makes a strong and well researched argument in No State Shall Abridge that it surely does.