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       The “Open-Ended” Phraseology Theory

      We cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.

      —SENATOR WILLIAM P. FESSENDEN^*

      THE “open-ended” theory, shortly stated, is that the framers dared not submit Negro suffrage and the like to the electorate in 1866 and therefore discarded “specific” terms, as Justice Brennan put it, in favor of “far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” ¹ This is the classic invocation to extraconstitutional power,² power to revise the Constitution under the theory that the framers gave a “blank check to posterity.” ³ Bickel had cautiously advanced the theory as a hypothesis; it found favor in scholarly circles,⁴ and more positively formulated variants were proffered by Alfred Kelly and William Van Alstyne. It has since been enshrined in an opinion by Justice Brennan; and Justice Black, jumping off from Brennan’s paraphrase, announced that it made “the history of the Fourteenth Amendment . . . irrelevant to the present problem.” ⁵ The theory is therefore deserving of close analysis.

      ALEXANDER BICKEL

      At the time the “desegregation” case, Brown v. Board of Education,⁶ was first argued before the Supreme Court, Bickel was a law clerk of Justice Frankfurter, who assigned to him the task of compiling the legislative history of the Fourteenth Amendment, a task he performed brilliantly. When he delivered his memorandum in August 1953, he stated in a covering letter:

      It was preposterous to worry about unsegregated schools, for example, when hardly a beginning had been made at educating Negroes at all and when obviously special efforts, suitable only for the Negroes, would have to be made . . . It is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.⁷

      In 1962 he again wrote:

      Was it the intention of the framers . . . to forbid the states to enact and enforce segregation statutes? If one goes to the historical materials with this specific question, the only answer is in the negative. The framers did not intend or expect then and there to outlaw segregation, which, of course, was a practice widely prevalent in the North.⁸

      Upon the termination of his clerkship Bickel wrote a farewell letter to Frankfurter in which he adverted to the “living Constitution” dictum of Marshall.⁹ But when he revised his memorandum for publication in 1955 he sought more solid footing. Were the amendment a statute, he concluded, a “Court might very well hold” on the basis of the evidence “that it was foreclosed from applying it to segregation in the public schools.” Apart from the “immediate effect of the enactment,” he asked, “what if any thought was given to the long-range effect” in the future—a possibility he had labeled “impossible” in 1953. Noting the shift from “equal protection in the rights of life, liberty and property” to “equal protection of the laws, a clause which is plainly capable of being applied to all subjects of state legislation,” ¹⁰ he asked,

      Could the comparison have failed to leave the implication that the new phrase, while it did not necessarily, and certainly not expressly, carry greater coverage than the old, was nevertheless roomier, more receptive to “latitudinarian” construction? No one made the point with regard to this particular clause. But in the opening debate in the Senate, Jacob Howard was frank to say that only the future could tell what application the privileges and immunities would have.

      So, too, Reverdy Johnson, a Democrat, “confessed his puzzlement about the same clause.” ¹¹ How does the Howard-Johnson “puzzlement” about “privileges or immunities” advance the argument that “due process” and “equal protection” were understood to be open-ended? Neither Johnson nor Howard expressed uncertainty as to the meaning of those terms, and the implication is that there was none, an implication I shall flesh out in subsequent chapters. And given the Republican commitment to a “limited” program of protection for “enumerated” rights,¹² why did Bingham, who had insisted on deletion from the Civil Rights Bill of the words “civil rights” as “oppressive,” too “latitudinarian,” ¹³ now, as author of the Amendment’s §1, resort to phraseology that was “roomier, more receptive to ‘latitudinarian’ construction?” No explanation of his turnabout has been offered, and when we descend from speculation to the facts we shall find that they offer no support for the Bickel hypothesis.

      Bickel states that some Republicans referred to “the natural rights of man,” ¹⁴ but those rights had been specified in the Civil Rights Act, and the Act was understood to exclude suffrage and desegregation of schools, as Bickel himself noted.¹⁵ The Act, with its restrictive “enumeration” of the rights to be protected, was represented to be embodied in the Amendment. A repudiation of such representations by the framers, in the teeth of their attachment to State sovereignty, their respect for the rights reserved to the States by the Tenth Amendment, needs to be proved, not assumed. And as will appear, the words “equal protection of the laws” evolved side by side with the framers’ limited objectives and gave perfect expression to their central goal: to prevent discriminatory legislation with respect to the enumerated rights, and those alone.

      Howard knew well enough what “privileges or immunities” comprised. He stated, “we may gather some intimation of what probably will be the opinion of the judiciary by referring to . . . Corfield v. Coryell.” He quoted therefrom the reference to those “privileges and immunities which are in their nature fundamental . . . They may be comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire property” and so on.¹⁶ The correlation between these rights, the “privileges and immunities” of Article IV, §2, and the Civil Rights Act had been explained by Trumbull. After Howard’s speech, Reverdy Johnson moved to strike the “privileges or immunities” clause because he “did not understand what will be the effect of that”; but his motion fell to the ground,¹⁷ testimony that the Senate did not share his doubts. The “puzzlement” of Howard and Johnson cannot cancel out the repeated association of “privileges or immunities” with “security of person and property”; it cannot vitiate the all but universal understanding that the Amendment was to embody the Civil Rights Act, reiterated after Howard spoke. The Act, said Latham, “covers exactly the same ground as this amendment.” Senator Doolittle said it “was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward,” a view also expressed by Henry Van Aernam of New York.¹⁸ The “privileges or immunities” clause, Senator Poland stated, “secures nothing beyond what was intended by the original provision [Article IV, §2] of the Constitution.” ¹⁹ In fact, Senator Howard undercuts Bickel, for toward the close of the debates he stated, “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not in law, one of the privileges . . . thus secured.” ²⁰ With respect to suffrage, the “Great Guarantee,” Howard was quite clear that it was excluded; that concept, at least, could not in future change its skin.

      Bickel noticed that the “no discrimination in civil rights” sentence of the Act had been deleted because Republicans “who had expressed fears concerning its reach . . . would have to go forth and stand on the platform of the fourteenth amendment.” “It remains true,” he said, “that an explicit provision going further than the Civil Rights Act would not have carried in the 39th Congress.” And he noted that the Republicans drew back from “a formulation dangerously vulnerable to attacks pandering to the prejudice of the people.” But,

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