The Variola Variation

By Dripps, Donald | Constitutional Commentary, Winter 1999 | Go to article overview

The Variola Variation


Dripps, Donald, Constitutional Commentary


Modern civil liberties law is the result of a virus. I mean that literally, and with the aid of the time machine we can perceive the truth of my assertion. Suppose that on a certain sunny afternoon in the Spring of 1823, a Bowdoin College student named Pitt Fessenden(1) strolled a few miles into the countryside to investigate rumors of the strange machine: some folks claimed to have seen--one moment there, one moment not. Of the strange machine, Fessenden found no material evidence but many varied and obviously fantastic accounts. Well, that was the country for you.

Of greater interest to young Fessenden, and of imponderable consequences for the future of the Republic, on the way back from this excursion he chanced to encounter an attractive milkmaid, carrying two heavy pails from the barn to the farmhouse. An exchange of glances was followed by a courtly offer to assist her with her burdens, and after the milk was deposited at the house the pair retired to the barn. What happened inside history does not record;(2) but it is known that in the course of the proceedings Fessenden contracted cowpox.

This episode would be of small consequence were it not for the variola--a mild form of smallpox (a phrase not wholly dissimilar to "small caliber handgun" or "minor surgery"). Forty-three years later, Senator William Pitt Fessenden could not contract the variola during the promulgation of the Fourteenth Amendment, for exposure to cowpox confers immunity against smallpox. As a result, the Joint Committee on Reconstruction would have reported out the proposal of former congressman Robert Dale Owen.(3) The Owen plan required black suffrage, but not for another ten years. Even Owen's ten-year time frame would have been too radical, however, and the measure would likely have failed to gain the necessary majority in the Senate. The Joint Committee would withdraw the Owen proposal and reconsidered the whole matter.

The Committee, cajoled by Congressman Bingham, would eventually adopt the very same constitutional language that we see in our timeline when we read the second sentence of Section One of the Fourteenth Amendment. But without the variola, the legislative history is slightly different. On May 23, 1866, when the Amendment was introduced on the floor of the Senate, Fessenden, the chairman of the Joint Committee on Reconstruction, and not the Radical Senator Jacob Howard, would speak.(4)

Scholars have of course long since exhaustively parsed the debates in the 39th Congress, so I will not bore you with the full text of Fessenden's well-known remarks, most of which are directed to Section Three of the Amendment. Of Section One, Fessenden said that the measure was intended to guarantee the civil rights of all citizens of the United States, but that the Amendment neither added nor detracted from whatever political rights were then enjoyed by citizens of the states. According to Fessenden, the privileges or immunities clause meant that the states could not abridge the fundamental rights of national citizenship-the rights that belong to the citizens of all free governments. These included those mentioned in the Civil Rights Act, but were not exhausted by its terms. The full scope of fundamental rights could not be stated definitively, but Justice Washington's opinion on circuit in Corfield v. Coryell(5) provided a very judicious survey of the matter.

From the perspective of the time machine we can see that Fessenden's cowpox did not change the constitutional development. of the United States one whit until the 1940s. For in our timeline we know that Howard's speech--which explicitly declared that the privileges or immunities of citizens of the United States included the protections of the first eight amendments-was not called to the attention of the Supreme Court until Maxwell v. Dow,(6) at which time the views of the sponsoring senator were dismissed as irrelevant to the meaning of a measure that was proposed by Congress but made law by the country at large. …

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