No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment

By James E. Bond | Go to book overview

Rather, Justice Thomas has indicated that he understands, as did the freedmen and their allies, that the states retain extensive police powers under the Fourteenth Amendment. Concurring in Lopez v. United States, 50 Justice Thomas reminded his colleagues that the Court had never read the Constitution to grant Congress any general police power. He then added with respect to the specific facts of the case before the Court:

[T]he power to regulate "commerce" can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. 51

Turning to the post- 1937 commerce clause decisions of the Court, he minced no words about their questionable constitutional paternity, describing them as ungrounded "in the original understanding of the Constitution" because they "appear to grant Congress a police power over the Nation," 52 police powers which the freedmen understood the states would continue to exercise so long as they respected the equality of rights principle.

Whether Justice Thomas's voice will recall America to its republican heritage and the powerful promise of the Fourteenth Amendment is uncertain, dependent as it is on a history whose unfolding can now only be imagined. What is certain is that Justice Thomas has remembered accurately the tortured history of the Fourteenth Amendment's ratification in the Southern states. Unlike his fierce and savage critics among the black intellectual elite, he remembers his roots; he knows that his forebears understood far more keenly than does the contemporary liberal establishment that the fundamental values of liberty and equality can be reconciled in the American experience only in a republic committed to the rule of law. The Fourteenth Amendment, understood as those who ratified it in the Southern states understood it, is an indispensable bulwark of that legal regime. And if its guarantees were interpreted as the freedmen imagined them in their dreams, the Fourteenth Amendment may yet be the answer to Lincoln's prayer for a new birth of freedom.


NOTES
1.
Hugo Black, A Constitutional Faith ( New York: Knopf, 1968). The scholarly debate on incorporation is voluminous. See, e.g., Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights?" Stanford Law Review 2 ( 1949): 5; Felix Frankfurter , "Memorandum on Incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment," Harvard Law Review 78 ( 1965): 746; and W. Brennan, "The Bill of Rights and the States," New York University Law Review 36 ( 1961): 761.
2.
The most egregious example of this phenomenon is Roe v. Wade, 410 U.S. 113 ( 1973), and its progeny.

-272-

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No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • 1 - The Remembered Past of the Fourteenth Amendment 1
  • Notes 10
  • 2 - Ratification in Tennessee 15
  • Notes 26
  • 3 - Ratification in Mississippi 33
  • Notes 47
  • 4 - Ratification in North Carolina 53
  • Notes 65
  • 5 - Ratification in Louisiana 75
  • Notes 95
  • 6 - Ratification in Alabama 101
  • Notes 114
  • 7 - Ratification in South Carolina 121
  • Notes 137
  • 8 - Ratification in Virginia 143
  • Notes 158
  • 9 - Ratification in Florida 169
  • Notes 183
  • 10 - Ratification in Arkansas 189
  • Notes 205
  • 11 - Ratification in Texas 211
  • Notes 225
  • 12 - Ratification in Georgia 231
  • Notes 245
  • 13 - The Imagined Future of the Fourteenth Amendment 251
  • Notes 272
  • Selected Bibliography 275
  • Index 289
  • About the Author 297
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