How the Fourteenth AmendmentnRepealed the Constitutionnby Forrest McDonaldn”It is easier to make certain things legal than to make them legitimate.”n— ChomfortnThe Fourteenth Amendment andnthe Bill of Rightsnby Raoul BergernNorman and London: University ofnOklahoma Press; 169 pp., $18.95nThe evisceration of the federal systemnby the Supreme Court duringnthe last few decades—indeed, most ofnthe modem malfeasance of that augustnbody—has been accomplished largelynthrough the instrumentality of the FourteenthnAmendment. This sorry tale,nfrom the adoption of the amendment tonrecent court decisions, has been chroniclednby a number of scholars, the doyennof whom is Raoul Berger. Three ofnBerger’s works are indispensable andnindeed one would think definitive: Governmentnby Judiciary: The Transformationnof the Fourteenth Amendmentn(1977), Selected Writings on thenConstitution (1987), and Federalism:nThe Founders’ Design (1987). A newnchallenge to Berger’s scholarship hasnrecently appeared, however, forcingnhim to rise to the occasion once again.nBefore dealing with the challengenand with Berger’s response, it will benwell to review the amendment and itsnhistory. The crucial phraseology comesnin its first section, which begins bynoverturning the Dred Scott decision.nThat is, it grants national and statencitizenship to all persons (includingnblacks, contrary to the Dred Scottnruling) “born or naturalized in thenUnited States.” Then the sectionnforbids three kinds of state action:nabridging the “privileges or immunities”nof citizens, depriving any personnof life, liberty, or property withoutn”due process of law,” and denying anynperson with the state’s jurisdiction thenForrest McDonald is a professor ofnhistory at the University of Alabamanin Tuscaloosa.n”equal protection of the laws.”nAt the time of the amendment’snadoption, there was nothing arcanenabout the three key clauses. The privilegesnor immunities clause was takenndirectly from Article IV, Section 2 ofnthe main body of the Constitution,nwhich in turn had been lifted fromnArticle IV of the Articles of Confederation.nThe clause has rarely been invokednin adjudication, probably becausenits content was widely understoodnto comprehend the same “natural”nrights — to life, liberty, andnproperty — that are protected by thendue process clause. The language ofnthat clause was taken from the FifthnAmendment, which like the other partsnof the Bill of Rights applied only to thenfederal government. (Interestingly, thenFourteenth did not include the Fifth’snrequirement that “just compensation”nbe paid when private property is takennnnfor public use.) The meaning of “duenprocess” was common currency; it referrednto procedures followed in courtsnof justice, as they had originated in thencommon law of England and evolvednin the courts of the several states. Thenequal protection clause was new phraseology,nbut its meaning was as clear asnlanguage can be.nNor can there be serious doubt as tonwhat the framers and ratifiers of thenamendment intended by it. SeveralnSouthern states had enacted BlacknCodes that virtually nullified the ThirteenthnAmendment, which had freednthe slaves. The purpose of the Fourteenthnwas to prevent such legislationnand to insure that freedmen shouldnhave the same legal rights as whites.nThe amendment emphatically did notncover the right to vote, which was thensubject of the Fifteenth Amendment.nObviously it also did not prohibit denjure segregation, inasmuch as the samenCongress that passed the amendmentnestablished a segregated public schoolnsystem in the District of Columbia,nand nearly every legislature that ratifiednit had done or was soon to do the same.nDespite the clarity and general understandingnof the amendment, however,nthe ink had scarcely dried on theninstrument before the Supreme Courtnbegan to transform it. On the onenhand, it refused to intercede as statenafter state stripped Negroes of theirncivil rights. On the other, the Courtnfound in the amendment justificationnfor striking down the efforts of states tonregulate business corporations.nDuring the 1920’s the Court foundnsomething else in the amendment,nthough for a time the discovery hadnonly minimal consequences. In thencase of Gitlow v. New York (1925), anradical socialist had been convicted ofncriminal anarchy for publishing tractsnthat violated state law by advocatingnthe overthrow of government. ThenOCTOBER 1989/29n