Underscoring so much while leaving so much unsaid, this book is a powerful plea for post-1937 trends and constructions--not merely in the Supreme Court, but now in Congress. How does the nation, the Court, the Congress, make good a lost century? Chief Justice Waite's triumph--decidedly more modest in my estimation than in Dr. Magrath's--was that he dared, tried, succeeded--at least by half. The country's failure was that it so long did not--has not yet--even by half. Twenty years and three constitutional amendments after emancipation too many of our forebears, including all members of this Court except the former Union colonel and converted slaveholder, Mr. Justice Harlan, let themselves be persuaded, as too many others have since, that American governments still lacked the mandate and the power to do, after emancipation and amendment, in behalf of"liberty," what those same governments originally, for three quarters of a century, had been able to do, and had done, against "liberty,"in defense of slavery and slave "property." No mandate and no power to protect the "li(ves), liberty and property" of "persons" at last free, nor of those newly-made "Citizens of the United States" for whose double, triple, above all, equal protection, these three overlapping guarantees and clauses again had been employed, both affirmatively and negatively, as they had been employed incessantly for two generations. No mandate and no power to protect as free "persons," and as"Citizens of the United States," those whom this antislavery generation at least, believed governments had the power and the duty to protect even as enslaved "persons."Two years short of the fourteenth amendment centennial, let us speak no more of the "failures" and of the "miserable draftsmanship"of that Joint Committee of Fifteen. John A. Bingham and his colleagues did very well indeed. The date, remember, was 1866.
Howard J. Graham,
The Waite Court and the Fourteenth Amendment,
17 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol17/iss2/7