Positive Constitutionalism: 1921 Style?

Mark Graber

Constitutional theory and History buffs might be interested in the following letter, written by Warren Harding's Attorney General. The letter supports the constitutionality of the Dyer Bill, a federal anti-lynching measure (and, if I can persuade my co-editors, will soon be in our textbook).


H.M. Daugherty to A.J. Volstead, August 9, 1921

. . . .

Considerable discussion has taken place as to the constitutionality of the proposed legislation, it being contended that the fourteenth amendment gave Congress power to legislate so as to prevent a denial of the equal protection of the laws by the States and not as to acts of individuals not clothed with State authority. In support of this proposition the following cases have been cited. United States v. Cruikshank . . .; Virginia v. Rives . . . ; Ex parte Virginia . . .; Civil Rights Cases . . .; United States v. Harris . . .; James v. Bowman . . .; Hodges v. United States . . .; United States v. Wheeler . . . .

. . . . It will be observed that in the cases above cited the court holds that the State may act through its legislative, its judicial, or its executive authorities, and the act of any one these is the act of the State. . . .

. . . . The constitutional provision, therefore, must mean that no agency of the State, or of the officers or gents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty without due process of law or denies or takes away the equal protection of the laws, violates the constitutional inhibition, and as he acts in the name and for the State and is clothed with the State’s power his act is that of the State. This must be so or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.

. . . . To my mind there can be no doubt that negativity on the part of the State may be, as well as any act of a positive nature by such State, a denial of the equal protection of the laws and thus be within the prohibition of the fourteenth amendment so as to give Congress power to act with reference to it. That such was in the mind of the court when pronouncing the decisions above cited is clearly shown by the following excerpts from the opinion of the court, speaking through Mr. Justice Bradley in the Civil Rights Cases. . . .:

. . . .

. . . . [The Civil Rights Act of 1875] does not profess to be corrective of any constitutional wrongs committed by the States; it does not make its operation to depend on any such wrong committed. It applies equally to cases arising in States which have justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. . . .

My examination of the proposed legislation causes me to believe that all of its provisions are predicated upon some action–either negative or positive–upon the part of the States and that therefore the same is wholly within the competency of Congress to enact.

. . . .

Section 12 and section 13 provide for the punishment of State and municipal officers who fail in their duty to prevent lynchings or who supper persons accused of crime to be taken from their custody for the purpose of lynching. These sections seem to me to strike at the heart of the evil, namely, the failure of State officers to perform their duty in such cases. The fourteenth amendment recognizes as preexisting the right to due process of law and to the equal protection of the law and guarantees against State infringement of those rights. A State officer charged with the protection of those rights who fails or refuses to do all in his power to protect an accused person against mob action denies to such person due process of law and the equal protection of the laws in every sense of the term. . . .

THE END

Some thoughts on the significance of the letter. Other thoughts cheerfully welcomed.

1. The letter supports Pamela Brandwein's thesis (see her important article, just published in the Law and Society Review) that many conservatives believed that the federal government could legislate against state neglect consistent with the 14th Amendment, that the Civil Rights Cases permitted more federal regulation than is often the case.

2. The letter, themes of which are repeated by virtually all proponents of federal anti-lynching law, also suggests that a certain kind of positive constitutionalism has deeper roots in American constitutional law than has often been assumed to be the case, that Congress was thought by even many conservative elites to have the power to compel states to protect some positive rights. In this case, the right was protection from mobs, but abusive parents (see the DeShaney case) may also fit this rubric.

3. The letter also suggests that conservatives in the progressive era were not interested in limited government per se. A theme I am playing with (i.e., could be and probably is wrong) is that a central theme of consevative thought at that time was legality. Significantly, in this respect, a central division in the debate over federal lynching law was between those who insisted that trials must always take place before punishment and those who insisted that certain crimes are so horrible that they do not merit trials.
Posted 9:05 PM by Mark Graber [link]