No Easy Walk to Freedom: Reconstruction adn the Ratification of the Fourteenth Amendment.
Both of these works discuss the creation and changing interpretation of the Fourteenth Amendment. However, this seems to be the last point of agreement between the two.
Bond argues that the original intent of the amendment still should bind the judiciary today. He examines the ratification debates in each of the former states of the Confederacy, holding that none of these debates suggest that any of those ratifying saw the amendment incorporating the whole Bill of Rights, but rather as granting a much smaller set of property and natural rights. He posits that the amendment was supposed to allow state governments "broad discretion in defining the incidents of the rights which were guaranteed" (10). The work closes with a discussion of how the current Supreme Court incorrectly, in Bond's view, incorporates the Bill of Rights. He argues that the best way for the nation to "walk to freedom" would be to repudiate the incorporation doctrine and return large amounts of power to the states in a revitalized system of federalism.
However, some areas of Bond's treatise give one pause. For instance, less than one half of the Southern states issued committee reports about the amend-merit ratification process, so the evidence he uses is sometimes sketchy. In addition, Bond questionably bases a large percentage of his argument on the statements made by those opposed to the amendment. Those who opposed the amendment also thought it would lead to a consolidation of all power at the national level, and, if these opponents were right, as Bond claims they were about incorporation, then it also follows that all power should now be concentrated in Congress, which Bond definitely does not favor. Secondly, the author sometimes unquestioningly accepts as accurate the Southern states' claim that they were treating African Americans fairly after the Civil War. Third, Bond focuses the entire debate on whether or not the Fourteenth Amendment incorporated the whole Bill of Rights. However, most, if not all, recent Supreme Court cases have argued for partial incorporation. Thus, Bond seems to be chasing a red herring. This study also focuses on only the Southern states, ignoring what the Northern states and the original framers of the amendment intended. Thus, some reconsideration of the evidence utilized here seems in order.
Bond also makes some disquieting arguments. He wholly ignores women's rights in this volume, never articulating how he thinks the Victorian conceptions embodied in this amendment should be reflected in today's society. This work also suggests that a state's creation of segregated but equal schools and miscegenation statutes might be allowable under the "correct" view of the Fourteenth Amendment, and that, at the very least, the federal government would not be able to prohibit such actions. Finally, Bond argues that the Supreme Court in the last sixty years has undermined equal protection. One wonders what Rosa Parks would think of those claims.
In contrast, Peggy Cooper Davis contends that the key to understanding the amendment is examining its background in slavery, which proves that a wide grant of autonomy in family relations was included in it. In this well-written book, she captivates her audience with both the Supreme Court's treatment of cases that contested strictures on the family and the stories of how slavery denied slaves all rights concerning their families. Her basic treatise is that since slavery completely denied family autonomy to slaves, the Fourteenth Amendment, by granting former slaves the rights that had been denied them, created autonomy for the family to operate. Throughout she also emphasizes individuals' discrepant convictions concerning family rights. "Whether or not we identify as liberals, we find it hard to be consistently libertarian; whether or not we identify as conservatives, we find that we are conflicted about authoritarian measures" (11). This lesson by itself makes the reading worthwhile.
By examining, in part, the Congressional debates over the Fourteenth Amendment, Davis delineates that some level of freedom to control one's personal life and family was granted. The work recounts the horrific conditions inflicted by shivery, as the rights to marry, work, reproduce, and raise a family as one chooses were nonexistent. The author then draws parallels to many modem cases, sometimes implying that lessons can be learned--in that what was denied to slaves should be granted by the modem courts to all plaintiffs because of the Fourteenth Amendment--or at least demonstrating that the same rights are in contention. For example, since slaves had no freedom to raise their children as they pleased, Davis argues that a family's autonomy over one's children is embodied in the Reconstruction Amendments, and suggests that Prince vs. Massachusetts (1944) was incorrectly decided. In that case, the court allowed a state to prevent, under child labor laws, a Jehovah's Witness from forcing her child to display The Watchtower on the street, but Davis hints that family autonomy should have granted the mother freedom in this matter. The author concludes that the Supreme Court normally makes the "correct" decision, but often is too concerned with the literal language of the Fourteenth Amendment, ignoring the aura of family autonomy which radiates from it.
One wonders, of course, exactly where family autonomy ends, and Davis never specifically delineates what the boundaries of this supposed constitutional protection are. Secondly, Davis, for the most part, does not take a firm stand on what the Supreme Court should hold on cases concerning family values, preferring merely to recount previously untold stories and illuminate a lesser-known conceptual part of the Fourteenth Amendment. These, though, are small flaws in a generally informative and readable work.
Davis and Bond together demonstrate that the debate still rages over the original intent and current meaning of the Fourteenth Amendment. While Bond encourages one to gain freedom by limiting the Fourteenth, Davis contends that families have received and should continue to receive more freedom by its enlargement, but with both viewpoints, all must remember that the government should act for all people, not just those with good parents or friends in high places.
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|Author:||Merriman, Scott A.|
|Publication:||Civil War History|
|Article Type:||Book Review|
|Date:||Jun 1, 1998|
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