1 Pennzoil Co. v. Texaco, Inc., –U.S. –, 107 S. Ct. 1519, 95 L.Ed.2d 1 (1987), reversing 784 F.2d 1133 (1986), and 626 F. Supp. 250(1986).Google Scholar

2 In 1867 Jefferson Davis was indicted for treason. When he was about to be tried, he pled that the Fourteenth Amendment, which in the meantime had been ratified, provided as a penalty for Southern leaders no greater punishment than disqualification for holding office. In 1869 he went free. E. M. Coulter, The South During Recontruction 1865-1877, at 176–177 (1947).Google Scholar

3 Virginia v. American Booksellers Assoc., 802 F.2d 691 (1986) prob. juris. noted, 107 S. Ct. 1281, 94 L.Ed.2d 140 (1987). The State's appeal was argued on November 4, 1987, in the Supreme Court. On January 25, 1988, the Court deferred decision pending certification to the Virginia Supreme Court of two questions seeking to determine if the statute could be narrowly construed to affect its constitutionality. No. 86-1034. –U.S. –, 108 S.Ct. 636, 98 L.Ed. 782 (1988).Google Scholar

4 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873). The case was argued in January 1872, again on Feb. 3, 4, 5, 1873, and decided April 14, 1873.Google Scholar

5 Id. 21 L.Ed. 409.Google Scholar

6 Shyltz v. Frisby, 619 F.2d 792 (1985) (city ordinance unconstitutional per se); aff'd by divided panel, 807 F.2d 1339 (7th Cir. 1986), aff'd, 818 F.2d 33 (1987); vacated and rehearing en banc ordered, 818 F.2d 1284 (1987), aff'd by equally divided vote, 822 F.2d 642 (1987); reversed, –U.S. –, 56 U.S.L.W. 4785 (1988) (White, J., concurring; Brennan, Marshall, and Stevens, J.J., dissenting).Google Scholar

7 See Saint Francis College v. Al-Khazraji, 481 U.S. –, n.5, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582, 592 (1987).Google Scholar

8 Bollenbach v. Board of Education, 659 F. Supp. 1450 (1987).Google Scholar

9 Hobbie v. Unemployment Appeals Commissions, –U.S. –, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987).Google Scholar

10 Bd. of Airport Commissioners of Los Angeles Airport v. Jews for Jesus, Inc., 107 S. Ct. 2568, 96 M.Ed.2d 500 (1987).Google Scholar

11 California v. Greenwood, 182 Cal. App. 3d 729, 227 Cal. Rpt. n.539. Reversed and remanded May 16, 1988, –U.S. –, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), Justices Brennan and Marshall dissented.Google Scholar

12 Walker v. Sauvinet, 92 U.S. 90 (1875); United States v. Cruikshank, 92 U.S. 542, 552–56 (1875); Hurtado v. California, 110 U.S. 516 (1884); McElvaine v. Brush, 142 U.S. 155 (1891); O'Neil v. Vermont, 144 U.S. 323, 332 (1892); Presser v. Illinois, 116 U.S. 252, 263-68 (1886). In re Kemmler, 136 U.S. 436, 448 (1892) (alternate holding); Maxwell v. Dow, 176 U.S. 581 (1900); Twining v. New Jersey, 211 U.S. 78 (1908); and see Spies v. Illinois, 123 U.S. 131(1887). See Morrison, S., Does the Fourteenth Amendment Incorporate the Bill of Rights?–The Judicial Interpretation, 2 Stanford L. Rev. 140 (1949). Fairman, C., Does the Fourteenth Amendment Incorporate the Bill of Rights 2 Stanford L. Rev. 5 (1949).Google Scholar

13 “Neither the Fourteenth Amendment nor any other provision of the Constitution imposes on the states any restrictions about ‘freedom of speech,’ or the ‘liberty of silence;’ nor… any right of privacy.” Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1921). Prohibition against double jeopardy in the Fifth Amendment not incorporated in the Fourteenth, Palko v. Connecticut, 302 U.S. 319 (1937). No right to counsel, Betts v. Brady, 316 U.S. 455 (1942). Privilege against self-incrimination in the Fifth Amendment not incorporated in the Fourteenth, Adamson v. California, 332 U.S. 46 (1947).Google Scholar

14 Chicago, M. & St. P. Ry. v. Minnesota, 134 U.S. 418 (1890), invalidated freight rates fixed by a state commission without a hearing; the majority never mentioned the Bill of Rights or the Fifth Amendment; Justice Bradley for the three dissenters declared: “The Vth Amendment is prohibitory upon the federal government only, and not upon the state governments…. If a state court renders an unjust judgment, we cannot remedy it.”Id. at 464.Google Scholar

15 Missouri Pac. Ry. v. Nebraska, 164 U.S. 403 (1896)(state could not under the Fourteenth Amendment take the railroad's property without its consent for private use of another, even though compensation is paid). Chicago, B. & Q. Ry. v. City of Chicago, 166 U.S. 266 (1897)(city could not lay a street across a railroad's right-of-way without paying compensation). From Lochner v. New York, 198 U.S. 45 (1905), until West Coast Hotel v. Parrish, 300 U.S. 379 (1937), the high court struck down many efforts by states to regulate economic affairs, especially wages, prices, and working conditions. These three decades were the high point of natural law-substantive due process.Google Scholar

16 Adamson v. California, 332 U.S. 46, 74 (1947), dissenting opinion.Google Scholar

17 Id. at 53. Justice Frankfurter in a concurring opinion derided as “eccentric” the contention “that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States.”Id. at 62.Google Scholar

18 367 U.S.643 (1961).Google Scholar

19 The Court has not incorporated the Second Amendment right to bear arms, the Third Amendment right to refuse to quarter troops in private homes, the Fifth Amendment right to a grand jury, and the Seventh Amendment right to a civil jury.Google Scholar

20 E.g. in 1977 Raoul Berger published Government by Judiciary and has been lecturing around the country calling for a rollback of the above decisions. In July 1982 George Will in his syndicated column denounced the Supreme Court for taking a “radically wrong turn when it incorporated the First Amendment into the Fourteenth.” Senator John East of North Carolina, a close ally of Senator Jesse Helms, introduced a bill to free the states and local governments from the restraints of the Bill of Rights. S. 3018, 97th Congress, 2d Sess. (1982). On April 6, 1984, Gary McDowell wrote in the New York Times that “not a word in the Constitution explicitly applies the Bill of Rights to the states. [The application was the result of] judicial rewriting [and] activism.” In 1985 Richard Posner published The Federal Courts–Crisis in Reform. In it he declared the Constitution is “incompatible with the idea that the due process clause incorporated any provisions of the Bill of Rights in toto. That idea attributes to those who framed and enacted the due process clause of the Fourteenth Amendment truly revolutionary intentions.”Id. at 194.Google Scholar

21 Address of the Honorable Edwin Meese III, Attorney General of the United States, before the American Bar Association, July 9, 1985, U.S. Department of Justice, at 12–15, 17 (hereafter “Meese address”). Id. sub nom., The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. Tex. L. Rev. 455 (1986). Justices Brennan and Stevens publicly criticized the call of the Attorney General. Brennan in speeches at Georgetown University on October 12, 1985, and at the American Bar Association Annual Meeting in New York in August 1986, and in The constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433 (1986). See also the Meese, Brennan, and Stevens speeches and Meese's response compiled by The Federalist Society, The Great Debate: Interpreting Our Written Constitution (1986).Google Scholar

22 As to the scope of “fundamental rights” see sec. V infra at 608–13.Google Scholar

23 Levy, Leonard, who formerly doubted whether the framer's intent could be determined, now endorses Curtis's new study on the book's jacket and declares that no one can ignore it. Cf. Levy, Judgments 64 (1972)Google Scholar

24 32 U.S. (7 Pet.) 243 (1833), cited by Attorney General Meese, Meese address(cited in note 21). The case involved an alleged taking of plaintiff's property by Baltimore City in violation of the Fifth Amendment. The Court treated the first eight amendments alike. “Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would… have expressed that intention…. These amendments contain no [such] expression.” 32 U.S.(7 Pet.) 250.Google Scholar

25 60 U.S. (19 How.) 393 (1856).Google Scholar

26 Curtis could merely summarize. There is much more. See C. Eaton, The Freedom-of-Thought Struggle in the Old South (1964); R. Nye, Fettered Freedom, Civil Liberties and the Slavery Controversy (1949); J. Franklin, From Slavery to Freedom 209 et seq. (1954). For an even closer look at one southern state (North Carolina), including reported cases that are not generally known, see Appendix infra.Google Scholar

27 One vivid example that Curtis did not include: The Negro Seamen Acts of North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi restricted Negro seamen while in port, usually required their imprisonment whether free or slave, and (as in South Carolina) required they be sold into slavery to pay the cost of their detention if not paid by the ship's master. The shipowners could not get crews to sail to Charleston because many of their crews were free blacks. They knew that despite protests that they were free, they would be held in prison in Charleston until the ship sailed. New England shipowners got Massachusetts to hire the prominent Boston lawyer Samuel Hoar to test the South Carolina law's constitutionality. But when he arrived in Charleston to file suit, the South Carolina legislature passed a resolution demanding his expulsion. A mob assembled to drive him out of the city. He was compelled to leave the state. Swisher, The Taney Period 1836-64, at 378, 381–82 (1974).Google Scholar

28 Was this Convention “a rightful Convention”? Did the president have the “power to cause measures to be adopted for calling the Convention”? Yes, said the North Carolina Supreme Court in eight anguished pages in its first opinion, January Term 1867, In re Wm. H. Hughes, 61 N.C. 69, 78-86: The Convention…was neither constitutional nor unconstitutional, but extra-constitutional…. [It] was the only mode by which it was possible to extricate the state from the condition of anarchy into which it had fallen, by the attempt to withdraw from the Union, which resulted in subjugation…. There was no Governor, no members of the General Assembly, no Judges. Every officer in the State was politically dead, and the effect the same as if they had all died a natural death. [As to [the power of the President, without the concurrence of Congress, to enable the people of the State to take measures by which to resume a Constitutional relation as one of the States of the Union (about which we wish to intimate no opinion, because it is not involved In the matter under consideration), there would seem to be no doubt as to the power of the Executive, either as President or as commander of the army, to appoint a Provisional Governor, and through his instrumentality enable the people of the State to meet in Convention and take measures to fill the State offices. We have seen that, according to the law of nations, it is not only the right, but the duty, of the conquering nation either to impose a government on the conquered people, or to allow them to frame one for themselves, so as to prevent a condition of anarchy. When the President entered upon the discharge of this duty, it surely was not for the conquered people to question his powers, and the mere non interference of the legislative branch of the government was such an acquiescence as to amount to a sanction, on its part, of all acts which, by the law of nations, it was the duty of the conquering nation either to do or to allow to be done.Google Scholar

29 J. Hamilton, Reconstruction in North Carolina 141 (1914). All these 1865 elections in the South disappointed Johnson and irritated Congress. Among those elected to Congress were the vice president of the Confederacy, six Confederate cabinet officers, fifty-eight members of the Confederate Congress, five Confederate colonels, four generals. Not one of these was qualified to take the oath of office even under the president's policy. Billington, M., The American South 188 (1971).Google Scholar

30 Chief Justice Ruffin opposed the white basis of representation but his chief argument was against the legality of the Convention itself which he viewed as a mere voluntary assemblage of persons. This view cast doubt on the status of the governments of all the southern states. Thaddeus Stevens quoted Ruffin: “One of the ablest and fairest of the secessionists. The Chief Justice is right. Not a rebel State has this day a lawful government.” Speech at Bedford, Pa., Sept. 4, reported in the [Raleigh] Standard, Sept. 19, 1866.Google Scholar

31 Secs. 2, 3, and 4 addressed the immediate control of Congress, reducing the representation of states which denied male inhabitants the right to vote, prohibiting payment of Confederate war debts or claims for loss of slaves, and disqualifying rebels from voting. Sec. 1 would protect the civil rights of white loyalists as well as freed blacks and provide constitutional support for the Civil Rights Act of 1866 enacted that spring over the president's veto.Google Scholar

32 N.C. Senate Journal, 1866-67 Session, at 91-105.Google Scholar

33 See Bond, , Ratification of the Fourteenth Amendment in North Carolina, 20 Wake Forest L. Rev. 89 (1984) and Walker, F., Was It Intended That the Fourteenth Amendment Incorporate the Bill of Rights 42 N. C. L. Rev. 925 (1964), for additional references but they do not focus on “Privileges and Immunities.”Google Scholar

34 Documents: Notes of Moore, Col. W. G., President Johnson's Private Secretary, 19 Am. Hist. Rev. 104–5 (1913); see also Andrew Johnson Papers in the Library of Congress, papers marked “Reconstruction Proposition to amend the Federal Constitution and the Constitution of North Carolina”; Hamilton, J. Reconstruction in North Carolina 190 (1914); N.C. Senate Journal, 1866-67 Session, at 387–91. The substitute was later withdrawn and the original resolution proposing a national convention was adopted in both houses by a large margin.Google Scholar

35 Both these latter conditions were subsequently established in North Carolina and other states (the literacy test in 1900 by an amendment to the North Carolina Constitution, upheld as facially valid in Lassiter v. Northampton County Board of Elections, 248 N.C. 102 (1958) aff'd 360 U.S. 45 (1959). In Bazemore v. Bertie County Board of Elections, 254 N.C. 398, 406 (1961), the Supreme Court of North Carolina held that “excessive reading and writing may not be required; writing from dictation is not a requirement. The test may not be administered so as to discriminate between citizens.” This literacy test has been suspended in a number of North Carolina counties pursuant to the 1965 Voting Rights Act, U.S. Code 1982 Title 42, § 1973 et seq. Aug. 6, 1965, P.L. 89-110, 79 Stat. 437.Google Scholar

36 Thousands of white North Carolinians, as civilians and as soldiers, had risked life and liberty to further the Union cause. Enough men volunteered to fill more than six federal regiments. They were left out when the legislature provided artificial limbs for the state's maimed veterans of the Confederate army. “Unionists are being persecuted while former rebels hold all the government jobs in the State” was the complaint. Rev. G. W. Welker, pastor of Greensboro's German Reformed church, wrote Thaddeus Stevens: “There are enough loyal men in this State to fill all federal offices but not enough loyal men to elect them.” R. Current, Those Terrible Carpetbaggers 52-54 and passim (1988).Google Scholar

37 Olsen, Carpetbagger's Crude, The Life of Albion Winegar Tourgee 41–43 (1965). Tourgee lived in Greensboro for 14 years (1865-79), wrote daily to Republican leaders in Congress, advocated prompt adoption of the Fourteenth Amendment and also Negro suffrage, was a delegate from North Carolina to the Union Loyalist Convention in Philadelphia in September 1866, and for a month thereafter campaigned daily in the North speaking against President Johnson's policies of restoration, helped organize the Republican party in North Carolina, was an elected leader of the 1868 convention that drafted the North Carolina Constitution which substantially survives today. He (and two others) drafted the Code of Civil Procedure which survived until 1970. He served six years as Superior Court Judge, and wrote the best selling novel, A Fool's Errand–a far more accurate history of Reconstruction than the novels of another North Carolinian, Rev. Thomas Dixon, The Clansman and The Leopard's Spots, on which a Broadway play (1906) and the movie The Birth of a Nation (1915 were based. After 1880 when Tourgee concluded the Radical Republican civil rights policies had lost favor in the country, Congess, White House, and courts, he became a newspaper columnist and Chautauqua lecturer. As attorney for Homer A. Plessy he wrote the U.S. Supreme Court brief and made the oral argument for Homer A. Plessy in Plessy v. Ferguson, 163 U.S. 537 (1896). Though Plessy lost at that time, Justice Jackson wrote in 1950 that he had “gone to [Tourgee's] old brief filed [in the Supreme Court], and there is no argument made today that he would not make to the Court… now, just fifty-four years after, the question is again being argued whether his position will be adopted and what was a defeat for him in 1996 be a post-mortem victory.”Google Scholar

38 The presidential election in November 1876 was so disputed that the country did not know until March 3, 1877, who had won. The compromise worked out by a congressional commission headed by Justice Bradley declared the Republican candidate, Rutherford B. Hayes, the winner, Union troops were withdrawn from the South and the South was left alone to deal with its blacks. In 1883 Justice Bradley wrote the majority opinion holding unconstitutional parts of the Civil Rights Act of 1875 requiring inns and public conveyances to admit all persons alike regardless of race, color, or previous condition of servitude. The Civil Rights Cases, 109 U.S. 3 (1883). The Court held that under the Constitution Congress had no authority to forbid private discrimination; only state action is forbidden by the Fourteenth Amendment. Bradley's opinion assumed chat the wrongful action of individuals were “unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. [The victims'] rights remain in full force and may presumably be vindicate¹ by resort to the laws of the states for redress.” The issue arose in the sit-in prosecutions of 1960, but was not resolved in the cases which reached the Supreme Court in 1964. Those convictions were reversed on the narrow ground that the Maryland trespass statute had been amended after the convictions. The six judges who addressed the Fourteenth Amendment divided 3 to 3. Bell v. Maryland, 378 U.S.226 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964). In Ham v. Rock Hill, 379 U.S. 306 (1964), the Court held that the 1964 Civil Rights Act abated prosecutions against persons who (if the act had been in force at the time of the sit-in) would have been entitled to service. But see Patterson v. Credit Union, –U.S.–, 108 S.Ct. 1419 (1988), where the Supreme Court, on its own motion, has ordered reargument on “whether or not the interpretation of 42 U.S.C. § 1981 adopted by this court in Runyon v. McCrary should be reconsidered?” The question is whether § 1981 “reaches purely private acts of racial discrimination.” 427 U.S. at 170.Google Scholar

39 See C. Miller, The Supreme Court and the Uses of History, passim (1969). Charles Fairman himself spends 41 pages in Reconstruction and Reunion (1972) refuting Justice Potter Stewart's history in Jones v. Alfred H. Mayer Co. 392 U.S. 409 (1968), which invalidated racially restrictive real estate convenants. See Fairman at 1218-59. Cf. O. W. Holmes, “I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them.” The Path of the Law, 1897, in Collected Legal Papers 195 (1920). Justice Holmes was nor so cynical as William Holdsworth: “For certainty in the law a little bad history is not too high a price to pay.”Holdsworth, W., Essays in Law and History 24 (1946).Google Scholar

40 “[E]vents, almost too recent to be called history, but which are familiar to us all;” 83 U.S. 36, 71 (1873).Google Scholar

41 These quotations are from Campbell's argument, large portions of which are reproduced in H. Connor, John Archibald Campbell (1920). U.S. District Judge Henry Connor, a highly respected North Carolina lawyer and judge. declared that the majority “essentially weakened and narrowed [the Fourteenth Amendment's] scope, and disappointed the purpose of those who framed and secured its adoption.”Google Scholar

42 Id. at 224, 222-23.Google Scholar

43 83 U.S. 36, 77. That the Miller majority of five justices could have in 1873 so restricted “privileges and immunities” is hard to comprehend. I suggest three possible reasons:Google Scholar

(1) The Miller majority was genuinely concerned about preserving the States from complete subordination to the National Government. They wanted to preserve the federal/state structure as it had existed before the Civil War. A broad interpretation of privileges and immunities might so emasculate the states that little or nothing would remain to them. The effect could he “to fetter and degrade the State governments by subjecting them to the control of Congress.”Id. at 78.Google Scholar

(2) In a spirit of amnesty they wanted to appease and reassure the States, including the Southern States. Indeed some of the Northern States had second thoughts about the Fourteenth Amendment and began efforts to rescind their ratifications. The Southern States were contending that their ratifications had been exacted as a condition of re-entry in the Union, while many whites were disfranchised as rebels and while these States were under military occupation.Google Scholar

(3) The Louisiana monopoly had been created by a carpetbagger pro-Union and pro-Republican legislature. They let it stand.Google Scholar

But they could have accomplished this last purpose simply by holding that Louisiana, for health reasons, could under its police power require all slaughtering to be done in one place hy one concern which could more readily be inspected. They went out of their way to restrict or eliminate the Privileges and Immunities of U.S. citizens. This is an instance of an easy case making bad law. None of the first eight amendments expressly precludes a state regulating slaughtering places.Google Scholar

44 Graham, H., Everyman's Constitution 205 (1968)Google Scholar

45 Buck v. Bell, 274 U.S. 200 (1927).Google Scholar

46 Railway Express Agency v. New York, 336 U.S. 106 (1949) (Jackson, J., concurring).Google Scholar

47 See Lusky, L., Footnote reDux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093 (1982). Professor Lusky was Justice Stone's law clerk when Carolene Products was decided. See footnote 4, United States v. Carolene Products Company, 304 U.S. 144 (1938). See also Lusky, By What Right (1975), a splendid reconciliation of the Supreme Court decisions through 1972 and justifying judicial review as essential for the success of the enterprise of self-government.CrossRefGoogle Scholar

48 347 U.S. 483 (1954).Google Scholar

49 Brodie, F., Thaddeus Stevens 366 (1959). Sumner and Stevens were more radical than most Republicans in the 39th Congress. Moderate Republicans called the shots but became more radical during their bitter struggle with President Andrew Johnson.Google Scholar

50 Cf. Fried, C., Sonnet LXV and the “Black Ink” of the Framers' Intention, 100 Harv. L. Rev. 751 (1987).Google Scholar

51 See Sunstein, C., Lochner's Legacy, 87 Colum. L. Rev. 873 (1987).CrossRefGoogle Scholar

52 106 Sup. Ct. 2841, 2846, (1986) White, J., for the court. “[I]n constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.” Burger, C. J., concurring. “[T]here is no fundamental right–i.e. no substantive right under the Due Process Clause–such as that claimed by respondent, and found to exist by the Court of Appeals. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution.” Powell, J., concurring. Justices Blackmun, Brennan, Marshall, and Stevens dissented.Google Scholar

53 Madison's speech is set out in Swartz, The Bill of Rights, a Documentary History 1023-34 (1971). Query if today Madison would say the people have more to fear from state and local governments than from the national government? Current demands for world- wide national defense and the risks of worldwide weapons of annihilation, radioactive and other pollutants impose enormous strains on individual rights in every nation-state, in the absence of an adequate regime of law and order at the level of the world community.Google Scholar

54 Ironically, the efforts of the Supreme Court to apply “equal protection” and “due process” to women (using the Court's great power to decide what is due process) may have defeated the Equal Rights Amendment. ERA had nearly passed by 1975. It lacked ratification by only three states. One of these was North Carolina, where it was defeated by one vote. But the then recent record of the Court giving broader interpretation to due process and equal protection than had been anticipated by the general public led opponents of ERA to conjure up horrible hypotheticals at all the state hearings on ratification. They predicted that passage of ERA would outlaw separate toilets, baths, beauty parlors and sports, make women fight in foxholes and aboard ships at sea and in long range bombers, promote homosexuality, destroy the home, and wreck the Plan of Salvation.Google Scholar

55 Amar, , Of Sovereignty and Federalism, 96 Yale L.J. 1425 (1987).Google Scholar

56 G. Johnson, Ante-Bellum North Carolina 575-79 (1937).Google Scholar

57 Ironically, the author of these words, W. W. Holden, would nine years later be appointed provisional governor by President Andrew Johnson and in 1868 be elected the first Republican governor of North Carolina. He was impeached, convicted, and removed from office in 1871, the first state governor in American history to suffer this fate.Google Scholar

58 See J. S. Bassett, Anti-Slavery Leaders of North Carolina 29-47 (1898); G. Johnson, Ante-Bellum North Carolina 566-67 (1937). William Preston Mangum, the only son of North Carolina's U.S. Senator Willie Mangum (1830-36, 1840-54), was a student at Chapel Hill at the time. He wrote his sister: “I suppose you have heard that prof. Hedrick declared himself for Fremont as it is so important an event in the political world. He was burnt in effigy by the students and his course disapproved of by the Faculty. I suppose he will leave at the close of the session. It is another evidence of the one-sided views and ideas of self-importance which characterize men learned only in books.” Less than 5 years later young Mangum, a Confederate lieutenant, was mortally wounded in the first Battle of Bull Run July 21, 1861. His father, Senator Mangum, twice elected to Congress as a Federalist and three times elected to the Senate as a Whig, died in September 1861. 5 Shanks, The Papers of Willie P. Mangum 327-28 (1956).Google Scholar

59 State v. Worth, 52 N.C. 512 (1860). The Court held the book need not be sold or read to or in the presence of a slave or a free Negro. “The circulation, within the state, is alike prohibited, whether it be amongst Whites or Blacks.” There is no mention of either the North Carolina or the Federal Constitution nor the rights of free speech and press. See also J. S. Bassett, Anti-Slavery Leaders in North Carolina 24-27, and G. Johnson, Ante-Bellum North Carolina 579-81. One of Worth's converts was George H. Vestal, a teacher in the public schools. As soon as the school committee heard of his association with Worth, it dismissed the teacher and passed resolutions calling on every school committee in the state to purge the schools of antislavery teachers. Other communities looked about for abolition agents. In Charlotte, Sandy Tate, a white stonemason who had lived there for several years, was tarred and feathered, ridden on a rail, and shaved on one side of his head “for expressing violent abolition sentiments,” according to the North Carolina Christian Advocate, a Methodist publication, Dec. 15, 1859.Google Scholar

60 Baltimore v. State, 15 Md. 376; 15 Md. 468, 484; 74 Am. Dec. 572, 573, & 589. (1800). The decision was criticized in T. Cooley, Constitutional Limitations 390-391 (1868). As much as Curtis has crammed into his book there is no way he could fully capture and adequately describe the closed society of the South and some parts of the North in the decade preceding the Civil War. Many of the effects lingered long after the middle of this century and some linger still. They are not always associated with race or class. They can overtake us today in stereotypes of “enemies,”“evil empires,”“secular humanists,”“fundamentalists,”“abortionists,” and other awesome beings. In the spring of 1963, North Carolina witnessed a series of desegregation demonstrations led by college students. In Greensboro the demonstrations were led by Jesse Jackson, president of the student body at North Carolina A&T College. There was great agitation in the public. Every night three national television networks showed the marches and interviewed the principals. The General Assembly of North Carolina under a suspension of its rules enacted a statute making it a crime for any person to speak on the campus of a state-supported college or university if he or she had (1) pled the Fifth Amendment in any security hearing, (2) was a known member of the Communist Party, or (3) known to advocate overthrow of the Constitution of the United States or North Carolina. In a special session in 1965, the General Assembly modified the ban to authorize the administrators of the colleges and universities to establish a permit system solely for such speakers. In a suit brought by student leaders at the University of North Carolina and two invited speakers who probably fit categories (1) and (2) and were barred by the campus police, a three-judge federal court (Chief Judge Clement Haynsworth, Judge Edwin Stanley, and Judge Algernon Butler) declared the entire scheme unconstitutional under the Fourteenth Amendment. The state did not appeal. Dickson v. Sitterson, 280 F. Supp. 486 (1968).Google Scholar