Part of Symposium: The Sound of Legal Thunder: The Chaotic Consequences Of Crushing Constitutional Butterflies

Dripps, Donald

English

University of Minnesota Digital Conservancy

THE VARIOLA VARIATION 
Donald Dripps* 
Modern civil liberties law is the result of a virus. I mean that 
literally, and with the aid of the time machine we can perceive the 
truth of my assertion. Suppose that on a certain sunny afternoon 
in the Spring of 1823, a Bowdoin College student named Pitt Fes-
senden1 strolled a few miles into the countryside to investigate 
rumors of the strange machine some folks claimed to have seen-
one moment there, one moment not. Of the strange machine, 
Fessenden found no material evidence but many varied and obvi-
ously fantastic accounts. Well, that was the country for you. 
Of greater interest to young Fessenden, and of imponder-
able consequences for the future of the Republic, on the way 
back from this excursion he chanced to encounter an attractive 
milkmaid, carrying two heavy pails from the barn to the farm-
house. An exchange of glances was followed by a courtly offer 
to assist her with her burdens, and after the milk was deposited 
at the house the pair retired to the barn. What happened inside 
history does not record;2 but it is known that in the course of the 
proceedings Fessenden contracted cowpox. 
This episode would be of small consequence were it not for 
the variola-a mild form of smallpox (a phrase not wholly dis-
similar to "small caliber handgun" or "minor surgery"). Forty-
three years later, Senator William Pitt Fessenden could not con-
tract the variola during the promulgation of the Fourteenth 
Amendment, for exposure to cowpox confers immunity against 
smallpox. As a result, the Joint Committee on Reconstruction 
* James Levee Professor of Law and Criminal Procedure, University of Minne-
sota. 
I. Fessenden indeed attended Bowdoin, sec Charles A. Jellison, Fessenden of 
Maine: Civil War Senator 8-11 (Syracuse U. Press, 1962), although he was obliged to take 
his degree late on account of carousing, impudence, and "his general character and the 
bad influence of his example," sec Jellison, Fessenden of Maine at !0-11. 
2. Fessenden was himself born out of wedlock and suffered accordingly (although 
Daniel Webster stood as his godfather). Sec Jellison, Fesenden of Maine at chs. 4-5 (cited 
in note I). It seems unlikely that he would have run the risk of siring an illegitimate child 
of his own, but cowpox can be communicated without sexual contact. 
511 
512 CONSTITUTIONAL COMMENTARY (Vol. 16:511 
would have reported out the proposal of former congressman 
Robert Dale Owen.3 The Owen plan required black suffrage, 
but not for another ten years. Even Owen's ten-year time frame 
would have been too radical, however, and the measure would 
likely have failed to gain the necessary majority in the Senate. 
The Joint Committee would withdraw the Owen proposal and 
reconsidered the whole matter. 
The Committee, cajoled by Congressman Bingham, would 
eventually adopt the very same constitutional language that we 
see in our timeline when we read the second sentence of Section 
One of the Fourteenth Amendment. But without the variola, 
the legislative history is slightly different. On May 23, 1866, 
when the Amendment was introduced on the floor of the Senate, 
Fessenden, the chairman of the Joint Committee on Reconstruc-
tion, and not the Radical Senator Jacob Howard, would speak.4 
Scholars have of course long since exhaustively parsed the 
debates in the 39th Congress, so I will not bore you with the full 
text of Fessenden's well-known remarks, most of which are di-
rected to Section Three of the Amendment. Of Section One, 
Fessenden said that the measure was intended to guarantee the 
civil rights of all citizens of the United States, but that the 
Amendment neither added nor detracted from whatever politi-
cal rights were then enjoyed by citizens of the states. According 
to Fessenden, the privileges or immunities clause meant that the 
states could not abridge the fundamental rights of national citi-
zenship-the rights that belong to the citizens of all free gov-
ernments. These included those mentioned in the Civil Rights 
Act, but were not exhausted by its terms. The full scope of fun-
damental rights could not be stated definitively, but Justice 
Washington's opinion on circuit in Corfield v. Coryel/5 provided 
a very judicious survey of the matter. 
3. The parliamentary history of the Fourteenth Amendment has been told often. 
See, e.g., William E. Nelson, The Fourteenth Amendment ch. 3 (Harvard U. Press, 1988). 
The Joint Committee had approved the Owen plan but delayed reporting it to the floor 
for a few days as a courtesy to Fessenden, who was laid up with the variola. By the time 
he recovered, opposition to the plan had grown so strong that the committee rewrote the 
amendment in much its present form-causing Thad Stevens to fulminate "Damn the 
varioloid." Sec Jellison, Fesenden of Maine at 207-08 (cited in note 1). But it seems 
likely that even if the Owen proposal had been reported to the floor opposition would 
have forced the Joint Committee to reconsider. As the members of the committee rec-
ognized, in 1866 the electorate simply was not ready for black suffrage. See, e.g., Nelson, 
The Fourteenth Amendment at 125-26. 
4. In our timeline, Howard's speech appears in Cong. Globe, 39th Cong., 1st Sess. 
2764-67 (May 23, 1866). 
5. 6 F. 546 (C.C.E.D. Pa. 1823). 
1999] SYMPOSIUM: DRIPPS 513 
From the perspective of the time machine we can see that 
Fessenden's cowpox did not change the constitutional develop-
ment of the United States one whit until the 1940s. For in our 
timeline we know that Howard's speech-which explicitly de-
clared that the privileges or immunities of citizens of the United 
States included the protections of the first eight amendments-
was not called to the attention of the Supreme Court until Max-
well v. Dow,6 at which time the views of the sponsoring senator 
were dismissed as irrelevant to the meaning of a measure that 
was proposed by Congress but made law by the country at large. 
But Howard's speech was not lost on Horace Flack,7 or on 
William Guthrie,8 whose histories of the Fourteenth Amend-
ment were read with care during the late 1930s or early 1940s by 
Justice Hugo Black. Without the variola, it is Fessenden's 
speech rather than Howard's that these early scholars read. In 
this altered timeline their books do not take the view that the 
Fourteenth Amendment was intended to incorporate the Bill of 
Rights. And so, in the late 1930s, when Justice Black delved into 
the history of the Fourteenth Amendment, nursing a bourbon9 
and cursing Lochner, he found no scholarly support for the in-
corporation thesis. Indeed, given Fessenden's speech instead of 
Howard's, there is not even Tucker's argument in Spies v. Illi-
nois10- for Tucker had to get the argument from somewhere, 
and the most likely source was Howard's speech. 
Now Black was nothing if not indefatigable, and he still 
learned a lot about John Bingham's view that Barron 11 was erro-
neous.12 But Black could not bring himself to rely solely on 
Bingham. By the time of Betts v. Brady13 a long line of prece-
dents rejected incorporation.14 Maybe clear historical evidence 
6. For the argument, see Brief for the Plaintiff in Error at 10-12, Maxwell v. Dow, 
176 U.S. 581 (1900). For the Court's response, sec Maxwell, 176 U.S. at 601-02. Not 
even Harlan, the first, the lone dissenter, relied on the legislative history. 
7. Horace Edgar Flack, The Adoption of the Fourteenth Amendment 84-85 (Johns 
Hopkins Press, 1908). 
8. William D. Guthrie, Lectures on the Fourteenth Article of Amendment to the 
Constituiton of the United States 60-61 (Little, Brown and Co., 1898). 
9. Cf. Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-49 
(1964) (Black, 1 ., dissenting). 
10. 123 u.s. 131 (1887). 
II. Barron v. Baltimore, 32 U.S. 243 (1833). 
. 12. See Cong. Globe 39th Cong., 1st Sess. 2542 (May 10, 1866) (statement of Rep. 
Bmgham); Cong. Globe, 39th Cong., 1st Sess. 1089-90 (Feb. 28, 1866) (statement of Rep. 
Bingham). 
13. 316 u.s. 455 (1942). 
14. See, e.g., Palko v. Connecticut, 302 U.S. 319 (1937); Twining v. New Jersey, 211 
U.S. 78 (1908); Maxwell v. Dow, 176 U.S. 581 (1900); O'Neil v. Vermont, 144 U.S. 323 
514 CONSTITUTIONAL COMMENTARY [Vol. 16:511 
could trump even well-settled judge-made law. But throwing out 
hundreds of pages from the U.S. Reports on the authority of 
Bingham's speeches was something Black could not bring him-
self to do. It was legislative history from the sponsors, not the 
ratifiers, and it was not echoed in the Senate. 
Perhaps more fundamentally, Black could not escape the 
conclusion that Bingham was wrong about Barron v. Baltimore. 
Chief Justice Marshall had first-hand knowledge of the inten-
tions of the framers of the Constitution of 1789, and the struc-
tural reasoning in the Barron opinion was at least as strong as 
the structural reasoning in Marbury and McCulloch. Bingham's 
view that Barron meant that the Bill of Rights applied to the 
states, but without any federal remedy, flew in the face of that 
compelling structural reasoning. Fairly read, Barron meant that 
state citizens had no federal rights against state governments un-
der the first eight amendments, not that they had such rights but 
the national government was powerless to enforce them. Only 
months after the Fourteenth Amendment was declared effective, 
the Supreme Court unanimously reaffirmed Barron. 15 On Bing-
ham's view the new amendment only made the old constitution 
enforceable against the states, and if the old constitution did not 
apply the Bill of Rights to the states, the old order would be es-
sentially undisturbed. 
Unlike Bingham's theory, which relied on the incorrect as-
sumption that Barron was either wrong or limited to remedies 
rather than rights, Howard's theory is consistent, both internally 
and with the text of Section One. "Privileges or immunities" 
means fundamental rights, and these include, but are not limited 
to, those in the Bill of Rights. Surely this is the most logical ar-
gument in support of total incorporation, but without Fessen-
den's variola it would never have been made. Justice Black 
would have to follow Bingham or give up on incorporation. 
(1892); Hurtado v. California, 110 U.S. 516 (1884); Walker v. Sauvinet, 92 U.S. 90 (1875). 
15. Sec Twitchell v. Commonwealth, 74 U.S. 321 (1868). In Twitchell a state defen-
dant invoked the Sixth Amendment fair-notice requirement, and the Court denied the 
petition for a writ of error, relying on and quoting from Barron. Twitchell is a problem 
for any theory of incorporation, but a bigger hurdle for Bingham's theory than for How-
ard's fundamental-rights theory. Defenders of Howard's theory can say that Twitchell 
simply pleaded the wrong amendment (the Sixth, rather than the Fourteenth). Bingham 
thought the Sixth Amendment applied to the states and was made enforceable by the 
Fourteenth. Cong. Globe 39th Cong., 1st Sess. 2542-43 (May 10, 1866) (statement of Rep. 
Bingham); Cong. Globe, 39th Cong., 1st Sess. 1089-90 (Feb. 28, 1866) (statement of Rep. 
Bingham). Obviously Bingham's views about Barron were not shared by the justices. 
1999] SYMPOSIUM: DRIPPS 515 
Given that choice, our counter-factual Justice Black joined 
the majority, not the dissent of Douglas, Rutledge, and Murphy in 
Adamson v. California. 16 There never was any criminal procedure 
revolution in the 1960s-no Mapp, no Gideon, no Malloy, and so 
no Miranda. Shunned at Stanford, and passed over at Harvard, 
because of his arcane and trivial research interests, Charles Fair-
man retired early to write historical fiction. Although Black de-
nounced the fundamental fairness theory of substantive due proc-
ess relied on by Frankfurter and Harlan, the three agreed on the 
result in most major cases, becoming, as one ~rogressive legal 
scholar put it, "the three musketeers of reaction." 7 
The consequences of Fessenden's cowpox did not, of course, 
end there. Without the criminal procedure revolution, the only 
people convinced that the Court had run amok in the 1960s were 
die-hard segregationists. In practical terms, this meant that 
about one percent of additional voters in the election of 1968-
mostly conservative democrats in the South and in southern 
California-dosed the curtain and pulled the lever for Hubert 
Humphrey, tempted as they were to vote for George Wallace or 
Richard Nixon. In our timeline, Nixon won by just over 500,000 
votes out of 72 million cast. Without Miranda, Humphrey won 
by a scant but decisive quarter of a million. 
The four Humphrey justices joined Brennan and Marshall to 
stage a real revolution during the 1970s, in criminal justice and in 
countless other areas of the law. The reaction to their program 
finally triumphed with the election of Ronald Reagan in 1980. 
President Cuomo saw the writing on the wall long before the elec-
tion, however, and persuaded Justice Brennan to retire early, 
enabling the confirmation of Justice Tribe, who had served as So-
licitor General in the Cuomo administration. Lewis Powell is 
known to history as a minor figure in the Allied signals intelli-
gence project in World War II. Richard Nixon is a bit of a joke, 
like Harold Stassen. 
Legal scholarship, of course, looks very different as a result 
of the cowpox. Dean Posner at Harvard and Dean Scalia at Vir-
ginia, for instance, have openly cultivated conservative faculties, 
dedicated to rehabilitating the reputations of the "three musket-
. 16. 332 U.S. 46 (1947). 
17. Cf. Roger K. Newman, Hugo Black 353 (Pantheon Books, 1994) ("If I didn't 
find that [incorporation] was !the framers'] view, my career on the Court would have 
been entirely different ... I would not have gone with due process and I'd be considered 
the most reactionary judge on the Court.") (quoting Black). 
516 CONSTITUTIONAL COMMENTARY [Vol. 16:511 
eers" and bitterly critical of the Bazelon Court. But the Bazelon 
Court has its academic defenders, including such mainstream 
scholars as Duncan Kennedy and Mark Tushnet. 
The Bazelon Court's work can be measured by some of the 
cases pending in the coming term. The Court, for instance, must 
decide whether white defendants, as well as blacks, can exercise 
the automatic right to an all-black jury; whether, in complying 
with c_ourt-ordered remedial affirmative action quotas, the mili-
tary should be allowed a statistical estimate for non-self-
identifying homosexuals; and whether doctors who refuse to 
provide late-term abortions are, on account of licensing and 
regulation, state actors subject to damage awards or injunctions. 
When President Reagan faced the opportunity to appoint 
his first Supreme Court justice, many were surprised when he 
passed over Chief Justice Rehnquist of the California Supreme 
Court. The nomination instead went to Robert Bork, who sailed 
through the Senate by voice vote. Joseph Biden, in explaining 
his support, said that Bork was "a distinguished and thoughtful 
voice for a view I disagree with, a view which thankfully has no 
foreseeable prospect of altering the balance of the Supreme 
Court." Biden has thus far proved correct, with Justice Bork's 
increasingly shrill dissenting opinions winning praise in the 
tonier law reviews but no converts among his colleagues. 
There is no end to such speculations. Eventually, of course, 
reality always reasserts itself: 
... this 
Annus is not mirabilis; 
Day breaks upon the world we know 
Of war and wastefulness and woe.18 
If our intellectual parlor game has a point, it must be to em-
phasize how easily we treat as inevitable events that turn on un-
likely accidents. What could be more inconsequential than a 
case of cowpox in the 1820s, or even a few words spoken in de-
bate and stored for posterity in the yellowing pages of the Con-
gressional Globe? Compared to Booth's bullet, let alone Prin-
cep's, Fessenden's variola is less than trivial. Yet in law and in 
history, as in life at large, on the broad currents of causation, 
everything is connected to everything else. 
18. W. H. Auden, New Year Lener (Letter to Elizabeth Mayer, Jan. 1, 1940), in 
Edward Mendelson, ed., W.H. Auden Collected Poems 161, 191 (Random House, 1976). 
This essay was written during the late war between NATO and Yugoslavia. 


The Variola Variation

bepress Legal Repository

University of Minnesota Law School

University of Minnesota Law SchoolScholarship RepositoryConstitutional Commentary1999The Variola VariationDonald DrippsFollow this and additional works at: https://scholarship.law.umn.edu/concommPart of the Law CommonsThis Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in ConstitutionalCommentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact lenzx009@umn.edu.Recommended CitationDripps, Donald, "The Variola Variation" (1999). Constitutional Commentary. 273.https://scholarship.law.umn.edu/concomm/273THE VARIOLA VARIATION Donald Dripps* Modern civil liberties law is the result of a virus. I mean that literally, and with the aid of the time machine we can perceive the truth of my assertion. Suppose that on a certain sunny afternoon in the Spring of 1823, a Bowdoin College student named Pitt Fes-senden1 strolled a few miles into the countryside to investigate rumors of the strange machine some folks claimed to have seen-one moment there, one moment not. Of the strange machine, Fessenden found no material evidence but many varied and obvi-ously fantastic accounts. Well, that was the country for you. Of greater interest to young Fessenden, and of imponder-able consequences for the future of the Republic, on the way back from this excursion he chanced to encounter an attractive milkmaid, carrying two heavy pails from the barn to the farm-house. An exchange of glances was followed by a courtly offer to assist her with her burdens, and after the milk was deposited at the house the pair retired to the barn. What happened inside history does not record;2 but it is known that in the course of the proceedings Fessenden contracted cowpox. This episode would be of small consequence were it not for the variola-a mild form of smallpox (a phrase not wholly dis-similar to "small caliber handgun" or "minor surgery"). Forty-three years later, Senator William Pitt Fessenden could not con-tract the variola during the promulgation of the Fourteenth Amendment, for exposure to cowpox confers immunity against smallpox. As a result, the Joint Committee on Reconstruction * James Levee Professor of Law and Criminal Procedure, University of Minne-sota. I. Fessenden indeed attended Bowdoin, sec Charles A. Jellison, Fessenden of Maine: Civil War Senator 8-11 (Syracuse U. Press, 1962), although he was obliged to take his degree late on account of carousing, impudence, and "his general character and the bad influence of his example," sec Jellison, Fessenden of Maine at !0-11. 2. Fessenden was himself born out of wedlock and suffered accordingly (although Daniel Webster stood as his godfather). Sec Jellison, Fesenden of Maine at chs. 4-5 (cited in note I). It seems unlikely that he would have run the risk of siring an illegitimate child of his own, but cowpox can be communicated without sexual contact. 511 512 CONSTITUTIONAL COMMENTARY (Vol. 16:511 would have reported out the proposal of former congressman Robert Dale Owen.3 The Owen plan required black suffrage, but not for another ten years. Even Owen's ten-year time frame would have been too radical, however, and the measure would likely have failed to gain the necessary majority in the Senate. The Joint Committee would withdraw the Owen proposal and reconsidered the whole matter. The Committee, cajoled by Congressman Bingham, would eventually adopt the very same constitutional language that we see in our timeline when we read the second sentence of Section One of the Fourteenth Amendment. But without the variola, the legislative history is slightly different. On May 23, 1866, when the Amendment was introduced on the floor of the Senate, Fessenden, the chairman of the Joint Committee on Reconstruc-tion, and not the Radical Senator Jacob Howard, would speak.4 Scholars have of course long since exhaustively parsed the debates in the 39th Congress, so I will not bore you with the full text of Fessenden's well-known remarks, most of which are di-rected to Section Three of the Amendment. Of Section One, Fessenden said that the measure was intended to guarantee the civil rights of all citizens of the United States, but that the Amendment neither added nor detracted from whatever politi-cal rights were then enjoyed by citizens of the states. According to Fessenden, the privileges or immunities clause meant that the states could not abridge the fundamental rights of national citi-zenship-the rights that belong to the citizens of all free gov-ernments. These included those mentioned in the Civil Rights Act, but were not exhausted by its terms. The full scope of fun-damental rights could not be stated definitively, but Justice Washington's opinion on circuit in Corfield v. Coryel/5 provided a very judicious survey of the matter. 3. The parliamentary history of the Fourteenth Amendment has been told often. See, e.g., William E. Nelson, The Fourteenth Amendment ch. 3 (Harvard U. Press, 1988). The Joint Committee had approved the Owen plan but delayed reporting it to the floor for a few days as a courtesy to Fessenden, who was laid up with the variola. By the time he recovered, opposition to the plan had grown so strong that the committee rewrote the amendment in much its present form-causing Thad Stevens to fulminate "Damn the varioloid." Sec Jellison, Fesenden of Maine at 207-08 (cited in note 1). But it seems likely that even if the Owen proposal had been reported to the floor opposition would have forced the Joint Committee to reconsider. As the members of the committee rec-ognized, in 1866 the electorate simply was not ready for black suffrage. See, e.g., Nelson, The Fourteenth Amendment at 125-26. 4. In our timeline, Howard's speech appears in Cong. Globe, 39th Cong., 1st Sess. 2764-67 (May 23, 1866). 5. 6 F. 546 (C.C.E.D. Pa. 1823). 1999] SYMPOSIUM: DRIPPS 513 From the perspective of the time machine we can see that Fessenden's cowpox did not change the constitutional develop-ment of the United States one whit until the 1940s. For in our timeline we know that Howard's speech-which explicitly de-clared that the privileges or immunities of citizens of the United States included the protections of the first eight amendments-was not called to the attention of the Supreme Court until Max-well v. Dow,6 at which time the views of the sponsoring senator were dismissed as irrelevant to the meaning of a measure that was proposed by Congress but made law by the country at large. But Howard's speech was not lost on Horace Flack,7 or on William Guthrie,8 whose histories of the Fourteenth Amend-ment were read with care during the late 1930s or early 1940s by Justice Hugo Black. Without the variola, it is Fessenden's speech rather than Howard's that these early scholars read. In this altered timeline their books do not take the view that the Fourteenth Amendment was intended to incorporate the Bill of Rights. And so, in the late 1930s, when Justice Black delved into the history of the Fourteenth Amendment, nursing a bourbon9 and cursing Lochner, he found no scholarly support for the in-corporation thesis. Indeed, given Fessenden's speech instead of Howard's, there is not even Tucker's argument in Spies v. Illi-nois10- for Tucker had to get the argument from somewhere, and the most likely source was Howard's speech. Now Black was nothing if not indefatigable, and he still learned a lot about John Bingham's view that Barron 11 was erro-neous.12 But Black could not bring himself to rely solely on Bingham. By the time of Betts v. Brady13 a long line of prece-dents rejected incorporation.14 Maybe clear historical evidence 6. For the argument, see Brief for the Plaintiff in Error at 10-12, Maxwell v. Dow, 176 U.S. 581 (1900). For the Court's response, sec Maxwell, 176 U.S. at 601-02. Not even Harlan, the first, the lone dissenter, relied on the legislative history. 7. Horace Edgar Flack, The Adoption of the Fourteenth Amendment 84-85 (Johns Hopkins Press, 1908). 8. William D. Guthrie, Lectures on the Fourteenth Article of Amendment to the Constituiton of the United States 60-61 (Little, Brown and Co., 1898). 9. Cf. Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-49 (1964) (Black, 1 ., dissenting). 10. 123 u.s. 131 (1887). II. Barron v. Baltimore, 32 U.S. 243 (1833). . 12. See Cong. Globe 39th Cong., 1st Sess. 2542 (May 10, 1866) (statement of Rep. Bmgham); Cong. Globe, 39th Cong., 1st Sess. 1089-90 (Feb. 28, 1866) (statement of Rep. Bingham). 13. 316 u.s. 455 (1942). 14. See, e.g., Palko v. Connecticut, 302 U.S. 319 (1937); Twining v. New Jersey, 211 U.S. 78 (1908); Maxwell v. Dow, 176 U.S. 581 (1900); O'Neil v. Vermont, 144 U.S. 323 514 CONSTITUTIONAL COMMENTARY [Vol. 16:511 could trump even well-settled judge-made law. But throwing out hundreds of pages from the U.S. Reports on the authority of Bingham's speeches was something Black could not bring him-self to do. It was legislative history from the sponsors, not the ratifiers, and it was not echoed in the Senate. Perhaps more fundamentally, Black could not escape the conclusion that Bingham was wrong about Barron v. Baltimore. Chief Justice Marshall had first-hand knowledge of the inten-tions of the framers of the Constitution of 1789, and the struc-tural reasoning in the Barron opinion was at least as strong as the structural reasoning in Marbury and McCulloch. Bingham's view that Barron meant that the Bill of Rights applied to the states, but without any federal remedy, flew in the face of that compelling structural reasoning. Fairly read, Barron meant that state citizens had no federal rights against state governments un-der the first eight amendments, not that they had such rights but the national government was powerless to enforce them. Only months after the Fourteenth Amendment was declared effective, the Supreme Court unanimously reaffirmed Barron. 15 On Bing-ham's view the new amendment only made the old constitution enforceable against the states, and if the old constitution did not apply the Bill of Rights to the states, the old order would be es-sentially undisturbed. Unlike Bingham's theory, which relied on the incorrect as-sumption that Barron was either wrong or limited to remedies rather than rights, Howard's theory is consistent, both internally and with the text of Section One. "Privileges or immunities" means fundamental rights, and these include, but are not limited to, those in the Bill of Rights. Surely this is the most logical ar-gument in support of total incorporation, but without Fessen-den's variola it would never have been made. Justice Black would have to follow Bingham or give up on incorporation. (1892); Hurtado v. California, 110 U.S. 516 (1884); Walker v. Sauvinet, 92 U.S. 90 (1875). 15. Sec Twitchell v. Commonwealth, 74 U.S. 321 (1868). In Twitchell a state defen-dant invoked the Sixth Amendment fair-notice requirement, and the Court denied the petition for a writ of error, relying on and quoting from Barron. Twitchell is a problem for any theory of incorporation, but a bigger hurdle for Bingham's theory than for How-ard's fundamental-rights theory. Defenders of Howard's theory can say that Twitchell simply pleaded the wrong amendment (the Sixth, rather than the Fourteenth). Bingham thought the Sixth Amendment applied to the states and was made enforceable by the Fourteenth. Cong. Globe 39th Cong., 1st Sess. 2542-43 (May 10, 1866) (statement of Rep. Bingham); Cong. Globe, 39th Cong., 1st Sess. 1089-90 (Feb. 28, 1866) (statement of Rep. Bingham). Obviously Bingham's views about Barron were not shared by the justices. 1999] SYMPOSIUM: DRIPPS 515 Given that choice, our counter-factual Justice Black joined the majority, not the dissent of Douglas, Rutledge, and Murphy in Adamson v. California. 16 There never was any criminal procedure revolution in the 1960s-no Mapp, no Gideon, no Malloy, and so no Miranda. Shunned at Stanford, and passed over at Harvard, because of his arcane and trivial research interests, Charles Fair-man retired early to write historical fiction. Although Black de-nounced the fundamental fairness theory of substantive due proc-ess relied on by Frankfurter and Harlan, the three agreed on the result in most major cases, becoming, as one ~rogressive legal scholar put it, "the three musketeers of reaction." 7 The consequences of Fessenden's cowpox did not, of course, end there. Without the criminal procedure revolution, the only people convinced that the Court had run amok in the 1960s were die-hard segregationists. In practical terms, this meant that about one percent of additional voters in the election of 1968-mostly conservative democrats in the South and in southern California-dosed the curtain and pulled the lever for Hubert Humphrey, tempted as they were to vote for George Wallace or Richard Nixon. In our timeline, Nixon won by just over 500,000 votes out of 72 million cast. Without Miranda, Humphrey won by a scant but decisive quarter of a million. The four Humphrey justices joined Brennan and Marshall to stage a real revolution during the 1970s, in criminal justice and in countless other areas of the law. The reaction to their program finally triumphed with the election of Ronald Reagan in 1980. President Cuomo saw the writing on the wall long before the elec-tion, however, and persuaded Justice Brennan to retire early, enabling the confirmation of Justice Tribe, who had served as So-licitor General in the Cuomo administration. Lewis Powell is known to history as a minor figure in the Allied signals intelli-gence project in World War II. Richard Nixon is a bit of a joke, like Harold Stassen. Legal scholarship, of course, looks very different as a result of the cowpox. Dean Posner at Harvard and Dean Scalia at Vir-ginia, for instance, have openly cultivated conservative faculties, dedicated to rehabilitating the reputations of the "three musket-. 16. 332 U.S. 46 (1947). 17. Cf. Roger K. Newman, Hugo Black 353 (Pantheon Books, 1994) ("If I didn't find that [incorporation] was !the framers'] view, my career on the Court would have been entirely different ... I would not have gone with due process and I'd be considered the most reactionary judge on the Court.") (quoting Black). 516 CONSTITUTIONAL COMMENTARY [Vol. 16:511 eers" and bitterly critical of the Bazelon Court. But the Bazelon Court has its academic defenders, including such mainstream scholars as Duncan Kennedy and Mark Tushnet. The Bazelon Court's work can be measured by some of the cases pending in the coming term. The Court, for instance, must decide whether white defendants, as well as blacks, can exercise the automatic right to an all-black jury; whether, in complying with c_ourt-ordered remedial affirmative action quotas, the mili-tary should be allowed a statistical estimate for non-self-identifying homosexuals; and whether doctors who refuse to provide late-term abortions are, on account of licensing and regulation, state actors subject to damage awards or injunctions. When President Reagan faced the opportunity to appoint his first Supreme Court justice, many were surprised when he passed over Chief Justice Rehnquist of the California Supreme Court. The nomination instead went to Robert Bork, who sailed through the Senate by voice vote. Joseph Biden, in explaining his support, said that Bork was "a distinguished and thoughtful voice for a view I disagree with, a view which thankfully has no foreseeable prospect of altering the balance of the Supreme Court." Biden has thus far proved correct, with Justice Bork's increasingly shrill dissenting opinions winning praise in the tonier law reviews but no converts among his colleagues. There is no end to such speculations. Eventually, of course, reality always reasserts itself: ... this Annus is not mirabilis; Day breaks upon the world we know Of war and wastefulness and woe.18 If our intellectual parlor game has a point, it must be to em-phasize how easily we treat as inevitable events that turn on un-likely accidents. What could be more inconsequential than a case of cowpox in the 1820s, or even a few words spoken in de-bate and stored for posterity in the yellowing pages of the Con-gressional Globe? Compared to Booth's bullet, let alone Prin-cep's, Fessenden's variola is less than trivial. Yet in law and in history, as in life at large, on the broad currents of causation, everything is connected to everything else. 18. W. H. Auden, New Year Lener (Letter to Elizabeth Mayer, Jan. 1, 1940), in Edward Mendelson, ed., W.H. Auden Collected Poems 161, 191 (Random House, 1976). This essay was written during the late war between NATO and Yugoslavia. 

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The Variola Variation

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