Wednesday, September 18, 2013

Abortion, Slavery, and Private Property, IV: The 14th Amendment


Picking up where we left off on August 15, following the Civil War and the abolition of chattel slavery, the Congress realized it was essential to overturn Scott v. Sandford — the Dred Scott case.  The ruling of the United States Supreme Court, that no human being of African birth or descent, slave or free, was a person as that term was used in the Constitution, could not be allowed to stand.

Ultimately, the Court’s ruling in Scott meant that rights, contrary to what is stated in the Declaration of Independence, are not inherent in each human being.  Instead, rights previously assumed to be “natural” (i.e., part of human nature itself) and thus inalienable or absolute, were to be granted or withheld as the State saw fit.  Followed to its logical conclusion, the opinion in Scott meant that “We, the People” are a nullity, complete non-entities before the might of an all-powerful State, unless the State chose to declare otherwise.

That this would also take back from the Supreme Court some of the power that the Court had usurped from the Congress may also have been a consideration.  The increased power of the Court before the Civil War, and that of the Executive during the war, had resulted in a serious decline in the power of Congress, always intended as the direct representative of the people to be supreme over the other two branches of government.

The vehicle chosen to overturn the Dred Scott decision and restore the powers of Congress to their rightful place was the Fourteenth Amendment.  In relevant part, the Amendment clearly meant that no human being could be deprived of natural rights due to every person without just cause and due process — what the lawyers call “substantive law” and “procedural law,” respectively.

The effect of the Fourteenth Amendment (on paper, at least) was to strip both the Supreme Court and the President of powers they had assumed that rightfully belong to the Congress.  As constitutional scholar William Crosskey explained, the Court had taken effective control of the legislative process by the expansion of judicial review far beyond the bounds of anything ever intended by the framers of the Constitution.  The exigencies of war had expanded the powers of the President through the issuance of “Executive Orders.”  The former allowed the Court to nullify the legislative process and substitute its own decisions as “the law of the land,” while the latter simply bypassed the legislative process altogether.

Not surprisingly, within 5 years, in its opinion in the Slaughterhouse Cases of 1873, the Supreme Court effectively nullified the 14th Amendment.  This made the determination of who is a person once again an issue to be decided not by nature, but by government.  As Crosskey noted,

"So, the Court’s opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe.  And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion.  So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution completely." (William Winslow Crosskey, Politics and the Constitution in the History of the United States.  Chicago, Illinois: University of Chicago Press, 1953, 1130.)

As we shall see in the next posting in this series, the specific natural right addressed in the Slaughterhouse Cases was private property.  Given the fundamental character of both the basis of the natural law (i.e., whether inherent in each person, or determined by faith in a god or a State that replaced God) and the critical role of private property in capital as the principal safeguard of all other rights, it was not long before there was a profound “sea change” in America, and what it meant to be an American.

#30#

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