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.
