The United States Congress enacted two “Reconstruction
Amendments” after the Civil War. The
first of these, the 13th, abolished chattel slavery, that is, human
beings owned as private property by other human beings. (If you read the amendment carefully, you’ll
see that it didn’t abolish slavery altogether. People convicted of crimes can
still lose their rights; a slave is legally defined as a human being without
rights.)
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| Dred Scott |
The second of the “Reconstruction Amendments” was the 14th,
which most constitutional scholars agree was adopted in part to overturn the
Supreme Court’s decision in Scott v.
Sandford. William Crosskey noted
that there is nothing in the 14th Amendment as it related to the
recognition of rights as inhering in the human person that wasn’t already in
other parts of the Constitution. So why
was it important to adopt what amounts to a redundant amendment?
By adopting the 14th Amendment, Congress seemed
to be trying to send the Supreme Court a message. By playing word games with the Constitution
in the Dred Scott case, not only had the Court shifted the basis of the United
States government from people to the State, it did something even more
terrible, as least as far as Congress was concerned: it usurped some of the
powers of Congress.
Nor was the Supreme Court the only target of the wrath of
Congress. During the Civil War the
executive, that is, the president, had assumed sweeping emergency powers. These were a bit harder to get back,
especially since Lincoln was now a martyr.
What made it virtually impossible for Congress to get back
the power taken by the presidency was the fact that instead of using
legislative action and its power over the purse strings to rein in executive
power, it took what it thought was the easy way out, and tried to impeach
President Johnson on specious grounds.
The failure of the effort, and its obvious vindictiveness, made any
future attempts to check the power of the president pretty much a no-go.
For its part, the Supreme Court was able to take back the
power it had gained rather quickly. In 1868
a “carpetbag” legislature in Louisiana passed an ordinance ostensibly to
enforce sanitary regulations on New Orleans to stop the recurrent cholera
epidemics that plagued the city. The
city’s slaughterhouses were upstream, and the offal polluted the water supply.
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| Governor Henry C. Warmoth |
The ordinance required that butchers move their operations
downstream. This was not a problem, and
the butchers complied. Unfortunately, in
an effort to make a little money on the project, Governor Henry C. Warmoth, “a
shrewd, avaricious and unscrupulous man,” (“The Louisiana Thieves,” New Orleans Commercial Bulletin, Monday,
August 8, 1870) had the legislature establish a monopoly for a friend of his,
C. A. Weed, the “Crescent City Live-Stock Landing and Slaughter-House Company.” After a series of events that sound more like
Chicago in the 1920s, the butchers’ cases were bundled and appealed to the
Supreme Court.
In an exercise of what can only be described as “raw
judicial power,” the Supreme Court dodged the issue of whether rights reside by
nature in each human being and are granted to the State, or whether rights
inhere in the State and are granted to the people. The Court simply assumed that rights are
granted by the State, and the arguments focused on whether the state or the
federal government was the right-grantor, not whether rights had been violated.
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| Justice Stephen Johnson Field |
The opinion, which was that the butchers’ property rights
had somehow not been violated by the state of Louisiana by forcing them to use
the state-established monopoly, was so vaguely worded as to make the 14th
Amendment, in the words of dissenting Justice Stephen Johnson Field of
California, a “vain and idle enactment,” i.e.,
a meaningless noise, useful only for justifying whatever the Court wanted to
do.
The cleverness of the decision (or, as Crosskey put it, the
craftiness) was, not to put too fine a point on it, incredible. By claiming that the state of Louisiana had
not violated the rights of the butchers, the Supreme Court seemed to be upholding state sovereignty. At the same time, it implied that the
jurisdiction of the state was a “gift” of the federal government, and only
valid with the Court’s sanction. This
meant that the federal government was
really supreme . . . but only if the
Supreme Court said so. The rights of the
butchers who had sued on the basis that their rights were being violated were
not really an issue. As Crosskey
concluded,
“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 [i.e.,
the Fourteenth Amendment] completely.” (William Crosskey, Politics and the Constitution in the History of the United States.
Chicago, Illinois: The University of Chicago Press, 1953, 1130.)
Years later, Justice Field had the courage to declare that
both the majority and the minority had been wrong. Rights are inherent in each human being, not
the State in any form. The whole
argument in the Slaughterhouse Cases,
i.e., whether the rights of the
federal government or the state government are superior, was a diversion away
from the real issue of the sovereignty of the human person over that of the
State. As Crosskey related,
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| John Randolph Tucker |
“After
much reflection,” Justice Field confessed, in dissent from the Court’s decision
[in the matter of O’Neil v. Vermont,
144 U.S. 323 (1892)], “I think the definition given at one time before this
court by a distinguished advocate — John Randolph Tucker, of Virginia — is
correct, that the privileges and immunities of citizens of the United States
are such as have their recognition in or guaranty from the Constitution of the
United States.” (Crosskey, Politics and
the Constitution, op. cit., 1124.)
In other words, the State, whether in the person of local,
state, or federal governments, does not grant rights. The State can only recognize or guarantee
rights, not create or grant them. In its decision in Slaughterhouse that nullified this theory, the U.S. Supreme Court secured the foundation for the exercise of what amounts to supreme legislative as well as judicial power.