Tuesday, May 3, 2016

Sovereignty and Subsidiarity, II: The Turning Point

Yesterday we took a look at how many people view the principle of subsidiarity.  We discovered that a great many people have a great many odd ideas about something they do not appear to understand.  At the same time, they have no hesitation in speaking authoritatively on the subject.

Today we address the question of how the situation got so far out of whack — at least in the United States.  If we wanted to go back to the very beginning, we’d have to start with Adam and Eve in the Garden of Eden, and go from there.  That might allow us to give a very thorough answer, but nobody would read it. . . .
Dred Scott: enslaved in a free state.
We’ll stick with the short version and confine ourselves to immediate effects.  Since this is a constitutional question, we can’t do better than go to William Winslow Crosskey (1894-1968), who was probably the premier American constitutional scholar of the twentieth century.
According to Crosskey, subsidiarity is in the Constitution, viz. in the Preamble as the “guiding statement” (i.e., “We, the People,” not “I, the State”), as well as the Ninth, Tenth and Fourteenth Amendments explicitly, and most of the others implicitly. The Constitution, therefore, is not a grant of rights from the State to its citizens, but of citizens to the State.
Now, keeping in mind that this is the short version, the downhill slide started with the U.S. Supreme Court’s decision in the Dred Scott case, Scott v. Sandford, 60 U.S. 393 (1857).  This was when the slave Dred Scott sued for his freedom on the grounds that he had been taken as a slave to a free state.  Slavery being illegal where he had been taken, Scott logically argued that he was now free.
The Court ruled that Scott had no standing to sue Sanford (who was not his master at the time) — note the Court’s misspelling of his name, which is now “official” — because no human being of African birth or descent could ever be a “person” as that term is used in the U.S. Constitution.  Since a person is that which has rights, the Court was declaring that no human being of African birth or descent could have rights.
"We, the People," not "I, the State."
The trick, of course, is that the Constitution says no such thing.  The Preamble itself declares that the Constitution is a grant of rights from people to the State, not from the State to the people.  Human beings are not persons because the State says so.  Rather, the Preamble necessarily implies that all human beings are already persons, and have organized to make a grant of rights to the State!
Thus, human beings are not persons because the State says so.  The State is a person because human beings said so!  To say, then, that any human does not have rights because they were not granted rights by the State is nonsense, and a complete reversal of the basis of the U.S. Constitution.
Following the Civil War, Congress got busy and in 1865 passed the “Reconstruction Amendments.”  These were the Thirteenth, which abolished chattel slavery, and the Fourteenth, which guaranteed fundamental rights to all human beings . . . and was intended in part to overturn Scott v. Sandford.
The Supreme Court wasn’t going to stand for this challenge to its authority, and took the first chance it got to interpret the Fourteenth Amendment out of existence.  This came in 1873 with the Slaughterhouse Cases.
Henry C. Warmoth, Carpetbag Governor.
Briefly (this is the short version, remember?), the carpetbag legislature of Louisiana, acting under the direction of the carpetbag governor, granted a state-supported monopoly to a carpetbag friend of the governor mandating that the butchers of New Orleans had to use the monopoly facility to do their butchering.  The butchers sued, and the cases were bundled and sent to the U.S. Supreme Court.
This is where things got interesting.  The cases became a test of the new Fourteenth Amendment.  The Court started out by citing the decision in Scott v. Sandford, since that was the case the Amendment overturned.
The problem was that the Court didn’t actually cite Scott.  It mis-cited Scott.  In 1857, the Court had said no human being of African birth or descent could ever be a person.  In 1873, the Court claimed that in 1857 it had said that no human being of African birth or descent could ever be a citizen — something completely different!  The Court could therefore pretend to be upholding the Fourteenth Amendment by changing what the Amendment overturned, thereby changing the entire meaning and basis of the Constitution.  As Crosskey explained,
Justice Stephen Field of California, dissenting.
“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 [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.)
The bottom line is that, by taking and changing the clear meaning of the Preamble and, especially, the Fourteenth Amendment, the U.S. Supreme Court vested itself with supreme power.  This was by the simple expedient of shifting the basis of the interpretation of the Constitution away from the principle of subsidiarity and the idea that rights come from the people to be vested in the State, to the socialist/totalitarian principle that rights come from the State to be vested in the people.
The Slaughterhouse opinion turned the Fourteenth Amendment, intended to validate natural rights and the independence and sovereignty of each human being, into a declaration of dependence on the State.  Not surprisingly, the Slaughterhouse decision was cited as a precedent in Roe v. Wade.
Can this be fixed?  And, if so, how?


Raul De La Garza III said...

This makes sense so long as what you mean by 'State' is properly understood as that being the character of a consolidated national government which the 14th amendment effectively helped to create.

"And here I would make this enquiry of those worthy characters who composed a part of the late Federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated Government, instead of a confederation. That this is a consolidated Government is demonstrably clear, and the danger of such a Government, is, to my mind, very striking. I have the highest veneration of those Gentlemen,--but, Sir, give me leave to demand, what right had they to say, We, the People. My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorised them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people of all the States." - Patrick Henry, Virginia Ratifying Convention

Michael D. Greaney said...

Both the states and the federal government are human creations, social tools, charged with the care of the common good at the appropriate level. As such both the states and the federal government only derive what rights they have from actual people (not from the abstraction of the collective). That being the case, i.e., that the constituent states derive their rights from the people, it is correct to say, "We, the People," not "I, the State" or "We, the States," for that would be putting the State created by human beings over human beings created by God without their explicit or implicit consent. As A.V. Dicey explained, politically sovereign individuals delegate legal sovereignty to the State via revocable grants to the legislature(s) that represent them. By the principle of subsidiarity, individuals handle individual matters, families handle family matters, towns, town matters, states, state matters, and the national government national matters and international relations. It is profoundly wrong for one level to try and capture functions belonging to the other levels, although in cases of necessity, assistance may be justified on a temporary basis. In short, as Alexis de Tocqueville observed, in America all power resides in the people, not in institutions, even government, that by their very nature must be dependent on the people, not the other way around.