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. . . .
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| 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.
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| "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.
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| 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?
#30#
