Raw Judicial Power X: The Fourteenth Amendment

In the previous posting in this series, we discovered that Scott v. Sandford, the infamous "Dred Scott decision," was even more sweeping in its implications than most of the history books today tell us. Not merely an injustice against a single individual, the case was the basis for what amounted to a new interpretation of the U.S. Constitution and a vastly expanded role for the Supreme Court of the United States. It should come as no surprise, then, that one of the first things that Congress did once the war was over was to adopt the "Reconstruction Amendments," the 13th and 14th Amendments to the Constitution.

The Dred Scott decision overturned the Missouri Compromise made the half-slave/half-free system unworkable by denying the basis of the system itself. Civil war became inevitable as slave owners, convinced that their economic survival depended on the slave cultivation of American agricultural products, especially cotton, saw their "peculiar institution" and cherished way of life threatened by increasing pressure for abolition.

The choice appeared to be clear. In order for the United States to be preserved as a unified system as the Founding Fathers envisioned, the contradiction of slavery would have to be removed. The alternative would be to invoke "the judgment of heaven" on the new country, as George Mason predicted. This meant that the country would have to be either all slave, or all free, just as Abraham Lincoln declared in his "House Divided" speech. There could not, at one and the same time, be a middle ground where natural rights to life, liberty, or property were both protected and denied.

During the period between the adoption of the Constitution and the Civil War, however, the operation of the federal government had been minimal, almost to the point of actual neglect. As de Tocqueville noted in the 1830s,

"In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centers in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate." (Alexis de Tocqueville, "The Principle of Sovereignty of the People in America," Democracy in America, I.iv.)

This principle of subsidiarity came to be interpreted as proving that "states' rights" were superior over those of the federal government. The correct view is that each level of government, as well as the individual citizens, has its proper sphere of action within a uniform system of law.

During the Civil War, however, the thrust became to deemphasize the powers of the states and emphasize those of the federal government. This was not an improvement, as it, in effect, only substituted one error for another, with individual natural rights suffering in consequence. The strengthening of the executive at the expense of the legislative was largely through the efforts of a man with the unwieldy name of Oliver Hazard Perry Throck Morton, the 14th governor of Indiana, who justified what amounted to continual usurpation of the powers of the Indiana legislature on the grounds that the country was in a state of emergency. Morton's efforts were so effective that they were taken as a model for the federal government.

Following the Civil War, there was an effort to restore individual rights, ostensibly for the newly freed slaves, but applying to everyone. It was not a question of states' rights versus those of the central government, or vice versa, but of each person's natural rights against the government, whether local, state, or federal, and centers of entrenched economic and political power. As Crosskey's analysis showed, the careful wording of the 14th Amendment was an attempt to clarify the principle of subsidiarity and the proper role of both the state and federal governments. As adopted, the relevant portion of the 14th Amendment reads,

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The careful wording was an effort to avoid the sort of linguistic and logical leaps applied by Justice Taney in rendering his opinion in Scott. Given his theory of constitutional law, Crosskey viewed the 14th Amendment (at least as far as § 1 was concerned) as somewhat redundant. The "privileges and immunities" protected by the Amendment were, according to Crosskey, already in the Constitution.

It was only the creative interpretations by justices like Taney, combined with decades of misinterpretation and the expedient actions taken during the war that made something like the 14th Amendment necessary. Even then the legal philosophy that was rapidly displacing Crosskey's evident natural law orientation would very quickly result in an effective negation of the 14th Amendment within five years of its adoption. As Crosskey explained, "It is a fact universally recognized that the opening clause of the foregoing section of the Fourteenth Amendment was intended to nullify, as a proposition of constitutional law, the central doctrine of the famous case of Dred Scott v. Sandford, decided by the Supreme Court, in 1857."

As Crosskey continued, "This fact was freely conceded by the Court itself, in the Slaughter-House Cases, of 1873, which were the first cases that came to it under this new amendment. The Court's decisions since that time have been consistent with this view; and to this limited extent, the true and intended meaning of the 14th Amendment has undoubtedly been observed by the Court."

That sounds all well and good, but Crosskey did not stop there. As he observed — and which constitutes the heart of the second volume of Politics and the Constitution — "The same, however, cannot be said of what that body [the Supreme Court] has done under the remaining parts of the above-quoted first section: the Equal Protection Clause, the Due Process Clause, and the clause — generally known as the Privileges and Immunities Clause of the amendment [emphasis in original] — which prohibits all state 'abridgments' of 'the privileges [and] immunities of citizens of the United States'."

This raises the question as to what, exactly, the framers meant by the 14th Amendment. It seems patently clear from a natural law orientation. That is, people have rights. Those rights emanate directly or immediately from the people (constitutionally, the ultimate or mediate source is irrelevant), and the federal government shall neither make nor enforce any law that takes away those rights. Crosskey declared that there is no other conceivable meaning that could be placed on the language in the 14th Amendment, or the 1st, 2nd, 4th, 15th, or 19th. Further, this simple fact was already in the Constitution in the Bill of Rights, and was (according to Crosskey) repeated yet again in the 10th Amendment.

Why, then, add an amendment that simply repeats what is already in the Constitution many times over? Evidently, for the same reason virtually every pope since Leo XIII has stressed the necessity for widespread direct ownership of the means of production. People either weren't listening, or were reinterpreting the Constitution to suit their own particular wants and needs — as Justice Taney had done for the somewhat dubious benefit of the South in the Dred Scott case, Congress had done in financing the Civil War, and the executive had done in strengthening its power at the expense of Congress. Further, Crosskey made the case that ambiguities had been forced on the understanding of the Constitution from the very beginning, starting with James Madison's "editorial ingenuity," in response to political expedience. We can speculate whether this was due to the perceived need to defend the institution of slavery at all costs, but (whatever the actual reason) Crosskey made an excellent case.

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