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Thursday, January 26, 2012

Raw Judicial Power XIII: The Effect of the Slaughterhouse Cases

As we saw in the previous postings in this series, the Supreme Court's attacks on liberty and property in Scott v. Sandford (1857) and the Slaughterhouse Cases (1873), respectively, laid the foundation for an entirely new conception of government, at least in the United States. Common as the authoritarian State was at times in Europe (although not as common as many modern pundits believe), the United States had been founded on the assumption of the sovereignty of the human person as the basis of the social order; "We, the People," was not construed as a statement of collectivism, but of an assembly representing sovereign individuals coming together as political animals to form a particular State that best served their needs in a manner compatible with essential human nature.

By undermining the natural right of liberty (freedom of association/contract), the Dred Scott case reinforced the denial of basic human rights to a specific group. The group was not simply black slaves, but all people of Sub-Saharan African birth or descent. This made the determination of whether any group could be "persons" (that is, have rights) under the Constitution no longer a matter of natural right, and thus inhering in every human being, but a matter of political expedience. Previously slavery had been admitted as an expedient, an abrogation of natural liberty for the good of the State and the economic survival of the nation. Slavery was now under Scott considered the natural order, with liberty being conferred as expedient.

Liberty — and, by implication, all other natural rights — was now dependent on the needs of the State or the desires of whoever had power. The Scott decision even expanded the concept of "slave" — legally a condition of being without rights — from those held in bondage, to all members of a class, whether slave or free: black Africans and their descendants. Man was no longer by nature to be considered free, and thus a "person," but depended on the say-so of the State.

This was directly contrary to the conception of the State and its power in the western tradition that gave birth to the United States, and, lacking the act of social justice or a more realistic framework to understand economic and social development, forced the country into civil war. It must certainly be acknowledged that the new country had integrated a fundamental flaw into its constitution by admitting, even defending chattel slavery. Some of the Founding Fathers, notably George Mason of Gunston Hall, recognized this contradiction, and worked (albeit unsuccessfully) to remove it. As Abraham Lincoln reminded everyone decades later, a nation cannot endure half-slave and half-free.

We can make the same comment today about the Welfare State that is half-capitalism and half-socialism, but with even more force. There is, after all, the possibility of a nation enduring that is all slave, and certainly all free, but no nation can survive being either capitalist or socialist, regardless of the immense efforts to make either work over the past two centuries — an effort for which we are now paying the price, with the paradox of enormous personal wealth side-by-side with immense poverty and insurmountable debt, both public and private.

The fact is, in the Dred Scott case, the Supreme Court effectively set itself up as the supreme power in creation, with the power to re-define the natural law and thus the basis of society itself. This is directly contrary both to the clear intent of the Founders, as William Crosskey demonstrated, and to the whole conception of the State in the western tradition. As the solidarist Wilhelm Schwer explained,

"As in its nature, so also in its activity the state is subject to laws that are above it. Although it is the highest power on earth, yet it is incorporated in a moral order that binds and limits it. Consequently state power finds its principal and insurmountable barrier in natural and divine law. It is also limited through the existence and realm of activity that natural law grants to the individual, the family, and, to a certain extent, to the free associations." (Wilhelm Schwer, S.T.D., Catholic Social Theory. St. Louis, Missouri: B. Herder Book Co., 1940, 270-271.)

In other words, man is not made for the State. The State is made for man. The decision of the Supreme Court in Scott v. Sandford, however, undermined, if not completely eliminated reference to the natural law from the consideration of constitutional issues. It thereby sowed the seeds of confusion that not only led to the Civil War, but to the great conflict between capitalism and socialism that continues to this day, the focus on which completely obviates consideration of a viable and just third way, to say nothing of a workable solution to the debate over legalized abortion.

Assuming that there is a necessary conflict between natural rights and the ability of the State to confer benefits on selected groups at the expense of others leads to taking positions that are both inherently contradictory and directly at odds with common sense. As one allegedly Pro-Life economist asserted in an effort to justify easing up on efforts to end legalized abortion to secure socialist welfare and redistribution without, evidently, considering what he was saying, "We need to recognize that there are Ten Commandments, not one or two. Along with the Fifth Commandment (murder of the innocent) and the Sixth Commandment (against sodomy) there is also the Seventh, about stealing (depriving the working man of his just wages), and the Eighth, about lying (a devastating war based on lying)." (Dr. Rupert J. Ederer, Letter to The Wanderer, 12/07/2006.)

Thus, in a startling paradox, the Supreme Court's decision in Scott took a "socialist" view of the State to defend the agrarian capitalism of the American South, against the industrial and commercial capitalism of the North. Perhaps even more surprising is that the South, by and large, accepted the defense. This is another paradox mirrored in the 20th century when, to defend his absolute exercise of private property over the Ford Motor Company, Henry Ford destroyed the property rights of minority owners (Dodge v. Ford Motor Company, 1919). The 14th Amendment attempted to reverse this descent into legal, social and moral positivism — which, as Heinrich Rommen commented, leads eventually into complete moral relativism and, finally, nihilism — but was in turn nullified by the Supreme Court's decision in the Slaughterhouse Cases.

To pile paradox upon paradox — all derived, evidently, from the perceived necessity of using only previously accumulated savings to finance new capital formation — both capitalism and socialism would use the new conception of the role of the State to justify their respective positions. Impartial observers could thus legitimately claim to see no real difference between the two systems, except for the critical recognition of the right to private property in capitalism — a right that socialism simply rejects outright, and that capitalism renders impossible to exercise for most people.

Thus we can justly say that where socialism is completely in the wrong, being ideologically committed to rejecting the natural law, capitalism is almost completely in the wrong, and being right in one small area for the wrong reasons!

To explain, by rejecting the natural law outright, socialism attempts to use the power of the State to coerce desired, even necessary ends. This is by the simple — if completely unworkable — expedient of changing definitions of essential rights, especially private property, but ultimately liberty and life as well. The State thereby arrogates to itself the power of God by using the principles of charity instead of justice to achieve desired ends. This, as Leo XIII reminded us, is "a duty not of justice (save in extreme cases), but of Christian charity — a duty not enforced by human law. But the laws and judgments of men must yield place to the laws and judgments of Christ the true God, who in many ways urges on His followers the practice of almsgiving." (Rerum Novarum, § 22.)

Obviously, the State's desire to "play God" and redefine basic natural rights is not something that the Catholic Church, or any other religious body adhering to the Aristotelian ideas of ethics and politics, can excuse or admit. We cannot let our frustrations overcome us and use either our own bullying or the coercive power of the State to force ends, however desirable, on others, either individually or as a group. The end result is always to use the power gained in less acceptable ways, such as to eliminate entire populations of presumed undesirables, such as the Jews, or to permit abortion for individual expedience.

Thus, Pope Pius XI could declare, "If Socialism, like all errors, contains some truth (which, moreover, the Supreme Pontiffs have never denied), it is based nevertheless on a theory of human society peculiar to itself and irreconcilable with true Christianity. Religious socialism, Christian socialism, are contradictory terms; no one can be at the same time a good Catholic and a true socialist." (Quadragesimo Anno, § 120.) The same is equally true of Judaism and Islam, as well as every other ethical or religious system based on the natural law.

Given Karl Marx's definition of socialism, "the abolition of private property," we can understand the solidarist position on ownership and the fundamental importance of the correct understanding of private property and its widespread participation for a just social order: "[A]ll theories of property that deny the justification of private ownership or try to limit it to certain categories of goods, are erroneous. Also the soil, upon which human existence and society are based, can be the rightfully and legally protected property of the individual. This view should be maintained against agrarian communism and nationalization of land and socialization of housing, and against Rousseau, who wished that a superman would destroy all boundaries." (Schwer, op. cit., 318.)

This does not, however, admit the capitalist theory that the exercise of property is to be considered as absolute as the right to be an owner, inherent in every human being, or that the exercise of property, even limited by the needs of the common good, is to be confined to a small elite. Everyone has the absolute right to be an owner, but no one has the right to exercise his or her property absolutely. As Schwer explained, "Ownership is dominion. As master of his property the individual is subordinate to God, who never renounces and never can renounce His divine right of possession. Therefore no property is without obligations and responsibilities, no power over earthly goods is absolute and unlimited." (Ibid., 319-320.)

Every human being consequently has the right by nature to be an owner, and is therefore a natural person, which status cannot be taken away or redefined by the State, however powerful, or however plausible the reason. The State, nevertheless, has the task, in accordance with the wants and needs of its citizens or for legitimate political expedience, to define in what manner property may be exercised (usually in such a way as not to harm other individuals, groups, or the common good as a whole), and even, in some cases, what may be owned.

Nevertheless, this power that the State has to define the exercise of rights necessarily falls within strict limits; the power of the State is not absolute. The State's power to define the exercise of rights must never turn into re-definition, thereby abrogating rights instead of limiting them for the optimal benefit of individuals and the functioning of the common good. As Pius XII commented in his encyclical Evangelii Praecones (1951), quoting from his Christmas Message of 1942,

"The dignity of the human person then, speaking generally, requires as a natural foundation of life the right to the use of the goods of the earth. To this right corresponds the fundamental obligation to grant private ownership of property, if possible, to all. Positive legislation, regulating private ownership may change and more or less restrict its use. But if legislation is to play its part in the pacification of the community, it must see to it that the worker, who is or will be the father of a family, is not condemned to an economic dependence and servitude which is irreconcilable with his rights as a person.

"'Whether this servitude arises from the exploitation of private capital or from state absolutism, the result is the same. Indeed, under the pressure of a State which dominates all and controls the whole field of public and private life, even going into the realm of personal opinions, projects and beliefs, the loss of liberty is so great that still more serious consequences can follow, as experience proves.'" (§§ 52-53)

In other words, while the State has a heavy responsibility to define the exercise of natural rights properly, it may never use its power to define them improperly, that is, in such a way as to nullify the underlying natural right, resulting in the loss of liberty.

The problem was that, with the Slaughterhouse Cases, the Supreme Court — as it did in Scott v. Sandford — did not simply single out an individual or group for denial of fundamental rights. That was bad enough, especially in the climate of legal positivism growing up, for it set a precedent that individuals and even entire groups could be deprived of rights without just cause, despite the due process carried out.

The real issue in the Slaughterhouse Cases, and what outraged William Crosskey, was that the Supreme Court managed to change the entire meaning and even nature of the U.S. Constitution. The effect of the Slaughterhouse Cases was to convert the Constitution from a written document embodying a clear political philosophy based on the natural law and intended to protect the rights of the individual within a social setting, to a means of seizing absolute power through the denial by redefinition of the very rights the Court was established to protect.