The recent decision by the United States Supreme Court that the Fourteenth Amendment guarantees citizenship to “every free-born person in this land” raises some interesting issues. First, of course, is the situation itself. The concept of an executive order that creates law or changes the interpretation of the U.S. Constitution is, at least in the opinion of this writer, intriguing.
From a natural law, “original intent” interpretation of the U.S. Constitution — natural law understood as being based on reason, not faith — the fact that the question was raised at all is somewhat baffling. That is because neither the Executive (the president and the Executive Branch) nor the Supreme Court (the Judicial Branch) have any powers that do not come under Congress; Congress is the governing body, not the President or the Court.
Interestingly, the Articles of Confederation provided for neither a separate executive nor a supreme court; the president of Congress was the head of state. That was unworkable and to keep power from being concentrated, the Constitution provided for an executive to carry out the orders of Congress and a supreme court to ensure laws were constitutional as passed and enforced. That’s because from an internal control perspective, it’s a bad idea to have the same individual or body both make and enforce the law, Congress has the power to rein in both the president and the Supreme Court . . . and if more people had economic power and thus political power, they might actually do so.
Anyway, the Executive is there to “execute” the laws made by Congress with the consent of the people within the constraints of the Constitution. The Supreme Court is there to ensure that the laws passed by Congress and the acts of the Executive are in conformity with that same Constitution.
That the Supreme Court would be ruling on a law decreed by the president without the consent of Congress unilaterally reinterpreting the Constitution is somewhat surreal. This is all the more bizarre in that the issue decided was the one that, in part, led to the Fourteenth Amendment in the first place, at least if one is familiar with the analysis in William Crosskey’s Politics and the Constitution in the History of the United States.
Or perhaps not so strange, after all. This is the same Court that overturned Roe v. Wade on the curious grounds the Constitution does not give the federal government authority over abortion. This effectively returned the power to regulate or ban the procedure to individual states. Yet Roe v. Wade was first “legislated” by the Court on the grounds that a fetus might be a human being, but “it” is not a person as that term is used in the Constitution.
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| Dred Scott |
Well . . . that depends on what you think the Constitution is. Is it a grant of rights from the State to the people, or — as declared in the Preamble to the Constitution — a grant of rights from the people to the State? If the latter — which is what the Constitution itself says — then “person” in the Constitution means all natural persons, i.e., human beings. If someone is a human being, then he or she (not it) is a natural person. End of story.
So, how could anyone say anything different? Because of the need to preserve and expand slavery, i.e., money. Back in 1857, a slave by the name of Dred Scott sued for his freedom on the grounds he had been taken to a free state and was therefore free. The Missouri Supreme Court ruled that Scott was free, and Sanford (misspelled “Sandford” in the official record) appealed to the United States Supreme Court.
Eventually the U.S. Supreme Court ruled that because Scott was not a citizen, he was not a person as that term is used in the Constitution. This changed the entire basis and philosophy of the Constitution from a grant of rights from the people to the State, to a grant of rights from the State to the people.
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| William Winslow Crosskey |
Fast forward to the post-Civil War period and the Fourteenth Amendment. As Crosskey noted, the Fourteenth Amendment was adopted in part to overturn Scott v. Sandford and affirm for all time that all human beings born in the United States were natural persons and thus entitled to all rights, including citizenship. That all human beings are automatically persons and have all natural rights was not to be questioned and was assumed. Explicitly stated was that all persons — meaning all human beings — are by right of birth automatically citizens of the United States.
Fast forward again to 1873 and the Slaughterhouse Cases. It all had to do with the fact that the butchers of New Orleans were being forced to use a state-established monopoly slaughterhouse owned by a friend of the carpetbagger governor. The butchers — mostly former Confederate soldiers — sued on the grounds their civil rights of private property and freedom of association were being violated. It went up to the U.S. Supreme Court.
Weirdly, the Supreme Court ruled 5-4 that the Louisiana law granting a slaughterhouse monopoly in New Orleans did not violate the Thirteenth or Fourteenth Amendments! Following a war some consider fought — and lost — over the issue of “States Rights,” the Court found that the Fourteenth Amendment’s “Privileges or Immunities” clause only protected fundamental rights associated with federal citizenship, not state citizenship.
Even though the rights in question were clearly natural rights inherent in each human person protected in the Fourteenth Amendment, the Court’s decision was that rights come from the individual states, and therefore it was up to the individual states whether people have rights. The dissenting opinion — consistent with the view that federal rights trump states rights — was that the Fourteenth Amendment protected the butchers from the monopoly.
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| Stephen Field |
The Court’s decision in the Slaughterhouse Cases nullified the Fourteenth Amendment. This was also the decision in the overturning of Roe v. Wade — sidestepping the natural right/personality issues altogether and maintaining that natural rights come from the individual states not the federal government.
Twenty years after the Slaughterhouse decision, Justice Stephen Field had the courage to admit both sides were wrong. As he declared in his decision in another case, citing both the majority decision and his own, previous minority dissent in Slaughterhouse, natural rights do not come from either the federal government or those of the states, but are inherent in each human being/natural person.
Today’s Court is, believe it or not, consistent with Scott v. Sandford. The Court ruled that Trump could not deny birthright citizenship because it was a long-standing principle . . . not because it is a natural right recognized and guaranteed by the Constitution.
The bottom line? If rights come from the State (whether the federal government or those of the individual states), then there is no problem with the president creating laws or changing the Constitution by issuing executive orders, nor with the Supreme Court legislating in its decisions. Congress, which represents the people, is a meaningless institution.
Of course, if rights are inherent in the human person, as the Constitution itself declares, then Congress is still a meaningless institution . . . but only because the members allow it. To restore power to Congress, it is essential to restore power to people, and that means adopting the Economic Democracy Act.
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