In the hot Philadelphia summer of 1787, our Founders met to create a “more perfect union.” Designed to make improvements upon the Articles of Confederation and their inability to meet threats both foreign and domestic, what evolved was the Constitution. In that year, it was a radical document that has withstood the test of time and the majority of our history. But, that fact has changed and this series of articles will attempt to illustrate where things started to go off the rails.
The Framers realized humans were imperfect creatures. They envisioned a self-governing republic where citizens would no longer be ruled. Elected representatives would make laws but the people were to be generally free to work out their own happiness in their families and communities. Because elected representatives were human and because humans are imperfect and selfish, they carefully crafted a set of checks and balances to prevent those elected from becoming not representatives of the people, but the masters of the people. They understood that elections do not guarantee liberty.
Did they succeed in their endeavors? It took a bloody Civil War and three amendments to correct imperfections in the original document. Even very soon after its adoption, it took a Bill of Rights to ensure that certain time-honored liberties and those denied under British colonial rule were guaranteed. In the case of slavery, compromises were made for the sake of the adoption of the document. Even later still, it took the Nineteenth Amendment to guarantee the right to vote for about half the United States population.
During the ratification debates, one Antifederalist predicted that if the Constitution were adopted, the republican government would exist in appearance only. They used Rome as an example. In Rome, it declined amid great malice and violence, but it took a century before the decline began in this country. There was no violence here. There was a softer, more malignant process at work. The very tools the Constitution created- the judiciary, the legislative and the executive branches- are all part of the problem.
Today, half of us (conservatives) believe we live under the Constitution as written with its guarantees of self-reliance and liberty. The other half believes the Constitution is a “living document” that allows the Supreme Court and the judiciary to sit, in effect, as a perpetual Constitutional convention. It allows allegedly expert administrative agencies to make its own rules (a legislature), enforce those rules (the executive), and judge and punish infractions of those rules (a judiciary).
To the conservatives, judicial activism is, rightfully, a form of soft tyranny (or hard tyranny in the case of abortion). To the liberal, Ivy League jurists and so-called experts are the newly-created “enlightened” leading us to a more progressive liberal democracy guided by vague principles of social justice that favor the victim group du jour. In effect, we have a Freedom Party and a Fairness Party. In the latter case, unelected bureaucrats and judges decide what is “fair.”
If the Framers intended a constitution that “evolved” through judicial rulings, they could have copied the British Constitution that governed the colonies, now states, for 150 years. But the Constitution as written did no such thing. Those ratifying the Constitution realized that the words of the document do not change over time and the Preamble states the purpose of those words, most notably, “…to secure the Blessings of Liberty…”
The Framers failed to fully realize that ideal in the case of slavery. However, the Framers also realized they did not create a wholly perfect document. But they also created a process for perfecting the document- amendments. Thus, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified after the Civil War. Thus, the Nineteenth Amendment was ratified.
Unfortunately, in many other areas, we have fallen away from the ideal envisioned by the Framers. Even more unfortunate, we have seen a judiciary reluctant to correct the wrongs that deviate from the ideals. One of the greatest impediments to that correction process is the judicial concept of stare decisis or the belief that judges are bound by precedent. A Supreme Court ruling clearly applies to the lower courts, but the Supreme Court has a duty to show fidelity to the Constitution only. They are not bound by the imperfect philosophy of stare decisis.
Yet in law schools and courtrooms throughout the country, the concept is treated as sacrosanct. To negate “settled law” is considered “radical.” At one time, Plessy vs. Ferguson was “settled law.” At one time, Justice John Marshall Harlan’s lone dissent, in that case, would have been considered “radical.” And what did that dissent assert? He said, “Our Constitution is color-blind and neither knows nor tolerates classes among citizens…the law regards man as man.” That should have been the end of the discussion.
The first act of subversion against the Constitution occurred in 1873. The Fourteenth Amendment had recently been ratified. That Amendment decreed that anyone born in the United States or naturalized were citizens of the United States and of the state in which they resided. As such, no state or the federal government could abridge the privileges and immunities of a citizen thus defined. These are perfectly clear words and are no mistake as the drafters of the Amendment noted and as the debate proved. Simply, the personal rights afforded under the first eight amendments were imposed upon the states.
But the words became obfuscated once the Supreme Court got its first test of the 14th Amendment in the Slaughter-House Cases. The Court in 1873 drew a distinction between the privileges and immunities conferred by state citizenship and those conferred by national citizenship. For example, the latter conferred a right to travel on interstate waterways. All the rights having to do with life, liberty, and the pursuit of happiness, the Court ruled, attach to state citizenship, not national citizenship and are thus not protected by the Fourteenth Amendment.
Ironically, the day before that decision was announced, black citizens of Louisiana occupied the courthouse in Colfax with the aim of protecting Republican victories in a contentious election. A racist, an anti-black group called the White Liners who were akin to the KKK amassed in the woods forcing more blacks to seek the safety of the courthouse. The White Liners set the courthouse on fire while shooting those fleeing the flames. That night, they summarily shot and killed all the remaining blacks.
Louisiana law enforcement refused to prosecute any of the White Liners. Instead, the federal government intervened and sought prosecution against three men since it was a federal crime to conspire to deprive someone of the privileges and immunities afforded under national citizenship. The convictions reached the Supreme Court in 1876 when they were overturned in the Cruickshank decision. Using the Slaughter-House Cases as precedent and relying on stare decisis, they ruled that the protections afforded under the Bill of Rights are not “privileges and immunities” conferred by national citizenship. Further, the Bill of Rights only forbids Congress from abridging them. In this particular case, the murderers were individuals and the Fourteenth Amendment only applies to states. That was effectively the end of the Privileges and Immunities Clause in the Fourteenth Amendment. That, more importantly, was stare decisis at work.
But the Supreme Court is good at sleight of legal hand and in time worked around the wrongs of these two cases. Unfortunately, their self-correction was also disastrous. Later, they ruled that the Fourteenth Amendment forbids states from taking a citizen’s life, liberty, or property without “due process of law.” They asserted that some liberties are so basic that no state can invade them. Out of whole cloth, they created a new legal doctrine they dubbed “substantive due process.”
Worse yet, the substantive due process allows unelected judges to conjure up imaginary rights out of thin air. They become, in effect, a legislature. The Supreme Court has no hesitation overturning laws enacted by Congress and signed by the President, yet they have this reluctance to overturn their own previous erroneous rulings.
We can see the errors of the substantive due process doctrine today and the decision in McDonald vs. Chicago case involving handgun bans. In that decision, a victory for gun rights activists, the majority relied on this doctrine rather than the very clear wording of the Second Amendment. Instead of their reliance on doctrine the Court created a century previously, why not rely on the clear wording of an Amendment that is part of the Bill of Rights?
This deviation from clear and carefully-chosen wording of the Constitution is a black mark on Supreme Court jurisprudence. Worse, creating new legal doctrines to justify a decision when simply overruling a previous decision (remember: Cruickshank was a mere three years after the Slaughter-House Cases and hardly “settled law”) had the effect of placing too much-unintended power in the hands of the judiciary. At that point, they ceased to be interpreters of the Constitution and became a pseudo-legislature.
Tomorrow: The rise of the administrative state