Replay in light of recent Supreme Court chicanery

Lightly reworked version of something I posted here back in March.

In the wake of the radical 6-3 McConnell/Koch/Trump Supreme Court’s recent raft of inconsistent, arbitrary but always partisan, right-wing Christian rulings, I came across this post I wrote a few months back, about exactly how, after the Civil War, the war to preserve the Union (the war of Northern Aggression, if you believe the South will rise again), a “conservative” Supreme Court overruled Congress’s best attempts to promulgate a new, post-war Bill of Rights, applying the rights of citizenship to everyone born in the USA, or naturalized.  This updated Bill of Rights would apply to each state, as the original one applied to the federal government.   

The First Amendment, forbidding the government from establishing a state religion, for example, would apply to state governments as well as to the federal government.  Any right you had as a federal citizen must be respected by every state, as a baseline for your rights.   That was the clear intent of the Fourteenth Amendment, and the framers of the Fourteenth Amendment, who were all still alive, could have testified to their exact intent.  After coming up with two distinct baskets of fundamental rights, the Supreme Court stepped in to limit the scope of federal citizenship to four rights, including the right to freely migrate from state to state. The rest, they ruled 5-4, was totally up to the states.  That was the law for almost a century.  

When we talk about the present, armed men, aggrieved, demanding their sacred Second Amendment right to carry their guns wherever they choose, in the name of freedom, we are also talking about any number of epochs in American and world history.   After such men seceded from their country and went to war to enforce their version of freedom — our state gets the final word on whether we can hold slaves or not and what we are allowed to do to them — they were damned if they were going to let some federal government they had already seceded from tell them what to do.   

After the Civil War it was up to Congress, the white supremacist President and, most especially, the Supreme Court, to decide how things would be settled for former slaves (and everyone else deprived of guaranteed constitutional rights by a state) for the next century.  It wasn’t long after the Civil Rights Act was passed, and to enforce it, the XIII, XIV and XV Amendments were made part of the Constitution, that the Supreme Court settled matters by putting the key to enforcement of all three, the XIVth Amendment (which led to the creation of the Department of Justice), into an almost century long judicially-induced coma.

A few years after the Civil War the rest of the rapidly expanding, war-ravaged nation, in the grips of an economic crisis, soon lost any interest in protecting the rights of newly equal citizen Negroes, whose day as the “special favorites of the Law,” in the words of the Supreme Court (in a case ruling on the Civil Rights Act), was fittingly at an end.  It was decreed that freed slaves must simply get the same rights all poor, powerless white citizens enjoy, (well, not quite that many rights). 

As a result of the 5-4 Slaughterhouse decision, an even uglier one in U.S. v. Cruikshank, and a couple of others, the protections of the XIV (as well as XIII and XV) were effectively nullified.   Blacks, and anyone else whose new XIVth Amendment rights were violated, were barred from the federal courts for more than ninety years pursuant to Slaughterhouse and Cruikshank.  Corporations, ironically, were the main beneficiaries of the XIVth Amendment until the late 20th century when individuals were finally able to use it for its intended protections.  States were, until 1964, deemed the sole enforcers of criminal violations of civil rights for almost a century.  A century of unpunished lynchings in most states.

The Slaughterhouse cases were initiated by white butchers who the court went out of its way to point out were not the intended beneficiaries of the lofty and complex XIV Amendment, the freed slaves were.   The court then took pains to set out, in a judicially perverse manner, exactly how limited the rights of federal citizenship guaranteed in the Amendment really were, the so called “intent of the framers” (most of whom were still around) be damned.   As often in supremely biased Supreme Court split decisions, the dissent had the better of the argument and now appears prescient.   

But the unappealable 5-4 majority ruled and that was the law of the land for a century – under a tortured interpretation of the Constitution and amendments designed to expand equality (one day even women would become constitutionally almost equal) the doors of the federal court were closed to XIV Amenmendment cases, unless the plaintiff was a corporation.   The 5-4 decision in Slaughterhouse was as good as, and even more binding than, the historic 9-0 decision in Brown v. Board of Education almost a century later.

The Slaughterhouse court went out of its way to hold that an American’s federal rights were extremely limited, the right to use ports, to travel freely from state to state, to be protected from piracy on the high seas and the right to use navigable interstate waterways. The rest, left completely up to the states. Not what the framers of the Fourteenth Amendment had intended, granted, but good enough for a one vote majority to make unappealable law for almost a hundred years.

Justice Stephen J. Field, writing for the three other dissenters, offered a well-reasoned, far-sighted defense of the principles of liberty guaranteed by our laws.  Fields pointed out the obvious “intent of the framers” of the amendment:

This legislation was supported upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary [83 U.S. 36, 92] servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom.

After referring to several statutes passed in some of the Southern States, discriminating between the freedmen and white citizens, and after citing the definition of civil liberty given by Blackstone, the Senator said: ‘I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.’


In Corfield v. Coryell, Mr. Justice Washington said he had ‘no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;’ and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be ‘all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.’

This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.

However, 5-4 it was, and for almost a century the privileges and immunities of citizenship, equal protection of the law, and the guarantee of due process the XIVth Amendment was designed to protect, were limited mostly to corporations. The Cruikshank case, which was decided before the Slaughterhouse cases, put a final deadly nail into the coffin of the right of freed Blacks to be protected from terrorism, making it explicit that, in spite of federal civil rights laws and the new Department of Justice to enforce those laws, only the states could prosecute murders within their borders.  

Cruikshank led a large white mob of Confederate veterans, on horseback with at least one cannon, that overwhelmed a group of Black Union veterans guarding the county seat in Colfax, Louisiana. The day before Easter Sunday, no less. The vastly outnumbered Blacks were defending their recent electoral victory, the whites, intent on overturning the election results, slaughtered countless Blacks, many of whom had already surrendered.  Women and children were killed next. Dozens of corpses were left festering on Easter Sunday. As enraged mobs will do, when engaging in “legitimate political discourse”.  No white man would go to prison for this slaughter, under the law of Louisiana or any other law.

The final word on the lasting meaning of the Civil War, three constitutional amendments and numerous laws guaranteeing equality before the law, went to a narrow majority of one vote on the Supreme Court.  C’est la vie, one supposes.     History shows that if we make strong laws to ban the study of historical subjects that are shameful, we don’t need to feel shame about the past, or worry about its loud reverberations in our own time. 

So simple!         

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