JUDGING CRIMES

Post 239 discussed America's founding contradiction.  A country that gained its independence by declaring that all men were self-evidently created equal turned around and ratified a Constitution that - under cover of cowardly euphemisms - enshrined slavery.   As Lincoln observed, there were reasons for accepting the compromise, but they were about as idealistic as paying off a bookie. 

The Civil War was a massive re-ordering of the constitutional system.  Talk about federal interference with state affairs!  The changed status quo was institutionalized in the "Civil War amendments" - the 13th (abolishing slavery), the 15th (guaranteeing the right to vote) and the 14th, an omnibus amendment that took care of unfinished Civil War business (the Union takes no responsibility for Confederate war debts, for instance, and congressional seats shall be apportioned according to the number of voters). 

The 14th amendment also contains this sentence:

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 to deny to any person within its jurisdiction the equal protection of the laws.

When people today talk about "the 14th amendment," this sentence is what they're talking about.  Two of the key phrases were ancient.  As early as 1354 Parliament passed an act stating that "no Man of what Estate or Condition that he be" shall be imprisoned, dispossessed or executed "without being brought in Answer by due Process of the Law".

The phrase "privileges and immunities" isn't quite so ancient, but it's already suggested by the 1606 Charter of Virginia, in which King James I (of England) & VI (of Scotland), affixing his seal during Shakespeare's lifetime,  promised that children born in the colonies "shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions."

(Of course, this is the same King James who tore out the page of Parliament's Journals asserting a parliamentary privilege to speak freely.)

The concept of royal "letters of privilege" goes back even further.   Christopher Columbus received one such from Ferdinand and Isabella, and Hungarian monarchs issued them to Saxons displaced by the Normans.

The body of the Constitution also includes a "privileges and immunities" clause, which was early understood to mean that a citizen of New York, say, who happened to be visiting in Philadelphia was entitled to the same protection of the laws as any citizen of Pennsylvania.   When the people adopted the "privileges or immunities" clause of the 14th amendment, they meant that the states had no power to deprive citizens of rights guaranteed by the federal Constitution.  Such as, for example, those found in the Bill of Rights.

The great - the tragic - flaw of our system of government, however, is that it entrusts the enforcement of rights to the courts.  In 1873, less than five years after the 14th amendment was ratified, the Supreme Court declared that the privileges or immunities clause had essentially no meaning whatsoever.  There is a back-story to the decision full of irony and a certain political pathos, brilliantly told by Michael A. Ross.

But the most important background facts are simply told: at the time of the decision, the youngest Supreme Court justice was 56.  None of the nine had fought in the war.  All had learned their law in the age of Calhoun and nullification, when the subject "United States" still required a plural verb. 

And all, of course, were common lawyers, leading lights of an exceedingly conservative profession.  (The law is such a conservative profession that most lawyers, I think, don't even realize it, the way we don't notice the color of air - until, say, we visit Phoenix.)  The post-war justices' respect for precedent - for standing decided - led them to rely on pre-war precedents, since there were so few of the other type. 

Pre-war precedents, naturally, reflected the pre-war constitutional order.  In 1872, Dred Scott - the ultimate expression of the founding contradiction - was still good law within the four walls of the Supreme Court chamber because the Court had not overruled it.  Six hundred thousand dead soldiers didn't change that.

The underlying reason for the Court's refusal to give effect to the 14th amendment's privilege or immunities clause was that the justices resisted change.  They had dedicated their professional lives to the pre-war American legal system, they had reached their positions of imminence because they believed whole-heartedly in that system, and they worked to restore it - by forbidding American courts from enforcing the 14th amendment's privileges or immunities clause.  They could accept the 13th amendment, but nothing past that.

With 1896's Plessy v. Ferguson, which forbade American courts from enforcing the 14th amendment's equal protection clause, the Supreme Court made the Union's surrender official.  The South had, at long last, won the Civil War.