JUDGING CRIMES

The Supreme Court's second-most influential civil rights decision attempted to fix some of the damage the Court inflicted on the nation with its most influential civil rights decision.  (See post 219.)  The triumph of Brown v. Board of Education wasn't that it ended segregation - when Martin Luther King was thrown in jail nine years later, it wasn't out of nostalgia - but that the Court finally acknowledged, albeit without accepting blame for, the evil it had wrought with Plessy v. Ferguson, the separate-but-equal case in which it forbade American courts from enforcing the 14th amendment's equal protection clause. 

For most of the post-Civil War period, the justices saw their task - and occasionally even articulated it (see post 252) - as reconstructing the legal culture in which they had been trained, restoring the pre-War status quo - in short, surrendering the Union victory.  (See post 244.)  With Plessy, after 30 years of sapping, they finally achieved their goal.  As of 1896, the only remaining trace of the Civil War's constitutional revolution was that slavery could no longer be legally enforced under that name.

But it would be wrong to think that the Supreme Court alone was responsible for the pendulum swinging as far as it did in the first half of the 20th century.  The words of a politician of the era who is today almost universally venerated for his progressive idealism clues us in to the warped world in which the Court worked its black (or, rather, anti-Black) magic.

During the Civil War, this idealistic historian wrote in his celebrated 1902 history of America, Northerners "had not noted how quiet, how unexcited, how faithful and steady at their accustomed tasks, how devoted in the service of their masters the great mass of the negro people had remained amidst the very storm and upheaval of war."  Consequently, Northerners wholly misunderstood the phenomenon of "contrabands of war" - that is, self-liberated slaves fleeing to the Union Army camps: "to feed them was but to increase their numbers, as the news of bread without work spread through the country-sides."

This well-known idealist wrote of the freed people during Reconstruction,

Their ignorance and credulity made them easy dupes.  A petty favor, a slender stipend, a trifling perquisite, a bit of poor land, a piece of money satisfied or silence them.  It was enough, for the rest, to play upon their passions.  They were easily taught to hate the men who had once held them in slavery, and to follow blindly the political party which had brought on the war of emancipation.

They had to be "taught to hate the men who had once held them in slavery" because that's not the kind of thing they could have learned on their own during the years of slavery, since "they had the easy faith, the simplicity, the idle hopes, the inexperience of children.  Their masterless, homeless freedom made them the more pitiable, the more dependent, because under slavery they had been shielded ... [They] had never learned independence or the rough buffets of freedom."

So what inevitably occurred as a result of Northern meddling in Southern affairs?

The white men of the South were aroused by the mere instinct of self-preservation to rid themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant negroes ...  There was no place of open action or of constitutional agitation, under the terms of reconstruction, for the men who were the real leaders of the southern communities.  Its restrictions shut white men of the older order out from the suffrage even.  They could act only by private combination, by private means, as a force outside the government, hostile to it, proscribed by it, of whom oppositions and bitter resistance was expected, and expected with defiance.  ...

They began to do by secret concert and association what they could not do in avowed parties.  Almost by accident a way was found to succeed which led insensibly farther and farther afield into the ways of violence and outlawry.  In May, 1866, a little group of young men in the Tennessee village of Pulaski, finding time hang heavy on their hands after the excitements of the field, so lately abandoned, formed a secret club for the mere pleasure of association, for private amusements, - for anything that might promise to break the monotony of the too quiet place, as their wits might work upon the matter, and one of their number suggested that they call themselves Kuklos, the Circle.  Secrecy and mystery were at the heart of the pranks they planned ...

It threw the negroes into a very ecstasy of panic to see these sheeted "Ku Klux" move near them in the shrouded night; and their comic fear stimulated the lads who excited it to many an extravagant prank and mummery.

But, this famously idealistic politician acknowledged, over time the ex-slaves' "comic fear" rather over-stimulated the Ku Klux Klan:

The objects of the mysterious brotherhood grew serious fast enough.  It passed from jest to earnest.  Men took hold of it who rejoiced to find in it a new instrument of political power: men half outlawed, denied the suffrage, without hope of justice in the courts, who meant to take this means to make their wills felt.

But lest you think this celebrated academic, one-time president of an Ivy League college, made excuses for the KKK based solely on antipathy to Black Americans, here's what he had to say about the Chinese:

The law which excluded Chinese immigrants [enacted in 1882] had been passed at the urgent solicitation of the men of the Pacific coast.  Chinese laborers had poured in there, first by hundreds, then by thousands, finally by hundreds of thousands, until the labor situation of the whole coast had become one almost of revolution.  Caucasian laborers could not compete with the Chinese, could not live upon a handful of rice and work for a pittance, and found themselves being steadily crowded out from occupation after occupation by the thrifty, skilful Orientals, who, with their yellow skin and strange, debasing habits of life, seemed to them hardly fellow men at all, but evil spirits, rather.

Oh, but that's not all.  He didn't just hate, despise and fear African-Americans and Asians.  Describing the America of 1890, this person didn't hold back about southern and eastern Europeans, either:

Immigrants poured steadily in as before, with an alteration of stock which students of affairs marked with uneasiness.  Throughout the century men of the sturdy stocks of the north of Europe had made up the main strain of foreign blood which was every year added to the vital working force of the country, or else men of the Latin-Gallic stocks of France and northern Italy; but now there came multitudes of men of the lowest class from the south of Italy and men of the meaner sort out of Hungary and Poland, men out of the ranks where there was neither skill nor energy nor any initiative of quick intelligence; and they came in numbers which increased from year to year, as if the countries of the south of Europe were disburdening themselves of the more sordid and hapless elements of their population.

All of these quotes are from A History of the American People by Woodrow Wilson, our near-great President.  He was a contemptible man, and his fluke election and squeaker re-election were national tragedies.  It's no defense to say he was a man of his time, not only because he did so much to make those times as they were, ensuring that indifference or outright hostility to minorities would be a distinguishing characteristic of the Progressive program (see post 197), but because he was so much more odious than most people of his era.

In 1916, seeking reelection against a Supreme Court justice, he didn't hesitate to play the race card, telling voters in East St. Louis that Republicans were wickedly "'colonizing' imported black voters in a fraudulent attempt to pad the electoral rolls", according to David M. Kennedy.  By absolutely no coincidence, East St. Louis was the site of horrific anti-Black violence the following year, with the first of the great "race riots" - pogroms, really - of the 1917-1923 era.

That was only part of Wilson's legacy, of course.  Another part was his introduction of racial segregation into the federal civil service.  Soon after Wilson was inaugurated, Black employees of the federal government

were grouped together on jobs by race, partitioned off from whites in rooms where the two races had previously worked together, assigned the least desirable jobs, and forced to use separate toilets and lunch tables, inferior work spaces, and unsanitary makeshift dining rooms.  In some cases African Americans were downgraded or dismissed/terminated from their positions.

That's from Nicholas Patler's Jim Crow and the Wilson Administration: Protesting Federal Segregation in the Early Twentieth Century, which documents how committed Wilson remained to racial discrimination as federal policy even in the face of organized resistance.   Black journalist William Monroe Trotter, who had naively supported Wilson in the 1912 campaign, confronted Wilson two years later in the White House.  Wilson replied: "Segregation is not humiliating, but a benefit," adding to the uppity editor: "Your manner offends me."

The disaster of the reactionary Supreme Court, topped by the catastrophe of the Wilson presidency, produced some very bad times in America.  But it's when the pendulum is at its farthest point that its potential energy is greatest, and this ponderous pendulum began its return movement soon after Wilson finally died.

Because the Supreme Court had done so much to produce the truly dreadful conditions in so many areas of the country, it had the power to contribute to making them less dreadful by repudiating its own prior mistakes.  Finally, a century after the Civil War amendments were added to the Constitution, the Court was ready to start permitting the country's courts to enforce them.

And while I don't for a moment wish to criticize the Court for joining the 1870s, I just wish it had done so in the nineteenth century.

The United States was founded on a contradiction: all men are created equal; our Constitution enshrines slavery.  (See post 239.)  The Civil War was an attempt to resolve that contradiction.  To this day that's not fully understood.  There are still books being written, and plenty of university lectures being given, showing that Lincoln "really" wasn't opposed to slavery, since he did nothing to abolish it before the Emancipation Proclamation, and that only applied in the Confederate states.

But when Lincoln became President he took this oath:

"I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

That meant he swore to protect and defend slavery.   If Lincoln can justly be charged with hypocrisy on the issue of slavery (real hypocrisy, as opposed to political trimming, or talking like a 19th-century man) it's because he took that oath.  His inauguration was the moment when he compromised with evil.

The Civil War was a massive federal intervention in the internal affairs of the states.  The Southern politicians with their constitutional theories - John Calhoun and Alexander Stephens poured a lot of energy into theorizing, and Jefferson Davis elaborated on their theories after the war - had a point: the pre-war Southern order was constitutional.  That was the problem. 

The Confederacy was, in a dark and (to this day) disturbing sense, a constitutional movement.  When modern Americans reject out of hand the pre-war Southerners' constitutional arguments, we engage in political denial.  The evil at the heart of pre-War Southern culture wasn't that it was based on bad constitutional doctrine.  We'd like our law to be moral, but that wish doesn't make law and morality coextensive.  There are still those who insist it was lawful for Cromwell to massacre the citizens of Drogheda, too, as if that were the point. 

In a constitutional sense, the North rather than the South was the rebellious party.  The North used overwhelming violence to smash the pre-war constitutional order.  After the war the Constitution was fundamentally rewritten to institutionalize the North's victory.  That was the meaning of the three Civil War Amendments.

Don't let their brevity fool you.  They fundamentally changed the American political structure.  The Bill of Rights, when originally drafted (Justice Scalia's historical fantasias aside - see post 238), restricted only the power of the central government.  The 14th amendment's privileges or immunities clause made it a restriction on state governments, too. 

The 15th amendment reads:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

It's easy for modern Americans to think of that as little more than pious boilerplate, like the want ads that assure you Company X is an equal opportunity employer and that University Y "encourages applications from women and persons of diverse ethnic backgrounds."  Who could be opposed to that?

But when you pause to remember what Martin Luther King was doing in Selma - nearly a century after the 15th amendment's ratification - you realize one reason why the 15th was the last of the Civil War amendments to achieve ratification.  

But there's another reason 19th-century American conservatives - even those relatively without racial prejudice, the solid Lincoln men - found it difficult to accept the 15th amendment.  That other reason is contained in the little phrase "by any State."   This, rather than the guarantee of voting rights itself, enshrined the Union victory.  It meant that the federal government could intervene in the operations of state government.  It was a threat to send Sherman down to Georgia again, if the readmitted states attempted to reimpose their pre-war political systems.

There really can't be much doubt that the pre-war Southern state governments faithfully reflected the wishes of a majority of their states' voters.  If "democracy" is defined as majority rule by registered voters, the seceding states were democracies.  And that means that the Union victory overthrew democratic governments to impose a form of political rule that - seemingly by definition - was other than democratic. 

One answer is to say that Lincoln was himself democratically elected, and that the  principle of majority rule must mean the aggregate majority prevails over each subsidiary majority.  Another answer is to say that the Southern states restricted the franchise so drastically - no women, no Blacks, no propertyless white trash - that they weren't true democracies, anyway.  The country club's membership committee might operate by majority vote, but that doesn't give the gentlemen in white cleated shoes the right to tell the rest of us how to live our lives (even if no one has broken the news to them yet).

A third answer is that democracy is a means for achieving a relatively just society, while slavery prevents that achievement, making its eradication a precondition to true democracy.  But the fourth and, I think, conclusive answer is simply that the South lost the war.  The Civil War, rather than the founding - rather than Marbury v. Madison - was the decisive event in America's constitutional history. 

That sounds jarring, but only because we - at least, the lawyers and judges among us - like to pretend that law is based on something other than force.  The real-world authority of judges is wholly dependent upon precisely those law enforcement officers they condescend to in their opinions - and an imperfectly-suppressed awareness of that dependency explains much of the condescension, I think.  People don't obey judges because the judges possess unassailable moral authority, but because they don't have any choice.  Moral authority is indeed a great and good thing, but moral authority backed by Kevlar-suited SWAT teams is even better. 

Judicial power consists of eliminating freedom of choice.  (I tell my paralegal students that the way to distinguish primary and secondary sources of the law is that primary sources can make you do things you don't want to do.)  The Union's military victory in the Civil War was an injunction on a massive scale.  (Talk about class actions!)  The Union eliminated the white Southerners' freedom of choice - which is what any effective law does to anybody subject to it.

The great tragedy that befell the United States in the second half of the 19th century was the Supreme Court.  The post-war  Court bent its energies to reconstituting the pre-war political order, the one familiar to the justices from their salad days at the bar.   It must be said in their defense that they didn't outright prohibit the enforcement of the 13th amendment, abolishing formal slavery, but perhaps only because no one litigated the issue all the way up.  (They did, however, rule that the amendment had no effect on pre-war contracts for the sale of slaves, since anything else would be a taking of slave property without just compensation.) 

But they drew the line at the 14th and 15th amendments.  American courts, the Supreme Court ruled, could not be permitted to enforce those.  Otherwise, the legal system would be fundamentally altered.  (See post 244.)  As Justice Field ossified, he came firmly to believe that the Civil War amendments altered the pre-War order only with regard to slavery.  For example, in denying the right of the federal government to coerce a Virginia official into permitting Blacks to serve on juries, Field wrote:

I cannot think I am mistaken in saying that a change so radical in the relation between the Federal and State authorities, as would justify legislation interfering with the independent action of the different departments of the State governments, in all matters over which the States retain jurisdiction, was never contemplated by the recent amendments. The people in adopting them did not suppose they were altering the fundamental theory of their dual system of governments.

His mode of argument, that the meaning of constitutional provisions is to be divined from the intent of the framers rather than from the meaning of the words on the page, and that individual Supreme Court justices can confidently determine the single intent that motivated millions of people, has, strangely enough, not yet been ridiculed into oblivion.  (See post 79.)

Working on their conviction that neither the Civil War nor the Civil War amendments altered the fundamental theory of the American system of government, Field and his fellows finally succeeded in surrendering to the Confederacy 31 years after Appomattox.   (See post 244.)

It was only two decades later that some of the justices - including that Union veteran Oliver Wendell Holmes - began to have second thoughts about the long surrender.

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.

 We know how burning the flag flips people out. Imagine if a nationally-known journalist were to get onstage during a July 4 celebration and set fire, Jimi-Hendrix-Monterey-Pop-Festival style, to a copy of the United States Constitution.

That's what William Lloyd Garrison did on July 4, 1854. It upset a lot of people at the time, but I bet it would upset even more people today.  Sixty-seven years after the Constitution was drafted, Americans could still see it as it was, as a document produced by men and accepted by other men because rejecting it wasn't a realistic option. It hadn't yet ascended to the quasi-religious status of "the miracle at Philadelphia."

Garrison, whose life is wonderfully told by Henry Mayer, called the Constitution "a covenant with death and agreement with hell." This wasn't mere abuse; his listeners would have caught the allusion to Isaiah 28:15-16. In the King James version that would have been most familiar to Garrison's audience, the verses read:

Because ye have said, We have made a covenant with death, and with hell are we at agreement; when the overflowing scourge shall pass through, it shall not come unto us: for we have made lies our refuge, and under falsehood have we hid ourselves: Therefore thus saith the Lord GOD, Behold, I lay in Zion for a foundation a stone, a tried stone, a precious corner [stone], a sure foundation: he that believeth shall not make haste.

(Here are several modern translations, with commentary, which make the verses' - and therefore Garrison's - meaning a little clearer.)

I don't think anyone can seriously dispute that the Constitution was a compromise with evil. Not metaphorical evil, or the lesser of two evils, but the cloven-footed thing itself. When Garrison burned his copy, it gave off the smell of brimstone.

The whole idea of a Constitution in a democratic society is that the people, through democratic means, agree to place certain subjects beyond the reach of democratic control. The demos divests itself of some of its sovereignty. And one of the subjects that the Constitution placed beyond democratic control was slavery. 

From the moment the Constitution was ratified, it didn't matter if a majority of Americans, even an overwhelming majority, disapproved of slavery, or considered it a positive evil. In their supposedly democratic new state, they had no power to do anything about it.

It is telling, and a bit pathetic, that the drafters of the Constitution couldn't even bring themselves to use the word "slavery." Instead, they provided that “[t]he migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808”.

By “such people,” the drafters meant thousands of kidnapped Africans crammed into coffin ships and brought across the ocean to be brutalized. The modern equivalent, perhaps, would be UFOs beaming us up from the street and taking us to Andromeda to be worked to death growing strange crops. That was the miracle at Philadelphia.

Nor could Americans choose for themselves whether to offer shelter to Black people in search of the land of the free. The Constitution prohibited Americans from exercising their own moral judgment about that: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

That meant that every sheriff in the nation was constitutionally required to be a slave driver, and the taxes of every citizen were used to prevent the ideals expressed in the Declaration of Independence from being realized.

The Constitution awarded slaveowners additional seats in Congress in proportion to their inequity. The "three-fifths clause" gave additional seats in Congress based on each state's slave population. The slaves themselves could not vote, and of course the people who were allowed to vote didn't represent the slaves' interests.  Apportioning congressional seats based on the number of slaves meant that, as far as the House of Representatives was concerned, the votes of white Southern males counted for more than the votes of white Northerners.  

Garrison wasn't alone in recognizing that the Constitution was, at best, an ignoble compromise. Abraham Lincoln explained it clearly just four years after Garrison's incendiary act.  In a Chicago speech he compared the Declaration of Independence to the Constitution:

I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a negro, why not another say it does not mean some other man? If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out! Who is so bold as to do it! [Voices—"me" "no one," &c.] If it is not true let us tear it out! [cries of "no, no,"] let us stick to it then, [cheers] let us stand firmly by it then. [Applause.]

It may be argued that there are certain conditions that make necessities and impose them upon us, and to the extent that a necessity is imposed upon a man he must submit to it. I think that was the condition in which we found ourselves when we established this government. We had slavery among us, we could not get our constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more, and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties.

At the time Constitution was drafted and ratified, Americans understood that their new nation would have a short lifespan if the 13 colonies didn't bind together. Thirteen separate countries would have been easy pickings for any European power. Only by joining together in a union could they hope to maintain their independence.

That was obvious to everyone concerned, and especially to the southern slaveowners, who in effect held the future of the United States ransom to their own short-term economic self-interest. Give us slavery, they said, or you don't get your union. So the people who declared themselves independent on the basis of the self-evident truth that all men are created equal gave them slavery.

America's founding contradiction was memorably captured by Samuel Johnson in 1775 when he asked: "how is it that we hear the loudest yelps for liberty among the drivers of negroes?" That contradiction was embodied, not resolved, in our Constitution.  The Constitution was history's true Faustian bargain. 

Lincoln coined that phrase “charter of our liberties” to refer to the Declaration of Independence. Justices of the modern Supreme Court perverted the phrase's meaning into its opposite when they assigned that title to the Constitution instead. A document that enshrined slavery a charter of liberties!

Were the justices not thinking about the meaning of the words they used? Or did they cynically see how extraordinarily useful it would be – to them – to encourage that ignorant pseudo-patriotism?

America has never gotten over its founding contradiction.  The many ways in which it continues to determine our criminal law will be the subject of future posts.