What makes the Supreme Court's ritualistic abuse of the States so outrageous – beyond the folly of centralizing power in a single source – is the fact that the Fourteenth Amendment was not intended to create such a result. In the 1872 Slaughterhouse Cases, when the Supreme Court first had the opportunity to apply the Fourteenth Amendment to abolish an unpopular state law, the Court rightly refused to do so because it intuited the drastic step this would represent.
Sparking the controversy was a Louisiana law banning the practice of slaughtering in the city limits of New Orleans. At the stroke of a pen, an entire group of people lost their livelihoods. But the law also established a public corporation under whose auspices (and rules) the slaughterers could continue to practice their trade. Understandably upset, the slaughterers claimed that the law embodied a throwback to feudalism and that they had been transformed into serfs overnight. Making use of the three principal clauses of Section 1 of the new Fourteenth Amendment, the slaughterers challenged the law by arguing that Louisiana had violated their privileges and immunities; that Louisiana had deprived them of their liberty and property without due process of law; and that Louisiana had denied them equal protection of law. But the Supreme Court rejected this challenge, explaining how striking down a state law on these grounds would effectively invert the constitutional order and funnel inordinate power to the federal government:
Was it the purpose of the fourteenth amendment . . . to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? . . . [S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . . [T]hese consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; . . . the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character . . . .
The Court went on to explain that the Fourteenth Amendment had a very narrow goal: to protect the ex-slaves (African-Americans) in order to make sure that they were not deprived of their civil rights:
We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.
The Fourteenth Amendment was not designed for every Tom, Dick, and Harry who might be disgruntled about his State’s legislation. Instead of creating new rights, the Fourteenth Amendment extended pre-existing rights of citizenship to African-Americans, such as the right to move about freely; to earn a living of one’s choosing; to enter into contracts; to own property; to sue; and to engage in any of the lawful activities enjoyed by members of the white race.
There is never a shortage of citizens, black or white, who resent the machinations of their State’s legislature. If the Fourteenth Amendment gave such persons a weapon to disrupt their State’s political process by constantly resorting to federal intercession, it would (and did) destroy the federal nature of our system.
Many insist that the Fourteenth Amendment’s language cannot be limited to its historical context of protecting African-Americans, as done by the Supreme Court in the Slaughterhouse Cases of 1872. This argument fails for several reasons:
· First, judicial decisions rendered so soon after the enactment of the measure under review are entitled to deference. For example, the Supreme Court’s power of judicial review is not spelled out anywhere in the Constitution, yet John Marshall’s controversial 1803 opinion in Marbury v. Madison establishing judicial review is an article of faith in modern jurisprudence because the decision post-dated the Constitution’s adoption by a mere fifteen years. There is no discernible reason that the Supreme Court’s 1872 decision regarding an amendment only four years old should not receive equal respect.
· Second, the Supreme Court has displayed respect for the historical context of the Thirteenth Amendment, which abolishes “involuntary servitude” except upon conviction of a crime. The plain language of the Thirteenth Amendment would ban any number of practices such as the draft, jury duty, and compulsory education; however, the courts have persistently refused to apply the Thirteenth Amendment in such a broad manner, choosing instead to confine the amendment’s scope to its historical context of chattel slavery. If the Thirteenth Amendment is confined to its historical context, why is the Fourteenth Amendment not similarly confined?
· Third, the modern Court still relies on the Slaughterhouse Cases as a basis for refusing to enforce the “privileges or immunities” clause of Section 1 of the Fourteenth Amendment. It makes no sense to obey the Slaughterhouse Cases as to this single clause of Section 1 but not as to the other clauses, since the decision offered the same rationale for circumscribing the scope of all three clauses. This inconsistent, self-serving deference for precedent typifies much of the modern Court’s behavior.
· Fourth, the Fourteenth Amendment was never constitutionally approved. Southern States were deprived of their votes without their consent (specifically forbidden by Article V of the Constitution), despite the fact that they had already voted on the Thirteenth Amendment. Even the non-Southern States that did vote on the Fourteenth Amendment failed to reach the required three-fourths majority approval. Notwithstanding this absence of constitutional process, the federal government implemented the amendment anyway. In this sense, the Fourteenth Amendment truly epitomizes the Civil War’s results, for it finds its authority not in law, but in raw force.
· Last, and certainly not least, is that the madcap usurpations of state power indulged in by the Supreme Court during the twentieth century (illustrated in my upcoming posts) cheapen African-Americans’ rights as full citizens by equating them with the “rights” of persons such as pornographers, slanderers, and illegal aliens.
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