How Courts Came to Control Our Rights
In Chapter 1 of How Rights Went Wrong, Jamal Greene goes through the actual history of the origin of the Bill of Rights. I think most of us were taught that the Bill of Rights is a list of rights that go with being US citizens. Courts are the arbiters of the meaning of the Constitution, so they protect the minority from overreaching by the majority. That’s not what Greene sees.
The Constitution doesn’t give individuals very many rights. It bars ex post facto laws, and bills of attainder, gives people a right to trial by jury, and a few other rights, not much compared to the rights people thought they have.
The Anti-Federalists objected to the Constitution in large part because of the absence of a bill of rights. They claimed to fear that the central government would infringe on the power of the states just like the British kings had done. The people living at that time were very interested in their individual rights, but according to Greene:
… within Founding-era political thought, the institutions best suited to reconcile the competing demands of rights bearers were not courts but rather state and local political bodies: juries, churches, families, and legislatures. Democracy was not a tool of majoritarian oppression but rather was the means through which a community prevented oppression from the outside. P. 7.
The key phrase here is “reconcile the competing demands of rights bearers.” Greene thinks the goal of the Bill of Rights was to center the balancing of rights claims at the local and state levels, and to keep it out of the hands of the federal government.
This theory was consistent with the political power structures of that era, with local and state governments having the dominant role. Many of the states were run by the rich: slavers, merchants and bankers in varying proportions in each of the states. None of these people were willing to cede much power to the federal government not least because it might interfere with their own power and their own profits. The Federalists held plenty of power in their own states, and had no reason not to agree.
Side note: I may be reading some of this into Greene’s words. He doesn’t discuss power and wealth, but I think this is a fair reading of his words:
The backers of the Bill of Rights were not interested in protecting minorities from majority tyranny. They were interested in protecting their own governing majorities from others who might have different interests or agendas. P. 13
The purpose of the Bill of Rights was not to protect individuals from the tyranny of the majority. It was to protect state and local governments from interference and control by the federal government. Most of the provisions of the Bill of Rights in their own words apply to the powers of Congress: “Congress shall make no law”. Only a few of them seem to give rights to individuals, or protect individuals from the power of the States to regulate as they see fit. In fact, as we will see, most states and the federal government enacted laws that seem to violate the express provisions of the Bill of Rights.
Greene says the theory that state and local governments, juries, and private institutions like churches and schools were best positioned to deal with rights claims was destroyed in the Civil War.
Greene goes through each of the first 10 Amendments in the second half of Chapter 1. I’ll look at some of those in the next post.
Discussion
1. So how did the Supreme Court gain control over our rights? SCOTUS claimed the ultimate power to interpret the Constitution. In Dred Scott, it aggressively asserted that it was in charge of the slavery question, no matter what Congress and the people wanted. After the Civil War, instead of refashioning the Supreme Court and insisting on their proper role in control of our rights, Congress and the Executive gave the judiciary a large role in the enforcement of the laws and our rights, including in several Civil Rights laws.
From the beginning, SCOTUS resisted the force of the Reconstruction Amendments. In The Slaughterhouse Cases, there is a nice statement of the goal of the !3th, 14th, and 15th Amendments. Then the Court says it can’t possibly really mean much by that, so those old racists went on to say that the rights of Black people, women and Native Americans were still controlled by the states. In a series of cases SCOTUS restricted the power of Congress to carry out the intent of those amendments, and repurposed them to protect corporations.
After a few decades SCOTUS decided that the Due Process Clause of the 14th Amendment applied against the states, effectively creating a whole set of national rights for individuals which it claimed to find in the Bill of Rights. It claims that the rights it finds there are absolute, and cannot be touched by our government. Congress and the Presidents acquiesced. That’s how we find ourselves under the thumb of a rogue SCOTUS.
2. The current conservative majority agrees with those old courts. They restrict congressional and executive powers. They put crucial matters like women’s health and welfare in the hands of states. They approves of state actions to gerrymander and suppress voters to make sure minorities in those states can dominate the majority. Every disgusting decision the six right-wingers hand down would fit fine with their Reconstruction-era predecessors. Every policy choice they make would satisfy the demands of the Gilded Age Plutocrats.
The founders were rich white men infused with the biases of their day. There were slavers and people willing to compromise with slavers for their own reasons. They agreed that the lives of enslaved people and Native Americans didn’t matter, and that women weren’t really people. Those views informed their drafting of our Constitution and Bill of Rights. Why should they control ours? But Roberts and his majority are trapping us in the amber of those ignorant prejudices.
It’s true: this SCOTUS publishes a lot of opinions worthy only to use as TP!
; )
I’ve done a little light editing for Ed — you might want to read this again. :-)
Thank you, Rayne, for everything you do to keep this site running smoothly. And thank you, Ed, for another great piece.
I know I’ve mentioned this before, but the “right to privacy” is not in the Constitution or BoR. The SC has developed a “right” to privacy in rulings over time, but I am sure this SC can find many ways to undo precedent, as we have seen. “The Right to Privacy,”(Kennedy/Alderman) is a good read on this, I think. It’s not a new book, maybe there are others since.
I’ll take issue with that premise. There’s no “development” by SCOTUS of the right to privacy; it’s the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” and then some as a Ninth Amendment unenumerated right to personal autonomy and agency. One can’t secure their persons, houses, papers, and effects without the autonomy and agency to do so.
SCOTUS has merely been forced to acknowledge both the enumerated and unenumerated right over time, and now the Roberts rightwing faction wants to deny that right.
The SCOTUS right-wingers refuse to accept analysis other than their fake version of originalism and their ridiculous textualism, which was on full display in the bump stock case.
Both of these methods of analysis are easily manipulated by these intellectually dishonest hacks, as we saw in the ridiculous history of abortion control in Dobbs, and the history of the Second Amendment in Bruen.
The idea that there is one true method of interpreting the Constitution is just as stupid as the idea that there is one and only one meaning to the Constitution valid for all times and in all cases.
Maybe a nod to Louis Brandeis is in order (although he may have had his own biased shortcomings as reflected in the times he lived.) It would be fun if someone could start a Mugwump Trump campaign. It’s my understanding that both Brandeis and Mark Twain were Mugwumps.
Good piece, Ed—thanks!
Small quibble: doesn’t the Constitution recognize and protect our rights rather than “give” them? At least, that’s what it’s supposed to do.
I’m still working for the rights of animals to be recognized, but now I also have to fear the rogue Supreme Court stomping all over ours.
Where do rights come from if not from agreements among people? I don’t believe in any gods, so don’t believe that they’re god-given. Rights are a human construct.
Are you talking about natural rights? If so, it seems to me that natural rights are only the rights that one believes that all people should have, and people have different views about what those rights should be, as well as when they attach (e.g., at birth, at conception).
Yeah, the whole “God-given” bit is a lot to swallow.
As you say, rights are a human construct. That said, whether our government recognizes, gives, or grants, or them, the Supreme Court is doing a piss-poor job of protecting them. Apparently, they’re also for sale.
I was taught the Constitution is a set of instructions on how the three branches of government are to operate, and a set of prohibitions on what that government may do.
The preamble’s text sets out the what and why of the Constitution:
Doesn’t say anything about bestowing rights to the people. The other foundational document is the Declaration of Independence which refers to creator-endowed rights — rights not bestowed by documents.
Thanks, Rayne. So rights are a human construct that may be codified via documents, and the Declaration of Independence is where the “god-given” verbiage resides.
I was conflating the two documents. After re-reading, the beginning of Ed’s piece was contrasting the D of I and Constitution regarding mention of rights.
Here’s my take on the origins of rights as of now. I continue to read and think about this.
https://www.emptywheel.net/2024/03/27/citizenship/
Earlier posts in that series help explain why I think this.
Thx, Ed!
Re: “We can and do deduce the actual laws governing nature, even laws we don’t understand, like quantum theory and dark matter. In a similar way, we can deduce laws that will give us the best chance of flourishing,” I’d beware of analogizing scientific laws and jurisprudencial laws. Scientific laws capture facts, whereas jurisprudential laws depend in part on values (e.g., people may have different beliefs about what it means to flourish).
A relevant quote from Sotomayor’s dissent today in SEC v. Jarkesy:
A timely quote indeed. Jill Lepore wrote in her foreword to Greene’s book that the book “is a cautionary tale with a sober warning for judges and lawyers. “”Courts should be reminding litigants of what they have in common, not encouraging them to view their opponents in the worst possible light,” Greene writes. How Rights Went Wrong is an argument against judicial supremacy, in the interest of justice….He (Greene) wants to shake Americans loose from the fiction that the courts own the Constitution. It is, instead, ours.”
And a relevant quote from Kagan’s dissent today in Loper Bright Enterprises v. Raimondo: