SCOTUS Usurps Congressional Power
In the previous post in this series I described the thesis of Jamal Greene’s How Rights Went Wrong. He says the Bill of Rights was designed to protect the power of states against intrusion by the newly created federal government. Chapter 1 provides evidence to support his conclusion. My original plan was to go over the evidence he cites. Instead, I have a different bit of evidence.
SCOTUS didn’t mention the Bill of Rights when it listed the rights of citizens of the United States in any of the seminal cases construing the Reconstruction Amendments.
The issue of individual rights under the 14th Amendment came before SCOTUS in The Slaughterhouse Cases (1873), which I discussed here. The majority says that there is a difference between the rights which Americans have as citizens of the United States on one hand, and the rights they have as citizens of a state on the other.
The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.
Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.
But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property [sic] was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.
So what does the majority say are the rights of citizens of the United States? Very few, all of which are set out in the main body of the Constitution. The majority cites several older cases, and describes each of them as saying that the rights we claim come from our status as citizens of a state.
But neither the majority nor any of the older cases point to the Bill of Rights as a source of our rights as citizens of the US. None of them say that as citizens of the United States we have a right to a jury trial, or to freedom of speech, or any other right in the Bill of Rights.
In that section of The Slaughterhouse Cases the Court says the opposite. It says that the 14th Amendment does not change the principle that our rights come from our status as citizens of a state.
As we saw in earlier posts on the Second Founding, subsequent decisions of SCOTUS including United States v. Cruikshank and The Civil Rights Cases take the same position, and strike down all of the remedial legislation enacted by Congress under the 14th Amendment to give civil liberties to all citizens including Black people. These cases led us to Plessy v. Ferguson. All of them stand for the proposition that the Reconstruction Amendments do not grant rights to U.S. citizens, and that it is unconstitutional for Congress to grant such rights.
Congress gave up trying, and nothing happened to repair the damage of slavery or bring an end to Jim Crow segregation for 70 years.
Discussion
1. SCOTUS ignores America history and its own precedents when it puts itself in charge of our rights. It wasn’t that way in 1792, and it wasn’t that way in the late 1800s. That whole thing was invented in the 20th Century as SCOTUS began to say that the provisions of the Bill of Rights applied to individuals through the Due Process Clause. The concept of due process has a legal definition, and this isn’t it. We now call it “substantive due process,” and I have never understood how it’s supposed to work. Clarence Thomas agrees, calling substantive due process a “legal fiction” in MacDonald v. City of Chicago, Thomas J. concurring.
Here’s the Wikipedia entry on substantive due process. I’m not sure I agree with it completely, particularly the pre-Civil War material. Here’s another which seems closer to what I remember from law school.
2. So where do our rights come from? In early cases under the Reconstruction Amendments, the Court says that our rights come from the states. Rights might be found in a state constitution, or in statutes enacted by state legislatures. That means there is no agreed set of rights held by all of us. It means that there is nothing significant to the idea of being a citizen of the U.S. It also means that we have to go from state to state amending laws and constitutions to protect our liberty.
In this post, I pointed to Hannah Arendt’s view of rights. She thinks that rights only exist among people living in societies that are based on equality as citiznes. In those societies rights arise from a mutual guarantee. We give each other rights, and agree to enforcement mechanisms; and we benefit by having the same rights. That certainly doesn’t point to courts as the source of rights. It points to founding documents, and to the legislature. The courts and the executive branch serve only as enforcement mechanisms.
Each of the Reconstruction Amendments expressly empowers Congress to pass legislation to enforce them. This is a power given to Congress, not to SCOTUS. The idea that SCOTUS gets to overrule the exercise of expressly authorized power by Congress is not in the Constitution or any amendment.
I note in passing that the argument in Shelby County v. Holder, striking down a critical part of the Voting Rights Act, is the dignity of the states. That’s a term cited by John Roberts, a long-time foe of the Voting Rights Act and other legislation broadening democratic rights. Dignity is very important when it comes to states limiting the right to vote, says Roberts.
In Trump v. United States, the right-wingers granted the President almost total immunity in the exercise of official duties. It said in essence that citizens can’t hold Presidents accountable civilly or criminally, and it hamstrung any enforcement that might not have been foreclosed.
That’s how we should treat Congressional actions, including legislation and investigation related to its powers under the Constitution. That’s how we get our rights. We petition Congress for rights, and if granted, they are ours without regard to what five unelected zealots scribble.
Where do our rights come from…the founders told us what they believed were the essential reasons for establishing those country and its government before drafting the Constitution, including where our rights came from:
This is from the foundational document of the “Charters of Freedom,” the Declaration of Independence, the manifesto on which the founders literally staked their lives.
The subsequent 9th and 14th Amendments remind government the citizens retain unenumerated rights which cannot be abridged. The 5th and 14th remind government citizens’ rights cannot be abridged without due process of law — rights already possessed by the people, not conferred by a government that was supposed to be organized to secure those rights.
It feels like there has been a deliberate forgetting and erasure of government’s role in the U.S. with regard to the people’s rights.
I’m glad someone quoted this passage, which I have always regarded as one of the finest expressions ever of the universal human condition. (Incidentally, it makes no mention of US states in particular, which in the context of its writing, were anyway constructs of the British Empire.)
And I was never more gently reminded of the truth of it than when each of my kids was first placed in my arms – that this small bundle isn’t a mere possession, it’s a person with exactly the same standing as myself.
Yes. Creator-endowed rights are human rights though the U.S. Constitution delineates a government for and of its citizens and not more broadly all humans within the nation’s borders.
Well, most notoriously, for a damnably long time their fine principles were even found somewhat wanting in application for most of the darker-skinned people within their domain. Legalistically propped-up all along the way by past Supreme Courts, besides.
But even those among we unblessed others who occasionally stray within the borders can generally expect to receive the same serving of justice (for better or worse!), even if not encompassed in constitutional statute, no?
(Hmmm, I wonder how the theory of that works? Back to “unalienable rights”, I suppose… …or Hannah Arendt..?)
Not trying to be snarky, but whose Creator? Different people have different ideas about their creation. Do different Creators bestow different rights, or do rights only apply to those who believe in the proper Creator? Tying rights back to a Creator makes things messy, especially when some are certain that they can speak for said Creator.
Creator doesn’t have to be an entity though the founders were deists and Christians. You were born human, and whatever the biological force behind your emergence, you are endowed unalienable rights by virtue of humanity.
I’m sure the Roberts’ SCOTUS majority will argue otherwise but in doing so they’d still argue against their own belief system and the manifesto which established the government in which they are employed.
As an atheist, I’ll steer clear of the spurious supreme beings and instead posit that rights are a human invention codified by law (another human invention).
That does not in any way devalue those rights—I enjoy mine (and numerous other human inventions) on a daily basis.
That said, I am very afraid of what our rogue, xtian nationalist SCOTUS thinks about all this.
“rights are a human invention” — humans as Creator recognize their rights. “Self evident” may have another additional meaning.
They chose “Creator” and not “God” intentionally, regardless of what MAGA Christians wish.
Whatever created the universe 13.8 billion years ago is long gone and I have seen no actionable evidence to the contrary.
And yet you are still here. Something created you and I don’t mean your parents but the entirety of humanity, you inclusively.
Is it something with an independent intelligence? Is it merely a series of biological accidents? Whatever the case, humans exist and they came to believe they have rights.
As you said, we have rights by virtue of our humanity, regardless of how it came about. Of course, if one posits a “Creator/Designer/God” than one can ask how THAT came about, etc. Been there, done that.
The founders (like ourselves now) were of their time, and that was reflected in their expressions. But they deliberately chose not to enshrine their own religous attitudes in their constitutional framework. On the contrary, they strove to rise above their limitations, and for good reason.
It’s taken a new generation of heretical ChristoTaliban to try to undo all that. They would turn the Constitution into a pile of ash if only they could. And ironically, they wouldn’t need a Supreme Court either for their idolatrous new world.
Beautiful words, but complete bullshit. All men are created equal, and have the right to life, liberty and the pursuit of happiness. But not the women folk, and definitely not the enslaved.
That was the original sin to be rectified by society’s (read: men’s) evolving understanding of who was human.
Locke wrote it as “life, liberty, and property” and Jefferson paraphrased it via “Pursuit of Happiness.” He held title to some people as property, and his phrasing softens that while sounding less harsh.
The Constitution is nearly impossible to amend without widespread consensus. So once the Court has done mischief, things reduce to waiting for replacement Justices to swing things back.
The Electoral College has enough small state love that it will outlive me, and likely the younger contributors. The right to an equal weight vote is kind of there, subject to the Electoral College rules. Rights not enumerated are most tenuous, and the right to privacy is not enumerated. Basically, the loosest idea is you can do anything which does not harm others. As a philosophical – libertarian principal. Also, in practice, you have rights even if statutes exist curbing behavior, if law enforcement and public sentiment look the other way.
In social contract thinking one can spin positions. I never signed the social contract, but was told I was born into it. There is the saying that the law in its majesty says neither the rich nor the poor may sleep under bridges, beg in the streets, or steal bread.
How would a con law professor even teach whatever through-line pseudo-conservative opinions have these days? Limitations on government power to control the individual were waved away as a “penumbra of rights” with an insufficient textual basis, but executive immunity somehow effloresces from the “structure of separated powers.”
The more religiously inclined might note that the court struck down individual rights that seemed to come from above but found new government powers that seemed to come from below.
Either way, recent decisions seem to require major edits of constitutional law books in areas including political questions, justiciability, abstention, congressional power, executive power, state powers, substantive due process, privileges & immunities, and equal protection. Good luck to the editors.
I follow several Con Law professors on Xitter, and they talk about the problem of finding some coherent explanation of the decisions of this bullshit court. They seem to have chosen to teach these cases straight-up while trying to put them in an historical context.
I went to law school at the end of the Warren Court era, when things were simpler. There were several tools of construction, chief among them purposivism: what is the intent and how best to carry it out.
Scalia gutted that theory in the late 90s with his emphasis on textualism, the idea that every word had but one meaning and that he could divine it. Anyone who has ever read any epistemology, ontology, or analytic philosophy knows this is utter garbage.
It’s a mess.
Indeed. Words rarely have one meaning, and that shifts over time, making Scalia’s argument pathetically self-serving.
My favorite part is that Scalia could find that the words have a meaning totally contrary to the legislative history i.e. the bill is about protecting consumers but these words mean it protects careless corporations. Or the bill is about rights for minorities but the words clearly mean it should protect the right to discriminate by white men.
Roosevelt’s Four Freedoms expands things beyond where we are to where many feel we should be, adding Freedom from Want, and Freedom from Fear. Loose short statements, but being there would be nice.
As to separation of powers, indirectly related to the right to have in place what Congress passes, Kudlow is the present Trumpist most loudly saying, impound, impound, impound.
The way this was introduced to me as a student was that one could think about the “Freedom to . . .” or “Freedom from . . .”. The first kind of freedom is more positive (and maybe positivist), while the second kind is more protective.
Re: the last paragraph, one of Greene’s points is the acceptance of the judicial review as a role of the Supreme Court and the Court’s corresponding arbitration process makes what all the unelected justices scribble important. He wishes to change that arbitration process to mediation.
The framers kept the Constitution as open-ended as possible. They left it for successive generations to make more perfect. It was silent on from where rights came. Among other things that created different interpretations of rights origination to suit the political ends of various parties. One of those interpretations came from the idea that the country was a “compact” among the states. That led in some minds to a concept of nullification where a member of the compact could nullify or void a law of the compact if it didn’t suit them. Jefferson tried to nullify the Alien and Sedition Acts, Calhoun the tariff, Arkansas segregation as examples. Meachum in his Jackson biography reiterates the beliefs of Jackson and Lincoln that nullification reduces us from a nation to the Confederation we were before the Constitution. We can’t move forward as a nation if there is a nullification trumping (pun intended) mechanism. I’ll follow on immediately.
I think the current conservatives have adopted a version of nullification theory in their decisions. They push things to the states that should be decided on a national basis because it affects everyone in the nation such as women’s rights or voting rights. They retain decisions for themselves, what is an official act or who should be a special prosecutor or what science should be used in climate decisions. In essence they are nullifying simply because they have the power to do through judicial review.
Green’s suggested process offers a way out of that. It is why I appreciate his book. I don’t have high hopes any Supreme Court justice would ever change though especially as appointees of highly polarized parties.
I really like Greene’s book, and I think he makes a number of important observations. Unlike some of the books I’ve discussed here, I don’t agree with his recommendations. To me, they aren’t enough in the face of this bullshit court. I think SCOTUS needs to be hobbled. It’s bad for democracy.
I agree with you about the notion of the compact among the states. Roberts talks somewhere about patrolling the border between the states and the federal government. But he always tilts to states rights, which for me has always been shorthand for allowing racism. That patrolling borders is contrary to the express grant of power to the federal government in the Reconstruction Amendments.
And it hurts the country, our sense of unity. If groups of people are mistreated in Red States, but protected in Blue States, how are we to be a single nation?
Congress must protect it’s power from a rampaging SCOTUS. How else can be be protected from authoritarians and religious zealots?
I think your last sentence is meant to say “How else can WE be protected from authoritarians and religious zealots.”
That is a high level social/Constitutional gaming question. The balance of powers gaming construction falls apart when the members of each branch do not place their loyalty in the branch and its/their obligations first, but rather in their party, or faction, first. It is an easy move to upset the balance of powers when the players, or members, can unite interests and agendas across powers, or branches of the government, and undermine the balancing concept.
In our current situation, the Conservative members of the SC are loyal to personal and political agendas aligning/conforming with nominating and appointing party agendas. Perceived reliance on manipulating the law to achieve those agendas is why they were selected. They can easily manipulate because they exert the power of judicial review combined with the inability of “the people” or their representatives to remove them from a lifetime appointment.
To answer your question about protecting us from authoritarians and religious zealots, the rules of the game have to be changed. The obvious big rule change is to make justices accountable to the people in some way, or they lose their position. The closest we have come to that as far as I can see is term limits. There are far wiser/smarter people on this site than me so maybe there are non-Constitution amending ways accountability can be more readily achieved. But until the rules of the game are changed, we can never be protected from SCOTUS and/or Congress and/or party agenda unification.
It’s too much to quote but Madison three years before his passing, frail, painfully writing, wrote at length on why the theory of nullification and the concept of “compact” amongst the States was utter nonsense. (Search founders online “On nullification, December 1834.” ). Now in part he was defending Jefferson’s role in the Virginia and Kentucky resolutions against the Alien and Sedition Acts and what they said meant versus how they were being used 30 years later. But more importantly he looked on with horror at the South Carolina arguments and foresaw what was coming.
There is the ballot case. That was declared federalized, and Cl. 3 of the Fourteehth Amendment, Congressional only.
When it suits the ends in mind, they have that flexibility.
@Rayne and others above.
I think our sense of what our rights should be comes from the lived experience of our ancestors. They attributed their beliefs to their Creator, sure, but we don’t have to agree with their sourcing. We can just accept their results. My thinking is influenced by the Pragmatists, particularly William James book on Pragmatism:
https://www.emptywheel.net/2019/09/21/a-primer-on-pragmatism-truth/
Beyond that, thinking that we have rights is not the same as having them, and that’s the question I think is important here. I read Arendt to say that rights are only meaningful if they can be enforced, as I said here: https://www.emptywheel.net/2024/03/27/citizenship/
I’m not sure if this is different from what you all were saying in the thread above. I certainly agree with Rayne’s last point that we tend to erase the role of government in protecting our rights.
Yes; without the government to secure those rights it doesn’t matter much how we were endowed with them.
And in a time of war, you have even less rights, all to be decided by violence, win or lose. Those spasms of violence of various lengths, usually put in place a succeeding time of rights being built up and respected or rights being torn down and violated.
I am suspicious of long opinions. Somebody, in sociology, should seek a scholarly consensus measure of the better and worse Courts over national history. And see the correlation with page length. If it takes so many pages to try to add bona fides to an opinion it is probably a wrong one. Sophistry takes more pages. Example: Executive immunity.. The Appellate opinion nailed it with fewer pages than Roberts, alone, never mind Thomas adding as he did. End justifying means adjudication is a lie most of us can see and dislike. I believe Roe was shorter than the killing stroke.
This is sooooo true! I found it was much much harder to write a shorter paper in college than a longer one (and i’m sure I’m not the only one)… concision is a skill that requires deep thinking and if done well, produces the sharpest, clearest arguments of all. [I had to get my twin sister to hack and slash my papers with abandon, which was painful but always beneficial when all was said and done]
Were the nation to take a hard look at the Constitution in contemplating amendments, would there be wisdom for different Impeachment provisions,branch by branch? Or at least with the one branch having for-life appointments, should Impeachment there be easier? It might be suggested that could make SCOTUS and lower courts more politicized, but haven’t they been politicized over all our history? Is the present SCOTUS version overly political, (with Leonard Leo beyond Impeachment’s reach)? With no code of ethics binding SCOTUS Justices impeaching arguably should be easier.
If another commenter were to post that I should not be commenting without having read the Federalist Papers, the criticism would be proper. In posting I understand much was debated and preserved in the writings where I admit to never going there full bore, or even superficially. I am in that majority. Without having read there, I assume that men being different in character and rectitude was a premise of each paper. The questions today still face that truth, and how best to protect yet also govern a federal republic and people from those granted (or otherwise holding) power. We face Project 2025, a group wanting fewer in government holding a bigger sword. There is something inherent in that idea to cause fear. A vast administrative state was not likely envisioned in writing the Constitution and Federalist Papers. But that vastness is itself an inertia against radical full capture of power into too few hands. While arguably the administrative state also is like a wheel rut that deepens with time. Last thought, 900 pages makes that Project thing being read mostly by zealots thinking different things about it. The Constitution is such a sparse thing, in comparison.
I certainly won’t read all of Project 2025’s Mandate for Leadership. I suggest people take a look at agencies that don’t seem like hot-button problems, like NOAA, or at agencies where they have some expertise or interest.
https://static.project2025.org/2025_MandateForLeadership_FULL.pdf
And then pour it all over social media! It’s crazy.
I am having trouble understanding where you’re expressing your own view and where you’re expressing others’ views in order to discuss or criticize them. Do you think the constitution guarantees individuals’ right to, for example, free speech? And when, apparently, some (you or others I’m not sure) argue that it doesn’t, what exactly do they take the first amendment to actually be guaranteeing?
I agree with Jamal Greene that the purpose of the Bill of Rights was to protect the states from interference by the federal government. In Chapter 1 of his book, Greene explains how that works in the context of the First Amendment.
This is not his explanation, but you know that the First Amendment prohibits Congress from making laws impacting free speech. It did not prohibit the states from making such laws. That came in the 20th C.
I realize that most people believe that the Bill of Rights was intended to protect the freedom of indiviuals. But we have to realize that lots of ideas we have are the result of generations of people forcing change.
One good example of this is the phrase “all men are created equal”. When written it certainly didn’t mean enslaved people, and it certainly didn’t mean women, or Native Americans, either. But with the genius of people like Frederick Douglass and the abolitionists, that changed over time. See The Nation That Never Was by Kermit Alexander, which I discussed in an earlier series. https://www.emptywheel.net/2023/03/20/introduction-and-index-to-series-on-the-second-founding/