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SCOTUS Usurps Congressional Power

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Posts in this series.

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.

How Courts Came to Control Our Rights

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Index to posts in this series

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.