Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (24 page)

Here, the Court was helped by circuit court justice Bushrod Washington's decision in Corfield v. Coryell (1823). Washington had said (and here
he did not innovate in any way) that the rights of state citizenship
included "protection by the government, with the right to acquire and
possess property of every kind, and to pursue and obtain happiness and
safety, subject, nevertheless, to such restraints as the [state] government
may prescribe for the general good."

In Slaughterhouse, the Court asked, "Was it the purpose of the Fourteenth Amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of
citizens of the United States [emphasis in the original], to transfer the
security and protection of all the civil rights which we have mentioned,
from the States to the Federal government? Such a construction ... would
constitute this court a perpetual censor upon all legislation of the States."

In general, legal academics despise the Slaughterhouse decision
because they do think the federal courts should be "a perpetual censor
upon all legislation of the States." The Supreme Court of 1873, however,
was more restrained. The specifically federal rights covered by the Fourteenth Amendment's category of "privileges or immunities of citizens of
the United States," it decreed, were few. The Court identified the right to
travel to the federal capital, the right to seek federal government protection, the right to work for the federal government, the right to use American ports, the right to federal protection when traveling on the high seas,
and other rights of a similar nature as rights of federal citizenship.

It also rejected the idea that the Fourteenth Amendment's Due Process
Clause (which gave federal courts the power to enforce due process
requirements against the states) applied to the butchers' claim. The Court
noted that the Due Process Clause was intended to protect the freedmen
in former slave states against arbitrary action by state governments,
adding, "We doubt very much whether any action of a State not directed
by way of discrimination against the negroes as a class, or on account of
their race, will ever be held to come within the purview of this provision.
It is so clearly a provision for that race and that emergency, that a strong
case would be necessary for its application to any other."

The justices who dissented from the Court's majority ruling said that
the Privileges or Immunities Clause was supposed to apply to all the
rights of citizens of free governments, and one dissenting justice said that
the butchers had indeed been deprived of property without due process.
Though the dissenters lost the day, their time would come, as future Courts gladly used the Fourteenth Amendment to claim a capacious
national judicial authority.

Three years later, in Munn v. Illinois (1876), the Court upheld an Illinois law establishing maximum storage rates in grain warehouses in
Chicago and certain other places as consistent with the Fourteenth
Amendment's Due Process Clause. The Court said that while the Due
Process Clause protected private property, the warehouses in question
ceased to be strictly private when they were "devote[d] ... to a use in
which the public has an interest."

Soon, however, the public's interest would be determined less often by
elected state legislatures and more often by unelected federal judges.

he Supreme Court of the 1870s took a surprisingly Jacksonian
view of the Constitution. It had announced in Texas v. White
(1869) that the Union was permanent, as Jackson had insisted in
nullification days, and it then refused in the Slaughterhouse Cases of
1873 to use the new Fourteenth Amendment to expand the Court's power
radically.

But the Court did enforce the amendment. In Strauder v. West Virginia
(1879), the Court confronted a case in which a black man had been found
guilty by an all-white jury (only whites were allowed to sit on juries in
West Virginia) of murdering his wife with a hatchet. The accused, Taylor
Strauder, was clearly guilty, but he appealed the verdict under the Equal
Protection Clause of the Fourteenth Amendment, claiming that the clause
entitled him to a jury that included black jurors.

The Court said that the real question was not whether a defendant had
a right to a jury that included members of his race, but whether members
of his race could be excluded from the jury pool.

The Fourteenth Amendment's purpose, the Court said, was "securing
to a race recently emancipated, a race that through many generations had
been held in slavery, all the civil rights that the superior race enjoy." In
other words, it said, blacks had under the Fourteenth Amendment "the
right to exemption from unfriendly legislation against them distinctively as colored-exemption from legal discriminations, implying inferiority
in civil society, lessening the security of their enjoyment of the rights
which others enjoy."

Guess what?

-40 The Fourteenth
Amendment was
meant to apply
only to newly freed
blacks, not to other
categories of
people, but the
Supreme Court
quickly expanded
it to cover noncitizen residents
and even
corporations.

- The Supreme
Court's first
segregation
decision held that
Louisiana could not
bar segregation.

-sue The Supreme Court
ruled that the
income tax was
unconstitutional.

The West Virginia statute concerning all-white juries was therefore in
violation of the Fourteenth Amendment and was struck down. The Fourteenth Amendment's purpose was to prevent "discrimination because of
race or color"; it did not apply to qualifications based on sex, property,
citizenship, age, or educational attainments, which might legitimately be
applied to potential jurors.

The Court remained loyal to the view of the Fourteenth Amendment
established in Slaughterhouse and Strauder in its most significant
nineteenth-century decision about it: the Civil Rights Cases of 1883. The
cases concerned the Civil Rights Act of 1875: "an Act to protect all citizens in their civil and legal rights."

The act would have taken many areas of public policy reserved by the
Constitution's framers and ratifiers exclusively to the states and given
supreme authority over them to the federal government. Among other
things, the act extended to "all persons within the jurisdiction of the
United States" protection of their purported right of access to "inns, public conveyances .... theaters, and other places of public amusement."
And it was on these grounds that the act was contested: does Congress
have constitutional authority to make laws about private decisions
regarding access to hotels, theaters, and the women's car on a train? Congress claimed that its power to adopt the Civil Rights Act flowed from the
Fourteenth Amendment.

But the Court held that the Fourteenth Amendment did not give Congress such sweeping powers. The Court ruled that the Fourteenth Amend ment banned "State action of a particular character," not the private
actions of hotel owners or theater operators. The Fourteenth Amendment
did not give Congress the power to force individuals or businesses to
allow equal access to their private property. ("The prohibitions of the
amendment," the Court majority said, "are against State laws and acts
done under State authority.") Nor could the act be justified under the
Thirteenth Amendment, because private decisions denying people access
to inns, railroad cars, or theaters did not amount to slavery.

As Section 1 of the Fourteenth Amendment says that "No State shall"
deprive anyone of the privileges or immunities of U.S. citizens, "nor shall
any State deprive anyone of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws," there can be little doubt that the Court was right: the
Fourteenth Amendment was designed to prevent state governments from
discriminating against blacks, not empower Congress to open private
facilities to them.

The Court did not stop with mere textual analysis, although that was
convincing enough. Instead, as in the Slaughterhouse Cases, it asked
what would happen to the federal system if it ruled the other way. Such
a holding, it said, would grant enormous new powers to Congress and
would be "repugnant to the Tenth Amendment of the Constitution."

This ruling seems self-evidently true, but the majority of history professors, law professors, and judges won't tell you that. They'll all refer
you to the dissenting opinion entered by justice John Marshall Harlan.

Harlan argued that the Court's majority opinion was merely "a subtle
and ingenious verbal criticism." Private decisions denying people access
to public accommodations were "badges of slavery and servitude," he said,
and thus could be banned by Congress under the Thirteenth Amendment.

Turning to the Fourteenth Amendment, Harlan said that its extension
of state citizenship to blacks guaranteed them "exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State." Even if the Fourteenth Amendment did not
extend to completely private acts, Harlan continued, all the private organ-
izations-"railroad corporations, keepers of inns, and managers of places
of public amusement"-amounted to "agents or instrumentalities of the
State ... because they [we]re amenable to governmental regulation."

Consider that claim again: Harlan reasoned that anyone "amenable to
governmental regulation" was, because the government could regulate
him, an "agent or instrumentality of" the state government. Is there any
area of life in which twenty-first-century Americans are not subjected to
"governmental regulation"? If not, they are all "instrumentalities of the
State" in everything they do, by Harlan's reasoning.

Harlan's opinion was, thank goodness, a minority opinion at the time.
But it would not remain so.

The Court's evident interest in limiting the postwar amendments' effect
on the federal system also manifested itself in a case not well known
today. In Hall v. DeCuir (1877), its first segregation decision, the Court
said that states could not bar segregation in passenger ships on the Mississippi River. Think about that: the Supreme Court's first segregation
decision held that Louisiana could not bar segregation. As the ships in
the case traveled between Mississippi and Louisiana, the commerce was
interstate-thus, the Court said, under Congress's exclusive control.
Therefore, a state could not require a ship to offer integrated facilities to
any of its passengers, even those who traveled solely within one state. A
concurring justice defended what later would be dubbed the "separate
but equal" doctrine upholding local racial custom against state legislation.

The Supreme Court revisited the question of disparate treatment of the
races in the famous 1896 case Plessy V. Ferguson. That case involved seg regation in railroad cars, a practice that had
come to be nearly universal in the former
Confederate states.

Homer Plessy, a black man, entered a segregated railroad car with the intention of
challenging the 1890 Louisiana state law
requiring segregation of such cars. He
claimed that exclusion on the basis of his
race deprived him of the equal protection of
the laws guaranteed by Section 1 of the Fourteenth Amendment. The
Court disagreed.

"The object of the amendment," the Court said, "was undoubtedly to
enforce the absolute equality of the two races before the law, but in the
nature of things it could not have been intended to abolish distinctions
based upon color, or to enforce social, as distinguished from political
equality, or a commingling of the two races upon terms unsatisfactory to
either. "

Note the distinction the Court here made: legal or "political" equality
was not the same as "social" equality. It continued: