Millhiser - Injustices : the Supreme Courts history of comforting the comfortable and afflicting the afflicted

Copyright 2015 by Ian Millhiser

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Library of Congress Cataloging-in-Publication Data

Millhiser, Ian, author.

Injustices : the Supreme Courts history of comforting the comfortable and afflicting the afflicted / Ian Millhiser.

pages cm

Includes bibliographical references and index.

ISBN 978-1-56858-457-7 (e-book) 1. United States. Supreme CourtHistory. 2. Political questions and judicial powerUnited States.History. 3. Social justiceUnited States.History. 4. LawEconomic aspectsUnited States.History. I. Title.

KF8748.M475 2015

347.73'2609dc23

2014049653

10 9 8 7 6 5 4 3 2 1

For Earl, Thurgood, and Ruth, who proved that it does not have to be this way

Contents

The generally accepted notion that the court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the court in July, when we know the Constitution is safe for the summer.

FUTURE CHIEF JUSTICE JOHN ROBERTS, APRIL 19, 1983

O N A PORCH in Colfax, Louisiana, eight wounded men lay shielded from the rain. Close to a decade earlier theyd been enslaved, toiling far away from the site where General Robert E. Lee would soon surrender his army. Five months earlier theyd cast ballots in a rigged election, then watched an ex-Confederate officer declare himself governor of their state. Two weeks back theyd been triumphant, emboldened by a federal judges order to oust that false governors loyalists and regain control of their local government from white supremacists. By morning, they would be gunned down by a racist mob.

Eight decades later, in the autumn of Jim Crow, this mobs descendants would erect a historical marker commemorating this massacre: three white men and 150 negroes were slain in what the marker deems the Colfax Riot, bringing the end of carpetbag misrule in the South.

Less than eleven years after Lees surrender at Appomattox Courthouse, the justices gave their blessing to the campaign of white-on-black terrorism that would define the South for generations.

Cruikshank is hardly an anomaly in the Supreme Courts history. Just a few years before the Civil War, the justices delighted slaveholders and enraged abolitionists with its decision in Dred Scott v. Sandford (1857). More than just a proslavery decision, Dred Scott was rooted in the belief that men and women of African descent are beings of an inferior order, and altogether unfit to associate with the white race. The Court examined the condition of this race at the time the Constitution was drafted, and determined that it is impossible to believe that the rights enjoyed by white citizens were intended to be extended to black people.

A great deal had changed in the years between Dred Scott and Cruikshank, however. At the height of the Civil War, President Abraham Lincoln proclaimed that all persons held as slaves within the rebellious states shall be then, thenceforward, and forever free.doughface justice had only one of the Courts nine votes to offer the old Confederacy.

More importantly, the Constitution in 1873, the year of the Colfax Massacre, was a very different document than it was the day Lee surrendered to Grant. Since that day, the states had ratified three constitutional amendments. One of them, the Thirteenth Amendment, provides that neither slavery nor involuntary servitude shall exist in the United States, except as punishment for a crime. Another, the Fifteenth Amendment, calls for African Americans to be welcomed into the ranks of fully enfranchised citizens by forbidding states from denying the right to vote on account of race, color, or previous condition of servitude.

The most sweeping of the three Reconstruction Amendments, however, was the Fourteenth Amendment. On its face, this amendment did not simply extend new rights to freedmen and their children, it transformed the very nature of American government. Prior to the Civil War, most of the rights embraced by the Bill of Rights were not rights in the way we understand that term today. Instead, the Constitution mostly prevented the federal government from taking certain actions against individuals. States, however, remained free to seize peoples property without compensation, or to invade peoples homes, or to establish an official state religion, just so long as the authorities did so in compliance with their own states constitution.

The Fourteenth Amendment declared, for the first time in the nations history, that Americans enjoy a broad array of rights simply because they are Americans, and that they keep these rights even as they travel across state lines. In the amendments words, no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

To ensure that states did not deny these new citizenship rights to freedmen, the Fourteenth Amendment also declared that all persons born in the United States and subject to its laws are citizens of the United States and of the State wherein they reside, regardless of the station of their parents. And it proclaimed that there are some rights that citizens and foreigners both enjoy simply because they are human. No state may deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So the Fourteenth Amendment transformed the Constitution from a document that largely just assigned different roles to state and federal governments into one that recognized that certain liberties cannot be abridged by any government.

Though modern-day scholars disagree about what, exactly, the privileges or immunities of citizens of the United States are, the primary author of the Fourteenth Amendment had a fairly clear idea. In the words of that author, Ohio Republican Congressman John Bingham, the privileges or immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.... These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. Thus, Bingham believed that his amendment would, for the first time, forbid the states from violating the Bill of Rights.