Chapter Thirty-nine

Constitutional Law and States Rights

How stood the federal courts, especially the Supreme Court of the
United States, in the long-drawn-out struggles for reform and the
containment and abolition of slavery? Given its growing prestige,
could not the Supreme Court have found a solution in some cases
coming before it, perhaps declaring outright that Blacks were naturally
among all men who were created equal and therefore could
not be held as slaves, citing the Declaration of Independence, and
other documents and cases in support of the ruling?
(We recall that there is "law"
to be found somewhere, with which to decide every conceivable case,
once a court assumes jurisdiction.)

The Court might have seen in the guarantee of a republican form of
government grounds for questioning the manacling of a fifth of all
persons in slavery. Suppose a favorable court and a
plea of individuals (slaves or persons willing to free slaves) based their
rationale on the Constitution's stipulation of a republican
form of government: given universal male suffrage
everywhere else, a condition of being a republic is that no
person be deprived of the right to vote. Once again,
we are fantasying history; but it may be more useful to do so
than tell the story of one more bloody battle.

As for counting three-fifths of other persons (slaves, that is) in
apportioning representation in the House of Representatives, this,
like about one-third of the Constitution, could be ignored, which the
South would like, and Congress could proceed to
counting slaves as full persons.

There were other ways of skinning the cat: the Preamble of the
Constitution, claiming life, liberty and happiness to be its objectives
as well as its goals, could be declared law, and its words and
implications applied to ridding the country of slavery; after all,
English common law was also being applied in cases before the
American courts, and there was something called "natural law" and
something else called "international law." These were
often cited in legal cases.

The Court could have declared at the same time that inasmuch as
claimants to such property (slave-owners) had entered in good faith
into transactions involving their purchase, the federal government
would be liable for their reasonable compensation.
By entertaining suits against the government, and allowing
overly-generous compensation, the courts would ease the shock
of manumission so slaveowners could cuss all the way to the bank.
And, as for the "new" non-slaves,
they might be compensated by their holders
from one-half of their holders' compensation,
paid out annually according to the number of years
from age 7 to x that the non-slave had been held as a slave.

I allude to such dreamlike solutions to mark the stark contrast between
conceivable reform and possible reform. Also to show that the "Great
Debate" over States Rights was largely puerile and inexcusably
narrow. My dream was impossible for the judicial
system to handle, even though there have been several occasions in
history when the federal courts have taken it upon themselves to
mastermind enormously complicated schemes in order to bring
reality in conformity with the Constitution.

Examples would be the break-up of the American Tobacco
Company monopoly into numerous components a century ago, the
disassembly and reassembly of the components of the American
Telephone and Telegraph Company monopoly, the determination
that capital punishment and other forms of punition can be construed
nowadays - never mind the past three hundred years - as forms of
cruel and unusual punishment and therefore unconstitutional, and the
repossession of Indian lands from the States and Federal
Government, and their redistribution among the Indian tribes.

After all, when the evils of slavery and the struggles over it
had gone on for a century and more,
bringing interminable violence and property destruction, the dreamy
way might have been the practical way.
There remains, however, a large gap between
technical competence and heart and will.

We bear in mind the way Gorbachev handled the dissolution of the
Cold War and averted possible worldwide destruction. But that is not
the way history ordinarily goes; it is neither the way of the courts nor
the way of politics. When he ran for President of Russia in 1996,
Gorbachev received a pitiful 0.5% of the vote cast from the
communist serfs that he freed.

Courts have always been creatures of tradition and
rationalizations of the new in terms of the old.
Legal procedures and language are as puzzling as politics,
when it comes to discovering why the judicial process
(or the political process) goes one way rather than another.
Well into the 1820's, for instance, American judges and lawyers
considered that the common law was still the basis for American law,
unless it were to be specifically overruled by constitution, code or
statute, and could even accept the thesis of Chancellor Kent of New
York and others that America was a Christian nation and
Christianity a principle of common law and enforceable.
The States were getting around to codification one by one,
the Federal government, with less law and jurisdiction,
yet moved more slowly.

American lawyers and judges were from the earliest times
poorly trained and non-theoretical. Only within living memory
has there been any systematic efforts to come to grips
with the chaos of laws and legal practice.

Writers of law textbooks, much more than political scientists and
historians, have from the very beginning described and prescribed
for a non-existent world.

And passed apprentices and students of the law into the courts
unprepared for reality of the judicial process.
But, too, there was no legal reality to be clearly defined.

Even if judges and lawyers leaped at the presentation of a statute
of the state legislature, they would be at odds in interpreting it, for
legislative drafting in the United States did not become
systematic until the mid-twentieth century.

If one were to try to mentally survey the total court record, itself a
jammed massive collection from many jurisdictions, local, state and
national, one would find that it exhibits little
attention in practice to the famed due process of law
in procedural and substantive matters, and
whether in criminal or civil law.

What has become the history of the law is an
Empress Catherine facade, built of a handful of cases on most topics,
which are lined up along the avenue of legal studies.

For example, the injunction against passing any law respecting the
establishment of a religion has had a tortuous history. It was never
absolutely observed (and philosophically it probably could never be,
except upon taking a narrow view of what religion consisted ).

Oaths in court cases, and everywhere else they were required, were
sworn in the name of the Bible and the Lord. Legislatures, military
forces, et al appointed chaplains. Tax exemptions were always given
to religious groups. And so on. Was male circumcision a religious
practice and therefore neither to be encouraged nor forbidden by any
agency of government? Would female circumcision be subjected to
the same rules? The principles of religious freedom have never been
able to carry beyond blocking and attacking special
religious and anti-religious groups; a perfectly
acceptable theory cannot be devised.

So it goes with the principle of free speech, which seems absolute
enough: free is free. But to read the foreign travelers' accounts written
in the first half of the nineteenth century, you would have to say during
this hot season of direct democracy that one of America's salient
problems was free speech. De Tocqueville was astounded at the
censorship of free speech by the opinion of the crowd. And, although
we are anticipating our story again by many chapters, one would have
to say that the only period of free speech in America worthy of unique
praise would be the last third of the twentieth century.

During the first half of the 1800's, whatever the changing fortunes of
those who called for growth of national powers, the Supreme
Court could be counted upon to lean toward the nationalists. Having
established without much resistance the doctrine of judicial review in
the case of Marbury vs Madison, the court could expect ample
opportunity to overrule state laws in cases where obstreperous
legislatures thought that they might invade the
powers of the Constitution.

The case of McCullough vs. Maryland (1819) is here
most notable, because the Court took a dim view of
any transgressions of state law or activity upon an
area of concern that by implication had been
consigned to Congress under an expressed power: With the approval
of the Bank of the United States under the general authority to coin
money and regulate the currency, the Bank of the United States
itself was deemed to be constitutionally established; and therefore a
Maryland attempt to tax the Bank of the United States was ruled
unconstitutional. The federal power was considered to extend into
large areas of "implied powers" thereafter.

But before then, cases had come up wherein the Court had prevented
state laws from interfering with United States treaties with
foreign powers.

The Judiciary Act, by creating a set of national courts
instead of relying upon the state courts to do the job for the
federal government under the supervision of the Supreme Court,
guaranteed uniformity and discipline in federal law,
and prevented state courts from forever chipping away
federal powers.

Also, Congress, by opting to give the Supreme Court an extensive
appellate jurisdiction, tied the federal and state lower courts into a
unitary organization, and the Supreme Court, in extending its
power, began to make distinctions between the
kinds of cases it would and would not hear.
With an eye to its power and prestige,
it would accept for review only those cases that promised
to establish important principles of law,
cases of wide application to important interests.
The appointment as Chief Justice of John Marshall, a man
with a full-blown theory of federalism to carry into practice,
began a 35 -year period of consistent centralization
of constitutional power.

After McCullough came cases that prevented state legislatures or
officers from breaking a contract with a private corporation. In the
leading instance it pitted Dartmouth College against the State of
New Hampshire. Cohens vs Virginia (1821) houses in its opinion a
superlative expression by Marshall on the supremacy of the federal
government in many spheres and
the unitary character of the American nation.
Gibbons vs. Ogden (1821) further tightened Congressional
power over the States.

However the Court, while it would not permit the State governments
themselves to get into the printing of currency,
did allow the States to permit private banks
(so-called state banks, because state-chartered)
to issue bank notes - with inflationary, speculative,
bankruptive consequences all around.

(Indeed, and perhaps this should not be said in parentheses, the only
explanation for the great economic expansion of the age may be
the logically disastrous financial policies of the country's
banking and financial system; for it doesn't matter that a great many
individuals go broke or rich or both, if, in doing so, the overall
result is an expanded population in an expanded territory doing
expanded tasks - this is sheer pragmatism, of course.

To counter such an argument pragmatically, one would have to
assert that the country should not have developed so crazily and
destructively, and that the enormous human costs of the booming
and crashing economic cycles should be reckoned. A steady,
more humane development was possible, but only
if there were a different elite and popular mix.)

The Court tried to intervene to keep Georgia from defrauding and
bullying the Indians within its grasp, but Georgia, with the help of
President Jackson, tossed the judgement into the wastebasket. Still, the
court was moving steadily toward a stronger federal union,
even under the successor of Marshall, Chief Justice
Roger Taney, a friend of the slave states.

And when the decision came that shocked the North into stronger
abolitionism, it was Taney's opinion that mattered, but his opinion
was along national lines. I speak of the Dred Scott case. After all, to
declare that a slave, property under the law, remained property, and
certainly did not gain freedom, by being transported into another
state or territory, even where the local law prohibited slavery, was
merely repeating what the Constitution enjoined the states to do:
refrain from any action taking the property of the
citizen of another state.

Taney did not say this in so many words. He pronounced that
Dred Scott was not a person or citizen who had
the standing to appear before the court. (If so, why did the Court
then bother to make a decision, a vastly disturbing one at that?).

Taney also made scurrilous remarks about Negroes, and said in effect
that Congress had no right under the Constitution to
prohibit slavery anywhere.

He became a hero of the South and a villain of the North.
The Supreme Court would now lose much of its prestige,
until, in the latter part of the century,
it would begin to uphold and gain the favor of the
great economic and financial interests and mass media
of the country against both state and federal governments,
the favor of the South anti-African forces, too.W
What liberals came to think of the Court was another matter.

Even though Taney and the Court could hand down so
troublesome a judgement, the Court never accepted a case
that would have enabled or required it to determine
whether nullification of a federal action by a state or a
state secession would be a constitutional act.
Of course, if ever there were cases of pure political power -
eyeball to eyeball - here they were!

And the Court - not that its precedents were ever so compelling as
rolling the phrase stare decisis off the tongue made it seem - had
clearly announced in 1842 in the Dorr Case
that it would have no truck with a political decision, this when
two groups appeared before it, each announcing itself
to be the legitimate government of the State
of Rhode Island, and asking the Court's favor.

This, pronounced the Court, was a political decision from which it
was excluded, as distinct from a judicial decision. The case involved
an uprising led by citizen Dorr to select a legislature by manhood
suffrage after futile attempts to get the State legislature to extend the
voting privilege. The upstart assembly confronted the existing one.
In the end, the direct democrats won, without further violence.

Such cases, whatever else they do, and they go along with many
another, tell us that the Supreme Court was assuming powers and
building nationalism up to the time of the Civil War, and therefore
doing the slaveholders a disservice. For it made any Constitutional
claim to the right to nullification or secession implausible.

When, one may ask, would the nationalizing trend go so far as to
allow the federal government to begin imposing all kinds of welfare
requirements upon slaveholders. If Congress had once been
instructed by the Constitution to eliminate the slave trade and
count the slaves according to a three-fifths rule, and
regulate interstate and foreign commerce exclusively
and as it pleased, etc., a nationalistic court
might have found an implied power to legislate so extensively
regarding the welfare of slaves that the slave-holders might have
given up the task of compliance in disgust and laid their burden
down. But then the idea of welfare was in the earliest stages of
consciousness and agitation in America, so could all of the people's
welfare and happiness been rolled into an omnibus bill?

" Worse than slavery," most people would say of life-long
imprisonment. Worse than life imprisonment, most would say,
would be death by public execution. When America was invaded by
Europe in the fifteenth century, England was punishing eight crimes
by death: treason, malicious murder, larceny, robbery, burglary, rape,
arson, and androcide.

Two centuries later (1688), the "Glorious Revolution" could boast
of fifty capital crimes. Even though the "Bill of Rights" of 1689
proscribed "cruel and unusual punishments," several practices such
as burning at the stake, strangling, and even worse continued. The
penalty for an attempt on the life of the King was unspeakably

About 100 capital crimes were added to the list under George II and
George III. In 1819, by which time the Americans had been luckily
cut off from this fount of justice, the number was estimated at 223.
Attainder, forfeiture of property, and "corruption of blood" (denial
of inheritance) accompanied the death penalty.

Annually between 2000 and 3000 Britons were sentenced to die, but
often the sentence was commuted and the convict transported to a
colony elsewhere than America, now that America was free, and,
there, usefully consigned to servitude.

Early Massachusetts (1636) added idolatry, witchcraft, blasphemy, and
kidnaping to the English capital list. These were referred back not only
to the Authority of the Crown and Colony, but also to the Old
Testament of the Bible. A century later, the code of the new state
brought the number down: treason, piracy, murder, rape, robbery,
arson, burglary, and - evincing a concern more American than
European - buggery and sodomy. South Jersey and
Pennsylvania, thanks to William Penn, let only treason and murder
be capital, but pressures from England brought all the colonies up to
London's lofty standards.

The states then diverged. Since the police power was conspicuously
lacking in the early Federal government and would take two hundred
years to find by reading between the lines under the direction of a
liberal Supreme Court, some states became
imaginative and vindictive. North Carolina, pointing out weakly that
it had no penitentiary, posted a long list of capital crimes, including
bigamy and having anything to do with freeing a slave.

A breath of wisdom entered with the Enlightenment when Cesare
Beccaria's book on Crimes and Punishment moved English and
American reformers not only with its historic formula of the object of
legislation, "the greatest happiness of the greatest number," but also
with an elegantly reasoned defense of humane punition. Dr. Benjamin
Rush, Dr. Benjamin Franklin, and Attorney-General William Bradford
of Pennsylvania (who first divided homicides into first and second
degree), gave that State a solitary excuse for taking a life, murder in
the first degree. Beccaria also influenced Jefferson's agitation
to limit the death penalty in Virginia to
crimes of murder and treason.

The Louisiana legislature commissioned lawyer Edward Livingston to
draw up a penal code, and in 1824, moved by the above precedents
and a continuing if belated influence of the French
Enlightenment, he proposed the abolition of capital punishment. The
legislature said no.

Agitation elsewhere continued with "anti-gallows" societies, who
joined the rest of the pressure groups in this, the first age of the
lobbies. Lobbies were already called "the Third House of Congress"
in 1857. Senator Benton of Missouri claimed that
they could get any bill passed if they were prepared to
bribe congressmen liberally.

On March 1, 1847 Michigan became the first Anglophone
jurisdiction in the world to abolish the death penalty (save for
treason, which practically was a federal offense). Rhode Island went
all the way in 1852, and Wisconsin followed in 1853. Thus could
the states be innovative in criminal law.

Then came a weakening of voluntary associations,
with a growth in public paranoia and aggression.
There were several moves back and forth,
a large revival under Clarence Darrow, a famous attorney,
and Warden Lewis Lawes of Sing Sing Prison in New York, who
aided in the foundation in 1927 of the American League to
Abolish Capital Punishment.

In a bold legal step, the Supreme Court,
half a century later, found capital punishment itself
to be a cruel and unusual punishment, but
later cut back on its promises, so that a pent-up variety of
death sentences around the country were carried out.

Perhaps the main reason why the death penalty persisted
was the ease with which a part of the population could be
enraged or panicked by a crime; and especially
since less painful means of administering death were being found,
people generally did not feel the issue so acutely.
Public opinion polls kept turning up opinions on
the penalty near the 50% mark.

The profound antinomy goes to the principle that
the government should never kill its people.
For, when the state is restrained, the
police, criminals, impassioned individuals and crowds
become more hesitant to kill.

Other movements accessory to that against capital punishment
progressed in fair order. Allowing the jury discretion in capital cases
was instituted in Massachusetts in 1636 for rape - and may have
been anti-female; in 1809 in Maryland for rape and arson; until
half the states finally allowed juries to determine whether the
death penalty should be imposed.

New Plymouth Colony (1646) ordained the first income tax, on the
"returns and gains" of craftsmen and tradesmen. Six states adopted
income taxes in the years 1840 to 1860, and in 1862 the Federal
government levied its first income tax, to help pay for the war. (It was
declared unconstitutional not long afterwards).

In the rush to write new constitutions at the beginning of the
Revolutionary War, innovations occurred. New York established a
seven-year census of the population and electors according to place
of residence. Pennsylvania had a single-chambered legislature and
for a while an executive committee instead of a governor. In the
early 1800's the states had been occasionally innovative. Penal and
corrections systems, general education systems, institutions for
paupers, orphans and the mentally disabled were being built here
and there. Laws trying to ease the lot of children doing
factory work were starting to appear.

With all the powers they possessed,
and the possibility of learning from one another's experiments,
it is a wonder that no state could devise a
formula tending to end slavery. During the colonial period and
Revolutionary era, social inventions were not rare: the earliest period
was, of course, the most inventive. The Massachusetts Puritan
theocracy, for instance, was novel, as such. There were even
experiments in the beginning in defining the status of slaves,
involving, for example, ultimate release, or
non-inheritance of slave status. Anumber of states with few slaves
came to abolish the institution,
but their methods were scarcely more that sovereign fiat.
Still, by 1804 slavery was doomed in all of the urban
industrializing regions, all Northern states, that is - evidencing the
rural agrarian character of the institution.

The slave states were more innovative in devising means for
controlling, governing, punishing, and trafficking in humans.
And, as we shall see, following their military surrender,
the Southern state governments were especially
inventive when it came to finding means,
whether through state or voluntary action, to lash back at
and circumvent the United States Constitution, federal law,
the army and agencies of the federal government, and
Congress and the presidency.