March 29, 2024 / by 

 

Goal-Directed Agency and Intentional Agency

Index to posts in this series

Lizards

Lizards are a representative of the first category of agency according to Michael Tomasello in his book The Evolution Of Agency. As with the other categories, Tomasello focuses on the way lizards forage for prey. C. elegant, the nematode we looked at in the last post, moves and food either does or doesn’t go into its mouth. That obviously won’t work for lizards. Most species survive largely on a diet of insects, small creatures that move and flit about unpredictably.

So lizards have a different strategy. They have a goal, finding food, but they have to do several things to reach that goal. They have leave their hiding places and move to a place where there are insects. They have to spot a specific insect and then catch it and eat it. At the same time, they have to make sure they don’t become prey for other creature.

Here’s a video of a guy feeding crickets to his pet crested lizard. The lizard is in a special feeding cage. The crickets must be alive or the lizard won’t eat them. Bonus: you learn a new term: gut-loading crickets.

Following Tomasello here’s how I read this video. The lizard stands still orienting itself to its surroundings. The guy throws a cricket into the cage. The lizard sees the cricket. It takes a few steps forward. It pauses. It charges and grabs it and eats it. The guy throws another cricket into the cage. The lizard sees it, turns to chase it, misses, and pursues it in short bursts. It catches and eats the cricket. The guy throws a bunch of crickets into the cage. The lizard singles out one, chases, catches and eats it. The other crickets run around. The lizard spots one, chases, catches and eats it. This is repeated.

In this video we see a frilled lizard, a native of Northern Australia and southern New Guinea. It’s about a meter in length, and weighs over a pound. This video is heavily edited but again following Tomasello, here’s how it can be read. The lizard descends from it’s hiding place in a tree. It forages for prey, meaning any insect it might find on the ground. It sees one, approaches, catches and eats it. While chewing it looks around. It spots a predator, a black-headed python. It’s frill blows up. The snake approaches. The lizard runs really fast (also amusing). It eventually runs up a tree, making a full escape.

Tomasello says that the lizard has hard-wired goals: including eating and avoiding predators. Both it’s prey and its predators are quick and unpredictable. It has evolved to deal with that unpredictability by paying attention to the crucial aspects of the situation it perceives at any moment. It then acts to achieve a goal applicable to that situation. In both videos, the lizard eats while checking the situation. In the second it detects danger. It freezes its eating, then flares its frill, then runs. It achieves its goals by a series of go-no go decisions. That’s a clear step up from C. Elegans.

Squirrels

Squirrels are Tomasello’s example of intentional agents. He gives an example of a squirrel on a tree branch spotting a nut on a lower branch. The problem is whether to jump to the lower limb or retreat to the trunk and run down to the lower branch. He says the squirrel looks at the nut then at the tree trunk and then back at the nut. He interprets this as the squirrel cognitively considering two alternatives, then forming an intention to act, then acting. This two step process is evidence of an executive tier of mental control of behavior.

I have a young cat who does something similar. Winston knows there is interesting stuff happening on the counter when I’m making coffee. I see him looking at me, then at the counter as if contemplating jumping up. Am I paying attention to him? If I say No in a loud voice, he won’t jump. Maybe. But if I do nothing or am not paying attention, he works out an answer and acts.

Winston also knows how to open a door. Here’s a video of cats opening doors. Note that in several of the scenes the cat stares at the handle before acting. Tomasello interprets this as the cat forming an intention and then acting on the intention. Again, that implies an executive tier of mental activity.

Here’s a video of squirrels hiding nuts. Nut-hiding is a hard-wired activity, but it’s a complex problem. The squirrel has to decide where to bury the nut, and it has to be able to find it in winter. There are other squirrels waiting to steal the nuts, and predators. There are obstacles, including roots and hard soil. The squirrels stop and look around several times. In each case it looks like the squirrel makes a choice.

This is a 20 minute video of a guy operating a squirrel maze in his back yard. It’s not exactly relevant, but it looks like the squirrels are playing, something we don’t see lizards do. Also I enjoyed it.

The difference

Tomasello says that when lizards perceive a change in the situation, they freeze their current behavior and then respond to the new situation. He contrasts this chain of go/no go decisions with

… an either-or process of decision-making in which the individual simultaneously considers more than one behavioral option simultaneously (which mammals arguably do….) Pp. 33-4.

Tomasello says squirrels and other small mammals have an executive tier in their psychological processes that controls their operating behaviors, like running and burying nuts. This is a function of their larger brains, especially a larger pre-frontal cortex, more complex neurons and neural connections, and increased memory. Larger brains and longer time spent as juveniles increase the possibility of learning about the environment and experimenting, including play, which we might see as rehearsal. Mammals seem to have whet we would call emotions that also provide input to the executive tier.

The executive tier of the squirrel brain coordinates all these inputs. It considers alternative courses of action, “weighs” the costs and anticipated benefits of each and chooses one. That choice is communicated to the operant systems. The executive tier monitors the outcomes. It can inhibit one choice in favor of another if the situation changes or if the initial choice meets an obstacle or fails. Small mammals don’t use words, so it does this with some from of remembered perception.

Here’s Tomasello’s version of an executive tier:

The executive tier oversees the operational tier, as it were, and attempts to facilitate behavioral decisions via action planning and cognitive control. … It requires individuals to cognitively simulate in an organized way their own potential actions, the potential obstacles and opportunities for those actions, and the probable outcomes of those actions. They do this by perceptually imagining all these action elements in the common cognitive workspace and representational format provided by an executive tier of operation. P. 49.

It is this executive tier that gives mammals a wider range of choices of action, which presumably increases the chances of survival of individuals.

Discussion

1. Tomasello says that there isn’t any way to find mental processes in brains, so scientists infer the mental processes from the overt behavior of the creature. I think this raises the potential of anthropomorphism, leading people to ascribe human characteristics to other kinds of creatures. The executive function in humans is a defining feature of our species, so this is a real possibility.Of course, here we’re talking about a simple form of executive control.

The videos seem to provide at least some reason to think Tomasello is on the right track in ascribing an executive tier to small mammals. The empirical studies he cites may also be persuasive evidence.

2. I have described only a small part of Chapters 3 and 4 for this post. It’s allfascinating, especially the discussion of the executive tier, but it’s not relevant to my purposes in reading this book. As a reminder, this series is aimed at thinking about the origins and roles of rights in our society. I’ll get there, I promise.


Free Will, Agency, And Evolution

Most of us think we have free will, and we certainly act as if we do. We expect ourselves to do certain things and not do other things, and we feel responsible for those choices. We have the feeling, the sense, that we control those behaviors, or at least that we have the ability to control decisions about which things we do and which we don’t. We attribute to other people their own agency, which we take to be just like ours, even if they may have different ideas about proper behavior.

There’s a school of thought that says we don’t control those things. Here’s a recent article about Robert Sapolsky, a Stanford University neurobiologist, who doesn’t agree. He’s not the only one. Perhaps recognizing that this is an intractable problem, many scientists use the term agency instead of free will.

One is Michael Tomasello, whose book, The Evolution of Agency, I’ll be examining in the next few posts. Agency carries less moral baggage, and it’s something that can be described and studied neutrally; at least more neutrally. Tomasello doesn’t give a precise definition of agency. This is from the introduction:

…[I]n the current case, we may say that agentive beings are distinguished from non-agentive beings … by a special type of behavioral organization. That behavioral organization is feedback control organization in which the individual directs its behavior toward goals—many or most of which are biologically evolved—controlling or even self-regulating the process through informed decision-making and behavioral self-monitoring. Species biology is supplemented by individual psychology. P. 2.

The book rests on two assumptions. The first is that the basis of agency is a feedback control activity, a psychological mechanism, seated in the brain. The second is that agency is an outcome of evolution.

Feedback control organization

Tomasello’s feedback control organization works like a thermostat. The idea is that a goal is set for the thermostat: keeping the temperature at a certain level. It has a sensor that measures the ambient temperature and compares it to the goal. It then turns on another device that brings the temperature closer to the goal. It continues to test the ambient temperature and when it reaches the goal, it turns off the device.

Tomasello claims that this is the only model that can work to enable things to control themselves. He points out that all efforts to get machines to operate autonomously work in accordance with this model.

Evolution and agency

Tomasello doesn’t think there’s a goal for evolution. He thinks that as brains become more complex, the feedback control activity takes on a different shape, a shape that takes advantage of the bigger brain. I’ll just toss in the observation that mutations happen all the time, and some become established in subpopulations whether or not they have any survival value. That might include hair color or a larger brain. If circumstances change, the mutation may suddenly have survival value, and the subpopulation thrives while the rest of the population suffers.

Studying psychological processes

Tomasello says agency is a psychological process, one that occurs in the brain of an individual creature. It cannot be studied directly. Instead scientists infer the existence of psychological processes from the overt behavior of subjects.

Scientists infer psychological agency when the organism acts flexibly toward its goal even in novel contexts. To behave in this flexible manner, the individual must go beyond a stimulus-driven, one-to-one mapping between perception and action. The individual must be capable of choosing to act or not to act, or among multiple possible actions, according to its continuous perceptual assessment of the situation as it unfolds over time (sometimes employing executive processes such as inhibition, as a further control process, during action execution). P. 27.

The layout of the book

Evolution has been at work on this planet for hundreds of millions of years. We say that different species split off from lines of evolution, as humans split off from the great apes; and as homo sapiens eventually split off from the first hominids, and then evolved into modern humans. The lines go back to the beginnings of life on the planet, to the earliest living creatures.

Tomasello thinks certain existing species have no agency, and the rest fall into four categories. He selects five of them to represent his five categories of agency.

1. No agency: C. elegans, a tiny worm-like creature (the image on the home page is a bunch of these creatures)
2. Goal-directed agency: lizards as representative of reptiles
3. Intentional agency: squirrels as representative of small mammals
4. Rational agency: great apes as representative of great apes
5. Socially normative agency, which has two subcategories
a) young human children as representative of hominids with a simple form of socially normative agency
B) adults humans who exhibit a more comprehensive socially normative agency

Tomasello treats each category of agency in its own chapter. The last chapter is mostly for his fellow scientists, discussing gaps in the research and proposals for future work on this model. In each chapter Tomasello explains how the agency works, the evolutionary pressures that might have led to it, and the nature of the world as perceived by the example creatures. These issues are supported by a empirical evidence from academic and field studies.

I’ll take a quick look at the first three levels of agency, and discuss socially normative agency in more detail.

Creatures without agency

Let’s start with C. elegans. This is a worm-like creature about 1 mm in length. We know a great deal about it: we have sequenced its genome; and identified its 302 neurons, their connections, and the role each plays. It has no sensory apparatus beyond the ability to sense nutritious and certain noxious substances. It lives in organic material, where it eats bacteria. It has rudimentary powers of movement. They are mostly hermaphrodites. For more, see this dense Wikipedia entry.

Basically it moves around in organic muck eating bacteria. If it isn’t finding any, it moves. If it detects a noxious substance it moves. That’s about it. Tomasello says that with the tiny number of neurons, it’s hard to imagine the creature could have a goal, let alone behave flexibly to achieve it. It is purely stimulus driven. It’s sensory apparatus is very simple, so it only recognizes a few stimuli, and it responds to them mechanically.

In Tomasello’s terms, this creature is non-agentive. He calls it an animate actor. There’s not much else to say about it.

Discussion

I’m not fond of the word “agentive”, which strikes me as an ugly neologism, but it points to somehting about human behavior. Not all of our behavior is agentive. Take breathing. We can control it, but mostly we don’t. It’s an interesting exercise to think about what parts of our actions are agentive.

Another way to put that is to ask how much we resemble C. elegans.


Rights Without Reason

Posts in this series.

Free Will, Agency, And Evolution
Goal Directed Agency And Intentional Agency
Great Apes AS Rational Agents 
Socially Normative Agency
Socially Normative Agency And Rights
Coming To Grips With Free Will

Introduction

Social media is full of right-wingers bleating about the infringement of their rights. Sometimes it’s gun nuts blathering about their rights to own every gun. Sometimes it’s some dude whining about being slammed for exercising his free speech right to spew his racist opinions. These blowhards say that no limitation on their rights is permitted, whether it’s criminal penalties, civil damages, or public insults.

Perhaps these oppressed people get their idea about rights from the Declaration of Independence,

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness….

But, of course, the Declaration doesn’t confer any rights. Maybe they think the right to mouth off and the right to strut around with guns are God-given. That would explain why they are offended when they encounter consequences for their behavior.

Perhaps they believe these rights spring from the first two Constitutional amendments. But SCOTUS says otherwise in US v. Cruikshank (1875).

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It ‘derives its source,’ to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, ‘from those laws whose authority is acknowledged by civilized man throughout the world.’ It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution.

The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.

….

The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.

The Supreme Court says that neither the right of free association nor the right to keep and bear arms are granted by the Constitution. By that logic, neither is the right of free speech. The cases applying these amendments to the states under the 14th Amendment do not reject this reasoning.

It seems that our rights depend on the interpretation by five members of SCOTUS of a word like “republicerad”, or of whatever they think they know about our tangled history. If so, there is no way to explain anything about our rights. That’s especially true of this version of SCOTUS, which doesn’t even pretend to care about precedent, and invents rules to suit its preferred policy outcomes.

Preliminary Ideas

I’m going to read and write more about our rights. For starters, here are some thoughts. It will be interesting to see how these thoughts hold up against other people’s ideas.

1. Every idea people have about everything was invented by a human being. This is a point made by the early Pragmatist William James; see the last part of this post. This is the second in a three part series on Pragmatism, the other two are here and here. They lay out the basic ideas that help me to understand our world. For those interested in how this philosophy works in our time, take a look at Philosophy And Social Hope by Richard Rorty, a collection of essays by the late Pragmatist.

2. One problem with our Bill of Rights is that the language is unhelpful. Many of them are couched in the negative, leaving open the nature of the positive right. Others use imprecise language, such as “cruel and unusual”. From the beginning these amendments were seen as limits on the national government. When the Supreme Court began to implement the Reconstruction Amendments, it imposed the language in the Bill of Rights limiting the national government on the states. The result was the eradication of the power of the states to participate in the regulation of these rights. This was a major change in our federalism. And we were left with the vague language, now subject only to the interpretation of SCOTUS. Constitutionalizing these ill-defined rights leads to inflexibility in thinking about their content.

3. What exactly do we mean by “rights”? As a starting place, and in keeping with what I take to be the position of First Amendment absolutists and the gun nuts, we mean that no one is allowed to interfere with some action taken by another. For example, the right to own a gun means no one can interfere with anyone else’s right to buy and own a gun, including violent criminals and domestic abusers. The right to free speech means no one can interfere with the right of anti-abortion fanatics to scream outside my neighborhood abortion clinic.

4. Rights are inherently social, not individual. Every right requires a concomitant imposition on everyone else. The existence of rights limits the way our society can regulate itself. For example, anti-vaxxers may make religious liberty claims, while others point out that refusal to get vaccines threatens their children. If the anti-vaxxers prevail, we are all exposed to greater risk of illness and death.

This implies that rights should have a political aspect. Our current system is heavily biased towards a legalistic approach, empowering courts, especially SCOTUS, with undue power. It also focuses on the claims of individuals and ignores the impact on society and the claims of people not in the litigation. Dobbs is a good example: the plaintiff was the state government, and the defendant was an abortion clinic. What about pregnant women? What about their families? What about he impact on society? Alito and four other self-righteous rulers don’t care.

New Series

My next book will be The Evolution Of Agency by Michael Tomasello. I think it indirectly supplies a more useful approach to thinking about social relations, and thus rights. It’s short, and easy reading (mostly).

In this post I discuss the Epistemic Regime as described by Jonathan Rauch, in his book The Constitution Of Knowledge. The Epistemic Regime is the way we arrive at truth in the Pragmatic sense. I think it’s good background for some of Tomasello’s ideas about our species.

I’d like to follow that with books or papers about the theory of rights in the US. I don’t know what that will be yet, and if anyone has a suggestion, please put it in comments; also I’m still on Xitter @MasaccioEW, and slowly moving to BlueSky. @[email protected].


Conclusion To Series on The Reconstruction Era

Index to posts in this series

This series was motivated by recent scholarship arguing that the Reconstruction Amendments, the 13th, 14th, and 15th Amendments, gave our nation a new beginning, one centered on equality of citizens. I discussed The Nation That Never Was by Kermit Roosevelt; The Second Founding by Eric Foner, and Beloved by Toni Morrison, I also discussed several Supreme Court cases from that era, The Slaughterhouse Cases, US v. Cruikshank, and The Civil Rights Cases; and several recent SCOTUS cases continuing their foul legacy. Enough. Here are some final thoughts.

1. Once again I’m reminded of the astonishing amount I don’t know. I think my education as a young person was reasonably solid. But I have no memory of any of the history I’ve discussed in this series. As I recall, I was taught that we passed the Reconstruction Amendments after the Civil War, that Johnson was impeached, and that Grant was corrupt. Then we learned about a the civil service laws, a little early labor history, the financial collapses caused by speculators and frauds, and the reforms of the Progressive Era. I didn’t learn about Plessy v. Ferguson until my first mandatory history course in college. It’s worse today, of course.

Much of what I’ve written about here is posted under Left Theory, because I’ve tried to focus on abstract ideas that might provide a framework for thinking about a left version of the future. It’s hard to get worked up about ideas, which suited me as I didn’t want to write rage posts. But there’s nothing abstract about this series.

I was enraged from the beginning by the insistence of the Founding Fathers on enabling a brutal slave system while yammering about Enlightenment Ideals. Thomas Jefferson enslaved his own children with Sally Hemings even as he claimed that all men are created equal. Maybe Roosevelt is right to say Jefferson was talking about the state of nature but the contrast between ideas and practice is grotesque and disgusting. How are we supposed to accommodate it in our veneration of the Founding Fathers?

The Reconstruction Amendments were drafted by men who had waged and survived the Civil War, knew that the slavers started it, and wanted to stamp out slavery as part of the crushing victory they achieved. Voters elected Senators and Representatives who knew that the slavers had never accepted defeat; that they intended to enforce White Supremacy by force and by legalized resistance, the KKK or state legislatures. Between 1865 and 1875 Congress enacted numerous laws to enforce equal rights for all citizens, regardless of race.

The Supreme Court refused to recognize the Reconstruction Amendments or laws passed pursuant to those amendments. They read the Privileges and Immunities Clause out of the 14th Amendment. They narrowed all three amendments, and ignored the part giving Congress the power to legislate to enforce ir known purpose. Congress passed more laws, and the Supreme Court swatted them away. The Court intentionally substituted its policy preferences for those of the elected branches of government.

I’ve never claimed to be an expert in any of the areas I’ve written about here at Emptywheel. I only claim to be willing to engage with the text and to try to give it a fair reading. But this was simply too emotionally charged. Maybe someone else could read this material as if it were an essay by John Locke, but not me. And to think that a vast majority of moraly and intellectually deficient Red State politicians want to walk away from it — no. Just no.

2. Much of the material in the last part of the series revolves around the role of the Supreme Court and its centuries of rejection of majority rule. But that’s not the whole story. If a majority of White voters thought the Freedmen and their own Black neighbors were their equals they could have forced change one way or another. But while many, perhaps most, white people were sympathetic, that didn’t mean they were ready to accept Black people as equals.

This point is illustrated by a scene in Beloved. Long after the end of the Civil War Denver, a Black woman, desperately needs a job. She goes to the home of the Bodwin’s, the people who helped her grandmother and mother afterthey escaped from slavery. She knocks on the front door, and Janey Wagon, the Bodwin’s maid, opens it.

“Yes?”
“May I come in?”
“What you want?”
….
“I’m looking for work. I was thinking they might know of some.”
“You Baby Suggs’ kin, ain’t you?”
“Yes, ma’am.”
“Come on in. You letting in flies.” She led Denver toward the kitchen, saying, “First thing you have to know is what door to knock on.” P. 297-8.

Even the Bodwin’s, who were aggressively anti-slavery, didn’t let Black people enter at the front door. I’d guess this was the dominant attitude in that era. Citizenship was one thing. But there was little, if any, support for social equality.

One piece of evidence supporting the view that the national consensus was that social equality was impossible can be found in a 1910 editorial in the New York Times, supporting a Jim Crow law requiring separation of Black and White people on railroad cars in interstate commerce. The Times says the case, Chiles v. Chesapeake & Ohio RR, reverses an earlier decision barring such discrimination.

The present decision reveals the influence of the change in public opinion since the reconstruction era: it justifies both the law and compliance with it by the carrier, and permits the rest of the Southern States to amend their “Jim Crow” laws after the example of Kentucky.

The Southern Legislatures, thwarted during the first years following the civil war in their efforts to separate negroes from whites in public conveyances, have gradually passed laws to this effect in every State save Missouri, and the courts have sustained them.

Without public opinion on their side, Black people were left to their own devices, treated as second-class citizens by state and federal governments. Over time the national mood turned into indifference to violent White Supremacist attacks on Black People. This mood was reflected in Supreme Court decisions in cases like Plessy v. Ferguson. That indifference didn’t even begin to change until the 1950s. White Supremacists, closet racists, and pandering politicians continue to fight a rear-guard action with plenty of wins.

That thought takes the edge off the fury and exposes a deeper layer of emotions: sadness that just like the Founding Fathers we do not live up to our professed ideals.


Beloved By Toni Morrison

Index to posts in this series

My book club chose Beloved by Toni Morrison for our last meeting, so I was reading it along with the cases I’ve been discussing in this series. It’s a marvelous book, beautifully writtent. One piece of that craftsmanship is that although the events are not in chronological order we don’t have a problem following along because she gives a a few key words that place things in time.

This book can take different shapes for different people. I read it as stories about the people who endured the physical and psychological horrors of enslavement.

Kermit Roosevelt and Eric Foner describe the efforts of Black people to end slavery, by participating in abolition movements, by writing for themselves and for White people, and by the dangerous work of helping escapees. Some of these people appear in Beloved: John and Ella, for example, and Stamp Paid. The entire community helps newly freed people come to grips with their new status.

We know something about the cruelty of slavers from oral histories compiled by writers during the Depression and other sources. We have some first person accounts of slavery and escape. There’s some of that in the book. But for me, the power of Beloved lies in Morrison’s imagining of the reaction of newly freed people to freedom, and her instantiation of the psychic injuries inflicted by the slavers on her characters.

None of the psychological damage was discussed at the time as far as I know. And it’s certain that the voices of former slaves, their children, and their communities were never heard by the Supreme Court, which couldn’t even be bothered discussing the Colfax Massacre in US v. Cruikshank. I’ll discuss just two aspects of this powerful work.

1. Baby Suggs and Sethe react to being freed.

Baby Suggs was purchased by Mr. Garner from a slaver in North Carolina and taken with her children to Garner’s farm in Kentucky, Sweet Home. He was a decent slaver, who didn’t beat or mistreat his property. Years later he allowed Halle, Baby Suggs’ son, to buy her freedom. Garner takes her to Cincinnati. Morrison writes:

Of the two hard things—standing on her feet till she dropped or leaving her last and probably only living child—she chose the hard thing that made him happy, and never put to him the question she put to herself: What for? What does a sixty-odd-year-old slavewoman who walks like a three-legged dog need freedom for? And when she stepped foot on free ground she could not believe that Halle knew what she didn’t; that Halle, who had never drawn one free breath, knew that there was nothing like it in this world. It scared her.

Something’s the matter. What’s the matter? What’s the matter? she asked herself. She didn’t know what she looked like and was not curious. But suddenly she saw her hands and thought with a clarity as simple as it was dazzling, “These hands belong to me. These my hands.” Next she felt a knocking in her chest and discovered something else new: her own heartbeat. Had it been there all along? This pounding thing? She felt like a fool and began to laugh out loud. P. 166.

Sethe is Halle’s wife. A few years after Baby Suggs is freed, Sweet Home has been taken over by a vicious overseer, Schoolteacher. Sethe is pregnant, and is sexually assaulted and whipped senseless by Schoolteacher’s nephews. Sethe escapes. Just before crossing the river into Ohio, she gives birth to a daughter, Denver, and the last part of the trip is terrible. Then she reaches the safety of the home of Baby Suggs.

Sethe had had twenty-eight days—the travel of one whole moon—of unslaved life. … Days of healing, ease and real-talk. Days of company: knowing the names of forty, fifty other Negroes, their views, habits; where they had been and what done; of feeling their fun and sorrow along with her own, which made it better. One taught her the alphabet; another a stitch. All taught her how it felt to wake up at dawn and decide what to do with the day. … Bit by bit … she had claimed herself. Freeing yourself was one thing; claiming ownership of that freed self was another. P. 111-2.

The freedom Baby Suggs and Sethe share is touching in its smallness and fragility. I write about the abstract idea of freedom, as here, but this is so much more meaningful. In the long run, it’s not enough, but for these people in these moments it’s everything they can imagine.

2. Beloved.

Sethe’s 28 days of freedom end when Schoolteacher and other slavecatchers and the local sheriff find her. Sethe kills her two-year old daughter and tries to kill her two boys rather than let them suffer under slavery. Schoolteacher realizes she’s of no use as a slave, and leaves her in the hands of the sheriff. It’s unclear why, perhaps because of the intervention of anti-slavery advocates, but she only serves three months in jail and then is freed. This aspect of the story is loosely based on the life of Margaret Garner.

Sethe’s house is haunted. Everybody thinks it’s the murdered child. The community thinks it’s frightening, and cuts off Baby Suggs, Sethe, the two boys and Denver. Years later a strange woman appears, calling herself Beloved, the name engraved on the headstone Sethe purhased for her dead child. Beloved seems to exist as a separate, physical entity, but she has no history. The introduction of this character suggests she’s come back from the dead.

This is from the Wikipedia discussion of this part of the book:

Because of the suffering under slavery, most people who had been enslaved tried to repress these memories in an attempt to forget the past. This repression and dissociation from the past causes a fragmentation of the self and a loss of true identity. Sethe, Paul D., and Denver all suffered a loss of self, which could only be remedied when they were able to reconcile their pasts and memories of earlier identities. Beloved serves to remind these characters of their repressed memories, eventually leading to the reintegration of their selves. Fn. omitted.

I wonder about that first sentence. Morrison seems to confirm this reading in the forward to the Kindle edition.

In trying to make the slave experience intimate, I hoped the sense of things being both under control and out of control would be persuasive throughout; that the order and quietude of everyday life would be violently disrupted by the chaos of the needy dead; that the herculean effort to forget would be threatened by memory desperate to stay alive. To render enslavement as a personal experience, language must get out of the way. P. xvii.

The community of free Black people share the experience of haunting and sense the danger around Beloved. I assume they share some of the same psychic fragmentation. The community is there for the denoument, when the fragmentation seems to heal for all of them.

Now recall the offhand comment of Joseph Bradley in The Civil Rights Cases:

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.

Just shake it off, like a hard hit in a soccer match. And Black people are expected to call Bradley “Mr. Justice”.
=====
Featured image credit.


The Supreme Court Has Always Been Terrible

Index to posts in this series

The Civil Rights Cases

The Slaughterhouse Cases and US v. Cruikshank are preludes to the final gutting of the Reconstruction Amendments in The Civil Rights Cases, decided in 1883. Earlier bills aimed at insuring the full citizenship of Black people were struck down by the Supreme Court but Congress kept trying, passing another Civil Rights Act in 1875.

The new law required all businesses to serve people equally regardless of race or prior condition of servitude. The Civil Rights Cases are a consolidated group of cases brought by Black people to enforce their right stay in a hotel, to visit a theater, to sit in the dress circle of a theater, and for Black women to ride in the Ladies Car on a railroad. The Court struck down the law on the same grounds as cases linked above. I have two further observations.

1. Writing for the majority, Joseph Bradley writes:

We have … felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court, and we are bound to exercise it according to the best lights we have.

Bradley doesn’t say who threw the “responsibility of an independent judgment” onto him. He uses the passive voice to hide it. We know it can only come from the minds of the members of the Court. He also knew he could get away with this outrageous assertion of power. By 1883 Congress was controlled by the Democrats, then the part of White Supremacy, so they didn’t care. The presidency, then at a low ebb in power, was irrelevant.

The lives and liberty of Black people didn’t count, and nothing was left of the Reconstruction Amendments.

2. To add insult to injury Bradley offered this argument.

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.

The Supreme Court had struck down that “beneficent legislation”. Bradley knew about the Colfax Massacre. He knew the army had been sent in to stop murderous groups like the KKK. He know about lynchings, rapes, robberies, and mob violence. He knew that states refused to protect Black citizens, and that Congress was trying to fill the gap. He knew full well the intent of the Reconstruction Amendments was to enable the federal government to protect Black Citizens. He just didn’t care.

Bradley would fit right in with the MAGA SCOTUS of today.

Our Current SCOTUS Doesn’t Care About The Consequences of Its Decisions

Three examples will suffice.

Gun Case. Here’s a section of the oral argument in Macdonald v. City of Chicago.

… BREYER: You’re saying they can have — no matter what, that the City just can’t have guns even if they’re saving hundreds of lives — they can’t ban them.

….

… SCALIA: There’s a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?

Miranda is not analogous, and the intellectual fraud Scalia knew it. The statistics the odious Scalia is talking about are real dead and injured people. Like this child. Scalia doesn’t care about these murders or what guns and gun violence do to our society. He thinks his views of the intent of the Founders are more important. He thinks the Founders would sacrifice thousands of dead people for the right to waltz around with an AR-15.

The OSHA Rule. Here’s a snippet from oral argument on the OSHA Covid vaxx or test rule.

… ROBERTS: No, it’s not so much that OSHA has less power. It’s that the idea that this is specific to particular agencies really doesn’t hold much water when you’re picking them off one by –one by one.

I think maybe it should be analyzed more broadly as this is, in effect, an effort to cover the waterfront. I’m not saying it’s a bad thing.

But I don’t know that we should try to find, okay, what specific thing can we find to say, oh, this is covered by OSHA? What specific thing can we find to say that this is covered by the hospitals? What specific thing can we find to say, oh, no, we’re doing this because this is a federal contractor?

It seems to me that the more and more mandates that pop up in different agencies, it’s fair –I wonder if it’s not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why don’t the –why doesn’t this be the primary responsibility of the states?

Roberts is saying it’s suspicious that Biden (and Trump before him) marshaled all government agencies to deal with the pandemic. He’s going to decide how the government can respond, no matter what the statutes say, and as Elizabeth Prelogar, the Solicitor General responds, he could just read the statute. But you won’t see Roberts taking any blame for the people who died, or spent days or weeks in intensive care, or got long Covid, because of his decision. For him, that’s just statistics. He doesn’t care.

Abortion. In Dobbs v. Jackson Whole Women’s Health Alito says SCOTUS doesn’t have to follow precedent, meaning Roe v. Wade, in part because no one can prove they rely on it. Reliance requires proof that one is planning in advance based on the precedent. No one plans to get pregnant then get an abortion. Presto, no reliance. There’s more, and it just gets more cruel.

Alito ignores the actual effect of Roe v. Wade: that women and their families can control their own lives, that their lives are valuable. The abstract idea that states should have a say in women’s lives is more important than an unknown number of deaths, thousands of dangerous pregnancies, and loss of dignity as citizens. Alito doesn’t care.

Conclusion

The Constitution doesn’t give SCOTUS the final say on our rights. It doesn’t say SCOTUS has the unrestrained power to throw out laws and rules created by the elected branches. That’s all invented by SCOTUS itself, taking power and control away from democratically-elected officials.

The Fox News Six would repeat every decision of the Reconstruction Era Supreme Court. They follow in the footsteps of people who don’t care.


The Major Questions Metadoctrine and The Slaughterhouse Cases

In my last post I show how US v. Cruikshank (1876) and The Slaughterhouse Cases (1873) affect our gun control crisis. In this post I look at the connection between The Slaughterhouse Cases and Biden v. Nebraska, the recent case striking down Biden’s student loan reduction plan.

The Slaughterhouse Cases

I discuss The Slaughterhouse Cases here. The Supreme Court could have decided them strictly on the basis of the police power. The appellant butchers argued that the untrammeled right to earn a living was a right protected by the Privileges or Immunities Clause of the 14th Amendment. That’s obviously not true. The Court later takes up the purposes of the Reconstruction Amendments, and there’s nothing to support the Appellants’ argument.

But Samuel Miller, who wrote the majority opinion, explains that he and the other members of the Court have thought it over, and “ we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that, we have neither the inclination nor the right to go.”

One of the advisory opinions that follow is that the Reconstruction Amendments were not intended to change the balance of powers between the federal and state governments. Miller justifies this by saying that if Congress wants to make an significant change the balance of powers between the states and the US, it has to do so in language acceptable to the Supreme Court.

Earlier in the opinion, MIller said that the Reconstruction Amendments were intended to insure that Black people had a full range of rights, just like White people. Section 5 gives Congress the power to enact laws to secure that right. So at the very least, the Reconstruction Amendments change the relations between state and US governments enough to permit the US to protect the rights of Black people. It’s hard to imagine clearer language, and Miller doesn’t even hint at one.

Furthermore, by the time of The Slaughterhouse Cases Congress had enacted two civil rights laws and three enforcement acts. This effectively is a declaration of Congress’ understanding of its power, and that of the President. Miller ignores the views of the other two branches. Only the opinion of five members of the Supreme Court counts. The Supreme Court is the unelected final authority in our democracy.

So, we have three points from The Slaughterhouse Cases:

1. If the Supreme Court majority wants to issue a ruling in a case, it will do so, regardless of precedents it might have established.

2. If Congress wants to accomplish a major change in our government it must figure out some language that even the Supreme Court is afraid to reject, but likely that’s impossible.

3. SCOTUS is supreme; it ignores the other two branches if it chooses.

Biden v. Nebraska

Majority Opinion. John Roberts’ majority opinion addresses the standing of the Appellants. Most of them don’t have standing, but no matter, because Roberts asserts that Missouri does and one is plenty. The basis for Missouri’s standing is that it had created MOHELA, an independent nonprofit governmental corporation, which owns and services student loans. MOHELA refused to participate in the lawsuit (I wonder why) but the Missouri AG claims that Missouri can sue in its place. He says MOHELA would lose an estimated $44 million in fees for loan servicing. None of that would ever go to Missouri, ever, but so what?

Roberts and the Fox News Six say MOHELA is an “instrumentality” of Missouri, the instrumentality might lose money which is an injury sufficient for standing, and that’s good enough. What he means is that standing is available because he wants to rule on the merits. Just like in The Slaughterhouse Cases.

In her dissent Elena Kagan explains that standing rules arise from the Constitutional requirement that SCOTUS only has jurisdiction of actual controversies. If a plaintiff isn’t injured, there is no standing.

It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have.

On the merits, Roberts addresses the statutory power granted to the executive branch to waive or modify any provision of the student loan program in the event of a national emergency. He explains that “waive” doesn’t mean waive, and that “modify” doesn’t mean modify, if the change is big. A lot of money is a big change. He doesn’t even hint at the words Congress should have used to get its way.

He says his opinion is supported by what he grandiosely calls the Major Questions Doctrine, because there’s a lot of money at stake. I call it the Major Questions Metadoctrine, or MQM, for reasons that will appear.

Barrett’s Concurrence. Amy Coney Barret, who clerked for the odious Antonin Scalia, styles herself a textualist. She wants us to know that the MQM is very good, so she writes a concurring opinion. Most of is is technical legal stuff about canons of interpretation. Two points are worth mentioning.

1. Barrett cites a 2010 law journal article by John f. Manning, a Harvard Law professor: Clear Statement Rules and the Constitution. You don’t have to read past the abstract to find out what Manning thinks:

This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them.

Barrett ignores this point entirely. The MQM is supposed to be a clear statement rule. There are a number of these, mostly directed to structural constitutional issues like federalism. The Slaughterhouse Cases could be seen as an application of a clear statement rule, if it weren’t so obviously unnecessary and wrong.

In Biden v. Nebraska the MQM is applied to enforce Congressional control over the purse. But as Barrett herself shows, that isn’t in the Constitution. In her view, this purpose is an emanation from the Appropriations Clause. The power of the purse is a judicial trope, already once removed from the text of the Constitution. The MQM is a further step from the Constitution. Thus, a metadoctrine.

2. Barrett offers a hypothetical to explain her view.

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?

This is a laughable hypothetical. The Biden Administration didn’t just decide for funsies to reduce student debt. There was an economic catastrophe caused by a pandemic that killed a million Americans and sickened tens of millions.

The correct hypothetical is not a trip to a theme park, but a trip to the emergency room paid with the credit card.

This is shoddy work, but it’s all we an expect from rigid ideologues. It’s also an ugly parallel with the Reconstruction Era Supreme Court.

Conclusion

The parallels to The Slaughterhouse Cases are, I hope, obvious.

1. SCOTUS will ignore every restriction on its use of power if five members want to.

2. There is no statutory language clear enough if five (or more) members of SCOTUS don’t like the policy.

3. SCOTUS is very supreme.


Cruikshank, Gun Control, And Bad Rulings

Index to posts in this series

We’ve looked at two early cases interpreting the Reconstruction Amendments, The Slaughterhouse Cases and US v. Cruikshank. These cases are still in force, and have done massive damage, to Black people especially and others who hoped to gain their rightful freedom; to the balance of power among the three branches of government; and to our jurisprudence. Recent 2nd Amendment cases are good examples of this damage.

Gun control

Recapitulation of the old cases. In The Slaughterhouse Cases the Supreme Court analyzes §1 of the 14th Amendment (text below). The second sentence bars states from abridging the privileges or immunities of “citizens of the United States”. The Court says this provision applies only to the tiny number of privileges or immunities that attach to people solely as citizens of the US. It doesn’t apply to their rights as citizens of a specific state.

The Court says that the !4th Amendment doesn’t change the relationship between state and federal governments. 83 US 77-78. It’s a negative argument: such a monumental change must be in very clear language, and this isn’t clear enough to suit the Court.

In Cruikshank, the Court examines the rights which the defendants allegedly illegally conspired to violate. One is the right to keep and bear arms for a lawful purpose. Here is the Cruikshank Court’s entire discussion of that issue.

The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.

Citing several older cases, the Court says that the 2nd Amendment does not guarantee the right to keep and bear arms; all it does is bar the US from infringing on that right. It says that states can regulate the ownership of arms as part of their police power.

To summarize:
1. The 14th Amendment didn’t change the power relations between the state and federal governments.
2. Rights not specific to the Constitution are solely the domain of the states under their police power.
3. The 2nd Amendment does not grant any rights to anyone. It merely prohibits the US from infringing the right to bear arms.
4. Any important change in the laws or Constitution must be clear enough to suit the Supreme Court.

Current cases. Eventually the Supreme Court started applying the Bill of Rights to the states using the Due Process Clause. By the time Heller v. Dist. of Columbia was decided, most of the Bill of Rights had become more or less applicable to the states.

In Heller Scalia cites Cruikshank approvingly. He writes: “States, we said, were free to restrict or protect the right under their police powers.” He completely ignores the holding of Cruikshank and several older cases that the only function of the 2nd Amendment is to prohibit the US from infringing the right, as well as the holding that the right does not arise from the Constitution. He simply imposes his own textualist reading of the 2nd Amendment as if it were written today instead of 240 years ago.

A few years later in Macdonald v. City of Chicago Alito put SCOTUS in charge of controling state power over guns. The Seventh Circuit had upheld Chicago’s gun regulations, relying in part on Cruikshank. Alito says the issue is: “… whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process,” an issue not considered by the lower courts. Cruikshank isn’t applicable because it only considered the Privileges or Immunities Clause.

Alito gives a short history of cases applying the Due Process Clause to the Bill of Rights starting with this: “The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system.” He doesn’t tell us what that change is, or how it applies to guns.

He cites Heller for the proposition that the 2nd Amendment creates a right to bear arms. Then he announces that the right to and bear arms is covered by the Due Process Clause. There isn’t really an explanation for this. Alito just says it’s, like, you know, fundamental to the concept of ordered liberty, amirite, for every American to carry a gun for “self-defense”. Like this guy.

Then in Bruen, Clarence Thomas says that the only allowable limits on the the right to keep and bear arms are those the states imposed prior to either 1789 or 1868. Whatever that right was, the states obviously regulated it under their police powers, but Thomas doen’t even mention Cruikshank and The Slaughterhouse Cases. I guess Macdonald says it was unconstitutional for states to regulate guns after the ratification of the 14th Amendment, even though they had that right under Cruikshank and used it for 130 years.

Conclusion. The end result is that we can only regulate guns if five members of the NRA Court permit it. And now we learn that Bruen didn’t slake the blood lust of Thomas, Alito, Gorsuch and Kavanaugh. They want to flood the country with ghost guns.

Why Not Overrule Those Old Cases?

I think one reason SCOTUS doesn’t overrule Cruikshank and The Slaughterhouse Cases is that it would change our understanding of our dual sovereignty system. In The Slaughterhouse Cases the Court said that a broad interpretation of the 14th Amendment “…would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.” Of course SCOTUS is already doing that, as in gun regulation cases.

But if we dropped the pretense that the states are the dominant power in deciding the rights of citizens, SCOTUS would lose one of its go-to arguments against federal laws it doesn’t like. Dobbs, for example, says that the right to abortion should be decided by the states. Section 5 of the Voting Rights Act offends the dignity of the states (no, really), according to Shelby County v. Holder. And in NFIB v. Sebelius, SCOTUS says that the US can’t pressure the states to provide Medicaid to all their citizens, who, I note, are also citizens of the US, because state dignity is so important to suffering people.

There’s another possibility. The right-wing six simply don’t care about any of the traditional pillars of jurisprudence, such as stability, deference to the other branches, institutional reputation, and procedural constraints on power. And they’re careless. They don’t even try to be coherent or to clean up the loose ends of precedent that held for 150 years, or to create workable rules. See part IIIB of Breyer’s dissent in Heller and the dangers to society created by Bruen, as in the Rahimi case.

It’s bad enough that we’re goverened by five or six unelected lawyers. It’s worse that tbese second-rate people do such shoddy work.

———————
Section 1 of the 14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.


The Colfax Massacre And US v. Cruikshank

The Colfax Massacre took place on Easter Sunday, April 13, 1873, in Colfax Louisiana. The 1872 Louisiana election was hotly contested by the Democrats who favored a return to antebellum conditions as fully as possible, and Republicans who worked to bring Freedmen to full citizenship. Wikipedia has a long entry on the Colfax Massacre, including a history of the build-up to that bloody Sunday.

The Louisiana militia, many of whom were Black, a mob of former Confederates and KKK members showed up with cannon and guns, and attacked. The militia surrendered or escaped. The mob caught and killed them, including those who surrendered, between 62 and 153 men; the exact number is unknown. There was only one survivor.

Eventually a few of the attackers were tried and convicted in federal court in New Orleans under the Enforcement Act of 1870. They appealed to the Supreme Court, which overturned the verdict in US v. Cruikshank. On appeal, the Circuit Court was divided on the question of whether the indictments charged a crime, or as we would say today, the constitutionality of the Enforcement Act.

The opinion is by Morrison Waite, the chief. The syllabus describes the indictment. It was based on §6 of the Enforcement Act of 1870:

‘That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provisions of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony….

The Court says that this provision applies only to rights that arise under the Constitution or laws of the United States. It cites the Slaughterhouse Cases for the proposition that people are citizens of the US and of a state, and that one’s rights as a citizen of the US are different from ones rights as a citizen of each of the several states.

Next the Court gives us a short version of the theory we’ve seen before, that people form governments to promote their general welfare and protect their rights. The role of every government is the protection of the inhabitants, but they may only do so to the extent of their powers.

This, I think, is the key argument, given without explanation:

The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not.

Waite knows this isn’t exactly true. The same act may offend the laws of both the state and the US. He gives examples: counterfeit coins, and assaults on a federal officer. Each may be an offense against both the laws of the state and the US.

He notes that the US government only has the powers in the Constitution. He sats his job is to find out whether the rights the defendants allegedly interfered with are granted by the Constitution or the laws of the US.

Counts 1 and 9 relate to the right of peaceable assembly. These are not granted by the Constitution, says Morrison Waite. They are the natural rights of any free government.

The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains … subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The 1st Amendment is couched in the negative, prohibiting US government from interfering with the right to assemble, while leaving the states free to regulate it as they saw fit. The right to assemble to petition Congress or the federal government is a federal right, and if the indictment alleged that that was the purpose of the assembly, this would be a crime. But it didn’t.

Counts 2 and 10 concern the right to keep and bear arms. This also is not given by the Constitution. The 2nd Amendment merely “… is one of the amendments that has no other effect than to restrict the powers of the national government…” leaving citizens to seek the protection of the states under their police powers.

Counts 3 and 11 assert the right not to be deprived of life or liberty without due process. The Court is offended by this charge, which it says is nothing more than a standard murder charge. The right to life is a natural right, obviously not granted by the Constitution. Waite says that the 14th Amendment doesn’t add to the powers of the US government. It’s merely an additional guarantee of the right every citizen has under state protection.

Counts 4 and 12 claim that the defendants conspired to deprive black citizens of their right to equal treatment with white citizens as respects their various rights. Waite says this is merely one group of citizens killing another. The 14th Amendment doesn’t add to the powers of the US to protect one group of citizens from another.

Counts 6 and 14 allege violation of rights connected with voting. The Court says that suffrage is a right granted by the states. All the 15th Amendment does is to prohibit discriminate in granting the right to vote on account of race. Thus the right to vote is not a right granted by the US.

Counts 7 and 15 concern voting. Waite says that elections were state elections, and so the US isn’t involved.

Counts 5, 12, 8 and 16 all involve direct allegations that the defendants acted together to deprive the dead of their rights as citizens on account of their race. Waite asserts that the pleading of these counts is defective because it doesn’t specify the facts sufficiently. It merely recites the statutory language. In order to be adequate, it must describe the facts in sufficient detail for the defendants to protect themselves, and to insure that they are not tried twice for the same offense.

Discussion

1. The attitude of the Court is summed up by this quote: “The charge as made is really of nothing more than a conspiracy to commit a breach of the peace within a State.” The New York Times noted this in its headline. That’s bullshit. This was a race riot, the exact thing Congress was aiming at.

2. Like The Slaughterhouse Cases, this case takes up issues unnecessary for the decision, as the dissent points out, and as Waite does with several counts. The case can and should be decided on the limited ground that the indictment is insufficient. There was no need to reach constitutional questions.

3. The Court doesn’t look at whether the Reconstruction Amendments changed the powers of the states and the US as regards race, why they don’t give the federal government the power to protect at least Black citizens, as an additional safeguard of their rights as citizens. This would be an example of the powers of the two governments do deal with the same events on different grounds.

4. The Court thinks the important thing about this case is the line between the powers of the states and the US. It protects the power of the states to control the lives of their citizens, regardless of the consequences for Black citizens.

There is no indication that Louisiana took any interest in the murder of 150 Black people. As best I can tell, the locals didn’t even investigate the murders. Everyone knows this, including the members of the Supreme Court. Waite offers some worthless words about the responsibility of the states, but he doesn’t care whether they do or not.

This case sets the Court on the road to allowing both both federal and state governments to ignore mob violence against Black citizens, and outright denial of their rights, the result the Reconstruction Amendments were intended to prevent.


The Slaughterhouse Cases

Index to posts in this series

Chapter 4 of The Second Founding by Eric Foner lays out the campaign of the Supreme Court to strangle (my word) the Reconstruction Amendments. The last chapter is the requisite effort to show how things can get better.

I think there’s more to be gained by reading the main decisions on the Reconstruction Amendments, so I’m going to depart from Foner’s text at this point. I think we will see that SCOTUS today uses the same tactics to strike down laws and ignore precedent. I’ll start with The Slaughterhouse Cases, 83 US 36 (1873). The syllabus takes up the first 20 pages; the opinion begins at 57.

Facts. The butchers of New Orleans were scattered across the city. They brought animals for slaughter from the river and train stations to their shops, and threw the offal and scraps into the Mississippi. This was a public nuisance and a health issue.

Louisiana passed a law creating a special corporation charged with building landings and railroad connections to a new set of slaughterhouses in a single location outside the city. The law gave the corporation an exclusive license, required the corporation to lease space to all comers (including Black butchers) for slaughtering operations, set price limits, and required space for a medical officer to check animals and meat for disease, among other things.

Holding. The Supreme Court upheld the statute in a 5-4 decision. The principle ground of the majority opinion is that the law was within the police power of the State. The police power is a legal term describing the power of the state to secure the “the health, good order, morals, peace, and safety of society”, as the dissent puts it. P. 87.

This case could have been decided solely on traditional police power lines, even if the Louisiana law was too broad. But the Court felt it should write about the Reconstruction Amendments, which were a significant part of appellate argument. So the Court ignored the principle of Constitutional Avoidance, the idea that a case should not be decided on constitutional grounds if some other ground is dispositive.

The discussion of the Reconstruction Amendments begins on P. 66. Samuel J. Miller, a Lincoln appointee, gives a brief history of the Civil War and the Reconstruction Amendments. He writes that the purpose of these amendments was to secure

… the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. P. 71.

The Court goes on to say that the amendments apply to everyone, but to construe them fairly the Court has to consider their “pervading spirit” and the evils to be remedied, and their purpose. This is what Justice Ketanji Brown Jackson is talking about in Allen v. Milligan, the Voting Rights Act case from this last term, and in SFFA v. Harvard, the affirmative action case.

Miller then discusses the 13th Amendment at length. Then he turns to the 14th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Miller explains that this clause was intended to overrule Dred Scott. Then he says:

… the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.

….

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. P. 73-4.

The second sentence of §1 says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

This means, Miller says, that the US can make laws affecting the privileges or immunities a person holds as a citizen of the US, and can protect those rights from state interference. But the 14th Amendment doesn’t give the Federal government the power to control or create the rights granted a state gives to its citizens.

There are very few privileges or immunities of citizens of the US. They are in the text of the Constitution, or the Bill of Rights if the Supreme Courts finds they are. They include protection against ex post facto laws and bills of attainder, and protection on the high seas, and not much else.

What are the privileges or immunities of citizens of states? Miller says they encompass “… nearly every civil right for the establishment and protection of which organized government is instituted.” P. 76. The sole point of the 14th Amendment is to guarantee that all such rights granted to citizens of the state are granted to all citizens within its jurisdiction equally.

Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. P. 77.

Miller claims that other construction would enable the federal government to control the exercise of the power of the state to make laws they think best, and set the Supreme Court up as the ultimate arbiter of the powers of states to pass laws. That would change the entire theory of government in this country. It that was the goal, the drafters of the 14th Amendment would have to use “… language which expresses such a purpose too clearly to admit of doubt.” P. 78.

Miller says that the states can enact any law they like, so long as the laws don’t discriminate against Black people as a class. P. 81. He doubts that the 14th Amendment could ever apply to anyone besides Black people.

The opinion concludes with a reminder that the Founders were worried about federal encroachment on state power, and claims that the Supreme Court “…has always held with a steady and an even hand the balance between State and Federal power….”. P. 82.

Discussion

1. This case shows the disaster that can arise when SCOTUS gives advisory opinions. There is a huge middle ground between Miller’s cramped reading of the 14th Amendment and the Appellant’s broad view. The opinion establishes a powerful limiting principle: that the purpose of the Reconstruction Amendments is to secure and protect the Freedmen and Black people. It would meant that the federal government can intervene to prohibit actual discrimination against Black people, and generally everybody, but it can’t intervene just because it doesn’t agree with the state’s decisions about privileges and immunities equally applicable to all citizens. That was a perfectly likely outcome in a proper case, a case where a state, for example, barred Black people from testifying against White people.

2. The Appellants were trying to stop state regulation of their businesses. They claim they have an
unfettered right to do business wherever and however they see fit, and that the 14th Amendment protects their exercise of that right. They didn’t win this case, but the idea persisted, and a form of it eventually was adopted by the Supreme Court, as seen in cases like Lochner v. New York.

3. There’s a tendency today to say that SCOTUS, a once-respected institution, has suddenly collapsed in a mixture of partisanship and hubris. Maybe we should ask when that wasn’t the case.

Copyright © 2024 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/author/masaccio/page/2/