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.

Index to posts in this series

After the 14th Amendment and the Reconstruction Act of 1867 were adopted the Freedmen in the former slave states had the vote. That left all the Black men in the Union and Border States and Tennessee, and that eventually was seen to be untenable. The Democrats, then the right-wing party, made universal Black suffrage an issue in the election of 1868. In The Second Founding, Eric Foner says this campaign “… witnessed some of the most overt appeals to racism in American political history.” P. 97. Grant won, but the popular vote was close, and Democrats made gains across the Union. That gave impetus to passage of an amendment to ensure the vote to all Black men.

Several amendments were introduced. The main choice was whether to support universal suffrage or only for Black men. The Radical Republicans wanted a bill setting national standards for voting, a position consonant with Art. 1 § 4 of the Constitution.

But here the true level of US bigotry revealed itself. Several Union states made it clear they wouldn’t support suffrage for Germans and/or Irish Catholics (and as one of the latter, I’d say we’re pretty harmless). In the West, prejudice against Chinese immigrants was a powerful force, evoking racist comments akin to those directed at Black people. As time expired, we got the Fifteenth Amendment in its most limited form:

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2 authorizes Congress to make laws enforcing Section 1.

Section 1 is not a positive grant of suffrage to Black people. Instead, it authorizes the states to control suffrage as they see fit as long as they don’t use race as a condition. Thus it authorized Ohio to deny suffrage to German immigrants, and Rhode Island to grant suffrage only to Irish Catholic property owners; and it enabled the states to use non-racial laws to exclude Black men from the polls.

The Republicans worried that Northern states wouldn’t ratify a positive version, granting suffrage to all adult males, let alone a broader version, barring discrimination on the basis of, for example, religion. There was no question of enfranchising women or Native Americans. The final draft of the bill in each house included the right to hold office, but that was eliminated in conference, and the House version of a positive enfranchisement was dropped in favor of the Senate’s negative version.

Foner points out that legislators knew that the negative version could be gamed by the states, but assumed, or perhaps hoped, that the 14th Amendment would make that poisonous to the slave states, because discriminatory requirements would affect White people too. But that turned out to be a false hope, thanks in large part to the efforts of the Supreme Court. Also, it turns out that rich white Southerners weren’t opposed to blocking poor whites from the ballot box, or shielding them from the laws with other techniques.

The first few years after the Civil War saw the creation of a number of White vigilante groups, including the Ku Klux Klan. These groups wreaked terror on Black people across the former Confederacy, murdering and raping, pillaging and burning. The slave states did nothing to stop this hideous violence, and they did nothing for decades, leaving their Black populations to die, leave, or suffer in silence.

In the early 1870s Congress began consideration of laws to enforce the Reconstruction Amendments. Three bills, the Enforcement Acts, gave the federal government the power to punish violence against Black people, using federal courts and marshals. But they were inadequate to force the slave states to protect their Black citizens. Eventually Congress enacted the Civil Rights Act of 1875, which was a comprehensive effort to protect Black people from all kinds of private violence intended to deny Black people the rights guaranteed by the Reconstruction Amendments.

In the debates over all these laws, a substantial number of federal legislators called these laws violations of the principles of federalism. As we will see, the Supreme Court agreed, and struck down the new laws. Eventually because of the intransigence of the Court, the 13th Amendment was ignored, the 14th Amendment was gutted, and the 15th Amendment was barely useful.

Discussion

1. Foner integrates into his text excerpts from the debates in Congress over the Amendments, and from newspaper articles, giving a flavor of the rhetoric and feelings of the speakers and perhaps those of the elites. Here’s a nice example:

“Tell me nothing of a constitution,” declared Joseph H. Rainey, a black congressman from South Carolina whose father, a successful barber, had purchased the family’s freedom in the 1840s, “which fails to shelter beneath its rightful power the people of a country.” By the people who needed protection, Rainey made clear, he meant not only blacks but also white Republicans in the South. If the Constitution, he added, was unable to “afford security to life, liberty, and property,” it should be “set aside.” P. 119. Fn omitted.

The other side was equally direct and eloquent:

In the debate over the Ku Klux Klan Act, Carl Schurz, representing Missouri in the Senate, said that preserving intact the tradition of local self-government was even more important than “the high duty to protect the citizens of the republic in their rights.” Lyman Trumbull complained that the Ku Klux Klan Act would “change the character of the government.” P. 120.

These anecdotes make this book a real pleasure to read. They remind us that our ancestors were thoughtful and forthright, or even bombastic, whether or not we agree with their sentiments today. I do not think the same of the former members of the Supreme Court, whose opinions are very difficult to read, and reek of unwillingness to deal with the Reconstruction Amendments and the facts of the cases they decided.

2. These quotes illustrate the issues around federalism. Both of the books in this series claim that the Reconstruction Amendments changed the nature of the US governing structure, by giving the federal government the power to protect the Constitutionally guaranteed rights of its citizens from private parties and from the states themselves. As we know, this hasn’t exactly worked out in practice. Even today and even in the supposedly less-racist cities and states, police and private citizens violate the civil rights of citizens, use all sorts of tricks to strip the power of minority voters, and treat citizens differently. SCOTUS is fine with that, as we saw in the ridiculous advisory opinion in 303 Creative.

We need a discussion of the purposes of federalism in this country, and we need to discuss publicly what it means to be an American citizen as opposed to a citizen of Mississippi or Minnesota. Why is it that our fundamental rights arise from citizenship in Mississippi or Minnesota, instead of from our national document, the Constitution? I’m pretty sure most uses of federalism are to discriminate against or punish people the benighted legislature doesn’t like.

3. Constitutional amendments and laws don’t change people’s minds. The Civil War didn’t really change any minds. Is it possible that elites, including supreme courts can’t get out of their own privileged pasts?

In American Graffiti Wolfman Jack played himself, a Southern California DJ and guru to a bunch of kids just graduating from high school in 1962. Growing up in South Bend Indiana, we had our own Wolfman, the fabulous Dick Biondi at WLS-AM in Chicago, 50,000 watts blasting out over the Midwest. Biondi and WLS laid down the soundtrack of my high school days. Early Beach Boys surfing music and fast cars (She’s real fine my 409) were big favorites. One of my buddies swore Help Me Rhonda was the greatest song ever. Biondi played all that music, and whatever he played, I loved.

One Summer day a bunch of us fans “borrowed” the family car and took the Indiana Toll Road up to Chicago just to watch him. We wound up at the Tribune Tower, as I recall, where you could see the DJs and their boards as they sent the music across the Midwest. Then a big meal at Tod’s Steak House (rib-eyes for $4 with all the fixin’s). Now that’s summertime living.

We moved to Chicago 10 years ago, and one day I tuned to WLS-FM. I heard a familiar voice. It couldn’t be Dick Biondi after all those years, must be some imitator. But it was Dick himself, playing the classic hits, even Help Me Rhonda, but also more well-known songs, even a bit of Bob Dylan. I added a preset for WLS, just like when I was a kid.

Dick Biondi passed away this week. Here’s his obituary. Rest in peace, Dick, You made a difference in my life.

——
Image by Yoshikazu Takada, Chiba Beach, Japan. It doesn’t matter where you are, It’s Summertime, Summertime, Sum-sum Summertime according to The Jamies, 1958.

SCOTUS released opinions in three big cases, the affirmative action case, the student loan forgiveness case, and the anti-LGBT case. I haven’t had time to read them carefully, but it’s clear that they suck. The only bright spot is the emergence of Justice Ketanji Brown Jackson. I can offer some intitial impressions.

1. We now know that the 14th Amendment has an expiration date, at least as far as Black people are concerned. I wish the majority would tell us the date they ended racism so we could have a new holiday.

2. The major questions “doctrine” has a corollary: if enough money is involved, you can make up your own standing requirement. None of the plaintiffs in the student loan case could show injury. The majority says that Missouri has standing because Mohela is an instrumentality of the state. Mohela has the power to sue and be sued, but it refused to sue. I’m just sure the majority offers a not-gibberish explanation.

3. If a plaintiff is trying to inflict damage on the LGBT community they don’t need to show standing.

4. None of the plaintiffs in the affirmative action case could show injury, nor could they show a remedy that would help them. But they all have standing.

5. Standing is a meaningless concept.

Most important, John Roberts has a message for you in Bien v. Nebraska at 25-6:

It has become a disturbing feature of some recent opinions to criticize the decisions whith which they disagree as going beyond the proper role of the judiciary. Today we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent — old and new — requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis — in fact, at least three do. See post, p. ___ *KAGAN, J. , dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

So once again, I remind you: you mustn’t criticize SCOTUS by pointing out it’s a corrupt power-grabbing rabble intent on imposing their minority views. Also, you mustn’t point out that they make stuff up to do so, or that theyrecognize no constraints on their power. At all times we must remember that theirs is a holy calling without which our great nation would collapse in disorder and chaos.

This is an open thread.

SCOTUS has set itself up as the sole arbiter of the constitutional limits on the power of the federal government. We say we have a federal government of limited powers. As I’ve noted in this series, one of the goals of the Founders was to keep the federal government from interfering in the internal affairs of the states. In the debates on the Reconstruction Amendments, there is a constant return to the idea that the feds shouldn’t infringe state power. And there’s the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Our federalism, or dual sovereignty, may have served political purposes in the late 18th Century, but now it’s created monstrous problems. By narrowly construing the limits of federal power and asserting control over congress and the president, SCOTUS has created or ignored horrifying problems and made it almost impossible for us to solve them. In this post I’ll look at several of them.

1. Democracy In Citizens United, the right-wing members of SCOTUS held that laws limiting PAC spending on elections were somehow unconstitutional. Now billions of dollars are spent on dark money contributions that benefit campaigns, and while we can assume these people are filthy rich, we don’t know who they are, and we have no to find out what they expect in return. (Hint: it’s not good government.)

In Shelby County v. Holder SCOTUS struck down Section 5 of the Voting Rights Act, the pre-clearance provision,

… because the coverage formula was based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. Fn omitted.

In Rucho v. Common Cause SCOTUS allowed partisan gerrymandering.

The Court ruled that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts. Fn omitted.

In Brnovich v. DNC, SCOTUS upheld two Arizona laws making voting harder. The two laws had a disparate negative impact on poor people, mostly minorities. The explanation for this decision even in Wikipedia doesn’t make sense to me, but then, I’m in favor of voting. It was generally seen as the last step before complete dismantling of the Voting Rights Act.

That destruction was narrowly avoided in the recent Allen v. Milligan decision, where John Roberts didn’t reverse an earlier case, Gingles, discussed here. Gingles is a very narrow reading of §2 of the VRA, meeting Robert’s lifelong goal of making it really hard to win a VRA case.

A majority of SCOTUS has now decided not to further attack democracy by adopting the ridiculous independent state legislature silliness. Of course they reserved their own supremacy.

These cases make voter suppression easy, and Red states have imposed a startling array of limitations. For example, Texas passed a law limiting drop boxes for mail-in ballots to one per county. In this interview Rep. Terri Sewell of Alabama, a sponsor of the John Lewis Voting Rights Advancement Act, describes some more.

The intent is clear. Continuing centuries of practice, SCOTUS revanchists rule that states are free to restrict voting any way they see fit, no matter the impact on democracy. As a result, SCOTUS is enabling minority rule.

The main impact is on cities, which are routinely cracked and packed to restrict their political power. For example, Texas tightly controls the ability of large cities to govern themselves. Recently cities were forbidden from requiring water breaks for workers as they swelter under a heat dome for the third week.

How long are Dallas, Houston, Austin and San Antonio residents willing to see their taxes spent in small country towns while rural religious fanatics control their personal lives?

2. Women’s Health As I’ve noted Alito’s decision in Dobbs doesn’t comport with constitutional law as I learned it in the long ago. But its consequences have been sickening. Jessica Valenti tries to keep track of attacks on women in her substack. Pregnant women are rufusing to travel to Red states or plan to leave them over health concerns.

Not content with controlling the lives of women who seek treatment inside their jurisdictions, the anti-women states pass laws with extra-territorial effects, like Texas’ SB 8, the Bounty law. These states claim the right to attack citizens of other states who provide care. Blue states are responding by enacting shield laws, refusing to recognize the demands of the aggressors. Here’s an explainer from Vox. Shield laws typically operate to protect all kinds of health care criminalized by legislators in Red States, including gender-affirming care.

This sets up a serious conflict between the states, perhaps reminiscent of the fury over the Fugitive Slave laws. How long will normal people put up with these assaults?

3. Taking away Congressional power SCOTUS is working to hamstring Congress. One obvious example is Shelby County v. Holder, where SCOTUS said Congress didn’t work hard enough to justify renewal of the VRA.

In the middle of the Covid crisis, Congress indicated OSHA should adopt a rule under its emergency authority requiring larger employers to protect their workers. OSHA complied. SCOTUS struck that down on the shadow docket. SCOTUS ruled that Congress couldn’t delegate the management of the crisis to an agency but had to do something specific to prove to SCOTUS Congress did its homework.

In EPA v. West Virginia, SCOTUS said Congress had to pass a new bill if it wanted to do anything serious about climate change. It created a brand-new constitutional rule to explain its decision, which the creators gave the laughable title major questions doctrine. It says that if 5 members of SCOTUS think something is a big deal, Congress can’t delegate authority to an agency under general language, but must specifically authorize the agency to act in a way those 5 oracles think conclusive.

We’re told the solution is through the ballot box. How long will we put up with this sham voting regime when SCOTUS feels free to slap down laws that don’t meet its ever-changing standards?

4. Controlling executive powers In the middle of the Covid crisis, district court judges enjoined enforcement of vaccine mandates for health care workers and rebellious members of the military. The injunctions were upheld by appellate courts. Then SCOTUS overturned them after an emergency hearing. The lower courts set themselves up as arbiters of the nation’s military and health care policies. SCOTUS implicitly agreed that lower courts were entitled to do so, even as it overruled these outrageous decisions.

Shortly after taking office, Biden established immigration enforcement priorities. Ken Paxton, the indicted, impeached, and wildly partisan Attorney General of Texas, filed suit to block those priorities and establish priorities he liked. The lower courts granted a stay and SCOTUS allowed that stay to remain in effect for a year. Then in US v. Texas, a recent decision I haven’t read, SCOTUS overruled the 5th Circuit. This is typical for any decision of the executive. Courts at all levels feel free to impose stays and screw around for months while the problem festers.

How long can we let the judiciary prevent us from dealing with massive problems before we protect ourselves from their ignorance and their dangerous ideology?

Note: Please remember that you should not say, or even think, that SCOTUS is an illegitimate power-grabbing rabble intent on imposing their minority views. It hurts their feelings and detracts from the sanctity of their holy calling.

Index to posts in this series

Eric Foner opens the chapter on the 14th Amendment in The Second Foundation by providing context for its adoption. The 39th Session of Congress began in December 1865. President Andrew Johnson had set up governments in those states under rules that enabled them to elect a large number of former high-ranking Confederate political and military leaders. The rebel states had enacted the Black Codes, and allowed horrifying attacks on Freedmen to go unpunished. The Republicans and the people who elected them were outraged, and refused to seat their senators and representatives. That gave the Republicans a 2/3 majority, enough to override vetos.

The Republicans were divided into two groups, the Radicals and the moderates. The Radicals wanted full political and civil rights for the Freedmen and for all men. The moderates initially thought they could work with Johnson, but that failed because of Johnson’s deep racism which he put into practice throughout his Presidency. The moderates were worried about giving suffrage to the freedmen, in part because voters in the North were opposed; in part because they thought the freedmen were not prepared to participate in politics; and perhaps because at least some of them beld racist views about the mental capacity of the Freedmen. They were also concerned about granting rights that suggested social equality.

The two groups were united in trying to increase their presence in the slave states, and in insuring full political rights short of suffrage. They all agreed further amendments to the Constitution were needed. This fragile unity was the basis for the adoption of the 14th Amendment.

Congress established the Joint Committee on Reconstruction to consider some 70 amendments. The 15 members of the Committee and the entire Congress debated the amendments for several months. These debates not only covered the precise wording of the amendment but also the nature of freedom, what it means to be a citizen of the United States, which powers should be exercised by the federal snd state governments, and the nature of proper governance.

The first bill that emerged from the debates was an effort to deal with the electoral problem created by the 13th Amendment. The end of slavery meant that the ⅗ compromise in the Constitution was no longer effective, so that all Black people in the South were counted towards representatives and electoral college votes. That gave the White Supremacists too much power. The obvious solution was to require the states to enfranchise Black voters. An alternative solution determined representation by the number of voters. If the slave states disenfranchised Black voters they would lose the edge the ⅗ clause gave them, reducing the number of their Representatives by as much as ⅓.

The compromise was to count inhabitants but exclude people disqualified from voting by race or color. This proposal got the necessary ⅔ vote in the House, but stalled in the Senate in large part because of fear that the slave states would disqualify Black voters with non-racial rules, like literacy tests and property ownership requirements.

Gradually things slowed to a halt as the Republicans found it difficult to bridge the gaps between the moderates and the Radicals. Congress began tp focus on the Civil Rights Act of 1866.

This law established birthright citizenship and provided that all citizens of the US would enjoy basic economic rights and natural rights to the same extent as white citizens. That would mean an end to the Black Codes. The law was not intended to deal with political rights, which include suffrage, the right to sue and be sued, to serve on juries, and to attend public schools, among others. It was also unclear whether the law applied to private conspiracies to deprive Black citizens of their rights by violence or intimidation, or by conspiring to reduce employment opportunities or otherwise. This law allowed private citizens to enforce it in federal court. Andrew Johnson vetoed the bill, but Congress overrode that veto.

It was the Supreme Court that ultimately protected the racists in the Civil Rights Cases (1883).

During and after passage of the Civil Rights law, debate continued over amendments. The breakthrough was the decision to compile the proposed amendments into a single amendment containing those most likely to garner enough support to pass. There was a lot of wrangling over language but eventually the text was ratified. The text of the amendment is set out below.

Foner discusses the contents of the 14th Amendment at length, pointing out what they did and didn’t do, and focusing on the intent of the framers. It was enacted in June 1866 and sent to the states for ratification. Tennessee was the only rebel state to ratify the amendment. The others, under governments appointed by Johnson and encouraged by him, refused. The Radical Republicans were infuriated, and so were many moderate Republicans. Foner explains the stated reasons:

If Radical Republicans saw the amendment as disappointingly weak, white southerners deemed it an unwarranted, indeed outrageous, interference in their states’ internal affairs. Southern objections focused both on practical political matters—loss of representation because of denying blacks the right to vote, the bar to officeholding by “the best portion of our citizens”—and on broader fears for the future of white supremacy. Opponents charged that Congress might well feel authorized to use the amendment to give “Negroes political and social equality with the whites.” To accept such a fate by agreeing to ratify, a southern newspaper wrote, would be a form of “self-degradation.”P. 88-9, fn omitted.

In the election of 1866 Johnson campaigned for opponents of the 14th Amendment. This breach of norms, coupled with the intransigence of the rebel states and their appalling treatment of the Freedmen changed the minds of the moderate Republicans. In the new session Congress threw out Johnson’s plan for reconstruction and enacted their own form of reconstruction, now called Radical Reconstruction.

The Reconstruction Act of 1867 placed the ex-Confederate states, other than Tennessee, under temporary military rule. It required that new governments be elected by black and white male voters (with the exception of Confederate leaders barred from officeholding by the Fourteenth Amendment). The southern states were obligated to adopt new constitutions incorporating the right to vote regardless of race. And they were required to ratify the Fourteenth Amendment. P 90, fn omitted.

The new governments rapidly complied, and the Amendment was ratified in July 1868.

Discussion

1. In the simplified histories we get in school, it all seems so neat: after the Union crushed the slaver rebellion, Congress passed the Reconstruction Amendments which gave the Freedmen the same rights as other citizens. It’s never that simple. This post is a tiny slice of that history, but it’s way more than I learned in school.

2. The debates over the 14th Amendment included complaints about federal interference in the internal affairs of states, an issue I raised here. It’s obvious that what they meant was the right of states to oppress people state legislators despised, as with Black Codes, exclusion from legal rights, exclusion from suffrage, and worse.

This kind of federalism, dual sovereignty, continues today. Florida passes laws blocking the teaching of the history of Black people and the existence of LGBT people. States deny women medical treatment and medicines they need. Alabama claims the right to gerrymander congressional districts to reduce the voices of Black voters.

Are there any non-oppressive hallowed state principles that today’s federal government could conceivably trample?

====================
Fourteenth Amendment

Section 1

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.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Index to posts in this series

I’m moving on to Eric Foner’s book The Second Founding: How the Civil War and Reconstruction Remade the Constitution. It’s a detailed description of the history of the adoption of the 13th, 14th, and 15th Amendments, and their aftermath.

The Emancipation Proclamation did not end slavery. A large number of enslaved people lived in areas not controlled by the Union and thus unprotected. Many more lived in the Border States and Tennessee which were exempt. Abraham Lincoln and his Republican Party were concerned that the Supreme Court, led by the odious Roger Taney, would declare it unconstitutional, or rule that it terminated when the Civil War ended. By this time there was a strong belief that slavery sullied the nation’s principle of equality of all people before the law. Foner doesn’t say it, but by this point it must have been obvious that, as Lincoln puts it in his Second Inaugural Address:

These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war.

These and other considerations led to the introduction of several versions of the Thirteenth Amendment in December 1863.

The opposition party, the Democrats, offered a number of objections. One was the slippery slope argument. Give freedom to enslaved people and they’ll demand the vote, the right to own property, the right to testify in court, and and even “racial amalgamation” P. 33. This sometimes took the form of outright racism bellowed on the floor of the House and Senate.

Fernando Wood, the former mayor of New York City now a member of the House of Representatives, painted a lurid picture of the amendment’s consequences: “It involves the extermination of the white men of the southern States, and the forfeiture of all the land and other property belonging to them.” P. 33.

Others took a states rights position, that each state should make its own decision. Still others warned against the intrusion of the federal government into property rights. If the government could free slaves without compensation, what prevented it from taking the factories of the north? Some opposition Democrats even thought slavery should be permitted after the war.

The debates went on throughout 1864. The bill received fewer than the required ⅔ in the House. It was brought back in the lame duck session after the election of 1864, and passed January 12 with Lincoln in full support. The story of his change of mind is fascinating: here’s a review of a book Foner wrote about it.

The 13th Amendment does more than abolish slavery. Section 2 gives Congress unprecedented power to enforce it. Foner says this provision changed the relationship between the federal and state governments in our dual sovereignty system. For the first time, Congress was specifically empowered to legislate in the area of the rights of citizens of the states.

Ratification required the votes of ¾ of the states. That took the rest of the year, and the 13th Amendment became part of the Constitution on December 19, 1865. Foner points out that Mississippi abolished slavery in in its post-war constitution, but refused to ratify the 13th Amendment until 1995.

… [I]ts legislative Committee on Federal and State Relations explained why: the second section might in the future be interpreted to authorize Congress “to legislate in respect to freedmen in this state. [We] can hardly conceive of a more dangerous grant of power.” P. 39.

The 13th Amendment didn’t answer a basic question: what does it mean to be free. As one Democratic congressman put it, “mere exemption from servitude is a miserable idea of freedom”. P. 41. The matter was debated extensively throughout the Reconstruction Era, and the debate continues today. There was general agreement that freedom included a man’s right to control his own person, to earn his living by his labor, and to keep the proceeds of his labor to support himself and his family. But the entire agricultural system of the slave states was based on unfree labor, on slavery, and to change to a system of free labor was an enormous undertaking.

Slavers and White Supremacists seized on the punishment clause of the 13th Amendment: slavery was abolished “except as a punishment for crime whereof the party shall have been duly convicted”. Foner notes that this clause was added without much attention, simply because it was part of a similar provision in the Northwest Ordnance.

Starting with Mississippi the slave states enacted Black Codes. These made it a crime for Black men not to have jobs, and the punishment was to be leased out by the State to plantation owners where they would be forced to work for free. They also grabbed Black children and forced them into unpaid apprenticeships on the ground that their parents couldn’t afford to take care of them.

Foner points out that very few people thought the 13th Amendment changed the common law of coverture: men were entitled to their wives’ unpaid home services and sexual relations. Black women probably didn’t think coverture was much af an improvement for themselves, but at least they could marry and keep their children.

It was apparent that much more would be necessary if Black people were to be truly free.

Discussion

1. This material is infuriating. It’s horrifying that I didn’t know much of this history. Surely somewhere I heard about the Black Codes? But I’m sure it wasn’t in any history class I took in my 19 years of schooling. And in the slave states (sorry, I mean Red States), politicians are trying to stamp out this history altogether, supported by slabs of money from people afraid to put their names on the checks.

2. The historical links between the Black Codes and the carceral state, are, I trust, obvious.

3. Dual sovereignty has proven itself to be a disaster for many of us. US citizenship confers few meaningful political rights. Your political rights depend almost entirely on the state you live in. Your right to vote, your right to medical treatment, your right to a decent education, your right to walk the streets without being terrorized by gun freaks, and most other rights we think of as basic to our liberty, all come from state law. If you live in a Red State you have the right to shorter life, poorer working conditions, lower wages, an indifferent education, restricted voting rights, and whatever health care you can buy. If you live in a Blue State, you live better.

That’s not true in other countries. Germany doesn’t let Bavaria decide to provide a different health care system than Saxony. Japan doesn’t let the kids in Osaka use vastly different textbooks than kids in Hiroshima. India doesn’t let Uttar Pradesh decide who can vote; in fact there are no countries that let political subdivisions create voting restrictions. That’s because being German or Indian or Japanese means you are a citizen of a nation, not of a province.

What does it mean to be a citizen of the US? We’re still arguing about that after 250 years. And SCOTUS says you are not an American, you’re a Georgian or a Californian when it comes to the important parts of your daily life. SCOTUS, of course, stands firmly on the side the the successors to the slavers.

Index to posts in this series

In The Nation That Never Was, after telling us his version of a better story of America, Kermit Rosevelt writes:

We Americans are not perfect, either. Some of us are bad. Some are indifferent and unwilling to sacrifice for others. Some are easily distracted, misled, manipulated. We go forward and we go back. We elect Reagan, we elect Obama, we elect Trump. But what makes us American—our deepest ideal—is that we keep trying. America is born in an attempt to find a new and better way, to escape the stale and oppressive monarchies of Europe. We don’t get it right immediately. Yet we keep going. We’re looking for America, and we know that the America we’re looking for isn’t something that’s given to us by Founding Fathers. It’s something we make, something we find inside ourselves. The true America is not handed down from the past but created anew by each generation, created a little better, and what we can give the future is the opportunity to get just a little closer than we did ourselves. That’s the promise that makes us American. That’s the promise we have to keep. P. 205.

It’s not exactly a reason his better story is better, but Roosevelt thinks the better story supports his theory of democracy. Compare that passage with this from one of my favorite books, Philosophy and Social Hope, by Richard Rorty:

Pragmatists … do not believe that there is a way things really are. So they want to replace the appearance–reality distinction by that between descriptions of the world and of ourselves which are less useful and those which are more useful. When the question ‘useful for what?’ is pressed, they have nothing to say except ‘useful to create a better future’. When they are asked, ‘Better by what criterion?’, they have no detailed answer, any more than the first mammals could specify in what respects they were better than the dying dinosaurs. Pragmatists can only say something as vague as: Better in the sense of containing more of what we consider good and less of what we consider bad. When asked, ‘And what exactly do you consider good?’, pragmatists can only say, with Whitman, ‘variety and freedom’, or, with Dewey, ‘growth’. ‘Growth itself,’ Dewey said, ‘is the only moral end.’

They are limited to such fuzzy and unhelpful answers because what they hope is not that the future will conform to a plan, will fulfil an immanent teleology, but rather that the future will astonish and exhilarate.… Pp. 27-8, fn omitted.

The connection is obvious. Roosevelt says democracy is about the future. He says the better story fits with his view of democracy. Rorty says that Pragmatism is about the future. Later on he says that Pragmatism is well-suited to democracy, because the growth of freedom leads naturally to a democratic form of government. Both think we can have a better future.

The relation between philosophy and forms of government

Rorty calls himself a Pragmatist, after the only truly American philosophy, founded by the Americans C.S. Peirce, John Dewey, and William James. Here’s a short series discussing some of the basic elements of Pragmatism: Method, Truth, and Applications.

In Rorty’s first sentence, “a way things really are” is a reference to the traditional philosophical problem called the appearance-reality dualism. It’s based on the fact that we only have the evidence of our senses. Therefore we cannot know the reality of the thing we perceive as it truly is. Pragmatism teaches that all we know is what our senses tell us, and there’s nothing beyond that, no Platonic forms, no hidden reality. For a fuller discussion, see the post on Truth linked above.

The older forms of philosophy searched for universal truths, unchanging verities, the way things really are. The results of that search establish a static universe based on the theory of everything created by one or more human beings. There is one answer to any problem, and it can be found by consulting the fixed principles — or the ruler’s command. As Roosevelt puts it, universal verities lead to “… the stale and oppressive monarchies of Europe.”

Pragmatism and democracy are not necessarily connected. As Rorty points out, a Nazi could agree with and apply Pragmatic thinking. But there is a decisive difference between a society living with eternal verities, and one open to change.

A Problem

After reading Roosevelt’s book, I’ve begun to think the the real contest is between Americans dedicated to democracy in the Rorty/Dewey sense, and those committed to the unchanging verities they find in history or their sacred books or handed to them by authoritarian demagogues. The futurists want to make the future better for everyone. The traditionalists think everything is just fine as it is, or as it was at some date in the past, or as it would be in a new society built to effectuate their theory of everything. The futurists, as Rorty says, want the future to be amazing. The traditionalists can’t even handle the latest scientific achievements, like mRNA vaccines. The futurists think the economic status quo must be improved to benefit everyone. The traditionalists think the status quo is the best we can do.

And, not to put too fine a point on this, the people who really want things to remain as they are are the filthy rich; and the people who really want to return to the past are the religious fundamentalists. Both groups are apparently willing to sacrifice democracy to get what they want.

Left Theory

Perhaps you have noted that posts at Emptywheel are categorized. Most of mine are in the category Left Theory. I think the left needs a set of ideas about society and government that can be persuasively explained to non-lefties, and that link all our policy positions into a reasonably coherent whole. I offered a tentative economic theory here. In that post I say that a useful economic theory should be based on observation and experience, not on some grand theory of humanity, or, for that matter any other grand theory. It would serve as a tool for reaching our goals. It would change as we learned more new things. In this sense it would be Pragmatic.

Democracy is a broad theory about how governments should work. It’s a system that works for all people of good faith, giving everyone the opportunity to participate in the process of building the future. In that sense it is Pragmatic.

In the absence of eternal verities, we have to justify all of our beliefs. Why then do I believe democracy is the way forward? First, I believe that the Golden Rule, “do unto others as you would have others do unto you”, is the best guiding principle humans have ever developed. I firmly believe that application of this principle would massively reduce the amount of pain and misery in the world, and that that would be a good thing. To do that, we need to get as many different ideas as we can about our future, both for deciding what we should be as a nation, and for solving problems. Democracy does that.

Also, I want to be part of the decision-making, so I should insure that others can and do participate if they want to.

Second, I agree with Jefferson that government derives its just powers from the consent of the governed. That desire, that insistence, that we give consent to the government is effectuated by majority rule in a democracy.

And that’s where the conflict lies. In the US the minority party holds power despite the will of the majority. The current system of government makes that easy, especially with the rogue majority on SCOTUS.

Our current challenge is to make our democracy work.

Index to posts in this series

In the first chapters of The Nation That Never Was, Kermit Roosevelt explains the many problems with the standard story of the US. In the last chapter he offers us a better story. What follows is mostly Roosevelt’s version, but I’ve added more history. Roosevelt’s is at pp. 202-4.

A Version Of The Better Story

During the Revolutionary War, the colonists established a federation of the 13 original colonies. They wanted to keep their existing governments, and feared a strong central government. Their first try, the Articles of Confederation, failed because the central government was too weak and the states frequently ignored it. Then they tore up the Articles and replaced them with the Founders Constitution. In order to gain support for a stronger central government, they put in provisions supporting the continuation of slavery and gave states with smaller white populations greater power in the national government.

From the very beginning Black people resisted slavery by escaping and rebelling in the face of murder and torture. That continued under the Founders Constitution. They and the Abolitionists set up escape routes, and tried every legal route to saving escapees. They rallied, protested, spoke, wrote, appealed to Congress, and demanded freedom and equality. Gradually the movement for freedom became an powerful political force, driven by the principle that all men are created equal. They meant equality in a actual society, not in a hypothetical natural law sense as in the Declaration of Independence, Leaders included Frederick Douglass and William Lloyd Garrison.

Urged on by the Black people and the Abolitionists, the United States government resisted the expansion of slavery into the territories, which the Supreme Court supported in Dred Scott. That led to a war with the Slave States which was won by the United States. A major factor in the victory was the 200,000 Black soldiers who fought and died to end slavery. The victorious United States threw out the governments of the seceding states, forced the enactment of the Reconstruction Amendments, and passed laws to enforce them. This is called the Second Founding.

The Second Founding recreated the United States under the principles laid out by its Leader, Abraham Lincoln. His most famous statement of these principles is in his Gettysburg Address: the United States is “… conceived in liberty, and dedicated to the proposition that all men are created equal….”

This became our guiding principle. Lincoln told us that we must dedicate ourselves to the principle of equality that the brave men of the United States had died for. He told us we were starting anew with this principle foremost in our minds:

… that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people shall not perish from the earth.

But not everybody agreed that we were starting over. The secessionists never quit. Their first step was to murder Abraham Lincoln. Then they took power in the former slave states. The Supreme Court gutted the Reconstruction Amendments. That enabled the secessionists and White Supremacists to establish legalized segregation, blessed by the Supreme Court in cases like Plessy v. Ferguson.

Black people never quit either. Despite participating in more wars on behalf of a segregated nation and being treated like dirt on their return, through decades of lynching and white race riots, they continued to fight for equality. After the Second World War, they began to achieve success and for once the Supreme Court didn’t block them.

The, beginning in the 1980s, the White Supremacists pushed back against equality, and achieved partial victories, especially in the revanchist Supreme Court. But Black people persevere, and with them all people of conscience, and this time other marginalized groups join the march towards equality, Black, Brown, Asian, LGBT, young people, all of us together.

That’s our nation: always striving for equality, always striving for fairness and equality, always fighting the darkness.

Addendum on Abraham Lincoln

When the Civil War started, Lincoln was willing to accept slavery as the price of unifying the states. That changed during the war. Roosevelt says the Fort Pillow Massacre played a big role in that change. Lincoln had established units of Black Soldiers. They were among the defenders of Fort Pillow, near Memphis in April, 1864. The secessionist troops under the command of Nathan Bedford Forrest, later the first head of the KKK, captured a group of US troops trying to surrender, including approximately 300 Black soldiers and their White officers. The Southerners murdered the Black soldiers in cold blood. A few days later Abraham Lincoln gave a speech called the Address At The Sanitary Fair. Here’s a short section.

A painful rumor, true I fear, has reached us of the massacre, by the rebel forces, at Fort Pillow, … of some three hundred colored soldiers and white officers, who had just been overpowered by their assailants. There seems to be some anxiety in the public mind whether the government is doing its duty to the colored soldier, and to the service, at this point. At the beginning of the war, and for some time, the use of colored troops was not contemplated; and how the change of purpose was wrought, I will not now take time to explain. Upon a clear conviction of duty I resolved to turn that element of strength to account; and I am responsible for it to the American people, to the christian world, to history, and on my final account to God. Having determined to use the negro as a soldier, there is no way but to give him all the protection given to any other soldier.

Why This Is A Better Story

Roosevelt offers several reasons why this is a better story. It has the advantage of being accurate, of course. The standard story ignores the role of Black People in our history. The better story includes Black people and tells us of their valor and perseverance, and the contributions they made to the story of America. In doing so it makes room for the contributions of other groups ignored by the standard story. The better story opens the way to real unity of all of us regardless of all the many ways in which we are different.

The better story gives us a new set of heroes. It valorizes the soldiers who personified the words of Julia Ward Howe’s Battle Hymn Of The Republic: “… As He died to make men holy let us die to make men free ….” These regular people, Black and White, are worthy of emulation. That’s not entirely true of the Founders, who fought for their own freedom, and were morally compromised by the denial of freedom to their slaves, their enslaved concubines, and enslaved children.

We can respect the leaders of the Second Founding, Lincoln and the Senators and Representatives who enacted the Reconstruction Amendments and related legislation. We do not have to consider their personal lives, because the better story is about contributions to the future, not an unhealthy fixation on the always problematic past.

Similarly, the better story tells us about the wrong way to be an American. People who oppose these heroes and the values they lived out, and their contributions to our democracy, are not good citizens.

The better story shows us how we can be better citizens: by trying to make America a better place.

Index to posts in this series

One of the recurrent themes in The Nation That Never Was by Kermit Roosevelt is states rights, the right of the state to make many critical decisions about the rights and privileges of their residents. It seems like a strange way to run a country. How can we think of ourselves as a single nation when there are enormous variations in our rights? It seems contradictory to another recurrent theme of Roosevelt: the desire for unity.

The original English settlements in the US were organized under Charters from the Kings of England. They seem to have been drawn for various political reasons, that is reasons of English politics and money, and without regard to the interests of Indigenous Americans, or of the Colonists. There was no plan. Our original 13 colonies arrived on the scene just like the nations of the Middle East after the Sykes-Picot lines: as an exercise of British colonialism.

The Colonists were subjects of the English Crown, but each colony eventually established its own government. They created courts, legislatures, and administrative bodies usually under a written constitution. One of the big complaints in the Declaration of Independence is that the King is ignoring these institutions. As an example:

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

By 1776, these governments were entrenched. After the Revolutionary War their big fear was that any central government would act the tyrant as had the English Kings. That led to the Articles of Confederation, which created a central government so weak it could not be a tyrant. The Articles were a total failure.

But the dominant vision remained. Colonial leaders wanted a federation of independent states, each with a strong government, and a national government barred from interfering with state governments. The Constitution preserves most of the powers of the individual states, and gave the rest to the central government. They got a central government strong enough to insure peace among these independent units, to ward off external attack, and to establish a suitable business environment. People’s rights as citizens of the United States were limited. Substantially all individual rights sprang from state citizenship.

Even within this context slavery was a paramount issue. The northern states were moving away from it, as was Europe. This was obviously a concern to the Southern states, and the Constitution contains provisions they demanded by the to alleviate those concerns.

Roosevelt says that supporting the demands of the slave states is just the first of many occasions in which unity takes priority over equality in our history. It’s one of the many times the interests and rights of Black people were sacrificed to the demands of unity.

The Constitution was an agreement among the Thirteen Colonies, not an agreement of “We the people of the United States” as the Preamble states. Theoretically the people agreed through their representatives in the state governments, but that seems just as unlikely as the assumptions underlying of social contract theory.

The Founders Constitution preserves the powers of the States except for specific matters, and that is confirmed by the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The powers reserved to the states include determining citizenship in the state, the right to vote, the right to serve on juries, almost all other political rights, and the right to establish and regulate slavery. This is the origin of the notion of states rights: that the state has the right to determine your rights.

Theoretically the Reconstruction Amendments changed the relations between the states and the Federal government. Citizenship in a state was conferred on all residents, and the states didn’t get to decide that question. The rights in the Constitution became enforceable against the states, although that took decades and has a twisted legal history. Voting was a right guaranteed by the federal government. States were prohibited from treating people differently on account of race. Congress was explicitly empowered to legislate these changes. But the Supreme Court refused to allow this to happen. In the Slaughter-House Cases and later cases, the Supreme Court narrowed and nearly neutered the Reconstructions Amendments and restored state power, enabling states to neutralize the supposed gains of Black citizens.

The pre-Civil War arrangement of power continues to the present. In a 2010 case, McDonald v. City Of Chicago, the revanchist Alito said that SCOTUS wouldn’t reexamine the Slaughter-House Cases.

Discussion

Reading these cases makes me wonder what it means to be a US citizen, a point I have raised before, as here. If it’s true that your rights mostly come from the state where you live, the differences among the rights available to citizens can be enormous.

Two of the obvious examples currently are abortion and trans rights. Right-wing state legislators are passing laws to police these bodies directly and by terrifying medical professionals. Another obvious example is the right-wing assaults on education, including the ridiculous Florida laws against teaching subjects the right wing can’t face, like Black history and racism, LGBTQ rights, and critical thinking. This includes books like the two in this series and probably my posts on them.

I think the problem is much wider. The plain fact is that some states take better care of their citizens than others. The clearest example of this is life expectancy. Here’s a list of the states by life expectancy at birth using data from the years 2018-20. The top 5 states, all Blue (New Hampshire at 4 is purple), have a life expectancy of 79.4 years while the bottom 5, all bright Red, are at 72.9. If, as the Declaration claims, you have a right to life, you get nearly 9 more years of it in Hawaii than in Mississippi.

The same is true for education, public safety, and all other aspects of government that are primarily the responsibility of states. That inequality is the direct result of the notion of dual sovereignty that underlies cases like McDonald.

This problem was created by the Supreme Court. SCOTUS decisions about our rights as US citizens start with the Slaughter-House Cases and related cases that tightly narrow the Reconstruction Amendments. At about the same time SCOTUS decided to give rights to corporations just like people. SCOTUS dismantled the Voting Rights Act in direct violation of the Fourteenth and Fifteenth Amendments which give Congress the power to legislate. SCOTUS allows gerrymandering on the flimsiest pretexts and on the shadow docket.

Because whatever rights we have as citizens of the US are in the Constitution and federal laws, SCOTUS has the final say. SCOTUS has proven itself to be a screaming disaster for democracy, and for the supposed principles of the Founders of equality of life, liberty, and the pursuit of happiness.