CONGRESS SHALL  NOT  HAVE THE POWER

In his classic work, The Prince, Niccolo Machiavelli advised his students that every successful "usurper" must "take care that (his potential competitors) do not get hold of too much power and too much authority"  The Supreme Court has always followed the teachings of Machiavelli [1].

In the 1850's, most of the members of the Supreme Court were in bed with Southern slave owners.  Anti-slavery sentiment was growing in the more populous parts of the country; and the institution of slavery was in political and economic retreat.  It seemed to the pro-slavery justices that the anti-slavery interests were getting far "too much power and too much authority."  So they decided to do something about it.  They gave us the 1857 Dred Scott decision [2].

The decision's main thrust can be captured by a quotation from the majority opinion:

"They (African Americans) had for more than a century before (the birth of the Constitution) been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect . . ."

After the war ended, our forefathers amended the Constitution, adding the three "Civil War Amendments."  The 13th Amendment, ratified in 1865, expressly outlawed "slavery" and "involuntary servitude."  The 14th, ratified in 1868, repudiated the Dred Scott decision and guaranteed various rights to the freed slaves.  The 15th Amendment, ratified in 1870, mandated that the right to vote could not be abridged on account of "race, color, or any previous condition of servitude" [4].

Our forefathers realized that America's transition to a free and equal society would be long, difficult, and complex.  And the Dred Scott decision was still fresh in everybody's memory.  So Congress took steps to prevent the Supreme Court from obstructing the goals of the three Amendments.  It reserved enforcement power to itself rather than leaving it to the courts.  All three Amendments contained language to the effect that, "Congress shall have power to enforce this article by appropriate legislation."  Congress then passed seven enforcement laws as specifically authorized by the three Amendments [5].

For a while, our judicial branch of government laid low.  Besides the notorious Dred Scott decision, the Court had taken other actions perceived in the North as treasonous.  As a result, "We the People" came dangerously close to taking serious punitive action against their institution.  And they didn't want to push their luck [6].

Unfortunately, "We the People" failed to teach our rebellious judicial employees a lasting lesson.  We failed to "overthrow" (in Abe Lincoln's words) a single justice "who would pervert the Constitution."  As a result, it wasn't long before their successors thought it safe for the Supreme Court to resume its usurpations.  In a long series of new perversions, the Court had the incredible gall to nullify most of the enforcement legislation that Congress had passed exactly as the 13th, 14th, and 15th Amendments implicitely promised and explicitely authorized.  The Court said that the Congress which framed each Amendment had not intended it to authorize the sort of enforcement "legislation" that more or less the same Congress then turned around and passed [7].

This essay will describe a few of the more outrageous post-Civil War perversions.  If you want to review some more, go the library and check out copies of the books by Carr and Lusky.  You might also find the companion essay, Racism in the Court of interest [8].
 

VOTING RIGHTS SO NARROW THEY DON'T EXIST

On March 30, 1870, "We the People" ratified the 15th Amendment.  It had two very simple Sections.

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 any previous condition of servitude.

2.  The Congress shall have power to enforce this article by appropriate legislation.

Two months later, Congress passed what it considered "appropriate legislation," it passed the 1870 Enforcement Act.  In writing the Act, Congress tried to cover all the bases.  The authors forbade every way they could think of that might be used to interfere with the right of African American citizens to vote.  The meat of the Act was in Sections 3, 4, 5, and 6 which outlawed the most obvious abuses and provided penalties.  In various cases the Supreme Court nullified all four of those Sections.

In three Sections of the Act Congress included the qualifier, "without distinction of race, color, or any previous condition of servitude."  But then they got tired of wasting all that paper and ink.  In other Sections they just outlawed all the different ways of interfering with a citizen's right to vote leaving out the qualifier, "without distinction of race, color, or any previous condition of servitude."

Before long, two Kentucky election inspectors got arrested for violating the Act.  They refused to accept the votes of some African American citizens.  Their crime, it turned out, was covered in Sections 3 and 4 of the Act.  The Supreme Court accepted their appeal and, in 1875 (U. S. v. Reese), a seven-justice majority declared that Sections 3 and 4 were unconstitutional.  The two Sections failed to include the qualifier, "without distinction of race, color, or any previous condition of servitude."  So, in the opinion of the majority, the legislation was not "appropriate" [9].

Justice Hunt, one of two dissenters, said, "That the intention of Congress on this subject is too plain to be discussed."  Indeed it was.  The majority nitpicked to death the Enforcement Act for reasons that can only be speculated upon.  They certainly did not share the pro-slavery bias of the Taney Court that had trumped up the Dred Scott opinion 18 years earlier.  The seven renegades on the 1875 Court had all been appointed by Republican presidents, four by Lincoln and three by Grant [10].

Nevertheless, they weren't the sort of folks who could empathize with recently freed slaves; they were successful, high-status lawyers.   They were among the elites that Machiavelli called "grandees" and the "nobility."  Alexis DeTocqueville called them "the American aristocracy."  So their most likely motivation probably involved the "power" and "authority" of their elite brotherhood; our judicial branch of government.  They didn't want it up to its neck in the kind of cases that the 1870 Enforcement Act promised to bring it.  There were millions of African Americans in the South and the Border States, and millions of Southern Democrats that didn't want them messing around in politics.  The potential for federal judges being forced to resolve endless boring cases was too great to tolerate.  Better to declare the law "unconstitutional [11]."

And that's what they did.  For three-quarters of a century, the Court continued to "pervert" the three Civil War Amendments to support the denial of African American voting rights. In 1903 (James v. Bowman) the Court nullified laws passed in 1870 and 1873 to "enforce" the 15th Amendment.  The language the Court found "unconstitutional" is given below.

"Every person who prevents, hinders, controls, or intimidates another from exercising, or in exercising the right of suffrage, to whom that right is guaranteed by the 15th Amendment to the Constitution of the United States, by means of bribery or threats of depriving such person of employment or occupation, or of ejecting such person from a rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, shall be punished as provided in the preceding section."

The Court said the law was not appropriate because it was directed against private persons as well as state officers [9].

Various historians and law professors have tried to justify these decisions as logical and in keeping with legal precedents.  However, nobody could make a valid case that legal precedents should trump a new Constitutional Amendment.  The constitutional language, "Congress shall have power to enforce," and the well documented intent of the 15th Amendment's framers would provide more honest rationale for a Court decision.  So the justices voted, in U. S. v. Reese and James v. Bowman, according to their policy preferences, not according to any clear mandate of the Constitution.

Congress passed a new, and similar, Voting Rights Act in 1965.  By that time the justices of the U. S. Supreme Court held very different political biases than they had held during most of the prior nine decades.  So the 1965 enforcement act stuck.  That ended nearly a century during which millions of African Americans were denied the right to vote in various (mainly Southern) states and districts.  If you can't vote and you're not rich, you're not likely to have much influence over the government.  So Southern Negroes went to lousy schools, rode in the back of the bus, and had to use seperate public facilities.

In large measure, all that injustice was the Supreme Court's fault.  Don't let anybody convince you otherwise.
 

PROTECTING THE KU KLUX KLAN

As the discussion above shows, the Supreme Court put the 15th Amendment on ice for almost a century.  The Court also took early steps to nullify the 14th Amendment.  Around 1870, two white men in Kentucky murdered a blind, ninety-year-old black lady named Lucy Armstrong along with several of her relatives.  The only witnesses were black; and Kentucky law said that Negroes could not testify against white persons.  After the ratification of the 14th Amendment, of course, that law was flagrantly unconstitutional.

So federal authorities indicted the killers under the provisions of the 1866 Civil Rights Act that Congress had framed the 14th Amendment specifically to "constitutionalize."  The 1866 Act said that the freed slaves had the same rights as "white persons" to "give evidence" and "to full and equal benefit of all laws and proceedings for the security of person and property."  The Act also made it a federal crime to deprive any citizen of rights secured under the Act.

In 1872 (Blyew v. U. S.) the Supreme Court said that, notwithstanding the 14th Amendment and the Civil Rights Act, "the (federal) circuit court had not jurisdiction of the crime of murder committed in the district of Kentucky, merely because two persons who witnessed the murder were citizens of the African race, and for that reason incompetent by the law of Kentucky to testify in the courts of that state."  The Court went on to say that Lucy Armstrong, the murder victim, was already dead.  So she was "beyond being affected by the cause itself, " and didn't have any rights that could be enforced under the Act [9].

In 1875 the Court decided U. S. v. Cruikshank.  The facts in the case were not in dispute.  A group of white men (including Mr. Cruikshank) broke up a meeting of African American citizens in Louisiana, murdering some of them in the process.  Mr. Cruikshank and his associates were indicted by federal authorities for violating Section 6, the anti Ku Klux Klan Section, of the 1870 Civil Rights Act.  Section 6 made it a crime for two or more persons to

"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."

The Supreme Court threw out the indictment.  Our judicial employees said that the men who murdered the Negros hadn't broken any laws that the United States had power to punish.

Here's an example of the Court's logic.

"The 14th amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not . . . add any thing to the rights which one citizen has under the Constitution against another."

The 14th Amendment said,

No state shall . . . deny to any person within its jurisdiction the equal protection of the law.

And,

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

So Congress had passed a law to "enforce" the above "provision."  It had passed a law to rectify the refusal of some states to protect their African American citizens from being murdered because of their race and denied equal status in court proceedings.  The Supreme Court blocked enforcement of that law.  Judge for yourself: did the Court rule in response to a clear mandate of the Constitution; or did it "pervert" the Constitution again?

The Supreme Court continued to protect the Ku Klux Klan for more than seventy years.  Consider Screws v. United States decided in 1945.  Quoting from the Court's opinion, the facts were as follows:

"This case involves a shocking and revolting episode in law enforcement. Petitioner Screws was sheriff of Baker County, Georgia. He enlisted the assistance of petitioner Jones, a policeman, and petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of Georgia. The arrest was made late at night at Hall's home on a warrant charging Hall with theft of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house. As Hall alighted from the car at the court house square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the court house yard into the jail and thrown upon the floor dying. An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall and had threatened to 'get' him."

After rambling for several pages about the meaning of the word "willfully," the Supreme Court declared that, following various precedents, it had to nullify the law under which the murderer-sheriff was indicted.  The law was unconstitutionally vague.  The language in question is given below. See if you can figure out that it forbids a white sheriff from murdering an innocent black man.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both.

The 1945 Supreme Court chose to follow its own precedents rather than the Constitution and declared the law unconstitutional.  The decision ran to 6441 words.  Check it out at the URL given below and see if you think it's any less vague than the legislative language quoted above [9].

Any law that cannot be enforced is no restraint on the behavior of folks who do not feel like obeying it.  As a result of various Supreme Court decisions, Ku Klux Klan mobs, often with the connivance of the local sheriff, continued to terrorize and lynch African Americans until the Court's politics changed in the 1950's.

The Supreme Court nullified laws Congress passed to protect African Americans from intimidation and murder by lawless mobs.  And the Court lacked any convincing constitutional basis for the rulings.  So those crimes were the fault of the U. S. Supreme Court.  Don't let anybody convince you otherwise.
 

PROTECTING THE SOUTHERN PACIFIC RAILROAD COMPANY

For almost a century, the Supreme Court blocked every attempt Congress made to enforce the 14th Amendment.  As a result, African American citizens were denied equal protection of the law as promised by the Amendment.  They were also denied life, liberty, and property without "due process of the law", in violation of the Amendment.  One might wonder what the late nineteenth and early twentieth century Supreme Court thought the 14th Amendment was intended to accomplish.

The answer is not hard to find.  In 1886, the Supreme Court heard Santa Clara County v. The Southern Pacific Railroad Company.  The railroad didn't like the way the County computed its property taxes on some fences along the roadway.  So its lawyers took the argument to their friends on the Supreme Court.

The Court said the taxes were computed by a method that was "too vague and indefinite to serve as a basis for estimating the aggregate valuation of the fences included in the assessment . . ."  Fair enough; but what made this a U. S. Constitutional issue?

The answer is hilarious.  The Court said that this sort of thing was exactly what the framers of the 14th Amendment intended it to forbid.

I swear I did not make that up.  Before the Court even listened to arguments Chief Justice Waite announced,

"The court does not wish to hear argument on the question whether the provision in the 14th Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

Don't take my word for the above quote, look it up [9].

NOTES AND CITATIONS

1.  The quote above is taken from Chapter III in The Prince.  The public domain version use here is available on line courtesy of Project Gutenberg at http://www.gutenberg.net/.  The fact that the Supreme Court follows the advice of Machiavelli is a recurring theme in The Temple of Karnak.

2.  The decision can be found online at http://www.tourolaw.edu/patch/Scott/.  See also the online essay, A Scam is Born.

3.  In a speech at Cincinnati, Ohio , in September of 1859, Lincoln suggested what he thought should be done about a renegade Supreme Court.  "The people of these United States are the rightful masters of both congresses and courts, not to overthrow the Constitution, but to overthrow the men who would pervert the Constitution."  Lincoln was quoted by Senator Jenner during the August 20, 1958 debates on the ill fated Jenner-Butler Bill.  See the 1958 Congressional Record, Senate, page 18645.  The Dred Scott decision's role in causing the Civil War is discussed in A Scam is Born.

4.  See, for example, Lusky (1993), pages 109-111.

5.  The language varied slightly among the three Amendments.  The quote above is from the 13th.  The seven enforcement laws can be found in Appendix 1 of Carr.  It should be noted that none of the seven addressed public schools, "symbolic speech," "gender equity," or "privacy."

6.  In May, 1861, the New York Tribune had written that Chief Justice Taney "takes sides with traitors . . . throwing about them the sheltering protection of the ermine."  A long list of similar quotes can be found in the online essay, Unnatural Selection.

7.  See End Note 3 above.  The Congresses that framed the 13th, 14th, and 15th Amendments all had lopsided Republican majorities and were powerfully influenced by the abolition movement.  The composition of Congress did not change significantly by the time it passed the Enforcements Acts.  See the web site, http://www.congressol.com/history.html.  The Supreme Court's treatment of those Acts is discussed in Carr, pages 40 - 47.  See also Lusky (1993), pages 112 and Lusky (1975) pages 184 - 210.

8.  Publication data for the books by Carr and Lusky can be found in the Bibliography at the end of this article.  See also the essay Racism in the Court.

9.  All the Supreme Court decisions quoted in this article can be found on the Internet.  The URL's I recorded are as follows:

U. S. v. Reese; http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=92&invol=214

James v. Bowman; http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/190/127.html

Blyew v. United States; http://laws.findlaw.com/us/80/581.html

U S v. Cruikshank; http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/92/542.html

Screws v. United States; http://laws.findlaw.com/us/325/91.html

Santa Clara County v. The Southern Pacific Railroad; http://www.tourolaw.edu/patch/Santa/

10.  In 1875 the Court had four justices appointed by Lincoln and four appointed by Grant.  A single Democratic holdover remained.  But he dissented from the Reese opinion for reasons unrelated to the subject matter of this article.

11.  See The Prince, Chapter IX (the 1989 Routledge Edition) and Democracy in America, Chapter 13.

BIBLIOGRAPHY

Carr, Robert K.; Federal Protection of Civil Rights: Quest for a Sword; Cornell University Press, 1947

De Tocqueville, Alexis; Democracy in America, Edited and Abridged by Richard D. Heffner , A Mentor Book, 1956 and 1984.

Lusky, Louis; By What Right; The Michie Company, Law Publishers, 1975

Lusky, Louis; Nine Tribunes; Praeger Publishers, 1993

Machiavelli, Niccolo. The Prince; With an Introduction by Henry Morley; Third Edition; George Routledge and Sons, London, 1889.  See also the on line version at the URL given in End Note 1 above.

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This essay extends ideas presented in The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy..

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D. J. Connolly