The Evils of Supreme Court Democracy (Part II)

There were obvious flaws in the Constitution regardless as to whether or not the United States was a Republic. First, it allowed slavery and second, it held women in low social standing. The 1842 case Prigg v. Pennsylvania found that the Fugitive Slave Act of 1793 preempted Pennsylvania legislation that prohibited blacks from being removed from the state and put into slavery. The Court cited the necessary and proper clause in its decision which allowed the federal government to encroach on its enumerated powers. If Congress could pass a slave law and the Supreme Court could uphold the law as being constitutional, then the U.S. was a democracy following the majority opinion of the national sentiment at the time: to oppress blacks. If the U.S. was a Republic the Supreme Court would have nullified the Fugitive Slave Act for failing to provide life, liberty, and happiness to blacks. The 1957 famous case Dred Scott v. Sanford found slaves or freed blacks were not rightful citizens and therefore, blacks had no standing in the Supreme Court. Chief Justice Taney ruled that slaves were “property” and slave owners were allowed due process of the law when deprived of their property. After the Civil War, the Constitution was amended with the Thirteenth Amendment (emancipation of all slaves), Fourteenth Amendment (holding states to the Bill of Rights and privileges and immunities of individual) and Fifteenth Amendment (allowing black men the right to vote). Privileges and Immunities are defined in the 1823 case between Corfield and Coryell by Justice Bushrod Washington “the enjoyment of life, and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety ….”. This language was also found in the Massachusetts constitution and was used by the Massachusetts Supreme Court to outlaw slavery. However, the Fifteenth amendment’s reference to “men” would deprive women of many rights and it took the Twentieth Amendment to overcome this error and provide women the right to vote. For instance, the 1876 case Bradwell v. Illinois, by an 8-1 vote, the Court denied Myra Bradwell the right to practice law even though she had passed the bar examine. The rationale was simply because Bradwell was a woman.

During the 1880s there were many civil rights cases. In these cases a majority of the Court ruled that the Thirteenth Amendment only applied to slavery and not lesser acts of discrimination. The Court also decided that the Fourteenth Amendment only applied to discrimination conducted by states and not actions taken by individuals. In the 1873 Slaughter House Cases, the Court redacted the vitally important “privileges and immunities” clause from the Fourteenth Amendment. By doing so, the Court denied New Orleans butchers the right to practice their trade without reasonable regulations. The Court majority decided that the “rational” narrative for their decision was to protect the health and safety of the people in New Orleans. That may be a legitimate narrative, but there was also a corruption narrative for creating the butcher’s monopoly in New Orleans that was obviously ignored by the majority. In fact, there were also two racial narratives: one for the statute, and one against it. And the “southern” racial point of view won by gutting the Fourteenth Amendment to prevent “privileges and immunities” from ever being applied to black discrimination cases in the future (the Court would eventually rely on the due process clause of the Fourteenth Amendment to end racial and gender discrimination). With so many narratives, it is best to stick to the text of the constitution when deciding cases of such importance (it was the first Fourteenth Amendment case). If the case was decided on the constitutions text, the dissenter’s argument would have won the day: a person has the natural right to pursue a lawful occupation subject to reasonable regulation. A reasonable law must be both rationale while not being arbitrary. A law must pass both tests of reasonableness (rationale and non-arbitrary) to be constitutional. While the majority found one of several possible rationale narratives to meet their standards, they did not address the arbitrariness of the law which restricts some butchers far more than others. Hence, regardless of the rationale in this case, the law was arbitrary because it discriminated against a large majority of the butchers and therefore, the law was an improper use of police power. In United States v. Cruikshank the Supreme Court invalidated the Civil Rights Act of 1875. Cruikshank’s murder conviction for lynching two blacks was overturned because the Fourteenth Amendment only applied to states, not individual crimes and discrimination. So it should come as no surprise in the 1896 case Plessy v. Ferguson the Court ruled that segregation was acceptable so long as both Whites and Blacks have equal access - it is not discriminatory or arbitrary. The majority theorized the decision to segregate was rationale for the purpose of protecting the peace. These types of rulings happen for one basic reason: the Court is not practicing the law, but are instead influenced by the democratic majority of social sentiments at the time. One democratic lawyer proposed: “judges can only disregard a statute when those who have the right to make laws have not merely made a mistake, but have made a very clear one – so clear that it is not open to rational question.” Hence, the rationale and arbitrary test standards are so low or non-existent when ruling on the constitutionality of laws.

Oliver Wendell Holmes in his dissent in Lochner v. New York in 1905 wrote “I think the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominate opinion.” Holmes is preaching majority rule and not the law. In Lochner, the Court rightly struck down a provision of a New York law limiting the hours for bakery employees to 60 hours a week. The Court did however make an error by elevating the “liberty of contract” to a fundamental right. “Majority rule” was the same attitude that President Teddy Roosevelt had when he said “the majority have the right to rule in the name of the will of the people”. Teddy Roosevelt made the Lochner decision a part of his 1912 progressive platform for president. It was Woodrow Wilson that gave us the concept of a “living constitution”. In other words, the constitution’s meaning changes over time to meet those ideas and concepts proposed by the majority. Wilson also gave us the Sixteenth Amendment in 1913: the Income Tax (previously ruled unconstitutional by the Supreme Court) giving the Federal Government coercive power over the states and Seventeenth Amendment also in 1913: the election of Senators via a popular vote taking more power away from state legislatures to stop federal government encroachment. Wilson was infamously known for being a bigot who favored segregation as the Court decided in the Plessy decision. Worse yet, as President, Wilson implemented segregation policies for all federal offices.