A few weeks ago Mike Huckabee made minor news by telling an interviewer that slavery has never been made unconstitutional. Or, to be precise, he told radio interviewer Michael Medved that “the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human.” He then asked, “Does anybody still follow the Dred Scott Supreme Court decision?”
That was a rhetorical question because no one follows the Dred Scott Supreme Court decision anymore. No one has since December 18, 1865, when the Thirteenth Amendment was certified by the secretary of state as formally a part of the Constitution. At least no one admits to following the Dred Scott Supreme Court decision anymore, and no one follows the part of it that treated slave ownership as a property right, since everyone but Huckabee knows about the Thirteenth Amendment. It provides:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
But the Dred Scott opinion did not actually address the constitutionality of slavery; slavery clearly was constitutional then and Mr. Scott did not claim otherwise. What Dred Scott addressed was whether under the Constitution, the right of states to trump the rights of individuals, including even the most basic human rights, extended beyond the borders of the states whose laws authorized the profound violations of human rights. That is, whether the rights of those states to violate individuals’ human rights extended beyond those states’ borders and into other states. The Supreme Court said it did.
And it is a fundamental tenet of the modern Conservative Legal Movement begun in the late 1970s, that has a stranglehold on the current Supreme Court and until recently thoroughly controlled the lower federal courts and continues to rage unabated in state courts, that despite the clear language and purposes of the two additional Reconstruction amendments, the Fourteenth and the Fifteenth, the essence of Dred Scott indeed remains the law of the land. And just as in Dred Scott, it is given the name “Freedom”, its source of constitutional legitimacy nothing actually specified in the Constitution but instead the Constitution’s supposed “design”, which is federalism, the technical term for states’ rights.
The idea is that a separation of powers between types of governments means freedom. Balances between the powers of the federal government and state (and local) governments. No checks, though; only balances. Unless, of course, a state legislature enacts, say, a campaign-finance law, or a municipality a gun-restriction ordinance.
Trickle-down freedom, in other words. Freedom derived by virtue of your state’s right not to be confined by federal constitutional rights that explicitly accrue directly to individuals. Even though the Fourteenth Amendment begs to differ.
If you were a slave owner back before the Emancipation Proclamation, you were free to reclaim your escaped slave from a state that outlawed slavery, courtesy of your state’s freedom vis-à-vis the federal government. And if you are a state or local judge, a state or local law enforcement officer, a state or local prison guard, you are unconstrained by that pesky Bill of Rights and that Fourteenth Amendment. Those do limit state legislators’ and municipal lawmakers’ powers to, say, legislate campaign-finance laws and gun-ownership ordinances, but do not limit the brute power of government actors invested with actual and direct police powers over specific individuals. It is only in the rarest of circumstances that individuals have freedoms derivative of their state’s rights, and therefore only in the rarest of circumstances does “Freedom” concern actual physical freedom.
It never concerns the right to be treated humanely when in the custody of the state. Or the right to survive a traffic stop. Or to not be incarcerated for days, weeks or months because you can’t afford to pay the hundreds or thousands of dollars in fines and fees whose purpose is to fund the municipality’s government, especially its law enforcement complex. Or to be brutalized while in jail awaiting trial.
Then, freedom means state or local government’s freedom to violate individuals’ constitutional rights. Federalism, in other words, defined by the Constitution’s design.
Dred Scott forever!
Most people who read about Huckabee’s pronouncement that Dred Scott remains the law of the land reacted as Medved did: with disbelief. Me? I said to myself, “Well, he’s in good company. Or at least extremely powerful company.”
Five of the nine Supreme Court justices believe that Dred Scott accurately describes the Constitution’s design not only before ratification of the Fourteenth and Fifteenth amendments but after those amendments became a part of the Constitution. The Fourteenth Amendment didn’t alter the Constitution’s design one whit, except when it can be invoked to advance an item on the Conservative Legal Movement agenda. Uh-uh. No way, no how. See?
John Cornyn, a high-ranking member of the Senate Judiciary Committee, agrees. Late last fall,shortly after President Obama announced that his choice for Attorney General was Loretta Lynch, the U.S. Attorney for the federal judicial district in New York that includes Staten Island, Cornyn publicly licked his chops. Lynch earlier had announced that her office was conducting an investigation into possible violations of federal criminal rights law by the police officer who killed Eric Garner, and the other officers who were present, as Garner was being arrested for selling single cigarettes in violation of state law.
This is a local matter, Cornyn said, and indicated that he planned to question Lynch about her use of her federal office to infringe upon the obvious constitutional right of state and local law enforcement—police, judges, prison guards (those directly employed by state and local governments and those employed by corporations under contract with state and local governments in exchange for massive political contributions)—to baldly violate individuals’ most basic civil and human rights. But it turned out that large swaths of Republicans who are not members of a local Patrolmen’s Benevolent Society actually disagreed. Within 24 hours of Cornyn’s declaration, many of them, including, if I recall correctly, Senate Judiciary Chairman Charles Grassley, and in any event informal Internet commenters and a couple of formal ones, indicated support for the federal probe into the death of Eric Garner. Cornyn did not question Lych hostilely about infringements of state and local government rights in the federal Garner probe; at least nothing I read about. Neither did any other senator.
So there is a limit to the Mad Hatter definition of freedom, even in the opinion of most Republicans. Who knew? (Not Cornyn.)
The Supreme Court, beginning in the late 1970s, has erected a bizarre series of ostensible jurisdictional and quasi-jurisdictional, but fabricated-out-of-whole-cloth, bars to access to federal court in order to challenge as unconstitutional actions by, and occurrences in, state and local court by judges in criminal and life-altering civil matters and by courts, prosecutors, law enforcement officers in criminal and quasi-criminal matters.
Such as minor traffic violations. Such as inability to pay child-support payments in the amounts ordered. Such as adult-guardianships and conservatorships and child-visitation. And letting your nine-year-old spent time in a nearby park alone. Even profoundly unconstitutional actions.
These court-fabricated jurisdictional and quasi-jurisdictional bars to access to federal court in order to enforce provisions of the Constitution itself are odd invocations of the Constitution’s design, since the Constitution’s actual design explicitly assigns to Congress, not the judicial branch, the obligation and sole authority to write the parameters of federal-court jurisdiction, and Congress has done so, or rather attempted to do so, in, for example, this statute. And this one.
Under the Constitution’s actual—actually explicit—design, the sole role of the judiciary branch in determining federal-court jurisdiction is to consider whether a federal-court jurisdictional statute is constitutional, and whether Congress’s failure to provide for federal-court jurisdiction regarding circumstances is itself unconstitutional. This is of particular importance concerning an infamous jurisdictional statute enacted in 1996 and signed by President Clinton because he feared that Bob Dole would run Willie Horton ads against him in the upcoming campaign if he did not. The Supreme Court in the last decade—i.e., the Roberts Court era—has (very) effectively rewritten the statute to categorically eliminate the right of habeas corpus in state criminal matters. Completely. Ever.
This is a completely unabashed obsession of certain members of the current Court—an unremitting juggernaut lead originally by Anthony Kennedy, in the name of Freedom, and lately by Samuel Alito, in the name of Fascism. Freedom and Fascism are converging these days.
States’ rights, according to the current Supreme Court, as I’ve said many times here at AB, mainly state-courts’ rights to violate individuals’ rights. State legislative and executive branches don’t have that right. The Supreme Court justices never explain why this is so, but as I’ve said before, I think it’s just good old-fashioned professional courtesy. Affinity fraud, albeit on the public rather than on those with the affinity. Masquerading as the Constitution’s design. The Constitution’s habeas corpus provision, like the Constitution’s assignment to Congress rather than the judicial branch of the power to determine the scope of federal-court jurisdiction, is part of the original Constitution. These provisions are not in Amendments; they are in the original Articles. In contrast to the Bill of Rights. And to the Reconstruction Amendments.
The most important of which, for purposes of this post, is the Fourteenth. Which provides in the two sections that are at the heart of post-Civil War constitutional civil rights:
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 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Meaning that contrary to what (I suspect) most Americans believe, Congress indeed has broad authority to outlaw the slew of local and state laws and practices that brazenly render the United States Constitution’s vaunted civil rights provisions a Potemkin Village. They actually protect almost no one against even the most arbitrary and absurd, and even the most corrupt or brutal, police, prosecutorial, judicial and prison-guard and prison-official actions. Even against judges who openly and routinely violate their own state’s laws concerning bail and fines and fees.
Constitution-as-fraud. How American. Presumably, the next time Ruth Bader Ginsburg uses one of her month-long vacations during the Court term, or maybe her months-long summer break as she reportedly did this past summer when she spoke at a conference in Australia on the subject of human rights, to flit around the world and lecture other countries’ leaders in government and law about human rights and civil rights, she’ll explain the relationship between, say, this, and this, and this, and this, and Supreme Court-created federalism. And Freedom, of course.
She might also identify the constitutional authority that her court has for its admitted venture into policy, entirely absent any claim of constitutional or federal statutory interpretation as a pretext, that exempts law enforcement folks—police, prosecutors, prison guards—from civil rights monetary liability to their victims for blatant violations of their federal civil rights. The Constitution’s design, perhaps? Nah. The justices themselves concede that this is simply a policy of the sort normally reserved for legislative bodies. But they think the policy is a wise one. So, no matter that under the Constitution’s design, they have no authority to simply invent a policy. In the absence of actual constitutional authority, Ginsburg might identify her reason for failing to mention this in her dissents in these cases. Maybe she will when she visits Canada or Sweden to lecture them about human rights and civil rights. They’re northern-climate countries, though, so she’ll have to wait until next summer. Especially since she has no clothes.
As a supporter of Bernie Sanders’ candidacy and a recipient of his campaign’s listserve notices, I received an email message that discusses a bill he recently introduced in the Senate that would end for-profit prisons. I had heard about the bill but was under the disappointing impression that it prohibited only the federal government’s use of private privately-owned or privately-run immigration detention centers—the only use the federal government makes of prisons not owned and run by the federal government. And I had assumed that Sanders limited his bill to the federal government because he thought, as so many people do, that Congress is powerless to address issues of that sort pertaining to state and local governments. But, happily, I was wrong. The email says the bill “will bar federal, state, and local governments from contracting with private companies who manage prisons, jails, or detention facilities.” It will not get Marco Rubio’s vote.
The email goes on to say:
The private-for-profit prison racket is a $70 billion industry, and with so much money at stake, it’s not surprising they’ve corrupted our political process.
The industry has contributed millions of dollars to candidates in pursuit of laws that increase incarceration of nonviolent offenders — a practice that disproportionately impacts people of color in the United States. We must stop the practice of governments guaranteeing prison occupancy as part of deals with private corporations that incentivize states to keep prison cells filled. And we must stop the practice of private companies charging exorbitant rates for prisoners to contact their families by phone — sometimes up to several dollars per minute to talk with loved ones, and charging outrageous service fees to prisoners trying to access their money upon release. That kind of exploitation takes an already difficult family dynamic between husbands, wives, parents and children and strains it even further.
It is wrong to profit from the imprisonment of human beings and the suffering of their families and friends. It’s time to end this morally repugnant process, and along with it, the era of mass incarceration.
I wrote here at AB three or four months ago, shortly after I first learned of contracts with private prison companies that guarantee occupancy, that these contracts strike me as flagrantly unconstitutional.
The Sanders bill, if enacted, will be challenged as an unconstitutional abridgment of states’ rights and, indirectly, of the prison corporation’s Freedom; separation of powers equals Freedom, see, when the separation is between the federal government and state or local governments and it advances some Conservative Legal Movement goal. Or Republican Party donors’ financial interests. But actually the bill is authorized by none other than the Constitution. Albeit the Fourteenth Amendment, sections 1 and 5, which don’t actually count. See Dred Scott v. Sandford, 60 U.S. 393 (1857).*
In fact, the entire panoply of violations that the general public now, finally, is aware of can be addressed by national legislation that indeed controls state and local courts, lawmakers, police and prison guards. That is what I want Bernie Sanders to know before Tuesday’s debate. I will recommend some in a (much shorter) follow-up post tomorrow. It is imperative to expose the states’ rights canard for what it is: a key component of the Conservative Legal Movement’s commandeering of constitutional law, via procedural and fabricated jurisdictional gimmicks, to so completely remove constitutional protections from the vulnerable that, objectively, this country cannot be thought of as a civilized society. Civilized societies don’t conduct themselves in this manner. Civilized societies don’t uncouple the word freedom from its objective meaning; their highest court and their legislative bodies don’t use the Mad Hatter’s dictionary.
I also will insert several web links into this post tonight or tomorrow.** Meanwhile, maybe Bernie Sanders can think about proposing a constitutional amendment that will once and for all end the part of the Dred Scott decision of 1857 that still remains to this day the law of the land which says that black people aren’t fully human. Or an amendment that says that Mike Huckabee is fully human. There seems to be a lot of support for the first of these, if not for the latter one.
*Paragraph edited for typo correction and clarity. Post edited slightly elsewhere, also. 10/11 at 11:10 p.m.
**I’ve added several links. 10/12 at 1:47 p.m.