For those who understand that unlimited federal power is a threat to individual liberty, one area of great concern is the fourteenth amendment’s “equal protection” clause. The aim of this amendment was to give the federal government power to “protect” citizens from being discriminated against by their own states.
Under the aegis of the Fourteenth Amendment, the federal government was granted power to enforce racial desegregation in schools and other public institutions. This was opposed by the Southern States, who saw federal enforcement of racial integration as a usurpation of federal authority. They argued that sending federal troops to enforce racial integration was an undue encroachment upon state sovereignty.
In the state of Alabama, one of the leading integrationists was a Republican-appointed federal judge, Frank M. Johnson, who decided many famous civil rights cases in the District Court in Montgomery. In his book, Taming the Storm: The Life and Times of Judge Frank M. Johnson, Jr. and the South’s Fight over Civil Rights, Professor Jack Bass highlights the influence of the Dred Scott case on Judge Johnson’s “views on the Constitution and matters of race.”
Johnson saw the decision of Chief Justice Taney in Dred Scott as “scandalous.” He thought it failed to meet the standards of “truth, justice, common sense, and fairness” that he had been taught to value as a law student. Bass observes:
Reading the 240-page Dred Scott case from a tattered book in the University of Alabama Law School library can easily leave a sensitive person feeling that it was “scandalous,” this placing of a legal veneer over a declaration denying the basic humanity of an entire group of people based on race.
Johnson believed that slavery denies the basic humanity of black people, and, further, he saw Dred Scott as having justified, or at least rationalized, the moral foundations of slavery.
Of course, if Justice Taney in Dred Scott indeed “denies the basic humanity of an entire group of people based on race,” that would be truly scandalous, even to someone without Johnson’s sensitive disposition.
The question is whether that interpretation is a fair reading of what Justice Taney said in Dred Scott. Were Johnson’s sensitivities triggered by Justice Taney’s interpretation of the Constitution, or was there a deeper political, ideological, and constitutional disagreement concerning the balance between federal and state power? Bass describes Judge Johnson as a “mountain Republican” and a devoted Lincolnite, while Chief Justice Taney was writing in a time when the prevailing judicial opinion saw the states as sovereign.
Bass quotes sections from Justice Taney’s ruling which describe the institution of slavery in the United States as it then pertained. For example, Taney states that black people had “for more than a century before been regarded as beings of an inferior order,” and not as citizens. Bass treats this as Taney normatively endorsing this view, rather than merely stating the prevailing status quo.
The premise of Bass’s analysis is that by pointing out these historical facts and failing to denounce slavery as immoral, Taney “scandalously” endorsed the inhumanity of black people. Bass echoes the prevailing consensus of polite opinion that unless one explicitly denounces slavery, we are justified in presuming that he endorses the inhumanity of black people.
But that is not a fair way to read any opinion, especially opinions written in the nineteenth century. Moreover, it is a rather simplistic depiction of the constitutional dispute between North and South in the 1850s.
That dispute was not a morality tale between good states and evil states—between the righteous and the barbaric, as Charles Sumner tried to argue. Rather, it reflected a deeper difference of opinion on the role that should be played by the United States Constitution in resolving a question on which states held strongly divergent moral and political views.
A progressive judge should, we are to understand from Justice Curtis’s dissenting opinion in Dred Scott, have overruled the pre-existing “meaning” of the Constitution that pertained when slavery was legal in all 13 original states. It should have substituted a more enlightened interpretation.
Bass argues that in Johnson’s view, Justice Taney should have relied on the “precedent” of states that permitted blacks to vote—New Hampshire, Massachusetts, New York, New Jersey, and North Carolina—to hold that state law in these states would henceforth reflect the meaning of the United States Constitution. The law in these five states was, after all, morally preferable to the law in states that did not permit blacks to vote. For example, black men could not vote in Connecticut until the Fifteenth Amendment was passed in 1870.
There are two main problems with Judge Johnson’s reading of Dred Scott, as Bass depicts it.
First, Justice Taney was not sitting in the Supreme Court to give his personal moral opinions on the institution of slavery, whether to denounce or endorse it. That would imply that judicial rulings are nothing more than the judges’ personal views, rather than an interpretation of the law.
Further, progressivist constitutional interpretation creates hazards of its own. Under an evolving interpretation, the Constitution means whatever an activist judge happens to decide. That works out well for those who share the judge’s political ideology, but everyone else is at the mercy of arbitrary rulings. Like Humpty Dumpty in Lewis Carroll’s fictional world, the Constitution would mean whatever any judge decides it should mean, no more and no less, and its meaning would vary from one judge to the next.
Bass argues that in “invoking the doctrine of original intent. . . Taney ignored the point made by Justice Benjamin R. Curtis, one of two dissenters, that freed blacks had voted in some states at the time the Constitution was ratified.”
Justice Curtis argued that because some states regarded black men as citizens of their states, “the natural consequence” was that they were citizens of the United States of America and not just of their specific state:
. . .each State retain[ed] every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the Government of the Confederation to act on any question of citizenship or to make any rules in respect thereto. The whole matter was left to stand upon the action of the several States, and to the natural consequence of such action that the citizens of each State should be citizens of that Confederacy into which that State had entered, the style whereof was, “The United States of America. (emphasis added).
By that reasoning, a state which wanted to enforce its own disputed views on all other states—using the apparatus of the federal government—could do so by the simple expedient of enacting it into state law. Justice Curtis said:
To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation at the time of the adoption of the Constitution.
But Taney did not “ignore” the fact that some states permitted blacks to vote. Rather, by his originalist reading of the Constitution, this fact did not automatically turn them into United States citizens in the manner described by Justice Curtis. That would amount to repeal of the law in the slave states by judicial fiat. It would be a constitutional amendment by stealth, or rather, the repeal of state sovereignty by stealth.
If a judge could rule that state law in one state—or indeed five states—constitutes federal law governing all states, that would also be a recipe for judicial chaos. For example, by Curtis’s reasoning, the Southern states which have now banned abortion would be able to get federal courts to enforce that ban on Massachusetts, a state which permits abortion at any time until birth.
One could, following Bass’s own reasoning, argue that the dissenting judges “ignored” the fact that the doctrine of state sovereignty is particularly relevant and important on matters where the law differs between states.
Examples abound of matters on which states strongly disagree, and which could similarly test the limits of state sovereignty and the legitimacy of federal intervention. For example, it is state law in some Southern States—Louisiana, Texas, Arkansas, and Alabama—that schools must display the Ten Commandments. This is a legal right, and indeed a legal duty, that schools have in those states. Should that be treated as the right of all schools in “the United States of America” and should schools’ rights to display the Ten Commandments be imposed on the atheistic states by the force of federal troops?
If, following Johnson’s reasoning, we were to decide that display of the Ten Commandments is the only position that reflects “truth, justice, common sense, and fairness in our country’s law,” then, by that reasoning, federal judges should impose that rule on all states. This would be a platform for overweening federal power and disharmony between states, which is precisely the mischief that the doctrine of state sovereignty sought to prevent.
