Lies the government told you

by Andrew P. Napolitano

  When the South began seceding from the Union, Lincoln met with leaders from Missouri, Kentucky, Maryland, and Delaware, using slavery as a bargaining device. Lincoln promised that the federal government would not interfere with slavery in those states as long as they remained in the Union. Some border states, albeit temporarily, agreed to remain in the Union. Therefore, it is quite clear that Lincoln was willing to support the existence of slavery so long as his federal government stayed intact.

  Lincoln was reluctant to issue the Emancipation Proclamation. He feared that it would conflict with his goal of “saving the Union,” or rather, expanding the size of the federal government. In fact, Lincoln actually issued a “Preliminary Proclamation” to the Confederacy on September 22nd 1862, warning the Confederate States that if they continued in rebellion, he would end slavery in the South on January 1st 1863 (the date on which the Emancipation Proclamation was issued). Therefore, if the slave states had rejoined the Union, Lincoln would have permitted them to keep their slaves. After issuing the Proclamation, Lincoln declared:

  My paramount objective in this struggle is to save the Union, and is not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it, and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save the Union.52

  Furthermore, Lincoln saw the Proclamation as a wartime measure to weaken the South, not as a step toward the abolition of involuntary servitude. If the slaves were freed, Lincoln believed that they would revolt against their masters and bolster the Union Army. Lincoln publicly announced that the Emancipation Proclamation was “sincerely believed to be an act of justice, warranted by the Constitution upon military necessity” (emphases added).

  Moreover, the Emancipation Proclamation was rather limited in its scope, and had very little effect by itself. The Proclamation applied only in the Confederacy, and had no legal justification, as the Confederate states had already seceded. Even after the Proclamation, eight hundred thousand African-Americans were still enslaved in the border states of Kentucky, Missouri, Maryland, Delaware, and West Virginia, as well as in the North, with the blessings of the Great Emancipator. In essence, the Proclamation supported slavery after its issuance.

  The Union Army forced emancipated African-Americans to enter into yearly labor contracts with their masters to avoid “vagrancy” and “idleness.” Once they were under contract, the blacks were not allowed to leave their respective plantations without permission. This system of forced free labor spread throughout the parts of the South that were dominated by the American Army, and lasted until the end of the Civil War.

  Lincoln’s Emancipation Proclamation, therefore, achieved little in terms of African-American freedom. The federal government did not officially recognize emancipation until Congress enacted the Thirteenth Amendment to the United States Constitution on December 6th 1865. By that time, slavery had been abolished in Missouri, Maryland, Louisiana, and Arkansas; and Tennessee and Kentucky were both in the process of ending slavery.

  Supreme Racism

  The Union won the Civil War, and the slaves were emancipated, but African-Americans were far from equal to whites in the United States during the Reconstruction Era and beyond. The Southern state and local governments enacted Jim Crow laws, with the purpose of segregating blacks and whites, and institutionalizing the idea that African-Americans are morally and legally inferior to whites. Sadly, the United States Supreme Court supported Jim Crow through various troubling and openly racist decisions.

  The Supreme Court ruled unconstitutional the Civil Rights Act of 1875, which stated in part,

  [t]hat all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other public places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color regardless of any previous condition of servitude.

  This Act was passed pursuant to the Fourteenth Amendment to the United States Constitution, which states, in relevant part: “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.” Furthermore, Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Amendment by “appropriate legislation.” According to the Supreme Court’s majority opinion in the Civil Rights Case, decided in 1883, the Civil Rights Act of 1875 was unconstitutional because it was not passed in reaction to discriminatory state legislation.53 The Court held that the Equal Protection Clause applies only to state action, not discrimination perpetrated by private businesses. Through this decision, the Court essentially condoned private discrimination, providing African-Americans with no recourse against racist state and local governments that forced white business owners to separate the races.

  The case of Plessy v. Ferguson, decided in 1896, was an example of state action.54 In 1890, the State of Louisiana passed the “Separate Car Act,” a law requiring separate, but “equal” accommodations for African-Americans and whites on railway cars. Homer Plessy, who was only one-eighth black, but was classified as an African-American under Louisiana law, was convicted under the Act for sitting in a “white” railway car. Plessy challenged the law as a violation of the Fourteenth Amendment, but the Supreme Court disagreed, in a 7 to 1 decision.

  According to the majority, Plessy’s argument falsely assumed that “the enforced separation of the two races stamps the colored race with a badge of inferiority.”55 As far as the majority was concerned, Louisiana was permitted to pass such a law, so long as the separate accommodations were “equal.” The Supreme Court also stated that the Constitution does not protect against social differences between the races, declaring that “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.”56

  The lone dissenter, Justice John Marshall Harlan, wrote a passionate dissent in which he declared: “[T]here is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”57

  Unfortunately, Justice Harlan’s opinion did not represent the prevailing view in this country until well after the case of Brown v. Board of Education of Topeka, decided in 1954, in which the Supreme Court held that segregation of public school students violates the Equal Protection Clause of the Fourteenth Amendment.58 Separate facilities for blacks and whites, according to the Court, are inherently unequal. Until 1954, the States, with the Supreme Court’s permission, were free to discriminate against African-Americans who attempted to be accepted as equals in American society. The Supreme Court, through its decisions in the latter part of the nineteenth century, gave strength to the idea that there existed a color barrier between blacks and whites, and defied Jefferson’s supposed self-evident truth that “all Men are created equal.”

  Toward a “Post-Racial” Era

  The United States of America, after a long, dark history of legal slavery and legal racial discrimination, is moving closer and closer to a “post-racial” era, a time when Americans move beyond racial differences. Nevertheless, as much as politicians would like to believe that we have transcended race, the race issue is still prevalent in American society. We are still judged on what makes us different from one another, and not as much on what unites us.

  The affirmative action debate is important to explore because it is a current example of distinguishing people based on race and reflects a modern-day obs
tacle to Jefferson’s truism. “Affirmative action” is the term describing government policies that take race into account in order to foster racial equal opportunity, or to right past wrongs. Affirmative action policies are widespread in education, as well as in employment.

  In the 1978 case of Regents of the University of California v. Bakke, the Supreme Court held that affirmative action policies in publicly owned college admissions are constitutional, but institutions cannot employ a “quota system” based on race.59 That is, colleges cannot set aside a certain amount of seats for students solely for minorities, but they can take race into account as one factor in determining whether an applicant should be admitted. The Supreme Court recently upheld this decision in 2003, in Grutter v. Bollinger, when asked to assess the University of Michigan Law School’s conceded racially discriminatory admissions procedures.60

  Justice O’Connor, writing for the majority in Grutter, surmised that “25 years from now the use of racial preferences will no longer be necessary to further the interest [in achieving a diverse student body] approved today.”61 Justice O’Connor’s weird articulation of the Court’s position on affirmative action raises many questions. It is clear from her statement that racial inequality still exists in this country; that is not disputed. It is also evident that Justice O’Connor believes that affirmative action policies are not the ideal way to conquer these differences, yet according to her, some form of affirmative action is presently necessary. No matter how we look at affirmative action, it is a form of racial discrimination; it is government making decisions based on race. Affirmative action consists of the government, which is supposed to be color-blind, helping some (who could use the help) and harming others (who harmed no one themselves) based solely on race. It has survived because it is not the typically historical brand of racial discrimination. It seeks to correct past discrimination against African-Americans, and put them on a level playing field with whites.

  However, Supreme Court Justice Clarence Thomas believes that affirmative action amounts to a “reverse-racism” tool. In Adarand Constructors, Inc. v. Pena, an affirmative action case decided in 1995, Justice Thomas, in his concurring opinion, stated that “[i]t is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.”62 Therefore, according to Justice Thomas, all affirmative action programs violate the Equal Protection Clause. Furthermore, in his dissent in Grutter, Justice Thomas responded directly to Justice O’Connor, and stated that if Michigan’s affirmative action system will be illegal in 25 years, it must be “illegal now,” for the Constitution “means the same thing today as it will in 300 months.”63

  Justice Thomas is correct. The government has no power to make decisions based on race, just as it has outlawed innkeepers, schoolteachers, landlords, shopkeepers, and even Presidents from doing so. I am loath to endorse the federal regulation of private behavior for reasons I have articulated elsewhere;* essentially because the Constitution has never given Congress the power to do so. But it can certainly assure that the States as States, as sovereign governments, respect the Natural Law, which is color-blind. Isn’t it ironic that it took a black man on the highest court in the land to point this out?

  What is it about “all Men are created equal” that we still struggle to implement that statement 235 years after it was written? Do we really understand today—after a Civil War, constitutional amendments that were popularly adopted in some states and compelled by force of arms in others, Reconstruction, Jim Crow, official segregation, and now a biracial President—any better just what Jefferson meant?

  * See my previous books: Constitutional Chaos: What Happens When the Government Breaks Its Own Laws; The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land; A Nation of Sheep; Dred Scott’s Revenge: A Legal History of Race and Freedom in America.

  Lie #2

  “All Men . . . Are Endowed by

  Their Creator with Certain

  Inalienable Rights”

  Wilhelmina Dery, an elderly woman who had lived in her house since her birth in 1918, was planning to stay there with her husband, Charles, until she died.1 That was her plan, at least, until the City of New London decided it would take her house, and the entire neighborhood, away from the homeowners so it could build a development on the land. By the time they lost the case, Kelo v. New London, in the Supreme Court, Wilhelmina and her husband, at age eighty-seven and eighty-six years old respectively, were about to be kicked to the curb by the State of Connecticut.2 Yet, after the Court’s unfavorable ruling, many of the plaintiffs, including the Derys’ son, were able to delay the government’s confiscation of their homes. In the meantime, Wilhelmina got her wish and died in the house she had been born in eighty-eight years earlier.3

  Susette Kelo, the named plaintiff in Kelo v. New London, stated, “There is no amount of money that could replace our homes and our memories. This is where we chose to settle, and this is where we want to stay. This is America, the home of the free, isn’t it?”4 Kelo’s poignant words make a very meaningful point: What ever did happen to the freedom to enjoy happiness on your own property?

  That right to enjoy your own property derives from Natural Law, and Natural Law teaches that human freedom extends from human nature, which originates with God. So under Natural Law, legislatures have unwritten limitations imposed on them because human gifts that come from God are greater than government powers based on consensus, whim, fear, or force.

  Under Natural Law, our fundamental rights—like freedom of speech, freedom to travel, freedom of religion, etc.—cannot be taken away by the government, unless it follows procedural due process. Due process means that we knew before we violated the law that the government would prosecute, that we were fully notified by the government of the charges against us, and that we had a fair trial with a lawyer before a neutral judge and jury. It also means that we can challenge the government’s evidence against us by summoning persons and evidence that support our case, that the government must prove its accusations against us beyond a reasonable doubt, and that we are given the right to appeal to another neutral court. Under the Natural Law, only by following procedural due process can the government deprive us of our Natural Law rights.5

  Numerous intellectuals throughout history have espoused the Natural Law. Sophocles, Aristotle, and Cicero; Augustine, Aquinas, and Locke; Jefferson, Martin Luther King, Jr., Justice Clarence Thomas, and Pope John Paul II, all recognized the existence and immutability of Natural Law. As Aristotle put it, “one part of what is politically just is natural, and the other part is legal.” If you fast forward a little bit, transcendental thinker Henry David Thoreau argued in his famous essay, Civil Disobedience, that people should follow their own consciences over what the government purports to be right. Civil Disobedience was published in the mid-1800s, a time when slavery was legal and America was in the midst of a war with Mexico. Throughout the text Thoreau emphasized that through the refusal to accept passively what the government actively tells us, the individual chooses to obey his own morality.6

  The underlying message of these philosophers still holds true today within the context of Natural Law. Certain rights are inalienable and implicit within our humanity, regardless of whether they are written down on paper. Among these natural rights are the right to life, to self-expression, to worship, to the use and enjoyment of one’s own property, the ability to contract, and the right to reap the benefits of one’s own labor; and the right to be left alone.

  Not only is the right to your own property implicit through the doctrine of Natural Law, but it is also a concept closely tied to the achievement of the American Dream. The familiar white picket fences, lawns, and cars in the garage are the material things and the consequent set of values that the government threatens through infringing upon our natural rights. If I own the brain inside my head and the fingers on the
ends of my hands, then I own what they together have conceived, created, and built, be it a book or a house.

  Despite Natural Law rights, the government skulks its way into our homes, businesses, kitchens, and even our backyards (literally). However, courageous people have struggled to keep a grasp on their personal liberties in spite of the government’s powerful encroachment upon them.

  Your Home Is Your Castle

  You may think that once you pay for your house, it is actually yours, and no one can take it away from you. But, guess what? The Takings Clause of the Fifth Amendment to the U.S. Constitution specifies that the government may take private property for “public use,” so long as the government pays the private owner “just compensation” for it, otherwise known as using eminent domain. The Jeffersonians argued that any use of eminent domain should not be permitted under any circumstance; namely, that only by mutual consent and a fair bargain, but never against your will, could the government end up owning your property. Conversely, the Hamiltonians argued that the government could take any land it wants for free, just like the British kings at one time could and did.

  In one New Jersey Supreme Court decision, taking the Hamiltonian position to the extreme, Chief Justice Robert N. Wilentz stated, “The basis for the constitutional obligation is simple: the State controls the use of land, all of the land”7 (emphasis in original). This alarming use of state power discussed by the late Chief Justice is exactly the type of action the Constitution was expressly meant to limit. The New Jersey governor who appointed Wilentz as Chief Justice (and who also appointed me to the Superior Court of New Jersey) called this opinion “socialist.”8

  Traditionally, a government taking has meant that if someone’s house stood where the government planned a roadway or a post office or a school, the person would be forced to move in order to accommodate the public project, and the government would pay the owner for the market value of the vacated property. The only issues between the government that coveted the private property and the owner of the private property traditionally have been “when” will the government get the property and “how much” will the government pay. Since Jefferson lost the argument in which he asserted that a taking must be fully consensual, the “whether” the government can get the property has rarely been in dispute. Originally, these “public use” and “just compensation” requirements were put in place by the drafters of the Constitution in order to limit governmental power and protect personal property rights. The Fifth Amendment, which addresses government takings, was drafted with the lingering memory of British soldiers taking the colonists’ property and was therefore put in place to ensure that these indiscriminate takings would not continue to occur.9 Let’s take a look at the way the government has perverted this meaning.