This is because all law is simply the enforcement of the majority’s subjective, nonrational prejudices. Just knowing that some activity is taking place and being “outraged” by it entitles the majority to proscribe that activity.96 Presumably, this would even include criminalizing private religious beliefs—because “[a] change in [the] moral environment . . . may surely be felt to be as harmful as the possibility of physical violence.”97 But it certainly would include rape, because laws against rape are based on nonrational emotional impulses: “[t]here is, indeed, no objection to forcible rape in the home . . . except a moral objection,”98 and morality has “no objective or intrinsic validity.”99 “Thus, while Bork claimed to recognize a “moral distinction between forcible rape and consenting sexual activity between adults,” such a distinction could only be his own personal idiosyncrasy.100 There is “no objectively ‘correct’ hierarchy” of ethical values, and therefore “no way to decide” whether “sexual gratification [is] more worthy than moral gratification.” So we must “put such issues to a vote,” and “the majority morality prevails.”101
That, of course, means that a woman’s right not to be raped is only a subjective preference—and one the majority may override at will. So, notwithstanding Bork’s belief that there is a difference between rape and consensual sex, “the subject for discussion is not my morality. . . . If a majority of my fellow citizens decide that [rape and consensual sex], while not alike, are nevertheless similar enough so that both actions should be made criminal,” then one must comply with that decision regardless of one’s own opinion; “while I may disagree . . . it is in the polling booth that my moral views count.”102 Obviously, it would follow from the same premises that the majority may also permit rape by revoking a woman’s rights/privileges. Women would then need to resort to the ballot box to request that protection—assuming the majority sees fit to give them the right/privilege to vote.
We see here the horrifying consequences that follow from the notion that rights are benefits created by the state. That contention empties the word “right” of any real content, and replaces it with a permission extended by the superior state to the inferior individual, when and how the state chooses.
The Founding Fathers were familiar with this argument, and they rejected it. John Locke, the intellectual progenitor of the American Revolution, is most famous for his Second Treatise of Civil Government, passages of which Jefferson paraphrased in the Declaration of Independence. But in his First Treatise, Locke focused on refuting the arguments of Robert Filmer, a monarchist whose view of rights was remarkably similar to the modern positivism of Tribe, Sunstein, and Bork. Filmer claimed that government owns citizens, and that it may give them rights or withhold rights from them whenever it sees fit. So, Locke asked in his rejoinder, can princes also eat their subjects?103 If we recognize that rights are not just government-created permissions, we also can recognize that there are limits to what rulers may justly do to us. But to argue, like Filmer, Tribe, Sunstein, and Bork, that government comes first, and that it gives people freedom when it wills, and for its own purposes, is, as Locke concluded, the same as saying “that no man is born free.”104
2. The Civil War and the Incomplete Reconstruction
Noble as the ideas of the Declaration of Independence were, it was obvious before the ink was dry that they clashed with a central fact of everyday life in America: slavery. Americans grappled with this conflict for almost another century, and in the process they confronted even more directly the dilemma of which takes precedence: the individual’s right to freedom, or the power of the majority to govern.
Only after four dismal years of war did the nation add three new amendments to its Constitution, rededicating itself to the primacy of liberty and the other principles of the Declaration of Independence.1 Once slavery was abolished, the core of the changes that followed was found in the Fourteenth Amendment, which for the first time defined the terms of American citizenship and declared that no state could deprive people of their natural rights or the traditional rights inherited through the common law. Yet shortly afterwards, that amendment was crippled by a Supreme Court decision known as The Slaughter-House Cases. Although parts of the amendment still provide real security for individual freedom today, the wrong done in that 1873 precedent still hampers protections for liberty today.
In the decades leading up to the Civil War, two parties formed with competing views of the Constitution. These parties went by various names, but we will call them the States’ Rights Party and the Republican Party. Their differences focused on two issues: the nature of federal-state relations and the scope of government’s power to rule. Republicans believed that the people of the United States make up a single sovereign nation. The States’ Rights Party held that sovereignty resides primarily in each separate state and that the federal government’s powers are delegated to it by the states, not by the people. Second, Republicans held that all Americans enjoy protections for their natural and traditional common-law rights through their federal citizenship, not through their state citizenship. The States’ Rights theory, on the other hand, held that states possess almost limitless power to define, protect, and limit individual rights. When, at the war’s end, Republican leaders drafted the Fourteenth Amendment, they hoped it would resolve these controversies and ensure that their constitutional theory—which Jacobus tenBroek called “paramount national citizenship”—would forever be preserved in the nation’s supreme law.2
National or State Sovereignty
The authors of the Fourteenth Amendment believed that either the Declaration of Independence or the Constitution itself had made the people of the United States into a single unified nation. National sovereignty—limited, of course, to those specific powers enumerated in the Constitution—prevailed over the autonomy of states. This meant that the states had no authority to secede from the union, but it also meant that the Constitution guaranteed rights to all Americans that overrode any provisions of state law.3
This theory was faithful to the constitutional structure the Founding Fathers created. The most striking difference between the 1787 Constitution and the Articles of Confederation that preceded it was that, while the Articles operated like a treaty among separate states, the Constitution set out a framework for an independent federal authority exercising its own powers directly. The Articles were explicitly signed by the states as a “league of friendship,” and provided that “each state retains its sovereignty, freedom, and independence.” But the new Constitution was not a league; it was a constitution, and the Preamble made clear that it was ordained not by states but by “the People of the United States.”
In the Federalist Papers, Alexander Hamilton put the point succinctly: the “great and radical vice” of the Articles of Confederation was that it only allowed Congress to legislate “for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES”4 and was therefore “a mere treaty, dependent on the good faith of the parties, and not a government.”5 The Constitution would cure this defect by deriving its authority directly from the people, who acted as a unified national sovereign. When Patrick Henry warned his colleagues at the Richmond ratification convention that “the language of We the People, instead of We, the States,” signaled “an alarming transition, from a confederacy to a consolidated government,” James Madison coolly answered that this was among the Constitution’s best features.6 The Articles had been based on “the dependent derivative authority of the legislatures of the states,” he said, but the Constitution would draw its authority “from the superior power of the people.”7 Although it did not consolidate the states in every way, the Constitution, once ratified, would create “a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large.”8
Madison, Hamilton, and other delegates had debated the question of federal sovereignty at Philadelphia months earlier. On June 19, 1787, Maryland’s Luther Martin told the Constitution
al Convention that he “considered that the separation from Great Britain placed the thirteen states in a state of nature towards each other.”9 Apparently alone among the delegates, he thought each state was a politically independent unit, and he later opposed ratification on the ground that uniting the whole people of America into a sovereign union trespassed on the sovereignty of the states. “[E]very thing which relates to the formation, the dissolution or the alteration of a federal government over States equally free, sovereign and independent is the peculiar province of the States in their sovereign or political capacity.”10 But Pennsylvania’s James Wilson refuted Martin’s argument. Wilson “could not admit the doctrine that, when the colonies became independent of Great Britain, they became independent also of each other.”11 Citing the Declaration of Independence, he contended that “the United Colonies were declared to be free and independent states, and infer[red], that they were independent, not individually, but unitedly, and that they were confederated, as they were independent states.”12 True, the Articles’ reference to the states’ separate sovereignty seemed to contradict that view, but the Constitution would eliminate that confusion. The new federal government would rest “upon the supreme authority of the people alone.”13 The sovereignty of the whole nation was “the rock on which this structure will stand.”14
Many other opponents of the Constitution joined Martin in arguing against ratification because it would replace the league of sovereignties with a single national sovereignty. The writer “Brutus,” for instance, warned that, if ratified, the Constitution “will not be a compact entered into by the States, in their corporate capacities, but an agreement of the people of the United States as one great body politic.” The federal union would no longer be “a union of states or bodies corporate,” but “a union of the people of the United States considered as one body.”15 Likewise, the “Federal Farmer” warned that the Constitution would be agreed to “not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States.”16 Nobody ever said otherwise, or sought to allay the fears of anti-federalists by promising states that they could secede later if they wanted.17
Thus, at the time of ratification there was a broad national consensus—one that included even the Constitution’s opponents—that ratification would vindicate the sovereignty of the American people as a whole and that the new federal government would derive its powers directly from the whole nation and not from the states. The U.S. Constitution would not be a coalition or treaty, as the Articles had been, but would be the supreme law of the land. Probably no intellectual of the post-ratification period expressed this idea more effectively than Chief Justice John Marshall, who observed in Gibbons v. Ogden (1824) that, while the Articles of Confederation had only established “a league” of “allied sovereigns,” the Constitution “converted their league into a government,” causing “the whole character in which the States appear” to “under[go] a change.”18 Likewise, in McCulloch v. Maryland (1819), he wrote that the federal government “proceeds directly from the people. . . . It required not the affirmance, and could not be negatived, by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.”19
It was not until long after ratification, under the influence first of Thomas Jefferson’s 1798 Kentucky Resolutions and then John C. Calhoun’s philippics during the Nullification Crisis of the 1830s, that Southern political leaders devised a states’ rights theory that resurrected the idea of a league of sovereignties.20 Writing anonymously, Jefferson contended that “each State acceded as a State, and is an integral party” to the Constitution, so each state could “judge for itself” whether the Constitution had been violated, and decide on “the mode and measure of redress.”21
At first, this argument was rejected or ignored, but shortly after Jefferson’s death, when the Jackson administration’s policies provoked Southern states’ anger, spokesmen for this new states’ rights theory became bolder. Ignoring the ratification debates of a half-century before, they argued that the federal union was still only a treaty among sovereign states. Upon separating from Great Britain, they reasoned, the states had become “distinct, independent, and sovereign communities” and thus the basic units in the American federation.22 In 1776, the sovereign power that Parliament once wielded had been transferred to each state individually, and not to the American union, as Wilson and others had said. Those states had ceded some of their power to the federal government by joining the union, but they still remained the principals, and the federal government was their agent.23
Among the most eloquent opponents of this states’ rights theory was Massachusetts Senator Daniel Webster, who in his famous 1830 debate with South Carolina Senator Robert Hayne argued that federal authority was “not the creature of the State governments,”24 as Hayne claimed; it was instead “made for the people, made by the people, and answerable to the people.”25 Webster also hinted at the implications of national sovereignty when he observed that, “if the whole truth must be told,” the American people had established the federal government “for the very purpose, amongst others, of imposing certain salutary restraints on State sovereignties.”26
Webster’s argument became a classic of American oratory, but it did not convince the South Carolinians. Following his mentor, Calhoun, Hayne contended that the states enjoyed “the right to the fullest extent of determining the limits of their own powers,” a right that was “full and complete,” indeed, “plenary.”27 In 1832, when the state legislature issued its Ordinance of Nullification, purporting to invalidate a federal law, it simultaneously published an explanatory Address to the People, which embraced the most extreme form of the states’ rights theory. Quoting William Blackstone’s Commentaries, the Address asserted that states enjoyed “‘irresistible, absolute, uncontrolled authority’” and “absolute control ‘over the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity’” of the community. A state could not “suffer any other restraint upon her sovereign will and pleasure, than those high moral obligations, under which all Princes and States are bound before God and man, to perform their solemn pleasure.”28
The Reach of Sovereignty
As this language of “plenary” authority suggests, the States’ Rights and Republican parties differed not only over the location of sovereignty but also over its nature and limits. states’ rights leaders tended to rely on Blackstone, who had argued that every government contains a “despotic power”—an irreducible kernel of authority that entitles it to make law.29 This right to obedience was boundless. It was “supreme, irresistible, absolute, [and] uncontrolled”30 and could do “every thing that is not naturally impossible.”31 Blackstone rejected the arguments of “Mr. Locke, and other theoretical writers,” who held that government had only the powers people gave it, and therefore that there were some things the king or Parliament had no right to do. Government, Blackstone wrote, does not hold delegated or limited authority—it has a basic right to do as it pleases with people and to give them rights or withdraw those rights whenever it sees fit. This meant that “the power of parliament is absolute and without control.”32 And if each state now wielded that same power, as states’ rights partisans held, they too now enjoyed unlimited and irresistible authority.
Blackstone’s arguments disturbed some of the Founders; Thomas Jefferson and James Wilson both explicitly rejected his writings because of his belief in absolute sovereignty, and when Virginia judge St. George Tucker published an edition of Blackstone’s Commentaries in 1803, he added almost a thousand pages of footnotes and clarifications, refuting or qualifying the Englishman’s views of government power.33 The “essential difference between the British government and the American constitutions,” wrote Tucker, is that while “parliament is unlimited in it’s [sic] power, or, in their own language, is omnipotent,” American legislatures are “altogether different.”34 More important, Blackstone’s not
ion of sovereignty was irreconcilable with the principles of the Declaration of Independence. If government can possess only those powers delegated to it by the people, and people can have no fundamental right to rule over others, then government cannot rightly claim absolute power, let alone a basic right to rule. Citing the Declaration, Tucker declared that Blackstonian “supreme, irresistible, absolute, uncontrolled authority . . . doth not reside in the legislature, nor in any other of the branches of Government, nor in the whole of them united.”35
Nevertheless, Blackstone’s books became the basic text of American law students at the beginning of the 19th century,36 and by the time of the Nullification Crisis, his doctrine of absolute sovereignty was growing increasingly popular. In 1840, Virginia politician Abel Upshur, who later served in President John Tyler’s cabinet, published a book arguing that states possess “absolute, unqualified, unconditional, and unlimited sovereignty.”37 A few years later, St. George Tucker’s son, Henry, delivered a series of lectures at the University of Virginia endorsing absolute state sovereignty,38 and Henry’s brother, Beverley, published a book arguing that states, and only states, possessed “this right to command, to be obeyed, and to protect; the right to hold the individual responsible to the community and to interpose the collective responsibility of the community between him and any foreign complainant—this it is which constitutes sovereignty.”39
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