The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover

by Timothy Sandefur

  92. See also Spooner, p. 101 (arguing that slaves were citizens).

  93. See also Charles Sumner, Freedom National, Slavery Sectional (Boston: Ticknor, Reed and Fields, 1852), pp. 52–53.

  94. Douglass, “The Dred Scott Decision,” p. 357. Although Douglass began his abolitionist career under Garrison’s tutelage, they split over the latter’s belief that the Constitution was a pro-slavery document and therefore corrupt. See Henry Mayer, All on Fire: William Lloyd Garrison and the Abolition of Slavery (New York: Norton, 1998), p. 428; and William McFeely, Frederick Douglass (New York: Norton, 1991), pp. 168–69. Most writers who have addressed this schism have regarded Douglass’s arguments as weak or even disingenuous—unfairly, in my view. See, for example, Mayer, p. 429 (describing Douglass’s embrace of antislavery constitutionalism as “pragmatic” and “chimerical”). So far as I know, only three books—Peter C. Myers, Frederick Douglass: Race and the Rebirth of American Liberalism (Lawrence: University of Kansas Press, 2008), pp. 83–109; James A. Colaiaco, Frederick Douglass and the Fourth of July (New York: Palgrave MacMillan, 2006), pp. 163–87; and Nicholas Buccola, The Political Thought of Frederick Douglass (New York: NYU Press, 2012)—have even attempted a fair and thorough discussion of Douglass’ constitutional views.

  95. Joel Tiffany, A Treatise on Government, and Constitutional Law, Being an Inquiry into the Source and Limitation of Governmental Authority, According to the American Theory (Albany: Weare C. Little, 1867), pp. 50–51.

  96. Ibid., p. 26.

  97. Ibid., p. 372.

  98. Tiffany, A Treatise on the Unconstitutionality of American Slavery, pp. 88–89.

  99. Spooner, The Unconstitutionality of Slavery, p. 90.

  100. Ibid., p. 92.

  101. Ibid., p. 57.

  102. John C. Calhoun, A Discourse on the Constitution and Government of the United States, in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed. (Indianapolis: Liberty Fund, 1992), p. 116.

  103. Speech on the Force Bill, Lence, p. 443.

  104. A Constitutional View of the Late War Between the States (Philadelphia: National Publishing Co., 1868), vol. 1, pp. 18–37.

  105. Jefferson Davis, The Rise and Fall of the Confederate Government (New York: Appleton and Co., 1912), vol. 1, p. 120.

  106. Tiffany, A Treatise on Government, p. 372.

  107. 10 Op. Atty. Gen. 382, 383 (1862).

  108. G. Edward White, Law in American History Vol. 1: From The Colonial Years Through The Civil War (New York: Oxford University Press, 2012), pp. 376–78.

  109. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1857).

  110. Ibid. at 404–05.

  111. Ibid. at 406.

  112. Ibid. at 407.

  113. Abraham Lincoln, Address at Cooper Institute, February 27, 1860, in Don Fehrenbacher, ed., Lincoln: Speeches and Writings 1859–1865 (New York: Library of America, 1989), pp. 111–30.

  114. Dred Scott, 60 U.S. (19 How.) at 420.

  115. Ibid. at 572–73 (Curtis, J., dissenting).

  116. Ibid. at 582 (Curtis, J., dissenting).

  117. Ibid. at 580.

  118. Opinion of the Justices, 44 Me. 505 (1857).

  119. 20 N.Y. 562 (N.Y. 1860).

  120. Congressional Globe, 35th Cong., 2nd sess., p. 983 (1859).

  121. Ibid., p. 984.

  122. Ibid., p. 985.

  123. Ibid., p. 984. Professor David R. Upham has noted that Curtis may have been alluding to an unreported decision by Ohio Supreme Court Justice Nathan Reed, described in William H. Williams, “The Arrest of Non-Residents for Debt: Constitutionality of the Law,” Western Law Journal 11 (1845): 266. See David R. Upham, “The Meanings of the ‘Privileges and Immunities of Citizens’ on the Eve of the Civil War,” (Rough Draft, March 6, 2013), http://ssrn.com/abstract=2107460.

  124. Jacobus tenBroek, Equal Under Law, rev. ed. (London: Collier MacMillan, 1969), p. 123.

  125. Lincoln may have believed that signing was necessary. Mike Rappaport, “More on Why Lincoln Signed the 13th Amendment,” Liberty Law Blog, December 20, 2012, http://libertylawsite.org/2012/12/20/more-on-why-lincoln-signed-the-13th-amendment/.

  126. Charles Sumner, “Equality Before the Law Protected by National Statute, Speeches in the Senate on his Supplementary Civil Rights Bill, as an Amendment to the Amnesty Bill” (January 15, 17, and 31; February 5; and May 21, 1872), in Works, vol. 14, pp. 355, 407.

  127. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986), remains the leading history.

  128. Robert J. Reinstein, “Completing the Constitution: The Declaration of Independence, Bill of Rights, and Fourteenth Amendment,” Temple Law Review 66 (1993): 361–418.

  129. Charles Sumner, “Our Domestic Relations: Power of Congress over the Rebel States” (1863), in Works, vol. 7, p. 507.

  130. Ibid., p. 508.

  131. Ibid., p. 513.

  132. Ibid., p. 514.

  133. Rebecca E. Zietlow, “Congressional Enforcement of Civil Rights and John Bingham’s Theory of Citizenship,” Akron Law Review 36 (2003): 717–760.

  134. Congressional Globe, 35th Cong., 2nd sess., pp. 984–85 (1859) (statement of Rep. John Bingham).

  135. Ibid., p. 985.

  136. Sumner, “Equality Before the Law,” in Works, vol. 14, p. 401.

  137. Ibid., p. 407.

  138. Corfield v. Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823).

  139. Ibid.

  140. Congressional Globe 39th Cong., 1st sess., p. 2765 (1866) (quoting Coryell).

  141. Congressional Globe, 42d Cong., 2nd sess., p. 844 (1872).

  142. Congressional Globe, 39th Cong., 1st sess., p. 2542 (1866) (statement of Rep. John Bingham).

  143. Ibid.

  144. Ibid.

  145. “Doughface” was a 19th-century slang term for “northern men of southern principles”—that is, Yankee defenders of slavery and states’ rights.

  146. Jeremiah S. Black, Observations on Senator Douglas’s Views of Popular Sovereignty as Expressed in Harper’s Magazine for September, 1859, 2nd ed. (1859), p. 18.

  147. Jeremiah S. Black, “Open Letter to General Garfield,” in Chauncey F. Black, ed., Essays and Speeches of Jeremiah S. Black (New York: Appleton and Co., 1886), pp. 300–01.

  148. Ibid., p. 301.

  149. See Ibid., p. 299.

  150. Jeremiah S. Black, “The Character of Mr. Seward: Reply to C. F. Adams, Sr.,” in ibid., p. 147.

  151. Waldron, p. 55.

  152. Mary Black Clayton, Reminiscences of Jeremiah Sullivan Black (St. Louis: Christian Publishing Co., 1887), p. 128.

  153. 74 U.S. (7 Wall.) 506 (1868) (challenging the use of military tribunals to try a newspaper publisher for printing “incendiary” articles against Reconstruction); see also William Norwood Brigance, Jeremiah Sullivan Black: A Defender of the Constitution and the Ten Commandments (Philadelphia: University of Pennsylvania Press, 1934), pp. 171–79.

  154. 71 U.S. (4 Wall.) 2 (1866) (challenging the use of a military tribunal to try a civilian Confederate sympathizer who planned to raid a Union POW camp); see also Brigance, pp. 145–57.

  155. 80 U.S. (13 Wall.) 581 (1871) (opposing the constitutionality of the criminal law sections of the 1866 Civil Rights Act); see also Brigance, pp. 198–200.

  156. Brigance, pp. 180–96.

  157. Ibid., pp. 200–01.

  158. Ibid., p. 201.

  159. See Timothy Sandefur, The Right to Earn A Living (Washington: Cato Institute, 2010), pp. 17–44.

  160. 83 U.S. (16 Wall.) 36, 77 (1873).

  161. See Ibid. at 78.

  162. Ibid. at 78.

  163. An intriguing parallel to what happened in Slaughter-House can be found in the California Supreme Court decision People v. Brady, 40 Cal. 198 (1870). In an earlier case, Billings v. Hall, 7 Cal. 1 (1857), the California Supreme Court had rejected the notion of absolute state sovereignty such as
articulated in the Sharpless decision, concluding that “the spirit of free institutions is at war” with the notion of unlimited state sovereignty (ibid. at 13) because “this [would be] to put themselves in a worse condition than a state of nature, wherein they had the liberty to defend their rights against the injuries of others. . . . [B]y supposing that they have given up themselves to the absolute, arbitrary power of the legislator, they have disarmed themselves, and armed him to make a prey of them when he pleases.” Ibid. at 11–12. But in 1870, shortly before Slaughter-House was decided, the court reversed itself. Echoing Sharpless, the court held that after declaring independence, “legislative power was . . . as complete in each American as in the British Parliament,” 40 Cal. at 219. “The Federal Government was created by the compact of sovereign States, and their continued existence in the uncontrolled exercise of their powers, is an essential element of the system,” the court continued. States enjoyed “[t]he absolute right of uncontrolled local legislation upon all subjects most intimately connected with individual rights and most essential to the maintenance of personal liberty. . . .” Ibid. at 220. And, as Slaughter-House would do three years later, the Brady court concluded that the Fourteenth Amendment was not “intended to strike from the Constitution the fundamental idea upon which the Union was constructed—to rob the Government of its crowning glory and most beneficent principle.” If the amendment had meant to provide federal protections against the power of state governments, “we should regard it as we would a law apparently legalizing murder or robbery.” Ibid. Another parallel between Slaughter-House and Brady is the effect each had on racial minorities. While Slaughter-House signaled a retreat from Reconstruction efforts to protect former slaves, Brady rejected a constitutional challenge to a state law that prohibited Chinese immigrants or Chinese Americans from testifying against whites in court. Being denied the chance to testify against whites meant that the Chinese had virtually no protection against violence from white mobs. See Jean Pfaelzer, Driven Out: The Forgotten War Against Chinese Americans (Berkeley: University of California Press, 2007), p. 52.

  164. Slaughter-House, 83 U.S. (16 Wall.) at 76.

  165. Ibid.

  166. Ibid. at 77.

  167. Ibid. at 78.

  168. William L. Royall, “The Fourteenth Amendment: the Slaughter-House Cases,” Southern Law Review (New Series) 4 (1879): 579–80.

  169. Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129, 140-41 (1873) (Field, J., concurring).

  170. 92 U.S. (2 Otto) 542 (1875).

  171. See Charles Lane, The Day Freedom Died (New York: Holt, 2008).

  172. Cruikshank, 92 U.S. (2 Otto) at 552.

  173. Ibid. at 553.

  174. Ibid. at 553–55.

  175. Ibid. at 552.

  176. Senator Howard, for example, specifically identified “the right of the people peaceably to assemble and petition the Government for a redress of grievances” and “the right to keep and to bear arms” as rights protected under the Privileges or Immunities Clause. Congressional Globe, 39th Cong., 1st sess., p. 2765 (1866).

  177. Clayton, p. 125. In their book, The Slaughterhouse Cases, Ronald Labbé and Jonathan Lurie argue that the butchers’ attorney, John Campbell, exploited the case to advance an “agenda” attacking Reconstruction. In their view, Campbell—a former United States Supreme Court Justice who resigned his seat in 1861 to join the Confederate government—used the case to publicize the alleged corruption of the Louisiana legislature, and thereby attack integration. See Ronald Labbé and Jonathan Lurie, The Slaughterhouse Cases (Lawrence: University of Kansas Press, 2003), p. 192. This may indeed be part of the story. Compare Michael A. Ross, “Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign against Louisiana’s Republican Government, 1868–1873,” Civil War History 49, no. 3 (2003): 235–53, with Robert Saunders Jr., John Archibald Campbell: Southern Moderate, 1811–1889 (Tuscaloosa: University of Alabama Press, 1997). But we must not overlook Black’s efforts on the other side. Portraying the legislature of Louisiana as corrupt doubtless served the interests of Reconstruction’s opponents, but neutering the most crucial part of the Fourteenth Amendment, as the state’s attorneys managed to do, served that purpose even more. Whatever Campbell’s motives in prosecuting the case against the Louisiana legislature, his interpretation of the amendment was at least consistent with that of its Framers. And Labbé and Lurie’s interpretation may be unjust to Campbell. One of his biographers wrote that he “took a larger view of their purpose [i.e., the authors of the Fourteenth Amendment] and caught a larger vision of the scope of its accomplishment. To his mind every person then within the jurisdiction of the United States and every child born, or person naturalized, was lifted, as it were, into the status of National citizenship, with the power of the National Government pledged to the protection of his rights, privileges, and immunities, and every State prohibited from making or enforcing any law abridging such rights and privileges. The singular spectacle is presented of the States Rights, Southern Democratic lawyer urging the broadest, largest National view and the Northern-Nationalist Republican Judge enforcing a much narrower application of the language, in ascertaining the intention of those who framed the amendment.” Henry G. Connor, John Archibald Campbell (Boston: Houghton Mifflin, 1920), pp. 222–23.

  178. Wilson R. Huhn, “The Legacy of Slaughter-House, Bradwell, and Cruikshank in Constitutional Interpretation,” Akron Law Review 42 (2009): 1079; Douglas Blackmon, Slavery by Another Name (New York: Anchor, 2008), p. 172.

  179. The exception was Colgate v. Harvey, 296 U.S. 404 (1935), but that was overruled in Madden v. Kentucky, 309 U.S. 83 (1940).

  180. Saenz v. Roe, 526 U.S. 489, 503-04 (1999).

  181. District of Columbia v. Heller, 554 U.S. 570 (2008).

  182. McDonald v. City of Chicago, 130 S. Ct. 3020, 3030-31 (2010).

  183. Transcript of Oral Argument, McDonald v. Chicago, No. 08-1521, p. 7.

  184. McDonald, 130 S. Ct. at 3089 (Stevens, J., dissenting).

  185. Ibid. (quoting J. Harvey Wilkinson, “The Fourteenth Amendment Privileges or Immunities Clause,” Harvard Journal of Law & Public Policy 12 (1989): 52).

  186. Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (1994): 1231–54.

  187. Trisha Olson, “The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment,” Arkansas Law Review 48 (1995): 438.

  188. Federalist No. 51 (James Madison), in Cooke, p. 349.

  189. Congressional Globe, 39th Cong., 1st sess., p. 2542 (1866) (statement of Rep. John Bingham).

  Chapter 3

  1. G. Edward White, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2000), pp. 241–68.

  2. 87 U.S. (20 Wall.) 655 (1874).

  3. 539 U.S. 558 (2003).

  4. Magna Carta, ¶ 39.

  5. For Coke, law was “a rational ordinance or directive judgment, commanding obedience to itself primarily because what it directs the citizens to do is reasonable and in that sense just,” as opposed to “an act of will that derives its binding force from the threat of sanction.” John Underwood Lewis, “Sir Edward Coke (1552–1634): His Theory of ‘Artificial Reason’ as a Context for Modern Basic Legal Theory,” in Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke, Allen D. Boyer, ed. (Indianapolis: Liberty Fund, 2004), p. 110.

  6. Prohibitions del Roy, 77 Eng. Rep. 1342, 1343, 12 Co. Rep. 63, 65 (K.B. 1607) (quoting Bracton).

  7. Francis Bacon, “Aphorism 1,” in The Philosophical Works of Francis Bacon, John M. Robertson, ed. (London: George Routledge & Sons, 1905), p. 613.

  8. Plato, Euthyphro 10a-11b, in The Collected Dialogues of Plato, Edith Hamilton and Huntington Cairns, eds. (Princeton: Princeton University Press, 1973), pp. 178–79.

  9. Federalist No. 51 (James Madison), in The Federalist, Jacob E. Cooke, ed. (Middle-town, CT: Wesleyan University Press, 1961), p. 349.

  10.
Shirley Jackson, “The Lottery,” (1948), in The Lottery and Other Stories (New York: Farrar, Strauss, & Giroux, 2005), pp. 219–302.

  11. Jerome Bixby, “It’s a Good Life” (1953), in The Twilight Zone: The Original Stories, Martin Harry Greenberg, et al., eds. (New York: Avon Books, 1985), pp. 125–45.

  12. Although Jackson hints that the ritual has roots in some ancient harvest ceremony, we soon learn that, whatever its origin, the practice continues simply because it is old: “‘There’s always been a lottery,’ he added petulantly.” Jackson, p. 232.

  13. Ibid., p. 235.

  14. Lon L. Fuller, “Reason and Fiat in Case Law,” Harvard Law Review 59 (1946): 388.

  15. C. D. C. Reeve trans., Aristotle: Politics 1279a-b (Indianapolis: Hackett Publishing Company, 1998), pp. 77–78.

  16. Of course, Aristotle did believe in natural slavery, though not on racial grounds, but he did not see slavery as a kind of political rule. See Jonathan Lear, Aristotle: The Desire to Understand (Cambridge: Cambridge University Press, 2007), pp. 197–200.

  17. See Harry V. Jaffa, “Aristotle,” in History of Political Philosophy, Leo Strauss and Joseph Cropsey, eds. (Chicago: Rand McNally, 1963), pp. 64–68, 74.

  18. On the role of presumptions, see Richard Epstein, Bargaining with the State (Princeton: Princeton University Press, 1993), pp. 25–38.

  19. John Locke, Second Treatise of Civil Government, § 137, in John Locke: Two Treatises of Government, rev. ed., Peter Laslett, ed. (New York: Cambridge University Press, 1963), p. 405.

  20. Ibid. § 57, p. 348.

  21. Freidoune Sahebham, The Stoning of Soraya M. (New York: Arcade Publishing, 2011), p. 53.

  22. Ibid., p. 39.

  23. Ibid., p. 51.

  24. Ibid., p. 52.

  25. Ibid., p. 86.

  26. Ibid., p. 57.

  27. Ibid., p. 59.

  28. Ibid., p. 79.

  29. Ibid., p. 91.

  30. Antigone pours only a handful of dirt on the corpse of her brother, Polynices, in defiance of Creon’s command. Robert Fagles, ed., Sophocles: Three Theban Plays (New York: Penguin, 1984), p. 71. Zahra buries only a few of Soraya’s bones. Sahebham, p. 138. I discuss Antigone in depth in “Love and Solipsism: Law and Arbitrary Rule in Aeschylus, Shakespeare, Sophocles, and Anouilh,” Alabama Law Review 64 (2013): 981-1011.