November 18, 2009

McDonald v. Chicago: revolution or restoration? (Part 2)

By McDonald v. Chicago: revolution or restoration? (Part 2)

Author: Timothy Sandefur

(Part 2 of our discussion of McDonald v. Chicago: here's part 1)

At the end of the Civil War, the leaders of the victorious Union were generally members of the Republican Party—the party that had come together prior to the war to oppose the expansion of slavery. Through a tragically ironic twist of fate, the assassination of President Lincoln had left the presidency in the hands of more or less the only southern Democrat left in the federal government, Andrew Johnson. Johnson opposed the Republican plans for Reconstruction which would have provided strong federal protection for the rights of former slaves and others in the south. Indeed, Johnson vetoed the Civil Rights Act of 1866 and the Reconstruction Act of 1867. Those vetoes were overridden by the Republicans, who proceeded to enact the Fourteenth Amendment to ensure strong federal protection for constitutional rights against state autonomy. (Indeed, the conflict set the stage for a constitutional crisis that climaxed in Johnson’s impeachment. Among Johnson’s legal defense team in the impeachment? You guessed it, Jeremiah Sullivan Black!)

Republican leaders drafted the Fourteenth Amendment to constitutionalize their belief in a theory that some people have called “paramount national citizenship.” This theory had two essential components.

First, the theory of paramount national citizenship held that the American union took precedence over the power of states. While states’ rights theorists like Jeremiah Black believed that states were vested with ultimate sovereignty to do virtually whatever they wanted—all the power of a Russian autocrat, as Black put it—the Republicans believed on the contrary that state sovereignty was strictly limited by federal law. And by “federal law,” they meant, among other things, the Declaration of Independence.

The seminal thinker who inspired the legal theories that culminated in the Fourteenth Amendment was former president John Quincy Adams. Adams was easily the greatest former president in American history. He was elected to the House of Representatives, where he served for the rest of his life as one of the very few vocal opponents of slavery. And among other things, he articulated an understanding of American nationhood that inspired his young proteges—men like Charles Sumner, William Seward, and, to a lesser extent, Abraham Lincoln.

In his 1839 monograph, The Jubilee of the Constitution, Adams explained that the Declaration of Independence did not render the states independent sovereigns, but instead created an American nation on the basis of certain principles, including the natural, inalienable rights of all people:

Independence was declared. The colonies were transformed into States. Their inhabitants were proclaimed to be one people, renouncing all allegiance to the British crown; all co-patriotism with the British nation; all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration.

Adams rejected the concept of absolute state sovereignty that Black articulated in the Sharpless case twenty years later. According to Adams, “sovereignty, thus defined, is in direct contradiction to the Declaration of Independence, and incompatible with the nature of our institutions.” States could have no legitimate power to deprive Americans—including black Americans—of their inalienable rights, because states were subject to the legal effect of the Declaration of Independence.

This was the second component of paramount national citizenship: if Americans were Americans first, and citizens of states only second, then the natural and common law rights that they enjoyed as citizens of the nation could not be taken away by states. Another influential antislavery legal scholar, Joel Tiffany, explained in his 1867 Treatise on Government that “sovereignty, as an attribute of the people of the United States as a nation, excludes the like sovereignty of the people of a single State, as State citizens merely. Hence, the authority of a citizen as a constituent of the nation, is superior to his authority as a constituent of a mere State.” States could have no power to infringe the rights to which all Americans were entitled. Indeed, Tiffany argued that the original Privileges and Immunities Clause in Article IV of the Constitution meant that

the constitutional rights of every citizen of the nation are supremely binding upon these state corporations…. The nation, in virtue of its inherent sovereignty, has ordained and established a constitutional government, which in its authority, as the representative of the nation, is supreme over all. Every citizen of a state being also a citizen of the nation, has national rights, and national authority extending over every member of the national family; therefore he has a political right to inhabit whatever state he pleases and to enjoy all privileges and immunities of a citizen therein.

But perhaps no antislavery leader was more eloquent than Senator Charles Sumner. Practically the adopted son of John Quincy Adams, Sumner is a true American hero. On May 22, 1856, Sumner was savagely attacked on the floor of the U.S. Senate by South Carolina representative Preston Brooks, who beat Sumner so brutally with his cane that Sumner fell into a coma. It took him three years to recover and return to the Senate. But when he did, he remained an unbending opponent of slavery and racial discrimination. Twenty years later, in 1875, the aging Sumner spoke in defense of his Civil Rights Bill, encapsulating the theory of paramount national citizenship:

No longer an African, he is an American; no longer a slave, he is a common part of the Republic, owing to it patriotic allegiance in return for the protection of equal laws. By incorporation within the body-politic he becomes a partner in that transcendant unity, so that there can be no injury to him without injury to all. Insult to him is insult to an American citizen. Dishonor to him is dishonor to the Republic itself. Our rights are his rights; our equality is his equality; our privileges and immunities are his great freehold.

It was this concept of state authority and individual rights that Republicans sought to engraft onto the Constitution in the Fourteenth Amendment. Unfortunately, as we will see, the U.S. Supreme Court fatally weakened this attempt—and delayed for a century the vindication of the constitutional rights of black Americans—when it interpreted the Amendment in the Slaughter-House Cases.

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