Wednesday, March 2, 2016

The Big Black Hole in the Middle of the Constitution

The Constitution is widely celebrated for its uses of compromise. The interests of large states and small states were compromised by having a Senate with equal State representation, and a House with representation proportional to population. The friction between slave and free states was resolved with the (infamous to many) compromise that slaves were counted as three fifths of a person for representation purposes. Concern over one branch of government becoming ascendant was addressed by a system of checks and balances. Election of the President was entrusted to the Electoral College (a term not found in the Constitution), whereby the States selected the President, but by a channel outside of Congress. Concern over the powers of a central government were addressed by a Bill of Rights curtailing the Federal Government. But there's respect that has largely gone unnoticed where the Constitution completely failed, and it's rearing its head now. No, it's not the infamous three-fifths compromise that counted slaves as 3/5 of a person, nor the failure to phase out slavery. Basically, the Constitution completely lacked any way for the Federal government to protect citizens from rights abuses by the States. Reactionaries were given free rein over State and local affairs, and until recently, they still had it. And they want it back.

The Articles of Confederation versus the Constitution

The Articles of Confederation contain a surprising amount of material that was incorporated into the Constitution. But there's also a huge amount of detailed specification of what the government could and couldn't do that was replaced by broad, generic language in the Constitution. In particular, the Articles stated: 
Article II.  Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Whereas the Constitution states:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Article I, Sec. 8) 
The new Constitution wasn't an immediate hit. A lot of people still didn't want a strong central government. They didn't like the direct taxation powers of the Federal Government, or the creation of a Federal judiciary, or the creation of standing armed forces however tiny. And they didn't like omitting that word "expressly" or that power to provide for the "general welfare." And a lot of people still don't. The supporters of the Constitution came to be called Federalists, and their opponents, predictably enough, as anti-Federalists. 

An interesting crossover occurred during the ratification of the Bill or Rights. Many Federalists, proponents of the Constitution, supported the Bill of Rights, either on its own merits or because they saw that a Bill of Rights would aid in ratifying the Constitution. And many anti-Federalists, opponents of the Constitution who had demanded a Bill of Rights in the first place, began to oppose it, hoping to block the ratification of the Constitution itself. It's a classic case of "be careful what you wish for; you might get it."

To the extent that we try to shoehorn 1787 factions into today's terminology, we'd probably label the Federalists "liberals" in the sense that they favored a more powerful central government, and Anti-Federalists "conservatives." But the Anti-Federalists ended up giving birth to a remarkably liberal document, the Bill of Rights.

The Compleat Constitution?

So the Constitution gives the Federal Government the power to collect taxes, pass necessary laws, and defend itself, including suppressing insurrections. It prevents the States from doing anything to endanger the United States as a whole, like raising their own armies or entering treaties with other countries. It prevents States from harming each other by making war on each other or interfering with interstate commerce. What's missing? There is no provision for protecting the rights of people within the states.

That really wasn't big on anyone's radar in 1787. Memories were still fresh of the British Government suspending colonial charters, most of which had Bill of Rights protections like free speech and religious tolerance. It was felt that the gravest danger was the Federal government violating personal rights, or interfering with the power of States to protect personal rights. Anything States might do to endanger civil liberties could be handled at the State level by voting the violators out. In theory.

However, despite the sage words of the Founding Fathers about "tyranny of the majority," there was no corrective available to deal with tyranny of local majorities. A minority group oppressed at the local level would have no effective means of fighting back, because they would not be able to muster a majority capable of removing their oppressors from office. Indeed, it would be entirely possible for local majorities to suppress minority movements, as indeed happened in the South with respect to anti-slavery advocates.

It All Started With Urban Runoff

In the 1820's, John Barron and John Craig owned a prosperous wharf in Baltimore. The city embarked on a series of street and drainage improvements, which funneled water and sediment to the area of the wharf, eventually silting it up and destroying most of its value. Barron sued for damages, won, but saw the judgement overturned on appeal. Eventually the case made its way to the Supreme Court, on the grounds that Baltimore had violated Barron's rights under the Fifth Amendment by taking his property without just compensation.

Barron lost. The Court ruled that the Bill of Rights had been conceived as a restraint on the Federal Government only, and did not apply to the States. 

The logic of the ruling noted that Article 1, Section 9 of the Constitution contains a list of things forbidden to the Federal Government, and Article 10 contains a much shorter list of things forbidden to the States. Despite prohibitions in blunt and absolute terms in Section 9, there are identical prohibitions directed at the States in Section 10. Both sections forbid ex post facto bills and bills of attainder, leading the Court to conclude that the Constitution only prohibited the States from doing something, if it said so explicitly.  It's worth noting that Chief Justice John Marshall had been involved in the Virginia ratification of the Constitution and knew many of the drafters of the Constitution, as well as many of its opponents. So it's fair to say that Marshall's understanding of the original intent of the Constitution transcends mere speculation.

But if the Fifth Amendment modifies the Constitution, why doesn't it apply everywhere, despite the original intent? After all, the amendment changes the Constitution. That might be a cogent argument, except that the Bill of Rights was ratified immediately after the Constitution and is almost an integral part of it. And it's very unlikely Congress and the States would ratify the Constitution as a limitation on the Federal Government and then immediately change its intended jurisdiction to cover the States, too. (Although you could argue that, rather than change the text of the Constitution itself, they would simply use the Bill of Rights to make corrections.)

The Barron v. Baltimore ruling, of course, nowhere says "The Bill of Rights doesn't apply to the States" because the Supreme Court doesn't roll that way. The Court rules only on matters immediately before it, so it only says the Fifth Amendment applies only to the Federal Government. But anyone who tried to press a different Bill of Rights case at the state level, say one involving self-incrimination, or public support of religion, would immediately be hit with the counter-argument that if the Fifth Amendment doesn't apply at the State level, the plaintiff's case shouldn't either.

So if the Bill of Rights only applies at the State level, what prevented the States from devolving into petty dictatorships with political censorship, religious persecution, and arbitrary arrest and imprisonment? Ignoring, for the moment, instances of those very things happening, the Revolution was fought over British interference with colonial charters, most of which included safeguards of property rights, trial by jury, legislation by parliament or assembly, and varying degrees of religious tolerance. The colonists were afraid of losing rights that were generally accepted in England, and many of the anti-Federalist opponents of the Constitution were concerned that a strong central government might abrogate those rights as well. The Bill of Rights was specifically intended to protect rights already taken for granted within the States. Searches were a particular hot button issue, since one of the principal grievances of the colonists had been broad "writs of assistance," which allowed law enforcement to search premises with little probable cause or limits on what could be seized.

There are a lot of things state and local government do right, because they work, and because the citizens want them. There's no law requiring the states to have state parks or universities, but every state does. Cities are not required to have libraries, but thanks in large part to the pioneering effort by Andrew Carnegie in the 19th century, most do. And many State constitutions contain safeguards that reiterate the Bill of Rights.

The Dark Compromise

It's remarkable that there were very few Bill of Rights rulings by the Supreme Court before the 20th Century, but that was because of the legacy of Barron v. Baltimore. Defenders of local control of social legislation took the initiative to erect further barriers against Federal action. For example, the Posse Comitatus Act of 1878 prohibited the Army from intervening in domestic affairs, and the act was specifically passed to prevent the Army from ever being used to enforce Federal laws as had happened under Reconstruction. Effectively, the sole purpose of the law was to protect white lynch mobs from military intervention. The "Southern Bloc" in Congress was able to stop any attempt to impose Federal policies at the State level, such as passing anti-lynching laws.

Basically, the Constitution created a brilliant and enlightened Federal system in return for allowing the anti-Federalists free rein at the State and local level. And for 150 years, they did. It was perfectly possible to be a progressive in national and international affairs and a reactionary in local matters. One example was William Jennings Bryan, who ran three times as a progressive Democrat but also prosecuted the Scopes Trial. Another was Woodrow Wilson, who championed a League of Nations and a lenient approach toward the defeated Central Powers after World War I, but was also an avowed racist.

The Incorporation Doctrine

The Fourteenth Amendment created one crack in the barrier between the Federal and local governments. Section 1 reads:

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.
Beginning with Gitlow v. New York, in 1925, the Supreme Court began to rule that protections under the Bill of Rights were among the liberties that States were forbidden to abridge without due process. The reasoning is, admittedly, a tad circular. If the Bill of Rights applies only at the Federal level (as Barron v. Baltimore held a century earlier), then nothing in the Fourteenth Amendment changes that. Nevertheless, the Court has extended the Bill of Rights piecemeal as cases arose (because that's how the court works) and even to this day, parts of the Bill of Rights have not been fully incorporated. For the most part, the process was pretty non-controversial since many of the protections of the Bill of Rights were already in place at the State and local level anyway.

It's important to understand the process that began with a dock in Baltimore and ended in the 20th century. For most of that time, it was perfectly permissible for States to support religion. Madison's original conception of freedom of religion read:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. 
Clearly, Madison's conception of separation of church and state consisted of not creating a national church, and protecting people from religious persecution. States could and did support churches. Massachusetts funded the Congregational Church until 1833, and New Hampshire required legislators to be Protestant until 1877 (though it's unclear if it was actually enforced). One of the very few Bill of Rights cases in the 19th century was a Mormon challenge to Federal anti-polygamy legislation. The Supreme Court ruled that while opinion was inviolable, the government could police actions it regarded as harmful, and upheld the ban.

Censorship was also permissible. States could, and did, censor publications considered indecent or seditious, and banned such things as pamphlets on birth control, union and anti-war literature, and so on. "Banned in Boston" once meant exactly that.

The three things about the Incorporation Doctrine that are critical to note are:

  1. Until the 20th century, the Bill of Rights did not apply in the States.
  2. Nothing in the Constitution explicitly says "the Bill of Rights applies to the States, too."
  3. The Incorporation Doctrine was created by the courts. The courts could conceivably reverse it.
It is absolutely amazing and appalling how many people who claim to know the Constitution never heard of Barron v. Baltimore or the Incorporation Doctrine. They think that things regarded as unconstitutional today were always unconstitutional. The weren't.

The Empire Strikes Back

As long as the Federal and local governments operated in separate spheres, friction between the two was minimal. But in the 20th century, Federal actions increasingly impinged on local affairs. Franklin Roosevelt's New Deal created programs and regulations that affected local affairs. The hold of the Southern Bloc began to slip. Harry Truman desegregated the Armed Forces in 1948 and sacked the Secretary of the Army for continuing to obstruct the order. Brown v. Board of Education in 1954 marked a new escalation of Federal control over local affairs. And led to a lot of cars bearing "Impeach Earl Warren" bumper stickers.

Meanwhile, the anti-Federalists at the local level began to feel more and more threatened. Their vision of society was white and male dominated, and while people could be free to believe and worship how they pleased, society would be governed by Christian assumptions and values. Local society would have broad authority to ban things it considered objectionable, though the "right" people would know perfectly well where to go to get prostitutes, pornography, abortions and (during Prohibition) alcohol. Lower-class crime would be harshly punished. Problems not resolvable under law could be handled more.... informally, and extrajudicial violence would be treated leniently. Rewards in the society should go to the "worthy," and voting rights would be restricted to the "responsible" elements of society. In the 1920's and 1930's, the second incarnation of the Ku Klux Klan gained wide power, based on an insecure middle class afraid of Jews, labor unions and Socialists as much as blacks. The New Deal aroused indignation from business classes resentful at the growth of taxes and social programs for the "unworthy." The chipping away at white supremacy angered many, though as long as open discrimination was legal, the danger could be contained.

Then on June 25, 1962, the Federal government pressed the red button and launched the arsenal. That was the day that the Supreme Court outlawed state-sanctioned prayer in the schools. It was the Fort Sumter, the Pearl Harbor, the 9/11 (to be a bit anachronistic) of the Culture Wars. It didn't merely ban the brief utterance of a formulaic prayer at the start of the school day, it was a national-level repudiation of the idea that society was explicitly Christian, and that localities could define the values they would impose on their citizens. 

In short order came a raft of rulings expanding the rights of criminal suspects, and the passage of civil rights laws. Barry Goldwater's opposition to civil rights legislation had two effects. He lost the 1964 election in one of the worst defeats in history, but Southerners switched their allegiance en masse to the Republican Party. In 1973 came Roe v. Wade, that struck down state bans on abortion, but that ruling amounted to little more than "making the rubble bounce" because the edifice of local control of social affairs was pretty much in ruins anyway.

After years of frustration at their inability to repeal Roe v. Wade or other liberal legislation, plus their outrage over the election of liberal President Barack Obama, conservatives created the "Tea Party" movement, which invoked the image of the Boston Tea Party at the start of the American Revolution. Asserting that compromise had only led to retreat, conservatives in Congress adopted a progressively more intransigent stance. In 2016, their anger had risen to the point where they made Donald Trump a serious contender for the Republican nomination. As the campaign looked increasingly like it would pit Trump against Hillary Clinton, the election looked like it would pair up two opponents more mutually antagonistic to the other side than any election since the election of 1860 where Lincoln was elected.

What the Tea Party and Donald Trump have done is launch a full-scale anti-Federalist counter-revolution. Many of their backers reject the idea that the Federal government has any power at the State or local level. They call for the repeal of Constitutional amendments that have increased the power of the Federal government, like the 14th, 16th and 17th. What they ultimately want is to recreate the vanished world from before the Incorporation Doctrine. To paraphrase Michael Moore's documentary, "Dude, Where's My Country?" the Tea Party's answer is "Dude, the people you took it from are taking it back."