The Evolution of Substantive Due Process (Part II)

In Skinner v. Oklahoma in 1942 the Court added the fundamental right of procreation to the list of substantive due process rights. In 1952 in Rochin v. California the Court declared a fundamental right “to bodily integrity” to be among our unalienable rights. In 1954, the Court held that the “separate but equal” doctrine was unconstitutional for education (although an argument can be made that the Fourteenth Amendment was designed, in part, to stop segregation) – (Bolling v. Sharpe and Brown v. School Board); in 1967 the Court held that interracial marriage was constitutional (Loving v. Virginia); in 1972 in Eisenstadt v. Baird the Court held the right to “contraception” was fundamental; in 1973 the Court held that abortion should be added to the list of fundamental rights (Roe v. Wade); and most recently the Court held that that gay sex (The Court in Lawrence v. Texas did not say homosexual sex is a fundamental right, but it overruled Bowers v. Hardwick which said homosexual sex was not a fundamental right, so they implied gay sex is a right) and gay marriage (Obergefell v. Hodges) were elevated to fundamental rights. The Court has also held that personal control over medical treatment and physical confinement are fundamental rights.

In the 1961 case Mapp v. Ohio that Court held that the Fourth Amendment’s illegal seizure clause applied to the states (not just federal). However, in what seemed to be an innocent decision, the Court twice used the words “right of privacy” to generalize the rights protected under the Fourth and Fifth Amendments. This would become important when the Court decided Griswold v. Connecticut in 1965. The Court would elevate the “right to privacy” to a fundamental right in Griswold. However, privacy is a very broad and ambiguous right. To hold that all forms of privacy are protected led to the subsequent decisions that would allow abortion, homosexual sex, and gay marriage be elevated as fundamental rights. All private sexual behavior is not free from restrictions in our liberty (incest, prostitution, rape, etc. are subject to state police power).

There have been a few attempts by the Court to control and better define what constitutes a fundamental right. In the 1934 case Snyder v. Massachusetts the Court said rights are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In 1937 the Court called a fundamental right as one that is “implicit in the concept of ordered liberty” in Palko v. Connecticut and in 1977 the Court held a fundamental right as one “deeply rooted in the nation’s tradition and history” in Moore v. East Cleveland. In 1997, in Washington v. Glucksberg the Court would not go as far as allowing “the right to die” which encompassed “assisted suicide” as a fundamental right. In the decision Chief Justice Rehnquist said we must “exercise the utmost care whenever we are asked to break new ground in this field” of fundamental rights. Rehnquist and the majority would hold that “the right to die” and “assisted suicide” is not “consistent with the Nation’s history and constitutional traditions.”

The 2000 case between Troxel v. Granville was interesting. The majority held that parents had the fundamental right to make decisions concerning the care of their children. That is not an overly surprising decision based on how Constitutional Rights are handed out like candy, but what is interesting is Scalia’s dissent. Scalia holds that “a right of parents to direct the upbringing of their children is among the unalienable rights”. But Scalia shows restraint from using the Ninth Amendment to elevate this right. Scalia says about the Ninth Amendment “even farther removed from authorizing judges to identify what they may be (rights)” when discussing what fundamental rights to elevate. Hence, other than restraint, there is nothing really stopping the Court from elevating fundamental rights for political reasons. Scalia, even if he thinks something is a fundamental right, he will not elevate it unless it is clearly written in the Constitution. Sure, the Court has placed some “deep rooted in American history and tradition” considerations for elevating fundamental rights but that did not stop the Court from elevating gay marriage (hardly an American Tradition) to a fundamental right. Some say the Court elevated “marriage” as the fundamental right, but gay marriage did not meet the definition of traditional marriage. Hence, the fundamental right established by the Court was “gay marriage”.

So there you have it, a brief history of fundamental rights incorporated in our constitution via the interpretations of a few judges. I find it odd that the freedom of contract is no longer recognized as a fundamental right, but abortion and even the right to have contraception remain fundamental. The Court practiced some restraint in Glucksberg and a few other cases. In Flores the Court rejected several fundamental rights including “freedom from physical restraint” and “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives.” In Gonzalez v. Raich in 2007 a district court refused to elevate “the right to use marijuana to preserve bodily integrity, avoid pain, and preserve life” as a fundamental right since only 10 states had medical marijuana laws (not enough to say it is deep rooted). Raich can be overruled since many more states are passing medical marijuana laws over the past decade.

The Evolution of Substantive Due Process (Part I)

The Substantive Due Process doctrine is lawyer jargon and in essence it is when the Supreme Court reads “fundamental rights” into its decisions that are not located anywhere in the Constitution. These “fundamental rights” are inferred from either the Ninth Amendment or the “due process” clause of the Fourteenth Amendment. Actually, “fundamental rights” should be guaranteed through the “privileges and immunities” clause of the Fourteenth Amendment but that clause was essentially (and incorrectly) written out of the Constitution in the Slaughter House cases in 1873 (Just five years after the Fourteenth Amendment was added to the Constitution). To understand which rights are “fundamental” or privileges please read my article: “The Best Non-Supreme Court Decision: Corfield v. Coryell”. Coryell coupled with the Civil Rights Act of 1866 best outlines these unalienable or fundamental rights for two reasons: Coryell gives insight into the thoughts of our founding fathers who adopted the Constitution and the Civil Rights Act of 1866 gives insight into the purpose behind the Fourteenth Amendment.

The first Substantive Due Process decision by the Supreme Court was the infamous Dred Scott case in 1857. In this case, the Court held that African Americans have no rights (even free blacks) under the Constitution. Obviously there is no such statement in the Constitution, the Constitution is “color blind” as Justice Harlan said in his dissent of Plessy in 1896. Hence, every future substantive due process decision has the dubious distinction of being a principal or doctrine founded under Dred Scott.

The doctrine disappeared for about a half-century until 1905 in Lochner v. New York where the Court held that our fundamental rights included the “freedom of contract”. The Court struck down a New York statute that tried to mandate a 10 hour work day and 60 hour work week for bakers. The Court held that an employer and employee had the right to agree to any contract for work hours. Of course, “freedom of contract” is nowhere to be found in the Constitution, but it can be found in the Civil Rights Act of 1866. And “freedom of contract” is deep rooted in American history and tradition. The Lochner Era Court would use the “freedom of contract” to strike down economic regulations by state governments for 30 years. The concept of “freedom of contract” would be overturned in 1937 in West Coast Hotel v. Parrish when the Court upheld work hour limitations for women and children. Of course Parrish was discriminatory because it made it almost impossible for women and children to find work since no such limitations were placed on men. However, the Court had a history of being discriminatory against women and quite frequently used “expert” testimony and data prepared by men to show that women were “inferior” (See Bradwell v. Illinois or Mueller v. Oregon).

The Lochner Era Court had two other significant decisions: Meyer v. Nebraska (1923) and Pierce v. Society of the Sisters (1925). In Meyer the Court held “Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” In Meyer the Court struck down a law that prohibited the learning of a foreign language before the age of 10, but in doing so it elevated numerous “fundamental rights” not found in the Constitution. In Pierce the Court held the fundamental right for parents and guardians of children to “direct the upbringing and education of children under their control.” Many of these fundamental rights outlined in Meyer and Pierce are still law today.

Regaining our Liberty and Freedom (Part II)

7. Controlling what are Fundamental Rights by:

a. Adhering to the “Deeply rooted in American history and tradition” and “neither liberty or justice would exist if they were sacrificed” standard. This standard was developed from Palko – Snyder – Moore – Glucksberg line of cases. This would prevent future abortion, gay sex, and gay marriage being elevated to fundamental rights since they are not deeply rooted in American history.

b. Define fundamental rights precisely and accurately. This is also proclaimed in Glucksberg requiring fundamental rights to have “careful description of the asserted fundamental liberty interest”. Glucksberg instructs courts to adapt a “narrow” definition of the fundamental rights. A few years earlier in the Reno v. Flores (1993) decision the Court asserted that “liberty interest must be construed narrowly to avoid unintended consequence.” No more fundamental rights should be defined broadly or ambiguously such as the “right to privacy” in Griswold. Griswold led to a slippery slope and several “unintended consequences”: Roe v. Wade, Obergefell v. Hodges, and Lawrence v. Texas.

c. Limit fundamental rights to those defined in Corfield v. Coryell and the Civil Rights Act of 1866. These documents closely relate to what our Founding Fathers and the authors of the Fourteenth Amendment intended. See my article on the “Best non-Supreme Court decision: Corfield v. Coryell”.

d. Use the “privileges and immunities” clause of the Fourteenth Amendment instead of the “due process” clause to elevate fundamental rights.

e. Avoid expanding fundamental rights at all cost. This is also stressed in Glucksberg: “because guideposts for responsible decision making in this uncharted are scarce and open-ended” and because it “places the matter outside the arena of public debate and legislative action.” In Reno v. Flores (1993) the Court also proclaims “the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Instead the Court should use the “due process” clause to identify if a statute is legal (instead of elevating fundamental rights) using the following standard: 1. Is the law rational, 2. Is the law arbitrary (discriminatory) and 3. Is there an injury to be settled? For instance, in Griswold instead of elevating a new Fundamental Right, the Court could use the standard applied by Justice Harlan (defined above) to strike down the statute. The Due Process standard could be used to apply to gay marriage laws or abortion state laws. “Due process” to evaluate statutes is better than elevating rights. Elevating rights should be a last resort. In Glucksberg the Court refused to hold that the “right to die” or the “right to choose a humane, dignified death” was a fundamental right which encompassed “assisted suicide”. In Flores the Court rejected several fundamental rights including “freedom from physical restraint” and “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives.” In Gonzalez v. Raich in 2007 a district court refused to elevate “the right to use marijuana to preserve bodily integrity, avoid pain, and preserve life” as a fundamental right since only 10 states had medical marijuana laws (not enough to say it is deep rooted)

Regaining our Freedom and Liberty (Part I)

I am not a lawyer, but I have independently studied Supreme Court Case Law books written by Georgetown professor Randy Barnett. I am only a novice, but in my opinion the Court has been out of line with many of its decisions.

How can America regain its Freedom and Liberty and restore our Confidence in the Supreme Court? This is difficult task. Supreme Court nominee Neil Gorsuch said “If you like all your decisions, then you are not being a good judge.” This is so true, it is impossible to find solutions to all problems in the Constitution unless a judge decides to legislate from the bench. Here are few steps to put the Supreme Court back on track:

1. Overrule the 1873 Slaughter House cases. This is essential to restore the “privileges and immunities” clause of the Fourteenth Amendment. The Court has improperly used the “due process” and “equal protection” clauses to compensate for the loss of the “privileges and immunities” clause. Clarence Thomas attempted to bring back the “privileges and immunities” clause in his concurring majority decision in McDonald v. Chicago in 2010. The Supreme Court has even used the Commerce Clause to replace the missing “privileges and immunities” clause (see Atlanta Hotel v. United States or Katzenberg v. McClung).

2. Continue to limit the use of the Commerce Clause for economic issues only. The Commerce Clause has been expanded, especially under the FDR New Deal. The Commerce Clause was used to regulate not just interstate trade, but anything economic including intrastate activities (see Wickard v. Filburn). However, recently the Court has made a stand to limit the Commerce Clause to just economic issues (See Bond v. United States, United States v. Lopez, and United States v. Morrison).

3. Stop legitimizing legislation based on “emergencies”. The Court has granted the federal government expansive powers during times of war or crisis (the Depression). Some of the worst Supreme Court Decisions have come because of “emergencies”: Korematsu v. United States (WWII), Schneck v. United States (WWI), the Legal Tender cases (Civil War), and Wickard v. Filburn (the Depression). The Court should remain true to the Constitution as it did during the Korean War when deciding Youngstown Sheet and Tube v. Sawyer (Truman tried to seize steel companies).

4. Be wary of deciding cases based on data, popular consensus, or facts: stick with the law. Many times the Court has decided cases based on popular consensus (Plessy v. Ferguson, United States v. Cruikshank, and Korematsu v. United States), and misguided data and facts (Bradwell v. Illinois, Buck v. Bell, Mueller v. Oregon, O’Gorman v. Hartford Insurance, Roe v. Wade, and even cases like Carolene Products) 5. Stop deciding Dormant Commerce Clause cases. See my blog “Why the Dormant Commerce Clause is Bogus”.

6. Social Justice cannot be a determinate of any kind to decide any case. Consider the 1996 Romer v. Evans where the Court struck down a Colorado Constitutional Amendment that denied “preferential” treatment to homosexuals. In other words, homosexuals cannot obtain a job, for instance, because of a quota system. Instead, the Court found the provision to discriminate against homosexuals. However, the Court’s decision is hypocritical because it discriminates against other groups that are not gay. In his dissent Scalia points out that the majority decision in Romer is “heavy reliance upon principles of righteousness rather than judicial holding.” Roe v. Wade, Obergefell v. Hodges, and Lawrence v. Texas are good examples of social justice decisions by the Court.

Can Roe v. Wade be Overturned?

Can Roe v. Wade be overturned? Of course. But to do so there must be some “erosion” to the principles in which Roe was decided to make it possible. Actually, Casey v. Planned Parenthood decided in 1992 may be the actual precedent that needs to be overturned. Casey upheld Roe, but revised the initial trimester conditions held in Roe. Below are the Supreme Court precedent that can be considered to overturn Roe.

First, the Court banned Partial Birth Abortion (Gonzales v. Carhart – 2007). This did not end abortion, but it pointed out the horrors and dangers of such procedures to the mother and how it “kills” a “viable” baby by “crushing” its skull and to vacuum out “brain matter” so the baby’s head can easily pass through the cervix. This does not paint a very good picture of abortion, nor does it paint a very picture of those who support these types of procedures. Partial birth abortion methods did nothing but bring more “substantial and continuing criticism” to the business of abortion. Carhart is significant because the Court is on record against some form of abortion – that is a start in creating useful precedent.

Second, the precedent that may be the most revealing is Washington v. Glucksberg in 1997 (also to a lesser degree Reno v. Flores in 1993). In this case, the Court refused to elevate “the right to die” encompassed by “assisted suicide” to a fundamental right because suicide was “not deep rooted in American history or tradition”. Nor is “the right to die” an “implicit in the concept of ordered liberty” (Palko, 1937) and “neither liberty nor justice would exist if they were sacrificed” (Glucksberg). This decision, without question, eroded the foundation of Roe and Casey because abortion is certainly not deep rooted in American history or tradition. This standard was never applied to either Roe or Casey when they were decided.

Third, the liberal progressive judges in their righteousness of obtaining social justice may have given the conservative sect of the Court ammunition to fight Roe and Casey. In Lawrence v. Texas decided in 2003, the Court overturned the 1986 Court decision Bowers v. Hardwick. Both cases dealt with statutes against homosexual sex (sodomy). In Bowers, the Court said that homosexual sodomy was not a fundamental right and upheld the Georgia law. In his dissent to Lawrence, Justice Scalia astutely summarizes the majority opinion criteria to overturn a case. A case can be overturned if it meets the following “emerging awareness” criteria: “1.Its foundations have been ‘eroded’ by subsequent decisions; 2. it has been subject to ‘substantial and continuing’ criticism; and 3. it has not induced ‘individual or societal reliance’ that counsels against overturning.” Scalia points out these same “emerging awareness” principles can be used to overturn Roe. 1. Glucksberg and even Carhart has “eroded” Roe’s foundation; 2. No question that abortion faces “substantial and continuing criticism” (for instance, outrage over partial birth abortion); and 3. Roe’s fundamental “right to abortion” has not been precedent cited in any decision other than abortion cases (other aspects of the decision may have been cited, but not the fundamental right to abortion that the core aspect of decision is built upon). Bowers was cited in cases dealing with sexual morality cases such as public indecency. By overturning Bowers sexual moral behavior can now be used to legalize (prostitution, incest, obscenity, polygamy, etc.). Overturning Bowers is a “massive disruption of the current social order” but overturning Roe “would simply have restored the regime that existed for centuries before 1973.”

Can Roe and Casey be overturned? Yes, and the liberal Court would get what it deserves. The liberal sect of the Court is applying social justice and not the law. Liberal rulings enable the Court to apply any imaginary principle or invent any fundamental right it wants to get the decision they want. In Lawrence the court does not elevate homosexual sex as a fundamental right, but says homosexual sex is “an exercise of their liberty”. That is very broad and ambiguous. Liberty can be restricted and is restricted all the time. Private sexual liberty is also restricted. For instance, polygamy, incest, or prostitution. This is why the Lawrence decision makes no sense, it makes it sound as if liberty cannot be restricted by the government for any reason. This is not the law, but a fabricated fascination the Left calls the law. Wouldn’t it be ironic if the Court could use the Left’s fabricated fantasy they call the law in Lawrence v. Texas against them to overturn Roe and Casey? Lawrence v. Texas could have been invalidated based on the “equal protection” clause or even the “due process” clause without elevating a fundamental right. But this is not sufficient to Leftist judges who have an agenda and answer to constituents and not the Constitution.

The Founding Father for African-Americans: Frederick Douglass

There is no such thing as a Founding Father for African-Americans, but if there was one it would be Frederick Douglass. Although Douglass was not alive during the founding period, he was the key leader during the initial civil rights period to end slavery. Douglass was born a slave in Maryland in 1818. After several failed attempts, Douglass escaped to the North and settled in Massachusetts. In 1839, Douglass became a licensed preacher and became active in abolitionist groups. Douglass was a gifted writer and orator and he symbolized the antithesis of Southern and even Northern views of a Black person. Most could not believe such a gifted person could have once been a slave. In other words, Douglass debunked any bigoted ideas that Blacks did not have the intelligence to be functional members of American society.

Douglass was remarkable for many reasons. He had many of the traits of more modern Civil Rights leaders such as Martin Luther King. Douglass, like King, was not only smart and protested for equal rights for all (not just blacks, but for women), but showed little animosity towards the system that oppressed him. Douglass, like King, was very active in the political process supporting Ulysses S. Grant for President and was even the Vice Presidential candidate on a small Party ticket in 1872.

After the Supreme Court held that Blacks had no Constitutional rights in the landmark 1857 case Dred Scott v. Sanford, Douglass was at his best. In one of his most famous speeches Douglass declared that “my hopes were never brighter than now.” He continued “The Supreme Court of the United States is not the only power in this world.” Douglass contended “I ask, then, any man to read the Constitution and tell me where if he can, in what particular instrument affords the slightest sanction to slavery?” He added “Where will he find a guarantee for slavery? Will he find it in the declaration that no person shall be deprived of life, liberty, or property without due process of the law? Will he find it in the declaration that the Constitution was established to secure the blessings of liberty? Will he find it in the right of the people to secure in their persons and papers, and houses, and effects? Will he find the clause prohibiting the enactment by any State of a bill of attainder?” Douglass realized that all these “strike at the root of slavery, and any one of them, but faithfully carried out, would put an end to slavery in every State in the American Union.” Douglass understood the Dred Scott decision showed that the “Constitution does not mean what it says, and says what it does not mean.” Douglass had full faith in the Constitution: “I am here to vindicate the law, not the administration of the law. It is the written Constitution, not the unwritten Constitution, that is now before us.” He further notes about the Constitution: “It makes, as I have said before, no discrimination in favor of or against, any class of people, but is fitted to protect and preserve the rights of all, without reference to color, size, or any physical peculiarities.” He summarizes by saying “let me say, all I ask of the American people is, that they live up to the Constitution, adopt its principles, imbibe its spirit: enforce its provisions.” Douglass would make a similar argument in an 1860 speech in Glasgow Scotland. Douglass was right, the “Constitution is for the ages” and would prevail over time. Of course, the Thirteenth, Fourteenth, and Fifteenth Amendments were needed to accomplish his vision, but the Constitution prevailed just as a confident Douglass predicted.

Douglass would not support present day diversity, affirmative action, or welfare programs. Douglass was about having equal rights for all Americans. His 1865 speech “What the Black Man Wants” is once again amazing. Douglass says in part “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.” He would continue “And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! Your interference is doing him positive injury.” Douglass was not only ahead of his time, he is more advanced in his thoughts than modern liberal or progressive policies seeking social justice. Has social justice helped African-Americans? Some, but over the course of time, social justice is doing more to harm the African-American race than to help them.

Douglass could have been bitter about his situation. However, Douglass was less bitter about what happened to him than most present day minorities who repeatedly inject race as an excuse for their failures. Douglass had faith in the Constitution, but unfortunately Justices are destroying his vision and faith: For instance, see Grutter v. Bollinger (2003) and University of California v. Bakke for diversity decisions or Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges for social justice decision.

The Best Non-Supreme Court Decision: Corfield v. Coryell

In 1823, Circuit Judge Bushrod Washington wrote the opinion for Corfield v. Coryell. The Court upheld a New Jersey law which prohibited non-residents from gathering oysters and clams from State waters. Washington refused the argument of applying Article IV, section 2 of the Constitution: “citizens of the several states are allowed to participate in the all the rights which belong exclusively to the citizens of any other particular state.” Washington explained that Article IV section 2 of the Constitution “did not guarantee equal access to all public benefits a State may choose to make available to its citizens.” Instead, Washington explained that the section in question of the Constitution only “applied to those rights which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” Below is how Washington defined our rights, privileges, and immunities in the Coryell decision:

“The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”

“The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”

This opinion is important because it was key in developing the language for the Fourteenth Amendment over 40 years later. The Coryell decision coupled with the 1866 Civil Rights Act defines our rights, privileges, and immunities not mentioned in the Bill of Rights. The 1866 Civil Rights Act says “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

Unfortunately, the Slaughter House cases in 1873 wrote the privilege and immunities clause out of the Fourteenth Amendment. In 1875, in United States v. Cruikshank the Court held that the Civil Rights law of 1866 to be unconstitutional because Congress could only control state discrimination, not individual discrimination. Cruikshank further held that the Bill of Rights did not apply to the states. Cruikshank was upheld in the 1883 Civil Rights cases. These cases also limited the scope of the Thirteenth Amendment to apply only to abolishing state sanctioned slavery rather than using it to deny discriminatory infractions as well. These decisions were precedent for the horrible 1896 decision Plessy v. Ferguson which established the “separate but equal” doctrine (Jim Crow laws). Why are these cases important? Because they are still valid precedent that has never been overturned (Plessy was overturned by Brown v. School Board).

The consequences of the Civil Rights cases, Cruikshank, and the Slaughter House cases has led the Court to apply the Constitution in ways it was never intended. The Commerce Clause has been used to uphold the 1964 Civil Rights Act. The Fourteenth Amendment’s “due process” and “equal protection” clauses have been expanded to cover things that should fall under the “privileges and immunities” clause. For example, the “privileges and immunities” clause was to be used to apply the Bill of Rights to the states, however later Supreme Courts would use the “due process” clause and the “equal protection” clause to accomplish this task. The due process clause was used to elevate new fundamental rights such as gay marriage and abortion. This makes no sense. Due Process merely applies to whether or not someone had a fair treatment throughout the judicial process. Due process does not apply to our fundamental privileges and immunities outlined by Washington in Coryell and by the 1866 Civil Rights Act.

In the 2010 case McDonald v. Chicago in his majority concurrence, Justice Thomas gives a very revealing argument to overrule Cruikshank and the Slaughter House Cases and finally use the privileges and immunities clause for its intended purpose. In this case, the Court held that the second amendment applied to the states via the due process clause. Thomas concurred, but properly wanted to apply the privilege and immunities clause instead of the due process clause.

Washington’s decision in Corfield v. Coryell is important even though the privileges and immunities he outlines are never applied properly, but instead our rights outlined in that case are still applied via the due process and equal protection clauses. Note: rights and privileges and immunities mean the same thing and are used interchangeably on purpose to illustrate that fact.

Brown v. School Board: Correctly Decided, but Wrong Rationale

In 1954, the Supreme Court unanimously decided that the “separate but equal” doctrine was unconstitutional. In 1896, in Plessy v. Ferguson the Court created the separate but equal doctrine. That decision was law for over 50 years and opened the door to discriminatory Jim Crow laws. In Brown v. School Board the Court correctly overturned this practice by deciding “separate but equal” did not apply to education. However, the Court used equal protection clause of the Fourteenth Amendment. This was problematic for several reasons.

First, in Bolling v. Sharpe, the Court faced a dilemma. Bolling was decided at the same time as Brown. The cases were identical (did separate but equal apply to schools) with one exception: the Bolling case was over federal jurisdiction (District of Columbia) while Brown applied to States. Unfortunately, an “equal protection” clause does not apply to the federal government in the Constitution. The Court bridged this dilemma by declaring “separate but equal” was unconstitutional using the “due process” clause of the Fifth Amendment. The result of Bolling is apparent, as Justice Stevens points out in Adarand Construction v. Pena the “Fifth Amendment encompasses a general guarantee of equal protection as broad as contained within the Fourteenth Amendment.”

Secondly, the Court says that the “circumstances surrounding the adoption of the Fourteenth Amendment” is “at best inconclusive”. This is not true, and does a huge disservice to the Amendment. This means that the Court decided Brown without knowing the true meaning behind the Fourteenth Amendment and therefore, gave their own interpretation of the Amendment. As Michael McConnell said “Brown is now a mighty weapon against the proposition that the Constitution should be interpreted as it was understood by the people who ratified it.” This is how the Fourteenth Amendment became a tool for “social justice” or “social rights” instead of an equal protection of the fundamental rights of all citizens. McConnell proves without a reasonable doubt that the framers of Fourteenth Amendment intended it to end segregation. The Civil Rights Act of 1875 was passed to enforce the Fourteenth Amendment and it denies segregation at inns, theatres, restaurants, and public accommodations. Public schools falls in this same category of public accommodations. In fact, a better argument can be made that “separate but equal” does not apply to schools more so than inns or theatres because schools are maintained by taxes by all Americans. In other words, an “originalism” interpretation to decide Brown is easy to make but the Court fails to draw the same conclusions.

Thirdly, the Court further suggests a “modern” interpretation of the Fourteenth Amendment. Chief Justice Warren says “Whatever may have been the extent of the psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.” This wrongly asserts that the interpretation of the constitution can change over time.

Fourthly, the Court relies on testimony and “data” showing that segregation has a “detrimental effect” on colored children because it makes them feel “inferior”. Using this information in deciding the case makes it about “social justice” and not the law which supports the decision.

The biggest injustice to the Fourteenth Amendment happened in the Slaughter House Cases in 1873 when the “privileges and immunities” clause was basically written out of the Amendment. The proper way to decide Brown would have been to use the “privileges and immunities” clause. All people have the same rights or “privileges and immunities”. This means we all have the same fundamental right to be free from government restraint. All Americans can therefore choose what school to attend, what restaurant to eat at, and what movie to see without government intrusion. Although there is no “privileges and immunities” clause applied to the federal government, the federal government cannot abridge fundamental rights of individuals to be free from government restraint. This is the entire purpose of the Constitution.

Scholars argue if Brown was decided by “originalism” methods then “social justice” or “social rights” cases such as Loving v. Virginia would not have been decided correctly. In Loving, the Court applied the equal protection clause to void a Virginia law making interracial marriage illegal. This is also not true. The privileges and immunities clause could be used or even the due process clause. To be a valid law using the due process clause there has to be a rational reason for the law and it cannot be arbitrary. The Virginia statute fails on both accounts – it has no rational basis and it is obviously discriminatory.

Once again the Warren Court decides the case correctly, but they use the wrong rationale. This is extremely harmful precedent because it allowed the Court to decide future “social rights” cases incorrectly because “social rights” are not encompassed in the Constitution. Social rights are not fundamental rights. This does not mean that laws restricting social rights will be found constitutional as explained above in Loving. However, “social justice” cases such as abortion and same sex marriage have no justification under the Constitutional.