Taney’s Defense of Robust Citizen Liberty and Equality in Dred Scott
U.S. Supreme Court Chief Justice Roger B. Taney ruled in the 1857 Dred Scott case that state “citizens” in the meaning of the U.S. Constitution are protected by the Bill of Rights against all state, territorial and federal laws except their home state laws. This makes perfect sense since each state’s citizens have never delegated any of their sovereignty to other state governments, only to their own and to the Union, and are not represented in other state legislatures, only in their own and in the federal legislature. The laws of other states apply to them only via the U.S. Constitution’s Full Faith and Credit Clause, which requires all states to accept the authority of each state’s laws over anyone in its own territory and over its own residents wherever applicable.
Thus, under pre-Reconstruction Dred Scott, citizens may lack privileges or immunities in their home states that they enjoy in other states. This fact may seem to violate the notion that one should be at least as free at home as anywhere else, but in fact one is. For each citizen is free to change the laws at home but has no say in the laws of other states. Thus any citizens who have reserved fewer privileges and immunities under their own state laws than they are guaranteed in the rest of the Union still have full authority to seek redress of this inequity through petition or representation in their own state government. And they are even free to grant themselves greater privileges and immunities at home than the federal Constitution guarantees them elsewhere in the Union.
The only inequality in Taney’s construction of Article IV is that each state’s citizens are free to impose stronger or weaker legal restrictions on themselves than they are permitted under the Constitution to impose on citizens visiting from other states. This is an inequality no more repugnant to democracy or republican government than the ability of any private association of citizens to impose terms of an associational contract upon themselves that they may not impose upon citizens outside their association. It is only the difference between self-determination being permitted and the usurpation of others’ self-determination being forbidden.
Taney concluded that the word “citizens” in the Constitution was not meant to include blacks, nor any other non-whites, since at the time the Constitution was ratified:
– every state but Pennsylvania had anti-miscegenation laws, and even Pennsylvania did at the time of the Declaration of Independence
– all states denied blacks the right or duty to serve in militia
– most states severely restricted the rights of free blacks visiting from other states in almost every way they are explicitly prohibited from doing to citizens visiting from other states under the Bill of Rights
– no state ever questioned its own authority to continue enforcing all these restrictive laws against free blacks visiting from other states
– no state complained to another state that its own free blacks were restricted in ways its white citizens were not when in the other states
Taney said, however, that the same generic language, if used in a more contemporary law, would presumably include non-whites. This aspect of Taney’s ruling could have been used to strike down the draconian Black Codes in “free” states like Illinois, whose 1853 revised state constitution used generic language in its exhaustive Declaration of Rights equally protecting all people in its territory. It might be supposed that the Illinois legislature’s apparent sanguinity about the compatibility of its Black Codes with its 1853 Constitution’s Declaration of Rights would justify reading that Declaration as implicitly excluding blacks, just as Taney read the Constitution as such in light of the framers’ contentment with its compatibility with Black Codes in force in their states at that time.
But Taney believed the times had changed, and that enough citizens might be expected to read the Declaration’s generic language, as it was approved by the Illinois legislature in 1853, to include blacks, after twenty years of what amounted to almost a national popular obsession with radical egalitarian abolitionist public agitation and debate on the Negro question, that according to the strict construction the Taney Court had applied to all State constitutions for two decades running, the State of Illinois must be held to a presumptively inclusive meaning to its generic terms in its recently approved constitutional Declaration of RIghts.
By contrast, the framers of the U.S. Constitution not only would have found it necessary to make express any intent to include Negroes in generic terms referring to citizens, but were also framing a Constitution for a government that did not yet exist, and that thus had no existing laws of its own at all, never mind Black Codes, that the new Constitution might potentially overturn. Nor did the Constitution delegate any powers to the new government it proposed forming which would in any way give it scope to strike down any state’s laws instituting social hierarchy among its own inhabitants, such as the Black Codes.
This new Constitution for a new government would also need to be ratified by three-fourths of the state legislatures before it would have any legal effect at all, and thus the new Constitution was actually at the time of its passage still subordinate to the collective will of the state legislatures who had no inclination to part with their Black Codes, and thus carried no authority under law over those Black Codes until it was ratified. Thus it only made sense for Taney to construe the Constitution only and strictly in ways that were compatible with the existing state constitutions and laws of three-fourths of the states in force at that time, perhaps excluding some conflicting state laws that were either repealed within a few years after ratification, or went deliberately unenforced in the face of routine violation.
The 1853 Illinois Constitution, however, had direct legal supremacy over all Illinois state laws from the moment it was passed going forward, including over the state’s Black Codes. While its passage did not immediately overturn those laws, it did leave them open to challenge in Illinois courts, whose constructions and applications of its own state constitution were, through widely debated precedents earlier established by the Taney Court, subject to final review by the U.S. Supreme Court through federal diversity jurisdiction.
Thus in passing the 1853 Illinois Constitution with conspicuously generic language referring to people, inhabitants and citizens in its Declaration of Rights, it is plausible to suppose that the legislature was acting quietly to assure that its Black Codes would ultimately, though not immediately, be overturned, if not by state courts then ultimately by the U.S. Supreme Court. It could have intended to set the Black Codes on a course of extinguishment, but in a way that left open the possibility of leaving the Federal judiciary to make the final call, and thus take the final political responsibility for doing so.
Of course, this sounds like aspirationist construction, but Taney was no aspirationist. He simply viewed the U.S. Constitution and the Illinois State Constitution as contracts, and sought to interpret the language of those contracts in the sense in which those who transacted them most likely understood them. The 1853 revision of the lllinois Constitution stood supreme over all the laws of the state of Illinois from the moment it was voted into effect by the body that drafted it. It did not have to go through additional separate ratification actions by constituent autonomous nation-states in order to acquire its supremacy over those nation-states’ laws, the way the U.S. Constitution had to.
It is impossible to understand Dred Scott without understanding this critical distinction Taney draws in it between the appropriate interpretation of the generic language of equality in the U.S. Constitution and the Declaration of Independence, and the appropriate interpretation of such generic language in contemporary state constitutions like the Illinois Constitution of 1853.
Abolitionists did not want to accept Taney’s conclusion, because they felt unable to muster support for a Constitutional Amendment granting citizenship to free blacks, especially if citizenship must come, as Taney insisted it must, with both full Bill of Rights protection everywhere but one’s home state and genuine equality with whites. For according to Taney’s ruling in Dred Scott, the Bill of Rights would exempt black citizens of each state from the Black Codes in every other state they visited, and genuine equality would strike down anti-miscegenation laws everywhere in the United States.
Justice Sonia Sotomayor, in her dissent in Schuette v BAMN (2013), sought to invoke the political-process doctrine to forbid Michigan voters from requiring racial minorities to muster two-thirds majority support to enact policy it deemed necessary to overcome its disadvantage. It would seem in Dred Scott that Taney similarly raised the bar out of reach to black citizenship.
For despite having no smoking gun evidence of it, the Republicans must have felt Taney had deliberately put them in a political bind. They could not maintain national power without the alliance between the more mildly racist free states like Pennsylvania and Massachusetts and the more virulently racist free states like Illinois, which not only maintained pseudo-slavery status for free blacks but permitted actual slaves to be rented in from out of state a year at a time.
So Republicans had to reject one or both of Taney’s premises if they were to forge a coalition to grant citizenship to blacks. They had to contend that granting them citizenship in the meaning of the Constitution either did not give all citizens genuine equality under the law, thus letting anti-miscegenation laws stand, or did not guarantee citizens full Bill of Rights protections in federal territories and other states, thus letting Black Codes stand, or both.
Even radical abolitionists like Arthur Tappan and William Lloyd Garrison had from their earliest publications disavowed any intent to promote or encourage interracial sex or marriage, and Democrat politicos tried their best to baste Republican candidates with the charge that they favored amalgamation of the races, eliciting frequent and indignant disavowals from those candidates, often accompanied by charges of libel.
Taney, however, saw the danger in interpreting the Constitution as permitting states to invalidate the marriages of each other’s citizens to preserve traditional barriers of social caste. He himself was a Catholic married to an evangelical Protestant in a nation that had given 23% of the popular vote to the violently anti-Catholic “Know Nothing” American Party ticket in the Presidential election held just months before he handed down the Dred Scott decision.
Moreover, among Taney’s close political allies at Jackson’s right hand in the Democratic Party were two miscegenists, one open and one closeted:
– Vice President Richard Mentor Johnson was Martin Van Buren’s running mate to succeed Andrew Jackson in the White House. Andrew Jackson hand-picked Johnson as Van Buren’s running mate, just as he had hand-picked Van Buren to succeed himself as the Democratic Party’s standard-bearer. Jackson made these selection the year after he had won a three year battle to get Taney confirmed to the Supreme Court. Johnson had earlier served thirty years in Congress, during most of which time he had caused a widely publicized national scandal by openly flaunting, and avowing the moral sanctity of, his illegal common-law marriage to his one-eighth-black slave, and by lavishly celebrating the weddings of their two mixed-race daughters to scions of prominent white families.
– Charles Carroll of Carrolton was Taney’s third cousin once removed, and also the illustrious sole Catholic Signer of the Declaration of Independence for whose sole financial support, as the wealthiest man in the colonies, religious tolerance towards Catholics was written into the Constitution. Carrol’s illegitimate mulatto son Daniel married a slave named Rachel and raised a son Charles Henry on the family’s historic estate at Doughroregan to become a Methodist minister, whose daughter Lillie Mae Carroll married a black preacher Keifer Jackson and went on to fame as the Mother of the Civil Rights Movement from her base of operations in the Baltimore NAACP from 1935 to 1974. Taney may not have known that Carroll’s great-granddaughter, who was also his fourth cousin twice removed, would grow up to found the Civil Rights Movement, but as Carroll’s personal lawyer who had drawn up his will, Taney was certainly intimately familiar with all the legally significant details of Carroll’s family circumstances.
And Carroll was not the only cousin Taney helped with legal issues involving miscegenation. In 1829 Taney came up with an ingenious legal strategy to help his mulatto cousin Nicholas Darnall win affirmation from the U.S. Supreme Court that he was free by implied manumission through bequeath of property, establishing a landmark principle in the law of manumission, so that neither Darnall’s racial heritage, nor his slave status at the time of bequeathal, could be held as any impediment to his valid title to the sizeable landed estate that he had inherited.
Taney managed to pull off this feat by evading the question of Darnall’s standing to sue in federal court. Officially representing the other party in the suit, Legrand, who was a friend of Taney’s playing along to help, Taney orchestrated both sides of the case, and when the opportunity arose to challenge Darnall’s standing to sue, Taney simply declined on behalf of his friend Legrand, and the case proceeded to the merits. Taney openly explained all of this in several paragraphs of detail right in his Dred Scott ruling, in response to Scott’s counsel raising the case as an issue in oral argument and brief.
Taney’s fears concerning the allowance of a caste system among citizens were realized in 1879 when the post-Reconstruction Texas Court of Appeals (the highest court in Texas) ruled that the state had every right to criminalize even interfaith marriages (using the example of Christians and Jews, but clearly implying Protestants and Catholics could be banned from marrying as well), never mind interracial marriages, and based its finding on the U.S. Supreme Court’s 1873 Slaughterhouse Cases that presumed a spurious construction of the Privileges and Immunities Clause, a construction that Taney had explicitly debunked in Dred Scott. I will describe below how that spurious construction became spurious law a decade later in Paul v Virginia, which broke stare decisis by not even acknowledging the existence of the controlling Taney construction in Dred Scott.
Indeed, the British Parliament is only just this year, 2013, planning to repeal a law forbidding the Royal Family from marrying Catholics. Taney had good reason to fear that states might use any weakening of full citizen equality jurisprudence to start persecuting Catholics again, to the point of even annulling or even criminalizing his own marriage.
Taney’s beloved wife of forty-eight years had died suddenly only months before the Dred Scott case came onto the docket in late 1855. The only public statement she had ever recorded was her sworn testimony in support of the freedom of a black man she knew as a child against an attempt to remove him from the state of Maryland as a fugitive slave. Her husband had battled in court for years on his behalf, before finally vindicating the man’s freedom.
Taney was a lifelong ardent advocate for gradual abolition, and for him this meant ten or twenty years, not a hundred like Lincoln envisioned. Taney advocated for gradual abolition that made freedom conditional upon full and irrevocable civil equality for blacks under the law, as well as full training in a viable trade or profession, the means to set up shop in that livelihood, and a practical civic education. The civic education would include knowledge of how to defend their own rights under the law against racist fellow citizens. The cognitive dissonance that legal scholars experience when brushing up against evidence of Taney’s lifelong activism for black civil rights in the fullest sense, has left them groping about in futility to vilify him, desperate to avoid acknowledging his Dred Scott interpretation of the Constitution as the radically anti-racist antebellum precursor to Derrick Bell’s interpretation of Brown v Board that it is. But Taney went farther than even Bell, who would have upheld Plessy v Ferguson and doubled down on its promise of substantive equality of segregated schools. In Dred Scott, Taney ruled that if blacks were ever to become citizens, any separation or differential treatment of blacks and whites would be absolutely forbidden, not just subjected to heightened scrutiny, wherever the Bill of RIghts applied.
Regardless of Taney’s motives, Dred Scott did leave immediate abolitionists in a bind.
To get out of that bind, some pragmatically egalitarian abolitionists in the Republican Party first tried and failed to achieve Taney’s vision of robust citizen liberty and equality while rejecting, for political and ideological reasons, his method of constructing it from the Constitution.
The Failed Abolitionist Gambit on Citizen Higher Law Equality
John Bingham first formulated the Fourteenth Amendment as a mere empowerment of Congress to enforce the Privileges and Immunities Clause. He believed that clause already guaranteed full Bill of Rights protection to citizens against the laws of every state, including their own states. In this he disagreed with Taney only in that Taney believed its protection did not apply to a citizen’s home state laws. But this difference was huge in its implications, for Taney had for decades championed state sovereign independence from Congressional control on civil rights.
Like Alexander Hamilton, the foremost leader of the Federalist Party that Taney belonged to as a young Maryland state legislator in 1799, Taney believed enforcement of the Privileges and Immunities Clause was best left to the federal judiciary in diversity jurisdiction. Unlike Taney, Bingham rejected Barron v Baltimore, and thus believed that the people of each state, in ratifying the Constitution, had relinquished their authority to impose upon themselves through state law any restrictions on their rights that the federal government was forbidden to impose, including at least those enumerated in the first eight Amendments of the Bill of Rights.
Unlike Taney, Bingham read the phrase “citizens in the several states” in the Privileges and Immunities Clause to mean “citizens of the United States, under the laws of every state” so that the full meaning of the clause for Bingham was:
“The citizens of each state shall be entitled to all the privileges and immunities of citizens of the United States, under the laws of every state.”
Bingham agreed with Taney, however, that Congress had been granted no authority under the Constitution to enforce the clause upon the states, as Taney had ruled in Dennison. Bingham believed Congress should be granted authority to enforce it. Taney believed that authority was best left with the federal judiciary.
Alexander Hamilton, in Federalist No. 80, explained the framers had chosen to place the burden of enforcing the Privileges and Immunities Clause solely in the federal judicial branch to prevent Congress from gaining, in effect, plenary legislative authority over state governments. But Bingham was not satisfied with leaving the federal judiciary to enforce the Privileges and Immunities Clause.
If Bingham was right that the clause originally meant to restrain citizens of each state from violating their own federally enumerated rights through state law, then Hamilton must have been terribly confused about that clause when he asserted that the Diversity Clause provides for the judicial enforcement of the Privileges and Immunities Clause, for if Bingham’s construction was correct then clearly the Diversity Clause does not give the federal judiciary full enforcement power over that clause because it does not provide federal jurisdiction for citizens to sue their own states for violations of the Bill of Rights (Hamilton was writing years before the Eleventh Amendment forbade suits by individuals against states). But apparently Bingham believed Hamilton misunderstood the Privileges and Immunities clause and that he and the other framers had goofed and omitted to fully secure its enforcement even by the judiciary, despite Hamilton having esteemed it “the basis of the Union” and having declared that it had been plainly enforced through the Diversity Clause.
In light of Hamilton’s view, it certainly seems that Taney’s construction was far more plausible than Bingham’s, but Bingham was a legislator, not a judge, and he was not doing anything terribly unexpected of a legislator in trying to force-fit the Constitution to suit the prevailing Republican political agenda.
Bingham also did not subscribe to Taney’s reasoning that state laws were restrained by the Bill of Rights only because they were applied to citizens of other states exclusively through the authority of the U.S. Constitution. His reason for rejecting Taney’s approach was most likely politically ideological. Taney had used that reasoning in Dred Scott to strike down the already-repealed Missouri Compromise, ruling that Congress had no power under the Constitution to ban slavery anywhere, not even in U.S. territories. The entire Republican platform in the 1860 election turned on rejection of that reasoning and that conclusion in Dred Scott. Having fought and won the election on that platform, then fought and won a horrendous war to enforce their electoral victory, the Republicans were not about to turn around and admit that Taney was right after all.
Instead, Bingham believed states had all agreed, in ratifying the Constitution, to allow any person that any state deemed a citizen of that state at that time, including free black citizens of a number of states who were regarded by those states as its citizens, to be protected by the Bill of Rights against all state and federal laws throughout the Union. He believed that states were in violation of the Constitution when they applied their laws restricting free blacks to those few visiting free blacks who were deemed citizens by their home states, but that the Constitution had left the enforcement of those rights to the federal judiciary as Hamilton had explained, and that the federal judiciary, beholden to the Slave Power from the outset, had unjustly refused to enforce those rights at all. He also believed free blacks deemed citizens of their own states had full Bill of Rights protection against their own state’s laws, but that the Constitution made no provision at all to enforce those home state rights, but rather, left it up to each state to adhere to voluntarily.
Thus Bingham believed Barron v Baltimore’s finding in 1835 that the Bill of Rights do not apply against state laws had been decided wrongly by the Marshall Court and should have long since have been reversed. For Bingham, the Marshall Court should have recognized state citizens’ Bill of Rights protections against their own states’ laws, but begged off enforcing them since the Constitution gave the federal government no power to do so. Bingham may have been inspired to take this view by Taney’s own recent ruling in Dennison in which he had chastised two Ohio governors for refusing to fulfill an extradition request from another state, but had also avowed that the federal government, including the federal judiciary, had no power under the Constitution to force their hand.
Bingham also believed that the entire thicket of jurisprudence the Taney Court had developed around the Tenth Amendment reserved police powers of states should be thrown out. He believed every ruling of the Supreme Court upholding state laws that infringed upon any privilege or immunity guaranteed to citizens under the Bill of Rights ought to be overturned. He believed that at the time each original state ratified the Constitution, the citizens of each state whose state constitution did not already explicitly incorporate equivalent language to the Bill of Rights to restrain their own state laws as the Bill of Rights restrained federal laws, had implicitly done so by ratifying the Constitution.
Believing the federal judiciary had utterly failed in its duty to enforce the Bill of Rights against state laws even for citizens of other states, Bingham concluded that Congress must be empowered to do the job instead, and fully empowered unlike the federal judiciary had originally been, and he intended the Fourteenth Amendment to empower Congress to do just that.
At one point in the Constitutional Convention, James Madison had proposed that Congress have direct veto power over all state legislation. Madison’s proposal was defeated, but Bingham’s idea for the Fourteenth Amendment was to revive Madison’s proposal to a certain degree, to allow Congress to make it the duty of the federal judiciary to strike down state legislation, but only to the extent Congress decided it violated the Bill of Rights.
After winning the Civil War, most Republicans were at first resolved to act as if Dred Scott had never happened, but Bingham believed it had to be repudiated with a Constitutional Amendment. After procuring a solid majority on the Court with five Republican appointments in the course of the war, including replacement of Taney upon his death in 1864 with Salmon Chase, a radical egalitarian abolitionist, the Republican Congress passed the Civil Rights Act of 1866 in direct defiance of Dred Scott‘s principal holding that Congress had no authority to grant citizenship to blacks. But they soon realized Bingham was right, that even their abolitionist Supreme Court majority could not guarantee citizenship to blacks as fully and enduringly as a Constitutional Amendment could.
Having already passed the Thirteenth Amendment banning slavery and involuntary servitude, and in response to the rapid passage of draconian Black Codes in the South protectively imitating similar Black Codes in the North and West, including that of Lincoln’s home state of Illinois, the Republicans realized they must pass a Fourteenth Amendment to strike down those Black Codes. But they must do it carefully, so as not to offend the loyal Union states in the North and West who coveted what they thought of as their own good and righteous Black Codes and free black exclusion laws as much as they wished to punish the former Confederate States for what they saw as their sin of trying to carry their abjectly evil practice of slaveowning into the “free” states, even though some of those “free” states treated free blacks pretty much as state-owned slaves.
Bingham had gotten nowhere in 1858 trying to muster support to block Oregon’s statehood admission because of its state constitution’s free black exclusion provision. He knew that even if he could get the two-thirds vote in Congress for full black citizen equality as Taney had envisioned it in Dred Scott, it was unlikely that enough states in the West and the South would support it to achieve the three-fourths required for ratification.
It will be valuable to recite here Taney’s vision of black citizen equality as he expressed it in Dred Scott:
“More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”
Clearly Taney had made it essential to his argument in Dred Scott that if citizenship in the meaning of the Constitution were conferred upon blacks, it would give the most despised and debased among them absolute and total equality under the law with the most powerful and wealthy of whites in every way, everywhere in the nation.
Former loyal Jacksonian Democrat Congressman Robert Dale Owen was a pro-war Democrat who had led a special commission on Reconstruction planning during the war that had led to the creation of the Freedmen’s Bureau and had pressured Lincoln publicly to issue the Emancipation Proclamation. After the war when he had become a Republican convert, he drafted a far more comprehensive version of the Fourteenth Amendment than Bingham had, and had his old friend and leading abolitionist in the House Thaddeus Stevens submit it on his behalf to the House Committee drafting the amendment.
Owen’s version called for specific guarantees of both civil and political rights for blacks. It disenfranchised former Confederate government officials and military officers, but not soldiers. It resolved the conundrum that the Thirteenth Amendment had already ballooned the representation in Congress of all the recently emancipated slave states because slaves who had only counted for three-fifths of a person now counted, being free blacks, as whole persons for the purpose of apportioning seats in Congress. It solved this problem by denying apportionment count for any blacks who were not given the right to vote, with a sunset provision that granted suffrage to all blacks unconditionally after ten years.
Owen’s version managed to avoid requiring all states to enfranchise their free blacks right away because many “free” states still vehemently opposed enfranchising their miniscule free black populations. It significantly punished the disenfranchisement of blacks only by states with enough blacks for the change in apportionment count to impact their share of seats in Congress.
For states in the North and West, choosing to continue disenfranchising blacks at the cost of losing the one or two percent of their census counts that figured into their apportionment of Congressional seats would be unlikely to cost them a single seat. So the impact of Owen’s Amendment would be to coerce recently emancipated slave states into enfranchising their large black populations, while permitting all the “free” states to continue disenfranchising their blacks without penalty.
Owen certainly did not relish this result. He had been infamous decades earlier as a Utopian socialist, in fact, and had published extensively supporting not only the absolute equality of all races, but that of women with men, and had pioneered with Fanny Wright the promotion of (natural and voluntary) birth control for the self-liberation of women. He was now focused, however, on assuring concrete and expeditious results, and trying to forge a national consensus merging the radical egalitarian abolitionist ideals of black equality with the Jacksonian Democratic ideals of common-man citizen sovereignty, while recognizing the political limits of what this rare moment in history would afford such ambitions.
Unfortunately Owen’s original draft did not survive the committee’s reworking of it. Certain they could not muster support among the virulently racist free states for even the eventual requirement of black suffrage in every state, they tossed out the sunset grant of suffrage ten years later, but kept the conditional apportionment measure as a permanent provision. This gave the “free” states a permanent free pass on ever having to enfranchise blacks, and encouraged all recently emancipated slave states to devise ways either to grant sham legal voting rights to blacks that they could not effectively exercise, or to devise ways to rid themselves of blacks altogether.
Within a couple years after the Fourteenth Amendment’s ratification in 1868 the odiousness of this negative incentive ultimately led egalitarian abolitionist Republicans to push through the Fifteenth Amendment, requiring all states to enfranchise all black males.
Another critical part of the Owen draft that got removed was the specific guarantee of civil rights to blacks against all state laws. In its place Bingham inserted his own re-worked versions of his original Privileges and Immunities enforcement provision. He had revised it to adopt the self-executing modality of the entire Owen draft, so that it no longer required an act of Congress to go into effect, but would have full force of law upon ratification. Owen’s draft, thus gutted of all its substantive and specific guarantees of black civil and political rights against state law, became the Fourteenth Amendment as it reads in the Constitution to this day.
Unfortunately Bingham’s civil rights language did not specify which possible construction of the Privileges and Immunities Clause it meant to enforce on the states. This left an opening for the Supreme Court to render the provision almost meaningless. This the Reconstruction Court did, not as a betrayal of its Republican commitments, but in accord with its aristocratic Hamiltonian roots, and in tragic fidelity to Bingham’s ultimately unworkable project of repudiating Taney’s impeccable reasoning in Dred Scott.
Historians and commentators generally assume this rejection of Bingham’s intended construction of the Privileges or Immunities Clause of the Fourteenth Amendment occurred first in the Slaughterhouse Cases in 1873, and was explicitly completed in the Cruikshank case in 1877. The historians and commentators are all wrong.
Bingham’s intended construction of the Privileges or Immunities Clause was gutted and hollowed out first by the Salmon Court in Paul v Virginia in 1868, just a year after the Fourteenth Amendment was ratified. In that case, former Associate Justice Curtis, who had retired from the Supreme Court months after the Dred Scott case to resume his lucrative career as a corporate lawyer representing northern corporations owned by wealthy aristocrats, argued for his insurance company plaintiff that corporations were citizens in the meaning of the Article IV Section 2 Privileges and Immunities Clause, and thus deserved full Bill of Rights protection against all state laws.
Justice Field ruled against Curtis’ argument for a unanimous court, rehashing Taney’s ruling in Augusta Bank v Earle three decades earlier to declare that corporations, being the legal vehicle for the expression of special privileges and immunities given to its owner-investors in its state charter, could not carry those special privileges or immunities into another state. But Field’s rehash differed significantly from Taney’s original ruling in its construction of the Article IV Privileges and Immunities Clause. Field adopted Curtis’ assertion in oral argument that the Privileges and Immunities Clause only guaranteed to citizens of other states the same privileges and immunities under a state’s laws that the state granted its own citizens.
By subtly misconstruing Taney’s less developed 1839 reasoning in Augusta Bank v Earle on corporate rights, and ignoring Taney’s more sophisticated Dred Scott-based update of Earle in Covington Drawbridge in 1858, Field, while spewing out an enormous cloud of needless verbiage to rehearse how Taney’s ruling in Earle clearly invalidated Curtis’ reiteration of the faulty claim to the same Privileges and Immunities Clause citizenship for corporations Taney had rejected in Earle, slipped in the following concurrence with the specious construction of the Privileges and Immunities Clause Curtis had dropped subtly into his oral argument and brief as a mere unsupported premise to his ostensible claim:
“But the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens.”
In this manner Field managed to ignore and evade Taney’s definitive construction of the Privileges and Immunities Clause in Dred Scott, thus setting it aside without having to argue against it, which he could not successfully do, to affirm in its stead the barebones construction of that clause that Curtis had offered in his Dred Scott dissent. Field and the unanimous Salmon Court of 1868, some of them perhaps in collusion with Curtis’ sleight of hand, others perhaps unwittingly, had stolen into the crib of the newborn Fourteenth Amendment’s guarantee of black citizen equality, ripped its heart out and replaced it with corporate personhood.
For Taney in Dred Scott and Covington Drawbridge had set forth an overwhelmingly forceful and undeniably correct construction of the Privileges and Immunities Clause that since 1858 had made natural person citizens robust with Bill of Rights protections against state laws outside their home states, and had subordinated corporations far beneath them there as non-citizens with only access to courts, equal protection only with other non-citizen corporations, and only procedural due process rights, none of them at that time construed substantively.
Under Curtis’ construction, any rights guaranteed to citizens against state laws under the Fourteenth Amendment would be automatically guaranteed to corporations as well. The implied result of this groundlessly and surreptitiously affirmed mal-construction of the Privileges and Immunities Clause in Paul v Virginia was actually the exact opposite of its ostensible principal holding, that corporations are subordinate to citizens, who are natural persons, under state and federal law.
By ignoring Dred Scott and Covington Drawbridge in Paul v Virginia, the Salmon Court wheedled its way to reducing natural person citizens to having only the same rights against state laws that corporations had.
This was certainly a betrayal of Bingham’s intent in one sense, but it was the fulfillment of his intent in another sense. For it was certainly Bingham’s intent for the Fourteenth Amendment to be interpreted in defiance of, not in accord with, all of Taney’s reasoning in Dred Scott. Bingham thought his own reasoning (or lack thereof) was sufficient to arrive at the same robust construction of the Privileges and Immunities Clause that Taney had arrived at, but without the political baggage of Taney’s mooted implication that only a Constitutional amendment could make blacks citizens or abolish slavery in a territory. Bingham was not alone, for the ardent rejection of Taney’s reasoning in regard to the Privileges and Immunities Clause in Dred Scott had become a politically indispensable article of undying faith among Republicans even before the ruling went to press, unifying the entire spectrum of the Republican coalition on a common point of moralistic Constitutional dogma.
Unfortunately it was dogma without a working theory of how to construe it from the text of the Constitution, so Bingham did his best to supply such a construal. In the end, however, the only Constitutional theory that could coherently compete with Taney’s intricately sound exegesis of the republican machinery of the Constitution in Dred Scott was Higher Law theory, and that was a theory whose coherence ultimately relied upon the vesting of moral dictatorship in some branch or other of the federal government, with authority to subdue all state governments and individuals in the nation to its ultimately ecclesiastical dictates.
Lincoln had clothed himself in moral dictatorial authority in seizing neutral ships without proper warning and without a declaration of war, suspending habeas corpus, declaring fiat notes legal tender, and replacing the federal judiciary in effect with a military tribunal system that suspended all pretense of due process of law. Higher Law theory, alas, was simply not a theory of Republican government, but one of theocracy. The Second Great Awakening had fully played itself out in the political arena with the holy war of the North over the South, and in the aftermath it was playing itself out in the legal arena through the Reconstruction Acts and Amendments.
Bingham’s attempt at construal was simply that “the several states” included each citizen’s home state and that the privileges and immunities referred to were not those defined by any state’s laws but, rather, were general privileges and immunities to be found enumerated in the Bill of Rights. It was this shallowly complete-looking construction of the Privileges and Immunities Clause, shorn of the compelling grounding in republican principles of citizen sovereignty and representation that Taney had rooted it in, that Bingham clearly meant to be enforced through his Fourteenth Amendment Privileges or Immunities Clause.
To be fair, there was a republican justification for Bingham’s reading, just not a very plausible one. If ratification of the Constitution and the Bill of Rights Amendments implied incorporation of the Bill of Rights through the Privileges and Immunities Clause into each ratifying state’s own state constitution, then Bingham could argue that each state citizen had assented to restraining his or her own state government from violating its inhabitants’ rights as enumerated in the first eight amendments of the Bill of Rights. Certainly the losing plaintiff in Barron v Baltimore believed this was true. And he was not alone.
The problem was that the tussling together of each state constitution with eight chunks of text from the U.S. Constitution, most of which was already covered by provisions in each state constitution with other language, would tend to make a muddle of state law, and wreak havoc with stare decisis in every state’s judicial system as well as in the federal judiciary, in suits in diversity and in review of state laws. It is a great idea to have the same restrictions on all federal and state governments throughout the nation, but for that very reason it seems highly implausible that the framers, with such a laudable objective in mind, would go about implementing it in such a bizarre and ineffectual manner as to hinge it upon an oracular alternate reading of a clause that they had designed specifically to replace a clause that was clearly meant, in its original wording in the old Articles of Confederation, to say exactly what Justice Field claimed the new version of the clause still meant in the Constitution, that states may not treat citizens of other states worse than they treat their own. If Bingham and Field were right, then both Hamilton and Madison had completely misunderstood and misrepresented the meaning, intent and function of the Privileges and Immunities Clause in the Federalist Papers that were so instrumental in gaining the original ratification of the U.S. Constitution.
Taney’s careful reconstruction of the framers’ genuine revision of the Privileges and Immunities Clause from the version in the Articles of Confederation succeeded in avoiding this reversion of its meaning without disturbing existing fundamental state law the way Bingham’s bold facelift of that clause required. By tying it tightly with the framers’ clear intent to cure the original version in the Articles of its ill of allowing states to bestow citizenship in other states upon their own non-citizens, which Madison said was potentially “the cause of much embarrassment,” Taney cogently elucidated its complementarity with the federalization of exclusive power over citizenship status determination and change, which had been introduced by the Constitution to cure the aforesaid ill.
Taney’s masterful exigesis of the Privileges and Immunities Clause had exposed a fatal weakness in Curtis’ construction in his dissent in Dred Scott, a construction which Curtis pursued to its bitter logical end that implied the framers had bizarrely decided to grant the Federal Government authority only over the citizenship status of foreign-born persons, while leaving each state to continue determining the citizenship status in all other states of all its own native-born inhabitants. Curtis did not expose himself, however, to the embarrassment of attempting to explain just how state and federal courts would resolve the frequent deficiencies to be found in the factual record in regard to specific persons’ place of birth, which though practically surmountable in the limited case of candidates for U.S. President, presented quite a different challenge when required of every person seeking or claiming citizenship. Nor did Curtis attempt to explain, because he could not in any coherent way explain, given his claim that there was no such thing as U.S. citizenship apart from state citizenship as defined by each state, why the framers would have regarded the conferral of state citizenship to foreign-born inhabitants of a state a federal matter at all.
And even assuming they had such a reason, there is no reason why it would be a particularly federal matter in contrast to conferral of citizenship to the state’s native-born inhabitants, especially since such a half-federalization (really more like a one-tenth federalization) of the power to confer citizenship on a state’s inhabitants would fail to cure the ill in the clause that Madison claimed the Constitution had cured, because it would still allow each state to confer citizenship rights in other states on any of its non-citizen inhabitants native-born, including all blacks, simply by making them state citizens.
Curtis seemed to think it would suffice that each other state could defend itself from this ill by categorically denying rights to different social categories. But it is precisely this supposed authority of any state to nullify as many or even all the rights of any category of citizens visiting from other states, alongside its own citizens of the same category, that Taney so justly dismisses as rendering “unmeaning” the Privileges and Immunities Clause, which Hamilton had “esteemed” to be “the basis of the union.” When run through the rigors of Taney’s construction by comparison, Curtis’ construction of the Privileges and Immunities Clause simply crumbles into nonsense, even as Bingham’s construction stalls on its facial implausibility, before bogging down completely under the weight of its judicial impracticability.
But the year after Bingham’s language was ratified, Justice Field adopted former Justice Curtis’ construction of the “in” as simply synonymous with “of,” ignoring both Bingham’s and Taney’s constructions entirely, and insisting that the only alternative construction was that each citizen brought his own state laws into other states and that those other states were bound to enforce them instead of their own laws against him. This straw man argument, of course, Field easily dismissed as absurdly untenable under any notion of state sovereignty, representative government or comity among nations, and laughably impossible to administer. Field was a loyal Republican. He ignored Dred Scott like everyone expected him to. Perhaps he was in cahoots with Curtis and his corporate paymasters, or perhaps he simply could not support Bingham’s untenable construal, and thus he went for the tried and true misconstrual that simply read back into the clause both the simplicity and the attendant defects that its progenitor in the Articles of Confederation had had.
Perhaps Field did not mention Dred Scott because he knew Taney had argued specifically against both the straw man construction Field argued against and the equally facile construction he ruled in favor of. Taney made this argument in an oft-misconstrued paragraph in Dred Scott. We will explicate this paragraph in three sections, in order to clarify its proper interpretation:
“But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State.”
In this first section, Taney’s final words “the State” refer back to “the State to which he belongs,” not to “another State.” Taney is arguing here against the same construction Field later set up as straw man in Paul v Virginia. the construction in which each citizen carries his or her home state privileges and immunities along while in other States. Then Taney proceeds to show the absurd result of this construction in the second section of the paragraph:
“And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them, for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding.”
Once again, the words “the State” in the final clause of this second section of Taney’s paragraph refers still to “the State to which he belongs” and not to “another State.” Taney is saying that if citizens carry only the rights their home States afford them when they are in other States, the Constitution nonetheless, by a converse effect, augments those rights by restricting the application of other States’ laws upon the traveling citizen so as to reserve to that citizen the full Bill of Rights protections all citizens enjoy against those other States’ laws, as those laws are applied upon them only by virtue of their home States’ ratification of the Constitution, and are thus of a Federal character in that application, irregardless of whatever greater extent to which their home States’ laws may restrict their rights.
Taney here makes a much more profound and cogent argument against the portable-home-State construction of the Privileges and Immunities Clause than Field later would in Paul v Virginia. Taney is saying here that any attempt by a State to restrict the rights of its free black citizens more onerously than its other citizens, if indeed its conferral of such a degraded tier of state citizenship on those blacks had the effect of making them citizens of the U.S. under the Privileges and Immunities Clause, would fly right back in that State’s face once those blacks traveled into other States and exercised their federally reserved full Bill of Rights protections against those other States’ laws. For under the Full Faith and Credit Clause, that home State would then be bound to honor any sister State’s judgments or proceedings in relation to those blacks’ exercise of their rights in those other States, including, for example, the right to marry whites and enlist in the U.S. military.
Having thus demolished this portable-home-State rights construction of the Privileges and Immunities Clause, but in a different and more profound way than Field later would, Taney moves on to demolish the construction Curtis argued for in his Dred Scott dissent, which Field later affirmed under Curtis’ cunning influence at counsel in Paul v Virginia. Taney proceeds in the third section of his paragraph:
“And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation, and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him.”
Here Taney begins with the plural phrase “the States,” which refers back to “every State” in the prior sentence. While “every State” is not grammatically a plural construction, it is clear that Taney’s use of the plural to begin the next sentence can only refer to the semantically plural collective of non-home-States referred to by the singular quantifier “every” in the prior sentence, for no other collection of States is semantically invoked in the paragraph prior to that sentence. Taney in this third section thus argues that the non-home-States also cannot restrict the rights of the citizen as Curtis’ construction of citizenship under the Privileges and Immunities Clause would permit, because such a construction of citizenship would defeat the entire purpose of that clause, which is to ensure the rights of every State’s citizens as citizens of the Union while traveling in other States.
Taney concludes his paragraph, and his two-pronged argument, in a fourth and final section thus:
“This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.”
Here the phrase “the State” in the first sentence continues to mean the non-home-State, and Taney here repeats his argument in this context that the framers of the Constitution could not possibly have meant to include blacks in the term “citizens” if they had any intention of the Constitution being taken seriously by the twelve of thirteen States who at that time stood staunchly behind their anti-miscegenation laws, and who certainly were not prepared to ratify a Constitution that would suddenly embolden every free black with the right to assemble, bearing arms and speaking freely, in any numbers, anywhere and everywhere in the Union where they might incite slaves and other more docile free blacks to revolt against their bondage and degradation.
Curtis, while losing the case itself in Paul v Virginia, had to have been pleased with his clever handiwork. Field had adopted his construction of the Privileges and Immunities Clause, and in it lay the cornerstone of an edifice of corporate dominance under color of equality under the law that corporate lawyers had been hankering and battering at the gates of the federal courts for since the moment they smelled the Jacksonian coffee of Taney’s slap across their face three decades earlier in Charles River Bridge Company, and his rap against their knees in Augusta Bank v Earle.
By rejecting Taney’s reasoning, Bingham sidelined the only Constitutional Law expert with a coherent construction defending the common man from corporate-mediated aristocratic rule, and wrote his own dogmatic appeal to unjusticiable Higher Law instead into the Fourteenth Amendment, only to be brushed aside easily by the juggernaut of corporate interests and their relentless hammering of the courts by stables of well-heeled ivy-league educated lawyers, including former Justice Curtis himself, clamoring for what they considered, or feigned to consider, to be a level playing field between corporations and the individual citizens who often stood in the way of their speculative government subsidized schemes for a techno-aristocratic revolution.
Yet as we shall see, Bingham could not, try as he might, actually successfully ignore or replace any of Taney’s reasoning or construction in Dred Scott. In the end, the entire purpose of Bingham’s Privileges or Immunities, Due Process and Equal Protection Clauses can only be understood as acknowledgment that the Higher Law construction of the Constitution was not nearly as sound and valid as Taney’s, and that Bingham, ultimately more concerned with guaranteeing equality for blacks than with vindicating Republican political disgust with the conclusions Taney had reached in Dred Scott, had made his peace with Taney’s precedents and had designed his clauses of the Fourteenth Amendment to ambiguate in just such a manner as to trace both paths, the Higher Law path and the Dred Scott path, to the same result: full and absolute non-white citizen equality with whites, and full application of the Bill of Rights for all citizens against all state laws.
Not knowing whether the Higher Law or the Dred Scott construction would ultimately prevail in the long future of Supreme Court construction of his historic Fourteenth Amendment clauses, Bingham hedged his bets, and used language that seemed almost oracular, because he needed to make it agnostic as to whether Higher Law or Dred Scott constructions of that clause would win out, or whether Supreme Court jurisprudence would flip back and forth between the two interpretations in the decades and centuries to come. He did not foresee, unfortunately, that Curtis would be able to induce the Supreme Court to read the oracle in an entirely different direction.
The Republican Sacrifice of Citizen Sovereignty to Corporate Aristocracy
Justice Benjamin Curtis’ dissent in Dred Scott rejected the full Bill of Rights interpretation of the Privileges and Immunities Clause, insisting that it guaranteed to each State citizen only the rights assigned to that citizen’s social category by the laws of each other State the citizen may visit. Other privileges and immunities, Curtis argued, are granted by each state at its pleasure to different social categories of citizens within its territory. This, for Curtis, made blacks fully equal to whites under the Constitution, despite the fact that blacks might actually have no rights at all under any state’s constitution and laws. Taney pointed out this absurd result of Curtis’ construction of the Privileges and Immunities Clause, and concluded that such an interpretation would render the clause “unmeaning” because it would give to the citizen only the rights each State chose to give him or her. Taney was absolutely right.
Yet Curtis’ view of black “freedom” and “equality” under the Constitution was also the mainstream Northern anti-slavery movement’s myopic corporation-enslaved vision of black “freedom” and “equality.” It was not Bingham’s. It was not Owen’s. And it was not Taney’s. Curtis was a protege of Daniel Webster, a lifelong tool of the Boston Brahmin families and other similar aristrocratic American families, many of whom profited profusely from the African slave trade from colonial times right up until the thick of the Civil War.
Abraham Lincoln wholly endorsed Curtis’ dissenting Dred Scott opinion in his Illinois Senate campaign against Stephen Douglas, and in the 1860 Presidential campaign he promised to replace enough Supreme Court Justices as President to overturn Dred Scott and affirm Curtis’ dissent as the law of the land. In so doing Lincoln was dutifully representing the interests of his home state’s voters, for as Curtis had touted, his interpretation had the advantage of allowing blacks to be citizens under the U.S. Constitution without disturbing any of the draconian Black Codes that Illinois had at one time or another asserted its right and need to impose upon its free black “citizens,” including the legality of indentured servitude of black “citizens” for terms up to 106 years; imprisonment, indenture, deportation, or sale into slavery by the state of any free black “citizen” from another state; requirement that each free black already residing in the state post a $1000 bond for the right to remain; denial of the right to testify in court or serve on juries, and many other peonage-like restrictions.
The Maine Supreme Court, meanwhile, immediately and hotly rejected Dred Scott, insisting that its own anti-miscegenation law did not deny equality between blacks and whites since it equally punished both blacks and whites for marrying a member of the other race. Maine did not repeal its anti-miscegenation law until 1883, and even then it was largely symbolic since hardly any blacks had ever lived in Maine, nor have since. But the repeal did not overturn Maine’s high court ruling reserving its right to impose anti-miscegenation laws, and even Loving v Virginia a century later did not entirely repudiate its specious logic. In striking down all anti-miscegenation laws in 1967, the Loving Court felt it necessary to rely on the argument that since the Virginia law at issue only illegalized interracial marriage with whites, it was clearly designed to sustain White Supremacy, in violation of the Equal Protection Clause of the Fourteenth Amendment.
Thus Loving left open the possibility that a state could constitutionally ban all interracial marriages, if it could but find a compelling state interest to do so. Loving concluded with the troubling assertion that a grand total of two Justices in the majority could not, try as they might, even imagine a compelling state interest that could justify such a law. One wonders what the other seven justice did imagine.
The Loving Court did not make what ought to have been the obvious observation that any ban on interracial marriage was inherently unequal on its face as applied to different races, because it banned each race from marrying a distinct set of categories of potential marriage partners. Thus the putative equity in the language was logically specious, for its self-referentiality to its own invidious racial categorization of each person convicted of the crime clearly meant that it was merely a shorthand for a set of distinct but related laws, one for each racial category, banning its members from marrying members of one or more other racial categories. For those laws to be genuinely a single law applying equally to all, they would have had to have banned each race from marrying members of precisely the same set of races.
Thus the only genuinely equitable ban against blacks marrying whites and whites marrying blacks would also ban whites from marrying whites, and blacks from marrying blacks. Indeed, for a decade or so during Reconstruction, every former Confederate State’s Supreme Court but Georgia’s struck down its state’s anti-miscegenation laws based on just that non-specious interpretation of black-white equality, citing some combination of Reconstruction Civil Rights Acts, Constitutional Amendments, and state constitution revisions for justification. They had all reversed these decisions, however, citing the Slaughterhouse Cases for support, by 1890. But Maine did not abolish its anti-miscegenation laws until 1883, and remains today the whitest of all states by proportion of population.
Rather than directly close the self-referential loophole, the Loving Court chose instead to disregard the question of equal application of the anti-miscegenation law to the targeted racial categories in favor of scrutinizing the law’s justification for using racial categories at all. It declared any use of racial categories in a marriage law subject to the Korematsu test, that it serve a compelling state interest that outweighs the discriminatory impact of the law, and found Virginia’s law lacking under that test.
But Taney was not in favor of sweeping bans on the use of racial categorizations in state laws, whether they closed the self-referential predicate logic loophole or not. He was, instead, simply against any use of the state’s police powers to create or preserve caste stratifications among citizens, as being repugnant to a republican form of government and to the Privileges and Immunities Clause.
Thus, for Taney, anti-miscegenation laws are unconstitutional, but not for referencing race categories without a compelling state interest, as the Loving Court ruled. For Taney anti-miscegenation laws, if applied to citizens of a lower social stratum, are repugnant and absolutely inimical to the very existence of a republican form of government in a state, and therefore no duty or objective of a state government can justify such a law, for such a law effectively dissolves the republican state and converts it into an aristocracy, nor can such a law be justified, for Taney, by serving any state interest, no matter how compelling.
Thus a Taney approach to Brown v Board of Education would have overturned Plessy v Ferguson, but only on the grounds that it uses state police powers to maintain the social segregation of a socially inferior caste of citizens. To reach this ruling, Taney would only require the help of the Citizenship Clause of the Fourteenth Amendment, and would not even require the Thirteenth Amendment.
Within its teeming demand for opportunity for social mobility, Taney’s line of reasoning here subtly lays the groundwork for a dissolution of the institution of slavery itself, not as a violation of the rights of blacks, but as a violation of the rights of the Democratic Party’s core constituency – the white common man. For under the unbending principle that the U.S. Constitution forbids any state from acting in law or administration in any way that tends to institute or perpetuate social stratification, the manner in which slavery as an institution was daily deployed by the wealthy aristocratic elite in the South to maintain a caste separation far above both the low caste of whites who owned only a few slaves and above the masses below them who owned none and could never realistically ever hope to, any state law or action supporting the institution of slavery would ultimately have to be held to violate the constitutional rights of the common white man in the South.
But Taney did not limit the scope of his democratic construction of the Constitution to its applicability to southern gentry elites. He also seamlessly directed that construction against the slave-trade-fattened northern elite industrial families as well.
In Charles River Bridge in 1837 Taney took his first crack at putting corporations in their proper subordinate status below natural persons. He ruled that a state grant of monopoly to a corporation in a corporate charter must be construed narrowly in favor of the public interest, such that no implied grant, only an explicit and unambiguous grant, of any privilege or immunity to the corporation may be construed.
Taney’s second crack at corporate pretensions came in Augusta Bank v Earle in 1839, when he ruled that although a corporation can be regarded as a citizen for the purpose of access to federal courts, to sue and to be sued in them, because they represent their owners who are natural persons and citizens, the Privileges and Immunities Clause does not apply to corporations because if it did, it would extend the special privileges under one state’s law, granted to those owners through the state corporate charter, into another state, thus usurping the special privilege from the citizens of that other state who never elected to grant it. The rights of a corporation in its home state, Taney ruled, consist only of the rights granted to it in its charter by its home state, and its rights in another state consist only of the subset of its home state rights that are granted to that corporation by each other state, when operating in each other state’s jurisdiction.
Taney ultimately repositioned corporations as non-citizen artificial persons in Covington Drawbridge in 1858, fitting corporations into a securely subordinate status to citizens within the more fully worked out scheme of citizenship and legal personhood he had set forth in Dred Scott. He placed corporations in a position slightly higher than free blacks, but decidedly lower than every citizen, and clarified that his ruling in Earle, that corporations would be regarded as if they were citizens, was only an analogy, and that in fact corporations were, like blacks, not citizens at all in the meaning of the Constitution, nor could they ever be citizens since their exercising the privileges and immunities of citizens would augment the citizenship of each citizen directing or holding shares in a corporation over and against all other citizens, thus elevating corporate directors, officers and shareholders into a higher caste of citizenship than the rest.
It should be noted, however, that Taney had originally granted corporations standing in federal court not so they could sue so much as so they could be sued. His denial of the same privilege to free blacks could be seen as a protective move, to prevent free blacks, debilitated as they were in every state by onerous restrictions on their rights and freedoms, from having to face lawsuits against whites wearing the full regalia of citizen rights. He knew free blacks would be annihilated in court every time under such conditions of spurious citizen equality under the law.
Having spent decades representing free blacks in case after case, Taney was an expert on their treatment under the law, as he showed in his ingenious maneuvering in Legrand v Darnall in 1829 to win Supreme Court affirmation of the principal that all slaves bequeathed property by their masters were thereby manumitted by implication, deftly evading the question of whether the slave Nicholas Darnall, Taney’s mulatto cousin and friend, had standing in federal court. Taney explained his handling of the case in his Dred Scott ruling and commented that there were many ways blacks could become parties in federal cases without having standing to sue or be sued as citizens in diversity.
So in a clever turnabout, Taney had actually granted blacks a kind of negative privilege that he had denied to corporations, the privilege to lack standing to be sued in court while still retaining the ability to bring suit in federal court on their own behalf through procedural sleight of hand. Under such circumstances, it would only be a matter of time before corporations began to hide themselves behind free blacks to avoid being sued, thus positioning free blacks as indispensable legal instruments of liability risk management for corporate lawyers. In the end, corporations themselves would simply begin to demand that blacks be granted standing to be sued so as to enable them to reach other corporations trying to get away with bilking them by hiding behind free blacks. Corporate lawyer legerdemain would then ultimately drive the law in the direction of granting blacks full citizenship rights in order to maintain the integrity of business contract law.
Thus when Taney died in 1864 he had left the status of corporations clearly defined as non-citizen artificial persons whose privileges and immunities were strictly limited to those explicitly granted, not just implied, by their state charters and laws pertaining to them, and thus strictly subordinate to citizens under the law. Taney had made unconstitutional any attempt to deploy state or federal power to construct or preserve caste hierarchy among citizens, rebuffing repeated attempts by corporate lawyers to get the Supreme Court to amplify the citizenship of the wealthy through grants of citizen rights to corporations. Corporations, the robot minions of the wealthy, would never be permitted in Taney’s America to stand equal to the common citizen under the law, and in so doing lift their wealthy masters above the law to make common citizens every bit the slaves of those masters as the corporations were.
Unfortunately, the ratification of the Fourteenth Amendment in 1868 with Owen’s original Civil Rights Clause replaced with Bingham’s version that relies on the Privileges and Immunities Clause, and the triumph just a year later of the Curtis interpretation of the Privileges and Immunities Clause in Paul v Virginia, undid Taney’s work. The victory that hordes of corporate lawyers could not bend Taney to give them for thirty years, they managed to wring out of the Salmon Court only four years after Taney’s death. By allowing each state to construct U.S. citizenship in its own chosen ladder of gradations, it enabled states to reduce the citizens on the lowest rung, blacks, to a condition below that in which Taney had placed corporations. The Supreme Court managed to equalize the robot slaves of the wealthy, their corporations, with common citizens, thus making those citizens effectively their slaves as well.
Corporations finally had their corporate amplification of the rights of corporate directors, officers and shareholders over the rights of other citizens. Directors’, officers’ and majority shareholders’ control over a corporation amounted to super-citizen status, with minority shareholders reaping the profits if not the enhanced power. Just as anti-miscegenation laws deployed state power to rigidify lineage-based caste hierarchy, the Fourteenth Amendment as warped by Paul v Virginia deployed federal power to rigidify wealth-based caste hierarchy.
Justice Miller’s ruling in the Slaughterhouse Cases five years later was actually Miller’s attempt to forestall the damage by limiting the human-enslaving equality of corporate and human citizens to a few areas of federal law. Miller knew exactly what the corporate lawyers had done in Paul v Virginia, and in his private letters he bemoaned the fact that so many of his brethren on the court had come from the ranks of railroad and bank lawyers. The Cruikshank decision four years later only finalized Miller’s tourniquet with an amputation of any hope for actual equal citizenship under the law, preserving the stump of citizenship with only its barest meaning of naked legal personhood. The aristocrats had won, and they had planned to win even bigger to accrue full civil rights to corporations by using blacks as their sympathetic proxy, but Miller saw through their ruse and bound up the Fourteenth Amendment’s Privileges or Immunities Clause in an interpretive straitjacket, to contain the corporate monster it had become.
Miller must have realized as well that the other surreptitiously decided pro-corporate result in Paul v Virginia had been Field’s uncritical affirmation of Curtis’ argument that the federal Commerce Power in its dormant state would invalidate the Virginia law requiring insurance agents from a New York company to register with the state and pay a fee before operating in Virginia, if only insurance policies were actually “articles of commerce.” Thus Field in this other way again ostensibly rejected Curtis’ claim for his corporate plaintiff, but in so doing set a sideways precedent that cleared the way for a sweeping nullification of all state laws regulating out of state corporations if those state laws lie anywhere within the giant shadow of the dormant Commerce Clause.
Taney had fought a long pitched battle in the 1840’s against a politically motley power-hungry majority arrayed against him on just this issue, each member of the majority wanting to clobber state sovereignty, state police powers and the Tenth Amendment with the dormant Commerce Clause for his own purposes. The best Taney could do was eke out a compromise that Curtis himself delivered in Cooley in 1852, which remains the only significant ruling Curtis delivered in his short tenure on the Court, and it was significant only in what he conceded to Taney’s point of view on the matter. To Curtis’ credit, however, he did publicly support Taney’s attempts to restrain the unconstitutional excesses of the Lincoln Administration during the war.
Straightening Out the Record
Thanks to Bingham’s far-seeing oracular ambiguation, however, it has never been too late, nor is it now too late, for the Supreme Court to correct its course and take up the Taney Sovereign Citizen Equality construction of the Constitution. It could have done so at any moment from the time Dred Scott and Covington Drawbridge were handed down, and it could still do so now. To illustrate this point, I will now go through a series of landmark rulings on civil rights and corporate rights, and show how the Court in each case could have decided to correct course and follow the Taney Sovereign Citizen Equality construction of the Constitution to arrive at much better decisions than the ones they arrived at in historical reality.
Subsequently we will use the acronym “TSCE” to refer to the Taney Sovereign Citizen Equality construction of the Constitution we have described in the foregoing.
If a majority of the Slaughterhouse Court had acted on the basis of Taney’s Sovereign Citizen Equality construction of the Constitution, they would have cited Charles River Bridge to say the state has authority to charter monopolies in the public interest, and cited Covington Drawbridge to set aside the butchers’ Equal Protection claim because the slaughterhouse monopoly, being a corporation, need only be treated equally with other non-citizen artificial persons. Given that it lacks the basic Bill of Rights guarantees that butchers as citizens enjoy, the state was not placing it above citizens by granting it the monopoly.
As a creature of state law with no rights other than those tailored to achieve a specific public purpose, the slaughterhouse monopoly presents no danger to the butchers’ equal rights as citizens, nor their sovereign rights as citizens above those of corporations as their non-citizen servants. The corporation, as the collectively indentured servant of all the state’s citizens, cannot be said to abridge the rights of any of the citizens it serves, except by the consent of those citizens through their equal voice in the state government.
The Cruikshank Court, if taking a TSCE approach, would have overturned both Slaughterhouse and Paul v Virginia as blatant violations of stare decisis in regard to Dred Scott. The ruling would go something like this:
All rights of citizenship in the Constitution were denied to blacks in Dred Scott on the argument that those rights include full Bill of Rights protections for citizens of any state against all laws of any other state by virtue of the Privileges and Immunities Clause. The Fourteenth Amendment declared all blacks citizens in the meaning of the Constitution, and therefore vested blacks with full Bill of Rights protection against all state laws, even in their own home states by virtue of the Equal Protection Clause. By violating stare decisis in Paul v Virginia without giving any justification for it whatsoever, the unanimous Salmon Court capriciously and arbitrarily deprived blacks of the full and robust citizen rights and equality that Dred Scott promised them should they ever become citizens, and that the Fourteenth Amendment gave them by making them citizens.
The framers of the Fourteenth Amendment replaced a draft version of its civil rights provision that mirrored the language of the Civil Rights Act of 1866, which had directly challenged the Court’s finding in Dred Scott that Congress had no power to make blacks citizens, with one that referred instead to the Privileges and Immunities Clause, and the replacement wording could only have had a similar meaning to the draft version it replaced upon the assumption that the Privileges and Immunities Clause guaranteed full Bill of Rights protection to traveling citizens in other states against state laws there, just as Taney had ruled in Dred Scott. Thus the replacement was clearly made to make the provision consistent with Dred Scott in that regard instead of repudiative of it. The Fourteenth Amendment also included the Citizenship Clause, tacitly acknowledging the continuing authority of Dred Scott and the possibility that it might not ultimately be overturned or remain forever overturned, leaving the rights of the Negro forever uncertain in the face of a possible constitutional deficiency in the Civil Rights Act of 1866, in respect of Dred Scott‘s findings.
The Equal Protection Clause appears to have been included to bridge the gap between the Dred Scott construction of the Privileges and Immunities Clause and the framers’ preferred construction, which included an implied Bill of Rights incorporation into every state’s Constitution. The intent of the framers was clearly to assure that whether the Supreme Court adopted the framers’ construction of the Privileges and Immunities Clause, or affirmed Dred Scott‘s construction, the result would be the same in achieving their frequently avowed purpose of applying the Bill of Rights to all state laws as applied to all citizens of all states.
Thus it is clear from the record and its plain language that the Fourteenth Amendment, whether on the basis of the framers’ or the Dred Scott court’s construction of the Privileges and Immunities Clause, did apply the Bill of Rights to all state laws as applied to all citizens of all states.
Paul v Virginia capriciously set aside the Dred Scott construction of the Privileges and Immunities Clause, but it did so a year after the Fourteenth Amendment had been ratified by the states. Thus the states ratified it on the understanding that it referred to the construction of the Privileges and Immunities Clause found either in Dred Scott, which was the controlling construction under the law at the time, or in the record of the Framers’ construction of it.
As the Court found in Cooley and in Dred Scott, a constitutional provision or a statute forever has the meaning it had when it was made into law. Redefinition of the terms used, whether by judicial ruling or by unrelated legislation, or by general usage or definition by executive action, cannot change the meaning of the terms as they apply in the law that predates those redefinitions. Since Paul v Virginia‘s construction of the Privileges and Immunities Clause fundamentally alters the definition of “citizen” and “privileges” and “immunities” in the Constitution, it has no effect on the meaning of those terms in the Fourteenth Amendment, even if we were to let stand its construction of the original Privileges and Immunities Clause.
Thus even without overturning Paul v Virginia we must overturn the Slaughterhouse Cases, as its majority opinion unjustifiably read the Paul v Virginia construction of the Privileges and Immunities Clause backward into the Privileges or Immunities Clause of the Fourteenth Amendment, effectively rewriting that recently ratified provision in a brazenly unconstitutional act of judge-made legislation.
But we will simplify matters by overturning the facile construction in Paul v Virginia of that original clause, not merely point out its inapplicability to the Fourteenth Amendment. Dred Scott is hereby restored as giving the proper construction, and the construction to be observed by all courts in the nation, of the Privileges and Immunities Clause, and hence also of the Privileges or Immunities Clause whose meaning derives from it. Indeed we recognize that Dred Scott has always and continuously given the controlling construction of that clause from the time it was handed down forward.
The mobs of Negro-hating thugs who seek to be protected by an invalid ex post facto redefinition of the clearly intended terms of the Fourteenth Amendment to match the aberrrant construction of the Constitution in the Paul v Virginia ruling, that did not even acknowledge the Dred Scott precedent it presumed to set aside without reason, is vehemently denied. The Enforcement Act must be interpreted under the proper construction of the Privileges or Immunities Clause of the Fourteenth Amendment, which vests the victims in this case with all the rights the hateful mobs are accused of violating by their vicious mayhem, and by restoring the proper meaning to both the Privileges or Immunities Clause and the Privileges and Immunities Clause, we release the law to do its just work in redressing the wrongs committed by these cold-blooded, violent minions of fratricidal intolerance.
The Lochner Court, if taking a TSCE approach, would have held that, while bakers who are citizens may not be deprived in general of their right of free contract, and while states may not restrain the right of any citizen to enter into contracts the citizen sincerely believes he or she can fulfill safely and in maintenance of good health, nonetheless the state may prohibit corporations in general from entering into or demanding fulfillment of contracts with any citizen that, in the view of that citizen, endangers the health, safety, welfare or morality of the citizen or of other citizens of the state or of other states,
Thus any citizen may obtain a court order nullifying any contract with a corporation on a showing that in the citizen’s sincere and rational opinion the fulfillment of the contract would imperil the safety, health, welfare or morality of the citizen or of other citizens. And if a corporation claims that a citizen has entered into a contract, but the citizen disputes that the contract was validly consummated, a showing by the citizen that the purported contract would be against the interest of the citizen’s safety, health, welfare or morality, or against that of other citizens, would be sufficient to dismiss the suit.
This would place bakers in a position of authority over their freedom of contract that would allow them to organize formally or informally into a mutual benefit association and speak with one voice to corporate employers to declare what working hours and conditions shall be considered by them, the citizens who are bakers, to be non-injurious to their health, safety, welfare and morality.
This would differ from union collective bargaining under closed shop in that no individual citizen would be bound by this declaration, nor bound to maintain it once joined in it, for being bound to rigid safety specifications that may prove inaccurate to real working conditions later on would surely be rationally regarded by any individual baker thus imperiled as a contractual obligation that is injurious to the baker’s health and safety, and thus nullifiable through an appropriate showing in suit.
Yet this citizen’s-interest nullifiability of citizen contracts with corporations dispenses with any need to close shop. The corporation or corporate industry cannot use divide and conquer or individual secrecy rules to prevent organized demands from arising among its employees, because each individual employee has the right to nullify the contract on his or her own rational basis tested showing that the contract is contrary to either their individual interest or to the public interest.
Thus even if the employees never communicate or coordinate with each other at all, their common concerns would simply emerge from the pattern of their individual nullification actions in the state courts, or federal courts if the citizen is from a different state than the corporation. And all potential scabs who are citizens would have the same right of nullification, and would themselves be unlikely to put up with the oppressive conditions for very long.
Non-citizen natural persons, however, could be hired as scabs by a corporation, but citizens could then simply pass laws banning such persons from working in those jobs. Better yet, citizen employees could simply demand that corporations write nullifiability rights equal to those of citizens in all contracts with non-citizens, and declare that the lack of such provisions in non-citizen contracts constitutes a danger to the welfare of themselves as citizens, and of all citizens, as well as of non-citizens among the state’s inhabitants generally.
Citizens’-interest and public-interest nullifiability, then, replaces all strike and other industrial action with a simple right of individual supremacy of any citizen over any corporation in contract rights.
A transitivity rule would also have to apply to allow a subcontracted citizen to nullify a contract with another citizen contracted in turn with a corporation, and to any recursive iteration of subcontract. The nullifiability of corporate contracts with citizens would thus be transferrable to all recursive subcontracts of that citizen with other citizens, for the recursively subcontracted citizen to nullify.
Revisiting Pace v Alabama
Dred Scott clearly invalidated all anti-miscegenation laws as applied to out-of-state citizens, and the Fourteenth Amendment’s Equal Protection Clause extends that ban to cover in-state citizens as well. Thus a TSCE ruling would have summarily voided all anti-miscegenation laws across the country as repugnant to the definition of citizenship inherent in the Privileges and Immunities Clause.
Revisiting Plessy v Ferguson
The Plessy Court, if taking a TSCE approach, would have struck down all segregation laws as state enforcement of social hierarchy. The Plessy ruling directly contradicted Taney’s ruling in Dred Scott that any anti-miscegenation law is fundamentally incompatible with citizenship and cannot be constitutional if it bans any citizen from marrying any other citizen. In Plessy it was stated:
“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority.”
If the Plessy Court had followed Dred Scott, it would have ruled just the opposite, that segregation of any kind is indeed a badge of inferiority and therefore forbidden by the Constitution to be applied to any citizen, even without any appeal to the Thirteenth Amendment or the Equal Protection Clause of the Fourteenth Amendment.
Dred Scott plus the Citizenship Clause in Plessy would have equaled the resounding overturning of all segregation laws applied to any citizens, period.
The Korematsu Court, if taking a TSCE approach, would have struck down all segregation laws and cited Merryman to denounce the executive order interning all persons of Japanese descent as unconstitutional, not only because it merely enforces social hierarchy, but because it does so by flagrantly and en masse suspending habeas corpus. It would have issued an injunction invalidating any right of any agent of the federal government to carry out the order, and authorizing all state militia, law enforcement agencies and citizens to resist any attempt to enforce the order by any means necessary, including the arrest and detention of any agent of the federal government attempting to enforce the order. It would have declared anyone aiding or abetting or directly enforcing the order to be a criminal acting individually and outside of any government authority, personally and individually culpable for their crimes as if acting entirely alone in the capacity of a citizen and without any hint or color of government authority.
There would have been no thought whatsoever as to any compelling state interest that would justify violating a citizen’s rights under the Constitution, or doing so in a manner that so heinously enforces social hierarchy. A citizen’s rights are absolutely inviolable under the Constitution. It would vehemently strike down an order that so flagrantly annihilated the rights of even one citizen, never mind an entire multitudinous class of citizens and their non-citizen family members. Given the flagrant unconstitutionality of the executive order, it would have struck it down entirely, even though the authority to detain non-citizens might be upheld under a narrowly tailored executive order for that purpose.
Revisiting Brown v Board of Education
In Brown v Board of Education a divided Supreme Court issued a vague unanimous ruling declaring unconstitutional all state laws forbidding black and white children from attending public schools together. The only remedy it offered was a vague directive to federal district court judges to rule in favor of any suits brought by parents of black children to compel school boards to end desegregation as soon as those segregationist-dominated school boards felt they could.
The result was a regime of minimalist compliance from school boards leading to token desegregation, usually involving minority-to-majority transfer options and race-proxy criteria for pupil siting. Ten years later perhaps one in a thousand black students in the Deep South were attending school with whites. Greater integration in the border states still only had token mixes of blacks in predominantly whites schools and vice versa.
Even after the Court followed the lead of the Kennedy Administration in taking a more aggressive stance towards desegregation enforcement, starting with its reversal in Cooper of its endorsement of gradualism in Brown and culminating in its upholding of the constitutionality of forced busing in the 1970’s, the ultimate impact of school integration as a whole was merely the segregation of housing at the school catchment area and school district levels, as white families moved farther and farther out of black neighborhoods to avoid their children having to attend schools with majorities or substantial minorities of blacks.
By forcing all the children, the citizens least prepared for the job, to lead and guide the rest of the people, all the adults, in working through the interpersonal, social and institutional complexities of racial desegregation, Brown v Board of Education doomed the entire project of racial desegregation as a whole. Today we live in the enduring aftermath of that project’s abject failure.
This could have been avoided. We have seen already how taking Taney’s construction of Article IV in conjunction with the Fourteenth Amendment’s Citizenship and Equal Protection Clauses would have resulted in reverse results in Cruikshank, Lochner, Plessy v Ferguson and Korematsu, even if each case were the first in which Taney’s construction had been applied. It would have have concurred with Brown v Board of Education as to the unconstitutionality of school segregation, but would have established a clear and effective remedy that did not violate anyone’s citizen rights.
Since the Equal Protection Clause serves only to filter each state’s powers through the Bill of RIghts as applied to its own citizens as well as to citizens of other states, and to require it to treat all non-citizens equally with each other, it would play only a personal jurisdiction role in a TSCE decision in Brown v Board of Education. The case on its merits would be decided by direct application of the Bill of RIghts and the principle of no state support of social hierarchy. The decision that segregation of schools is unconstitutional would have been reached in one sentence:
“No state may segregate any citizens from any group of citizens holding the balance of power in the state.”
It must be first understood that compulsory education itself almost counts as a violation of the Thirteenth Amendment under TSCE, since it forces children to labor under involuntary confinement at the direction of another person. But a child has no volition under the law, cannot give or withhold legal consent, and thus, in effect, is in that sense like an indentured servant of her or his legal guardian until adulthood.
But unlike an indentures servant, her legal guardian is in fact also his or her servant as well, and thus by reflection a child is truly an indentured servant only to him or herself, indentured for the purpose of learning to become a self-sufficient and responsible citizen. Thus she or he may not be used for any other purpose than to learn to exercise the rights of a citizen, and carry out the duties of a citizen. Any other use of a child is a violation of that child’s sovereignty as a citizen.
Indeed, this understanding that children in our republic are, in effect, all crown princes and princesses, and all need to be raised to carry the weighty responsibility of sovereignty, was commonly emphasized in the first few decades after the American Revolution in publications and public discourse over child rearing and children’s education.
Since the child is incapable of volition, her or his compulsory education is a-voluntary, not involuntary, and therefore is not a violation of the Thirteenth Amendment. But the child’s sovereignty is exercised on her or his behalf by her or his guardian, and thus the guardian has full discretion to decide how to educate the child to exercise the rights and carry out the duties of a Sovereign Citizen, and can only be held accountable for making poor decisions in this regard in view of the overall results of those decisions.
Thus states may not constitutionally require any specific method or content in the child’s education. It may, however, offer specific methods and content through a public education system if it is optional for the child to attend it.
Having explained how Taney Sovereign Citizen Equality leaves a guardian to take or leave, on behalf of a child, whatever the state offers in the way of education, all that remains is to assure that whatever the state does offer does not create or sustain social hierarchy.
But this inquiry cannot be confined to the method by which the state delivers education to children. Social hierarchy is a pervasive dynamic system in society. To assess the impact on social hierarchy of the state’s actions regarding how to offer education to children, one must look at the state’s options in the context of everything else the state may also be doing that creates or sustains social hierarchy.
In short, a TSCE ruling in Brown v Board of Education would have immediately expanded its scope to the full gamut of social-hierarchy-enforcing state action, and would only ban school segregation in the context of a clean sweep of all the state’s laws and administrative procedures that enforce social hierarchy.
The Court would thus look at how the elimination of school segregation must fit into an overall remedy for eliminating all social hierarchy enforcement by the state. This is not to say that the remedy must eliminate all social hierarchy. The state need not be in the business of social engineering. On the contrary, its purpose must be to remove itself as a force for social hierarchy, but only in a systemic manner that naturally results in the dissolution of social hierarchy and the maximization of social mobility.
The Court would consider, for example, that as long as blacks have substantially less wealth and income than whites, and less access to credit, there will be a tendency for school desegregation to become a driver for housing segregation as whites flee neighborhoods to prevent their children from attending school with blacks, or with too many blacks.
The Court would conclude that school desegregation would ultimately reinforce racist social hierarchy if implemented in the context of the potential for white flight. Thus it would first target equal access to housing, while at the same time addressing the reasons why whites would rather leave a neighborhood than allow their children to attend school with blacks.
The state would also be required to take measures to achieve racial proportionality of attendance at desegregated schools. Since the school environment is one created and managed by the state, it must not reflect the social hierarchies of the society, because in doing so it would work to reinforce and perpetuate those hierarchies. Rigidity of social hierarchy is inimical to republican government, and the Constitution only encourages, never restrains, all use of lawful power to alleviate that rigidity.
When the rare district court judged applied a strong hand to desegregate a school district after Brown, the common response was for the school board to threaten to shut down the public schools there altogether. A TSCE empowered district court judge would not have flinched and cowered at this, but would instead have called the bluff, and declared that if one school district shuts down, then every public school in the state must do the same, lest the state violate the Equal Protection Clause. Meanwhile, the judge would turn the shutdown argument back against the defiant school district, declaring that if the school board does not adopt a plan that achieves desegregation by appropriate incentive to legal guardians of children to enroll their children in sufficiently mixed schools by a certain deadline, the court would declare the entire state’s public education system an unconstitutional use of state police powers to enforce social hierarchy, and shut it down immediately.
Forcing children to go to a particular school, however, cannot be done as it would violate their Citizen Sovereignty. Children’s guardians must be given the choice of them attending any school in the state. Private housing discrimination against blacks must be monitored and prosecuted as a violation of black children’s right to unsegregated education. Any private discrimination of any kind that discourages blacks from moving their children into school districts with top schools in particular specialized areas should be prosecuted as well for that reason.
Magnet schools should be created in every district for specialized training in a wide variety of areas, with open enrollment criteria, and busing provided for any students who are not in walking distance. Voluntary busing for the individual purpose of obtaining specialized training, not forced busing for the state purpose of social engineering, would dampen and defuse and isolate and expose any racist resistance against black children being bused into a white neighborhood where a magnet school is located.
The effect would be to bring students together of different races who have common learning interests and talents. This would give them both the opportunity and the excuse to associate in mutual respect, appreciation and cooperation in common endeavors. The same would be true of the teachers, who would also be moved to magnet schools based on their subject matter expertise and interest.
Rather than mandate this plan, however, the Court would simply sketch it out clearly enough to show such a plan is possible to imagine. They would then require all school boards to draft such plans within 18 months, and district courts to review and approve all plans within 6 months of submission.
The key element the plans must include is some strong incentive for parents to place their children in each particular school that denotes a common educational interest for their children, irrespective of race, which can serve to overcome the white supremacist pressure to place one’s children, all other things being equal, with other white children instead of with black. Every school must have at least one specialized educational attraction built into its program that is unavailable anywhere else in the district. By making all the schools in each district equal in quality but educationally different, the school district would force no one to choose between prejudice and quality, but everyone to choose between racial preference and educational specialization preference.
In reviewing plans, the district courts would be required to use the following test: A school district’s plan must offer open school choice to all parents in the district, and must clearly refuse to accommodate segregational preferences among white parents in their choice of schools for their children. It must demonstrate its refusal by implementing a school differentiation and child pupil assignment plan that strongly advantages the academic opportunities of children whose parents choose schools for their children without regard to the higher proportion of blacks in the student body, or to any factors that show any statistically significant correlation with higher proportions of black students.
States are also required to redraw school district boundaries on the basis of some reasonable set of criteria that in no way statistically correlates with the housing segregation of whites from blacks. There should be no majority black school districts if at all possible, and to the extent possible no white school districts with less than half the proportion of black children than the proportion of black children in the state as a whole.
The plans must be reviewed every two years, and where it appears children are being deprived of educational opportunities by white supremacist segregationist motivated school choice by their own parents, the district must implement sufficient academic specialization focus in each school failing to meet the desegregation statistical threshold to overcome the white supremacist bias among enough parents to surpass that threshold. Every two years the specialization incentives must increase until every school has met desegregation statistical thresholds.
In this way, every parent who values the choice of specialized education for their children over their choice of specialized racial association for their children will get preferred treatment. And those who do not, will get what is left over. This does not punish parents for having white supremacist preferences, but it does punish them for prioritizing their white supremacist preferences over the educational advantage of their own children. And it does not deny basic, equal, quality general or specialized education to any child. To the extent they are deprived of their or their parents’ choice of specialization in their studies, it is their parents who are depriving them of it on the basis of their irrelevant racial bias, not the state,
Revisiting Naim v Naim and Loving v Virginia
See Pace v Alabama above. The rulings in Naim v Naim (1955) and Loving v Virginia (1967) under TSCE would have been identical to what it would have been in Pace v Alabama.
Revisiting Bowers v Hardwick
To the extent homosexual conduct in specific sex acts may be deemed by a State to endanger the health, welfare, safety or morality of its people, the State may outlaw such acts, to the extent the State’s own constitution permits them, but to the extent the State attempts to enforce such prohibitions, the Fourth and Fifth Amendment obstacles to search and seizure of evidence of such intimate acts engaged in within the homes of married couples, and the immunity of married couples from testifying against one another, work to render any such prohibitions irrational and tending to encourage unconstitutional state action by state law enforcement agents. Thus any such prohibitions as applied to married couples must be struck down as repugnant to the Constitution.
Laws forbidding homosexual sex acts performed outside the home (including temporary lodging) or outside of marriage, however, may theoretically pass Constitutional muster, to the extent the State’s own constitution permits them, but to the extent they tend to stigmatize and discourage differentially, in correlation with citizens’ sex or their sexual preference, the full and equal exercise of their rights, even such prohibitions may be found unconstitutional when the effective impact of their enforcement upon the institution or support of social hierarchy among citizens is taken into full consideration.
Citizens of other States do reserve all their unenumerated Ninth Amendment rights against the State of Georgia’s laws, but unlike in a Federal Territory that reservation of rights must be balanced against State of Georgia’s sovereign police powers. The Full Faith and Credit Clause requires the visiting citizen’s home State to subject its citizens to Georgia’s laws when they are within Georgia’s territorial jurisdiction, but only to the extent Georgia’s laws are not repugnant to the home State’s own laws that are designed to sustain the health, welfare, safety and morality of its own citizens and inhabitants while traveling outside the State.
A State’s laws can have extraterritorial effect over its own citizens and inhabitants if its own citizens have designed and approved those laws with such application, but only to the extent they are not repugnant to the laws of the other States in which the home State would like them to apply. Thus if a State deems it harmful to the morality of its citizens to submit to laws restraining certain freedoms they enjoy in their home States and which are regarded as fundamental liberties in their home States, then the Constitution requires all other States to extend Full Faith and Credit to any precedent case law in the home State absolving its citizens from violating such repugnant laws in other States. Yet to the extent the prosecuting State deems intolerably harmful to its own citizens and inhabitants any allowance of citizens of the other State to exercise what their home State deems a fundamental liberty in violation of the prosecuting State’s laws, the home State is also bound by the Full Faith and Credit Clause to yield to the prosecution of its citizen for that violation while in the other State.
One way for States to resolve isolated incidents of this kind of irreconcilable conflict of laws is for the home State to issue an extradition order for prosecution of its own citizen for violating the other State’s law, so that the citizen is forcibly removed by the other State’s authority back to the home State, where the charges are then peremptorily dropped against the citizen. But this method of resolution will not be workable if the frequency of the violation, or the extent of the perceived harm by the prosecuting State, is significant, and in any case it is only a voluntary solution that must be worked out between the States in conflict.
Absent such an amicable workaround to the conflict of laws, the federal judiciary may resolve such cases in equty if they are only infrequent and not perceived as a great threat by the prosecuting State, but may require establishing legal precedent in diversity if the prosecuting State deems the overall impact of the violations from citizens of the other State or States to be intolerable. In that case, the federal judiciary would most likely establish a balancing test between the prosecuting State’s police interests and the extraterritorially rights-assertive State’s police interests. In most cases the prosecuting State’s interests will tend to prevail, since territorial jurisdiction tends to outweight personal jurisdiction in the application of State police powers.
However, the Equal Protection Clause then operates in two directions to uphold the rights of Georgia citizens engaging in prohibited acts outside of marriage. First, the prohibition must not tend to sustain or increase social hierarchy of married people over unmarried people, and second, it must not tend to sustain or increase social hierarchy of out-of-state citizens over in-state citizens. In the latter case the question is whether the prohibition tends to reduce citizens of the prohibiting State to a lower social position than citizens of other States.
The second question would turn on whether the prohibition is the best method of achieving the State’s general objective of protecting the health, safety, welfare and morality of its people as compared to how those objectives are achieved in regard to similar matters under the laws of every other State. If another State has an established and proven method of achieving the objective that requires less restraint of the rights of its citizens, then Georgia must adopt a method at least as liberal.
The first question turns on the impact of the prohibition on unmarried citizens, whether it tends to coerce citizens into marriage who might otherwise not choose to associate in that manner, and whether it tends to stigmatize unmarried people or deprives them of life, liberty or property in a manner that married people are not thus denied it.
The first question thus brings us to the edge of substantive due process, but just to the edge. It seems fairly evident that any significant and systematic deprivation of life, liberty or property, or any systematic burden that causes such deprivation, if it works more severely upon one class of citziens than on another class, it by definition institutes and sustains social hierarchy of the less burdened class over the more burdened class. Thus any law that tends significantly to result in the deprivation of citizens’ life, liberty or property must have the same depriving impact on all citizens, or it violates not only the Equal Protection Clause of the Fourteenth Amendment, but the very definition of citizenship under the Privileges and Immunities Clause in and of itself.
Thus if out-of-State unmarried citizens are more heavily deprived of life, liberty or property by Georgia’s anti-sodomy law than out-of-State married citizens, then Georgia’s anti-sodomy law must not be applied against out-of-State citizens at all, lest it institute or sustain social hierarchy among them in violation of the Privileges and Immunities Clause. But if out-of-State citizens are thus exempted from the law’s restrictions, in-State citizens must also be exempted lest the law violate the Equal Protection Clause of the Fourteenth Amendment.
The final result of this federalist calculus of immunities and privileges is that the Georgia anti-sodomy law must be struck down as unconstitutional in its entirety.
Though the route to arriving at this conclusion seems roundabout, the round trip is necessary to respect the delicate balances inherent in our federalist system of government, and while the elaborate pathway to arrive at this result in this case may seem unnecessarily convoluted, there are other cases in which the respectful path taken here sets a valuable precedent by which rights and duties, and conflicts of law, may be resolved from fundamental principles of federalism in ways that would not be possible under more direct, blunt and ultimately anti-republican means of adjudication.
Revisiting Citizens United v FEC
Under TSCE a corporation has no right not explicitly granted in its charter, and is not a citizen under the Constitution, thus it has no rights at all in States other than its home State, the State that has chartered it, except to the extent each other State explicitly or implicitly grants it a subset of the rights it is granted in its charter. Thus unless its charter explicitly grants it the right to speak politically, it may not, and any political speech made by its agents must be considered the individual action of those agents and not an action of the corporation at all.
Any expenditure from corporate funds for political speech not spent in conformity to an explicitly chartered right to make such speech is thus a form of embezzlement. Any agent of the corporation who fails to act in due diligence to prevent or promptly expose, correct and punish such embezzlement is aiding and abetting in the embezzlement.
Every shareholder and agent of every corporation already has whatever free speech rights the law affords them. They have no claim to exercise additional free speech rights under a corporate persona. If the State includes any rights to speech under a corporation’s charter, it is to aid in the accomplishment of the State’s overall public purpose in issueing the charter, not to increase the speech rights of the corporations shareholders or agents, and certainly not to entitle its shareholders or agents to any such extra rights.
Early in our nation’s history property qualifications for voting in every state was overturned first by massive disobedience, then by legislative affirmation of the popular status quo. An insurrection and civil war, the Duerr War, was actually fought over the issue in Rhode Island in the 1840’s, resulting in a stalemate in which two rival governments claimed legitimacy for nearly a decade. When the question of which government was legitimate came before the Taney Court in 1849, Taney ruled for the majority that the Supreme Court lacked jurisdiction to decide the matter because it was essentially political, not judicial, in nature. This was Taney’s famous introduction of the “political question” doctrine into Supreme Court jurisprudence.
Benjamin J Curtis, who ascended at a relatively young age from his brief pit-stop on the Supreme Court to an apparently higher office as the chief advocate for Northern aristocratic corporate interests, deftly thwarted the egalitarian ideals of both the Jacksonian Democrat and the Radical Republicans, by inducing the Salmon Court to construct the Privileges and Immunities Clause in Paul v Virginia exactly as Curtis had unsuccessfully proposed to construct it in his Dred Scott dissent a decade earlier. In so doing he accomplished what Taney had blocked him from doing, which is to render the Privileges and Immunities Clause “unmeaning” and to “have no operation” as Taney so aptly declared for the 7-2 majority against Curtis in Dred Scott. In effecting his reversal on the construction of that clause in Paul v Virginia, Curtis got the Salmon Court to chain all human citizens down into the same dungeon of baseline zero privileges and immunities under State law to which Taney had relegated corporations in Covington Drawbridge the year after Dred Scott.
In effect, by eviscerating the Fourteenth Amendment’s Privileges or Immunities Clause, and thus equating non-citizen corporations with human citizens under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, Curtis reinstated the apportionment of political power by wealth rather than by household, undoing the post-Revolutionary de facto democratization of government Taney had helped first legitimize and enshrine into law with his activism as a young man in the Maryland state legislature to repeal all property qualifications for voting and to criminalize the then common practice of corrupt electioneering through distribution of food and liquor at voting places.
Today we live in a Curtis-architected political environment, hemmed in between the juggernaut of the aristocrats’ robot slave corporations and their captive federal government’s “compelling state interest” whip to keep those robot slave corporations, and their own subordinate human slaves and their hapless State governments, in line in the chain gang of service to the whims, proclivities and, most frighteningly, the megalomaniacal social engineering agendas of the wealthy. Nothing illustrates this fact more bluntly than the following declaration by Justice John Paul Stevens in his ringing dissent joined by three other Justices in Citizens United v FEC:
“The majority grasps a quotational straw from Bellotti, that speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation. Ante , at 30–31. Of course not, but no one suggests the contrary and neither Austin nor McConnell held otherwise. They held that even though the expenditures at issue were subject to First Amendment scrutiny, the restrictions on those expenditures were justified by a compelling state interest.”
Neither the majority nor the dissenting minority in Citizens United had any compunction about acknowledging the fundamental right of corporate robot slaves to claim on behalf of their masters superhuman turbo-charge-pumped uncensored conduits of speech into the marketplace of ideas, through which the wealthy are able to propagate elaborate tissues of half-truths inducing specifically intended popular belief in certain lies, drown out selected individual citizen voices through delegitimization campaigns in collusion with mercenary corporate mass media purveyors, and amplify selected citizen voices to forward the political aims of the wealthy, who remote control these political machinations of the masses’ frames of political and factual perception from behind the blast wall of the corporate veil.
In Charles River Bridge Taney ruled for the majority:
“The object and the end of all Government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the Government intended to diminish its power of accomplishing the end for which it was created. …
The continued existence of a Government would be of no great value if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations.”
If this principle of strict construction in favor of the maximal preservation of State power against its being “transferred to the hand of privileges corporations” is fit be applied to a corporate charter concerning a single bridge, how much more mandatory is its application to the Privileges and Immunities Clause and the Privileges or Immunities Clause of the Constitution? Applying it to the Constitution in the context of revisiting the Citizens United decision would compel a TSCE Court to reject the common presumption of the majority and the dissent in that decision that corporations have a presumptive First Amendment right of free speech, for nothing in the Constitution either requires or justifies such a presumptive transfer of sovereign-immunity imbued speech “to the hands of privileges corporations.”
To the extent a State’s charter for a corporation can be construed as granting the corporation a right of speech at all, that grant must be “to promote the happiness and prosperity of the community by which it [the State] is established,” and the permitted speech must serve at once both that end and the specific end for which the corporation has been chartered, not either or, and it must also do so in conformity to the Constitution’s guarantee of a republican form of government in each State. Taney’s construction of the Constitution promotes that end while minimizing any requisite diminishing of State power through its transfer or surrender to any corporation it charters, or indeed to the Federal Government itself.
State governments have little interest in the outcome of a contest for power between a Federal Government agency like the FEC and a State-chartered corporation like Citizens United. Its interest is uniformly in minimizing the aggrandizement of its own power by either party, while maximizing the extent to which the actions of each support each State’s own ultimate end, the welfare and happiness of its people. And it must seek to achieve this end with as little constitutional grant of power to restrain the rights of its citizens as possible.
A closer examination of the act of incorporation, however, is required to bring us to the heart of the matter presented in the Citizens United case. Although nowadays State executive agencies issue corporate charters, they do so only by direction from State legislatures, which originally chartered corporations through specific Acts. The authority under which corporations are chartered remains under the State legislature today, and the executive merely administers the process.
State legislatures are very limited in their political speech and for obvious reasons. They are elected directly by voters, so they should not as a body have any power to lobby voters. What they may not do directly, they may not do indirectly either. For this reason, no corporation, being the creature of a State legislature, has any legitimate authority under any State’s laws to lobby voters in any way. Thus by ruling in case after case that corporations are persons in the meaning of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the U.S. Supreme Court has effectively inserted into every State corporate charter a delegation of powers to corporations that neither the State legislature nor the Congress, nor the U.S. Supreme Court, itself possesses under their respective Constitutions. How can any of these government bodies delegate to corporations these powers they do not themselves possess? They cannot do so lawfully. In doing so, they illegally usurp the power they thus delegate.
But we must go further. Under today’s Curtis-architected political environment, political power is apportioned as much by wealth as by vote, and thus to the extent State legislatures or the U.S. Supreme Court authorizes corporations to engage in commercial speech, to the extent that speech acts to lobby rather than even-handedly to inform public opinion for or against certain consumer choices, that speech, every bit as much as political speech lobbying voters, acts to influence the allocation of political power in a manner that directly rebounds to the benefit or detriment of the fate of specific legislation or candidacies for public office. Thus even the right of corporations to speak commercially to lobby rather than merely inform consumers amounts to an illegitimate exercise of power by the State legislature, and exercise of power it does not have, and cannot have without undermining the specific guarantee under the Constitution of a republican form of government in every State.
Under TSCE, individual citizens could bring suit to silence corporations whose speech can be rationally established as the cause of some public ill or private harm against the plaintiff, and judges would be required to rule strictly in favor of the reservation of power from corporations to act injuriously to citizens in every case. Thus the wealthy would gain no political amplification of their own speech through their investment in or control over corporate speech. This would be good for corporations, for they would then once again be legitimately empowered to lobby consumers without the risk of undermining the integrity of the State’s republican form of government, but they would still have no authority to lobby voters or legislators in any way.
As creatures of the State legislature, corporations must be as silent as the legislature itself on its own pending legislation, on its own members’ re-election campaigns, and on any other elections. The majority in a State legislature certainly may not legally spend public funds on a mass media campaign in favor of legislation it is planning to bring up for a vote, nor can it do so after it has passed a piece of very unpopular legislation that it hopes to persuade voters to view more favorably in time for the next legislative election campaign season, nor can it issue resolutions or fund campaigns for or against candidates for executive office.
For the same reason, State legislatures have no authority to charter corporations with the power to do the same, nor does the U.S. Supreme Court have any authority to inject such powers into corporate charters through judge-made laws of a kind even the Congress has no authority to pass, namely, laws effectively amending the Constitution to grant Bill of Rights reserved rights to each State legislature as if that body were a sovereign citizens in and of itself, with the authority to procreate at will as many offspring corporate sovereign citizens as it pleases to do its bidding, rather than the duly elected representative body of its citizens it truly is, with no inherent rights of its own.
Returning to our examination of the act of incorporation, it is clear today’s corporations are not actually owned by their shareholders, and indeed no corporation in the past that has limited the liability of its shareholders has actually established those shareholders as its true owner. Ownership necessarily entails ultimate total liability. By severing the tie of ultimately liability, the State legislature severs the tie of ownership, and converts shareholders into mere lenders.
Shareholder agreements are in fact money lease agreements. The founding body of shareholders acts as fiduciary intermediary between the shareholders and the directors who lease the money from the body of shareholders. When the shareholders appoint the directors, they are actually contracting with the directors to lease to them the capital funds deposited by the shareholders into the corporate bank account in exchange for share certificates of deposit, The directors borrow that money on an annual basis, and the shareholders hold annual meetings to renegotiate the terms of the lease with the directors and the officers they appoint to direct the operations of the business enterprise.
The same is true of non-profit corporations, except that instead of shares in a joint lease of funds, the capital is accumulated from grants, donations and member dues. The money, however, is nonetheless held in deposit by a shareholder body, and the money is no less leased from that body to the directors and the lease annually renegotiated just as in a for-profit corporation.
Some have argued that corporate directors and officers are more akin to owners than shareholders. That is only true, however, to the extent one identifies ownership with immediacy of control. Ownership, however, is most accurately defined as ultimate control. Directors and officers most definitely do no hold or exercise ultimate control over corporations, for with ultimate control comes ultimate liability, and directors and officers are always indemnified by corporations specifically because they are recognized as not being ultimately in control of or liable for the corporation’s deeds. And neither are the shareholders ultimately liable. Who, then is?
The answer ought now to be patently obvious. The State legislature creates the corporation, defines its existence and certifies it as a legal entity, regulates its operation, withdraws dividends out of its profits at will through its taxation power, and severs the ownership tie between the shareholders and the business enterprise by absolving the shareholders of ultimate liability for the corporation’s actions and debts. In thus relieving the shareholders of the defining burdens of ownership, the State legislature assumes those burdens on behalf of the citizens who created the State itself.
The people of each State in fact own all the corporations chartered in that State. And nothing makes that fact more clear than the phenomenon of “Too Big To Fail,” in which State governments, or the Federal Government on behalf of the States, “bail out,” which is to say exercise ultimate liability for, or in other words ownership of, the acts and debts of a corporation.
No one would argue that the State has authority to bail out a corporation it has chartered. And no one would argue that the State has authority to choose not to bail it out. The State is free to inject or not inject lifesaving capital into any corporation it charters. And it is free to call upon the assistance of the Federal Government for that purpose as well. This authority is inherent in the power to charter corporations. For no one would argue that the State has a similar authority in regard to sole proprietorships or private partnerships.
The State has no authority to bail out sole proprietorships or private partnerships because to do so would be to transfer public funds directly into the hands of private citizens. Yet the State may bail out any corporation it chooses precisely because in doing so it is merely transferring public funds to a publicly owned enterprise.
But if a corporation is owned by the State, why is the State not liable for its debts upon dissolution? The answer is very obviously because the Eleventh Amendment forbids anyone but another State or the Federal Government to sue the State for those debts, except to the extent the State consents to be sued for them, and no State would ever consent to such a suicidal thing as that. Nor would any State sue another State, or the Federal Government any State to recover corporate debts, for fear of starting a litigation civil war.
To the extent the outcome of elections and the outcome of legislative, executive and judicial decision-making are influenced by constituents in proportion to their wealth rather than to their vote, and to the extent the State delegates its power unequally with a bias toward the wealthy, State legislatures and the courts, corporations and executive agencies they create must be restrained from engaging in commercial speech or commercially biased activity of any kind. Obviously this would severely hamper traditional business practices. Only unbiased informational commercial communication would be permitted, and all marketing would be forbidden. While such a marketplace may sound idyllic in some sense, it would most likely prove completely inoperable and lend itself to corrupt regulation because the regulatory power of the State policing commercial speech would essentially dictate the winners and losers in the marketplace.
Under TSCE individual citizens may silence corporate speech and forestall corporate action in court by a mere showing of individual harm or harm to the public good, thus neutralizing the political bias created by the State legislature’s delegation of its power to wealthy investors in proportion to the number and value of shares those investors hold in corporations, and the degree to which some of those large shareholders also tend to gain appointment as directors and officers of corporations. Thus TSCE would allow the status quo manner in which States now charter corporations to persist, including the grant of broad latitude to engage freely in commercial speech to to lobby consumers, investors and business leaders to influence their commercial decisions.
Nowadays for-profit and even tax-exempt non-profit “public benefit” corporations are created by State legislatures through pro forma procedures administered by executive agencies, without any need for the incorporator to avow any particular public purpose or promise any particular public benefit in exchange for the privilege of incorporation. This may seem odd, particularly in regard to “public benefit” non-profits, but the reason for this practice is quite simple. The public purpose of your run-of-the-mill for-profit and tax-exempt non-profit corporation alike is to generate tax revenue for the State.
In the case of for-profits, this explains why States rarely take action to hold them accountable to any apparent public purpose at all, except the vague purpose of engaging in economic development while sharing the risk with the State. States permit, encourage, even in many ways require by law every for-profit corporation to prioritize the maximization of profit, market expansion and market share, often at the cost of consumer health, safety, security, morality or welfare. States do this for one paramount reason, to drive their corporate offspring to generate as much taxable revenue as possible for the State.
In the case of non-profits, the availability of enormous sums of foundation and corporate grant money that goes unawarded each year, the dues collected from members by membership non-profits and the enormous market for selling “wares of conscience” in the form of promised charitable, educational, scientific or religious services in exchange for donations, sometimes coupled with “incentive gifts” that tokenize the indulgence embodied in the gift, non-profit corporations raise enormous sums of capital every year, and never as much as is available in the market. Non-profits often also compete with for-profits in marketing and selling goods and services at market rates, or even engage in full-scale commercial production, research and development. While States do not collect taxes directly from these commercial activities of non-profits, either from their market income or from their expenditures, the capital non-profits accumulate from many otherwise untapped in-state and out-of-state sources are usually disproportionately spent in-state, creating jobs directly and, through purchasing, indirectly, and thus generating both income tax revenue and sales tax revenue downstream for the State.
Non-profits also tend to raise the public image of the States in which they are chartered and operate, potentially increasing the State’s overall attractiveness for out-of-state investment, immigration of highly paid professionals, tourism and additional non-profit clustering activity and headquartering.
States thus need look no further than the overall economic benefits of both for-profits and tax-exempt non-profits for the public good those corporations do for the State. Only when enough of their offspring corporations do such damage to the welfare of its citizens, or to the State’s reputation, that the short-term social losses outweigh the long-term economic benefits of maintaining a fundamentally economic mission for its entire corporate portfolio will a State consider altering the basic policy that equates the public benefit of all its corporations with the bottom line tax revenue they collectively generate for the State.
In truth a State likely looks also to a mix of economic factors to evaluate the overall public benefit it derives from its corporate portfolio, including market diversity, job creation, income inequality, etc. It is this out of this overall evaluation of the State’s economic well-being from which the sensibility of the majority in the actual Citizens United v FEC ruling springs. In its ruling the Citizen United Court waxed glowingly of the enormous benefit the State legislature gleans from the expert and insightful corporate speech of its massive stable of corporate entities when it comes to vital concerns of an economic nature that are continually pressing themselves upon the beleaguered minds of State legislators and their paltry staffs of mostly fresh-out-of-college policy aides, not to mention the even more beleaguered minds of voters on such difficult issues.
It is hard to argue with the basic rationale. The people own the corporations, and the corporations do their good work of generating jobs, tax revenue, food, shelter, entertainment, religion, science, education and charity or its more popular epithet among the younger indulgence-seekers, “social justice” for the people. Why shouldn’t the people also beneifit from the sage guidance on economically tinged political questions from the same public servant corporations who have been doing so much good for the people in the economic realm for as long as anyone can remember?
Indeed, there is no one alive today who can remember the early days of the republic, the days Taney remembered from his youth, nor the days Taney witnessed over the course of his life in which he saw the transformation of our nation from an agrian-artisan economy with some significant import-export activity, to a bustling manufacturing and service economy well on its way to becoming today’s metropolitan criss-cross of corporate inter-relations threading through the warp and weave of the average citizen’s daily existence.
Corporate directors and officers today are self-appointed public officials of a second executive branch of government created by State legislatures through their power of incorporation. The mission of this branch is to manage the economy of the State in a highly monetized manner that generates maximal tax revenue for the State, as well as fulfills the economic needs of the great majority of its consumers. Corporations chartered in other States and overseas, however, play an increasingly dominant role in this economic branch of government in most States. The local branch managers of those corporations then serve in the role of State officials for this branch in each State. Thus, increasingly, the economic State officials on some States are being appointed by the self-appointed economic State officials in other States where the largest multi-State and multinational corporations are chartered or headquartered.
Yet Taney made it clear in Augusta Bank v Earle and in Covington Drawbridge that corporations only exist in a State in which they are not chartered at the pleasure of that State’s legislature. Thus any branch of a corporation chartered in another State is no less owned by the State in which it operates than is a corporation both chartered in that State and operating there.
Unde TSCE there will be no need to alter the status quo in regard to the de facto self-appointment of State economic branch officials, or their appointment of State economic branch officials in other States, because all of these officials will be held strictly and directly accountable to each and every citizen for the demonstrable impact of their actions on the welfare of individuals and of the public.
The impact of legislative decisions on the welfare of the people nowadays is less direct and profound than the economic decisions of corporate directors and officers. By making those directors and officers directly accountable in the courts to individual citizens representing the public ownership interests in the corporations those directors and officer manage on behalf of the citizens will go a long way towards neutralizing any pressing need to suppress the corporate-funded speech of those directors and officers on political matters. Once the public understands that they actually own all of the corporations chartered or operating in their States, they will vote in accord with their sense of ultimate responsibility for the deeds of those corporations.
Corporate speech only has undue political influence to the extent it successfully masquerades as the voice of independent wealth and industry that stands apart from the State as if its political equal. Once it is fully understood among voters, consumers and shareholders alike that all corporations are their property in both title and lien, they will perceive corporate political speech in a very different light. They will see it for what it is, the voice of a subordinate speaking out of line, its temerity matched only by its negligence of its delegated duty. Self-appointed or not, when citizens realize that corporate directors and officers are actually public officials, the citizens will put them in their place, and the republic will experience the flourishing of civic prosperity that every fairy tale recounts upon the momentous occasion of the return of the good and sensible sovereign, in our case the sovereign people, to her throne.
A TLCE decision in Citizens United would strike down the law restricting corporate expenditures on political speech, but completely forbid all corporate political speech as a species of prohibited State legislature political speech unless the State’s constitution explicitly allows such speech by its State legislature, and allows it to delegate that power of speech to its corporate offspring. It would reaffirm Dred Scott and Covington Drawbridge with the effects described under the descriptions of TSCE rulings in those cases given elsewhere in this exposition. And it would suggest to State Legislatures that if they seek to empower themselves and their corporate offspring to speak politically, they must amend their State Constitutions to allow it if it does not already, and in so doing they must add a provision in those constitutions requiring full disclaimer and disclosure, in each corporate or State Legislative communication, and presented in a manner no less prominent than the primary message of the communication itself, that “The views presented in this message are offered humbly by the following named public servants to influence the popular will of the people who own and ultimately control all corporations and government bodies operating in this State, in the hopes that their Highness, the honored sovereign citizens who own this State, will adopt the measures these servants humbly recommend: <names of the directors, officers of legislators issuing the message>.”
Looking Forward to United States v. Windsor
Under TSCE the Federal Government has no jurisdiction over marriage law, so DOMA is blatantly unconstitutional and is summarily voided.
The refusal of the executive branch to defend DOMA in the case is no bar to reaching the merits. The Federal Government cannot frustrate the judicial process by its inaction. To allow its inaction to have that effect would be to grant it a power to interfere in the judicial branch’s activities in a way not delegated to it by the Constitution.
On the issue of the “Equal Protection Component” of the Fifth Amendment, although the question does not arise in this case, it is interesting to note that TSCE would find equal protection against federal laws in the Ninth and Tenth Amendments, not in the Fifth, simply because no text in the Constitution either expressly grants nor logically entails a delegation of power to the Federal Government to make laws that treat different social categories of citizens differently.
All the areas of law that could possibly have need of social categorization of citizens are reserved to the States, and outside the province of the Federal Government, whose purpose it is specifically to deal with citizens of the United States in a manner that bears no need of variation for local purposes in different States. Since there is no social categorization of citizens that can be said to have a valid legislative purpose nationally which may not require local variation, there is no regulatory justification for the Federal Government to have jurisdiction to legislate in any way on the basis socially differentiating categorizations of citizens. Cooley would control in this matter.
Looking Forward to Hollingsworth v. Perry
Under TSCE the Privileges and Immunities Clause defines citizenship so as to require the absence of any discriminatory restraint of any state citizen’s equal rights compared to any other state citizen’s under that state’s laws. It also applies Bill of Rights protections against all State laws as applied to out-of-state citizens, and the Equal Protection Clause of the Fourteenth Amendment equalizes treatment of in-state versus out-of-state citizens under each State’s laws. These three constructions under TSCE effectively void any state law that, as applied to any citizens, deploys state police powers to support or institute social hierarchy.
The California state law passed by Proposition 8 specifically institutes social hierarchy under the law by barring male citizens from marrying into the socially dominant class consisting of all males, just as it would if it barred whites from marrying whites. It institutes social hierarchy yet again in barring female citizens from marrying anyone other than a member of the socially dominant class consisting of all males, just as it would if it barred blacks from marrying blacks.
Proposition 8 bars female citizens from enjoying the legal privileges and immunities that come with legal recognition of their primary intimate association in marriage except under conditions by which they engage in that primary intimate association in a subordinate social position to their intimate partner in marriage. By requiring social subordination by sex of a female to a male as a condition of the state’s grant of the associational privileges and immunities attendant to a civil marriage union under the law, Proposition 8 deploys state power to institute sex-based social hierarchy among citizens, and therefore must be voided as entirely repugnant to the Constitution, as it vitiates the very meaning of citizenship by rendering the Privileges and Immunities Clause “unmeaning.”
By forbidding males from marrying males, Proposition 8 does similar violence to the Privileges and Immunities Clause of the Constitution by forbidding citizens from marrying into a socially dominant class of citizens.
Furthermore, by singling out homosexuals for denial of the privileges and immunities attendant to marital association that are afforded to heterosexuals, Proposition 8 deploys state power to support and institute social hierarchy on the basis of sexual preference, which also does violence to the Privileges and Immunities Clause.
To the extent homosexual conduct in specific sex acts may be deemed by a State to endanger the health, welfare, safety or morality of its people, the State may theoretically outlaw such acts, but may not deny marital association status to any pair of citizens on the presumption that such an association necessarily entails engagement in the prohibited sex acts. In general the State may outlaw such acts, but to the extent the State attempts to enforce such prohibitions, the Fourth and Fifth Amendment obstacles to search and seizure of evidence of such intimate acts engaged in within the homes of married couples, and the immunity of married couples from testifying against one another, work to render any such prohibitions irrational and tending to encourage unconstitutional state action by state law enforcement agents. Thus any such prohibitions as applied to married couples in their own homes must be struck down as repugnant to the Constitution.
Ultimately the police power of a State to prohibit homosexual sex acts is defeated as instituting or sustaining social hierarchy, thus all anti-sodomy laws are prohibited by the Constitution under TSCE. See the details of this analysis under “Revisiting Bowers v Hardwick” above.
Revisiting Gratz v Bolinger and Grutter v Bolinger
TSCE enforces the inherent limit in the original U.S. Constitution against the reinforcement of social hierarchy among citizens by the federal government, and the extension of that limit by the Fourteenth Amendment to state law. Thus race-sensitive admissions practices by publicly funded colleges and universities would only be permissible under TSCE if it can be shown that they do not reinforce social hierarchy for any citizens.
Since social hierarchy exists along multiple dimensions for every citizen, TSCE would find race-sensitive admissions practices too one-dimensional and blunt an instrument to ensure that the admissions process does not reinforce social hierarchy against the civil rights of any candidate. Instead, the Court would mandate that all admissions policies, to the extent possible without invading applicants’ privacy, identify and measure the overall disadvantaging impact of historical federal and state government reinforcement of social hierarchy upon each applicant’s opportunity to compete for admissions, and compensate for that in its admissions rubric.
This compensatory scoring for admissions differs from schemes that attempt to measure and reward applicant resiliency in the face of their overall socioeconomic disadvantage, in that TSCE strictly limits publicly supported institutions to measuring and compensating for that portion of each applicant’s socioeconomic disadvantage that was caused by government-supported reinforcement of social hierarchy.
However, admitting government-disadvantaged applicants based on their achievement relative to their government-imposed handicap does not, in itself, remove the college from the practice of reinforcing social hierarchy against those applicants. Once they matriculate, the college must then provide sufficient opportunity for them to bridge the gap in achievement due to government-reinforced disadvantage before the date on which they would have graduated had they not suffered that deprivation of their civil rights.
Revisiting Schuette v BAMN
This case addresses whether and how a state agency, municipal governments or voters through referenda. can and should restructure political processes to impose barriers to the adoption of race-sensitive public college and university admissions practices.
TSCE would find any admissions policy that focuses solely on race-based government reinforcement of social hierarchy both too narrow and too broad in its scope and application. But the Court would easily remedy this defect by mandating a compensatory admissions rubric based on an appropriately intersectional analysis of government-imposed social hierarchy along all statistically relevant dimensions.
Once thus refined, the TSCE Court would be able to consider the central issue of this case on its merits. It could rule that any action by any citizen, under color of state authority or not, aimed at interfering with government action to correct past government violation of the civil rights of any citizen would constitute an unlawful individual private act of appropriating state property for private use.
Since the secret ballot is a fundamental practice for the republican form of government, voting in favor of such unlawful use of state power, while certainly a crime, is entirely out of reach of prosecution and therefore not in principle subject to any legal sanction or restraint. However, ballot initiatives must be approved before they can be voted upon, and the state official responsible for approving ballot initiatives would be required by the TSCE Court to refrain from approving such an initiative, on pain of prosecution for the crime of appropriating state property for private use.
The great and honorable Justice Antonin Scalia, may he rest in peace, inveighed in his concurring opinion against the dilution of citizens’ right to structure their state governments how they see fit, when and how they wish to do so. However, I do not believe he would agree that a ballot initiative is properly formed to be placed before votes if it would authorize state officials to act in specific ways that directly violate the state and federal constitutions. I think he would agree that voters have an appropriate way to empower those officials to do those specific things, and that is to amend the state and federal constitutions appropriately to make those specific actions lawful.
Reaffirming Dred Scott for Genuine Liberty and Equality
Taney’s construction of the Privileges and Immunities Clause has never been overturned, merely ignored. It cannot be overturned because its construal of the intricate mechanics of federalism in the Constitution is too masterful and flawless. It stands, and always has, the law of the land, not in the shadows, but right there in the open light of reason, dressed in the full regalia of its pre-eminence as the unrefuted ruling of a 7-2 Supreme Court majority, and if we do not see it as such, it is only because we have chosen to look to some other light — be it war, be it empire, be it postmillennial rapture, be it corporate branded slavery — than the Constitution and the law as the guiding principle for our government and our pursuits of happiness.
Taney was not just a textual originalist. He was an earwitness textual originalist. He learned the meaning of the Constitution directly from the lips of many of its original framers. There will never be an interpreter of the Constitution with a better vantage from which to plumb and elucidate the proper manner in which it can best be symphonically rendered as sound government of, by and for the people.
Nor did the Reconstruction Amendments weaken the validity of Taney’s interpretation of the Constitution in any way. All they have done is fill the part-vacant crucible of Taney’s Dred Scott construction of the Constitution by including non-whites under all generic terms referring to people, such as the term “citizens,” and flipped Barron v Baltimore on its head to apply the Bill of Rights against all state laws.
The Equal Protection Clause of the Fourteenth Amendment, if applied to Taney’s construction of the Privileges and Immunities Clause in Dred Scott, would require all states to grant full Bill of Rights protections under their own state laws to their own state citizens, effectively reversing the result in Barron v Baltimore. For state citizens would no longer be allowed to restrict their own privileges and immunities more stringently than they do those of citizens of other states. Its effect in this regard would be identical to that of Bingham’s intended effect in the Privileges or Immunities Clause of the Fourteenth Amendment, and the intent of Congress in passing it.
Taney clearly implied that genuine equality, including the liberty to choose a spouse of any traditionally forbidden social caste, would be included under the Bill of Rights as a Ninth Amendment unenumerated reserved privilege or immunity. Thus even without overturning the specious construction of the Equal Protection Clause, not struck down in Loving, as permitting self-referential discrimination, the Taney construction of equality under the Privileges and Immunities Clause needs the Equal Protection Clause only to get itself applied to every state’s own citizens, and it can do that without stumbling over the self-referential blind spot designed into the specious construction of the Equal Protection Clause that is currently lodged in the gut of American jurisprudence by a century and a half of corporate-funded stare decisis concrete.