[Originally posted on Positive Liberty on Jul 25th 2007 06:36 pm]
I’m currently reading Driven Out by Jean Pfaelzer, an important new book about the persecution of the Chinese in Nineteenth Century California--a subject which longtime readers will know has long fascinated me.
Pfaelzer points out a California Supreme Court decision I hadn’t known about, People v. Brady, 40 Cal. 198 (1870), in which the court found that the Fourteenth Amendment was not violated by California laws that prohibited Chinese people from testifying against whites in criminal cases. It is, of course, mindbogglingly tortured reasoning (although not as bad as People v. Hall, 4 Cal. 399 (1854), in which the court held that Chinese people were really Indians and were therefore barred from testifying under a state law that prohibited testimony from Indians!) But what’s interesting to me is the parallel with our old friend the Slaughterhouse Cases.
Now, remember, as I’ve argued in several articles, there were two competing conceptions of state sovereignty in nineteenth century America: what I call the Lockean, and the Blackstonian, views. According to the Lockean view, all legitimate sovereignty is limited by natural moral law. That is to say, a state has no legitimate power to act in ways that violate individual rights. As Professor Sturgis just reminded us, a state has no authority to do something to you that another individual cannot do to you. Since other individuals can’t beat or rob you, so the state has no right to beat or rob you. Thus the sovereignty of a state is limited by natural moral law from doing certain things even where the state constitution is silent on those matters. That’s the Lockean view. As an example of this I’ve pointed to Billings v. Hall, 7 Cal. 1 (1857), in which Justice Peter Burnett held that there are some things which by the nature of free government are off limits even to the majority, even in cases where the constitution may be silent.
The Blackstonian view holds that this is nonsense: sovereignty is necessarily unlimited. As Blackstone put it in his Commentaries, Parliament’s sovereignty is “supreme,” “absolute,” “unlimited” power which “can do anything that is not naturally impossible.” Individual rights are therefore only just so many permissions granted by the legislature: they are not pre-political principles of justice. (Blackstone waffled on whether there were such principles, but he was clear that they could in no way limit the state as a political principle). Many Nineteenth Century American lawyers imbibed from Blackstone the idea that the Declaration of Independence merely transferred this supreme, unlimited authority to the states, but did not limit it. Therefore, with the exception of federal limitations, states could do anything that was not naturally impossible. In some articles I’ve pointed as an example of this view to Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853), written by Pennsylvania Chief Justice Jeremiah Black, who went on to be attorney general for James Buchanan and Andrew Johnson, and even drafted Johnson’s veto message for the Civil Rights Act.
One of the big reasons for the Civil War, really, was the conflict between these two visions of state sovereignty. Could a state do what it wanted, with specified exceptions? Or was it limited by natural, moral law? Believers in Lockean sovereignty gravitated to the Republican Party, while Blackstonians were Democrats. This fit very neatly with arguments regarding secession. If sovereignty transferred to the states, rather than the federal union, then the Constitution was simply a treaty between the states as Calhoun said. If not, then the Constitution was a government of the whole people, and secession was not legitimate.
Well, one feature of the Slaughterhouse Cases is the Blackstonian view of sovereignty. In that decision, Justice Miller’s theory is that “there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.” Citizenship in a state, however, is the source of most of your rights--not citizenship in the United States--and why is that? Because upon declaring independence from England, Parliament’s powers devolved to the states, not to the federal government, and thus “the entire domain of the privileges and immunities of citizens of the States…lay within the constitutional and legislative power of the States, and without that of the Federal government.” Although the Radical Republicans--believers in Lockean sovereignty--were the authors of the Fourteenth Amendment, and intended to reverse this understanding of constitutional sovereignty, Miller explicitly denied what was so obviously true: that the Fourteenth Amendment was intended to “radically change[] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”
What about People v. Brady? In that case, Justice Temple wrote that, upon separating from England, “[t]he legislative power was maintained to be as complete in each American as in the British Parliament,” 40 Cal. at 219, and that the states
can never lose their powers, till the whole people of America have lost their liberties. When the Federal Constitution was formed, no idea was more fixed than that the States should continue independent of Federal control as to all reserved powers, which were to include entire control over all matters exclusively appertaining to a particular State…. Chiefly to secure the continued existence of the States, to uphold and maintain them as independent States, and thereby to secure to the people and their posterity the blessings of liberty, the Constitution and the Union were formed….
It was more efficient than the Confederacy it displaced, for it executes its own laws…. Within the sphere of its limited authority it wielded the power of a vast empire with all the efficiency of the most despotic Government, and yet it was supposed that it could not be dangerous to the liberties of the people, for its powers were limited and well defined, and could be used but for a few purposes, and those in which all the States had a common interest. The great mass of governmental powers were still reserved to the States. The absolute right of uncontrolled local legislation upon all subjects most intimately connected with individual rights and most essential to the maintenance of personal liberty was reserved.
The Federal Government was created by the compact of sovereign States, and their continued existence in the uncontrolled exercise of their powers, is an essential element of the system….
We cannot conclude from any doubtful language that [the Fourteenth Amendment] was intended to strike from the Constitution the fundamental idea upon which the Union was constructed--to rob the Government of its crowning glory and most beneficent principle; and had such been its apparent meaning, we ought to be diligent to find out some construction which would be less pernicious in its consequences; we should regard it as we would a law apparently legalizing murder or robbery; we could not conclude such a purpose was intended unless it is expressed in unmistakable language.
Id. at 219-21 (emphases added).
Astonishing! Brady is really California’s Slaughterhouse Cases--and considering Brady’s consequences (the almost monotonous persecution of Chinese immigrants)--that seems to be literally true.
Incidentally, one of the concurring Justices in Brady was William T. Wallace, a particularly despicable creature who authored the Stockton and Visalia Railroad case, which I discuss at length in this article.
Update: Unfortunately, Pfaelzer is not a lawyer and at some times her understanding of the cases is not exactly correct. On pp. 60-61, she refers to Slaughterhouse (not drawing the connection I’ve drawn) and says that “[b]y drawing a distinction between national and state citizenship, the Supreme Court allowed states to disobey the Fourteenth Amendment’s protections for ‘persons,’ narrowig coverage only to citizens.” This is not correct. The reference to “persons,” for one thing, occurs in the Equal Protection Clause, not the Privileges or Immunities Clause, which was the focus in Slaughterhouse. And the Court, in Slaughterhouse and other contemporary cases was actually quite explicit that all persons and not just citizens were protected under that Clause. Slaughterhouse’s distinction between state and federal citizenship was relevant because it said that only a narrow class of rights were protected by federal citizenship, while most rights (the particularly important ones) were still exclusively the provice of states; all people were thereby denied the promised protection against their own state governments.
Comments policy