By Alan W. Cohen
Attorney at Law
The Libertorian Movement has a single goal: The restore the individual liberties stated in the Declaration of Independence that were wrongfully taken in a doomed effort to preserve the Republic by accepting the institution of slavery. It differs from the Libertarian movement in this one regard. It has a goal, a demarcation point when the Supreme Court in 1833 decided that the Bill of Rights did not apply to the states, creating the fiction that we call state’s rights. As I explain in my latest book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce (now available on Amazon), states have no rights. The Declaration of Independence was a statement not of the colonies, but of the people. The people of the several states grants power to their elected representatives, but because their individual rights are inalienable, they cannot be transferred. Thus, they are limited. The same is true of the federal government. The People gave limited power, but could not transfer power that was inalienable, i.e., our personal rights to liberty.
As a libertarian essay explains in 2013:
It was this conception of freedom that led to John Locke’s claim that the purpose of law is to “preserve and enlarge freedom,” not to abolish or diminish it. A social relationship is described as “free” if all parties in that relationship can exercise their equal and reciprocal rights without coercive interference by others. According to this approach, it is possible, in theory, to have a political state of “perfect freedom.” This would consist of a society whose government is strictly limited to the protection and enforcement of individual rights. To the extent that the powers of government are limited in this fashion, we are said to have a “free society.” … Freedom, properly conceived, should mean the freedom to do whatever one wishes to do without the coercive interference of others.[i]
In our nation’s first fifty years, the Republican constitution was the law of the land. Regarding Bill of Rights, Supreme Court Justice Hugo Black explained in 1947, was simply a restatement of that fact:
The first ten amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties. The people wanted and demanded a Bill of Rights written into their Constitution. The amendments embodying the Bill of Rights were intended to curb all branches of the Federal Government in the fields touched by the amendments — Legislative, Executive, and Judicial. The Fifth, Sixth, and Eighth Amendments were pointedly aimed at confining exercise of power by courts and judges within precise boundaries, particularly in the procedure used for the trial of criminal cases. Past history provided strong reasons for the apprehensions which brought these procedural amendments into being and attest the wisdom of their adoption. For the fears of arbitrary court action sprang largely from the past use of courts in the imposition of criminal punishments to suppress speech, press, and religion. Hence the constitutional limitations of courts’ powers were, in the view of the Founders, essential supplements to the First Amendment, which was itself designed to protect the widest scope for all people to believe and to express the most divergent political, religious, and other views.[ii
It all changed with the era of Jacksonian Democracy. In 1833, in the case of Baron ex rel. Tierman v. Mayor of Baltimore,[iii] the Supreme Court declared that the Bill of Rights did not apply to the states, but only to actions of the federal government. As Mr. Justice Samuel Alito explained in 2010 in McDonald v. City of Chicago, the enormity of this four-page opinion cannot be understated.[iv] In Marbury v. Madison, Chief Justice John Marshall painted the Court’s authority with a broad brush, with no limitations of state actions, when he wrote:
“This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. “(Emphasis added.)[v]
Marbury v. Madison was 27 pages long. Yet, in Baron, in just four pages, and with little analysis, Marshall all but extinguished the personal rights that the people had demanded, for what real contact did ordinary people have with the federal government? But why did Marshall do it?
In his work, Philosophy of History, German philosopher Georg Wilhelm Friedrich Hegel, the father of modern historical thought, tells us that history is not merely ascertained as a fact, but understood by apprehending the reasons why the facts happened as they did.[vi] So it is with John Marshall and his decision in Baron. Marshall understood how delicate our nation was, and treaded lightly. In 1803, with Marbury v. Madison, Marshall had adeptly expanded the authority of the Court in setting a foothold of the power in creating the power of judicial review, something that was not clearly set out in the Constitution.[vii] Yet, by deciding in favor of the government and its authority to fire public employees, Marshall was able to grab that power without upsetting executive branch. His survival skills would soon be put to a test.
As Randy Barnett tells us in Our Republican Constitution, the Founders were certain that slavery would die of its own weight, and tabled the matter in order to gain support for the Revolution. They couldn’t have been more wrong in their prediction. In 1794, Eli Whitney patented the cotton gin, a device that dramatically reduced the cost of producing cotton, causing Georgia, Mississippi, Alabama and Louisiana to drastically alter their agricultural philosophies, necessitating the need for more slave labor as the plant was extremely delicate and its cultivation was labor intensive.[viii] With the Louisiana Purchase, leaders of the slave states were acutely aware how they might be outnumbered unless they could spread slavery into the western territories. At the same time, Northern states were acutely aware that slavery was seeping into the territories north of the Ohio River. Thus, when Missouri applied for statehood in 1919, in order to preserve the union, Kentucky’s Henry Clay orchestrated the Missouri Compromise to temporarily prevent the South from succeeding. The compromise, which please very few on either side, called for Missouri to be admitted as a slave state and Maine a free state, but most important, that slavery would not spread north of Missouri’s southern border.[ix] The compromise fueled the birth of the Democrat party as a means to thwart any opposition to slavery, and General Andrew Jackson, flush from his victory at the Battle of New Orleans in 1815, was the perfect popular hero to lead the fight. After all, the South was powerful in the House of Representatives because a key compromise in the Constitution permitted them to count their slaves as 3/5 of a person against the total population of the state.
At the same time, the Christian revival historians call The Second Great Awakening was spreading across America, and that movement would bring a sense of Christian superiority that would be fodder for the birth of what Barnett calls the Democratic Constitution. It would also spawn the Abolitionist Movement and continue its righteous indignation through Reconstruction that would give birth to Carrie Nation and bring upon Prohibition and government controlled morality that would lead to a ban on contraceptives, homosexuality and polygamy, and continues to linger in the background today.
After the Civil War, the Republican majority (who Barnett calls Republican Constitutionalists) forced their viewpoint on the Democrats with the passage of the Thirteenth, Fourteenth and Fifteenth Amendments Despite the fact that legislative history of the Fourteenth Amendment clearly showed it was intended to nullify Baron, the Supreme Court would have none of it, limiting the Fourteenth Amendment to anti-slavery amendment intended to reverse the Dred Scott decision.[ii] In his dissent in Adamson v. California, Mr. Justice Black excoriated the Court’s refusal to abide by the law:
“My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.” [iii]
In 1947, Justice Black painted the history of jurisprudence as one that “contracted the effectiveness of the Fourteenth Amendment as a protection from state infringement of individual liberties enumerated in the Bill of Rights … and represented a failure to carry out the avowed purpose of the Amendment’s sponsors.”[iv]
Mr. Justice Black’s words state the purpose of this movement and this blog, that the Supreme Court wrongfully dissipated the inalienable rights in a failed attempt to preserve the union, and as a result, we have, for almost two centuries, have fought to regain those rights guaranteed to us in the Declaration of Independence and in the Constitution.
[i] U.S.Const. Amend. 15.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
[ii] Slaughter-House Cases, 83 U.S. 36, 77 (1873).
[iii] Adamson v. California, supra, note 32 at 71-72.
[iv] Id. at 81.
[i] Smith, George H., 2013, “Freedom, Rights and Political Philosophy, Part 5,” libertarianism.org
[ii] Adamson v. California, 332 U.S. 46, 70-71 (1946)(Black, J., dissenting).
[iii] Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243 (1833).
[iv] McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010).
[v] Marbury v. Madison, 5 U.S. 137, 177-178 (1803).
[vi] Smith, George H., “Freedom, Rights and Political Philosophy, Part 5,” supra, note 31. .
[vii] Marbury v. Madison, supra, note 35.