By Alan W. Cohen
Watch out Mark Levin. It has all happened before. The author and conservative radio host has begun a movement under Article V of the Constitution to create a convention of states to amend the constitution to strip the federal government of much of its ill-gotten gains, gains that have diluted freedom from the individual and authority from the states. On his radio show of October 10, 2017, a caller warned him that the federal courts are lurking in the shadows, waiting to override any sweeping changes the convention might pass. In response, Levin was confident that the states would prevail.
Yet, that is exactly what happened with the Fourteenth Amendment, and we still have not recovered almost 150 years later. As I explain in much greater detail in my latest book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, the Civil War ended with a great Republican majority passing a series of Amendments, each with their own purpose. The Thirteenth Amendment ended slavery. The Fifteenth Amendment guaranteed the right to vote. But the Fourteenth Amendment had another, more profound, purpose.
As Mr. Levin explains in great detail in his most recent book, Rediscovering Americanism (please see the link to my review at the end of this blog), the Founders of our nation believed, and declared it in 1776, that we are endowed by our Creator with certain inalienable rights. And, with all due respect to those morons on MSNBC and CNN, those rights predated, and are the basis for, the Constitution. That is because we are all individuals, individuals that banded together to protect the rights of other individuals. Yet, somewhere along the line, our nation changed from being a republic to being a democracy. Georgetown law professor Randy Barnett explains that when the Founders created the Constitution, it was based on the Declaration of Independence, and that the preamble said it all. We the People means we the people as a collection of individuals, not of the majority. Unfortunately, a movement began, less than 25 years later, to justify slavery, a movement that became the Jacksonian Democracy. Levin calls it mobocracy. Barnett calls it the Democratic Constitution. A key illustration is this phenomenon is the Kansas-Nebraska Act of 1854, an act that empowered the citizens of those states to vote on whether to enslave a minority of their peers.
The Supreme Court signed onto the Jacksonian Democracy in 1833, the year after Jackson’s landslide victory over Henry Clay for his second term. Here I will invoke the name of a person that Mr. Levin detests as a bigot, a racist and an anti-Semite: Supreme Court Justice Hugo Black. Despite his serious flaws, Justice Black proposed in a dissenting opinion in 1948 that we lost our republic in 1833 with the case of Baron ex rel. Tierman v. Mayor of Baltimore, where the Supreme Court declared that the Bill of Rights did not apply to the states, but only to actions of the federal government. Black suggests that Chief Justice John Marshall was just a bit dishonest in his four-page opinion, a sparse writing of what was one the most important decisions of the century. In fact, as I explain in Private Vows, Marshall was scared, and had good reason to be. President Jackson was a scoundrel, and had recently refused to abide by a Supreme Court opinion protecting the Cherokee leading to the infamous Trail of Tears. Until Jackson came onto the scene, Marshall had carefully fostered the Supreme Court’s authority to override legislation and executive actions through the power of judicial review. Marshall anxiously wanted to preserve his gains, and knew to tread carefully to avoid Jackson’s wrath.
The real question in Baron was whether the federal courts had the authority to enforce the inalienable rights recognized in the Declaration, the rights of the individual against the authority of the state or local government that was violating those rights. That same question is with us today. In a dissenting opinion in 2000, Justice Antonin Scalia agreed with fellow Justice Clarence Thomas that the Constitution preserves those inalienable rights within the Ninth Amendment, but refused to enforce them because the Constitution did not specifically provide for a remedy. The question for Justice Scalia then, as with Chief Justice Marshall in 1833, is this: What good are rights if there is no place to enforce them? According to Justice Black, Marshall adeptly sidestepped the issue, and for good reason. As I explain in Private Vows, if the federal courts had the authority to enforce inalienable rights against state or local governments in 1833, slaves would have been coming in droves to seek redress and there would have been a civil war. Since Marshall sidestepped the issue, the Court could not enforce Dred Scott’s claims for freedom only a few years later, an event that ironically led to the death of hundreds of thousands of Americans that Marshall had so greatly sought to avoid. After the Civil War, according to Justice Black, it fell on Congress to right the wrong of Baron and restore the Republic, and individual liberty, with the passage of the Fourteenth Amendment, making it clear that individuals did indeed have a right to redress of state and local violations of their individual rights in the federal courts (as well as in the state courts).
There was one big problem. The Supreme Court was filled with Jacksonians who refused to comply with Congress’ mandate even if it was the will of the required number of states. In the infamous Slaughter-House Cases in 1873, the Court all but nullified the Fourteenth Amendment by calling it just an anti-slavery amendment:
The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens
Thus began more than a century of state control over the individual so vast that individual freedom was all but lost, freedom that the Founders intended, freedom that we still don’t have today. Soon after The Slaughter-House Cases, the Supreme Court affirmed state policies based on eugenics, justifying discriminatory laws and, as a means of enforcing them, created out of thin air, as I explain in Private Vows, a justification for state regulation of marriage and divorce. As Levin explains in Rediscovering Americanism, this statist thinking became the fodder for the socialists, the so called Progressives as a means for controlling the masses. It inspired the ever Progressive Woodrow Wilson to re-segregate the entire federal government during his first term of office. It empowered the KKK to rule with a violence, ending black lives on the spot just for the crime of not being white.
Thus, the lesson for Mark Levin and his followers is that that an Amendment to the Constitution is not enough. We have to fill the Supreme Court with those willing to enforce it. While, as with the Trump travel ban, we cry over the illegal nature of the Ninth Circuit and other federal courts, those actions pale in comparison to the 19th Century and a Supreme Court that was hell bent to undo the Union victory, to preserve and restore the Jacksonian Democracy. and to preserve racial and religious discrimination.
Alan W. Cohen practiced law for more than 25 years before retiring. He is a graduate of the University of Missouri-Columbia School of Journalism and the Washington University School of Law. Besides Private Vows, he is also the author of America Solved: A New Family for the 21st Century, as well as several other books on family law.