As the Army of the Tennessee hunkered down in Mississippi, the famous three day battle of Gettysburg was underway in Pennsylvania. That would end with Lee's retreat after three brutal (and somewhat indecisive) days of fighting. Just as the Battle of Antietam provided Lincoln with the opportunity to issue the Emancipation Proclamation the year before, the Battle of Gettysburg followed by the fall of Vicksburg gave the president the opportunity to remind Americans of their identity along with the decisive goals of the war. In mourning these brave men, a grateful nation promised to pursue their fight so that they would not die in vain. Between the roughly 18,000 dead or wounded in Vicksburg and the 51,000 in Gettysburg there were twice as many casualties in those two battles than for both sides combined in the entire Revolutionary War. This sacrifice had a purpose; the Civil War would forever change this nation and hold it to the promise espoused in the second sentence of the Declaration of Independence we continue to aspire to achieve: that the equality of all is a self-evident truth.
Though the guns have silenced, the fight is not yet over. In the case of Shelby County, AL v. Holder, Justice Roberts speaking for the majority of the Court declared that the 15th Amendment was not designed to punish for the past, but to ensure a better future. This is an astonishing rewrite of history because the 13th, 14th, and 15th Amendments were, without question, war reparations designed unquestionably to punish for the past. The drafters of these Amendments did not carry Lincoln's malice-free hearts; they intended to alter the relationship between the states and its federal government. John Bingham and Thaddeus Stevens sought to rectify past wrongs by incorporating the first 8 Amendments of the United States Constitution to the states and, to protect civil rights both men knew would be ignored because they had been ignored. They were architects of a military occupation of the states formerly in rebellion. Indeed, the same men who drafted the Amendments sought to impeach President Johnson for failing to enforce radical reconstruction of the South through occupation of martial law.
The men who drafted and pushed through these Amendments were not stupid and they were not naive; they were skilled lawyers grounded in constitutional law. Having lived through war, they were determined to dictate the peace. Enforcement of the Amendments would prove challenging due, in large part, to failures of the Johnson administration in advancing Reconstruction. By the time the Grant Administration issued the Enforcement Acts seeking to guarantee the vote to African Americans and quell the rising KKK, the rest of the country was tired and just wanted to move on. Without denying the overall racist tendencies of the majority population that prevented its full impact, the 15th Amendment was originally intended as punishment. Given the high numbers of African Americans in the Southern states: roughly half the population of Alabama, Florida and Louisiana and more than half of South Carolina and Mississippi, it was intended to entrench an empowered electorate and a truly republican form of government where previously an oligarchy existed.
Justice Roberts, and the Court, in saying otherwise is deluded. Indeed, this is not the first time the Court has confused the purpose and intent of the Reconstructionist Amendments. While early justices (who also rode the circuit) seemed to grasp the metamorphic change wielded by the amended Constitution, See, i.e. United States v. Given, 25 F.Cas. 1324 (1873) and this blog post, within short order, the Court grew fearful, weak and further from the directive of the revisions - indeed all of its incorrect decisions on the 14th Amendment have since been overturned. See, The Slaughter House Cases, 83 U.S. 36 (1873); United States v. Cruikshank, 92 U.S. 542 (1875), and Plessy v. Ferguson, 163 U.S. 537 (1896). To suit its own philosophy rather than the document it is entrusted to uphold, the Court then, as now, glorified the Revolution against Great Britain without so much as a head nod to the required sacrifice of the Civil War where the victorious Union literally rewrote the rules of government. The original Constitution was a compromise to unify Northern and Southern interests; the Reconstructionist Amendments were the bounty of war victory and did not need to compromise much.
Noting only the 15th Amendment - nothing within it took away state powers; states were still free to establish elections, set standards for voting age, prohibit foreigners (and, as was clear from Congressional banter at the time, women) from voting, but what they could not do was discriminate on the basis of race, color or former condition of servitude which included both slaves of African descent and indentured servants, as both slavery and indentured servitude were outlawed under the 13th Amendment. And to ensure that discrimination did not occur, Congress was authorized to enforce the Amendment by any appropriate legislation. (As an aside, while both contain identical language on enforcement, note that the 15th Amendment prohibits discrimination in all elections, but the 24th Amendment prohibits poll taxes only in federal, but not state elections. Putting aside whether states would be wise to establish poll taxes, the 24th Amendment recognizes that the states reserve the power to determine certain aspects of their own elections - the question under the 15th Amendment deals exclusively with race, color and former condition of servitude, not poverty).
The original Framers constrained the powers of the federal government; but for the first time in the 13th Amendment, the Constitution granted new powers to the federal government as against the states (in favor of the people). How anyone can interpret the 10th Amendment pre-1868 and post-1868 the same on citizenship, due process, equal protection of the laws, voting rights, and slavery of any kind identically strains the imagination. The Reconstructionist Amendments delegated enforcement authority to the Congress thus any power reserved to the states must succumb to the supremacy of the federal government.
In Shelby County, the Court says that the Voting Rights Act of 1965 was unusual. The truth is that the failure of certain jurisdictions to comply with the mandates of the federal Constitution was unusual. Defiance required significant enforcement legislation. It takes an enormous leap of constitutional jurisprudence to declare that when the duly elected legislature passes a bill into law or reauthorizes a law for an extended period that this, somehow, is "inappropriate." Much of the legislation emanating from Congress is truly inappropriate such as the establishment of all-powerful FISA and Immigration courts none of which is subject to Article 3 judicial review. But guaranteeing the fair access to the polls can never be inappropriate.
Since the ratification of the 10th Amendment, Amendments to the Constitution have shifted power from the state both to the federal government and to the people. Beginning with the Reconstructionist Amendments, the trend continued with the 17th Amendment decommissioning state powers by granting direct election of United States Senators. The 19th, 24th and 26th Amendments all contain enforcement language similar or identical to the Reconstructionist Amendments. Curiously, the now repealed 18th Amendment granted concurrent jurisdiction to enforce prohibition of alcohol. This language is in direct contrast to the supremacy language of the 13th, 14th, 15th, 19th, 24th and 26th Amendments, all of which relate to individual rights, several relate to voting privileges and election of representatives. Within the body of the original document, the federal government guarantees to every state in the Union a republican form of government implying by its very nature that citizens retain the right to vote for their elected officials who will, in turn, represent them according to law. US Const. Art IV sec.4. Amendments to the Constitution duly ratified indicate that the federal government seeks to abide that promise even if it requires intrusion into policies traditionally held by the states when those states fail to protect liberty interests.
So, the Court is simply wrong in determining that the Amendment was intended benevolently. It does not guarantee individuals the right to vote - it prohibits state discrimination in voting practices. If it were seeking to "ensure a better future" as the Court now claims, it would have been worded differently. It was intended as punishment, specifically to restrict powers of states when they restricted the voting rights of the citizens. The Voting Rights Act of 1965, including the now defunct Sec. 4, is appropriate; the issue is cleaner than the Shelby County case would suggest - the Court has repeatedly stated that it will not second guess Congress in its determination of policies that otherwise abide by the Constitution. Why some legislation, for example creating federal crimes where once only states had power to punish can be considered "appropriate" while others such as enforcing the 15th Amendment's promise "inappropriate" simply because the Court disfavors the data used to establish the parameters of the law is preposterous.
More preposterous still is the inane and unsupportable notion that the state governments and the federal government are equal sovereignties; they are not and never have been. States surrendered significant powers in exchange for an organized Union; the federal government surrendered little and, indeed, averred in the 10th Amendment that ONLY powers not delegated to the United States would be reserved to the states - it does not say that the states retain every single power they had at the time of entry into the Union or that they would continue to retain power despite amendment to the Constitution. The United States delegated to the federal government the enforcement powers of the 13th, 14th, 15th, 19th, 24th and 26th Amendments ergo states no longer reserve those powers. This has nothing to do with a love of strong central government or a diminution of federalism; it is simply the language of the Constitution. The Court was dead wrong in deciding otherwise.
As this sesquicentennial comes and goes - and lingers - the meaning and purpose of those tens of thousands of men dying on battlefields in Mississippi and Pennsylvania, that sacrifice was to ensure the more perfect Union James Madison envisioned. The intent of the original Framers was to establish a nation without ethnicity, without religion, without class where all who came could develop their potential. It would take a Civil War and some changes to the Constitution to make that real on paper; it will take the continued will of all of us to envision and aspire to continue to improve upon this Union to ensure that all are free to be who they are, fully equal under the law and in the eyes of their countrymen and women. Those who signed the Declaration of Independence had no idea how it would all resolve. Those who lived 150 years ago had no idea that the war would continue for two more years; only after it ended could they see the significance of Vicksburg and Gettysburg.
As illuminated by Abraham Lincoln in memorial to the events that would turn the tide of war and ultimately secure Union victory giving us all this continued opportunity to improve upon our humble beginnings:
Truer and more appropriate words were never uttered. In independence there is liberty; in liberty responsibility; in responsibility battles; in battles victories; in victories sacrifices; in sacrifice resolve.Four score and seven [today: eleven score and seventeen] years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.
No comments:
Post a Comment