In 1896, the Supreme Court issued one of its most reviled decisions, ruling in Plessy v Ferguson that state enforced racial segregation was legal so long as the facilities were “separate-but-equal.” Soon to follow was Jim Crow and a long night of discrimination for black Americans across the nation.
Plessy is not only an immoral decision, but it is also a bad legal one. Thankfully, Plessy was gutted in 1955’s Brown v Board of Education, which ruled that segregation in public education was unconstitutional. However, Plessy stands on the shoulders of another decision 10 years prior, which has never been overturned, the ramifications of which we are still dealing with today.
In 1875, at the tail end of Reconstruction, Congress passed a Civil Rights Act which banned racial discrimination in public amenities. Several cases surrounding the law made their way to the Supreme Court, which ruled the act unconstitutional in 1886’s Civil Rights Cases. Congress did not have the power under the 14th amendment to protect black American’s right to public facilities.
On a facial level, a decision nullifying an act which could’ve prevented segregation seems immoral. In 1964, Congress finally succeeded in passing a second Civil Rights Act, very similar to the act from 1875. The difference was that it is justified this time under the Commerce Clause, not from the 14th amendment. The underlying legal decision from the Civil Rights Cases remains good law, even if it has been subverted in effect. Since that underlying legal decision has become incredibly important, this is problematic.
The Reconstruction Amendments, amendments 13-15, were the first to include a provision that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” This is important because it signified that Congress would now be the defenders of the rights protected by the amendment. Until then, the rights were protections against the federal government. It wasn’t until the 14th amendment that the Bill of Rights actually applied to the states.
This has lead to the “incorporation doctrine”, and it isn’t a bad thing. If my state is infringing on my freedom of religion, I’ll welcome Congress’s intervention as much as anyone’s. The problem is that Congress’s ability to execute the provisions of the 14th amendment was gutted in the Civil Rights Cases. In this case, the court ruled that the 14th amendment was a “curative”, not a “positive”, grant of power. This meant that Congress could correct violations of “life, liberty, and property”, but they could not actually determine what life, liberty, and property mean. The court kept that power to itself.
This remains good law. The resultant doctrine is known as “substantive due process”, by which fundamental rights are determined by the Supreme Court. These fundamental rights are, as probably expressed best by Justice Kennedy in Obergefell v Hodges, “most of the rights enumerated in the Bill of Rights…these liberties also extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” What exactly is protected by the Bill of Rights, and what constitutions a “choice central to individual dignity,” is the Court’s decision, not the legislature’s.
n a way it makes sense. Rights are special concepts. They ought to exist independent of the whims of a fickle legislature. The problem is that it inevitably turns the court into a super-legislature, only the Justices on the Supreme Court are not subject to the democratic process.
Substantive due process is not subjective on paper. What is a “choice central to individual dignity” is determined by the “traditions of our people and our law.” But it often becomes so. The best example is Lochner v New York, a court case from the early 20th century when the court struck down a New York state labor restriction, deciding that it infringed on the 14th amendment guarantee of liberty (in this case liberty to sell labor). Today, Lochner is seen as an example of the court substituting its judgment and preference for laissez-faire economics for the legislature’s. But the reason for this is that we consider economic liberty distinct from personal liberty.
In Roe v Wade, a legal decision I am not a fan of, the court saw that they had protected a right to privacy and decided that the right to privacy was broad enough to cover abortion. Why the right to privacy was broad enough to cover abortion, the court never explained. The reasoning is that historical practice until the 19th century had only objected to abortion after “quickening,” the pre-scientific equivalent of viability, so therefore a fundamental right to abortion beforehand could be derived from the traditions of our law. But the right to privacy, the legal justification for the right to abortion, wasn’t formulated into the requisite shape for this ruling until the 1960s, so it’s hard to claim the tradition of a right to privacy could validate a tradition from the 18th century. Moreover, what is to stop a court from ruling that because many states had laws criminalizing abortion to protect unborn life, many of which dated back a century, that a fetus’s right to life was consistent with the traditions of our law and protected under the 14th amendment? My point is to point out that the doctrine of court-protected fundamental rights arising from the Civil Rights Cases leads to woefully incoherent law in practice.
The solution? Let the legislature do their job. Let them be the ones who determine and enforce what “no state shall infringe on the life, liberty, and property” means. Does this dangerously subject the rights of the people to the whims of our representatives, a body most of us have little trust in? Perhaps, but its less of a danger than we might first think. First, part of the unworkability of Congress is a product of atrophy coming from them surrendering most of their power to the President and the Supreme Court. As to whether representatives of the people are responsible enough to protect the rights of minorities, we do not merely elect representatives of our worst impulses. We elect people to legislate in the public good. Also, in the case in question, Congress was the one legislating progress and it was Court standing in their way.
The fact the Court has become the one determining the all-important questions of rights is what has poisoned the judicial process. The clown show that happens every time there is an open seat on the Supreme Court did not start with Merrick Garland or Robert Bork. It began here when the Court appointed itself that they allow were the arbiter of who I can marry or whether I am allowed on a certain train car. Those questions belong in a legislature, who answers to and whose members can be fired by me, not with whoever Ronald Reagan put on the Supreme Court for life 30 year ago.
Beyond leaving the door open for decades of segregation, the Civil Rights Cases stripped Congress of the broad grant of power given by the 14th amendment and warped the Supreme Court into something they aren’t supposed to be. Which is what makes it the worst Supreme Court case you’ve never heard of.