Balkinization: The Copperhead Court?

The Copperhead Court?

Mark Graber

One remarkable feature of contemporary constitutionalism is the extent to which the foundations of Roberts Court and conservative constitutionalism lie in the post-bellum Democratic opposition to the Second Freedmen’s Bureau Bill and other exercises of congressional power under the Thirteenth Amendment. Over and over again, Chief Justice John Roberts and other conservatives almost quote verbatim statements that Democrats made in the Thirty-Ninth Congress. The Roberts Court does not share the post-bellum Democratic commitment to white supremacy. Finding other differences between the constitutional commitments of former copperheads and doughfaces and prominent contemporary conservatives is quite difficult.

Roberts Court justices and their allies take the post-bellum Democratic position on the master principle underlying the Constitution of the United States. During the debates over the Second Freedmen’s Bureau Bill, Republicans repeatedly articulated a constitutional commitment to a national government strong enough to provide for the general welfare. Democrats responded with a constitutional commitment to limiting the power of the national government. The Roberts Court shares the constitutional vision of those who fought against national civil rights legislation. “In our federal system,” Chief Justice Roberts declares in National Federation of Independent Business v. Sebelius, “the National Government possesses only limited powers; the States and the people retain the remainder.”

Roberts Court justices and their allies take the post-bellum Democratic position on the nature of constitutional rights. During the debates over the Second Freedmen’s Bureau Bill, Republicans repeatedly declared that the national government had a constitutional obligation to provide former slaves and refugees with certain goods and services. Democrats responded that no one has a constitutional right to government provision of goods and services. The Roberts Court shares the constitutional principles that inspired President Andrew Johnson to veto civil rights laws. “Our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid,” the Chief Justice’s predecessor, William Rehnquist, asserted in DeShaney v. Winnebago County Dept. of Social Services, “even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” Another prominent conservative judge, Richard Posner, maintains that our "Constitution is a charter of negative rather than positive liberties. The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them."

Roberts Court justices and their allies take the post-bellum Democratic position on American federalism. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress was free to distinguish between states that had a history of racial discrimination and those that did not. Democrats responded that permitting the Freedmen’s Bureau to exercise authority in some states rather than others violates a constitutional commitment to equal state sovereignty. Chief Justice John Roberts shares the structural views of those who opposed the post-Civil War Constitution. His opinion in Shelby County v. Holder describes the preclearance requirements of the Voting Rights Act as a “dramatic departure from the principle that all States enjoy equal sovereignty.”

Roberts Court justices and their allies take the post-bellum Democratic position on national power under the post-Civil War Amendments. During the debates over the Second Freedmen’s Bureau Bill, Republicans maintained that Congress was the institution responsible for determining what measures would best facilitate the transition from slavery to full citizens. Democrats responded that Congress under the Thirteenth Amendment could do no more than forbid slavery. Leading constitutional conservatives share the views on constitutional authority championed by those who thought Congress in 1865 powerless to strike at Black Codes. Justice Antonin Scalia’s dissent in Tennessee v. Lane asserts, “Nothing in § 5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or “remedy” conduct that does not itself violate any provision of the Fourteenth Amendment. So-called ‘prophylactic legislation” is reinforcement rather than enforcement.”

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly. His opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1 insisted, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently with respect to the Thirteenth Amendment, what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Posted 2:39 PM by Mark Graber [link]