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.