You know, that Bill of Rights stuff? We’ll stay with the first eight amendments to make things simpler.
There’s been a really big debate on whether the U. S. Constitution requires the states to obey the Bill of Rights. The Supreme Court used to say no, then mostly no, now mostly yes.
Around a year ago, I thought I could write up some material about the states and the Bill of Rights and the history of this whole controversy.
The problem is lots of other people have written about this too, so I would have to find a distinctive way of doing it.
I decided that a series of vignettes, real-life human-interest stories, each story dealing with some facet of the subject, might make the whole topic of “the Bill of Rights and the States” come alive.
So I did some research and gathered some material for the various vignettes.
All that research was sitting around for some time doing nothing when Glibertarians said they were accepting contributions.
So I says to myself, I says, “finally, somewhere to unload all this stuff!”
No, actually what I said was, “the educated and sophisticated people at Glibertarians would make an ideal audience for all this material!”
So until someone pulls the plug on this or I get tired, I think I’ll share some of the material in my Bill of Rights research files.
Now allow me to pad out this post with some pictures.
Here’s a statue of James Madison:
Memorial Hall. Statue of James Madison by Walker K. Hancock. Library of Congress James Madison Building, Washington, D.C.
In my discussion of the mad violinist, I mentioned an interview which Judge Roger Pryor gave to the New York Times in 1911. Now let us go back fifty years. Cue the scene-shifting special effects.
It’s early in the morning of April 12, 1861. Pryor, now only in his early 30s, is on James Island in the harbor of Charleston, South Carolina. He’s standing next to the Confederate batteries aimed at federally-occupied Fort Sumter. Guns in the James Island batteries have been ordered to start the firing on Fort Sumter. The captain commanding the battery offers Pryor the opportunity to fire the first shot.
A young Roger Pryor
Pryor was a perfectly logical candidate for the honor of firing the first shot in the Civil War. Born in the Petersburg, Virginia area he had become a Virginia lawyer but instead of practicing, he worked at several newspapers, where he provided an editorial voice in favor of slavery and secession. He served in the House of Representatives in the 36th Congress, from 1859 to 1861, where he used his national platform to make himself famous as a “fire-eating” Southerner. That is, he thought that if the North continued its hostility to slavery, that the South’s downright peculiar institution could no longer be safe inside the United States. Thus the Southern states would have to leave the Union and form their own country.
Pryor thought the election of Abraham Lincoln in 1860 was the last straw. Since his own state of Virginia wouldn’t yet commit itself to secession, Pryor came to a state which had committed itself – South Carolina, which soon was joined by other “deep South” states to form the Confederacy. Virginia still remained in the Union, a technicality which somewhat bothered Pryor, so even though he accompanied a Confederate delegation to demand the surrender of Sumter’s federal commander, Major Anderson, Pryor stayed at a distance during the actual meeting with Anderson. But the delegation, including Pryor, decided that Anderson had not offered suitable surrender terms, so war it must be.
But when offered the chance to literally start the war, Pryor held back for some reason. Another Virginian, even more fanatical than Pryor himself, was chosen to fire the first shot, this was Edmund Ruffin, an editor who had been crusading for years for more efficient agriculture…and a Southern republic.
Interior of Fort Sumter 1860s
Having helped start the war, Pryor decided he should fight in it, too. This decision, unusual for pro-war politicians today, was common among ambitious and/or patriotic statesmen on both sides of the Civil War. Pryor became one of the Confederacy’s “political generals” who made the transition from tough talk to actual battle. Like many other political generals, North and South, Pryor left something to be desired when it came to tactical skill, but there was no doubt of his bravery. He shunned none of the risks his men took, fighting courageously on the soil of his home state which had become the theater of much of the war.
Pryor’s Confederate superiors were not satisfied with his generalship, and they transferred him to Richmond where he cooled his heels as a general without portfolio. He found this unsatisfying, and so he resigned his commission. Then he did something unusual among politicians-turned-soldiers: He rejoined the ranks not as an officer but as a private.
Private Pryor was still able to show his battlefield courage without being responsible for tactical decisions which weren’t necessarily his forte. A true gentleman, he believed in fighting hard and playing hard. Just because he and the Yankee soldiers were trying to kill each other didn’t mean they couldn’t get along civilly – it was a civil war, after all. So Pryor sometimes ventured into the no-man’s land between the armies, chatting with the Northern soldiers and trading Southern papers for Northern ones so each side could keep up with the news. Pryor had been in the newspaper biz, remember.
One day, while Pryor was in no-man’s land, some unchivalrous Northerners took the opportunity to capture him – like he was an enemy or something. And he wasn’t treated like an ordinary private, because the North hadn’t forgotten his role as a leading secessionist. Pryor was brought to the prison fortress of Fort Lafayette in New York harbor.
The editor of the Cincinnati Enquirer visited Secretary of War Edwin Stanton to try and get Pryor released. Stanton had Bessie, his baby daughter, on his knee, and the Enquirer editor appealed to the Secretary’s paternal sympathies, suggesting that Pryor too had children who loved him. That sort of sentimental guff didn’t fly with Stanton. “He shall be hanged! Damn him!” Stanton said of Pryor. But President Lincoln, in these waning months of the war, agreed to release Pryor on “parole,” back to his home in Petersburg. Lincoln was apparently influenced by Pryor’s kindly treatment, back when he was a general, of Northern prisoners from Second Bull Run.
With the Confederate defeat, Pryor was in a bad position. He didn’t despair like Edmund Ruffin, who had started the war when Pryor shied away from doing so. Ruffin killed himself rather than live under Yankee rule again. Pryor didn’t go to that extreme, but he faced poverty, he and his wife having pretty much lost, or had to sell off, all their possessions during the war.
Pryor went to New York City on a visit, which changed into a permanent move. The city which the Confederates had tried to burn seemed a poor environment for him to get a friendly reception, or to get clients – for Pryor decided he would study to become a New York lawyer. In reality, though there were plenty of Gothamites embittered against the South, New York City still provided perhaps the friendliest environment in the North for ex-Confederates. With its prewar commercial ties to the South, and its status as a destination for wealthy Southern visitors, it isn’t surprising that the city had a large population of Southerners, Southern sympathizers and of “copperheads” Democrats who had opposed the Northern war effort (Teddy Roosevelt’s mother Martha, for example, was a Southerner and a Confederate sympathizer, which may explain why Teddy’s father bought himself a draft exemption rather than fight against his wife’s side).
After being admitted to the New York bar, Pryor began building his practice. He initially had to fight the prejudice against “rebels,” but he got sympathy and help from some of the former “copperheads,” as well as from other Southerners who were moving to New York City at the time. The migrants, the so-called “Confederate carpetbaggers,” found that there were more opportunities in this Southern-leaning Northern metropolis than in the war-wracked South. It also helped that most Gothamites were Democrats like Pryor, though there were plenty of elite Republicans to win over as well.
In 1868 Pryor was hit by what many white Southerners considered one of the most demeaning of the Reconstruction measures: The Fourteenth Amendment. Section Three of that amendment said that people who had held office before the war, and who then joined the Confederacy, were forbidden from holding state or federal office in the future. Within four years, Congress restored the political rights of most people covered by Section Three, but there were some exceptions. Pertinent to Pryor, people like him who had joined the Confederacy after service in the 36th Congress, the last peacetime Congress, would be denied office holding rights. This exception was aimed at fire-eating Southerners like Pryor, whose rhetoric on the House floor had exacerbated the divisions which led to the war. Supposedly all this wouldn’t make a difference to Pryor, who assured the public that he had no political ambitions and simply wanted to practice his profession, and to work – as a private citizen – for unity between North and South.
In his speeches and writings, Pryor took a more conciliatory tone than he had before the war, suggesting that the North and South should get along better. Pryor conceded that his former divisive speeches had been less than helpful. He was even able to give a let’s-be-friends speech to a suspicious audience of members of the Grand Army of the Republic – the Union veterans’ organization. His reputation was considerably improving.
Henry Ward Beecher
Pryor was able to raise his profile among Northerners, and get in some thwacks against an old enemy of the white South, when he was retained in the famous Henry Ward Beecher/Theodore Tilton case of 1874-75. The powerful Protestant preacher Beecher had sermonized against slavery and for the Northern war effort. Now, Beecher was accused of seducing one of his parishioners – the wife of Pryor’s client Theodore Tilton. The country was fascinated by a saga of alleged adultery and even blackmail involving a top man of the cloth. The jury could not agree on a verdict, but the public’s verdict was that Pryor had displayed great professional skill.
Pryor’s new profile – as a learned lawyer-statesman who had become acclimatized to the North – became significant because one of his neighbors was Winfield Scott Hancock, a former Northern general. The wives of the two men became fast friends, and when Hancock became the Democratic nominee for President in 1880 there were rumors that Pryor might be Attorney General of the United States under a Hancock administration. Congress passed a special resolution to finally restore Pryor’s office holding rights, so the Fourteenth Amendment was no longer a problem. What was a problem was that Hancock lost the election, and so Pryor remained in private practice.
Visiting London on business in 1883, Pryor rescued a young American woman who was being attacked by hoodlums. The young lady’s name was Bessie Stanton, the grown-up edition of the baby whose father had vowed to hang Pryor.
Haymarket Flier
And now we go to Chicago, at or around Haymarket Square, where on May 4, 1886, the police were trying to break up a labor demonstration. Someone lobbed a bomb at the police, and when the bomb went off it killed eleven people, seven of whom were policemen. Several anarchists, mainly German but including an Englishman, were tried for murder, supposedly for inciting and helping the killings. Several death sentences resulted, and the Illinois Supreme Court upheld the convictions. Supporters of the defendants, who believed they had been denied a fair trial, collected some money to bring the case to the U.S. Supreme Court. Top-flight attorneys were hired, Pryor being one. There was an important attorney, Benjamin Butler, brought in as well. Butler, a former Union general, wasn’t popular in the South and was regarded as a war criminal, but Pryor maintained professional relations with him.
It would be an uphill struggle to get the Supreme Court to interfere. Pryor placed his hopes in the very Fourteenth Amendment which had formerly branded him unfit to hold office. Section One of that amendment, of course, guaranteed due process of law and protected the privileges and immunities of American citizenship. So Pryor and his colleagues would argue that the trial of the anarchists had violated the Fourteenth Amendment by denying them an impartial jury, using illegally-seized evidence, and so forth. Trouble was, over the past decade the Supreme Court had interpreted the Fourteenth Amendment quite narrowly, failing to include the rights in the Bill of Rights among the privileges or immunities of American citizens (which Pryor’s clients weren’t in any case). Nor had the Supremes been very vigorous in using due process to guarantee that state trials met Bill of Rights standards.
In its decision, the Supreme Court reiterated its narrow view of the Fourteenth Amendment. But the Justices went on to say that even if a more rigorous review of the case were required, the trial would still have been fair. Of eight defendants, four were hanged, one blew himself up before he could be hanged, and three were later pardoned by governor John Peter Altgeld based on the governor’s criticism of the trial’s fairness.
Louis Lingg set a smuggled blasting cap off in his mouth while in prison
As for the guilt of the defendants, historians have tended to view the trial as unfair or even as a frame-up, but historian Timothy Messer-Kruse changed his mind after reviewing the record and decided that the defendants were guilty (not to mention that at least one defendant – the one who blew himself up – had some knowledge of using bombs for deadly purposes).
Pryor defended the innocence of his clients by attributing chivalry to them: “If there were a plot in existence, do you suppose that they would have had their wives and children [at the demonstration]?”
At the end of his career Pryor got a Supreme Court (trial) judgeship through the influence of Tammany Hall, of which he was an ally. He retired but was still around to tell the New York Times that the U.S. Supreme Court (as Pryor knew too well) was not a big fan of making the states obey the Bill of Rights
Citations
Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: University of Wisconsin Press, 1981.
Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson: The Restoration of the Confederates to their Rights and Privileges, 1861-1898. Westport, Conn: Greenwood Press, 1977.
Barbara Goldsmith, Other Powers: The Age of Suffrage, Spiritualism and the Scandalous Victoria Woodhull. New York: Alfred A. Knopf, 1998. [contains details of the Beecher-Tilton scandal]
Robert S. Holzman, Adapt or Perish: The Life of General Roger A. Pryor, C. S. A. Hamden, Conn: Archon, 1976.
Timothy Messer-Kruse, The Trial of the Haymarket Anarchists: Terrorism and Innocence in the Guilded Age. New York: Palgrave MacMillan, 2011.
So, Spicer (the Presidential spokesdude) said the Trump administration might increase prosecution for state-legal recreational marijuana (as opposed to medicinal marijuana, protected by the Rohrabacher Amendment).
The predictable prog freakout includes “wrong side of history” (the WA state attorney general) and “hypocrisy” (for respecting states’ rights on chicks with dicks, but not with dope).
But let me ask, what are the *principled* grounds for proggy complaints? Congress passed anti-dope statutes, applying not simply to marijuana which flows in interstate commerce, but to marijuana which is grown and consumed within a single state. The Supreme Court, by a 5-4 vote, said that these federal statutes are a valid exercise of the Constitution’s Commerce Power, 10th Amendment be damned. Sure, there was an eloquent dissent by Justice Thomas, and critics ask why it took a constitutional amendment to ban booze on the federal level while marijuana required only a Congressional statute.
But all this is beside the point, isn’t it? After all, the Supreme Court, according to prog dogma, is a secular magisterium. If the Supremes say that Congress can use the “interstate commerce” rationale to prevent the growing, selling and using of a plant within a single state, then the Court’s word is final, isn’t it? Isn’t the Supreme Court our secular Magisterium, whose pronouncements on constitutional law are binding on the consciences of the citizens, and of officials in other government branches, until such time as a new 5-4 majority on the Court overrules the former majority, in which case the *new* pronouncement of the Court is binding on the consciences of officials and citizens.
Any Congressional statute pronounced constitutional by the Supreme Court of the United States is, therefore, perfectly valid and part of The Law, and the President is bound to see that the laws are faithfully executed. Congress has passed statutes forbidding marijuana even if grown, sold, and used exclusively within the borders of a single state. Therefore, the President is bound to enforce this law against all violators, right? And if the authorities in some defiant state refuse to comply, then do with them like the feds did with George Wallace: make them get out of the way so the will of the Supreme Court can be enforced.
To the extent progs have principles, this is definitely one of them. They should get bumper stickers for their Volvos – “The Supreme Court said it, I believe it – that settles it!”
So why are they bitching and moaning at Trump? Because Trump! and weed! of course.
I suppose they will utter some noises about prosecutorial discretion, but that’s not the constitutionally required faithful enforcement of the law. That’s *fitful* enforcement.
Fortunately, those of us who aren’t progs and who believe the federal dope laws are unconstitutional, need not paint ourselves into a corner like this. We get to say that just because the Supreme Court says something doesn’t make it true. The Supreme Court has previously admitted it was wrong in the past. So it’s like the famous conundrum of whether to believe the person who says he’s a liar.
The federal courts are checks on abuses of power by Congress, the President, and the states. So if (to take a purely hypothetical example), the President (perhaps with Congressional approval), locks someone up without a trial, the federal courts can use habeas corpus to get the prisoner released.
So the courts should be seen as a *check* on the powers of the other branches, but their decisions should not be seen as a *blank check* for unconstitutional federal actions.
The President, as well as the members of Congress and the Supreme Court, are pledged to uphold the Constitution. That means defending the constitution against attacks from any quarter – even the courts and Congress.
If Congress passes an unconstitutional statute and the Supremes uphold it, then all the more reason for the President to take another look at the statute to make sure it’s not an unconstitutional oppression of the people. If he thinks it’s unconstitutional and that the courts aren’t going to block enforcement, then the President, under his own responsibility, should uphold the Constitution and forbid the enforcement of the unconstitutional statute(s).
Sometimes a statute creates or enforces private rights, so that if the President tries to block enforcement, a person whose rights are affected can go into federal court to challenge the Pres, and if the Supreme Court has already upheld the law, the Pres will lose. I’m not sure, however, whose legal rights are violated if the President *doesn’t* enforce the drug laws. Without an actual case, the Supreme Court won’t be able to step in.
That leaves Congress. If the House of Representatives think the President is disobeying or thwarting the implementation of a constitutionally-valid statute, then the House can impeach the President and those who aid him (or, if they’re wimps, the House can impeach solely the subordinate executive officials who carry out the President’s orders).
Then the Senate will decide whether to convict. Two-thirds are required for a conviction, so if 2/3 of the Senators believe the President violated a constitutionally-valid statute, they should find him guilty. On the other hand, if 1/3 plus one of the Senators believe the statute is unconstitutional, they should vote to acquit, and the President’s action will be sustained, assuming there’s no plaintiff with standing to force the Pres to enforce the statute.
So under my suggestion, the Pres would be able to go over the head of the Supreme Court and thwart the enforcement of an unconstitutional law. Congress in its judicial capacity would have the final word on the validity of its own statutes and would throw obstructive executive-branch officials out of office if they obstruct valid statutes. On the other hand, if you can’t get a majority of the House and 2/3 of the Senate to agree that a statute is constitutional, then it’s just as well for the public the statute isn’t getting enforced, because it probably *isn’t* constitutional.
(I may post another discussion about drug treaties)
while eminently qualified to sit on the nation’s highest court, be Borked out of spite.
He begins with a fair amount of logic when he says:
“Given Gorsuch’s stellar professional record, his competence does not seem to be in question. At least from the leaked remarks about his meeting with Connecticut Senator Richard Blumenthal, he appears to have a healthy unease with President Trump’s aggressive statements about the judiciary.”
So he wants Gorsuch to get “Borked”. He’s too conservative and its simply not fair that the Senate chose to abide by the Biden Rule, proposed in a fit in 1992 by then-Senator and recent Vice President Joe Biden in an effort to undermine the possibility of George HW Bush filling a vacancy on the Supreme Court that never materialized. It’s just not fair that one of the Justices furthest to the right be replaced by someone relatively far to the right when Obama would have put someone left of center on the bench.
Perhaps the Senate didn’t do their job last year. Perhaps Biden should have kept his mouth shut in 1992 and this never would have happened. And perhaps Democrats mailed it in in 2006. I won’t try to answer those questions here. But I have a hard time respecting someone that would call for an eminently-qualified jurist to be kept off the highest court in the land merely out of spite. It undermines the presidential prerogative to nominate judges to federal judgeships that has served us well for over 200 years.
