Justice Thomas's 14th Amendment

The culmination of a career, and testament to another generation

The Dred Scott case is much despised. It really shouldn’t be. Justice Taney (a Catholic Marylander) wrote the opinion. Lincoln reviled it because it seemed to demolish the Missouri Compromise and the Compromise of 1850, though this was surely dicta. The primary holding is that blacks were not citizens of the United States, and therefore not able to sue in Federal courts. Why? Because blacks had never been citizens of the United States, if citizenship had any substantive meaning at all. The heart of his opinion is a historical study laying out this fact. When Africans were brought to America, it was as slaves or other indentured servants. The laws of all the colonies and states, even (or especially) the ones north of the Mason-Dixon, always discriminated between whites and blacks, rendering citizenship for the former and a lesser state, if not downright subservience, for the latter.

If “citizen” meant anything in 1857 America beyond inane legalese, it was clear that blacks were not citizens. They had never been recognized as such anywhere. Therefore, they (and Dred Scott, as a member of that race) were not citizens entitled for relief in Federal court. A brusque outcome, assuredly. But one that was based in the history and tradition of the American legal system, and which took American citizenship more seriously than any other court has ever taken it since. Black men who had lived nowhere else than America, who lent their sweat and blood to a great fledgling civilization, were not truly citizens under the United States Constitution.

It was a tough holding. But, as noted above, most of the indignation leveled at the opinion was not directed at the primary conclusion (which should have rendered the opinion very short), but rather at the dicta, which brought all attempts by white citizens of America to quell the growing conflict between North and South into doubt. Put differently, a liberal like Lincoln (at least before the dictator period) was never going to endorse that a black man should be able to marry whom he should please, or that he should serve on a jury for a white defendant, or that he should be allowed to vote the same as a white man. So what did it really matter if he could sue and be sued in Federal court like a white? The actual Dred Scott holding was not all that offensive in antebellum terms. It was the dicta that really kicked off the Republican revolt, the Civil War, and all the accompanying miseries.

Three-quarters of a million white men later, and Republicans needed a way to avenge themselves on the South through the Constitution. This was the Fourteenth Amendment. What was the Fourteenth Amendment? Put simply, it was a refutation of the actual holding in Dred Scott that blacks (and former slaves) were not “citizens” of the United States. The occupied Southern states would soon begin “electing” these newly-made citizens to the Senate (hardy-har-har), so it was meet and just that they should be called citizens beforehand. The Fourteenth Amendment was based on the Civil Rights Act of 1866, which was a radical document for the time, though not the totalitarian document other “Civil Rights Acts of ___” have become.

This is the conservative (and correct) reading of the 14th Amendment. It would not have passed if it were any more radical than this. It barely (and dubiously) passed as it was, dubiously because the re-admission of the State of Tennessee to the union at that time depended on that state ratifying the amendment. One doubts the authors of Article V thought that amendments should or could be ratified by a state occupied and coerced by the other states. But best not to think about these things. Such questions have to lie with the 750 thousand dead.

The 14th Amendment is the “incorporation” amendment. This means that the rights proposed in the first ten amendments are now being held against the states. The original bill of rights very clearly only restrained the Federal government from certain acts. Thus, the First Amendment’s prohibitions on Congress—it’s the very first word!—applied only to the Federal Congress, not the legislatures of Connecticut and Massachusetts, who incorporated churches and wrote laws against blasphemy, as well they should have. What are the magic words in the 14th Amendment that require the bill of rights to be held against the states (and only the first ten amendments….not the 11th and 12th, for some reason)? “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That’s kind of vague, isn’t it? Didn’t “privileges and immunities” have a pretty clear interpretation in the early republic (Bushrod Washington thought so). Do those mean the first ten amendments? Why couldn’t they just say it? Shouldn’t the complete restructuring of the Federal constitutional system be based on a firmer basis than this?

The Supreme Court in the 20th Century said no. They incorporated to their heart’s content. Of course, their heart’s content didn’t include the 2nd Amendment until 2010. And it still hasn’t included other parts of the other amendments, like the grand jury requirement of the Fifth. Why not? You know, the great thing about being a Supreme Court justice is there is no higher tribunal to answer to….

Justice Thomas is the only modern Supreme Court justice to question incorporation. And perhaps it is well that he should. The Fourteenth Amendment is a grand and revolutionary thing on its own, honest terms. It unequivocally made blacks United States citizens, and laid out the groundwork of what that class of freemen might do on this continent. What more should it do? The 14th Amendment did not apply to transsexuals or other perverts, or anchor babies, or the disabled, or women (the worst yet). It was about one thing, a monumental thing, and one whose real effect should not be veiled by falsity, one of great moral importance that should not be entombed by frivolity and the banal. It was civil freedom for black men, and that was it. But that was enough.

And so it is appropriate that the best public man of the sons of Shem our nation has produced should stand so stalwartly for its proper interpretation. I don’t like referring to race any more than the next guy—and the 14th Amendment, after all, is a testament to why I shouldn’t have to. But white men are now so often blind to the prevalent lies of the 20th Century that they are useless in identifying the truth. Where they see, they have no courage, and when they have courage they do not see.

Thomas’s dissent in Trump v. Barbara is a thorough testament (hopefully) left to another generation. Justice Roberts’s opinion hinged upon the 14th Amendment containing within it the entire common law defintion of citizenship (so far as such a thing existed). This is no surprise. The 14th Amendment contains everything the Court wants from it. Barbara was just the latest and most novel (Wong King Fu Ark be darned) way of abusing a document that was written in tragedy, and which has become a farce.

Justice Thomas’s dissents usually cleave pretty closely to basic constitutional principles. Like his statements at oral arguments, they are about as short as they can be. His Barbara dissent is atypical: long and discursive, and seemingly more impassioned than what we expect from the rigorous textualist logician. In fact, he has been waiting his whole career for this: a chance to put the Fourteenth Amendment—and with it the Federal constitution itself, and the civil liberation of his race—back in its rightful place.

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