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Justice of the double edged sword

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>Sculpture weeps The Capitol Building by Huffington Post

The Supreme Court is in the news these days, handing down decisions left and right --if you'll excuse the expression. And both main stream and social media are breathless with their exclamations. One day the justices are "gutting" the Voting Rights Act and the howls of indignation go up. The next it would seem The Nine have made gay marriage the law of the land. Break out the the glitter and champagne and oh-so-tastefully decorated cake.

I'm thinking a little closer and more skeptical scrutiny might give rise to a little less outrage on the one count and a little less exaltation on the other. 

I just recently finished reading "The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction" by Charles Lane --harrowing stuff  --the history is of an episode of brutal racial and political violence that, together with the court actions that followed it, signaled the basic collapse of Reconstruction in the South. In his narrative  Lane points specifically to two landmark Supreme Court decisions that served to usher in and assure that collapse and I'm thinking their example might be instructive as we regard the current day. The first of these, The Slaughterhouse Cases, involved a group of New Orleans butchers who found themselves compelled by state law to trade with a slaughterhouse that had been sited and licensed with an eye to protecting the public health, so said the state anyway. The butchers argued it was only carpet bagger crony capitalism run amuck. Thereto the Mississippi River had served as the open gutter for offal in much more of a free market arrangement. The butchers contended that, public health be damned, the state was compelling trade with state sanctioned monopoly. The appeal they took all the way to the highest court argued that the state was infringing upon the "privileges and immunities" due all free citizens --in this instance their right of free trade. They pointed to the newly minted Fourteenth Amendment of The Constitution and its guarantee of protection for those privileges and immunities. Though the amendment had been written with the rights of newly freed slaves in mind, its protections rightly should extend to all citizens, black and white, former slave and master alike--so went the argument of New Orleans' friendly neighborhood butchers anyway.

The  Supreme Court didn't buy the argument. As it turned out, the justices deemed dumping slaughter refuse into the river upstream of your neighbor's favorite fishing spot was not a right the U.S. Constitution, even as it was freshly amended, was meant to protect. Looking back across the years who would complain about the state's protection of public health standing up to Constitutional challenge? Am I right? One can well imagine applause from civic minded back in the day. But it was the logic the court  announced in coming to its decision that would have the devastating effect upon Reconstruction and the cause of Civil Rights. 

Justice Samuel Freeman Miller writing for the majority noted " there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual." The Federal Courts could not intervene in matters of state citizenship and could only act to protect specifically enumerated federal rights.  As Jack Beatty put it, in his own brilliant and depressing history of the era, "Age of Betrayal: The Triumph of Money in America, 1865-1900,"  these rights included "access to ports and navigable waterways, the ability to run for federal office, and to be protected while on the high seas... they did not include what we call 'civil rights.'"

This reining in of supposed federal over reach would not go unnoticed.  The federal prosecution of The Colfax Massacre would meet it head on. 

The bloody violence and atrocity that occurred of an Easter Sunday in Colfax, Louisiana in 1873 had been in essence an open battle over who would hold the seat of local law enforcement. White Supremacist vigilantes and free blacks had each laid their claim. It was the Colfax Courthouse that had been burned to the ground, those defending it who had been murdered. Citing The Slaughterhouse Cases as precedent, the Supreme Court would hold that the mass murder at issue was not a matter for federal prosecution and jurisdiction, but a matter for those local courts, those same local courts now in the hands of the criminals. In essence, to the victors had gone the spoils.

Justice Stephen J. Field , a dissenting justice in the 5-4 Slaughterhouse  decision, would later write that Miller's  opinion and the unhealthy precedent it had set for cases like the Colfax massacre had effectively rendered the Fourteenth Amendment a "vain and idle enactment." The collapse of Reconstruction and the birth of Jim Crow would follow to prove his point.

I'm put in mind of this history as the various parties curse or applaud the blatant aspects of these recent Supreme Court decisions. First let's look at the rulings on marriage rights. Yes, DOMA was struck down, but reading the logic of the opinion once again you find the justices proffering that notion of distinct citizenships, state and federal. The court found that the federal government had no basis for curtailing rights that states had granted. This may have been an apparently pleasing result for advocates of marriage equality, but the decision most decidedly did not affirm same sex marriage as a federally protected civil right. Where the court might have done exactly that, the matter of California's Proposition 8, the justices instead demurred. They found the appellants had no standing before the court as aggrieved parties. The practical effect was to throw out their appeal and leave lower court rulings uncontested, as the California constitutional officers had chosen not to contest them. While I can applaud the progress made --or not unmade-- on marriage rights, I am left with this disquiet. I fear the justices stopped short of a ruling that would set a clear path for marriage equality even in states where the notion is less than popular. There is an important difference between civil rights and popular rights. 

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Tom driscoll is an opinion columnist, poet, performiing songwriter (let's just say he writes).
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