Slavery, War, Immigration and The Rule of Law

The 14^th Amendment to our nation’s constitution was passed by Congress June 13, 1866 and Ratified July 9, 1868. In his book “American Founding Son: John Bingham and the Invention of the Fourteenth Amendment, Gerard N. Magliocca, a professor of law at Indiana University, identifies the Ohio politician John Bingham as the man who drafted the crucial language of that 14th Amendment. He specifically identified Bingham as the man who is responsible for the words: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Two national, historical issues needed to be resolved prior to the creation of the 14^th Amendment in 1866. As Abraham Lincoln stated, “A house divided against itself cannot stand”. The Civil War, 1861 - 1865, was fought to keep this nation whole and existing slavery could not be allowed to expand. Slavery of any person is an evil wrong. Our Declaration of Independence declares for all time that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights” and yet, slavery existed. Our written history shows us that slavery existed before the Constitution was written and it was allowed, by agreement, to continue so that this nation could be born. However, slavery is not even mentioned in our Constitution. It was believed in time slavery would fade away. It did not fade in the southern states. It flourished and it could not be allowed to expand to this nation's western growth. 

The endured human suffering required to correct these wrongs was monumental and traumatic. David Hacker a demographic historian from Binghamton University in New York states that at least 750,000 lives were lost during the Civil War. Among those who died were the widely unwelcome Irish and German immigrants who had only recently arrived here legally in pursuit of their desire to become citizens. If you believe that this generation’s immigration concerns are unique, examine the infusion of the Irish and the Germans to these shores. It is a powerful immigration story in itself. Look it up.

History shows us that the Civil War was not enough to remove slavery and Lincoln’s Emancipation Proclamation delivered on January 1, 1863 was not enough. The door to slavery remained open in the south and it needed to be closed. “When ex-Confederate States originally refused to ratify the 14th Amendment, John Bingham crafted a legislative compromise that ordered the Union Army to organize new elections across the South that would include African-Americans. He told the House that “unless you put [the South] in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they will defy your restricted legislative power when reconstructed.”Bingham’s legacy is best summarized by a speech that he gave as a young man. In it, he said: “When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken . . . and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands — come.”

I am fairly certain that if he were alive today, Bingham would choose the support of law even as he would welcome the downtrodden with open arms. Take the time to read the entire 14^th Amendment and show me where he perceived national justice for all to mean to break existing law. The former slaves and their children were finally, in fact and law, United States citizens. The state in which they lived no longer mattered. Former slaves were to be afforded the same rights and protections as any other citizen in all states. In its time, the 14^th Amendment had dramatically closed the door to the past and moved us another step forward toward a final closure. Slavery, the unsolved issue that divided this nation from its very beginning had been legally resolved. However, the 14^th Amendment, while appropriate for 1866, could not and did not anticipate other divisive issues of race and immigration which have appeared at various times in our history and a new one exists today. The entry of non legal peoples of a non European descent and their progeny is causing us much angst today and Bingham and other national leaders of 1866 had absolutely no way to anticipate this reality. Consider this: Slavery is a historical forced immigration inflicted on many races by this world’s nation states. It was ultimately banished from this country through the powerful force of human will and law.

The United States is a self defined nation of laws. Our Laws are one of the core principles of our very existence. Individuals and families who have chosen to follow the course of legal immigration have, in fact and law, demonstrated their support of this core principle. They are valuable and should be welcomed with open arms. It is, indeed our noble mission to call to the down trodden and oppressed of all lands. However, this nation must find a way to stand up and reaffirm its laws or lose its way. The path to freedom will be closed forever to those of the world who would join us in our pursuit and to us as well. The alternative is not acceptable. Illegal is not legal by definition. Allowing those who have come to this country illegally is by definition unlawful. Even so, illegal peoples continue to arrive and they continue to claim guaranteed rights created for United States citizens. The claiming of individual and family rights by illegal peoples should not be permitted, supported or encouraged. These practices are destructive and divisively dangerous to legal citizens and they are a detriment to our national core principles.

I have grown weary waiting for this Court to speak in support or rejection of existing Immigration law. In my mind, it is absolutely predictable that the court's nine appointed justices will simply continue to speak and vote as they always have. They will continue to vote with strict adherence to their philosophical and political support base. They will continue to sing to the choir that selected them to be members of this very special legal fraternity. Not one justice appears to be willing to forgo the guaranteed lifelong position that is theirs by appointment if they “remain in good Behavior” and do not upset the applecart. A court appointment should now be perceived as the second highest level political plum tree in this nation and the longest lasting. 

I am also weary of of the court's refusal to confront our “I’ll do it alone with my phone and pen” president who has wowed the masses with his politically magical left hand even as his right hand continues to provide gifts for votes. Remember this: The Executive Branch carefully detailed in our Constitution exists to execute this nation’s laws, not to create them. Only Congress can create laws. In the absence of the rule of law Obama will have nothing left to skirt and he will ultimately achieve his primary goal to remake America. Remember it was this president who proclaimed that we are not special and it was this president who proclaimed "We are five days away from fundamentally transforming the United States of America." I remain convinced that the allowed presidential directive in support of illegal immigration is a malformed tree that will put down roots. The fruits of this tree will prove to be very bitter. I also see all illegal presence as a negative weight on the left side of the scale of justice and I perceive the hand of progressivism lingering patiently in the scale’s shadow.

Many of us only perceive the practice of law as secret and mysterious and understood by few. I see the common image of law balanced by justice and think: If only the blindfolded lady, “Lady Justice”, could see and finally speak through the mighty “Sword of Justice” she carries in her right hand. 

Please note: This post is a revised version of the original. It was revised on September 20, 2015.  

Supreme Court Justices Should Have Term Limits

The title of the article caught my eye and I read it and felt its truth. Give judges terms, not lifetime appointments appeared in the Wednesday, August 5, 2015 edition of The Detroit News. It was written by Doug Bandow, a graduate of Stanford Law School and a senior fellow at the Cato Institute. The Cato Institute is a Public Policy Think Tank dedicated to the principles of individual liberty. Bandow wrote “It is time to impose accountability while preserving independence.” “Judges are supposed to play a limited though vital role – interpreting, not transforming the law”. “Limiting the term of office for Supreme Court justices from a life time event to a finite fixed terms number of years, would simultaneously achieve both objectives.”

I support Bandow’s position that we need to reign in the Supreme Court’s increasingly common practice of making public policy instead of judging the constitutionality of the issues brought before it. Our nation is a nation of laws and there is a specific written plan in place to create, manage and verify those laws. The name of the plan is The Constitution of the United States. It is clear to me that the Congressional branch exists to create necessary laws. The Executive branch exists to execute the laws created by Congress. The Supreme Court exists to judge the constitutionality of laws. I also support the Cato Institute’s efforts because I believe it is our possession of individual liberties that keeps our nation from jumping off the track.

Why do the nine member justices forming the Supreme Court find it so difficult to state that a specific issue submitted to the court for examination is either supported by the Constitution or it is not? Surely, “partisan leanings” is not the issue. If the issue brought before the court is judged to be supported by the Constitution then it is lawful. If it is not supported by the Constitution, it is unconstitutional. The court should simply determine exactly why or how it failed to meet the constitutionality test and send it back to congress or to its original source to be revised in a manner determined to be acceptable under the framework of the Constitution. I have yet to discover anything written in the Constitution that gives the justices the prerogative to change the meaning or the intent of the words used to create the law or issue submitted by others who are not of the court.

Article 3, section 1 of the Constitution of the United States defines the judicial power of the United States. There are several capitalized words in the copied Constitutional language below which might appear to you to be incorrectly capitalized but they are shown here as they appear in the Constitution. Please note this is the section which Doug Bandow’s article addresses.  There are, in fact, two more sections in Article 3 of the Constitution. Section 2 lists the extent of judicial authority extended to the court and section 3 defines Treason. Finally, note in line two of section 1 shown below that only “Congress may ordain and establish” other courts.

"The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their office during good behavior, and shall at stated Times, receive for their Services a Compensation, which shall not be diminished during the Continuance in Office."

Did you know? The two word "Good behavior" phrase has been historically interpreted to mean that judges may serve for the remainder of their lives. Justice William Orville Douglas from Yakima, Washington holds the record for continuous service. He served an astounding 36 years and 209 days from April 17, 1939 to November 12, 1975.

Did you know? Supreme Court justices may be impeached if they do not maintain “Good behavior”. In our republic, all impeachments are initiated in the House of Representatives and all are tried in the Senate. In our entire history, Samuel Chase holds the distinction of being the only Supreme Court justice to have been impeached. He was impeached by the United States House of Representatives on March 12, 1804 for allegedly letting his “partisan leanings” affect his Court decisions. Chase was acquitted by the Senate on March 1, 1805.