Immoral Maxim #13: Implictions of the Gettysburg Address

IMMORAL MAXIM #13
THE GETTYSBURG ADDRESS & THE CIVIL WAR AMENDMENTS

From THE GETTYSBURG ADDRESS - “It is rather for us to be here dedicated to the great task remaining before us…that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people, shall not perish from the earth.” Abraham Lincoln (Nov. 19, 1863)

MAXIM #13. AN IRRELEVANT MAXIM & MISLEADING IMPLICATIONS - “My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man's brow, I don't think he had ever even seen a black man." [Antonin Scalia]

REPARTEE - The question for Justice Scalia is not whether his family ancestors were in the United States during 1861-1865 or in the American South from 1865-1964. The question for Justice Scalia is whether he understands in his heart of hearts that these Amendments were the product of a GREAT CIVIL WAR — which has forever changed our understanding of the Constitution.

When it comes to deciding issues involving the 13th, 14th and 15 Amendments, a primary question for Justice Scalia or any other Supreme Court Justice is whether he understands in what manner these Amendments were the product of a Great Civil War — a War which not only freed the slaves, but also a War which has forever changed our political and legal system. His father’s or any of his ancestors’ lack of understanding of American historical realities may have slowed initial Scalia’s understanding of this country, but these matters should by now be peripheral to his present work. Justice Scalia’s primary task as a Supreme Court Justice is not to evaluate any contemporary individual’s guilt, innocence or ignorance with respect to the historical events that have produced the original Constitution and its subsequent 27 amendments. With respect to judicial issues rising out of the application of the 13th, 14th and 15 Amendments, the question for Justice Scalia is whether he understands in his heart of hearts that these Amendments were the product of a GREAT CIVIL WAR — a war which altered both the terms and the perspective with which we interpret the present Constitution.
Antonin Scalia made the above remarks in an opinion in which he disagreed with some affirmative action procedures which were intended to remedy racial injustice and/or racial disparities. Without discussing the practical or legal merits of the particular remedies in dispute, it is clear that Justice Scalia has consistently taken his eyes off the ball when it comes to the 14th Amendment. The 14th Amendment was the product of a Great Civil War which altered forever the relationships between the nation, the states, and the citizenry of The United States. These changes effect all citizens of the United States whether they are descendants of revolutionaries, slaves or immigrants. Furthermore, the Civil War Amendments (Amendments XIII, XIV, and XV) effect the meaning of the entire Constitution which he claims to uphold, including those Articles and Amendments adopted before the Civil War.
I briefly note Scalia’s fundamental deficiencies in such matters. One, he tends to think that since de jure Afro-Americans have now been constitutionally and legally declared to be entitled to the full rights and privileges of citizenship, any assertions of de facto racial bias are generally to be entertained only with the greatest skepticism. Consequently, Scalia is prone to deny any claims of legal relief [thru (sic) affirmative action programs, for example] because he is already predisposed to believe that most discriminatory action is due to minor individual deviations from the fair-minded practice of the American citizenry and not legally redressable.
Secondly, his most egregious use of the 14th Amendment was in Bush v. Gore where he strained the meaning of the law, Supreme Court precedents, and the Constitution to support the objectives of the Campaign of then Texas Governor George W. Bush while ignoring those laws, precedent, and the Constitutional text which would have support the objectives of the Campaign of Vice President Al Gore.
Thirdly, his reactionary interpretations in 8th Amendment cases are replete with tendentious citations of British and American authorities of the 17th and 18th centuries. As Scalia seems almost honor bound to deny any tempering of justice with mercy, he tends to highlite (sic) as precedentially binding the worst tendencies within early colonial and Revolutionary times. He seems oblivious to the fact that by end of the 18th Century that outside the South the American people had begun to reject the frequent use of capital punishment for all number of felonies. He never considers that John Bingham and the other the Framers of the Civil War Amendments were — in the legal language of their times — asserting that the States could not place themselves between the people and the rights and liberties asserted in the Bill of Rights. In short, these Framers placed constitutional language which was to overrule not only Dred Scott, but also Barron v. Baltimore and other precedents which had upheld state abuse of individual liberty. [F 13-1] Furthermore, it apparently never crosses Scalia’s mind that by the middle of the 17th Century the precedents in criminal law which he treasures were already corrupted by the peculiar institution of slavery with its frequent use of capital murder to suppress the underclasses, especially slaves. [F 13-2]
In sum, the chimera of a fixed founder’s consensus as a bulwark against progressive change — changes required by the American people’s understanding of their own Constitution — is a simple fiction used as a weapon by Antonin Scalia in his fight against public justice. By asserting that the Constitution is a simple collection of megarules void of significant contrary implication, so that we are always bound by the past meaning of the text [or, more accurately, one subset of past beliefs], absent explicit Amendments to the contrary, is to mock the American people and their Constitution.


NOTES:
[F 13-1] Cf. Amar (1998). The Bill of Rights: Creation and Reconstruction. After a hiatus of eight decades or so, Justice Hugo Black placed the issue of incorporation on the Court’s agenda, most notably in Adamson v. California (1947). An even more detailed and persuasive historical appraisal of that somewhat forgotten era is found in Charles Fairman’s 1949 Stanford Law Review article on the 14th Amendment.
[F13-2] Cf. Banner (2002). The Death Penalty: An American History. for a few examples.

CASES:
Adamson v. California, 332 U.S. 46 (1947)
Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)
Scott v. Sandford, 19 Howard 393 (1857) [or, Dred Scott v. Sandford]

BOOKS:

Bibliography of Books and Writing
Amar, Akil Reed (1998). The Bill of Rights: Creation and Reconstruction. Yale Univ. Press of Virginia: New Haven. 412 pages.
Stuart Banner (2002). The Death Penalty: An American History. Harvard University Press: Cambridge, MA; London, England. 385 pages.
Fletcher, George P. (2001). Our Secret Constitution. Oxford Univ. Press: Oxford.