As I went over in the previous points, judicial immunity was not established in the United States. In my research of trying to understand the intent of the framers of the Civil Rights Act of 1866 and the KKK Act of 1871, I thought it was important to understand the implications of what the framers of these Acts had just gone through in America after the Civil War. I also thought it was important to understand the consequences being deprived of the Constitution and the rights within it.
What those consequences led up shocked me to my core. They are both grim and have a painful outlook for our future. If massive reform does not happen quickly within our justice system, the inevitable will happen. History will repeat itself.
What are the consequences of being deprived of the constitution?
Revolutionary War
The Virginia Charter of 1606, which was largely drafted by Sir Edward Coke, stated that the colonists would have the same “liberties, franchises and immunities” as people born in England.
Lord Coke’s view of the law was particularly relevant to the American experience. It was during this period that the charters for the colonies were written. Each included the guarantee that those sailing for the New World. Their heirs would have “all the rights and immunities of free and natural subjects.” As our forefathers developed legal codes for the colonies, many incorporated liberties guaranteed by Magna Carta and the 1689 English Bill of Rights directly into their own statutes.
Understanding the Law
Although few colonists could afford legal training in England, they remained remarkably familiar with English common law. During one parliamentary debate in the late 18th century, Edmund Burke observed, “In no country, perhaps in the world, is law so general a study.” Through Lord Coke, whose four-volume Institutes of the Laws of England was widely read by American law students, young colonists such as John Adams, Thomas Jefferson, and James Madison learned of the spirit of the charter and the common law–or at least Coke’s interpretation of them. Later, Jefferson would write to Madison of Coke: “a sounder whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties.” It is no wonder that as the colonists prepared for war they would look to Coke and Magna Carta for justification.
By the 1760s the colonists had come to believe that in America they were creating a place that adopted the best of the English system. However, they adapted it to new circumstances. It would be a place where a person could rise by merit, not birth. A place where men could voice their opinions and actively share in self-government. But these beliefs were soon tested. Following the costly Seven Years’ War, Great Britain was burdened with substantial debts. They also had the continuing expense of keeping troops on American soil.
Parliament
Parliament thought the colonies should finance much of their own defense. Therefore, they levied the first direct tax, the Stamp Act, in 1765. As a result, virtually every document–newspapers, licenses, insurance policies, legal writs, even playing cards–would have to carry a stamp showing that required taxes had been paid. The colonists rebelled against such control over their daily affairs. Their own elected legislative bodies had not been asked to consent to the Stamp Act.
The colonists argued that without either this local consent or direct representation in Parliament, the act was “taxation without representation.” They also objected to the law’s provision that those who disobeyed could be tried in admiralty courts without a jury of their peers. Lord Coke’s influence on Americans showed clearly when the Massachusetts Assembly reacted to this. He declared that the Stamp Act “against the Magna Carta and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void.”
The more Parliament tried to raise revenue and suppress the growing unrest, the more the colonists demanded the charter rights they had brought with them a century and a half earlier. At the height of the Stamp Act crisis, William Pitt proclaimed in Parliament, “The Americans are the sons not the bastards of England.” Parliament and the Crown, however, appeared to believe otherwise. But the Americans would have their rights, and they would fight for them. The seal adopted by Massachusetts on the eve of the Revolution summed up the mood–a militiaman with sword in one hand and Magna Carta in the other.
When American colonists fought against Britain, they were fighting not so much for new freedom, but to preserve liberties and rights that they believed to be enshrined in Magna Carta.
Civil War
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent. Therefore, they could not enjoy the rights and privileges the Constitution conferred upon American citizens. Ultimately, they were being deprived of the constitution and the rights within it.
The decision is widely considered the worst in the Supreme Court’s history. It is widely denounced for its overt racism, judicial activism, poor legal reasoning. It played a crucial role in the start of the American Civil War four years later.
Legal scholar Bernard Schwartz said that it “stands first in any list of the worst Supreme Court decisions”. A future chief justice, Charles Evans Hughes, called it the Court’s “greatest self-inflicted wound”.
There is no slave State where the institution is not recognised and protected by statutory enactments and judicial decisions. Slaves are made property by the laws of the slave States, and as such are liable to the claims of creditors; [60 U.S. 393, 536] they descend to heirs, are taxed, and in the South they are a subject of commerce. In the formation of the Federal Constitution, care was taken to confer no power on the Federal Government to interfere with this institution in the States.
Slaves were deprived of the constitution
In the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered and were completely deprived of the Constitution. Slavery was prohibited in the entire Northwestern Territory, with the approbation of leading men, South and North; but this prohibition was not retained when this ordinance was adopted for the government of Southern Territories, where slavery existed.
In a late republication of a letter of Mr. Madison, dated November 27, 1819, speaking of this power of Congress to prohibit slavery in a Territory, he infers there is no such power, from the fact that it has not been exercised. This is not a very satisfactory argument against any power, as there are but few, if any, subjects on which the constitutional powers of Congress are exhausted. -Justice McLean in Dred Scott dissent
The Constitution’s biggest flaw
The Constitution’s biggest flaw was in protecting the institution of slavery. Many constitutional provisions did this. In Article 1, Section 9, prohibits Congress from banning the importation of slaves until 1808 and Article 5 prohibited this from being amended. Article 1, Section 2, stated that enslaved black people would be counted as three-fifths of the number of white inhabitants of that state. Article 4, Section 2, contains the “fugitive slave clause,”. This required an escaped slave be returned to his or her owner.
Ultimately, it took a Civil War and constitutional amendments to eliminate slavery.
When the framers of the 14th amendment argued over this legislation before it was passed, they very likely wanted to prevent another was in America. Being deprived of the constitution means the justice system failed and as a result we are at the brink of war. No doubt, history does repeat itself. If we as a society fail to fix this corrupt judicial system, it’s no doubt that it will be our children who suffer the most.
Footnotes
40 Howard, A.E. Dick (2008). “Magna Carta Comes To America”. Fourscore. 58 (4), p. 28.
41 “Magna Carta and Its American Legacy“. National Archives and Records Administration. Retrieved 30 January 2015.
42 Hall, Kermit (1992). Oxford Companion to the Supreme Court of the United States. Oxford University Press. p. 889. ISBN 9780195176612. American legal and constitutional scholars consider the Dred Scott decision to be the worst ever rendered by the Supreme Court. Historians have abundantly documented its role in crystallizing attitudes that led to war. Taney’s opinion stands as a model of censurable judicial craft and failed judicial statesmanship.
43 Urofsky, Melvin (January 5, 2023). “Dred Scott decision | Definition, History, Summary, Significance, & Facts | Britannica”. Encyclopædia Britannica. Retrieved February 3, 2023. Among constitutional scholars, Scott v. Sandford is widely considered the worst decision ever rendered by the Supreme Court. It has been cited in particular as the most egregious example in the court’s history of wrongly imposing a judicial solution on a political problem. A later chief justice, Charles Evans Hughes, famously characterized the decision as the court’s great “self-inflicted wound.”
44 Staff (October 14, 2015). “13 Worst Supreme Court Decisions of All Time”. FindLaw. Retrieved June 10, 2021.
45 Bernard Schwartz (1997). A Book of Legal Lists: The Best and Worst in American Law. Oxford University Press. p. 70. ISBN 978-0198026945.