Constitutional Amendments Provide No Protection from a Corrupt Supreme Court

Note: Do not be deceived by today’s 8-1 ruling upholding a law keeping guns out of the hands of domestic abusers. That was such a ridiculous suit that even the conservative justices—except, predictably, Clarence Thomas, who lacks a sense of both justice and nuance—could not go along. This decision should be more accurately viewed as cover for the egregious Second Amendment rulings to come.

In a recent interview on CNN, in the wake of the 6-3 decision to overturn the federal ban on “bump stocks,” Democratic Senator Chris Murphy of Connecticut warned that the Supreme Court is “readying to fundamentally rewrite the Second Amendment.”  He predicted that the Court would attempt to “take away permanently the ability of Congress to do simple things like require people to go through a background check or move forward on taking dangerous weapons like AR-15s off of the streets.”

The threat of the Court contorting an amendment to force-fit it into its own political agenda is real.

It has already happened.

In 1870, the requisite three-quarters of state legislatures ratified the Fifteenth Amendment, drafted explicitly to guarantee Black Americans, men at least, the right to vote.  The vast majority of these were among the four million newly freed slaves who, with Andrew Johnson as president, had fallen victim to “Black Codes,” which used a variety of machinations to doom newly anointed Black citizens to quasi-slavery.

The intent of the Fifteenth Amendment seemed clear, stating that the right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  Some in Congress, such as Charles Sumner and John Bingham, wanted stronger language, but to gain a two-thirds vote from a reluctant Congress, proponents had been forced to word the amendment obliquely.  As Eric Foner wrote, “Republicans had to choose between…an amendment establishing a uniform national standard that enfranchised virtually all adult male citizens, or a ‘negative’ one barring the use of race or other criteria to limit the right to vote but otherwise leaving qualifications in the hands of the states.”

With a white citizenry, both North and South, none too keen to see Black Americans attain full equality, and a Supreme Court with similar views willing to prevent that from happening, the negative wording proved to be a fatal flaw.

Over the next three decades, the Supreme Court not only effectively neutered the amendment, but also provided states a roadmap to show how it should be done.

They began the process a mere three years later.  In Strauder v. West Virginia, the Court invalidated a West Virginia law because it contained a explicit provision preventing Black men from serving on juries—juries being chosen from voting rolls—but in the very next case, Virginia v. Rives, upheld a Virginia law which effectively barred Black men from jury service without overtly saying so.  Southern states got the message—so long as their laws did not announce their intention to discriminate, the Court would uphold them, regardless of their real-world impact.

The following year, Associate Justice Joseph P. Bradley issued an even more devastating decision.  In a circuit court opinion in United States v. Cruikshank, which had nothing to do with voting rights, Bradley nonetheless wrote, “The Fifteenth Amendment confers no right to vote.  That is the exclusive prerogative of the states.  It does confer a right not to be excluded from voting by reason of race, color or previous condition of servitude, and this is all the right that Congress can enforce.”

Bradley’s wording was far from innocuous.  He had transferred the burden of proof from the state to demonstrate it had not discriminated to the individual whose right to vote had been denied to demonstrate that it had.  Under Bradley’s definition, if an African American was threatened, beaten, and his house burned to the ground to terrorize him into not voting, and the state refused to prosecute the offenders, the federal government could do nothing unless the victim could prove that the actions were motivated by race.  That task was difficult enough, but had the potential, which was fully realized, to become virtually impossible depending on the standard of proof the Court would require. 

By 1890, white supremacists in the South had suppressed the African American vote sufficiently to regain control of state governments.  To solidify that control and ensure their continued dominance, they began rewriting their state constitutions to provide the means to prevent all but a tiny minority of Black voters from casting ballots. Using Rives as a guidepost, nowhere in these new constitutions were literal prohibitions against African Americans registering, but literacy tests, property requirements, grandfather clauses, poll taxes, and other contrivances achieved the same result.

When the 1890 Mississippi constitution was challenged in Williams v. Mississippi, the Court, through recently appointed Justice Joseph McKenna, issued an extraordinary ruling.  Although virtually none of the state’s 907,000 Black residents remained eligible to vote, McKenna wrote that the Mississippi constitution did not “on [its] face discriminate between the races, and it has not been shown that their actual administration was evil; only that evil was possible under them.”  Echoing Bradley’s opinion in Cruikshank, McKenna had again placed the burden on Black voters to prove on a case-by-case basis that registrars had rejected their applications solely because of race.  

Five years later, in 1903, Oliver Wendell Holmes, Jr. finished the job when he declined to declare Alabama’s 1901 constitution void even though he agreed it was discriminatory.  (For details, see my earlier piece, Justice is Supposed to Be Blind—Judges Are Not.) 

The result was that the Fifteenth Amendment, written specifically to ensure that Black Americans were not denied the right to vote, was rendered useless for that very purpose by the Supreme Court.

Currently, in the hands of a Supreme Court that appears to care little for the fair administration of justice, the Second Amendment seems likely to suffer the same fate.  Despite all the palaver among conservatives touting inalienable gun rights, anyone reading the constitutional debates either in Philadelphia or in the state ratifying conventions cannot help but conclude that weapons possession was inextricably linked to the desire to entrust national defense to militias rather than a standing army.

As it stands, regardless of whether the nation’s founders believed that private individuals should have the right to own weapons—they did—an amendment clearly written for one purpose has been shapeshifted into another and the original intent has virtually disappeared from both jurisprudence and public discourse.  As a result, Second Amendment law has descended into the preposterous notion of whether the founders would have agreed that a man or woman, heavily armed, could stroll into a supermarket, movie theater, or public park with his or her hand on the grip of a holstered pistol in plain view of other citizens, including perhaps children.  In some states, residents can do just that without having obtained a permit for those weapons or training in their use and safe handling.

Finally, the question must be raised of whether the deliberate dismantling of a constitutional protection can be characterized as “corruption.”  

It can. Not financial corruption necessarily, although Justices Thomas and Alito might be qualify there as well, but it is certainly moral and ethical corruption. And like every corrupt public official, Supreme Court justices take umbrage at the accusation, dismissing their accusers as being political motivated when it is they who are guilty. Unlike other public officials, however, these justices, impervious to the checks that were supposedly written into the Constitution, can simply ignore their critics, or even sneer at them, without even the slightest fear of retribution.