In Federalist No. 78, Alexander Hamilton assured us that our fears of the judiciary were mislaid, unfounded even. He wrote that “whosoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Little could Hamilton have imagined the megalomaniacal judiciary or Congressional dereliction of our present state.
He continued, “This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power [The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.”]; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”
Hamilton wrote, “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” He emphasized that, “until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.” Hamilton appears not to have even entertained the notion that the very Article V amendment process he alluded to here would be circumvented by the judiciary. He appears not to have anticipated that the very meaning of “fundamental” would be revolutionized, nor to have asked, “Who watches the watchmen?”
We must note that judicial review is not the same thing as judicial revision. Judicial review was formulated in very narrow terms, only “as a means of policing the constitutional boundaries, the ‘limits’ of a given power.” Judicial review was not conceived of as a “license to supersede the exercise of power by the other branches within those boundaries. In fact, judicial participation in legislative policymaking was unmistakably excluded” by the Founders. The Court is not empowered to “strike down” anything at all. Indeed, during the Constitutional Convention of 1787, Edmund Randolph’s “Virginia Plan” called for a “Council of Revision” of legislation, where the President “and a convenient number of the National Judiciary” would “examine every act of Congress and by its dissent…constitute a veto.” Aside from Randolph, George Mason, James Wilson, and, perhaps most importantly, James Madison, each supported the proposal. Despite the influence of these luminaries, the Framers rejected the proposal “for reasons that unmistakably spell out the exclusion of the judiciary from even a share in policymaking.” Nathaniel Gorham stated that “as Judges, they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” Elbridge Gerry concurred, noting that “it was quite foreign from the nature of ye office to make them judges of the policy of public measures…It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights and Interests. It was making the Expositors of the Laws, their Legislators which ought never to be done.” Charles Pinckney wholeheartedly opposed “the interference of the Judges in the Legislative business.” Rufus King agreed that, as “the judges must interpret the Laws, they ought not to be legislators.” We could go on, as the examples cascade. Plainly, Berger concluded, “the Framers refused to make the judiciary ‘law-givers’, even to the extent of allowing them to share in the legislative making of law, let alone finally to decide on policy, an exclusively legislative function. They drew a line between the judicial reviewing function, that is, policing grants of power to [e]nsure that there were no encroachments beyond the grants, and legislative policymaking within those bounds.”
The notion that judges could make law as an instrument of social change was “altogether alien to colonial thinking.” The idea that the “fundamental” law was alterable by the judiciary was diametrically opposed to the Framers’ very intent in creating a “fixed Constitution.” Chief Justice Hutchinson of the Massachusetts Supreme Court wrote quite presciently in 1767 that “the Judge should never be the Legislator: Because then the Will of the Judge would be the Law: and this tends to a State of Slavery.” Edward Gibbon agreed that, indeed, “the discretion of the judge is the first engine of tyranny.” Similarly, Lord Camden wrote that “the discretion of a Judge is the law of tyrants…In the best of times it is often…caprice — in the worst, it is every vice, folly, and passion, to which human nature is liable.” Berger stated that it was evident that “no one remotely intimated that there would be judicial power to rewrite the Constitution. Nothing could have been better calculated to defeat ratification than a claim of judicial power that would leave the States altogether at the mercy of the federal courts.” Indeed, Justice James Iredell wrote of the Framers that, “having ‘smarted’ under the ‘omnipotent power of the British Parliament’…we should ‘have been guilty of…the grossest folly’ had we ‘established a despotic power among ourselves.’” As Berger remarked to this, “if this could be said of a legislature that could be turned out of office periodically, constitution-makers were even less ready to entrust unlimited power to an untried, unelected judiciary appointed for life.”
Justice William Douglas wrote in his Flast v. Cohen concurrence that “when the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention.” Chief Justice John Marshall wrote in Osborn v. Bank of the United States that “judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature.” In Kamper v. Hawkins, Judge James Henry of the Virginia Supreme Court wrote that “the judiciary from the nature of the office…could never be designed to determine upon the equity, necessity, or usefulness of a law: that would amount to an express interfering with the legislative branch…[N]ot being chosen immediately by the people, nor being accountable to them…they do not, and ought not, to represent the people in framing or repealing any law.” In Ware v. Hylton, Justice Iredell declared that “considerations of policy, considerations of extreme magnitude” were “certainly entirely incompetent to the examination and decision of a Court of Justice.”
For most of its first 150 years, the Court was content with its negative “boundary-policing” function. Berger stated that “it fell to the Warren Court to initiate policy when the legislative and executive failed to act, to take the lead in deciding what national policy ought to be. But the failure of Congress to exercise legislative power does not vest it in the Court.” The Court began to conceive of itself as the “national conscience”, the “moral voice” of America; as Berger sardonically remarked, “If Frenchmen would not be free and virtuous voluntarily, then [Robespierre] would force them to be free and cram virtue down their throats.” Berger asserted that there was “not a shred” of evidence to even remotely suggest “that the Founders contemplated that judges would serve as arbiters of morals. Their function…was merely to ‘construe’, to ‘interpret’ laws, not to infuse them with moral content. Having rejected judicial participation in policymaking, the Framers were little likely to embrace judicial supervision of morals. What ground was there for attributing special competence to judges in the field of morals?” Thomas Jefferson said it best: “I cannot give up my guidance to the magistrate, because he knows no more the way to Heaven than I do, and is less concerned to direct me than I am to go right.”
Those that argue for the fictional power of judicial revision often cite Chief Justice Marshall’s notorious dictum in McCulloch v. Maryland, that “this provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” As Berger put it, “Commentators at a loss to justify judicial arrogations fall back on” and have an “incantatory reliance on” this concept of the “living Constitution.” Berger argued that, to the contrary, Marshall’s words “have been removed from context…he flatly repudiated the revisory power…attributed to him…this was merely a plea for some freedom in the ‘choice of means’ to execute an existing power, not for license to create a fresh power at each new crisis.” James Madison was among the army of men who assailed McCulloch, rejecting “the replacement of the amendment process by judicial revision as an ‘assumption of powers never meant to be granted.’” To Madison’s quite valid charge, Marshall replied that the phrase “does not contain the most distant allusion to any extension by construction of the powers of Congress. Its sole object is to remind us that a constitution cannot possibly enumerate the means by which the powers of government are to be carried into execution.” Marshall asserted that the exercise of the judicial power to decide all questions “arising under the Constitution and laws” of the United States “cannot be the assertion of a right to change that instrument.” In other words, Marshall was really making an argument with reference to the “Necessary and Proper” Clause of Article I, Section VIII; we must add to Berger’s argument, though. What is “necessary and proper” in the execution of Congressional power presumes that Congress has the power to act in the first place. Furthermore, Marshall’s expansive reading of “necessary” is the opposite of what the Framers intended; the antonym of “necessary” is “unnecessary”, meaning that “necessary” is employed restrictively, as in, “absolutely crucial.”
In fact, even what Marshall did intend is still ominous, for herein is the creation of “incidental or implied unenumerated powers”; this concept of “implied enumeration” is oxymoronic to the extreme, one of the first doors, if not the first, through which the Tenth Amendment was abrogated. President Andrew Jackson saw this and rebutted Marshall’s “construction” in his 1832 veto message, blocking the re-chartering of the second Bank of the United States. President Jackson wrote that “mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered well settled…The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both…Thus may our own powers and the rights of the States, which we cannot directly curtail or invade, be frittered away and extinguished in the use of means employed by us to execute other powers…There are no necessary evils in government. Its evils only exist in its abuses…Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves — in making itself felt, not in its power, but in its beneficence; not in its control, but in its protection; not in binding the States more closely to the center, but leaving each to move unobstructed in its proper orbit.” In any case, Chief Justice Marshall did not advocate for judicial revisionism; as Berger said, “If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.”
Some may read the foregoing discussion and respond, “Okay. I see what you mean, and I understand everything. But…so what?” So what? As Lord Chief Justice Denman wrote, “The practice of a ruling power in the State is but a feeble proof of its legality.” Thomas Cooley wrote that “acquiescence for no length of time can legalize a clear usurpation of power.” We have by now proven that often, what the judiciary cloaks in the garb of “constitutionalism” is manifestly unconstitutional. Berger forcefully and wonderfully argued that “it is never too late to challenge the usurpation of power; one gains no title by prescription against the government, still less against the sovereign people. Power reserved to the [States] by the Tenth Amendment cannot be taken over by ‘squatter sovereignty.’…Usurpation—the exercise of power not granted—is not legitimated by repetition.” Dante observed that “usurpation of a right does not create a right.” To disavow and correct past depredations “is to pledge anew to abide by the Constitution, which the Justices are sworn to support.” Under our Constitution, a systematic delegation of limited and reserved powers, “the burden is on a claimant to point to the source of his power — failing which, it is a usurpation.” The Founders were essentially united in their belief in “a fixed Constitution of unchanging meaning. They accorded an inferior place in the federal scheme to the judiciary, deriving from suspicion of innovations by judges theretofore regarded with ‘aversion and distrust’…They were attached to the separation of powers and insisted that courts should not engage in policymaking but act only as interpreters. Above all, judges were not to act as revisers of the Constitution, for that function had been reserved to the people themselves by Article V, the provision for amendment of the Constitution.” Berger asserted that, “until the Court candidly discloses…that it is ‘making new law for a new day’, the people can hardly be held to acquiesce in what they have not been told. They have been told that the Court speaks with the voice of the Constitution; they are constantly told that ‘the Constitution (not the Justices) requires.’ And that cannot be converted into ratification of progressive judicial violation of its limits.”
In Eakin v. Raub, Justice John Gibson wrote that “precedents ought to go for absolutely nothing. The Constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine…the judge who asserts [the right of judicial review] ought to be prepared to maintain it on the principles of the Constitution.” As we have touched upon, the very idea of following “precedent” is a sick illusion. How can we refer to our inexorable motion ever farther away from the Framers’ design as “precedent”? The very nature of “precedent” is meant to reinforce the permanent truths, the bedrock upon which our society is founded; the precedential nature of constitutional jurisprudence is inherently traditionalist and originalist. Continuing headlong into the night, deeper and deeper into the slough of despair, continuing to travel down the wrong path, cannot be following precedent. A return to precedent has to be a return to the Founding. The Constitution is the embodiment of “fundamental choices that have been made by the people, and the task of the Courts is to effectuate them, ‘not [to] construct new rights.’ When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power. No dispensation was given to the Court to step outside its powers; it is no less bound by constitutional limits than are the other branches…it was clearly excluded from participation in the making of policy, the function of the legislature…we need to be rid of ‘the illusion that personal power can be benevolently exercised.’”
Berger brilliantly quipped, as to the distinction between review and revision, that “plainly a power to sell a mule does not authorize sale of the barn.” The judicial review that was provided for by the Framers is wholly different creature than the mutant bastard masquerading as judicial review that we are yoked to today, judicial revision. Policing the delineated boundaries of a fixed Constitution is nothing like rewriting and extraconstitutionally “amending” the Constitution. With each step away from the Framers’ design, with each new abrogation of the separation of powers, the Supreme Court has “engaged in a dazzling display of seemingly free-hand constitution-making without apparent concern for the intention of the Constitutors.” The judiciary has thus claimed for itself a panoptic power as “a catalyst of social change with judges acting as planners and even managers of large-scale intervention in social and economic life.” The Court proudly proclaims that it simply knows better than we mere serfs. We are neither credentialed nor imbued with the deep sense of “morality” that historical accident has conferred upon them. Judges, Berger wrote, “are not oracles who, indifferent to the passions of the time, divine the true meaning of the Constitution. What a judge is ‘really discovering…are his own values.” Justice Jackson admitted in West Virginia State Board of Education v. Barnette that “we act in these matters not by authority of our competence but by force of our commissions.” Berger described with aplomb the doctrine of judicial revisionism laid bare: “Baldly stated, if a result is benign, ergo it is constitutional; the end justifies the means. Against the ‘consequences’ of repudiating unconstitutional decisions…should be weighed the cost of countenancing undeniable judicial arrogations of power, the Court’s operation as a continuing constitutional convention. The view that it is too late to effectuate the unmistakable intention of the Framers is tantamount to claiming that long-standing usurpation confers title. But squatter sovereignty does not run against the people. No one, the Court declared [in Walz v. Tax Commission], ‘acquires a vested interest or protected right in violation of the Constitution by long use.’”
Thomas Jefferson wrote that the Constitution is solely to be construed in conformance to the “safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption — a meaning to be found in the explanation of those who advocated it.” In Marbury v. Madison, Chief Justice Marshall asked the imperative question: “Why does a judge swear to discharge his duties agreeably to the Constitution…if that Constitution forms no rule for his government?” Berger emphasized, as we examined in the light of Chesterton’s “democracy of the dead”, that “our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession.” Similarly, Edmund Burke wrote that society is “a partnership not only by those who are living, but between those who are living, those who are dead, and those who are to be born.” The words within the original Constitution, and those within each appended Amendment, are fixed with unalterable meaning at the very moment that they are written, adopted, and ratified. Justice James Wilson believed that “the first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” In Gibbons v. Ogden, Chief Justice Marshall wrote that if a word “was so understood…when the Constitution was framed…[t]he Convention must have used it in that sense.” In Eisner v. Macomber, Justice Holmes declared that any Amendment must be read in the “sense most obvious to the common understanding at the time of its adoption.”
In the debates of the Thirty-Ninth Congress, the framers of the Fourteenth Amendment bequeathed us “a transcript of their minds.” The evidence overwhelmingly compels us to conclude that the Amendment was meant only to ban judicial and statutory discrimination with respect to the specifically enumerated “fundamental” rights, each of which carried its own fixed meaning — life, liberty, and property. The unanimous Senate Judiciary Committee Report, signed by the Senators who had voted for the Thirteenth, Fourteenth, and Fifteenth, or “Reconstruction” Amendments, stated thus: “In construing the Constitution we are compelled to give it such interpretation as will secure the result which was intended to be accomplished by those who framed it and the people who adopted it…A construction which should give the phrase…a meaning different from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution in any other particular.”
The amendment process outlined in Article V is the exclusive means by which the Constitution may be altered, “under the long-standing maxim that to name a particular mode is to exclude all others.” Amendments were designed to be extremely difficult to achieve, because of the sheer gravity of the task undertaken; it is imperative that this is so, for the alternative is the perpetual revolutionary Year Zero that the Regime has inculcated. Elbridge Gerry confirmed this, stating that “the people have [directed] a particular mode of making Amendments, which we are not at liberty to depart from…Such a power [to alter] would render the most important clause of the Constitution nugatory.” Gerry, along with many of the other Framers, believed that it was self-evident that “an attempt to amend” the Constitution by any other means “may be a high crime and misdemeanor”, i.e., an impeachable offense. Alexander Hamilton agreed, declaring that “judges who usurped power, for example, exercised a power withheld…could be impeached.” Wise words. Kritarchy far exceeds the boundaries of “good behavior.” Judicial contravention of the will of the people is an assault on our nation; merely take the issue of obscenity as an example—as the result of the Court’s obscenity rulings, unsupported by popular mandate or historical precedent, “the nation is deluged by a flood of blatant pornography and filth that the people are powerless to deal with.” From whence, then, does this assumed power of the Court to jettison Article V and “impose a solution on the people that confessedly could not have obtained their assent” arise? This inquiry is one of the most important tasks we may embark upon, for, as John Adams said, “A frequent recurrence to the fundamental principles of the Constitution…[is] absolutely necessary to preserve the advantages of liberty and to maintain a free government…The people…have a right to require of their law givers and magistrates an exact and constant observance of them.”
Power lusts for power, as the horizon endlessly recedes. Berger remarked that “it is axiomatic that all wielders of power, judges included, ever thirst for more.” James Madison understood this, that “power is of an encroaching nature…it ought to be effectually restrained from passing the limits assigned to it.” Thomas Jefferson affirmed that “it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power…In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” At the Virginia Ratification Convention, Francis Corbin said that “liberty is secured…by the limitation of [the government’s] powers, which are clearly and unequivocally defined.” In the First Congress, James Jackson emphasized that “we must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government.” The Founders all of a piece shared a commitment to written limits on power. Any and every exercise of power absolutely must be predicated on a concrete source, which can only ever be the fixed meaning of the Constitution. Berger explained that the Constitution was written “to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power”, “according to the ‘law of the land’, not by the ‘law of judges’…Our system is committed to ‘equal justice under law’, not to ‘Justices above the law.’ They were not authorized to revise the Constitution in the interests of ‘justice.’”
As Jefferson wrote, “I had rather ask for an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction. If [power is boundless] then we have no Constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.” That “definition” was concrete and eternal, “to be read in light of the explanations made to those who ratified the Constitution.” Following the logic of originalism, Justice George Sutherland asserted in Home Building & Loan Association v. Blaisdell that “the whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it…As nearly as possible we should place ourselves in the condition of those who framed and adopted it.” The Court’s contention that favored policies are “constitutional”, and disfavored “unconstitutional”, is a substitution of its value choices for the choices carefully made by men far greater than we; it is the epitome of folly, tearing asunder “the basic principle of government by consent of the governed…No power to revise the Constitution under the guise of ‘interpretation’ was conferred on the Court; it does so only because the people have not grasped the reality—an unsafe foundation for power.”
Judge Learned Hand called attention to the sordid fact that judges “wrap up their veto in a protective veil of adjectives such as…‘reasonable’, ‘inherent’, ‘fundamental’…whose office usually…is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.” Berger noted that, just “as in the case of the Chinese ‘mandate from heaven’, we learn a right is ‘fundamental’ only after the Court attaches that label.” Hamilton wrote in Federalist No. 25 that “every breach of the fundamental laws…impairs the sacred reverence which ought to be maintained in the breasts of the rulers towards the Constitution.” President George Washington, the American Cincinnatus, said it best in his Farewell Address: “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an Amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”
The judiciary now governs on behalf of the Egalitarian Regime as a panel of self-appointed Platonic Guardians with a narcissistic savior complex. As Justice Hand said, the Supreme Court cloaks its own whims and fancies for the “self-evident” beliefs of the Founders, a totemic appeal to an historical precedent that simply does not exist. Robert Bork, erstwhile Supreme Court nominee, said that the Court “regularly insists that its results…do not spring from the mere will of the Justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution…Value choices are attributed to the Founding Fathers, not to the Court.” As Bork observed, “The way an institution advertises tells you what it thinks its customers demand.” Donald Santarelli, Associate Deputy Attorney General in the Nixon Administration, spoke quite candidly on this matter: “The Constitution is flexible…Your point of view depends on whether you’re winning…The language of the Constitution is not at issue. It is what you can interpret it to mean in the light of modern needs. In talking about a ‘Constitutional crisis’ we are not grappling with the real needs of running the country but are using the issues for the self-serving purpose of striking a new balance of power…Today, the whole Constitution is up for grabs.”
Berger wrote that “to thrust aside the dead hands of the Framers is to thrust aside the Constitution. The argument that new meanings may be given to words employed by the Framers aborts their design; it reduces the Constitution to an empty shell into which each shifting judicial majority pours its own preferences.” “Constitutional law”, the cuckoo bird masquerading as the Constitution, is “given a ‘new look’ when a Warren succeeds a Vinson…The changes can be fateful. Vinson ‘held fast to the position that the judiciary should not be an aggressive instrument for invalidating school segregation.’ He was succeeded in the midst of the desegregation case by Warren, and…’in conference at least three Justices came close to dissenting until their new Chief put on all the pressure he could wield.’…Citations can be multiplied. Should what is ‘socially desirable’ for a nation of [350 million] people turn on such accidents? Should grave national policy be the sport of circumstance?” In Oregon v. Mitchell, Justice John Harlan II wrote that, “when the Court gives the language of the Constitution an unforeseen application, it does so…in the name of some underlying purpose of the Framers…[T]he federal judiciary…has no inherent general authority to establish norms for the rest of society…When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its high duty to protect.” Berger made the quite terrifying observation that “what the ‘national conscience’ is at any given moment depends on shifting personnel and the nature of the appointees. The replacement of one or two Justices may result in a complete reversal of the prevailing conscience, as when Warren succeeded Vinson. How can we put our trust in a conscience that changes color with every judicial succession, itself subject to shifting political winds?”
The Fourteenth Amendment has thus been replaced in the night with an alien body snatcher. Undeniably, its framers excluded both suffrage and segregation. “Incorporation” of the Bill of Rights against the States was not contemplated. The Amendment, as an embodiment of the Civil Rights Act of 1866, was confined exclusively to the protection of the specifically enumerated “fundamental” civil rights of life, liberty, and property, against statutory and judicial discrimination by the States. The framers deliberately withheld “federal power to supply those rights where they were not granted by the State to anybody, white or black.” “Privileges or immunities”, “due process of law”, and “equal protection of the laws” were not “conveniently vague” “majestic generalities”, but were rather carefully chosen terms of art that expressed these limited aims; we must also remember that the framers were not motivated by abolitionist ideology, or even by anything resembling the egalitarianism and Civil Rights mania with which they have been retroactively imbued. As Berger put it, “Given the clarity of the framers’ intention, it is on settled principles as good as written into the text. To ‘interpret’ the Amendment in diametrical opposition to that intention is to rewrite the Constitution. Whence does the Court derive authority to revise the Constitution? In a government of limited powers, it needs always be asked: what is the source of the power claimed?” Justice Iredell confirmed that any law, or any government action at all, “not warranted by the Constitution…is bare-faced usurpation.” The Court has battered the Fourteenth Amendment far beyond the assumption of powers “not warranted”; the litany of ends to which the Amendment has been put “represent the arrogation of powers that the framers plainly excluded. The Court…has flouted the will of the framers and substituted an interpretation in flat contradiction of the original design”, which was to leave States’ Rights intact.
Chief Justice Warren’s chilling assertion that “we cannot turn back the clock”, Berger remarked, “rejected the framers’ intention as irrelevant. On that premise the entire Constitution merely has such relevance as the Court chooses to give it, and the Court is truly a ‘continuing constitutional convention’, constantly engaged in revising the Constitution, a role clearly withheld from the Court. Such conduct impels one to conclude that the Justices are become a law unto themselves.” Judge Hand wrote that “if we do need a third [legislative] chamber it should appear for what it is, and not as the interpreter of inscrutable principles.” Berger asked, “How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally?” Not long. Merely witness the political spectacle surrounding the Court today, as well as the ubiquitous habit of Americans to appeal to the Constitution; we deify the Court, hanging onto every last word as the Word of God. Indeed, Gerhard Casper noted that the “American concept of the legitimacy of government is closely tied to the Constitution [“the secular equivalent of the Bible”]. Its limitless manipulation may endanger the very legitimacy that has been the greatest accomplishment of American constitutionalism.” We cannot afford to “tolerate the spectacle of a Court that pretends to apply constitutional mandates while in fact revising them in accord with the preference of a majority of the Justices who seek to impose their will on the nation.” Berger admonished that we must not let it be said of us as Gibbon said of Rome, that “the image of a free Constitution was preserved with decent reverence.” The Western tradition does not blindly uphold “precedent” simply for the sake of precedent, but rather “seeks to rectify, not to build upon, mistakes.” As President William Taft urged us in 1911, “Make your judges responsible. Impeach them. Impeachment of a judge would be a very healthful thing in these times.”
The Garden of American Zeroes
President Donald Trump put on a disappointing display at Mount Rushmore on July 3rd. President Trump opened his remarks by asserting that the Founding Fathers launched “a revolution in the pursuit of equality” and “human progress” by enshrining the “divine truth” that “all men are created equal”, thus setting in motion “the unstoppable march of freedom.” The President went on to repeat Abraham Lincoln’s claptrap, “of the people, by the people, for the people.”
Never mind that President Lincoln, in his Gettysburg Address, completely rewrote the American Founding as having sprung from the Declaration of Independence, fully formed as one nation as Athena sprung from the head of Zeus, “dedicated to the proposition that all men are created equal.” Never mind that the Declaration of Independence was a work of political rhetoric, not a Founding document or nationalist exposition; as Raoul Berger explained, “to import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the ‘excesses’ of popularly controlled legislatures.” That Declaration was also drawn by the Continental Congress, “a league of independent States, each of which jealously guarded its independence.”
Lincoln’s Gettysburg Address is doubly fraudulent, for not only does it falsely trace the Founding to the Declaration, but it also totally misconstrues that document. Jared Taylor has time and again splendidly exposed what the Founders truly thought about race. When Thomas Jefferson wrote that “all men are created equal”, he did not share the egalitarian definition of “equality.” This was an argument by Englishmen, directed at Englishmen, an argument that was directed upwards, not downwards as some sort of levelling. The American colonists were asserting their rights as Englishmen against the British Crown, to be treated as the Englishmen that they believed they were, rather than a second-class peonage. Additionally, even if we were to concede that the Second Continental Congress actually meant that “all men are created equal” — and they did not, certainly not according to our present “individual rights” fixation — this phrase still does not mean what the bipartisan Left would have us believe, for legal or civil equality was never understood as coextensive with social equality. The Founders did, however, believe that all men were created equal, with the vital understanding that “equal” in the eyes of God is not “equal” in the eyes of man.
The monuments that President Trump laments are of the tyrant Abraham Lincoln, the drunken lout “Ulysses S. Grant” (not his real name, by the way), and sundry abolitionists. Trump named Lincoln as “the savior of our union”, “the first Republican President” (because “Democrats are the real racists” is the new Republican platform, thanks to buffoons like Dinesh D’Souza) who “rose to high office from obscurity, based on a force and clarity of his anti-slavery convictions. Very, very strong convictions.” Trump continued, “He served as Commander-in-Chief of the U.S. Armed Forces during our bloodiest war, the struggle that saved our union and extinguished the evil of slavery.” Never mind that slavery not only was not the cause for the War of Southern Independence, it was not even a cause, serving only as a rhetorical weapon inflamed and exploited by Northern Radicals.
The President hit a new low and solemnly declared that, “at Gettysburg, 157 years ago, the Union bravely withstood an assault of nearly 15,000 men and threw back Pickett’s charge.” Pickett’s Charge, one of the greatest moments not merely in Southern history but in the history of Western Civilization, a testament to the very best men that our nation has ever produced, reduced to an evil attack that was blessedly vanquished. Trump went on with his authorized history of the United States, stating that “Lincoln won the Civil War, issued the Emancipation Proclamation, and led the passage of the Thirteenth Amendment, abolishing slavery for all time.” Never mind that the Emancipation Proclamation was a political document that, by design, freed not a single slave and served only to retroactively graft a grand moral narrative onto a war of ruthless conquest.
Trump cited the nonexistent “Judeo-Christian” Founding (would anyone care to tell me how many of the Founders were Jewish?), and decried the “radicals would tear down the very heritage for which men gave their lives to win the Civil War”, who “would erase the memory that inspired those soldiers to go to their deaths, singing these words of the Battle Hymn of the Republic: ‘As He died to make men Holy, let us die to make men free, while God is marching on.’” The Leftist revolution from above (this is important to note, as the blacks on parade in our streets are incapable of funding or organizing themselves, merely functioning as footsoldiers in a plot far greater than they could imagine), Trump continued, “would tear down the principles that propelled the abolition of slavery in America and, ultimately, around the world, ending an evil institution that had plagued humanity for thousands and thousands of years. Our opponents would tear apart the very documents that Martin Luther King used to express his dream, and the ideas that were the foundation of the righteous movement for Civil Rights. They would tear down the beliefs, culture, and identity that have made America the most vibrant and tolerant society in the history of the Earth.”
Evidently in an attempt to pursue Candace Owens’ will-o’-the-wisp, “Blexit”, Trump’s grand climax was that “we must demand that our children are taught once again to see America as did Reverend Martin Luther King, when he said that the Founders had signed ‘a promissory note’ to every future generation. Dr. King saw that the mission of justice required us to fully embrace our founding ideals. Those ideals are so important to us — the founding ideals. He called on his fellow citizens not to rip down their heritage, but to live up to their heritage.” Right, because the Founders established America to secure transgender rights and install a black supremacist government, because American history is simply a linear progression of “fulfilling the Founders’ vision” by creating the “rights” of infanticide and mass immigration. Could this speech get any worse? Of course.
President Trump announced a new executive order, to establish a “National Garden of American Heroes.” Who are these “American heroes”? Susan B. Anthony. Frederick Douglass. Martin Luther King, a Communist agitator who, at the very least, stood by and chuckled as a woman was raped in the room with him. Abraham Lincoln, the pioneer of “total war” whose heathen commanders put the South to the sword and an enduring, crushing poverty. Christa McAuliffe is an American hero? She died a tragic death, sure, but how exactly is she an American hero? Jackie Robinson. Harriet Beecher Stowe, the demagogue whose grossly inaccurate polemic Uncle Tom’s Cabin helped fan the flames that led to the War for Southern Independence. The icing on the cake, however, is Harriet Tubman, an irrelevant nonentity to whom no serious historian would even devote a fraction of a footnote.
President Trump almost certainly didn’t write this treacle himself. I’m sure that he really does believe “Dr.” Martin Luther King advocated for “colorblindness”, and that he deserves to share the honor with Jesus Christ of having a federal holiday on his birthday. I’m sure that the Republicans of Mississippi really do believe that the Confederacy was abhorrent. I’m sure that Republicans in the Senate really believe that Army bases should be renamed, that “Juneteenth”, a joke almost as hilarious as “Kwanzaa”, should replace Columbus Day; Mark Steyn is absolutely correct to predict that “Juneteenth” will simply be “the anti-Fourth of July” and eventually subsume our Independence Day. I’m sure that Donald Trump believes his speech will secure the votes of his base, just as he believes will his cynically-timed pardon of Roger Stone. None of this is an excuse.
In conversation with me on the Fourth of July, Paul Gottfried discussed the disgusting scene in the shadow of Mount Rushmore, commenting quite accurately that “after the first ten minutes of the speech, I thought I was listening to Michelle Obama or, even worse, Rich Lowry.” Mr. Gottfried noted that, “after hearing Donald’s supposedly inclusive oration last night, it dawned on me that he and his neocon-GOP advisers consider Southern whites to be so worthless (except as voters) that they’ve decided to cancel their culture. Although there were multiple references to Lincoln’s struggle for equality and the speeches of MLK, and even mention of Harriet Tubman, there were no Southern white heroes except for Jefferson (as the author of the ‘All men are created equal’ phrase in the Declaration of Independence) whom Americans were urged to admire. I also had the impression that Trump was condoning the vandalization of Confederate monuments, which, it would seem from his speech, don’t belong to his neocon-MLK version of the ‘American heritage.’” By his unmitigated praise of everything except the South, President Trump, whether intentionally or not, bestowed upon Black Lives Matter terrorists the implicit right to perpetrate cultural (for now) genocide against Southern history.
The Wall Street Journal Editorial Board recently said as much, though more explicitly, writing that “this current anti-monument wave degrades what originated as a legitimate grievance: the presence of Confederate monuments, many erected during the Jim Crow era to perpetuate the Lost Cause myth and advance white supremacy. But that idea has been taken over now by what has turned into a mob intent on willy-nilly eradication of chunks of American history.” Here, we see the same legitimization of the vilification and eradication of Southern culture and history, the Journal advancing the absurd argument that the horde has only just now “turned into a mob” since it has turned its attention to more “mainstream” symbols of American, though, more specifically, white history. Make no mistake — now that the New York Times has turned the horde loose upon Mount Rushmore, it will be sandblasted in due course. Color me surprised that Stone Mountain wasn’t dynamited first.
The most crucial and underexamined aspect to this Cultural Revolution is the complete absence of any sort of counterrevolutionary pushback. We are in uncharted territory, as Newton’s Third Law of Motion has simply ceased to operate. To those of us sympathetic to separatism and secession, myself included, Mr. Gottfried asserts, honestly and unequivocally, that “there can be no secession if the Right continues to show signs of brain death. Since there is no pushback the Left has won by default.” There is no organized Right, just as there is no institutional Right; the American “conservative” movement, as Mr. Gottfried has emphasized throughout his entire academic career, is nothing but “an instrument of the Left intended to neutralize the Right.” As the great Southern Presbyterian R.L. Dabney wrote over a century ago, “American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition.”
Mr. Gottfried observed that, “from the utter indifference of most Southerners to the desecration of their history, one might think these denizens of the Southland are in perpetual hibernation, except for barbecues and football.” Football, of course, being an early mechanism by which the worship of blacks was facilitated on a large scale, as well as an Achilles heel that Leftists use to target Southern State legislatures. We can look forward to hearing the “black national anthem”, whatever that is, at NFL games now. Do we Southrons care about our heritage? I do, and my fellow compatriots in the Sons of Confederate Veterans do, I’m not all that convinced that the rest of the population does. The Solid South was suffocated long ago. It might sound cruel, even verging on victim-blaming, but Mr. Gottfried is correct, as ever, to observe that “white Southerners have brought this on themselves by allowing both parties and the conservative movement to spit in their faces, without reacting.” We did this to ourselves. Neoconservative shills like Lindsey Graham and Tim Scott vomit on a plate and we lick it up, asking, “Please, master, give us more.” We demand nothing in return.
The White House, Mr. Gottfried continued, “takes Southern white votes entirely for granted. In fact, it has begun to treat Southern whites like Nazis while assuming their votes will be there in November.” The President “thinks he can spit on Southerners and allow their monuments to be vandalized and torn down but these fools will vote for him anyhow.” If only he could spend one tenth the time on us that his campaign spends on interests that solely benefit blacks and harm whites, like “criminal justice reform.” Will we allow President Trump to get away with reverently speaking of Martin Luther King’s “promissory note”, thereby implying that we must pay some great debt, some unfulfilled promise, to “minorities”? If the recent past is any indicator, the answer to this will be yes, though there are signs that Trump is finally, rightfully, losing the white vote; as one writer has pointed out, these whites aren’t decamping for “Joe Biden” — they are simply dropping out. In the final analysis, the President used his speech to essentially sanction the destruction of Confederate monuments and the Stalinist erasure of Southern heroes from the pantheon of “American heroes.” I am surprised that Denmark Vesey, Nat Turner, and John Brown were not included in Trump’s Garden. In his bumbling as always attempt to condemn the Left, he legitimated the “1619” fallacy that lies behind its entire crusade.
Although Mr. Gottfried suggests that Southerners must make ourselves heard and prove that we do care about our history by writing a letter of protest to the Trump Administration, burnished with hundreds of signatories and indicating that “the undersigned are rethinking their decision to vote for the President after his insulting and demeaning speech”, I advocate a stronger course of action. In short, sans the wanton violence, we must emulate the Left. Look at how Black Lives Matter has been able to catapult the names of countless irrelevant black thugs from obscurity to international name recognition, all of whose victim narratives are almost wholly fraudulent. Our victims, the martyrs so gruesomely sacrificed upon the altar of Diversity, number in the tens of thousands. Our narratives are ironclad. We have God and His truth on our side. Why not start a mass protest movement? Why not call it “White Lives Matter”? Why not make our rallying cries, “Remember Wichita”, “Remember Knoxville”, and remember the tens of thousands of other names that people like Paul Kersey and Colin Flaherty have so painstakingly documented? Why not take up as our mantra the name of Jessica Whitaker, or the name of the legion of other innocents whose brutal murder as the propitiation of sin for their “white privilege” has been so brazenly ignored by the Lügenpresse? Afrikaner organizations such as AfriForum have adopted mass protest tactics to commemorate the memories of the legions of white South African farmers who have been mercilessly slaughtered there since the installation of black rule. We can easily do the same.
Finally, we must hearken back to something that Clyde Wilson said to me, the first time that we met, at Maurice’s Piggie Park in Columbia, South Carolina: “We must destroy the Republican Party.” As I have written (here, here, here, and here), the Republican Party exists only to coopt and neutralize any real Right before it can emerge. There is less than no reason to vote for the Republican Party, for until it is eviscerated and rebuilt to serve the interests of its constituents (not too much to ask, is it?), it is our enemy. An extension of the Trump Administration will not abate the Revolution. Fat lot of good “conservative” leadership has done the nation, with eight years of George W. Bush, one of the worst Presidents in American history, leading to another eight years of the mysterious Great Destabilizer Barack Hussein Obama, leading to the current latter-day James Buchanan unwilling to lift his eyes from Twitter to take meaningful action on behalf of his own supporters. What of those mythical “conservative judges” that the Trump campaign loves to talk about? Give me a break.
To place our faith in the GOP again is to join Wovoka in the Ghost Dance. The recent primary victory of the airhead open Chamber of Commerce shill Tommy Tuberville (who, by the way, isn’t even from Alabama) over the original America First patriot Jeff Sessions is an awful portent. It reveals that Paul Gottfried was correct: the white South no longer appears to care whether it lives or dies. As Tucker Carlson has observed, the senile “Joe Biden” is not the opponent, that role filled by the totalitarian Egalitarian Regime cynically using Biden as the first truly empty suit, a version of “Chauncey Gardiner” from Hal Ashby’s Being There. At least an open and avowed Leftist Administration, rather than the closeted Leftist GOP, would, as Mr. Gottfried suggested, “advance the contradictions of the system faster and culminate with some luck in a counterrevolution.” The coming totalitarian Left is just that, coming. It cannot be halted at this time, whether a Republican sleeps (and sleep he does indeed) in the White House or not. Rather than breed more “#WINNING” complacency, we may as well hit the gas and hope that it will finally force us to act. We might as well get it over with, for if the gambit fails, and we still don’t act, we wouldn’t have acted anyways. And in that case, we will deserve everything that’s coming.
As we have seen, the Fourteenth Amendment cannot be said to be a part of our Constitution, as it was neither constitutionally proposed and submitted to the states nor constitutionally ratified. Even were we to push all of that aside and concede that the Amendment is constitutional, however, the past three-quarters of a century of jurisprudence has deliberately obfuscated the intended restrictive meaning of the Fourteenth Amendment by investing its specifically limited terms of art, “privileges or immunities”, “due process of law”, and “equal protection of the laws”, with infinitely expanding meanings to fit the policy goals of the Egalitarian Regime. Again, even were we to take the Fourteenth Amendment seriously as a piece of the Constitution, the past seventy years of result-oriented jurisprudence, employing strenuous mental gymnastics to reason backwards to preordained conclusions, has been patently incorrect. The late Raoul Berger’s Government by Judiciary launched a blistering attack on the modern Supreme Court and its transformation of the Fourteenth Amendment from “civil rights” to Civil Rights ideology. Berger, it must be stated, was no reactionary; he had been a darling of the Leftist legal elite up until its publication. Berger had the “standard political principles of the moderate left of the Democratic party”, but, unlike his colleagues, simply had “no pretense of identifying them with constitutional mandates.”
Berger concluded, perhaps more accurately than he knew, that the Supreme Court of the United States “had been handing down decisions interpreting the Fourteenth Amendment improperly, willfully ignoring or willfully distorting the history of its enactment…the authors of the Amendment, far from contemplating a social and political revolution…intended only to protect the freedmen…the two key passages in the Fourteenth Amendment — privileges or immunities of citizens and due process of law — far from being vague and elastic…were ‘terms of art’ that had precise, well-understood, and narrow legal meanings. ‘Equal protection’, a new concept, was identified by the framers with the right to contract, to own property, and to have access to the courts.” By implication, then, nearly every case involving the Fourteenth Amendment, many of which irredeemably reorganized American society, had been “decided unconstitutionally, representing not law but the whims and values of the Justices of the Supreme Court.” Forrest McDonald, in his foreword to Berger’s work, noted that “so thoroughly did Berger rout his critics that, after a decade or so, they virtually stopped trying. Instead, advocates of judicial activism began to assert that neither the words of the Constitution nor the intentions of the Framers are any longer relevant.”
In 1985, Justice William Brennan declared that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” In response to this abhorrent revolutionary mantra, we are well-served to recall Justice Scalia’s words in his Sebelius dissent: “The Constitution…enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers.” Wallace Mendelson responded to Brennan’s statement by noting that the only “great principles” are “the consent of the governed, the diffusion of power, and the rule of law”, all of which have been undermined by the Supreme Court. Brennan’s acolyte, Justice Thurgood Marshall, better known as the lawyer for the NAACP in Brown, made a similarly grotesque statement at the 1987 bicentennial of the Constitution: “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start.’” Marshall continued that “several Amendments, civil war [sic], and momentous social transformation” were necessary before we achieved a truly “constitutional government.” This is merely shades of the abolitionist William Lloyd Garrison, who burned a copy of the Constitution on Independence Day 1854 and, in the pages of The Liberator, described the Constitution as “the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villainy ever exhibited on earth” and “null and void from the beginning”, and, “dripping as it is with human blood”, a “covenant with death” and “agreement with Hell.”
James Madison, the primary drafter of the Constitution, stated definitively that if “the sense in which the Constitution was accepted and ratified by the Nation…be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers.” The Fourteenth Amendment is the “case study par excellence” of the transformation of the federal judiciary into what Berger described a “continuing constitutional convention.” Masquerading as “interpretation”, the Justices of the Supreme Court have deformed the Constitution into a malleable and contentless open-source code, declaring that specifically limited terms of art are in fact “conveniently vague” sphinxes into which any contrivances may be injected. Rather than do its duty, solely “to police the boundaries drawn in the Constitution”, the Court has used the Fourteenth Amendment to legislate, rewriting the Constitution in order to achieve policy ends which the American public do not support. The exclusive method of amending the Constitution, the amendment process outlined in Article V, has thus been circumvented ad infinitum. The American people have been reduced to a state of peonage; the most controversial, life-altering decisions that have been made in the past seventy years — decisions that have drastically changed the face of our nation — have been made not by them, or even by their elected representatives, but rather by a panel of unelected attorneys whose power stems from pure historical accident. As Berger wrote, the Constitution “‘lies at the core’ of our ‘civil religion’; until it is changed by amendment, the people are free to govern their own destiny, not to be ruled by ‘Platonic Guardians’ who often are creatures of political accident, virtually irremovable and irreversible.”
The key to understanding the Fourteenth Amendment is that its framers were not interested in radical abolitionist goals of reorganizing society, but rather in maintaining and reinforcing Republican hegemony. Indeed, Berger remarked, “the North was shot through with Negrophobia” and was “far from anxious to embark on fresh crusades for the realization of still other abolitionist goals.” Witness the meaning of “civil rights” for Radical Republican Representative Henry Davis, for whom the Freedmen’s Bureau was “a cunningly devised machinery…that is itself a government”, a weapon to “keep up distrust and hostility between the black and white races in the Southern States…with the aid of our friends and accomplices, the officers and agents of the Freedmen’s Bureau, and their supporting police, we will be the cotton kings, and control the political power of the Southern States.”
The three clauses of section one, “privileges or immunities”, “due process of law”, and “equal protection of the laws, were three facets of “one and the same concern”, which was simply to secure for newly-freed blacks the “fundamental rights” of life, liberty, and property. As Sumner said, the freedman was to have “the shield of impartial laws. Let him be heard in court.” Berger elaborated, noting that this “shield…was expressed in ‘equal protection of the laws’; access to protection by the courts found expression in ‘due process of law.’ The framers…had no thought of creating unfamiliar rights of unknown, far-reaching extent by use of the words ‘equal protection’ and ‘due process.’ Instead, they meant to secure familiar, ‘fundamental rights’, and only those.” The Amendment was not written to reach segregation or suffrage, nor the voting qualifications attached to suffrage; indeed, “the proof is all but incontrovertible that the framers meant to leave control of suffrage with the States…and to exclude federal intrusion.” There exists not a whiff of evidence to suggest anything otherwise. Indeed, Justice Oliver Holmes would later warn that “we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe…the Fourteenth Amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the State may pass.”
Berger called attention to a common error in judicial activist ideology; proponents of the infinite expansion of the Amendment “have assumed that advocates of a restricted construction have the burden of proving that the framers’ objectives were limited. The shoe is on the other foot; an interpretation that invades what had long been considered the exclusive province of the States…requires some justification. It is not enough in that situation that the words are capable of a broad meaning; the reservation to the States in the Tenth Amendment of powers not delegated to the federal government calls for a clear showing that the successor Amendment was designed to curtail those reserved powers.” Such a showing, as we shall see, cannot be made; indeed, quite the opposite. Judicial revisionism was anathema to the Founders, who had a “profound fear of judicial independence and discretion.” Influenced by the English Puritans’ concerns that legal meanings “could be twisted by means of judicial construction” and “the corruptive process” of interpretation, Madison and Thomas Jefferson attached great weight to the rule of originalism, a brake on judicial arrogation asserting that “a document is to be construed in light of the…original intention”, for “who knows better what the writer means than the writer himself?” In the words of John Selden, “A man’s writing has but one true sense, which is that which the author meant when he writ it.” Berger remarked that “to maintain the contrary is to insist that the reader better knows what the writer meant than the writer himself.”
The robed kritarchs of the Court believe just that; the Justices “have taken over from the people control of their own destiny, an awesome exercise of power.” The Justices have substituted their own meanings for those of the Founders, thereby displacing the choices made by the people in ratifying the Constitution and abrogating “the basic principle of consent by the governed.” This sordid state calls to mind the words of G.K. Chesterton, who wrote in his Orthodoxy that “tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man’s opinion, even if he is our groom; tradition asks us not to neglect a good man’s opinion, even if he is our father.” To rewrite the Constitution by way of the invidious misconstruction of the Fourteenth Amendment is thus to desecrate the hallowed graves of all of those better men on whose shoulders we meagerly stand.
What are the “privileges or immunities” protected by the Fourteenth Amendment?
The framers of the Fourteenth Amendment intended the “privileges or immunities” clause to be its central provision; the key to its meaning “is furnished by the immediately preceding Civil Rights Act of 1866, which…it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their ‘life, liberty, and property’ — no more. For the framers, those words did not have the sprawling connotations later given them by the Court but, instead, [had] restricted aims that were expressed in the Act. The legislative history of the Amendment frequently refers to [the] ‘fundamental rights’ [of] ‘life’ liberty, and property.’” William Blackstone, widely read and respected in colonial America, defined “life” in terms of personal security, as the “legal and uninterrupted enjoyment of his life, his limbs.” Blackstone defined “liberty” in terms of the freedom of locomotion, of “changing situations or moving one’s person…without imprisonment, or restraint, unless by due course of law”; “property” was defined in terms of acquisition, ownership, and disposition, as “the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” Blackstone’s “due course of law” and “laws of the land”, Berger explained, “did not enlarge…the ‘absolute rights’ of an Englishman, but rather marked the sole means whereby those rights might be diminished.” Blackstone’s formulation is important to understand, for, as Justice Joseph Story stated, “if the Framers used terms that had been defined at common law, that definition was ‘necessarily included as much as if they stood in the text.’”
The Fourteenth Amendment was designed to “constitutionalize” the Civil Rights Act of 1866 so as to “place it beyond the power of a later Congress to repeal.” By that act, “freedmen were to have the same enumerated rights (as white men), be subject to like punishment, suffer no discrimination with respect to civil rights, and have the equal benefit of all laws for the security of person and property. Patently these were limited objectives; the rights enumerated, said [Representative] William Lawrence…were the ‘necessary incidents of these absolute rights’, that is, of ‘life, liberty, and property’, lacking which those ‘fundamental rights’ could not be enjoyed. It was these ‘enumerated rights’…said [Representative] Martin Thayer…that were ‘the fundamental rights of citizenship.’” House Chairman James Wilson elucidated the Civil Rights Bill thus: “What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed…Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights and immunities. Well, what is the meaning? …I understand civil right to be simply the absolute rights of individuals, such as ‘the right of personal security, the right of personal liberty, and the right to acquire and enjoy property.’”
As to “immunities”, the framers meant that blacks should “not be subjected to obligations, duties, pains, and penalties from which other citizens are exempted…This is the spirit and scope of the Bill, and it does not go one step beyond.” Thayer asserted that the enumeration of the aforementioned “fundamental rights” of life, liberty, and property precluded “any possibility that the general words which have been used can be extended beyond the particulars which have been enumerated.” Thayer affirmed that the Bill was for “the protection of the fundamental rights of citizenship and nothing else”, no “greater than the rights which are included in the general terms ‘life, liberty, and property.’” He was opposed only “to any law discriminating against [blacks] in the security of life, liberty, person, property, and the proceeds of their labor. These civil rights all should enjoy. Beyond this I am not prepared to go, and those pretended friends who urge political and social equality…are…the worst enemies of the colored race.” Senator Lyman Trumbull, the principal drafter of the Bill, declared that it was “applicable exclusively to civil rights. It does not propose to regulate political rights of individuals; it has nothing to do with the right of suffrage, or any other political right.” The term “privileges or immunities” was borrowed from Article IV, Section II, of which Trumbull said signified that a citizen has “certain great fundamental rights, such as the right to life, to liberty, and to avail oneself of all the laws passed for the benefit of the citizen to enable him to enforce his rights.” Representative John Bingham affirmed that the “privileges or immunities” of the Fourteenth Amendment “did not add to the privileges or immunities” of Article IV, Section II.
In Bradwell v. Illinois, Justice Bradley wrote for the Court that the “privileges or immunities” clause of the Fourteenth Amendment did not bar States from prohibiting women from joining certain professions; to claim otherwise, Bradley argued, “assumes that it is one of the privileges or immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed…that this has ever been established as one of the fundamental privileges or immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.” If the “privileges or immunities” clause did not enlarge the rights of white women, how could it be said to have done so for black men? To reiterate, the purpose of the Amendment was to enshrine the Bill into the Constitution, and the purpose of the Bill “was to prevent discrimination with respect to enumerated, fundamental not political or social rights.” Justice Bushrod Washington, in Corfield v. Coryell, confirmed that “privileges or immunities” were confined to what are inherently “fundamental…Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole…The right of a citizen of one State to pass through, or reside in any other State…to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold, and dispose of property…But we cannot accede to the proposition…that the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state.”
Trumbull, along with Justice Bradley in the Slaughter-House Cases and many others, explicitly stated that “the pursuit of happiness” was understood to be synonymous with “property.” Property was, for the Founders, the source from which happiness flowed. Indeed, “property actually was more highly prized by the Founders than ‘civil liberties.’…For the Founders property ‘was the basic liberty, because until a man was secure in his property, until it was protected from arbitrary seizure, life and liberty could mean little.” John Adams believed that “property is as sacred as the laws of God.” At the Constitutional Convention, James Madison said that “the primary objects of civil society are in the security of property and the public safety.” As Anatole France remarked, “The poor are as free as the rich to sleep under a bridge.” For the Framers, “to be deprived of…private property would be a far greater and more deeply felt loss of liberty than to be deprived of the right to speak freely.” The “rights of Englishmen” that the Founders claimed were indeed “life, liberty, and property.” These were the “fundamental rights” that the framers of the Amendment intended to be secured, the very same rights described by Blackstone as “personal security, freedom to move about and to own property; they had been picked up in the ‘privileges and immunities’ of Article IV, Section II; the incidental rights necessary for their protection were ‘enumerated’ in the Civil Rights Act of 1866; that enumeration…marked the bounds of the grant; and at length those rights were embodied in the ‘privileges or immunities’ of the Fourteenth Amendment.” The framers again and again demonstrated that “privileges or immunities” was a term of art, with a specific and restrictive meaning. They deemed the Amendment to be “identical” with the Bill; Trumbull described these fundamental “privileges or immunities” as “the right to acquire property, the right to come and go at pleasure, the right to enforce rights, to make contracts” and noted that the Bill declared only that the rights of freedmen “should be the same as those conceded to whites in certain respects, which were named in the Act.”
The present obsession with “individual rights”, Berger asserted, “obscures the Founders’ concern in 1787 with the rights of the community rather than the individual.” The animating spirit of our Constitution was States’ Rights, not individual rights; the Constitution was written in order to protect the States from the federal government, with the details of the governance of the people almost wholly inhered in the States. Berger also pointed out that the Ninth Amendment is not a source of “rights” either; the purpose of the Ninth Amendment is to say that “what is enumerated is embodied in the Constitution; what is retained is not. Reservations are not grants of power to deal with what is retained…what is retained is excluded from the federal jurisdiction.” James Madison had said that “the great object in view is to limit and qualify the power of Government by excepting out of the grant of power those cases in which the Government ought not to act.” Quite obviously, the Ninth Amendment, along with the entirety of the Bill of Rights, was meant to curtail federal jurisdiction, not to expand it. Berger reinforced this by remarking that “the fact that Amendments One through Eight were meant to limit the powers of the federal government militates against a reading of the Ninth that would confer unlimited federal judicial power to create new ‘rights.’”
Notably, in the Slaughter-House Cases, the Supreme Court effectively neutered the “privileges or immunities” clause, which, it will be remembered, had been intended to be the operative provision of the Fourteenth Amendment. The Court did this by differentiating between the “privileges or immunities of a citizen of the United States” and those of citizens of any States in particular, such that the “privileges or immunities” clause was only applied to the former. Justice Samuel Miller wrote in his opinion, “Was it the purpose of the Fourteenth Amendment, by simple declaration that no State should make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned [citing Corfield], from the States to the Federal government? And where is it declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? …these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions…the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character…it radically changes the whole theory of the relations of the State and Federal governments to each other and of both…to the people…We are convinced that no such results were intended by the Congress which proposed [the Amendment], nor by the legislatures of the States which ratified [it].” Thus, even the terms of the Fourteenth Amendment as drafted were deemed too radical and intrusive; how, then, could it be used for the extreme Leftism with which it has been used since? Furthermore, we must note that the Court, speaking through Miller, believed that by neutering the “privileges or immunities” clause, it was eliminating the abusive potentiality of the Amendment; this suggests that the Court read the “due process” and “equal protection” clauses as they had been written, i.e., as relatively harmless, which again belies the extraconstitutional engorgement of those two clauses in the present day.
The “privileges or immunities” clause also serves as a window through which we may examine the doctrine of “birthright citizenship.” The “privileges or immunities” of Article IV, Section II, with which those of the Amendment are identical, was not intended to “control the powers of State governments over the rights of its own citizens.” Its sole purpose was to require that, of rights granted by State to its own citizens, “the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” The Civil Rights Bill, with which the Fourteenth Amendment was identical, merely meant to apply this right of migrant citizens to the freedmen; “birthright citizenship”, then, was meant only with reference to freedmen. Citizenship, along with suffrage, is a privilege, not a right. Trumbull had wished only to settle the matter of “whether the Negro is a citizen or not.” Justice Miller expounded upon this matter, writing that the first section of the Amendment “opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress… [Dred Scott] had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only citizens, but were incapable of becoming so by anything short of an Amendment to the Constitution. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship…the first clause of the section was framed…It declares that persons may be citizens of the US without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the US and subject to its jurisdiction citizens of the United States. That its…purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’, was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Regarding the current argument that the Amendment applies to all persons, and not citizens alone, Berger noted that, based on the records of the Thirty-Ninth Congress, “the minds of most framers were concentrated on the protection of citizens…they may not have appreciated that the word ‘persons’ was carrying them further.” In any case, “persons” were certainly not meant to have broader rights than “citizens.”
Was the Fourteenth Amendment intended to touch suffrage?
Berger concluded that black suffrage was “unmistakably excluded from the ambit of the Civil Rights Bill”, and is thus unmistakably excluded from the ambit of the identical Fourteenth Amendment. In fact, the very existence of the Fifteenth Amendment necessarily means that suffrage was not conferred by the Fourteenth. Moreover, the debates of the Thirty-Ninth Congress quite clearly manifest the fact that the framers of the Amendment held suffrage to be a “political privilege, not a civil right”, to be left to the States. The second section of the Amendment “provides that if suffrage is denied on account of race, the State’s representation in the House of Representatives shall be proportionally reduced. This constitutes the sole provision for federal intervention. Senator William Fessenden…explained that the Amendment ‘leaves the power where it is, but it tells [the States] most distinctly, if you exercise that power wrongfully, such and such consequences will follow.’ Senator Jacob Howard…said, ‘the theory of this whole Amendment is, to leave the power of regulating the suffrage with the people or legislatures of the States, and not to assume to regulate it.’” Berger explained that the issue of black suffrage was “crucial to the maintenance of Republican ascendancy…Such ascendancy, the mass of Republicans believed, was to be assured through the reduction of Southern representation in the House of Representatives in proportion as a State denied or abridged suffrage, the device embodied in section two…But it was more important…to limit Southern representation than to provide ‘that negroes anywhere should immediately vote.’”
In Reynolds v. Sims, Chief Justice Earl Warren argued that States cannot deny suffrage because “political equality…can mean only one thing — one person, one vote.” Notwithstanding the fact that Warren’s “one man-one vote” formulation “derogates from the exclusive control of suffrage that was left to the States”, as the framers had made “unmistakably plain”, Berger noted that Warren’s lofty “political equality” was most assuredly not the equality conceived of by the framers of the Fourteenth Amendment. Indeed, Senator Garrett Davis said that “Negro suffrage is political arsenic. If it is not, why do not the free States open wide their throats and gulp down the graceful and invigorating draught?” In 1866, only five States gave blacks the right to vote, representing only six percent of the black population; another State gave blacks qualified suffrage. The year prior, three States rejected unqualified black suffrage. One of these, Colorado, was still admitted as a State; the same situation occurred with Nevada. Tennessee was “readmitted” after submission of the Fourteenth Amendment despite having denied blacks the right to vote. In the midst of the ratification process, Ohio overwhelmingly rejected black suffrage.
Most telling are the framers’ own statements. As Berger remarked, “If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general term ‘equal protection’ the very grant they could not swallow?” Senator Edgar Cowan acidly lectured Senator Sumner that, “‘with but six percent of the Negro population’, New England’s advocacy of Negro suffrage came cheap: ‘he simply had no understanding of what it is to live in a community surcharged with an idle, dissolute, vicious, ignorant Negro population just emerged from slavery.’” Cowan ridiculed the notion that the “antipathy that never sleeps, that never dies, that is inborn, down at the very foundation of our natures” is “to be swept away by half a dozen debates and the reading of half a dozen reports from certain abolitionist societies.” Even the Radical Thaddeus Stevens said, “In my county are 1,500 escaped slaves. If they are specimens of the Negroes of the South, they are not qualified to vote.” This is the same Stevens whose “Negro mistress horrified the abolitionists” and who was portrayed as the face of Black Republicanism in Thomas Dixon’s The Clansman and D.W. Griffith’s The Birth of a Nation. Stevens was hated among his colleagues. No less than the lunatic William Lloyd Garrison “came out against the forcing of Negro suffrage upon the South.”
The members of the Thirty-Ninth Congress were deeply attached to State sovereignty — for their own States, if not the Southern States. Representative Bingham, in the vanguard of radical abolitionism, affirmed that “the care of the property, the liberty, and the life of the citizen…is in the States and not in the federal government. I have sought to effect no change in that respect.” Trumbull defended the Amendment after President Johnson’s veto, soon to be overridden, stating that it “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property.” Translation: suffrage excluded. Senator Doolittle, a friend to the cause of black suffrage, conceded that “the Federal Government had no right or constitutional power to impose on a State Negro suffrage…the right of a State to determine that question was one of the reserved rights of every State.” Stevens asked, “How many States would allow Congress to come within their jurisdiction to fix the qualification of their voters? …You would not get five in this Union.”
The purpose of the second section of the Amendment was “perfectly well understood…to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that people shall be denied political rights. Give them the vote or lose representation.” In other words, this portion of the Amendment was written to preserve Republican hegemony by presenting the former Confederacy with an illusory “choice” — Republicans in Congress knew that the Southern States would not willingly confer suffrage upon freed blacks, so the animating mission of section two was quite baldly to deprive the Southern States, and by implication the Democratic Party, of their seats in Congress. Berger expanded upon this, stating that “most Republicans were politicians first and ideologues afterward. Not civil rights for blacks but the dreaded take-over of the federal government by the South was their obsessive preoccupation. Emancipation brought the startling realization that Southern representation would no longer be limited in the House of Representatives to three-fifths of the blacks, as Article I, Section III, provided. Now each voteless freedman counted as a whole person; and in the result Southern States would be entitled to increased representation and, with the help of Northern Democrats, would have, Thaddeus Stevens pointed out at the very outset of the 39th Congress, ‘a majority in Congress and in the Electoral College.’ With equal candor he said that the Southern States ‘ought never to be recognized as valid States, until the Constitution shall be amended…as to secure perpetual ascendancy’ to the Republican Party. The North had not fought and quelled rebellion in order to surrender the fruits of victory to the unrepentant rebels.”
As aforementioned, Berger emphasized that “the dominant purpose of the Thirty-Ninth Congress was to maintain Republican hegemony by reducing Southern representation; and only secondarily did they think to secure the ‘person and property’ of the Negro from oppression. There were repeated disclaimers of any intention to interfere with State sovereignty beyond those objectives. Moreover, while Negro suffrage was predominantly a Southern problem, reapportionment would invade long-established State practices with respect to white voters in the North…Republicans who shrank from interfering with State control of Negro suffrage in the South would scarcely have dared to impose on the North a radical reconstruction of white apportionment patterns…no such intrusion was contemplated; there is in fact striking evidence that malapportionment was an accepted practice.” Especially considering the ubiquity of malapportionment across the United States, “it is a strained assumption that by ratification they surrendered a right they had exercised from the outset, and of which surrender they were totally unapprised.” Contrary to the diktats of the Warren Court, then, apportionment is a political and thus nonjusticiable question, the determination of which inheres exclusively in the States.
To the judicial revisionist argument holding that suffrage is made “fundamental” by the guarantee of a “republican form of government” in Article IV, Section IV, we must recall the Supreme Court’s opinion in Minor v. Happersett: “All the States had governments when the Constitution was adopted…These governments the Constitution did not change. They were accepted precisely as they were…Thus we have unmistakable evidence of what was republican in form.” Berger noted that “unless some special magic was deemed to inhere in the words ‘equal protection’ [and there is not] …the evidence…that suffrage was excluded from the Amendment is all but incontrovertible.” The Report of the Joint Committee on Reconstruction stated conclusively that “the whole question” of suffrage was left “with the people of each State”; to reiterate, section one left suffrage untouched, while section two was nothing but a nominal inducement, “not so much a ‘remedy’ to enforce rights which section one had not granted as a mechanism to preserve Republican hegemony.”
The Warren Court, as alluded to, occasioned the large-scale intrusion of the federal government into the State power of reapportioning its electoral districts, a patently unconstitutional exercise of nonexistent power. Chief Justice Warren declared in Reynolds v. Sims that “the right to vote freely…is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” The Founders, Framers, and framers of the Fourteenth Amendment could hardly have disagreed more with any statement. The Constitution was largely a reaction against popular democracy; as Berger stated, “Were Warren drafting a new Constitution that principle would be unexceptionable. But that was not the established principle at the adoption of the Constitution; nor was it embodied therein. On the contrary, Federalist No. 54 recognized that ‘in every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State.’ In the Thirty-Ninth Congress itself, [Senator] Fessenden said that ‘everybody has admitted from the foundation of the Government down to the present day that the qualification of voters rested with the States.’”
Warren’s formulation is irredeemably problematized by his assertion that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Sixteenth, and Seventeenth Amendments can mean only one thing — one person, one vote.” First, we must notice that Warren never once appeals to the original Constitution itself. More importantly, however, President Abraham Lincoln, in his Gettysburg Address, completely rewrote the American Founding as having sprung from the Declaration of Independence, fully formed as one nation as Athena sprung from the head of Zeus, “dedicated to the proposition that all men are created equal” and instituted “of the people, by the people, for the people.” The Declaration of Independence was a work of political rhetoric, not a Founding document or nationalist exposition; as Berger put it, “to import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the ‘excesses’ of popularly controlled legislatures.” That Declaration was also drawn by the Continental Congress, “a league of independent States, each of which jealously guarded its independence.”
The Gettysburg Address is doubly fraudulent, for not only does it falsely trace the Founding to the Declaration, but it also totally misconstrues that document. Jared Taylor has time and again splendidly exposed what the Founders truly thought about race. When Thomas Jefferson Founders wrote that “all men are created equal”, he did not share the Regime definition of “equality.” This was an argument by Englishmen, directed at Englishmen, an argument that was directed upwards, not downwards as some sort of levelling. The American colonists were asserting their rights as Englishmen against the British Crown, to be treated as the Englishmen that they believed they were, rather than a second-class peonage. Additionally, even if we were to concede that the Second Continental Congress actually meant that “all men are created equal” — and they did not, according to our present “individual rights” fixation — this phrase still does not mean what the Regime has taught us. As we have seen, legal or civil equality was never understood as coextensive with social equality; we must also remember that the antebellum Southern planters did believe that all men were created equal. “Equal” in the eyes of God is not “equal” in the eyes of man. Perhaps even more than in the South, whites in the North were completely unprepared for and did not contemplate “reconstruction of their institutions to accommodate total Negro integration in the North.” We must remember that even those who were ardently opposed to slavery did not do so for any lofty theories of egalitarianism. They were just as equally opposed to racial equality, and most abolitionists supported black colonization, back to Africa. Only an infinitesimal lunatic fringe within the lunatic fringe of the Republican Party actually advocated for anything remotely approximating the Egalitarian Regime.
Let us consider a famous incident in which President Lincoln was visited by a black abolitionist group; Lincoln said to them, “Even when you cease to be slaves, you are far removed from being placed on an equality with the white man…I cannot alter it if I would. It is a fact.” The Radical Senator Howard confirmed that, “notwithstanding the Declaration of Independence, it is the right of every organized political community to regulate the right of suffrage.” As Berger wrote, if there is any principle to be gleaned from the Fifteenth and Nineteenth Amendments, it is that “Congress and the people considered that express Amendments were needed to confer suffrage on Negroes and women, that absent these Amendments neither enjoyed ‘political equality.’” The Court made much the same point in Minor v. Happersett: “If suffrage was one of the privileges or immunities, why amend the Constitution to prevent its being denied on account of race? …Certainly, if the courts can consider any question settled, this one. For nearly 90 years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage.” The Court recognized in United States v. Cruikshank that the Fifteenth Amendment had “invested the citizens of the United States with a new constitutional right.” Even the Seventeenth Amendment, a great step towards the institution of popular democracy in our nation, provided that, with respect to the popular election of Senators, “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.” These “qualifications” were always under State control, and were left intact by the Fourteenth Amendment.
In support of his “one man-one vote” doctrine, Warren also wrote, “How then can one person be given twice or ten times the voting power of another person…merely because he lives in a rural area.” This appears to directly presage the present screeching and squalling to abolish the Senate and the Electoral College. Berger answered Warren by stating, “Given that discrimination in favor of ‘rural areas’ is historically deep-rooted, orthodox analysis would conclude: because the Fifteenth and Nineteenth Amendments govern only ‘race and sex’, not ‘rural areas.’” Warren’s “pervasive error”, Berger remarked, was that which all judicial revisionists commit — the substitution of their will for that of the framers’, the maxim that whatever they favor must be “constitutional” and that everything else is “unconstitutional.” The faculties of the mind are compulsorily drafted into service to find some method, any method, by which their policy can be grafted onto the Constitution. As Justice Holmes quipped, “A page of history is worth a volume of logic.”
From the preceding discussion, then, it also follows that the Voting Rights Act of 1965 is unconstitutional. In fact, the Court ruled as such for a portion of the Act within the past decade, in Shelby County v. Holder. The Voting Rights Act was predicated upon both the Fourteenth and Fifteenth Amendments; as we have and will continue to focus on the Fourteenth, we will focus our efforts here only on the Fifteenth. The Fifteenth Amendment states that “the right of citizens of the United States 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”, and gives enforcement power to Congress. As we have seen, voting is a privilege conferred by the States, not a national “fundamental right.” The Voting Rights Act went far beyond the scope of the Fifteenth Amendment and gleefully trampled upon the reserved States’ rights of the Tenth Amendment; the Fifteenth Amendment says nothing about voting qualifications, nor does it make suffrage a “fundamental right.” The Amendment did not create a right where previously none had existed, but rather prohibited legislation denying suffrage explicitly “on account of” race and prior condition of slavery; to extend, as did the Voting Rights Act, this “on account of” to facially neutral laws was undergirded by an odious forerunner to discriminatory or “disparate impact.” “Disparate impact” is not a constitutional doctrine, but rather an artificial superimposition; it is the height of folly to believe that different outcomes, for example in school performance, are evidence of that great dragon that dare not rear its ugly head, the incantatory cry of “racism.” This is the consequence of blind faith in the Regime doctrine that there are no race or sex differences between people. The Regime would have us believe that if any results differ, the law, the institution, or “society” writ large must be to blame, serving merely as another vehicle for judicial usurpation and the intrusion into all nooks and crannies of American life. As with the Fourteenth Amendment, we must also examine the Fifteenth from the vantage point of the framers, best expressed as: “How can we maintain Republican hegemony?”
Was the Fourteenth Amendment intended to reach segregation?
Before we proceed, we must again take care to state that the terms included in the Fourteenth Amendment were neither vague, nor general, nor “open-ended”, but were rather restrictive, specifically limited terms of art that the framers understood as common coinage. “Due process of law”, “equal protection of the laws”, and “privileges or immunities” each had an “historically limited content.” The postconstitutional Regime employs a “classic invocation to extraconstitutional power…to revise the Constitution under the theory that the framers gave a ‘blank check to posterity.’” This “open-ended” theory would have us believe that “the framers dared not submit Negro suffrage and the like to the electorate in 1866 and therefore discarded ‘specific’ terms, as Justice Brennan [Oregon v. Mitchell] put it, in favor of ‘far more elastic language…far more ‘capable of growth.’” By this logic, the framers were postmodernists, or perhaps absurdists, leaving us with contentless phrases that their successors, 150 years later, could invest with any meanings whatsoever. By this logic, the Constitution is an inscrutable sphinx. The “open-ended” theory also imbues the Thirty-Ninth Congress with conspiratorial purpose, positing that the framers “concealed the future objectives that they dared not avow, lest the whole enterprise be imperiled.” In other words, the nefarious uses to which the Court put their words almost a full century later were what the framers had actually meant. In a word, this is preposterous. Berger makes the crucial observation that ratification necessarily implies “that the principal knows what he is ratifying; without full disclosure there can be no ratification.”
Some Democrats at the time did fear that the language of the Amendment might be deployed for dastardly ends through the very chicanery that eventually did occur. A handful of Democrats worried that the “right to contract” incipient in the “equal protection” clause might be used as an end-run to circumvent anti-miscegenation laws, but Berger demonstrated that “to attribute to the framers an intention by the word ‘contract’ to authorize intermarriage runs counter to all intendments.” Representative Samuel Moulton explicitly denied that intermarriage was a “right”, and Berger further elucidated that, “although a contract of marriage, strictly speaking, is a contract, marriage is not in ordinary usage conceived in terms of contract. Given the stated purposes of the Bill, the association of contracts with other property rights, authority to contract could be read as a license for intermarriage only by a strained construction.” For good measure, President Johnson urged that miscegenation be specifically excluded; though he vetoed the Civil Rights Bill, later overridden, he “referred to ‘the enumeration of the rights to be enjoyed’ and noted that it did not repeal ‘State laws on the subject of marriage between the two races.’” There were similar concerns that the Bill would lead to the seating of blacks as jurors, to which we recall Chairman Wilson’s firm assurance that its limited objectives did not extend to “setting aside the school and jury laws.” Moulton denied “that it is a civil right for anyone to sit on a jury.” Representative Lawrence further reiterated that the Bill did “not affect any political rights, as that of suffrage, the right to sit on juries…That it leaves to the States to be determined each for itself.”
Opposition to the “readmission” of Tennessee on the grounds that its constitution excluded black suffrage was voted down in the Radical Congress by 125 to 12; over and over, the framers made clear that they “did not mean to confer Negro suffrage, present or prospective.” Senator Sumner, a pariah among his peers, proposed the addition of black suffrage to the Amendment and was rejected by 34 to 4. Senator Fessenden stated that “we cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.” Senator John Sherman, during the ratification process, sold the Amendment to the people by assuring them that “we defeated every radical proposition in it.” To those who cite Representative Stevens’ statement that any “imperfections” in the Amendment may be cured by “further legislation” with “legislative wisdom”, we respond that Stevens was nearly as ostracized as Sumner, and that, as Berger pointed out, this call for “further legislation” is “hardly a warrant for judicial changes!” Likewise, those who point to the fifth section of the Amendment, which provides that “the Congress shall have power to enforce by appropriate legislation the provisions of this article”, neglect to recall Ex parte Virginia, in which the Court held that “it is not said that the judicial power of the general government shall extend to enforcing the prohibitions and protecting the rights and immunities guaranteed. It is not said that branch of government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.” The judiciary is thus expressly disempowered from enforcing any of the Fourteenth Amendment. Regardless of what an infinitesimal minority of extremists may have desired, not one of the framers intended that the Fourteenth Amendment be a conferral of future powers, even if any of those future ends were contemplated — and the evidence that they were is scant at best. Numerous Radicals insisted that the Amendment only meant to embody the Civil Rights Bill, to permit blacks “to sue and be sued, to own property, to have process of court”; Berger again underlined the fact that “‘equal protection’…emerged from the framers’ intention to outlaw laws which discriminated against blacks with respect to the [very limited] ‘coverage of the Civil Rights Act.’”
We now arrive at Brown v. Board of Education, the “sacred cow of modern constitutional law.” Witness cocktail “conservative” Justice Brett Kavanaugh’s confirmation hearings, in which he called Brown not merely “inspirational”, but the “single greatest moment in Supreme Court history…the unanimity that Chief Justice Warren achieved, which is a great moment, the fact that it lived up to the text of the Equal Protection Clause, the fact that it understood the real-world consequences of segregation on African-American students who were segregated.” Kavanaugh’s entire statement, as we shall see, is ludicrous. Berger noted that the Supreme Court “had no popular mandate for its revolutionary decision but assumed the role of an Old Testament prophet, enhanced by the sanctions at its disposal.” To this, it will be argued that the Court needs no “popular mandate” to ascertain the constitutionality of a given issue, but we will shortly see that this is an exercise in futility. Leaving aside the fact that schools in the District of Columbia and the rest of the Northern States were segregated, we may look to House Chairman Wilson’s statement that “there is not today a square mile in the US where the advocacy of the equal rights and privileges of those colored men has not been in the past and is not now unpopular.” As Berger concluded, “Had the framers proposed to bar segregated schools in the North, such interference with State control of internal affairs would have imperiled enactment and adoption…Such a proposal was far from the framers’ minds, as is demonstrated by James Wilson’s assurance that the parallel Civil Rights Bill — regarded as ‘identical’ with the Fourteenth Amendment, whose purpose was to safeguard the Bill from repeal—did not require that all ‘children shall attend the same schools.’…segregation was left untouched by the Fourteenth Amendment.”
When Brown was first argued, Justice Felix Frankfurter assigned Alexander Bickel to compile the legislative history of the Fourteenth Amendment, on which Frankfurter sought to rest his preordained conclusion. Bickel conceded that “it was preposterous to worry about unsegregated schools…when hardly a beginning had been made at educating Negroes at all and when obviously special efforts, suitable only for the Negroes, would have to be made…It is impossible to conclude that the Thirty-Ninth Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” He wrote that the framers “who sponsored this [civil rights] formula assigned a limited and well-defined meaning to it”, namely, “the right to contract” and so on, “also a right to equal protection in the literal sense of benefiting equally from the laws for the security of person and property.” Bickel continued that, even with that restrictive language and repeated assurances as to its limited power, “it required potent persuasion, reinforced by the severest party discipline, to prevent a serious break in both Houses against the bill.” Berger observed that only four defectors in the Senate, as we have seen, would have defeated the Amendment. Bickel also noted later “the shift from ‘equal protection in the rights of life, liberty, and property’ to ‘equal protection of the laws, a clause which is plainly capable of being applied to all subjects of State legislation.’” In Plessy v. Ferguson, Justice Henry Brown concluded that “a statute which implies merely a legal distinction between the white and colored races…has no tendency to destroy the legal equality of the two races…The object of the Fourteenth Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation…do not necessarily imply the inferiority of either race to the other, and have been generally…recognized as within the competency of the State legislatures in the exercise of their police power.”
Segregated schools, Justice Brown continued, had repeatedly “been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.” He asserted that “the enforced separation of the races…neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment”, and that the desegregation argument “also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities…Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences…If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Plainly, the Fourteenth Amendment was never understood to touch segregation, a point made especially clear given our determination that it did not touch suffrage. In light of this history, Berger underlined that “to import into the Civil Rights Act views of abolitionists and opponents that so plainly had been rejected, is to thwart, not to effectuate, the intention of its framers.”
Segregation was a deeply-ingrained part of American life, North and South. Plessy was based on long precedent and was “faithful to the framers’ design.” In 1871, the Ohio Supreme Court held that “equality of rights does not involve the necessity of educating white and colored persons in the same school.” This principle was affirmed by Nevada in 1872, and again in California in 1874. That same year, the Indiana Supreme Court ruled that Congress was not empowered “to exercise…supervision over the States on the subject of education.” In 1887, future Supreme Court Justice William Woods affirmed yet again that segregation did not conflict with the “equal protection” clause. The Senate gallery of the Thirty-Ninth Congress was segregated, and, as Berger emphasized, “it is unrealistic to presume that a Congress which has plenary jurisdiction over [the District of Columbia] and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States.” The Radical Representative George Julian said that “the trouble is we hate the Negro.” Senator Sherman agreed, stating that “we do not like Negroes. We do not conceal our dislike.” It cannot be overstated that the Fourteenth Amendment was regarded by its framers to be “identical” with that which it was meant to constitutionalize, the Civil Rights Bill of 1866.
That Bill “banned discrimination with respect to the right to own property, to contract, and to have access to the courts, rights that the Supreme Court, after canvassing the legislative history, described in 1966 as a ‘limited category of rights.’” The Bill only secured “equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races”, while 14A provided “equal protection to life, liberty, and property, to sue and be sued, to inherit, to make contracts. Thus was ‘equal protection’ wedded to the ‘limited category of rights’ enumerated in the Civil Rights Bill.” The framers employed “equal protection”, Berger explained, in order to “express their limited purpose: to secure the rights enumerated in the Civil Rights Act, and those only, against discriminatory State legislation. With respect to those rights there could no longer be one law for whites and another for blacks. The limitless objectives that Frankfurter read into the phrase were utterly beyond the contemplation of the framers.” Representative John Thomas said of the Bill that, “as a freeman, he is entitled to acquire and dispose of real and other property…to have his life, liberty, and person protected by the same laws that protect me…so shall he not only have the right to enforce his contract, but to that end shall be received as a witness in a court of justice on the same terms…I will go even further…and will vote for all measures to elevate their condition and to educate them separate and apart from the whites…but when it comes to placing him upon the same social and political level as my own race, I must refuse to do it.” A “no discrimination” clause had actually been deleted from the Civil Rights Bill, leading Bickel to conclude that it had been “amended specifically to eliminate any reference to discriminatory practices like school segregation”; indeed, Chairman Wilson expressly stated that “our amendment strikes out all of those general terms and leaves the bill with the rights specified in that section.” The exclusion of segregation from the ambit of the Amendment is further belied by the explanation of Senator Fessenden on its second section: It “should serve as an inducement to the Southern States to build schoolhouses…and educate their colored children until they are fit to vote.” Clearly, the Fourteenth Amendment did not authorize the Court to make its Brown decision; as we will see, Chief Justice Warren was well aware of that disquieting truth.
Brown was first argued before the Vinson Court. Justice Frankfurter, as alluded to, was eager for the opportunity to enact desegregation; he noted that Chief Justice Fred Vinson, as well as Justices Robert Jackson, Stanley Reed, and Tom Clark, were probable dissenters. Frankfurter thus decided to stall for time by working with Bickel to frame five questions for reargument in order to push the case to the next term. His gambit paid off, for Chief Justice Vinson suddenly and unexpectedly died just before reargument commenced. With glee, Frankfurter wrote that “this is the first indication I have ever had that there is a God.” William Coleman, the NAACP research coordinator, was a former Frankfurter clerk; he would later recall that his former boss “was for ending segregation from the very start.” Frankfurter arrived at his decision before even reading the case briefs, but he still agreed with Bickel that “the framers had not intended to outlaw segregation.” Justice Jackson, though he also agreed with desegregation as a matter of public policy, knew too that there was nothing to warrant “me in saying that it is required by the original purpose and intent of [the Fourteenth Amendment”; as such, Jackson promised to “file a separate concurring opinion” if the “Court feigned that the Justices were doing anything other than declaring new law for a new day.” Berger remarked that, in essence, this was asking the majority to admit that “there was no judicial basis for its decision”, that “it was acting in a frankly unjudicial way.” This would not do.
Jared Taylor has filled in more of the sordid details surrounding the Brown decision. The oral arguments before the Vinson Court had gone horribly for the NAACP; its attorney, future Supreme Court Justice Thurgood Marshall, did not even attempt to make a legal argument. He knew there wasn’t one to be made. His case rested on the “harms and benefits” theory that segregation caused blacks to have psychological feelings of inferiority, relying on the doll studies of Kenneth Clark. Clark “reported that if he showed a pair of black and white dolls to black children attending segregated schools and asked them which doll they liked better, a substantial number picked the white doll. He argued to the Court that this proves segregation breeds feelings of inferiority. He failed to mention that he had shown his dolls to hundreds of blacks attending integrated schools in Massachusetts, and that even more of these children preferred the white doll. If his research showed anything, it was that integration lowers the self-image of blacks, but he deliberately slanted his findings.” John Davis, an attorney for the defense, “pointed out that Clark’s conclusions contradicted his own published results in the Massachusetts findings. Davis later told a colleague that the ruling would surely go his way ‘unless the Supreme Court wants to make the law over.’” Justice Jackson was wary of the fact that Marshall’s case “start[ed] and end[ed] with sociology”, and had no illusions about what was happening. He remarked, “I suppose that realistically the reason this case is here is that action couldn’t be obtained from Congress.”
As aforementioned, Frankfurter knew that Brown was doomed in the Vinson Court. As Taylor explains, “if the Court had decided the case immediately after oral arguments, Brown might have been decided the other way or at best, with a five-to-four majority that would have given it little authority in the South.” Philip Elman, an assistant to the Solicitor General at the Department of Justice, was another former Frankfurter clerk, and “was in constant communication with his old boss about Brown.” Though the Eisenhower Administration had wanted to stay out of the proceedings, Elman “told the Solicitor General that a Supreme Court invitation to comment on a case was like a command performance, and he offered to handle the case.” Elman and Frankfurter engaged in wildly unethical collusion, whereby “one side of the case…had utterly improper inside knowledge about what every justice thought, and could craft arguments specifically to appeal to them.” Taylor notes that “Elman conceded that what he did ‘probably went beyond the pale’ but, he added, ‘I considered it a cause that transcended ordinary notions about propriety in a litigation.’ He wrote that he and Frankfurter kept an appropriate professional distance on all other cases, but made an exception for Brown. To them, ending school segregation was so important it justified unscrupulous maneuvering.” The two men spoke in code over the phone and sometimes met in person; “William Douglas was Yak because he was from Yakima, Washington. Stanley Reed was Chamer, because it means dolt or mule in Hebrew, and Reed thought desegregation was a political and not a judicial matter.” Elman considered Marshall to be beneath contempt, and “wrote that Marshall made bad, ineffective arguments, but that Elman’s collusion with Frankfurter had so rigged the Court in favor of desegregation, it made no difference: ‘Thurgood Marshall could have stood up there and recited ‘Mary had a little lamb,’ and the result would have been exactly the same.’”
As aforementioned, very shortly after Chief Justice Vinson died, Frankfurter and Elman made despicable remarks in celebration; as Taylor recounts: “‘I’m in mourning’, [Frankfurter] said with a huge grin. ‘Phil, this is the first solid piece of evidence I’ve ever had that there really is a God.’ Elman writes that ‘God takes care of drunks, little children, and the American people’, and showed His concern for America ‘by taking Fred Vinson when He did.’ The new Chief Justice was Earl Warren, an ambitious former Governor of California, who saw his job not as interpreting the Constitution but as a chance to exercise power.” Because Bickel had discovered incontrovertibly that segregation was light-years away from the purview of the Fourteenth Amendment, Frankfurter simply “began to urge that original intent did not matter, and that the Amendment’s language should be reinterpreted according to the needs of the time. He reported to Elman that Warren and some of the other justices were sympathetic to this view, so not surprisingly, when the Justice Department filed Elman’s 600-page brief in December 1953, it too argued that the language of the Amendment was broad enough to be reinterpreted.” During the reargument of Brown, Marshall rehashed Clark’s shoddy doll studies, of which evidence was suppressed, and Frankfurter “wrote long memos to the other justices insisting that the law must respond to ‘changes in men’s feelings for what is right and just.’” Justices Jackson and Reed were the final holdouts, both of whom had a deep-seated (though clearly not too deep-seated) abhorrence to judicial activism. Another curious deus ex machina occurred — Jackson suffered a serious heart attack. Debilitated and in hospital, he was visited by Chief Justice Warren, who persuaded Jackson to sign on to his newly-drafted opinion. Warren then “cornered Reed, telling him he would be all alone if he did not go along. Reed, who never agreed with the ruling, bowed to pressure and joined the majority.”
Despite all of the foregoing evidence that the framers of the Fourteenth Amendment expressly did not mean to touch segregation, either then or at any point in the future, and despite Bickel’s research proving the same, Warren wrote that, “although these sources cast some light, it is not enough to resolve the problem…At best, they are inconclusive…What…Congress and the State legislatures had in mind cannot be determined with any degree of certainty.” As aforementioned, the Court conceded that separate schools could in fact be equal, and that many, if not most, were equal; although this should have closed the issue, Warren said, “Our decision, therefore, cannot turn on merely a comparison of…tangible factors…We must look instead to the effect of segregation itself on public education.” As previously stated, Warren made the outrageous declaration that “we cannot turn back the clock to 1868 when the Amendment was adopted…We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives plaintiffs of the equal protection of the laws.” Warren asked, “Does segregation of children in public schools…deprive the children of the minority group of equal educational opportunities?” With literally nothing to support the decision but the extremely dubious and tainted doll studies, Warren simply wrote, “We believe that it does.” He continued that, contrary to nearly a century of precedent, “separate educational facilities are inherently unequal” and thus violative of the “equal protection” clause of the Fourteenth Amendment, because “to separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.” Warren implied that the “due process” clause would also be violated, but declined to elaborate.
Caldwell remarks that Brown “was not just a landmark decision but an unusual one. It was brief to the point of curtness: Shorn of footnotes and case references, each of its two parts ran about the length of a newspaper column. It was less a judicial argument than a judicial order…in constitutional terms, the decision was arbitrary and open-ended [and] granted the government the authority to put certain public bodies under surveillance for racism…there was no obvious limit to this surveillance…the Civil Rights Act introduced into the private sector this assumption that all separation was prima facie evidence of inequality.” Warren ignored the Fourteenth Amendment, tying his farcically, flimsily supported conclusion to the Amendment simply by declaring a connection. In truth, Warren’s opinion is a castle in the sky; the Fourteenth Amendment had nothing at all to do with the ruling, and was wholly disconnected from it — the doll studies had been the only basis for the decision. As Taylor put it, “because the Court could find no Constitutional justification for overturning the doctrine of ‘separate but equal’, it based its ruling on then-fashionable sociological theories. These theories were wrong.” Indeed, Taylor emphasizes, “it should not require pointing out that whether segregation makes blacks feel inferior is not a Constitutional issue. Even if the evidence that segregation did have that effect had been solid — and it was not — it did not justify reinterpreting the Constitution.”
Inexplicably, as if self-evident, Warren said that, because of “intangible considerations” and “qualities which are incapable of objective measurement”, separation “is usually interpreted as denoting” inferiority. Caldwell notes that the Court thus rewrote the Constitution and transformed American society “on the authority of vague pronouncements about the way things are ‘usually interpreted.’” Taylor gives us a glimpse of the social carnage wrought by Brown: “…integration orders were among the most intrusive and damaging ever issued by American courts. Judges took over the most minute school-related decisions as if they were one-man school boards. Mandatory racial balancing — usually accomplished by busing — provoked white flight that in many cases left schools even more segregated than before. Beginning in 1991, the Court eased its requirements for mandatory busing, but by then it had already caused incalculable dislocation and had turned most big-city school districts into minority ghettos.” Warren’s remark that “we cannot turn back the clock”, Berger explained, was “a veiled declaration that the intention of the framers was irrelevant and that the Court was revising the Constitution to meet present-day needs…Stated baldly, what the framers meant by the words they employed is not binding on the Court; the Court lays claim to power to revise the Constitution to meet present needs.” Berger noted that Warren “did not merely ‘shape’ the law, he upended it; he revised the Fourteenth Amendment to mean exactly the opposite of what its framers designed it to mean, namely, to leave suffrage and segregation beyond federal control, to leave it with the States, where control over internal, domestic matters resided from the beginning.”
As Taylor briefly touched upon, Justice Frankfurter wrote that the Constitution “was ‘made for an undefined and expanding future’” and “is not a fixed formula…The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether a discrimination denies the equal protection of the laws.” Berger aptly replied that, “although the framers were well aware of the nation’s ‘expanding future’, they nonetheless…rejected suffrage, ‘present or prospective.’…Buried in Frankfurter’s fine phrases is a confession that the people could not be trusted to reflect the ‘changes in men’s feelings’ by an Amendment, and that in consequence the Justices had to rewrite the Constitution.” As Americans, it is one of our foremost duties to interrogate each and every action taken by the government; we must trace each exercise of power to its source. Often, we find, as we have thus far, that there either is no source, or that the given source bears no relation to the power exercised. Henry “Light-Horse Harry” Lee III, hero of the War of Independence and father of the gallant General Robert E. Lee, warned us to be vigilant; at the Virginia Ratification Convention, he said, “When a question arises with respect to the legality of any power, exercised or assumed”, the question will be, “Is it enumerated in the Constitution? …It is otherwise arbitrary and unconstitutional.” Justice Holmes further warned that “the criterion of constitutionality is not whether we believe the law to be for the public good.” Taylor made what is perhaps the best statement on Brown: Its final reckoning “has yet to be made, but it is a ruling to be mourned, not celebrated.”
In response to Brown, “massive resistance” in the Southern States was initiated. This is not the space to examine white resistance to Brown and the ensuing Civil Rights movement, but it is worth remembering the Declaration of Constitutional Principles, better known as the Southern Manifesto. Senators Harry F. Byrd, Sr., Strom Thurmond, and Richard Russell drafted the rallying cry, an announcement of a Solid South unified in resistance, signed by 101 Congressmen. They wrote that Brown “climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people”, and that “the original Constitution does not mention education. Neither does the Fourteenth Amendment nor any other Amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.” They noted, as have we, that “the very Congress which proposed the Amendment subsequently provided for segregated schools in the District of Columbia. When the Amendment was adopted…Every one of the 26 States that had any substantial racial differences among its people, either approved the operation of segregated schools already in existence or subsequently established such schools.” They declared that segregation, which did not conflict with the Fourteenth Amendment, “became a part of the life of the people of many of the States and confirmed their habits, traditions, and way of life. It is founded on elemental humanity…for parents should not be deprived by Government of the right to direct the lives and education of their own children.” They asserted that, “though there has been no constitutional Amendment…changing this established legal principle almost a century old, the Supreme Court, with no legal basis for such action, undertook to exercise [its] naked judicial power and substituted their personal political and social ideas for the established law of the land.” They stated that “this unwarranted exercise of power by the Court, contrary to the Constitution, is creating chaos and confusion in the States principally affected”, and that, “without regard to the consent of the governed, outside mediators are threatening immediate and revolutionary changes in our public-school systems. If done, this is certain to destroy the system of public education in some of the States.” Finally, they said, “We decry the Supreme Court’s encroachment on the rights reserved to the States and to the people, contrary to established law, and to the Constitution.” How right they were.
Does the Fourteenth Amendment include the doctrine of “incorporation”?
I have probably mentioned some form of the “vitiation of the Tenth Amendment” a dozen or more times by now. The poor Tenth Amendment is like Shel Silverstein’s Giving Tree, the tree that gives, and gives, and gives, until there is nothing left to give. Perhaps another analogy is a dying man, bleeding out on the street as bystanders rush by, on their way to bigger and more important things. The Tenth Amendment has been under sustained assault essentially since the birth of the Republic, and at this point essentially no longer exists. The last bullet in its riddled body was the doctrine of incorporation, conjured through yet another “interpretation” of the Fourteenth Amendment, whereby the Bill of Rights has been applied to the States. Most of us simply take it for granted that the Bill of Rights are “national”, applicable to every person within the United States, and that it has always been so. This could not be further from the truth. As Berger summarized, “Invocation of the Bill of Rights against the States is of fairly recent origin, whether it be regarded within the older framework of ‘adoption’ or the more recent theory of ‘incorporation.’ From the First Amendment’s ‘Congress shall make no law’ may be gathered that it was to apply exclusively to Congress, and it was held in Barron v. Baltimore that the Bill of Rights had no application to the States, as in fact the First Congress, which drafted the Bill, had earlier made clear. Justice Harlan spoke truly in stating [in Duncan v. Louisiana] that ‘every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.’…for a long time the Supreme Court found that the Fourteenth Amendment had made no change in this respect. By means of ‘selective’ incorporation or adoption the Court has worked a ‘revolutionary change.’”
For the entirety of American history, the people “have relied upon the States for protection, and such protection was afforded before the Constitutional Convention by a Bill of Rights in virtually every State constitution. It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State constitutions already provided against the States.” The modern phenomenon whereby the people look to the omnipotent federal Leviathan for protection is just that — modern, i.e., without any historical precedent whatsoever. It is a way for the favored puppets of the Regime to have their way with the States that would protect the American people from them. This arose in parallel with the erosion of State sovereignty by such instruments as the Seventeenth Amendment, as the American Republic was incrementally pushed toward the chasm of popular democracy. Justice Hugo Black was the architect of “incorporation” in his dissent in Adamson v. California, reading into “privileges or immunities” the idea that “henceforth the Bill of Rights shall apply to the States.” In response, Berger pointed to the undeniable fact that the two concepts are wholly estranged from one another, “of entirely different provenance and [dealing] with quite different matters.” “Privileges or immunities”, as we have seen, is grounded in Article IV, Section II, “which requires States to accord certain privileges to citizens of a sister State.” The Bill of Rights, by contrast, was designed to protect the rights of States against the federal government. Berger noted that “the debates in the First Congress contain not the faintest intimation that ‘privileges or immunities’ of Article IV were being enlarged, or…that the Bill of Rights was in any way related to ‘privileges or immunities.’ And, when Justice Bushrod Washington later enumerated those ‘privileges or immunities’, he too made no reference to the Bill of Rights. To read the Bill of Rights into ‘privileges or immunities’ is therefore no more ‘reasonable’ than to read a ‘bill of attainder’ into ‘habeas corpus.’”
Justice Black cited Representative Bingham’s proposal to “incorporate” the Fifth Amendment, allegedly inspired by abolitionists who advocated the “incorporation” of the First and Fourth Amendments, as well as Senator Howard’s proposal to “incorporate” the First through Eighth Amendments. As to Bingham’s proposal, it was shelved immediately, with Bingham its only advocate. After the proposal was rejected, Bingham never mentioned it again, making no reference to the inclusion of the Bill of Rights during the debate on the final draft of the first section of the Fourteenth Amendment. Berger examined Bingham’s often self-contradictory statements on many issues during the Thirty-Ninth Congress, and came to the unavoidable conclusion that the man was “a muddled thinker”, a “careless, inaccurate, stump speaker.” As Representative Stevens said of his colleague, “In all this contest about Reconstruction, I do not propose to listen to his counsel, recognize his authority, or believe a word he says.” Howard explained the Amendment to the Senate only “by caprice of fortune — the sudden illness of Chairman Fessenden.” Howard was another pariah, “one of the most…reckless of the Radicals”, who had “served consistently in the vanguard of the extreme Negrophiles.” Howard and Representative Elihu Washburne were the only members of the Thirty-Ninth Congress to advocate for black suffrage until the bitter end. Howard proposed his addition of the first eight Amendments into the Fourteenth as one casual sentence in an exceedingly long speech, almost as an aside; it was completely ignored by the members present, and clearly did not represent a majority, or even a minority, opinion.
Senator Luke Poland affirmed that “privileges or immunities” “secures nothing beyond what was intended by the original [Article IV, Section II] provision in the Constitution.” Representative William Wisdom described the Fourteenth Amendment thus: “Your life shall be spared, your liberty shall be unabridged, your property shall be protected.” Moreover, Berger noted, “there is the remarkable fact that the cases which followed on the heels of the Fourteenth Amendment continued to hold the Bill of Rights inapplicable to State action, without mentioning the Amendment. Oversight will not account for the omission…they would not be oblivious to the revolution worked by the alleged incorporation of the Bill of Rights.” When James Madison proposed that the First Amendment protection of “free speech” be applied against the States, he was rebuffed; the lesson from this, Berger emphasized, was clear: “That which the Framers rejected cannot be regarded as part of our tradition.” To reiterate, the understanding which pervaded the Thirty-Ninth Congress was that the sole purpose of the Amendment was to constitutionalize the Civil Rights Bill. The framers were attached to the sovereignty of their States, and indeed believed that only the targeted South, not the North, would even be affected by the Amendment. All of this, Berger asserted, unites “to repel an inference that the framers intended to interfere with State conduct of its own affairs otherwise than is described in that Act.”
Again, “no trace of a purpose to reconstruct Northern institutions for the protection of white inhabitants against the State will be found in the debates; the frequent expressions of jealous regard for [their own] State sovereignty repel such a purpose.” Justice Black’s so-called “incorporation” was never discussed in the Joint Committee on Reconstruction which drafted the Fourteenth Amendment. “Incorporation” was never even debated on the floor of that Congress, or any other, for that matter; if “incorporation” had been intended, this fact would constitute “an extraordinary omission given the vast incursion on State sovereignty by the Bill of Rights. Indeed, the North was given to understand that it was unaffected by the companion Civil Rights Bill, the Bill that was considered on all sides to be ‘identical’ with the first section of the Amendment. Plainly, the provisions of ‘due process’, ‘privileges or immunities’, and ‘equal protection’ did not disclose that the Bill of Rights was incorporated therein.” We must never forget what the term “ratification” means — it is a voluntary compact, much like the United States were a voluntary compact. This means that, even “if there was a concealed intention to go beyond the Civil Rights Act, it was not ratified because…ratification requires disclosure of material facts…and…a surrender of recognized rights may not be presumed but must be proved.” “Incorporation”, then, is yet another facile bastardization through which the Fourteenth Amendment has been fundamentally transformed. In this transformation, Berger declared, “the Court has soared beyond the confines of the Bill of Rights to fashion a congeries of individual rights undreamed of by the Founders.”
When seventeenth-century scholars, to whom the Founders looked, referenced “fundamental rights or laws”, they meant “the rights which the existing law gave them”, not the “rights” which a ruling class antithetically opposed to all that they held dear might fashion. When Samuel Adams claimed “the primary, absolute, natural rights of Englishmen”, he listed the aforementioned Blackstonian trio of “Personal Security, Personal Liberty, and Private Property.” “Liberty” was defined as “unrestrained freedom to come and go.” The Bill of Rights was a direct response to British atrocities before and during the War of Independence; this is the source of the Framers’ desire, itself hotly debated, for protection of the States from the federal government for “free speech, quartering of soldiers, unreasonable searches and seizures, the right to bear arms, and sundry procedural provisions to ensure fair trials. How activists can conjure out of these facts provision for illimitable individual rights passes understanding.” The remaking of American history into a utopian struggle for ever-greater “individual rights” to the final pyrrhic frontier is without precedent; indeed, “the modern individual ‘rights’ created by the Court are without foundation in the Constitution.” Judicial revisionists, handmaidens to the Regime, “outdo one another in urging the imposition of constitutional constraints on the basis of ‘rights’ whose origins cannot be traced to either the constitutional text or the structure it created.”
What does “equal protection of the laws” guarantee?
As our investigation has proven, “the framers meant to outlaw discrimination only with respect to enumerated privileges. Even the abolitionists shrank from complete equality.” They carefully and deliberately chose the words that they felt most “aptly expressed, and throughout were wedded to, their limited purposes…there is virtually no evidence that the framers meant by resort to those words to open goals beyond those specified in the Civil Rights Act and constitutionalized in the Amendment.” Equal application of the law is a long and well-established doctrine of Anglo-American jurisprudence; this, and only this, was the purpose of the Civil Rights Bill which the Amendment meant to embody. That Bill, it bears repeating, “secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the ‘equal benefit of all laws for security of person and property.’ ‘Political rights’ were excluded. In describing these aims the framers interchangeably referred to ‘equality’, ‘equality before the law’, and ‘equal protection’ (but always in the circumscribed context of the rights enumerated in the Bill), so that it is reasonable to infer that the framers regarded these terms as synonymous.” Equality before the law, the framers insisted time and again, is not social equality. Representative Thomas Davis agreed that blacks “must be made equal before the law, and be permitted to enjoy life, liberty, and the pursuit of happiness [property]”, but he was against “the establishment of perfect equality between the colored and the white race of the South.” “Equal protection of the laws” was a particularized expression of the framers’ central object, aside from maintaining Republican hegemony: “to prevent statutory discrimination with respect to the rights enumerated in the Civil Rights Act.”
The framers of the Fourteenth Amendment “sought only to secure to blacks the same specified rights as were enjoyed by whites; if whites did not have them there was no State duty to supply them to anyone, still less a Congressional power to fill the gap.” In other words, the Amendment did not create any “rights”, but only sought to restrict States from discriminating against blacks with respect to extant “rights.” The “equality” that was to be protected was a Statewide standard, “within its jurisdiction”, not a national standard. Representative Samuel Shellabarger evinced this when he said that the Bill secures “equality of protection in these enumerated civil rights which the States may deem proper to confer upon any race.” A State statute might be “unequal” when placed in comparison with another State’s, but “if it is impartial, uniformly applied to all within the State, it satisfies the meaning of ‘equal.’” The framers repeatedly stated that their purpose was “to prevent one law for blacks, another for whites. It was a ban on such discrimination that was expressed in ‘equality before the law’ and ‘equal protection’ — not a mandate that the States must confer rights not theretofore enjoyed by any citizen.”
The first section of the Amendment, wherein the three operative clauses are located, was agreed-upon to be a restriction on the States, not a conferral of new power onto Congress, let alone the judiciary. The Congressional power of section five was extremely limited to corrective measures addressed to specific unequal application of State laws, not expansive general national legislation. Future President James Garfield explained at the time that Congress had rejected “a clear grant of power to Congress to legislate directly for the protection of life, liberty, and property within the States” in favor of the final form that “limited but did not oust the jurisdiction of the State over the subjects.” In United States v. Cruikshank, Chief Justice Morrison Waite denied the “incorporation” doctrine that the “equal protection” clause has been distorted to create, writing, “For their protection in its [the First Amendment protection of the right to assemble against “encroachment by Congress”] enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.” Justice Bradley concurred, asking, “How can a prohibition…be enforced until it is violated?” He elaborated that “to convert ‘No State shall deny’ into ‘Congress shall make’ does violence to the text. The distinction between a prohibition of action and a grant of power was well understood by the Thirty-Ninth Congress.” Bradley continued that “surely Congress cannot guaranty to the colored people admission to every place of gathering and amusement. To deprive white people of the right of choosing their own company would be to introduce another kind of slavery… [The Civil Rights Bill] has already [guaranteed] to the blacks the right of buying, selling, and holding property, and of equal protection of the laws. Are these not the essentials of freedom? Surely a white lady cannot be enforced by Congressional enactment to admit colored persons to her ball or assembly or dinner party…does freedom of the blacks require the slavery of the whites? And enforced fellowship would be that.”
What does “due process of law” mean?
In 1787, Alexander Hamilton declared at the New York Assembly that “the words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.” Berger confirmed that “no statement to the contrary will be found in any of the Constitutional Conventions, in the First Congress, nor in the 1866 debates.” The concept of “due process of law” can be traced back to the 29th chapter of the Magna Carta, which provided that “no man should be deprived of his life, liberty, or property, except by judgment of his peers or the law of the land. Edward Coke stated that ‘by the law of the land’ was meant ‘by the due course and process of law’…both related to judicial procedures preliminary to the described forfeitures.” Berger noted that “due process” was “conceived in utterly procedural terms, specifically, that a defendant must be afforded an opportunity to answer by service of process in proper form, that is, in due course.” As conceived, “process” was by indictment or writ, served “in ‘due course’, that is, in regular course, if the ‘appropriate’ writ was employed. ‘Due process’ should therefore be regarded as shorthand for Coke’s ‘by the due course and process of law’ in judicial proceedings…due process was not a catchall for all the other safeguards the Bill of Rights provided to a defendant; it had a special and limited function: to insure through service of proper, that is, ‘due’, process that a defendant would be given a chance to answer.”
Given the extreme prominence to which “due process” has been elevated by judicial “construction” of the Fourteenth Amendment, Berger remarked that “it is surprising how scanty were the allusions to the clause in the debates of the Thirty-Ninth Congress. It was altogether unmentioned in the Civil Rights Bill; instead the Bill spelled out the concrete rights ‘to sue, be parties, and give evidence’; and it inclusively provided for the ‘equal benefit of all laws and proceedings for the security of person and property.” The conversion of the “due process” clause into the behemoth that it is today has turned the Amendment on its head, such that its framers would hardly recognize it. As aforementioned, “the original design was to make ‘privileges or immunities’ the pivotal provision in order to shield the ‘fundamental rights’ enumerated in the Civil Rights Act…Intertwined with that enumeration was repeated emphasis on the enjoyment of the ‘same rights’, and ‘equal benefit of all laws and proceedings for the security of person and property.’” Senator Trumbull stated clearly that the Bill “contains but one single principle…to establish equality in the civil rights of citizens.” We have already examined at length just what those “civil rights” were — a far cry from engorged Civil Rights. Representative John Farnsworth said that the Amendment “might as well in my opinion read, ‘No State shall deny to any person within its jurisdiction the equal protection of the laws’”, as the rest was “surplusage.” For the framers, Berger concluded, “the three clauses of the Fourteenth Amendment were a trinity, three facets of one and the same purpose.” In summary, “privileges or immunities” protected the substantive civil rights of the freedmen, through the medium of two ancillary rights, the first of which being the impartial and “equal protection” under and application of State laws to prohibit statutory discrimination with respect to those enumerated civil rights, and the second of which being judicial “due process” to prohibit judicial discrimination of the same enumerated rights.
The framers, Berger asserted, “were content to bar discrimination, to assure blacks that they would have judicial protection on the same State terms as whites, no more, no less… ‘due process of law’ was not meant to create a new, federal criterion of justice. Like State laws at which ‘equal protection’ was aimed, State justice had to be nondiscriminatory.” Representative Stevens explained that “due process” meant only that “whatever means of redress is afforded to one shall be afforded to all.” In Hurtado v. California, Justice Stanley Matthews wrote that “due process” as written in the Fourteenth Amendment “refers to that law of the land in each State…’Each State prescribes its own mode of judicial proceeding.’” Berger continued that the framers were even less of a mind “in requiring nondiscriminatory laws and equal judicial process to create a fresh congeries of rights that ranged beyond those enumerated. Having in mind that the Amendment was designed to constitutionalize the Civil Rights Act, it is clear that the ‘equal protection’ and ‘due process’ clauses were merely a compressed version of the original design…these clauses simply echoed the Blackstonian formula that the ‘fundamental rights’ could be diminished only by ‘due course of law’ or by the ‘laws of the land’, by which was meant general laws that would apply to all alike.” Chairman Wilson stated that “it is not the object of this Bill to establish new rights.” For the protection of the enumerated “fundamental rights” of “life, liberty, and property”, which we have seen are specifically limited terms of art, “the framers fashioned impartial access to judicial process and nondiscriminatory legislation. They did not seek to supplant State proceedings and lawmaking, but only to insure…that an oppressed race should have the ‘equal benefit of all laws for security of person and property’ ‘as is enjoyed by white citizens.’” The Court has ignored all of the foregoing discussion, and has chosen instead to substitute its whims for the careful deliberation of the framers.
 Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment (Indianapolis: Liberty Fund, 1997).
 Taylor, Jared. “The Racial Revolution: Race and Racial Consciousness in American History,” in Race and the American Prospect, Francis, Samuel T. (Ed.); See also Weyl, Nathaniel. American Statesmen on Slavery and the Negro (Arlington House, 1971).
 Taylor, Jared. “Brown v. Board: The Real Story”, in If We Do Nothing: Essays and Reviews from 25 Years of White Advocacy (New Century Books, 2017).
The key portion of the Fourteenth Amendment is its first section, which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.” It would be hard to overstate its effect on our nation. The Fourteenth Amendment has formed the basis of “birthright citizenship”, along with the Supreme Court rulings of: Brown v. Board of Education (desegregation and the chain[i] of forced integration and busing); Plyler v. Doe (free public education for illegal aliens); United States v. Virginia (forced integration of women into all-male schools); Reed v. Reed and Craig v. Boren (eradication of sex differences); Regents of the University of California v. Bakke and Grutter v. Bollinger (affirmative action); Loving v. Virginia (miscegenation); Baker v. Carr, Wesberry v. Sanders, and Reynolds v. Sims (“one man-one vote” reapportionment); Shelley v. Kraemer (exclusionary covenants, later included within the Civil Rights Act of 1968); and Bush v. Gore. The Amendment was also used to undergird the Voting Rights Act of 1965, and has been further twisted to create the doctrine of incorporation, whereby the already-prostrate Tenth Amendment was further vitiated by applying much of the Bill of Rights against the States, circumventing Barron v. Baltimore. One of the most pernicious uses to which the Fourteenth Amendment has been put is the creation, spun out of whole cloth, of the “right to privacy” and its parallel implication of “sexual liberty” as “fundamental.”
In 1973, the United States Supreme Court unilaterally enshrined infanticide in our Constitution by reading into it a fundamental “right to privacy.” This “right to privacy” was first conceived in Griswold v. Connecticut, which legalized the use of contraceptives by married couples; in his opinion, Justice William Douglas suggested that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” He continued that “various guarantees create zones of privacy”, such as the guarantees contained in the First, Third, Fourth, Fifth, and Ninth Amendments. Concurring opinions argued that the Due Process Clause of the Fourteenth Amendment protected this “right to privacy” as fundamental; ironically, the Court saw its decision as a protection of “the traditional relation of the family…as old and fundamental as our entire civilization.” In any case, the Court used the specious Incorporation Doctrine spun out of the Fourteenth Amendment to apply this “right” against the States. The “right to marital privacy”, or “sexual liberty”, created of whole cloth in Griswold was extended to unmarried individuals in Eisenstadt v. Baird using the Equal Protection Clause of the Fourteenth Amendment; in his opinion, Justice William Brennan wrote, “If the right of privacy means anything, it is the right of the individual…to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” From this state-sanctioned contraception, which was later extended to minors in Carey v. Population Services International, it was but a short step to infanticide.
Justice Blackmun wrote, “The Constitution does not explicitly mention any right of privacy…however, the Court has recognized that a right of personal privacy…does exist under the Constitution.” This radically activist decision, reifying infanticide as a “fundamental” right “implicit in the concept of ordered liberty”, became even more stomach-churning when Blackmun asserted, “This right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent…Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child…all these are factors [that] the woman and her responsible physician necessarily will consider.” Though infanticide was ruled to be potentially regulable in the third trimester of pregnancy, an exception was created for “the mother’s health”; in Doe v. Bolton, the sage physician was given extreme deference in determining what exactly that criteria was, and in Planned Parenthood v. Casey, the trimester formulation of Roe was replaced with an “undue burden” analysis, granting further deference to the egalitarian deity of Choice. This “right to privacy”, based on the “sexual liberty” read into the Due Process Clause of the Fourteenth Amendment, was used to legalize sodomy in Lawrence v. Texas and as part of the foundation for the imposition of homosexual marriage as another “fundamental right” in Obergefell v. Hodges, which overturned the marriage laws of more than half of the States, as well as the federal Defense of Marriage Act.
Roe was an extraordinarily sloppy decision, resting on the Griswold “right to privacy” that, Caldwell notes, “was only ever invoked for the ulterior purpose of defending abortion. In the countless important privacy cases that have come before the Court in the half-century since…the Griswold/Roe ‘privacy right’ never came up.” Indeed, if the Court could create nonexistent “fundamental rights” such as the “right to privacy”, what could be more fundamental than the right to life, inherent throughout the “penumbras” of the Bill of Rights? United States v. Windsor was the precursor to Obergefell, telegraphing the creation of the “right” of sodomite marriage. Caldwell emphasizes that, modeled after the “Sunday best” tactics of the NAACP during the Civil Rights “movement”, “the lawsuits out of which gay marriage law was built were…carefully designed — one could say scripted — by tax-exempt foundations, public interest law firms, and Manhattan and Washington corporate lawyers working pro bono…plaintiffs were recruited for high standards of bourgeois comportment…They had to avoid public displays of affection and talking about sex.” As Rosa Luxemburg had remarked about Bolshevism, “the real dialectic of revolution stands the parliamentary cliché on its head: The road leads not through majorities to revolutionary tactics, but through revolutionary tactics to majorities.” The revolutions of the past century, we have thus seen, were instituted imperially, having not once been organic.
To preface our discssion of the (un)constitutionality of the Fourteenth Amendment, we are well-served by reading the Obergefell dissents of Chief Justice Roberts and Justice Scalia. Roberts wrote, in a rare display of excellence, that “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution…The majority…[relies] on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’ As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia…Just who do we think we are? It can be tempting for judges to confuse our own preferences with the requirements of the law…The majority today…seizes for itself a question the Constitution leaves to the people…it answers that question based not on neutral principles of constitutional law, but on its own ‘understanding of what freedom is and must become.’…this dissent is about…whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes…The Constitution leaves no doubt about the answer…The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges [contravene] democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it…Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making ‘new dimensions of freedom…apparent to new generations’…If you are among the many Americans…who favor [this decision], by all means celebrate…Celebrate the achievement of a desired goal…But do not celebrate the Constitution. It had nothing to do with it.”
Scalia wrote that the Court’s decree “says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves… When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases… We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification… But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect. That is so because ‘[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . .’ One would think that sentence would continue: ‘. . . and therefore they provided for a means by which the People could amend the Constitution,’ or perhaps ‘. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.’ But no. What logically follows, in the majority’s judge-empowering estimation, is: ‘and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.’… his is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’”
Scalia continued that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy… the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course, the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation… what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since… They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”
Quite unambiguously, the Court sees itself in the role of a wise parent, forcing the American people from their training wheels into the deep end of the proverbial pool, making the decisions that it knows we benighted yokels will not. It is in this manner that we are assimilated into a new, constantly revolutionized society. Brown, as we shall see, is a perfect example, indoctrinating our children in the sacred strictures of the Egalitarian Regime from cradle to grave, such that each new depredation is normalized and reified as simply “the way things are.” Cocktail “conservative” judges and Justices uphold each new affront, each step further into the forbidding bog after each new will-o’-the-wisp, as “precedent.” When we seek the source of the power claimed by the Regime, we often find that there is no source. Where there does exist a “source”, it is a source that has tortured so terribly that it is unrecognizable, that it can hardly be considered a part of the tattered Constitution.
1. The Fourteenth Amendment is Unconstitutional
The late Forrest McDonald traced the labyrinthine tale of the proposal and ostensible ratification of the Fourteenth Amendment, no easy task given the amount of skullduggery that had been involved in its passage, and concluded that “clearly…the Fourteenth Amendment was never constitutionally ratified, even if it had been constitutionally proposed.” President Andrew Johnson had agreed, and “questioned the legitimacy of an amendment proposed by a Congress that represented only 25 of the 36 States. Three Northern States that ratified the proposal later rescinded their votes. All the Southern States except Tennessee at first voted against the amendment, despite an implied threat that they would not be readmitted to the Union; they changed their stands only after the threat was made explicit. And throughout the debates on the amendment, friends and foes alike disagreed as to whether approval of three-quarters of 25 States or of 36 would be necessary. Ultimately, the issue would turn on the question whether the southern states had legally seceded. Both Presidents Lincoln and Johnson and the Supreme Court held to the contrary. Radicals in Congress disagreed, but the Congress as a whole followed an inconsistent course.” The Fourteenth Amendment, as we shall see, was neither constitutionally proposed nor ratified.
The first irregularity in the process of foisting the Fourteenth Amendment upon the American people, as aforementioned, was its passage by an incomplete Congress — a Congress in which the Southern States were wholly unrepresented. In the House of Representatives, the Amendment was passed with 120 to 32, with 32 abstentions; thus, the requirement of a two-thirds majority was satisfied. However, the 61 duly elected Representatives of the 11 States of the former Confederacy were denied their seats; as all of these men would doubtlessly have cast negative votes, the final two-thirds majority would have been reduced to a mere 56 percent. Furthermore, McDonald pointed out, that majority included the newly admitted West Virginia and Nevada, the constitutionality of both of whose Statehood was highly questionable. In the Senate, the Amendment was passed with 33 to 11, with 5 abstentions. If the 22 Southern Senators had been allowed their rightful seats, that majority would have been a tie; again, if the two Senators apiece from West Virginia and Nevada were subtracted from the roster, the Amendment would not have had even a simple majority.
McDonald further stated that “the numbers cited concerning the vote in the Senate mask some chicanery”, noting the case of newly-elected New Jersey Senator John Stockton, an opponent of the Fourteenth Amendment who had been formally seated when the Thirty-Ninth Congress was convened. After polling revealed that only 33 Senators favored the Amendment, one short of the requisite two-thirds, “a motion was made not to seat Stockton. The motion not to seat was resorted to, even though he had already been seated, because Article I, Section V, of the Constitution requires a two-thirds vote to expel a member, and that majority could not be mustered. Following a great deal of debate, a vote was taken and the motion not to seat failed 22 to 21. Overnight, however, one member of the Senate was persuaded to change his vote. The next day the same motion passed. Stockton was thus unconstitutionally expelled, and only in that way did the 33 votes for the Fourteenth Amendment become a two-thirds majority.” Manifestly, then, the Amendment was not properly proposed, “passing” the House and the Senate without the requisite majorities. Even, however, were we to concede that the Amendment was properly proposed and submitted to the States for ratification, the Amendment would still be unconstitutional, for that ratification process was demonstrably more ludicrous.
Senator Charles Sumner, forever known as the victim of that proud South Carolinian Representative Preston Brooks, promulgated his “State suicide” theory, whereby the act of secession had terminated the Statehood of each member of the former Confederacy. Parallel to this concept was Representative Thaddeus Stevens’ contention that the Southern States were conquered vassals with no political rights whatsoever. By either of these arguments, the Southern States were under the sole supervision of Congress, under its power to govern territories; if the former Confederate States were no longer States, then, they could not ratify Amendments. According to that logic, the three-fourths majority would apply to just 25 States, making the magic number 19, as opposed to 27 of 36 States. Flimsy though their arguments were, Congress, strangely enough, did not follow either Sumner’s or Stevens’ theories, instead taking an even more specious approach. When the Amendment was submitted to the States, it was sent to all 36 Governors, thus acknowledging that the Southern States were still recognized as States, that they had not committed “suicide” or been “conquered” as territorial acquisitions.
Five States ratified the Amendment within the first three months: Connecticut, New Hampshire, New Jersey, Tennessee, and Oregon. New Jersey barely secured the requisite majority, and later rescinded its ratification. In Tennessee, opponents of the Amendment prevented a House quorum by failing to appear, and two of these absentee State Representatives were forcibly arrested. A court ordered their release by a writ of habeas corpus, but the House held the men anyway. Though the Speaker declared that there was no quorum, he was overruled by those present, and the rump legislature proceeded to ratify the Amendment. In Oregon, events were just as unscrupulous. Republicans held a majority in the House by only one member, and two of their seats were challenged. These two were temporarily seated in order to ratify the Amendment, but later in the session, the Republicans were determined to have been illegally elected, their seats awarded to Democrats. Oregon then rescinded its ratification, passing a resolution declaring that ratification in the Southern States, about which more later, were “usurpations, unconstitutional, revolutionary, and void” and that, “until such ratification is completed, any State has a right to withdraw its assent to any proposed Amendment.”
Vermont ratified the Amendment, and the Southern States began to respond. Texas overwhelmingly rejected the Amendment, followed by Georgia, Florida, Arkansas, and North and South Carolina. In California, Republican Governor F.F. Low refused to call a special session of the legislature to even consider the Amendment, which was in any case later rejected. Virginia, Alabama, Mississippi, Louisiana, Kentucky, Delaware, and Maryland also refused to ratify the Amendment. Thus, McDonald remarked, “as the last days of the Thirty-Ninth Congress approached…the Fourteenth Amendment appeared to be doomed.” Nebraska was admitted as a State three days before the expiration of the session, raising the number of American States to 37; 28 States were now needed to ratify the Amendment, counting the former Confederacy, and 12 States had already rejected it. Ohio added itself to the list of rescissions; if these rescissions were allowed, only 19 States would have ratified the Amendment. Congress summarily refused to recognize the rescissions, “despite the argument that a legislative ratification of an amendment was not a contract until it became part of the Constitution and could therefore be cancelled.”
Two days before the end of the Thirty-Ninth Congress, the Republicans passed the Reconstruction Act, overriding President Johnson’s veto; the Act, slightly amended by the Fortieth Congress, was employed as a whip to beat the Southern States into docile submission. The Reconstruction Act followed the logic of Sumner and Stevens, declaring that “no legal State governments” existed in the “rebel” States that had refused ratification. The Act divided the late Confederacy into five military districts, dissolving the elected State legislatures and instituting martial law. “Elections” were called in which whites were disfranchised, with only black freedmen permitted to “vote.” The new State legislatures, essentially rump puppets installed by military junta, were directed to rewrite their State constitutions and submit them for approval to Congress. Readmission as full-fledged States was conditioned upon ratification of the Fourteenth Amendment by the reconstituted rump legislatures. The Reconstruction Act was baldly spurious.
First, the logic of the Act was in direct conflict with Ex parte Milligan, in which only three months prior, the Supreme Court held that “martial law could not constitutionally be imposed, in the absence of war or rebellion, in areas where the civilian courts were functioning.” Next, McDonald emphasized, “in its peculiar holding that the States had continued to exist but were without legal government, the Act entangled itself in contradictions.” Indeed, Mississippi had already amended its constitution, and the other Southern States had done so “under the auspices and with the approval of the federal government.” For example, Louisiana had amended its constitution under the direction of President Lincoln. Most damningly, “Congress had called upon the legislatures elected under those constitutions to ratify the Thirteenth Amendment in 1865.” The votes of Alabama, Arkansas, Georgia, Tennessee, and North and South Carolina had been counted as part of the three-fourths majority with which the Thirteenth Amendment was ratified. In other words, McDonald wrote, “in 1865 Congress had recognized the legitimacy of the southern state governments for purposes of ratifying the Thirteenth Amendment, but, though nothing about those governments had changed by 1867, Congress denied their legitimacy when they voted to reject the Fourteenth Amendment.”
As President Johnson noted in his veto message, the Reconstruction Act was a wholesale violation of the Fifth Amendment, stripping away the political and civil rights of white Southerners without anything resembling due process of law. Johnson wrote, "I submit to Congress whether this measure is not in its whole character, scope and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive of those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure." Moreover, it effectively served as “a bill of attainder against nine million people at once”, all of whom were excluded from a hearing through their representatives, on the basis of “an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence.”
McDonald explained that the statutory “preclusion of Southern representation in Congress…distorted one feature of the Constitution to annul two other features. Article I, Section V, which declares that ‘each House shall be the Judge of the Elections, Returns and Qualifications of its own members’, clearly contemplates the judging of each member individually, through hearings and the taking of evidence. Yet by arbitrarily excluding members from specified states, Congressmen were not judging; they were refusing to judge. By doing so, they deprived the designated States of their constitutional rights to representation as provided by Article I, Sections II and III, and Article V.” Senator James Doolittle expressed the animus that motivated the Reconstruction Act when he said that “the people of the South have rejected the constitutional Amendment,” and that Congress would therefore “march upon them and force them to adopt it at the point of the bayonet” and rule them with military force “until they do adopt it.”
The complaints of the Southern States fell on deaf ears. The Supreme Court “declined to intervene, and, despairing of stopping the Congressional juggernaut, ruled by military commanders who removed governors and judges at will, and swept by rumors that Congress intended to confiscate and redistribute their property (as some Radicals indeed did), the Southern States began to capitulate.” The opening day of the Louisiana House and Senate sessions “began with the reading of orders from General Grant, stressing the supremacy of the Army over the ‘provisional’ civil government, established in accordance with the Reconstruction Act. Armed federal soldiers milled around outside. They were still there when the puppet legislature voted to ratify the Fourteenth Amendment ten days later.” McDonald recounted that, valiantly though ineffectually, “Southerners made some feeble attempts at resistance. In February, Alabama whites had sought to prevent the adoption of a constitution that was being forced on them under the Reconstruction Act. Using a tactic contemplated in other states as well, they stayed away from the polls to prevent the new constitution from being approved by a majority of the registered voters. Of the 170,631 registered voters, fewer than 71,000 turned out; and though 69,807 of these voted to ratify, that was less than a majority. Congress responded by promptly repealing the majority-of-the-voters requirement and allowing a bare majority of votes cast to suffice.”
As McDonald explained, “Let us assume that the Amendment had been constitutionally proposed; assume that the ratifications in Tennessee, Oregon, and West Virginia were proper and should have been counted; and assume that the rescissions by New Jersey and Ohio were illegal and that their ratifications should be counted. Even so, as of April 1, 1868, the approval of six more states was necessary to validate the amendment. Let us further assume that the Reconstruction Act of March 2, 1867, was constitutional, and that ratification by the governments of the reconstituted Southern States would count toward the necessary total. Even if we make all these assumptions, it remains a fact that the Southern State governments could have a voice in ratifying the Amendment only if they were duly recognized as governments at the time they acted on the Amendment.” Arkansas was the first former Confederate State to adopt its new constitution and ratify the Fourteenth Amendment, doing the latter on April 6, 1868. However, Congress did not propose a resolution to “readmit” Arkansas until May 7, and said resolution was not adopted until mid-June. Therefore, McDonald highlighted, “the vote on the Fourteenth Amendment had been taken by a state which, under the congressional Act of March 2, 1867, still had ‘no legal State government.’”
“Ratification” in Florida was stranger still. In May 1868, that State passed its new constitution, “drafted by a convention presided over by Colonel John Sprague of the United States Army, in full military uniform.” The rump legislature met in June and, “as dictated by the Acts of Congress as conditions precedent to admission”, ratified the Fourteenth Amendment. A knot arose when Congress debated whether or not to “readmit” Florida, as “it turned out that the wording of the Amendment as adopted by Florida differed in several particulars from the phraseology proposed by Congress. Some Senators objected that Florida had therefore not properly adopted the Amendment. After some desultory discussion, Senator Frederick Frelinghuysen of New Jersey checked the ratifications of four States chosen at random — New York, Pennsylvania, Michigan, and Wisconsin — and reported that none had ratified the Amendment exactly as proposed by Congress. ‘In the ratification by Wisconsin’, he said, ‘in one sentence, there were four or five errors’, some of them substantive. He added that if he examined the ratifications of all the States, he would probably ‘find like inaccuracies in each certificate.’ Instead of ruling that no State had properly ratified, however, Congress decided that ratification in any form was acceptable; and Florida was accordingly readmitted to Statehood as a ‘legal government.’”
Congress, however, was not content with its prior depredations. In June 1868, Congress altered the procedure by which the Southern States were to be “readmitted”; prior to this, “ratification of the Fourteenth Amendment had been a necessary qualification for readmission to Statehood, but not a sufficient one, which is to say that after the non-government of a State ratified, Congress would consider readmission.” The enactment of the procedural shift “declared that several Southern States had ‘framed constitutions of State government which are republican’…[and] that each of them ‘shall be entitled and admitted to representation in Congress as a State of the Union' automatically when they ratified the Amendment. Obviously, however, they were not States at the time they ratified, for if they were, they would already have been ‘entitled’ to representation.” On these terms, North and South Carolina, along with Louisiana and Alabama, voted to ratify the Amendment. According to Secretary of State William Seward’s tally, that made 28 States; Seward suppressed his doubts regarding the various rescissions of the Amendment by stating that he was not authorized “to determine and decide doubtful questions as to the authenticity of the organization of State legislatures or as to the power of any State legislature to recall a previous act or resolution of ratification.” He added, quite unhelpfully, that the Amendment had been properly ratified “if [emphasis mine] the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid Amendment, are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of these States.” Seward proclaimed the Fourteenth Amendment ratified on July 20, and Congress subsequently “confirmed” its adoption into the United States Constitution.
[i] Wolters, Raymond. Race and Education, 1954-2007 (University of Missouri, 2009).
The Dark Before Dawn, Part 2
When it rains, it pours. After Charleston was put to the sword, all of its wealth was plundered and expropriated, its citizens imprisoned or impressed into British regiments throughout the far-flung Empire; as Simms described the degradation, “Nothing was forborne, in the shape of pitiless and pitiful persecution, to break the spirits, subdue the strength, and mock and mortify the hopes, alike, of citizen and captive.” At the Battle of Waxhaws near Lancaster, less a battle and more a massacre, Colonel Abraham Buford and his force of Virginian Continentals were mercilessly slaughtered while attempting to surrender by the dastardly villain, Lieutenant Colonel Banastre Tarleton, and his brood of Loyalists. After this wholesale butchery, “Tarleton’s Quarters”, that is, no quarter whatsoever, became an embittering rallying cry for the Patriots. Following so closely behind the sack and occupation of Charleston, the defeat of Buford, along with the only regular force of Continentals remaining in the State, crippled the hopes of the Patriots. As Simms continued, “The country seemed everywhere subdued. An unnatural and painful apathy dispirited opposition. The presence of a British force, sufficient to overawe the neighborhood…and the awakened activity of the Tories in all quarters, no longer restrained…seemed to settle the question of supremacy. There was not only no head against the enemy, but the State, on a sudden, appeared to have been deprived of all her distinguished men.” Moultrie languished in prison, while Governor Rutledge, Thomas Sumter, Peter Horry, and thousands of other Patriots withdrew to North Carolina and the other Northern colonies to join the Patriot cause there.
Marion, meanwhile, still incapacitated, “was compelled to take refuge in the swamp and forest” as a fugitive, constantly on the lam. Still recovering, Marion embarked upon the road to North Carolina to join with a Continental force under Baron de Kalb, later superseded by the pompous Major General Horatio Gates. On his journey, Marion encountered Horry, who lamented that their “happy days were all gone.” Marion, stout-hearted as ever, replied, “Our happy days all gone, indeed! On the contrary, they are yet to come. The victory is still sure. The enemy, it is true, have all the trumps, and if they had but the spirit to play a generous game, they would certainly ruin us. But they have no idea of that game. They will treat the people cruelly, and that one thing will ruin them and save the country.” Gates’ Continentals ridiculed and sneered at Marion’s motley band of irregular partisans. Luckily for Marion, and very unfortunately for Gates, our hero was summoned to command the Whigs of Williamsburg, and thus determined to penetrate into South Carolina. In Marion’s absence, Gates led the Continentals to ruin. At the Battle of Camden, the site of which today is a nice pine stand right off of my favorite country lane, Flat Rock Road, the Americans suffered a devastating rout. Under Gates’ command, the Continental Army suffered its greatest loss of the entire War, thus precipitating that failure’s replacement with Major General Nathanael Greene. Marion, Simms noted, “was one of the few Captains of American militia that never suffered himself to be taken napping.”
Just as Marion had predicted, British General Henry Clinton treated the people despicably. First, Clinton had issued a proclamation proffering “pardon to the inhabitants”, with few exceptions, “for their past treasonable offenses, and a reinstatement in their rights and immunities heretofore enjoyed, exempt from taxation, except by their own legislature.” Simms wrote that “the specious offer…indicated a degree of magnanimity, which in the case of those thousands in every such contest, who love repose better than virtue, was everywhere calculated to disarm the inhabitants. To many indeed it seemed to promise…security from further injury, protection against the Tories who were using the authority of the British for their own purposes of plunder and revenge, a respite from their calamities, and a restoration of all their rights.” However, snatching defeat from the jaws of victory, Clinton reversed course twenty days later and thereby galvanized the Southern Patriots. His second proclamation, Simms explained, required the people of Carolina to “take up arms for His Majesty, and against their countrymen…a hopeful plan by which to fill the British regiments, to save further importations of Hessians, further cost of mercenaries, and, as in the case of the Aborigines, to employ the Anglo-American race against one another. The Loyalists of the South were to be used against the patriots of the North, as the Loyalists of the latter region had been employed to put down the liberties of the former.”
Promoted to General, Francis Marion took command of the country, donning a leather cap emblazoned with a silver crescent, inscribed with, “Liberty or Death!” Marion was simple, modest, taciturn, a man who taught by example rather than oratory, who “secured the fidelity of his men by carrying them bravely into action, and bringing them honorably out of it.” His watchword was activity, his anathema indolence. His first order of business upon assuming command was to supply some desperately needed provisions for his men. The first effort made on this front was to sack the sawmills, where “the saws were wrought and hammered by rude blacksmiths into some resemblance to sabers.” Thus provided, Marion set his men into action, launching a series of perfectly-orchestrated ambush attacks on Loyalist partisans, striking hard and then melting away into the backwoods as quickly as they had appeared. In an all too familiar refrain for Southrons past, present, and future, Marion was badly-equipped, often entering engagements “with less than three rounds to a man — half of his men were sometimes lookers-on because of the lack of arms and ammunition — waiting to see the fall of friends or enemies, in order to obtain the necessary means of taking part in the affair. Buckshot easily satisfied soldiers, who not unfrequently advanced to the combat with nothing but swan-shot in their fowling-pieces.”
We must remember that Marion’s band of partisans was the only body of American troops in the State of South Carolina that dared openly oppose the triumphal ascendance of the British. Simms elaborated that “the Continentals were dispersed or captured; the Virginia and North Carolina militia scattered to the four winds; Sumter’s legion cut up by Tarleton, and he himself a fugitive, fearless and active still, but as yet seeking, rather than commanding, a force.” At Nelson’s Ferry, Marion’s scouts alerted him to a British guard detachment approaching their position, with a large cohort of American prisoners from Gates’ disaster in Camden in tow. Near the pass of Horse Creek, Marion ambushed them and freed all 150 Continentals, of which only three could be bothered to join him. Simms, somewhat sardonically, noted that “it may be that they were somewhat loth to be led, even though it were to victory, by the man whose ludicrous equipment and followers, but a few weeks before, had only provoked their merriment.” Earl Charles Cornwallis, falsely portrayed nowadays as a saintly gentleman, enforced severe and ruthless punishment for any Patriots or Patriot sympathizers, including the expropriation of all of their worldly belongings. Amidst widespread British and Tory atrocities, Marion ran the Enemy ragged, cutting supply and communication lines while denying the darkness any sense of security. Marion was so successful that Cornwallis sent Tarleton on an ultimately futile search and destroy mission to assassinate the Carolinian.
Marion, as all great leaders do, loved his men dearly. His force was in constant flux, as his men, citizen soldiers, “had cares other than those of their country’s liberties. Young and tender families were to be provided for and guarded in the thickets where they found shelter. These were often threatened in the absence of their protectors by marauding bands of Tories, who watched the moment of [their] departure…to rise upon the weak, and rob and harass the unprotected.” If at all practicable, Marion granted all requests for leave; the loyalty of his men was such that their return was certain. Eventually, Marion’s band of backwoods freedom fighters was forced to temporarily retreat in the face of Tarleton’s contingents of Tories; it was with incredible reluctance that they left their communities unprotected, completely exposed to the vindictive cruelties of the British and their Tory lapdogs, “which had written their chronicles in blood and flame, wherever their footsteps had gone before.” Bitter though this was, Simms wrote that “it was salutary in the end. It strengthened their souls for the future trial. It made them more resolute in the play. With their own houses in smoking ruins, and their own wives and children homeless and wandering, they could better feel what was due to the sufferings of their common country.” Though at first glance, this might be one bridge too far in attempting to put a positive spin on the wholly negative, Simms raised an interesting question; can we truly fight for that which we love if we have not experienced its loss? Can we understand the suffering of our countrymen if we have not ourselves suffered? Must we? Comfort does, after all, breed complacency; it must be noted that, obviously, comfort encompasses much aside from material luxury. It is a truism that we cannot appreciate what we have until it is lost to us.
Scouts brought Marion the devastating news that, just as he and his men had feared, the Tories, under Major James Wemyss, had in their absence “laid waste to the farms and plantations”, in a broad swathe of desolation, “swept by sword and fire.” Indeed, “on most of the plantations, the houses were given to the flames, the inhabitants plundered of all their possessions, and the stock, especially the sheep, wantonly shot or bayoneted. Wemyss seems to have been particularly hostile to looms and sheep, simply because they supplied the inhabitants with clothing…Presbyterian churches he burnt religiously, as so many ‘sedition-shops.’” The General thus led his men homewards again, and they routed a large Loyalist force at the Battle of Black Mingo, driving them from the country. Though the attack still came off according to plan, Marion’s surprise was ruined when his horses crossed a wooden bridge, the sound of their hooves alerting the Enemy; from that point forward, Marion made sure to lay blankets down across bridges to muffle his horses’ hooves. Black Mingo was followed up with another successful ambush at Tarcote, in which some of the treacherous Tories, who had been gambling and reveling in camp, were slain with their cards still clutched in their hands in a macabre tableau.
Cornwallis declared that he “would give a good deal to have him taken”, writing to Clinton that “Marion had so wrought on the minds of the people…that there was scarcely an inhabitant between the Santee and the Pee Dee, that was not in arms against us. Some parties…carried terror to the gates of Charleston.” Why was Marion so successful? The guerrilla warfare which he pioneered and mastered was “that which was most likely to try the patience, and baffle the progress, of the British commander. He could overrun the country, but he made no conquests. His great armies passed over the land unquestioned, but had no sooner withdrawn, than his posts were assailed, his detachments cut off, his supplies arrested, and the Tories once more overawed by their fierce and fearless neighbors.” Marion’s notoriety was an inspiration to the scorched and defiled yeomen of South Carolina, responsible for the birth of countless other small partisan bands, their unrecorded exploits now lost to us. Simms continued that “the examples of Marion and Sumter had aroused the partisan spirit…and every distinct section of the country soon produced its particular leader, under whom the Whigs embodied themselves, striking wherever an opportunity offered of cutting off the British and Tories in detail, and retiring to places of safety, or dispersing in groups, on the approach of a superior force.” Tarleton, unable and unwilling to carry on his fruitless and now swamp-arrested pursuit of our hero, was recalled to hound Thomas Sumter. During this withdrawal, Tarleton spoke his most famous words: “Come, my boys! Let us go back. We will soon find the Game Cock [Sumter], but as for this damned Swamp Fox, the Devil himself could not catch him.”
The Southern Theater of the War of Independence had a far more savage character to it than the war in the North, notwithstanding the Hessians’ penchant for mounting decapitated Patriot heads on pikes, as “motives of private anger and personal revenge embittered and increased the usual ferocities of civil war; and hundreds of dreadful and desperate tragedies gave that peculiar aspect to the struggle.” Greene wrote that “the inhabitants pursued each other rather like wild beasts than like men”; indeed, “in the Cheraw district, on the Pee Dee, above the line where Marion commanded, the Whig and Tory warfare, of which we know but little beyond this fact, was one of utter extermination. The revolutionary struggle in Carolina was of a sort utterly unknown in any other part of the Union.” Few men escaped the struggle for liberty unscathed. At Georgetown, a party of Loyalists shot Gabriel Marion’s horse out from under him, and, as soon as the young Marion, the General’s nephew, fell he was executed, with “no respite allowed, no pause, no prayer.” Simms wrote that “the loss was severely felt by his uncle, who, with no family or children of his own, had lavished the greater part of his affections upon this youth…who had already frequently distinguished himself by his gallantry and conduct.” Marion grieved to himself, yet was consoled by saying that he “should not mourn for him. The youth was virtuous, and had fallen in the cause of his country!”
After this latest depredation, Marion retired to his legendary swamp fortress on Snow’s Island, along the Pee Dee in present-day Florence County. “Retired” is perhaps not the proper word, though, as Marion kept up the fight, continuing operations from his new, perfect, and secure headquarters. As Simms wrote, “The love of liberty, the defense of country, the protection of the feeble, the maintenance of humanity and all its dearest interests, against its tyrant — these were the noble incentives which strengthened him in his stronghold, made it terrible in the eyes of his enemy, and sacred in those of his countrymen. Here he lay, grimly watching for the proper time and opportunity when to sally forth and strike.” Simms described the natural fortress beautifully, writing that “in this snug and impenetrable fortress, he reminds us very much of the ancient feudal baron of France and Germany, who, perched on castled eminence, looked down [as] an eagle from his eyrie, and marked all below him for his own.” Though “there were no towers frowning in stone and iron”, there were better towers, “tall pillars of pine and cypress, from the waving tops of which the warders looked out, and gave warning of the foe or the victim.”
Marion did very little to “increase the comforts or the securities of his fortress. It was one, complete to his hands, from those of nature…isolated by deep ravines and rivers, a dense forest of mighty trees, and interminable undergrowth. The vine and briar guarded his passes. The laurel and the shrub, the vine and sweet-scented jessamine, roofed his dwelling, and clambered up between his closed eyelids and the stars…The swamp was his moat…Here…the partisan slept secure.” He camped in “one of those grand natural amphitheaters so common in our swamp forests, in which the massive pine, the gigantic cypress, and the stately and ever-green laurel, streaming with moss, and linking their opposite arms, inflexibly locked in the embrace of centuries, group together, with elaborate limbs and leaves, the chief and most graceful features of Gothic architecture. To these recesses, through the massed foliage of the forest, the sunlight came as sparingly, and with rays mellow and subdued, as through the painted window of the old cathedral, falling upon aisle and chancel.”
Tarleton had not named Marion the Swamp Fox for nothing; he was its master. In the swamp, on the Enemy’s own ground, “in the very midst” of the Crown and its minions, he made himself a home. Aside from pure audacity, Marion lived among the Enemy for another reason, for his maxim was that it was always better to live upon the resources of foes than of friends. In his swamps, “in the employment of such material as he had to use, Marion stands out alone in our written history, as the great master of that sort of strategy, which renders the untaught militiaman in his native thickets, a match for the best-drilled veteran of Europe. Marion seemed to possess an intuitive knowledge…He beheld, at a glance, the evils or advantages of a position.” Marion “knew his game, and how it should be played, before a step was taken or a weapon drawn. When he himself, or any of his parties, left the island, upon an expedition, they advanced along no beaten paths. They made them as they went. He had the Indian faculty in perfection, of gathering his course from the sun, from the stars, from the bark and the tops of trees, and such other natural guides, as the woodman acquires only through long and watchful experience.”
Total secrecy was one of the keys to his success; before jaunting off on another expedition, the only way for the men to ascertain the distance of their mission was to observe Marion’s cook to see the quantity of foodstuffs he packed. The General “entrusted his schemes to nobody, not even his most confidential officers. He…heard them patiently, weighed their suggestions, and silently approached his conclusions. They knew his determinations only from his actions. He left no track behind him…He was often vainly hunted after by his own detachments. He was more apt at finding them than they him.” When Lieutenant Colonel Henry “Light-Horse Harry” Lee sought Marion before a joint raid on Georgetown, he could not locate the partisan; eventually, one of Lee’s scouts made contact with a small provisioning party of Marion’s, and even then, his own men spent several hours locating their commander.
Though Major General Greene and his Continentals were necessary to restore South Carolina and Georgia to the American confederacy, they were not sufficient; they could not have been victorious without the “native spirit” of the partisans of the backwoods. When Greene arrived at Hicks’ Creek, he found a country “laid waste. Such a warfare as had been pursued among the inhabitants, beggars description. The whole body of the population seems to have been in arms, at one time or another…A civil war, as history teaches, is like no other. Like a religious war, the elements of a fanatical passion seem to work the mind up to a degree of ferocity, which is [far beyond] the usual provocations of hate in ordinary warfare.” He wrote that “the inhabitants pursue each other with savage fury…The Whigs and the Tories are butchering one another hourly. The war here is upon a very different scale from what it is to the northward. It is a plain business there. The geography of the country reduces its operations to two or three points. But here, it is everywhere; and the country is so full of deep rivers and impassable creeks and swamps, that you are always liable to misfortunes of a capital nature.” While Marion never hesitated to fulfill his duty, he was always averse to “those brutal punishments which, in the creature, degrade the glorious image of the Creator.” General Moultrie wrote that Marion “always gave orders to his men that there should be no waste of the inhabitants’ property, and no plundering.” In the punishment of those of his own men who disgraced both him and the Patriot cause, he favored a scornful mercy, merciful insofar as he preferred not to execute men whom he did not have to, yet scornful in that he essentially shunned them with the utmost contempt, a punishment which usually sent them well on their way.
Lee, the father of our General Robert E. Lee, adroitly described Marion; unerringly and “enthusiastically wedded to the cause of liberty, he deeply deplored the doleful condition of his beloved country. The common weal was his sole object; nothing selfish, nothing mercenary soiled his ermine character.” Lee continued, “Fertile in stratagem, he struck unperceived, and retiring to those hidden retreats…in the morasses of Pee Dee and Black River, he placed his corps, not only out of the reach of his foe, but often out of the discovery of his friends.” Throughout the arduous course of war through which Marion passed, “calumny itself never charged him with molesting the rights of person, property, or humanity. Never avoiding danger, he never rashly sought it…he risked the lives of his troops only when it was necessary.” He was “never elated with prosperity, nor depressed by adversity.” At dinner one evening, Marion was made aware that a group of Lee’s men were hanging Tory captives; instantly, he “hurried from the table, seized his sword, and running with all haste, reached the place of execution in time to rescue one poor wretch from the gallows. Two were already beyond rescue or recovery. With drawn sword and a degree of indignation in his countenance that spoke more than words, Marion threatened to kill the first man that made any further attempt in such diabolical proceedings.” Even after the War, Marion was merciful to the defeated Tories, declaring, “Then, it was war. It is peace now. God has given us the victory; let us show our gratitude to Heaven, which we shall not do by cruelty to man.” When word reached the Swamp Fox of a British officer abusing some of his men in captivity, he wrote the Redcoat that “I have treated your officers and men who have fallen into my hands, in a different manner. Should these evils not be prevented in future, it will not be in my power to prevent retaliation.” To another British commander, he wrote that “the hanging of prisoners and the violation of my flag, will be retaliated [for] if a stop is not put to such proceedings, which are disgraceful to all civilized nations. All of your officers and men, who have fallen into my hands, have been treated with humanity and tenderness, and I wish sincerely that I may not be obliged to act contrary to my inclination.” Though Marion never wished to sully himself with such excesses, he certainly would if his hand was forced.
Marion and his ensemble of yeoman Patriots endured grinding poverty and privation for years, all for the sake of their, and our, liberty. Indeed, Marion himself went over a full year without the meager luxury of a blanket when he slept. His men often trekked seventy miles per day, with nothing to eat but a handful of cold potatoes and a single draught of cold water, clothed only in hair-thin homespun. On one occasion, one of his officers sought to reassure the Swamp Fox that their ammunition situation was not as dire as he feared, telling Marion that “my powder-horn is full.” Marion smiled gently, and replied, “Ah…you are an extraordinary soldier; but for the others, there are not two rounds to a man.” We cannot overstate the destitution of the Patriots, and particularly those Patriots of our Southland. Congress was bankrupt, South Carolina likewise without means. For three years, Simms noted, “South Carolina had not only supported the war within, but beyond her own borders. Georgia was utterly destitute, and was indebted to South Carolina for eighteen months for her subsistence; and North Carolina, in the portions contiguous to South Carolina, was equally poor and disaffected.” How then, was the War to be carried on? Marion’s men “received no pay, no food, no clothing. They had borne the dangers and the toils of war, not only without pay, but without the hope of it. They had done more — they had yielded up their private fortunes to the cause. They had seen their plantations stripped by the enemy, of negroes, horses, cattle, provisions, plate…and this, too, with the knowledge, not only that numerous Loyalists had been secured in their own possessions, but had been rewarded out of theirs.”
Simms explained their condition well, writing that “the Whigs were utterly impoverished by their own wants and the ravages of the enemy. They had nothing more to give. Patriotism could now bestow little but its blood.” And yet, as Marion well understood, that blood of patriotism was capable of so much more than just itself. He vowed that, were he “compelled to retire to the mountains”, he would, alone if necessary, “carry on the war, until the enemy is forced out of the country.” To a man, his partisans swore to remain at his side until the bitter end, pledging themselves to “follow his fortunes, however disastrous, while one of them survived, and until their country was freed from the enemy.” To this display of devotion, our hero merely replied, “I am satisfied; one of these parties shall soon feel us.” This iron constitution, this ethereal determination, is no mystery; as Greene wrote to Marion, “Your State is invaded — your all is at stake. What has been done will signify nothing, unless we persevere to the end.” If they did not hold fast and keep up the fight, if they did not seize victory, all that had come before, all of the pain, suffering, and trauma, was for naught. If we do not take back our country, the last two and a half centuries are forever smothered. Greene praised the South Carolinian, continuing, quite rightly, that “to fight the enemy bravely with the prospect of victory, is nothing; but to fight with intrepidity under the constant impression of defeat, and inspire irregular troops to do it, is a talent peculiar to yourself.” Even simpler than that, however, is the simple truth that we are impelled to do whatever it takes to protect and preserve hearth and home; we cannot help but recall that classic of American action, Red Dawn, and its most valuable line: “Because we live here.”
Our first War of Independence was no grand triumphal narrative, but an incredibly bitter war of attrition. At its close, the British were finally worn down, their will to carry on pulverized and crumbled to dust. Marion’s men “were not yet disbanded. He himself did not yet retire from the field which he had so often traversed in triumph. But the occasion for bloodshed was over. The great struggle for ascendancy between the British Crown and her colonies was understood to be at an end. She was prepared to acknowledge the independence for which they had fought, when she discovered that it was no longer in her power to deprive them of it. She will not require any eulogium of her magnanimity for her reluctant concession.” Now, the British Army withdrawn from Carolina, “the country, exhausted of resources, and filled with malcontents and mourners, was left to recover slowly from the hurts and losses of foreign and intestine strife. Wounds were to be healed which required the assuasive hand of time, which were destined to rankle even in the bosoms of another generation, and the painful memory of which is keenly treasured even now.” South Carolina, along with all of her sisters, including those already sharpening their knives for her demise, was free. America emerged from its baptismal blood, breaking the chains of Empire, an unprecedented victory achieved in no small part due to the labors of our Swamp Fox, Francis Marion.
The partisan par excellence, Marion was the grand master of strategy, the wily fox of the swamps impassable but to him, “never to be caught, never to be followed — yet always at hand, with unconjectured promptness, at the moment when is least feared and is least to be expected.” Historian Sean Busick writes that Marion “kept alive the hope of patriots in the Southern States when victory and independence were most in doubt — after the fall of Charleston and the rout of the Continental Army at Camden. In the darkest hours of the Revolution, when the Continental Army had been run out of South Carolina, Marion and his small band of citizen soldiers took the field against the British Regulars. By keeping up a constant harassment, they made sure the British were never able to rest after their victories in South Carolina, and helped to drive them from the State and toward their final defeat at Yorktown.” When the cause of liberty was uniformly considered hopeless, when all was believed lost, when the blackest shadow fell and threatened to engulf our flickering flame, the consecrated fire was yet kept alive.
Simms elaborated that it is to him, more than any other, whom “we owe that the fires of patriotism were never extinguished, even in the most disastrous hours, in the lowcountry of South Carolina. He made our swamps and forests sacred, as well because of the refuge which they gave to the fugitive Patriot, as for the frequent sacrifices which they enabled him to make, on the altars of liberty and a becoming vengeance.” Marion’s name “was the great rallying cry of the yeoman in battle — the word that promised hope — that cheered the desponding patriot — that startled, and made to pause in his career of recklessness and blood, the cruel and sanguinary tory.” At the moment of defeat, in the putrescent slough of despond, the dark before dawn, the people of South Carolina merely waited for the reanimation that only Marion could provide. Simms noted that “the very fact that the force of Marion was so [numerically] insignificant, was something in favor of that courage and patriotism.” Busick affirms that, as we have seen, time and again, the success of the South Carolina Patriots was “due more to the sacrifices of the humble than to the decisions of the famous.”
Marion, our Carolinian Cincinnatus, happily returned to the agrarian life which he cherished, but it would not be with ease, as the world was “to be begun anew.” The Revolution left him “destitute of means, almost in poverty, and more than fifty years old.” His small fortune “had suffered irretrievably. His interests had shared the fate of most other Southern Patriots, in the long and cruel struggle through which the country had gone. His plantation in St. John’s, Berkeley…was ravaged, and subjected to constant waste and depredation.” Furthermore, again sharing the fate of all of his compatriots but the upper echelons of the Patriot command, the Swamp Fox “received no compensation for his losses, no reward for his sacrifices and services.” The Congress voted to award the hero, who had sacrificed so much for the new nation, a gold medal; whether or not the medal was actually given to him, though, is up for debate. Before we begin celebrating this honor, Simms cautioned us to understand that “cheaply, at best, was our debt to Marion satisfied, with a gold medal, or the vote of one, while Greene received ten thousand guineas and a plantation. We quarrel not with the appropriation to Greene, but did Marion deserve less from Carolina? Every page of her history answers, ‘No!’” The duty of the warrior is often a thankless one. He was returned to the State Senate by the people of St. John’s, and was later awarded a modest sinecure; his ultimate reward, however, was his legacy. The early Republic revered the Swamp Fox. In our present age of deracinated ignorance, it must come as a surprise that there are more places named for Francis Marion than for any other soldier of the War, aside from President George Washington; as Simms declared, “His memory is in the very hearts of our people.”
Upon his retirement from public life and the resignation of his commission in the State Militia in 1794, an assembly of the citizens of Georgetown addressed him thus: “Your achievements may not have sufficiently swelled the historic page. They were performed by those who could better wield the sword than the pen — by men whose constant dangers precluded them from the leisure, and whose necessities deprived them of the common implements of writing. But this is of little moment. They remain recorded in such indelible characters upon our minds, that neither change of circumstances, nor length of time, can efface them. Taught by us, our children shall hereafter point out the places, and say, ‘Here, General Marion…made a glorious stand in defense of the liberties of his country…’ Continue, General, in peace, to till those acres which you once wrested from the hands of a rapacious enemy.” It would without a doubt strike these men as poisoned barbs into their very souls, were they to see the noxious depths to which the education of our children has fallen, were they to discover that, in relatively few generations, the memories which they believed to be so indelibly recorded have faded away. Many of the irreplaceable primary documents regarding the life of Marion were incinerated when Simms’ home, including his Alexandrian library of ten thousand books and manuscripts, was put to the torch when General William Sherman’s rabid horde of fiends sacked and razed his Woodlands plantation. As the gentlemen of Georgetown said, the Patriots of the Carolina backcountry were not learned men, and were in any case too busy bleeding to bother with documenting their exploits. Their tales of unparalleled heroism need not have been written to be remembered; this barely scratches the surface of our failure to live up to their standards, to the shining examples their lives set for ours.
A devout Christian, “an humble believer in all the vital truths of faith”, Marion was ready to meet his Maker; he declared, “Death may be to others a leap in the dark, but I rather consider it a resting-place where old age may throw off its burdens.” As he was peacefully translated from our world to the next, he spoke his last words: “For, thank God. I can lay my hand on my heart and say that, since I came to man’s estate, I have never intentionally done wrong to any.” He could die in that sublime satisfaction that he had done his duty, that he had risen to the occasion, just as we now must rise to the occasion and defend to our last that which his generation secured for ours, all of these long years later. We should savor and echo the words of Major General George Pickett, written to his wife one day after his Charge, doomed to fail but destined for enshrinement in the most hallowed annals of Western man: “My brave boys were full of hope and confident of victory as I led them forth…and though officers and men alike knew what was before them, knew the odds against them, they eagerly offered up their lives on the altar of duty, having absolute faith in their ultimate success. Over on Cemetery Ridge, the Federals beheld a scene never before witnessed on this continent, a scene which has never previously been enacted and can never take place again — an army forming in line of battle in full view, under their very eyes — charging across a space nearly a mile in length…moving with the steadiness of a dress parade, the pride and glory soon to be crushed by an overwhelming heartbreak. Well, it is all over now. The battle is lost, and many of us are prisoners, many are dead, many wounded, bleeding, and dying. Your Soldier lives and mourns and but for you, my darling, he would rather, a million times rather, be back there with his dead, to sleep for all time in an unknown grave.” Pickett signed as “your sorrowing Soldier.”
As we approach ever-nearer to the precipice, to what appears and threatens to be a danger graver than any that we have ever faced, it is easy to fold, to crumple under the tremendous weight of it all. As John Derbyshire writes, we live in “an occupied nation, dominated by a bizarre cult of anti-white totalitarianism, against which we dissenters have no organization, no leadership, and almost no public voice. It is hard to think that this will end well.” We are, by design, made to feel completely alone. But we are not. While our dismal condition is on the path to eclipse that which faced our Confederate ancestors, and while we stand on the cusp of a terrible darkness, a palpable evil permeating the air in our dying land, all is not lost. We must carry the fire, just as that great South Carolinian Francis Marion did, holding his hands cupped around the embers of faith, keeping hope kindled in the bosoms of his people, our people. Make no mistake — while, now, the Enemy tears down and casts asunder our monuments, our physical memories serving as proxies for the cultural memories that we have failed so spectacularly to inculcate in our brainwashed children, memory is not their ultimate target. No, their target is us. When we see our monuments defiled and obliterated, know that it is mere sublimation. This is what they desire for us, our monumental marble nothing less than transubstantiated blood. And yet, they cannot succeed while one of us lives; Donald Livingston, President of the Abbeville Institute, recently likened our position to that of monks, preserving our sacred texts against the darkling gloom, for a brighter day ahead. This is of course, however, the worst-case scenario, only the case if we have not taken our stand in time to prevent ruin.
In these deflating days, the fires apparently too numerous to extinguish, my spirits were immeasurably lifted upon being blessed to attend the 147th Confederate Memorial Day at the Confederate Cemetery in Fayetteville, Arkansas. This idyllic patch of land, lost in time, is maintained solely by the devotion of the Southern Memorial Association, a group of valiant Southern women, our great treasure as always. How heartening it was to see these women, and their many supporters, spend their time and money to honor our ancestors, to preserve their beautiful resting-place; for a century and a half, these proud Southrons have gathered to remember their forefathers of the Trans-Mississippi and the selfless deeds which they wrought, echoing in our hearts even now.
These are the men whom we must emulate; their golden example, itself following that of our Swamp Fox, must be our beacon in the roiling gale now overtaking us. Each unmarked grave, most holding the bones of men lost at the disastrous Battle of Pea Ridge, was adorned with a brilliant battle-flag, the sight of which never fails to fuel the fire within. A lovelier sight we have yet to behold. Several dozen people turned out; though the mood was certainly somber, we drew strength from one another, and cut a scene that could not have been any different from the anarchy reigning in cities across the “United” States of America. After some speechifying from representatives of the Association, the Sons, and the Daughters, we dedicated new markers for each section of the cemetery, Arkansas, Missouri, Texas, and Louisiana, and laid wreaths at the foot of the gorgeous, pristine monument at its center. The marker for the Arkansawyer veterans reads, “Weep, for richer blood was never shed.” On the monument is inscribed, “These were men whom power could not corrupt, whom Death could not terrify, whom defeat could not dishonor.”
The band played Dixie.
The Dark Before Dawn, Part 1
We have just witnessed Kristallnacht for traditional America. We are no longer welcome in the land that we love, the nation that our, and only our, forefathers built from nothing — the only home, not only that we have ever known, but that we will ever know. This is one more turn in the revolutionary spiral, and perhaps the opening shot of hot civil war, if our Cause can even muster up a quorum. A friend of mine, about half a century my senior, remarked that this is not the country that he grew up in; indeed, I replied, this is not the country that I grew up in, not all that long ago. Our riven homeland burns, convulsing in the throes of revolutionary political and racial violence. The arsonists that set fire to our cities, to countless unknown and weeping American Dreams, are but the brownshirts of the Egalitarian Regime; far from “resisting” the System, they are its craven handmaidens, supported in defilade by all of the money in the world. They are chess pieces, acting out the inorganic revolution from above which has been so perfectly planned and plotted for at least the last eighty years; for those eight long decades, as the Right was censored, crushed, fragmented, and scattered to the winds, the Left, largely through the assistance of its Republican houseboys, has grown ever-more exorbitantly financed and hardened, as it captured all of our institutions, one by one.
As Paul Gottfried warned almost twenty years ago, the Protestant Deformation of the twentieth century has resulted in a system of Puritan fervor wholly disconnected from God, a truly secular theocracy which features its own “original sin”, soteriology of perpetual ethnomasochistic atonement, clerical hierarchy, excommunicative social mechanism, millenarian-utopian eschatology, and even a system of human sacrifice, as the unborn are offered up to the Moloch of “Progress” every single day. The throngs of savage and insatiable rioters, backed up by legions of groomed and manicured apologists, are the only logical consequence of indoctrinating an entire generation or two into the perverse conviction that white men are the root of all evil, that blacks and transgenders built America, that the United States were founded for the express purpose of oppressing “minorities.” From the oak-paneled corridors of that bottom of the barrel so speciously called “the Ivy League”, all the way down to the bloody streets has trickled variations of that dreadful call, “Kill the Boer.” Our Cause faces unprecedented repression, repression which will only escalate into something far worse.
What of the business owners across the realm who, already crippled by the patently unnecessary and wrongheaded lockdowns that have been so transparently abandoned by the ruling class amidst the chaos fomented by their egalitarian brownshirts, awoke to the sight of their life’s work in ashes, to their community reduced to a smoking ruin that can no more stand being, as Gregory Hood put it, “papered over with money, drugs, alcohol, and television to fill the empty hole that used to be a country”? How much more anarcho-tyrannical humiliation can we bear? Will we simply go quietly into our corners, drink ourselves into a stupor, inject ourselves with heroin, and die gently in the black night, or will we rage against the dying of the light? We put all of our heroic ancestors to shame. Not one soul, nary a one of their descendants was there to defend any of their monuments as they were defiled and toppled. Our absurdly heavily militarized police stood by as America was put to the torch. Our “law and order” President, the latter-day James Buchanan, cowered in his bunker, just as he has for four years as his supporters have been incessantly harassed, beaten, and brutalized in the streets. He will lose this election, and he deserves to. The Republican Party, which must be destroyed and rebuilt, exists to harness the Southern spirit and redirect it straight into the ground. Our Cause has suffered as never before under the Trump Administration.
Two of my friends accurately embody an all-too-common sentiment that I see expressed in the former Confederacy today; one simply said that sitting on the lake with his family was more rewarding than anything else, better than “trying to control the uncontrollable.” His eyes are fixed totally on eternity with our Lord and Savior, rather than the here and now; he would rather enjoy the simple things than participate in the filthy game of politics. Similarly, another friend, somewhat wryly, told me that all that he desires is his forty acres and a mule, his shady lane, his little piece of Heaven on earth, surrounded by a moat and protected by the Castle Doctrine. He “cannot take the rhetoric anymore, regardless if it is yours, mine, or Satan’s.” I responded by stating that “everything is politics”, to which he compared me with the Leftist thugs remaking our world in the image of the Marquis de Sade. I clarified, explaining that I do not mean that everything must be political, but rather that everything is political, for everything that we hold dear is under the gun, staring a rifle barrel in the face. For example, take our families, or a simple chipmunk on the Buffalo. When we are with them, when we are out in the natural world, nothing else matters. None of our earthly concerns seem significant. And yet, at these very moments in which we are most at peace, evil forces gather with the sole purpose of taking from us all that we love. We are compelled by duty, compelled by God, to hold fast to these things by fighting for them, these things that would otherwise seem to be apolitical. Thus, we are forced to conceptualize everything in political terms. Stated differently, we may not want war — but war wants us.
Christ made clear to us that “he that is not with me is against me; and he that gathereth not with me scattereth abroad.” (Matthew 12:30) The time for fence-sitting, if there ever was one at all, is long past; Christ knows “thy works, that thou art neither cold nor hot: I would thou wert cold or hot. So then because thou art lukewarm, and neither cold nor hot, I will spue thee out of my mouth.” (Revelation 3:15-16) Until Christ returns, there is no one coming to save us. It is we alone who must reclaim our birthright. We must remember that a minority, albeit a sizable minority, of the American colonists joined the Patriot cause; the tomes of history tell us that nations are often fundamentally transformed and dragged into revolution by tiny minorities, a fact which should both terrify and invigorate our Cause. We need not gain a majority of those of our fellow citizens who have strayed from the path and fallen under the ephemerally glimmering song of the siren. Gideon should serve as our example, annihilating with God the wretched Midianites, overcoming a vast army with only three hundred men whose rallying cry was, “The sword of the Lord!” (Judges 6-8)
In order to understand our condition, we must understand the Enemy, the totalized, totalizing, alienated, and alienating Egalitarian Regime. A wonderfully sober approbation of the situation is elucidated in the brilliant film Ride with the Devil, accurately portraying the brutal partisan war of extermination waged between the Bushwhackers and Jayhawkers in Missouri during the War for Southern Independence. A friendly Confederate sympathizer who has opened his home to a band of patriots has the following exchange with one of the partisans:
And why, if you do not mind my askin', did you not join the regular army?
Army? Well, we thought of it. I suppose we decided this fight has got to be made in our own country, not where some general tells us it should happen.
It soon will be everywhere. My family and I, we will be quittin' this house in the spring. As soon as the roads are clear, we're gonna be tryin' for Texas. About half of Missouri's went to Texas. Now, the whole state's thick with invaders. We cannot drive them away.
We have different thoughts. I still want to fight. I reckon I'll always want to fight them. Always.
Have you ever been to Lawrence, Kansas, young man?
No, I reckon not, Mr. Evans. I don't believe I'd be too welcome in Lawrence.
I didn't think so. Before this war began, my business took me there often. As I saw those Northerners build that town, I witnessed the seeds of our destruction being sown. The foundin' of that town was truly the beginnin' of the Yankee invasion. I'm not speakin' of numbers, nor even abolitionist trouble-makin'. It was the schoolhouse. Before they built their church, even, they built that schoolhouse. And they let in every tailor's son and every farmer's daughter in that country.
Spellin' won't help you hold a plow any firmer. Or a gun either.
No, it won't, Mr. Chiles. But my point is merely that they rounded every pup up into that schoolhouse because they fancied that everyone should think and talk the same free-thinkin' way they do with no regard to station, custom, propriety. And that is why they will win. Because they believe everyone should live and think just like them. And we shall lose because we don't care one way or another...how they live. We just worry about ourselves.
Are you sayin', sir, that we fight for nothin'?
Far from it, Mr. Chiles. You fight for everything that we ever had. As did my son. It's just that we don't have it anymore.
Mr. Evans, when you get back from Texas, it'll all be here waitin' for you. Jack Bull and me, we'll see to it.
Well...yes. Thank you, son. Well, enough of this war talk.
Our Enemy is unified around one goal — to remake the world in its own image. While we worry about our families and ourselves, they are consumed with the basest hatred; they envy us, for our existence is an affront, a reproach to their misery. They are driven to destroy what they could never create. All of the centuries of blood and toil that we have spilt and spent to carve out our splendid niche can be undone in a matter of minutes, for as we must now realize, Heaven is far away, but Hell can be reached in a day. It often seems as if they have won, as if the war was lost before it was given a chance to begin, as if we have squandered each and every opportunity until finally it is too late. I must confess to feeling discouraged and disheartened on occasion, and to the shedding of tears in morose lamentations of doom and gloom. A friend recently sent me a video, a clip from some BBC nature documentary, which nourished that foundering fire in my heart. In the video, a noble, gallant, and solitary lion attempts to fight off a horde of vile hyenas; alone, despite his virtue, despite the fact that he is so much better than they can ever hope to be, he does not stand a chance. Our hearts in our mouths, we watch aghast as the despicable beasts wear him down. Yet in his hour of greatest need, in his direst straits, a fellow lion sees him in his travails and gallops to his aid. Now, the odds have changed; even for twenty hyenas, a pair of lions is too much to take on. As the hyenas tuck tail and dissipate, the lions bond, brothers in arms. We must unite in this, our darkest hour yet, for together we stand, and in isolation we fall, quickly and quietly.
We must also remember that it is always darkest before dawn, and in this spirit, must look to the shining light of Brigadier General Francis Marion, the Swamp Fox, who alone fed the degraded and persecuted Patriots of South Carolina the steady diet of hope that was their sustenance when all truly appeared to be lost in our first War of Independence. There is much in Marion’s life and in his glorious guerrilla campaign from which we may glean vital tactical lessons, and, more importantly, to give us the inspiration that we so desperately need. Of Huguenot stock, Marion first cut his teeth in the ways of war in 1759, during the Cherokee War in South Carolina, a conflict that occurred in the midst of the French and Indian War, itself a theater of the Seven Years’ War. That tribe of Amerindians was returning from service in a British campaign against the French, when hostilities commenced with the Southern colonists; as William Gilmore Simms, Marion’s finest biographer, described, “The whole frontier of the Southern Provinces, from Pennsylvania to Georgia, was threatened by the savages, and the scalping-knife had already begun its bloody work upon the weak and unsuspecting borderers.” In this strife, Lieutenant Marion served under the immediate command of William Moultrie; in one spectacular engagement, Marion led the vanguard to dislodge the Cherokee from their stronghold atop a hill near the town of Etchoee. By sheer determination, a preview of the attritional warfare which he would later pioneer, he succeeded in driving the merciless savages from the field.
In the tumultuous year of 1775, Marion was sent by his community to serve as a delegate to the Provincial Congress of South Carolina, as a member from St. John’s, Berkeley, at which the proud people of South Carolina were committed to the Revolution. Marion was subsequently made a Captain in the Second Regiment, of which Moultrie was made its Colonel. As aforementioned, though, the Patriot cause was by no means ascendant; in fact, their condition, especially in the Southern colonies, was much the opposite. The Loyalists, Simms explained, “carried with them the prestige of authority, of the venerable power which time and custom seemed to hallow; they appealed to the loyalty of the subject; they dwelt upon the dangers which came with innovation; they denounced the ambition of the patriot leaders; they reminded the people of the power of Great Britain — a power to save or to destroy…They reminded the people that the Indians were not exterminated, that they still hung in numerous hordes about the frontiers, and that it needed but a single word from the Crown, to bring them, once more, with tomahawk and scalping-knife, upon their defenseless homes. Already, indeed, had the emissaries of Great Britain taken measures to this end…What was the tax on tea, of which they drank little, and the duty on stamps, when they had but little need for legal papers?”
Ambition and Mammon-lust have driven our pharisaical ruling class, the institutional barons of the Egalitarian Regime, to treason. The deplorable traditions which we so bitterly cling to are nothing but obstacles in their reductive vision of conquest; they have gleefully abandoned duty, faith, and permanence in so many short sales, exchanged for ephemeral power and prestige. Satan reigns in earthly corruption, and his mortal world hates us. Unlike the engorged, opulent, respectable cocktail conservatism of David French and “Pierre Delecto”, our Cause constantly teeters on the verge of poverty; as such, we must follow the lead of Marion’s ragtag band of brothers, for whom “faith and zeal did more…and for the cause, than gold and silver.” We, as dissidents, must understand that the path ahead is not an easy one, that the falling night is dark and full of terrors. Loyalists also tried to instill fear into the colonists by implanting the seed of doubt, that perhaps the Empire was just too powerful, too big to fail; we cannot allow our insecurities to be manipulated. As we saw with the Chinese coronavirus, our rulers are willing to exploit any situation to solidify power and strip us of our most fundamental liberties; witness the Faustian bargain that was made in the aftermath of 9/11, whereby our privacy was forever surrendered, never to return. What else are we to make of the Regime’s simultaneous efforts to both generate bloody chaos on the streets, releasing criminals from prison and weakening law enforcement, and to deprive us of our means of self-defense from that artificial bedlam?
The Enemy imposes the emotional, physical, and even sexual isolation of social ostracism as a highly effective weapon as well, one that many men, and even more women, cannot withstand. We must reckon with the fact that not all men can bear this burden; fortitude is a rare gift. Even in the midst of pitched battle, Simms noted, “no man is equally firm on all occasions. There are moods of weakness and irresolution in every mind, which is not exactly a machine, which impair its energies and make its course erratic and uncertain.” An important thing to remember here, though, is that Christ warned us that we would be hated, that we would be persecuted for his name; if we were receiving the plaudits of the damned, the honors of the dishonorable, we would be doing something horribly wrong. One of Marion’s greatest skills was his ability to foster a strong camaraderie among his men, thereby neutralizing the Achilles heel of the militiaman, the fact that, unlike regular troops, “they never forget their individuality. The very feeling of personal independence is apt to impair their confidence in one another. Their habit is to obey the individual impulse…So far from deriving strength from feeling another’s elbow, they much prefer elbow room. Could they be assured of one another, they were the greatest troops in the world. They are the greatest troops in the world—capable of the most daring and heroic achievements — whenever the skill of a commander can inspire this feeling of mutual reliance.” Marion transformed his untrained farmer-partisans into a quasi-männerbund, the ideal cultural unit of the Indo-European Germanic warrior.
The most seductive argument employed by the Loyalists, aside from that of security, was their appeal to the base self-interest that holds our population under the yoke; why care about the tax on tea or the duty on stamps if they do not affect us? This is the very jaundiced individualism that persuades otherwise patriotic men to capitulate, to go along to get along, to live on their knees. Men who fall prey to this mentality abandon their communities, their ire only aroused when they themselves are affected. These are the neoconservatives who, when challenged on the Patriot Act, respond, “If you don’t have anything to hide, you have nothing to worry about.” The Regime draws much of its power from an undermined and coopted morality, a belief system fluid in all but its annihilation of life and its elevation of death, its erasure of civilization and advancement of barbarism. The sicker, the more perverse, the better. Our rulers are thus compelled to signal their virtue by making ever-increasingly pathetic acts of penitence and propitiation; they are good, moral, and virtuous, while we are “intolerant”, “irrational”, and “bigoted.” It is thus imperative that we restore the Christian morality upon which our nation was built, that we replace the secular theocracy and reconquer the moral landscape. As part of this optical struggle to win the narrative war, we must be careful as to how our aims are expressed; while we must remain true to our words, we must remember our audience. For example, in the earliest phases of the War of Independence, the Patriots were cautious to use only the language of absolute necessity, alongside vague assurances of fealty to the Crown. Quite tellingly, despite the fact that this fooled approximately nobody, as large numbers of Patriots certainly already entertained and enjoyed the idea of national independence, the Patriots still felt that, as Simms wrote, “the people were not prepared for such a revelation — such a condition; and appearances were still to be maintained.”
Promoted to Major, Marion was ordered to Fort Sullivan, then little more than an outline. The fort was not even half-finished, made of palmetto logs, with a hastily-constructed palisade and one completed sand-filled wall. Upon the appearance of a British fleet, General Charles Lee urged retreat, calling the unfinished fort a “slaughter pen”; thankfully, South Carolina President John Rutledge did not concur. During the ensuing Battle of Sullivan’s Island, the palmetto logs, laid over sand, withstood the British naval bombardment. One MacDonald was killed, his last words, “Do not give up; you are fighting for liberty and country.” Fort Sullivan was renamed Fort Moultrie, after its defender, and Marion was promoted to Lieutenant Colonel for his service in the victory. The Battle of Sullivan’s Island thus provided the Patriots of the South a wonderful morale boost, piercing and then tarnishing the aura of British invincibility, as well as staving off the invasion of Carolina for another three years. The most lasting legacy of the battle, however, is the noble flag of South Carolina. At the behest of the Revolutionary Council of Safety, Moultrie designed the “Liberty Flag” for South Carolinian troops, consisting of a white crescent in the upper left corner of a blue field, the word “liberty” written in the crescent. First flown at Fort Johnson, on James Island, this is the flag that flew over Fort Sullivan during its defense. Shot down, Sergeant William Jasper braved enemy fire to retrieve and raise it until it could be mounted again; the Moultrie Flag thus became the Revolutionary standard in South Carolina, the first American flag to fly in the South. In 1861, over one century later, the independent State of South Carolina created its secession flag, adding the palmetto tree to the Moultrie Flag, in honor both of Moultrie’s defense of the fort, and of the palmetto logs that had absorbed British fire so well.
In the winter of 1778, and then in the spring of 1780, the Southern strongholds of Savannah, Georgia, and Charleston, South Carolina, fell to British rule. It was sheer luck, or perhaps, we believe, something greater than fortune, that Marion’s services were not lost to us in the fall of Charleston. Shortly before its capture, he had marched into the city from Dorchester, and, “dining with a party of friends at a house [on] Tradd Street, the host, with that mistaken hospitality which has too frequently changed a virtue to a vice, turned the key upon his guests, to prevent escape, till each individual should be gorged with wine. Though an amiable man, Marion was a strictly temperate one. He was not disposed to submit to this too-common form of social tyranny; yet mot willing to resent the breach of propriety by converting the assembly into a bull-ring, he adopted a middle course…Opening a window, he coolly threw himself into the street. He was unfortunate in the attempt…the height [was] considerable, and the adventure cost him a broken ankle.” His injury totally disabled him from service, and, pursuant to an order of General Benjamin Lincoln for “the departure of all idle mouths”, Marion quite unhappily departed the city on a litter, while passage still remained open. Though the warrior was presently out of action, his services lost as he convalesced at home in St. John’s parish, his present misfortune spared and secured him for future glory. His best was yet to come.