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American Justice: A History of Infamous Conservative Supreme Court Decisions.

Updated on May 11, 2022
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ME has spent most of his retirement from service to the United States studying, thinking, and writing about the country he served.

Supreme Court

Much better digs than the musty old Senate anti-room they were originally housed in.
Much better digs than the musty old Senate anti-room they were originally housed in. | Source

The Supreme Court Has Often Not Been The Friend of Americans

MANY CONSERVATIVE-DOMINATED SUPREME COURT DECISIONS throughout our history, including the recent gutting of the Voting Rights Act by Chief Justice Roberts and his much more conservative allies; Justices Thomas, Alito, and Scalia. He had help in this particular case with the more moderate but still conservative Justice Kennedy.

Progress and progressivism is all about moving the American condition from less liberty to more liberty while, at the same time, improving the government's record of insuring the goals of the Constitution, e.g., Justice (for ALL), Tranquility, Defense, and general Welfare. The Supreme Court's rocky history has seen decades of rulings which either prevented progress or even rolled back individual and class liberty, such as what happened in Robert's voting rights ruling.

Theoretically, the Supreme Court is supposed to be composed of impartial jurists, sitting above the fray, whose challenge is to make the best possible ruling which advances the goals and purpose so beautifully enunciated in the Preamble to the Constitution, within the confines of the rules laid out in the Constitution's body. While that, as they say, is an impossible dream, it is the theoretical responsibility of the President and Congress to appoint such men and women (finally) to the Court.

Of course that never happens either. The Supreme Court, in reality, is a tool of the political process whose goal is to pack, as much as possible, as many like-minded jurists the President thinks, and Congress allows, will carry out their vision well into the future (it doesn't seem justices die young, do they?) Most of the time that works, but sometimes it doesn't; Chief Justice Earl Warren, for example, was supposed to be a reliable 1950s-style conservative vote but ended up being one of the most liberal (as in liberalism) voices the Court has had, much to President Eisenhower's regret. (Having said that, Eisenhower would not be accepted in today's Republican Party)

With rare exceptions, America spent its formative years, from Andrew Jackson to Herbert Hoover, under the rule of conservative presidents and congresses. Consequently, the Court did not leave the grip of conservative ideology until 1935. Of note, it wasn't until 1966 that the first black justice, Justice Thurgood Marshal, was appointed to the Court and even longer, 1981, for the first woman to make it to the bench, Justice Sandra Day O'Conner. Prior to 1835, Chief Justice John Marshall, a liberal Federalist, held sway and established, among other things, the principle of "Judicial Review" and the concept of "implied powers". After 1835, the Court took a sharp turn to the Right with the successful nomination of Roger Taney, from slave state Maryland, and for the next 100 years relentlessly overturned everything Marshall had established ... except for the Courts role in Judicial Review and Marshall's ruling that the Bill of Rights does not apply to the States.

From my readings it seems to me most of the major Court decisions dealing with American's liberty or general Welfare have been to deny them; primarily;in the name of State's Rights. The first such example is the first case presented below dealing with what I take to be "general Welfare".


I HAVE ALREADY USED TWO TERMS, CONSERVATIVE and LIBERAL, which have different meanings depending on who you are talking to or what time period you are talking about. The first thing one needs to understand that Party labels have no relationship to political philosophy in the long-term. That means the Democrats of today are not the Democrats of yesteryear; nor are Republicans.

I draw the following definitions from my Hub on the subject and then expand on them a little. First, let's start what conservatism means.

CONSERVATISM: (Latin: conservare, "to retain") is a political and social philosophy that promotes retaining traditional social institutions. A defining characteristic is the emphasis they place on class over the individual. Conservatives recognize that 1) societies are naturally stratified (rich-poor, male-female, etc) and 2) a properly functioning society must maintain the class structure where the upper class, what ever form that may take, assume the responsibility for guiding and controlling the lower classes in order to maintain stability.

For the above philosophy to work, it is necessary to value the good of the class or that of the individual. With the on-set of the Enlightenment and Liberalism, this idea was flipped on its head. My going in definition of liberalism is:

LIBERALISM: a set of related political philosophies that uphold liberty as the highest political end.[1][2] This includes emphasis on the primacy of individual liberty,[3] political freedom, and voluntary association. It is the antonym to conservatism and authoritarianism.[4]

Clearly, it is the focus (or lack thereof) on the individual that is one of the fundamental differences between these two philosophies. As a consequence, it is this division in political thought that sets up the battle between conservative and liberal Supreme Courts. And, in doing so, has significant impact on the lives of people not in the upper classes.

Taking Individual Liberty Down a Notch

AMERICA WAS FOUNDED ON THE IDEA OF LIBERALISM, which is that individuals have an inalienable right to Liberty, I, e., the individual's right to do what ever they like, so long as it harms no one, and Freedom, e.g., the right to exercise one's liberty. For political and pragmatic reasons, mainly to entice the Southern states to ratify the Constitution, Article 4 was reinserted into the draft constitution after first being rejected. Article 4. Section 2, Clause 3 states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

It was this compromise which ultimately led to, and in my opinion, predictably, the Civil War, 73 years later. And it is this compromise that has led to some of the most atrocious Supreme Court decisions ever made, including this one; Prigg v. Pennsylvania, 41 U.S. 539 (1842)

** Freedom is Just An Illusion, If You Are Black

Prigg v. Pennsylvania, 41 U.S. 539 (1842) is about a "former" slave, Margret Morgan, owned by John Ashmore of Maryland. In 1832, long after Ashmore had effectively set her free, she moved to Pennsylvania, where she also lived free. Sometime after Ashmore's death, his heirs decided to reclaim their property, another human life; pursuant to the Fugitive Slave Act of 1793. They dispatched Edward Prigg, a noted slave catcher, to kidnap Margret to sell.

On April 1, 1837, Prigg, and three others, carried out an assault and successfully kidnapped Margaret and her children, one of whom was born Free in Pennsylvania. Prigg did bring them back to Maryland and sold Margaret as well as her children, even the free one. Subsequently Prigg was arrested by Pennsylvania authorities, tried, and found guilty of violating a 1826 Pennsylvania law that states:

"If any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretense, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, to any other place or places whatsoever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this commonwealth having competent jurisdiction, be deemed guilty of a felony.[4]"

Prigg's appeal ended up in the Supreme Court whose Chief Justice was Roger Taney. There Prigg's lawyer argued that 1) Article IV applies and 2) the implementing federal Fugitive Slave Act supersede the laws of Pennsylvania.

In a 6-3 decision, Prigg carried the day and the Court overturned his conviction in Pennsylvania courts. In doing so, the Court passed up a chance to chip away at the politically driven, anti-liberty clause in the Constitution. a clause which all but the conservative South opposes.

ROGER TANEY, 5th Chief Justice of the United States
ROGER TANEY, 5th Chief Justice of the United States | Source

** Arguably the Worst Decision Ever By the Supreme Court

ALTHOUGH I WOULDN'T BE SURPRISED THERE AREN'T A FEW among us today that don't have a problem with the verdict from Dred Scott v. Sandford, 60 U.S. 393 (1857), Like Margret Morgan before him, Dred Scott. a slave, ended up in territory which prohibited slavery, i.e., Illinois and the Wisconsin Territories. Dredd Scott was purchased by a U.S. Army Surgeon, Dr. John Emerson and taken first to Ft. Armstrong in Illinois and latter to Ft. Snelling, located in the Wisconsin Territory. Emerson then moved to Jefferson Barracks Military Post south of Saint Louis, MO., but leaving Scott and his wife behind renting them out for profit.

Emerson broke the law when he chose to profit from his slaves for it was a direct violation of the Missouri Compromise, the Northwest Ordinance, and the Wisconsin Enabling Act. Subsequently, Emerson was assigned to a post in Louisiana where he married and sent for the Scott's. On their way back, the Scott's had child, a free child by federal and state laws. The circumstances were such that IF Dred Scott had sued for his families freedom at this point, there is precedent in Louisiana that they would have been granted it. But, they didn't.

Emerson was again sent to Ft. Snelling and his wife and the Scott's found accommodations near Saint Louis, MO where Mrs. Emerson proceeded to hire the Scott's out for profit again. During the period, Dred Scott sought to buy his family's freedom from Mrs. Emerson, but she was having none of it. Consequently, Dred Scott sued for his freedom.

The case was first heard in a Missouri court in front of a sympathetic judge, Alexander Hamilton. His freedom was almost a foregone conclusion, based on previous rulings by Missouri courts. Ironically, however, Scott lost on a technicality; the witness that was presented to prove he was actually a slave turned out to be somebody who couldn't offer such proof, his wife would have had to, and she didn't. Therefore Mrs. Emerson won and the Scott's remained slaves ... even though they could prove they were slaves!!!

The Judge Alexander granted Scott's request for a new trial to which Mrs. Emerson appealed to the Missouri Supreme Court ... and lost. Scott won the 2nd trial, but Emerson appealed to the Missouri Supreme Court again. This time, the Court overturned 28 years of precedence when Missouri Chief Justice William Scott declared:

"Times are not now as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequences must be the overthrow and destruction of our government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others".[14]

In spite of the Missouri Supreme Court's ruling, Judge Alexander refused to turn over the Scott family to Mrs. Emerson, nor release the funds collected for their rent which was being held in escrow. Prior to Scott's next action, Mrs. Emerson transferred ownership of her slaves over to her brother, John Sanford. Subsequently, Scott sued again, this time in federal court.

Surprisingly, the judge in this case instructed the jury to use applicable Missouri law (rather than federal law) when making their decision. Not surprisingly, given the Missouri Supreme Court's decision, they found for Sanford and against Dred Scott. Scott appealed to the Supreme Court.

President Buchanan, in his inaugural address proclaimed that the slavery question would "be speedily and finally settled" by the Supreme Court.[20][21] Historians suspect that Buchanan already knew the outcome of the case. What historians know is that Buchanan later successfully pressured Associate Justice Robert Cooper Grier, a Northerner, to join the Southern majority in Dred Scott to prevent the appearance that the decision was made along sectional lines.[18]

Two days after Buchanan's swearing in, the Court announced its decision; it was 7-2 against Dred Scott. The Court found, among other things, that Scott did not have standing to bring his case to federal court because ... no slave can ever be a citizen of any state or the United States!!

In order to reach that decision, the majority had to figure out a way to reconfigure the law such that Article III, Section 2, Clause 1 of the U.S. Constitution, which provides that "the judicial Power shall extend... to Controversies... between Citizens of different States...", does not apply in Dred Scott's case. Why? Because Scott declared he was a "citizen" of the State of Missouri and that the defendant, Sanford (aka Sandford) was a citizen of the State of New York and the Court acknowledged that this prima facie established federal jurisdiction under the Diversity Clause. The way around this, of course, was to find Scott was not a citizen in any respect.

Sanford disputed the jurisdictional claim and alleged that Scott was a descendant of an imported African slave, and by reason of such fact could not be a "citizen" of any State. The Court bought into this logic for it held that neither Scott nor any other person of African descent—could be "citizen of a state", and therefore was unable to bring suit in federal court on the ground of diversity. Supporting this outcome was the majority's goal to ascertain whether, at the time the Constitution was ratified, federal law could have recognized Scott (a Negro descendant of a slave) as a citizen of any state within the meaning of Article III. Relying upon statements made by Charles Pinckney, of South Carolina, who had claimed authorship of the Privileges and Immunities Clause during the debates over the Missouri Compromise,[23] Taney decided: "the affirmative of these propositions cannot be maintained."

According to Taney, the authors of the Constitution had viewed all blacks as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." (If that were true, why did 5 states allow blacks to vote at the time of ratification?) In addition, the Court also presented a parade of horribles argument, based on the Privileges and Immunities Clause of Article IV, listing what the Court considered to be the rights of citizens, and the inevitable and undesirable effects of granting Scott's petition:

"It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, sojourn there as long as they pleased, to go where they pleased ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went".[24]

This sealed Scott's fate; he was doomed. But, Taney was not done there. Just to make his point more certain he found that:

    • "no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States."
    • the provisions of the Missouri Compromise declaring it [Missouri] to be free territory were beyond Congress's power to enact. The Court rested its decision on the grounds that Congress's power to acquire territories and create governments within those territories was limited solely to the Northwest Territories, not Louisiana territory, which was acquired well after the signing of the Constitution.
    • Parrying the Constitution's Article IV, Section 3 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"), Taney argued that the clause immediately following protected permanent states — those that eventually arose from temporary territories — from those very Rules and Regulations: "...and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."
    • The Court also held that the Fifth Amendment barred any law that would deprive a slaveholder of his property, such as his slaves, upon the incidence of migration into free territory.
    • The last question before the Court was related to the question of jurisdiction: Did Scott's residency in the free territory of the Wisconsin Territory make him a free man? Taney deferred to the opinion of the Missouri Supreme Court. Taney argued, the decisions of the government of Missouri took precedence because the United States Circuit Court did not have jurisdiction, consequently Scott could not be a free man.

This was the second time in United States history that the Supreme Court had found an act of Congress to be unconstitutional. (The first time was 54 years earlier in Marbury v. Madison). The decision also was significant in starting the Panic of 1857 because of the uncertainly of the status of states and territories relative to slavery.

The social uproar over this decision ended up saving the Scott family. Mrs. Emerson married Calvin Chafee, an abolitionist and US congressman. He took significant heat, being called a hypocrite, and as a result he engineered the transfer of title to Dred Scott and his family to one Taylor Blow; who had been instrumental in helping Scott with his suits and appeals. Blow turned around requested manumission papers from the now familiar Judge Alexander Hamilton. On May 26, 1857, the Scott family was set free. Sadly, only eighteen months later, Dred Scott died of tuberculosis and five year later, the Civil war began.

** Separate But Equal Becomes Law of the Land in America - A Sad Day

PLESSY v. FERGUSON, 163 U.S. 537 (1896), was another blow to roll back the impact of the 14th Amendment on the States. The 14th Amendment was designed to apply the Bill of Rights to the States, which, until that time, had no legal obligation to provide those protections to their own citizens. As a result, slave states, in order to continue their love affair with the institution of slavery denied these basic rights to its black citizens. Even though the 13th Amendment took away their ability to enslave other human beings for profit, they found other ways to effect the same outcome.

One method to do this was to deny former slaves basic human rights. This ultimately led to the passage of the 14th Amendment to close that loophole. Former slave states then devised methods to continue keeping blacks as 4th class citizens by such means as legal segregation in public places; in other words, lowly blacks were not allowed to mingle with their white superiors. Plessy v. Ferguson tested this notion.

One of the ways former slave states sought to marginalize blacks is exemplified in an 1890 State of Louisiana law known as the Separate Car Act that required separate accommodations for blacks and whites on railroads, including separate railway cars To challenge the constitutionality of this law, a group of prominent black, creole, and white New Orleans residents formed the Comité des Citoyens (Committee of Citizens). In an act of civil disobedience, this group had Homer Plessy, a man of mixed race (which, under Louisiana law, he is classified as black) intentionally violate the law so that it could be adjudicated through the legal system. It was an interesting plan.

On June 7, 1892, Plessy bought a first-class ticket at the Press Street Depot and boarded a "whites only" car of the East Louisiana Railroad in New Orleans, LA, bound for Covington, Louisiana.[5] To insure that Plessy was arrested on the right charge, and not vagrancy or some other or some other offensive. the committee worked with the railroad company, which had opposed the law, to set up the arrest and hired a private detective with arrest powers to detain Plessy., After boarding the "whites only" car and refusing to move to the "blacks only" car Plessy was duly arrested for violating the Separate Car Act.

in the whites-only railway car, he was asked to vacate it, and sit instead in the blacks-only car. Plessy refused and was arrested immediately by the detective.[7] As planned, the train was stopped, and Plessy was taken off the train at Press and Royal streets.[6] Plessy was remanded for trial in Orleans Parish.[citation needed]

Plessy's lawyers filed first in state court arguing that the Separate Car Act denies Plessy his rights under the Thirteenth and Fourteenth amendments of the United States Constitution,[8] which provided for equal treatment under the law. As expected, the presiding judge, John Howard Ferguson, ruled that Louisiana had the right to regulate railroad companies while they operated within state boundaries and fined Plessy $25 fine. Plessy immediately sought a writ of prohibition.

Next in line was the Louisiana Supreme Court, who expectedly denied Plessy's appeal..[6] Why did they do that? They used two decisions from abolitionist state, Massachusetts and Pennsylvania. They were:

  • The Massachusetts Supreme Court had ruled in 1849 that segregated schools were constitutional. Even back then, the argument by the plaintiffs was a familiar one - that segregation perpetuated race prejudice. The court commented, in turning down the appeal, that

"This prejudice, if it exists, is not created by law and cannot be changed by law."

  • The Pennsylvania Supreme Court in a case very similar to Plessy where a Pennsylvania law also mandated separate railcars for different races. Here, the Court said,

"To assert separateness is not to declare inferiority ... It is simply to say that following the order of Devine Providence, human authority ought not to compel these widely separated races to intermix." [9] !!

Undaunted, the Committee appealed to the United States Supreme Court in 1896.[8]Oral arguments were held before the US Supreme Court on April 13, 1896 where Plessy's lawyer argued that

  1. Plessy's rights under the Thirteenth Amendment, which prohibits slavery, and
  2. The 14th Amendment, which guarantees the same rights to all citizens of the United States, and the equal protection of those rights, against the deprivation of life, liberty, or property without due process of law, and
  3. The reputation of being a black man was "property", which, by the law, implied the inferiority of African Americans as compared to whites.[10]

These arguments make perfect sense today, but not in 1896; especially when one of the Justices deciding the case was Louisiana Justice Edward Douglass White who was a member of the New Orleans Pickwick Club and the Crescent City White League, which is a paramilitary organization that had supported white supremacy with violence through the 1870s to suppress black voting and regain political power by white property owners.[12]

But in 1896, the make-up of the Court was somewhat elitist and generally conservative character. In this particular set of Justices, at least five of the eight who voted (the ninth was not available) have documented racist opinions:

It doesn't appear that the lawyers representing had much of a chance to carry the day; and they didn't. The five justices names above, plus Justices George Shiras, Jr. and Rufus W. Peckham, joined in a 7 - 1 (Justice John M. Harlan dissented) decision that:

"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."[15]

In other words "Plessy's arguments based on the Fourteenth Amendment, seeing no way in which the Louisiana statute violated it.[6] In addition, the majority of the Court rejected the view that the Louisiana law implied any inferiority of blacks, in violation of the Fourteenth Amendment. Instead, it contended that the law separated the two races as a matter of public policy.[14]

The very, very sad thing is that this horrible attitude these seven Justices exhibited in Plessy is alive and well in 2015. In fact, it is increasing again because of decisions made by the conservative Rehnquist and Robert's Courts.

Associate Justice William Ruffus Day


** State's Rights vs Civil Rights

THE CASE WAS HAMMER v DAGENHART, 247 U.S. 251, 38 S. Ct. 529, 62 L. Ed. 1101 (1918). The case was over the Keating-Owen Act of 1916, otherwise known as the Child Labor Act. The Act prohibits the distribution of goods in interstate commerce if they had been produced using child labor. On the flip-side, the Act did not prohibit child labor as such, and such products that remained in the State where it was produced, it may be sold there.

The case that reached the Supreme Court began with Roland Dagenhart trying to get one of his minor children, a 14, a father of two minor children, both of whom worked in a textile factory in North Carolina one child was 14. The textile factor had laid-off the 14-year old because it was in violation of the Child Labor Act. The act reads:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce, any article or commodity the product of any mine or quarry situated in the United States, in which within thirty days prior to the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment, situated in the United States, in which within thirty days prior to the removal of such product therefrom children under the age of fourteen years have been employed or permitted to work, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce, any article or commodity the product of any mine or quarry situated in the United States, in which within thirty days prior to the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment, situated in the United States, in which within thirty days prior to the removal of such product therefrom children under the age of fourteen years have been employed or permitted to work, or children between the ages of fourteen years and sixteen years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of seven o'clock postmeridian, or before the hour of six o'clock antemeridian:


This Act was one of the products of the brief Progressive Era where it was thought that the federal government must fix social ills that the States refused to do, for example, the enfranchisement of women. Behind this particular law were decades of pressure building up against unscrupulous employers who abused their employees, especially the children.

One of the progressives who was out front in this movement was photographer Lewis Hines. Interestingly, the Smithsonian has an exhibit featuring Hines and his documentation of the trials and tribulations of children in the workplace. There, you will find this:

"Over and over, Hine saw children working sixty and seventy-hour weeks, by day and by night, often under hazardous conditions. He saw children caught in a cycle of poverty, with parents often so ill-paid that they could not support a family on their earnings alone, and had to rely on their children's earnings as a supplement for the family's survival. He saw children growing up stunted mentally (illiterate or barely able to read because their jobs kept them out of school) and physically (from lack of fresh air, exercise, and time to relax and play). He saw countless children who had been injured and permanently disabled on the job; he knew that, in the cotton mills for example, children had accident rates three times those of adults."

It was these atrocities which the Child Labor law was intended to reduce. In this case the State of North Carolina found it unnecessary to protect minor children being horribly mistreated in the workplace . Consequently, the Supreme Court got to adjudicate. Dangenhart was upset he couldn't find employment for is 14-year old son at his factory (I have no doubt his family needed the money because in those days times were not good if you weren't wealthy). The same factory where he worked 60 hours a week in a North Carolina textile mill, earning 10 cents a day and the work scarred his lungs and stunted his growth. Even so, Dangenhart sued to let his son work on the grounds the Child Labor Act didn't apply to the state in this case and that the new law unjustly deprived him of his son's wages. Ultimately, it made it to the Supreme Court.

The Court who took the job of this momentous decision had a make-up which was similar to the one we have today; 4 very conservative justices, 1 swing justice (Day), and 4 moderate to very liberal justices. And, in a 5-4 ruling they took yet another bite out of the 14th Amendment which, by the time the conservative Courts were done with it, ended up being an empty shell ... along with the 15th.

The ruling by the majority was as follows:

  1. Manufacturing was NOT part of interstate commerce and therefore is not covered by the Commerce clause in the Constitution
  2. That Congress did not have the authority via the Commerce Clause to violate a State's 10th Amendment right to conduct business as it sees fit within its own borders and therefore manufactures within North Carolina, in this case.
  3. The Keating-Owen Act of 1916 was therefore unconstitutional

The above effectively says, Congress does not have the power to regulate commerce of goods that are manufactured by children regardless of the harm it causes. To me, Justices ignored the fundamental purpose of government, which is to protect the People who created it in the first place.

The majority drew a distinction between the manufacture of goods and the regulation of certain goods which are themselves "inherently evil". The Court accepts the reasoning from previous cases that Congress may regulate goods which are inherently evil; but in this case, the goods made by child labor were not "evil" in nature. maintained that the issue did not concern the power to keep certain immoral products out of the stream of interstate commerce, distinguishing previous cases upholding Congress's power to control lottery schemes, prostitution, and liquor. The Court reasoned that, in those cases, the goods themselves were inherently immoral and thus open to congressional scrutiny. In this case, however, the issue at hand was the manufacture of cotton, a good whose use is not immoral.

The Court further held that the manufacture of a product does not in itself constitute interstate commerce; while the distribution of those products does, if it crosses state lines. In line with this, the Court recognized that different labor regulations in each state created unequal ground in terms of economic competitiveness, but it specifically stated that Congress could not address such inequality because each state can enact its only laws regardless of how they trample human or civil rights; they reasoned:

"The commerce clause was not intended to give to Congress a general authority to equalize such conditions,"

They came to this erroneous conclusion because the mistakenly (or maybe on purpose) inserted the word "expressly" in the 10th Amendment to support their contention that using the Commerce Clause in this "implied" fashion went beyond the scope of "one of enumerated powers". Again they reasoned:

"In interpreting the Constitution, it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the National Government are reserved."[5] and " in our view the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the states, a purely state authority. Thus the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the federal authority does not extend".[6]... and that the law was "repugnant to the Constitution" because it violated states' rights and exceeded Congress' power to regulate commerce.

So, instead of freeing children from the excesses created from the "profit motive", five men on the Supreme Court saw it differently and struck the Child Labor Law down. As a consequence, the Keating-Owen Act, and protecting children from abuse, was dead for the time being and would stay that way for another 20 years until overturned in another ruling.


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Next up is the "Slaughterhouse Case" in 1877, the first of many to gut the 14th Amendment.

Buck v. Bell, 274 U.S. 200 (1927): Many otherwise good men, including many U.S. Presidents, believed in the same thing Adolph Hitler became infamous for ... wanting to eliminate people who contaminate the gene pool ... otherwise known a Eugenics. The idea formally began in 1883 with work done by Sir Francis Galton. But, informally, it had been around much longer; Thomas Jefferson, for example, firmly believed blacks deserved the same rights as whites; but at the same time he also believed they were, as a group, "naturally" less intelligent than whites and therefore a drag on society.

This case was about the constitutionality of state laws allowing forced sterilization in certain cases where the "gene pool" was threatened by people of low intelligence who procreated. The travesty is that the Court, not a particularly conservative Court, by an 8 - 1 decision penned by Justice Oliver Wendell Holmes, to allow states to conduct such sterilization!

By our times, that is an atrocious result. By the popular thinking of the 1800s and earlier, however, it apparently wasn't.

The case centered around Ms. Carrie Buck, an 18-year old of uncertain intelligence who had been institutionalized in the Virginia State Colony for Epileptics and Feeble-minded. Looking to determine if the new law would pass a legal challenge, on September 10, 1924, Dr. Albert Sidney Priddy, superintendent began legal actions to sterilize Ms. Buck, who was in his care. The Supreme Court came to a decision on May 26, 1927.

Cassie had been institutionalized because her adoptive parents found her incorrigible and "feeble-minded", especially after she gave birth to an illegitimate child. (It turns out that she was probably raped by the foster mother's nephew; the commitment was to save face for the family). Her natural mother was a 52-year-old with an alleged mental age of 8 and with a record of prostitution and "immorality". She had three children without good knowledge of their parentage. Carrie, one of these children, had been adopted and attended school for five years, reaching the level of sixth grade; Priddy declared her mental age at 9.

Dr. Priddy died during the legal process and was superseded by Dr. John Hendren Bell, hence the case name of Bell v. Buck. Cassie's guardian, who opposed the sterilization, tried hard to win the case. Unfortunately, after the Board of Directors at the asylum directed the sterization, appealed and lost at the

Board of Directors issued an order for the sterilization of Buck, and her guardian appealed the case to the Circuit Court of Amherst County (and lost), then to the Supreme Court of Appeals of Virginia (and lost), and then a federal appellate court; it also sustained the sterilization law as compliant with both the state and federal constitutions, Next was the Supreme Court.

What Buck and her guardian argued was that:

  1. due process clause guarantees all adults the right to procreate which was being violated.
  2. the Equal Protection Clause in the 14th Amendment was being violated since not all similarly situated people were being treated the same. They contended the sterilization law was only for the "feeble-minded" at certain state institutions and made no mention of other state institutions or those who were not in an institution.

But it didn't work. Why didn't it work? The answer is in the comment by Justice Holmes in is opinion that "the interest of the states in a "pure" gene pool outweighed the interest of individuals in their bodily integrity", he argued:

"We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."

Holmes concluded his argument with this deplorable comment: "Three generations of imbeciles are enough". What's worse, this decision has NEVER been reversed!


The 14th Amendment's purpose was fundamentally to extend the reach of the Bill of Rights to the States. Do you agree the subsequent Supreme Court decisions should have reversed the implanting laws?

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Thinking about Politics, Do you find yourself most often agreeing with ...

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This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.

© 2015 Scott Belford


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