Striking Inconsistency: Glorification of Southern Secessionist History versus Modern Sanctification of Potential Human Life
Why Our Constitution has a Fourteenth Amendment and What it Means
Some of my southern friends are powerfully opposed to destroying monuments to the south’s failed secession (what we generally call the Civil War). They say those monuments commemorate American history, and (they say) it’s a history we should not forget.
I agree. In general, I think it’s better to make things than wreck things. That includes art. It also includes our country. It’s a mistake to wreck the art and monuments that remind us of who the people were that tried, and how they tried, to wreck our country. We should not forget them or what they thought. Now is a good time to recall what they thought and why they fought.
I say now is a good time because some of the very same states from (at least) the 1760’s into the 1860’s that were determined to treat a huge number of actual humans as mere property now are purporting to dictate to actual American citizens that mere potential human life is, by law, a “person” and, in fact, should be seen as sacred. Such states (e.g., Texas and Mississippi) have been in the news for recent efforts to criminalize terminations of pregnancies. Alabama is now in the news for claiming that Alabama law protects even mere embryos like it protects children. Killing a child is criminal, so destroying an embryo is criminal. What those southern states are doing is based on what a majority of SCOTUS justices wrote and did in 2022 in Dobbs v. Jackson Women's Health Organization (i.e., Jackson, Mississippi).
The SCOTUS justices in the majority (who purported to tell us what our Constitution means) in Dobbs are “originalists.” They say we (today) must think of our Constitution as the people of the past (those who originally wrote and ratified it) thought. The original Constitution was written and ratified in the late 1780’s. The Bill of Rights was written and ratified in the late 1780’s and early 1790’s. The Fourteenth Amendment was written and ratified in the late 1860’s.
Of course, everyone agrees that when we think about what the Constitution means about the power that state legislators and state judges have over our lives, our liberty and our property, we must first consider the text of our Constitution.
The plain text of Section 1 of the Fourteenth Amendment exposes the SCOTUS majority’s “opinion” in Dobbs as a deceptive sham. The question is not (and cannot constitutionally be) merely whether U.S. citizens have a “right to abortion.” The question (under the Constitution) must be about what power the government has (especially the power that state officials have) to dictate to us citizens what we do with our own lives, our own liberty and our own property.
The Fourteenth Amendment Section 1 is clear that "citizens" include all (and only) "persons born or naturalized in the United States." That makes clear that "a person" can only be someone who was "born" somewhere. It also is clear that "[n]o State" has any power to "make or enforce any law" that would in any way "abridge” any “privileges or immunities” of any actual U.S. “citizens." It also is clear that no "State" has any power to "deprive any [actual] person of” their “life, liberty, or property, without due process of law."
In Dobbs, the SCOTUS majority did not (and it could not) show how state legislators or state judges could (constitutionally) have any power to deprive actual U.S. citizens of their liberty (and even their lives) by favoring something that nobody considered to be a “person,” much less a “citizen” in the whole history of the U.S. from the 1770’s to the 1870’s. The logic of legislators and judges who essentially pretend otherwise cannot be defended with law or history.
Regarding the power of today’s legislators and judges to protect potential human life by depriving actual citizens of life, liberty or property, it is well worth recalling what too many people in too much of the U.S. actually were thinking in the 1860’s about the meaning of life, liberty and property.
The sources I’m going to cite right now are not ones with which I agree. But, as many southerners like to say, it is our history—and we should not forget it. One of the reasons we should not forget some of our harshest history is that it was written (and sometimes revised egregiously) by people we like to think we can trust—judges and legislators (many of whom, for better or worse, were lawyers).
In some instances, history has been written atrociously and revised egregiously by SCOTUS justices (a majority of justices). I’m going to use what is arguably the most reprehensible SCOTUS opinion ever written (Dred Scott v. Sandford, issued by SCOTUS on March 6, 1857). But to preclude potential contentions to the contrary, I’ll say up front that I loathe the opinions expressed by, and I loathe even the actual justices in, the SCOTUS majority. I respect the dissents of the two justices who dissented. I respect the people who voted to reverse that SCOTUS decision and correct the lies in the SCOTUS opinion.
The reason I’m using Dred Scott (in a discussion about Alabama) is because Alabama was one of the states in the 1860’s that officially subscribed to the sentiments expressed by Chief Justice Taney in 1857 to pretend to justify robbing actual people (actual citizens who actually were born in the U.S.) of their rights. The following paragraph was included in Taney’s opinion:
The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,‘ and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in [in the court filings] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens‘ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant [people in power], and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
Next, we should consider what people actually did with or about the words of the chief justice and the majority of SCOTUS justices. A whole lot of people (and electors) in 1860 voted to elect Abraham Lincoln president. In response, in 1861, a whole lot of other people decided to rip our country apart. They went to Montgomery, Alabama, to do so.
The Confederate States of America (CSA) was created in Montgomery, Alabama, in February 1861. The CSA Constitution was created in the Alabama State Capitol in Montgomery. The President of the CSA was sworn into office on the steps of the Alabama State Capitol. To this day, a star marks the spot.
The CSA Constitution is dated March 11, 1861. The “logic” of Chief Justice Taney’s March 1857 opinion in Dred Scott about the U.S. Constitution permeated the CSA Constitution. Particular provisions emphasized how the confederate government and the states that created or joined the CSA viewed the people at issue in Dred Scott. See CSA Constitution, Article I, Section 9, clauses 1, 2, 4.
In Dred Scott, the chief justice and majority of SCOTUS justices outright lied about the U.S. Constitution. The most significant (worst) parts of Taney’s opinion were written after the dissents were written—they were designed specifically to refute what the dissenting opinions said about U.S. history. The majority of SCOTUS justices misrepresented American history, and they knew they did. At least as importantly, they were wrong about America’s present. That’s why America chose Abraham Lincoln to be president. It’s why America revised its Constitution in writing with three amendments (the Thirteenth, Fourteenth and Fifteenth Amendments).
In Dred Scott, the SCOTUS majority knowingly misrepresented that throughout the territory that became the United States, one human being always was a “person” (mentioned at the beginning of the Fifth Amendment), while his neighbor never was a “person” and almost always was “property” (mentioned only at the end of the Fifth Amendment). After Lincoln was elected, southern states promptly created or joined the CSA to prove, specifically and conclusively, exactly what type of being they considered to be a “person” versus “property.” See CSA Constitution, Article I, Section 9, clause 16.
In the 1860’s, the people of many states (including Alabama, Texas and Mississippi) fought for particular “rights.” They fought for the right to treat humans as property. They threw away vast quantities of lives (their own) and destroyed vast quantities of lives (Americans seeking to treat all people born in the U.S. as citizens) to retain the “right” to treat huge numbers of humans as property.
So let’s not now pretend that, when the Fourteenth Amendment was written and ratified, all potential human life was seen as sacred or even as a "person" or in any way protected (as human) by the Constitution throughout America. Parts of the original U.S. Constitution, the opinion of Taney and the majority of SCOTUS justices, and the CSA Constitution and the states that subscribed to its sentiments established one thing beyond any doubt: a whole lot of actual humans were thought of as "property" and a whole lot of other people had no problem with that "thinking" throughout the entire history of the U.S. from the 1770's through the 1860's.