Thursday, February 19, 2009



WASHINGTON, D.C. – Reason, Commerce, Justice & Free Beer has just learned that the United States Supreme Court has issued a dramatic opinion striking down the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. In Sons of the South v. United States, No. 08-1762, the Court, 5-3, per Justice Antonin Scalia, held that the so-called “civil rights amendments” are invalid because the States did not properly ratify them. “Our Constitution prescribes a specific procedure for ratifying amendments. In the aftermath of the Civil War, aggressive northern radicals illegally coerced southern legislatures to ratify amendments. Because the North procured ratification by duress, the amendments cannot stand,” he wrote. Legal scholars call the ruling “significant.”

Sons of the South v. United States originated as a claim by the descendants of slaveowners who argued that the federal government seized their ancestors’ property without just compensation. In 2003, lead plaintiffs James A. Longstreet IV of Virginia and James T. Pickett III of Georgia, brought their action in the Federal District Court for the Eastern District of Virginia. In their complaint, they charged that: “The Federal government conspired to and did deprive former Confederate States of their ability to fairly consider the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, with the result that countless southern slaveowners lost their property without just compensation.” The plaintiffs argued further that: “Article V of the Federal Constitution provides that at least three-quarters of every State legislature must pass constitutional amendments after passage by two-thirds of both houses of Congress. By force, fraud and coercion, the Federal government induced hostage southern State legislatures to ratify amendments that abolished slavery, guaranteed voting rights to negroes and promised ‘Due Process’ and ‘Equal Protection’ to every ‘person’ in America. No reasonable southerner would ever have voted for these amendments. This represents a naked Federal power grab. If the Court allows these amendments to stand, it sends a message that American citizens have no right to fairly consider changes to their fundamental charter. These amendments stand for duress and compulsion. And they must be reversed.”

United States District Judge Clarence B. McFarlane, appointed by President George W. Bush in 2002, agreed with the Plaintiffs and declared the amendments invalid. He ordered slavery restored, and directed the Federal government to pay $500 billion compensation to the descendants of slaveowners who lost their property following ratification of the Thirteenth Amendment in December, 1865, plus interest. “It would have outraged our Founders to know that the Federal government forced States to accept changes to the Constitution without knowing, voluntary consent thereto. On the record before me, it appears beyond doubt that the Federal government installed military governors in conquered Southern States, filled their State houses with Federal cronies and forced resistant southern representatives to pass these amendments at gunpoint. It would eviscerate the voluntary nature of our federal system to allow such a lawless procedure to gain the force of constitutional law.”

On appeal, the United Sates argued that every Southern State “knowingly and voluntarily” ratified the amendments. The United States Court of Appeals for the Fourth Circuit, sitting en banc, reversed the District Court and concluded: “Whatever historical evidence appellees may have submitted to show duress in the ratification procedures surrounding these amendments, we hold that any aggrieved slaveholders have long since waived any right to contest their validity. From a practical standpoint, since 1865, our Federal government has proceeded on the assumption that the Thirteenth, Fourteenth and Fifteenth Amendments are sound. Virtually all significant legislation since that date draws its constitutional authority from these amendments. To hold them invalid would cast the entire Federal administrative state into chaos. Although we sympathize with appellees’ plight—and our opinion should in no way be construed to disparage this Court’s great respect for all property rights—we simply refuse to reverse 140 years of history for practical reasons.”

Longstreet and Pickett appealed the Court of Appeals’ ruling in 2007. The United States Supreme Court agreed to hear arguments. In January 2008, the Court heard oral arguments. Justice John Paul Stevens recused himself from the case in a public statement. He explained: “I fought for the North in the Civil War. I fought against slavery and secessionism. My heart still beats for the North and my home State of Illinois—the land of Lincoln. I simply cannot be impartial when considering the issues involved in this case. I morally loathe any person who contends that slavery has a place in our American order.”

During oral arguments, Chief Justice John G. Roberts, Justice Antonin Scalia, Justice Samuel A. Alito and Justice Clarence Thomas favorably questioned Sons of the South’s attorneys. At one point, Roberts remarked: “Your historical research is impeccable. It looks pretty clear that the North really did force southern legislatures to adopt these amendments.”

Scalia voiced similar praise: “You know, it was implicit in the Founding that slavery should remain undisturbed. The word is not even mentioned in the original Constitution. The South had a legitimate reason to leave the Union in 1860 because it tacitly understood that the Federal government would not move against slavery based on assurances made in 1787. I mean, slavery was the core of the southern economy. Why would you ever join a government that had the power to totally wipe out your economy?”

Alito said: “What gets me is how much needless legislation has flowed from these amendments. You have the Civil Rights Acts, the Voting Rights Act, even the Americans with Disabilities Act. These acts consume enormous judicial energy and they cost businesses billions. There is nothing in the Constitution that promises ‘equal protection’ or ‘voting rights,’ especially when it comes to State power. You’ve got the Fifth Amendment protecting Due Process from Federal intrusion, but nothing in the original document binds the States except Article I, §10; and that says nothing about slavery. The States joined this Union on the understanding that they could police themselves. These amendments destroyed that understanding. Sure, you might argue that the Declaration of Independence implies a sort of ‘equality’ principle in American government. But the Declaration is not our governing document; the Constitution is. And I think the Framers constructed the amendment procedure in order to prevent precisely the kind of federal coercion that you’re alleging. Amendments should not pass unless everyone voluntarily consents to them. That apparently didn’t happen here, right?”

Thomas said: Nothing. He just nodded and muttered to himself: “When is lunch?”

Several justices spoke vehemently against Sons of the South. Justice Ruth Bader Ginsburg was visibly angry when she said: “You’re asking us to reinstitute slavery? Are you insane? Did you know it is 2009? What planet are you from, sir?”

Justice David Souter remarked: “Look, there may have been some coercion in order to get these amendments passed. But it had to be done. The country just went through the bloodiest war in its history. Slavery caused it. The Constitution had a fundamental flaw and it had to be corrected in order to secure America’s place in the modern world. Every other European country had abolished slavery long before 1865. These amendments dramatically improved our constitutional order. It may have made life more complicated by guaranteeing new rights for all our citizens, but isn’t liberty supposed to advance under our Constitution? If we invalidate these amendments, we step back two centuries.”

Justice Stephen Breyer almost lost his composure while responding to appellants’ arguments: “Do you have any idea what you’re saying? Without the Fourteenth Amendment, there is no protection from State action. You could have the KKK come knocking at your door and the State would be powerless to stop it. And without the Fourteenth Amendment, there is no right to marry, no right to procreate, no right to vote and no right to educate your children. Do you have any idea what will happen to the country if we strike down this amendment?”

Only Justice Anthony Kennedy maintained a relatively neutral stance at the argument. He said very little. “Obviously the Constitution would mean very little if strong States could compel weak States to ratify amendments that would undermine the weak States’ economies and values. On the other hand, uprooting the Thirteenth, Fourteenth and Fifteenth Amendments would dismantle Federal power as we know it. I think the Federal government is much stronger than it should be. Still, I hesitate before taking any action that could result in confusing administration. How would you recommend dealing with the administrative burdens that your argument will inevitably cause?”

After more than a year, the Court rendered its opinion. Justice Scalia wrote for Chief Justice Roberts, Justice Scalia, Justice Thomas and Justice Alito. “Today, we end an era of Federal usurpment,” began Justice Scalia. “While we recognize that our Nation has come far in the years since the Civil War, we cannot countenance amendments to our Constitution procured by force. To allow the Thirteenth, Fourteenth and Fifteenth Amendments to stand is to sully the voluntary nature of our Federal system. We hold them invalid.”

Below, we print important passages from Justice Scalia’s opinion:

“This case is not about the morality of slavery or equality under law. This case is about power and procedure. Our Constitution limits power by spreading it evenly between the branches of the Federal government and between the States and the Federal government. Any action that impinges upon this careful power distribution threatens to undermine our Republic’s very foundations. The Constitution keeps power balanced between strong and weak States, as well as between the Federal government and the States. That is why the Framers made it exceedingly difficult to amend the Constitution.

“Constitutional amendments represent an overwhelming democratic consensus that the Nation should travel in a new direction. The Framers assured consensus in amendments by requiring supermajorities both in Congress and in every State legislature. In essence, they assured that the fundamental charter would not change simply because one party gained a temporary majority. Rather, they guaranteed that the Constitution would not change unless virtually everyone agreed to the proposed changes. These measures protect the rights of the minority as much as they allow for reasonable, democratic change. And they imply that only voluntary, informed consent to constitutional changes will prevail.

“Here, appellants provide compelling evidence that the North undermined the voluntary spirit behind the amendment procedure. The record discloses a calculated northern effort to intimidate, coerce and browbeat southern State legislators to ratify the Thirteenth, Fourteenth and Fifteenth Amendments. We observe that these Amendments were passed in 1865, 1868 and 1870, respectively. At that time, Federal troops occupied half of all States eligible to vote on the amendments. By Congressional act, the Federal Congress installed military governments in occupied southern States. Soldiers forced compliance with federal edicts. They stood guard in State houses. They threatened to shoot legislators who did not vote ‘yes’ on the amendments. When legislators spoke out against ratification, they were imprisoned, removed from office and replaced with northern puppets. These amendments passed because the North forced the defeated, war-weary South to comply at gunpoint.

“In short, this ratification procedure was not voluntary. As a matter of constitutional law, we hold that Article V requires voluntary supermajorities in both houses of Congress and every State legislature. It would mock our constitutional system to sanction hostile amendments procured by force or fraud. Just as force or fraud in contract formation invalidates the contract, so too does force or fraud in Article V’s amendment procedure invalidate the amendment. Here, we are convinced that the North unfairly used force to compel Southern legislatures to adopt the Thirteenth, Fourteenth and Fifteenth Amendments. We therefore hold the amendments void.

“The United States argues that Article V imposes no ‘voluntariness’ requirement on constitutional amendments. It tells us that the text simply requires that both the Senate and House of Representatives pass the proposed amendment by a two-thirds majority, and that three-quarters of State legislatures pass the proposed amendment by a majority vote. They point out that Congress passed each amendment by the requisite two-thirds majority, while every State passed the amendments by the requisite majority vote.

“We fail to see how this is significant. The United States did not contest appellants’ evidence that Federal troops compelled Southern legislators to ratify the amendments. If we accept the United States’ argument, we certify coercion and duress in constitutional law. We refuse to do so. We repeat our holding that Article V requires not just supermajorities in Congress and the State legislatures, but also verifiably voluntary consent to the proposed amendments. Any other rule would sanction lawlessness by federal agitators. We rebuke in the strongest possible terms the conduct of federal occupation forces during the Reconstruction era. They substituted force for fairness, and arbitrariness for procedure. Our Constitution does not tolerate brute force. It is a Constitution of legal principle, not powerful men. Without voluntary consent to the provisions housed in our fundamental charter, liberty means nothing.

“The United States further argues that even if there were flaws in the ratification procedures between 1865 and 1870, southern slaveholders long ago waived any right to contest them. A waiver is an intentional relinquishment of a known legal right. In these circumstances, we are unwilling to say that the slaveholders waived their rights to contest ratification because they never had a fair opportunity to exercise them. Northern occupation forces suppressed any effort to voice opposition to the amendments. Slaveowners who resisted the amendments were imprisoned or fined. In such a climate, it was impossible to waive because the North forbade the underlying rights. Waiver only applies when there is a reasonable possibility to assert the underlying right. In this case, disgruntled slaveowners had no reasonable possibility to assert their rights because northern military governors ruthlessly punished any attempt to do so. On that basis, we conclude that waiver does not apply. We further conclude that the slaveowners’ legal rights passed to their heirs. Appellants here have proven their ancestry to bona fide slaveowners and therefore have standing to press their forebears’ rights.

“We note that our opinion will significantly change our Nation’s legal landscape. We make several observations in this regard, and we order certain injunctive relief. At the outset, we express a collective sense of relief as federal judges because we will no longer need to consider whether the Fourteenth Amendment applies to constrict State governments. No longer will federal courts entertain claims that State action ‘deprives citizens of life, liberty or property without Due Process of law.’ This was a horrendously uncertain doctrine, and we are glad to abolish it. Further, we are glad that we no longer must contend with racially charged claims that State action deprives black citizens of ‘Equal Protection of the laws.’ Now, there is no more Fourteenth Amendment. States may freely discriminate on any basis, whether by race, ancestry, sex, sexual orientation, wealth, mental illness or marital status. No longer will federal courts lend a sympathetic ear to bitter minorities who feel they are being treated unequally. Without the Fourteenth Amendment, federal courts will have no basis to hear such nonsense. Additionally, there will no longer be claims for employment discrimination, sexual harassment or police brutality. The Fourteenth Amendment undergirded all these claims, and now it is gone. Federal judges will now have a much easier workload; and there will be far fewer dumb cases to hear, especially the ever-repeating ‘He-fired-me-because-I’m-black,’ or ‘He-arrested-me-because-I’m-black’ scenarios. Never again will federal judges be forced to sit through such unfounded, time-consuming racial venting.

“By invalidating the Thirteenth Amendment, we restore slavery to the United States. We believe this is a prudent choice. Our Framers intended to preserve slavery in the Constitution. Our federal Union would never have emerged if the Northern States had not assured the Southern States that they could retain slavery. Without slavery, the southern economy would have been worthless. Our Constitution specifically protects property rights against Federal encroachment. See Amendment V (“No person shall…be deprived of life, liberty or property, without due process of law.”). Furthermore, State laws in the South specifically allowed for property in slaves. The Thirteenth Amendment, however, summarily deprived every slaveowner of property without due process. No southern slaveowner had a chance to contest this sweeping federal encroachment. And in light of the historical evidence suggesting federal coercion in the amendment ratification process, we are energized in our conclusion that slaveholders suffered an immense historical wrong. Our entire social order depends upon stable property rights. If the Federal government can seize property by forcing State legislatures to comply with unjust constitutional commands, where is liberty? We restore slavery because we believe that property is the essence of American liberty.

“We are confident that the American people will respect our decision. Americans must be safe in their property rights, and they must be safe in the knowledge that their Constitution will not change unless every State has a fair chance to voluntarily consent to amendments. We are also confident that the American people will welcome our principled stand against bloated Federal powers and intrusive Federal courts. Now, neither the Federal Congress nor the Federal courts will have constitutional authority to interfere in State prerogatives concerning criminal law, race relations, employment or ‘fairness.’ No longer will arrogant Federal judges lord over State practices as roving ‘due process monitors.’ Our ruling will reassure States that they may rule themselves as they please, as long as they do not violate the explicit commands housed in Article I, § 10.

“From an administrative perspective, we order Congress to establish a Slavery Compensation Board (“SCB”) through which the descendants of slaveowners may seek fair market compensation, plus interest, for the unconstitutional losses caused by the Thirteenth Amendment. We further order the SCB to establish procedures to return the descendants former slaves to a condition of servitude. We leave it to the SCB to promulgate evidence requirements under which the descendants of slaveowners may prove their claims. Only those descendants truly entitled to compensation for lost slaves—and new slaves—may petition the SCB. We will not tolerate fraudulent attempts to obtain compensation or free slave labor.

“We express no judgment on the morality of slavery. As mentioned, this case is not about abstract justice or administrative convenience. This case is about constitutional procedure. The North abused constitutional procedure by enacting the Thirteenth, Fourteenth and Fifteenth Amendments. No length of time can cure that injury. That is why we take a principled stand today to correct it. As a substantive matter, we hold that the North abused property rights by forcing the South accept amendments that wrested slaves from law-abiding owners without compensation. The South never voluntarily consented to these amendments. As jurists, we do not express opinions about whether slavery is ‘naturally wrong.’ We merely follow written law; we do not write our subjective notions of ‘right’ or ‘wrong’ into the Constitution. Here, we observe that Article V clearly requires voluntary consent to constitutional amendments. We need no further basis to hold that the Thirteenth, Fourteenth and Fifteenth Amendments cannot stand. Any other result would disparage the fundamental, mutual consent between Federal and State authority upon which our Republic depends for continued strength.

For the foregoing reasons, we conclude that the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution were not properly ratified under the procedures enumerated in Article V. The amendments are therefore void. The judgment of the Court of Appeals for the Fourth Circuit is hereby REVERSED, and this case is REMANDED with instructions to reinstate the order of the District Court for the Eastern District of Virginia, McFarlane, J.

“It is so ordered.”

Following the ruling, Federal agents announced that President Obama is the property of one Mr. T. Jeff Tarrelton of Pine Nut, Arkansas. “My great-great-great-granddaddy owned that negro’s great-great-great-great-granddaddy. So I’m a comin’ back to get what’s mine,” said Mr. Tarrelton.

No claim has yet been made on Justice Thomas.

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