Law Links - May 2017

Dean Gardner speaks on transforming American democracy

The Bar Association of Erie County hosts an annual luncheon in recognition of Law Day, a celebration of the importance of law in society. Interim Dean James A. Gardner delivered the keynote address on the 14th Amendment and its impact on the evolution of American democracy:

Law Day is a fitting occasion to remember that the rule of law has never been more important than it is today. The rule of law is universally viewed as an indispensable condition for popular self-rule – that is, for democracy. I’m honored to have the opportunity to address this year’s Law Day theme: the role of the Fourteenth Amendment in transforming American democracy.

The Fourteenth Amendment was indeed instrumental in the story of the growth and evolution of American democracy. But the real difference was made by a concerted, joint effort of all three branches of the national government in the 1960s and 70s to bring American democracy into the twentieth century. On Law Day, this teaches a useful lesson about the limits of law: good laws are necessary, but they are not enough; they need good officials to respect them, to believe in them, and to implement them energetically.

Condition of American democracy before the Fourteenth Amendment

Prior to the enactment of the Fourteenth Amendment, the condition of American democracy was poor by contemporary standards. The Founders were men of the eighteenth century, and like others of their generation, they inherited an eighteenth-century ideology often known today as “republicanism.”

Eighteenth-century republicanism was not kind to ordinary citizens. It held that ordinary people are not competent to evaluate policy or the work of officials. Ordinary people were believed to possess a certain kind of competence, but it was a competence limited to judging the content of a man’s character. On matters of policy and governance, republicans believed that the elite should guide the masses. Ordinary people were thought to be slaves of passion; they lacked self-mastery, and were ruled by base, emotional reactions. Consistent with a view dating back to classical Greece and Rome, democracies were seen as turbulent, a kind of mob rule.

Politics, during the early days of the American republic, was utterly dominated by elites. The candidates were gentlemen, they were chosen for candidacy by other gentlemen, and they were elected by gentlemen. Public participation was low. Turnout in the first six presidential elections averaged just twenty-three percent.

And then there was the little matter of chattel slavery. Slavery in the American republic was not merely a phenomenon of social arrangements or property, but a political condition that totally extinguished the political rights of the slave population. At the same time, restrictions on eligibility to vote were commonplace. One had to be free; usually (though not always) one had to be male; usually (though not always) one had to be white; and usually (though not always) one had to own property, and in some states the property restrictions were severe.

At the same time, the institutions of representation in the early republic were poor. The slaveholding states – and thus slaveholders themselves – were grossly overrepresented in institutions of the national government. The three-fifths clause, which counted slaves as three-fifths of a person for purposes of allocating representation in the House, had a huge impact on the distribution of political power in the early republic. During the 62 years between the inauguration of George Washington in 1788 and the Missouri Compromise of 1850, the presidency was held by a slaveholder for 50 years, the Speaker of the House was a slaveholder for 41 years, and the chair of the House Ways and Means Committee – the most powerful congressional committee – was a slaveholder for 42 years. The only men to be reelected president were all slaveholders. Half of all federal office holders during this period were southerners even though the north had double the free population. After his election in 1800, Thomas Jefferson was in the north sometimes called the “Negro president,” not because of his romantic dalliances with slaves, but because he owed his electoral college votes to non-voting slave populations in southern states.

Nor did the federal Constitution provide any rights of political participation. It contained no right to vote. Moreover, under Art. I, § 2, eligibility in federal elections was made parasitic on state standards; whatever eligibility requirements states set for their own state legislatures were incorporated by reference as eligibility standards in voting for federal Representatives.

American attitudes toward democracy began to change rapidly, however, during the 1820s and 1830s, a period sometimes referred to as the “Jacksonian revolution.” The

ideology of republicanism, with its disdain for ordinary people, was not only discarded, but inverted. During the Jacksonian period, Americans came to believe not only that ordinary people are capable of self-rule, but that ordinary people are actually superior in virtue to their elected representatives, a belief that persists to this day.

There was, during this period, a rapid drive toward universal white male suffrage, and by 1860, all but five states adhered to that policy. Many offices became elective during the Jacksonian period – most significantly judicial offices, but also many local and lower level executive offices. However, although this movement had a profound impact on state constitutions, it had no impact whatsoever on the U.S. Constitution, which remained a document of the eighteenth century.

The Fourteenth Amendment

That brings us to the Fourteenth Amendment, which was ratified in 1868. The Fourteenth Amendment addresses democracy, but it is limited in its scope almost entirely to the worst problem of American democracy: the political effects of slavery. Slavery had already been eliminated by the Thirteenth Amendment in 1865. The Fourteenth Amendment deals instead with the social and political consequences of emancipation.

Section 1 makes the freed slaves citizens of their states and of the United States, reversing the Supreme Court’s decision in Dred Scott v. Sanford. It is important to note, however, that the Fourteenth Amendment does not address the political aspirations of the newly freed population by granting a right to vote to freemen, or to anyone else. Although all state constitutions contain an affirmatively expressed right to vote, the Fourteenth Amendment takes a different approach: Section 2 creates a structural solution to problems of representation using a system of incentives. Specifically, under Section 2 of the Fourteenth Amendment, states that continue to disenfranchise their black population (or their poor white populations, for that matter) lose representation in the House of Representatives in proportion to the extent to which they disenfranchise their own adult, male populations. An incentive system can provide no guarantee of better behavior, but it did create a form of political punishment for political malfeasance, which was something new and extraordinary.

The Fourteenth Amendment is of course best known for creating individual rights to equal protection and due process. But those rights lay dormant for a century. In fact, the Fourteenth Amendment was obviously understood as insufficient in the area of voting, for it was followed almost immediately by the Fifteenth Amendment, in 1870, which expressly outlawed discrimination in voting on the basis of race, color, or previous condition of servitude.

Finally, Section 5 of the Fourteenth Amendment provided, for the first time since the founding, a new power to Congress : the power to enforce the Fourteenth Amendment. In practical terms, this proved to be the most important provision.

Developments following ratification of the Fourteenth Amendment

With the Fourteenth Amendment in place, what happened? Not much. Congress, to be sure, did use its new authority to enact the nation’s first civil rights laws, the Enforcement Act and Ku Klux Act (both 1871). These statutes enforced the Fourteenth and Fifteenth Amendments by providing legal tools for the suppression of private violence against newly freed black citizens attempting to participate in politics for the first time.

However, these pioneering statutes were simply ineffective in the face of determined Jim Crow resistance in the states of the Old Confederacy. Jim Crow was mainly a movement of social subordination, but it had a very strong component of political subordination. After all, social subordination can’t be successful if the subordinated exercise power in the political arena. Consequently, Jim Crow aimed to reproduce the political conditions of racial subordination that had preceded the Civil War.

Thus, notwithstanding the Fourteenth and Fifteen Amendments, southern states did all they could to prevent black populations from exercising political power. Their tactics, now infamous, have served as a model for oppressive regimes ever since. They included denial of eligibility to vote, denial of the opportunity to register, grandfather clauses, poll taxes, literacy tests, white primaries, racial gerrymandering, at-large voting systems, and felon disenfranchisement laws, among others – all standard tools of racial discrimination in the distribution of democratic political participation.

Correspondingly, the individual rights provisions of the Fourteenth Amendment were crippled during the late nineteenth century by a series of hostile Supreme Court decisions contracting the reach of the Amendment and narrowing or invalidating federal laws enacted to enforce it.  The nail in the coffin was provided by the Repeal Act of 1894, which repealed virtually all of the Reconstruction civil rights legislation enacted by Congress. It pains me to say it to this audience, in this place, but the Repeal Act was signed by Buffalo’s own Grover Cleveland, who was a Democrat at a time when being a Democrat meant opposing Reconstruction and opposing the use of federal power to restrict state decisions about the internal allocation of political power.

The South during this period remained almost entirely undemocratic. As political scientist Edward Gibson has written in a new book, Boundary Control, it was an “authoritarian enclave.”  Within that enclave, the Fourteenth and Fifteenth Amendments became entirely unfulfilled promises. Any subsequent progress in democratization was the result not of enactment of the Fourteenth and Fifteenth Amendments, but of mass political movements, beginning with the rise of Progressivism in the early twentieth century. The Progressives were responsible for reforms such as the secret ballot, which broke the control of elections by party machines; extension of the franchise to women by the Nineteenth Amendment (1920); and the introduction at the state and local levels of mechanisms of direct democracy such as the initiative and referendum. Despite some significant flaws – for example, its ethnic bigotry – Progressivism was a highly democratizing movement.

The Civil Rights Movement

What finally turned the tide in the development of American democracy was the Civil Rights Movement – not just for blacks, but for everyone. We all know the story: organized, mass protests, culminating in the televised brutal suppression of peaceful demonstrators, an image that galvanized the nation. The President and Congress quickly responded with the Civil Rights Act (1964), and the Voting Rights Act (1965).

At the same time, the Warren Court entered the picture, pioneering a new constitutional jurisprudence of civil rights that relied heavily on Section 1 of the Fourteenth Amendment. There is much truth to the observation by legal historian Scot Powe that the mission of the Warren Court may usefully be characterized as dragging the South kicking and screaming into the twentieth century.

The Court’s intervention began with Brown v. Board (1954), which desegregated public schools, but also dramatically reinvigorated the Equal Protection Clause, making it a meaningful instrument for the pursuit of national policies of democratization. The Court also revitalized the Due Process Clause through its Fourteenth Amendment incorporation decisions. Those groundbreaking rulings for the first time applied the federal Bill of Rights to the states through the Fourteenth Amendment’s guarantee of due process of law.

Many of the Court’s decisions concerned the political process. It gave a generous construction to Congress’s Section 5 power, and in Katzenbach v. Morgan the Court sustained federal legislation banning literacy tests, well-known as a device to keep blacks from registering to vote. The decision also reversed the Court’s prior practice of invoking federalism to shield states from the consequences of vote suppression.

Interestingly, the Court also managed to find a right to vote in the Constitution. As I’ve said, unless state constitutions, the U.S. Constitution contains no language granting an affirmative right to vote, not even after the Fourteenth and Fifteenth Amendments. Nevertheless, the Court found it needed a right to vote to accomplish its goals, so it created what I call a “springing” right. As the Court has explained it, under the U.S. Constitution a state is under no obligation to grant the right to vote to anybody. But if it does do so, any lines it draws must comport with equal protection. Moreover, the Court deemed this hidden right to vote so fundamental that it applies strict scrutiny to laws allocating the franchise.

The Court deployed this new tool aggressively, invalidating many voting qualifications and pushing the nation strongly toward a uniform system of universal suffrage. During this period, the Court struck down poll taxes; invalidated restrictions on voting by uniformed military; invalidated excessively long durational residency requirements; struck down property ownership requirements for voting for local offices; and invalidated land ownership requirements for voting for special districts. It developed a robust jurisprudence where eligibility restrictions were scrutinized skeptically, and almost none survived. The only significant voting eligibility restriction that made it through was disqualification for commission of a felony, which the Court held received express approval in Section 2 of the Fourteenth Amendment.

The Court also during this period invoked the Fourteenth Amendment to develop a wholly new jurisprudence of representation: the doctrine of one person, one vote. States had long based representation in state legislatures and Congress on communities with fixed boundaries, such as counties, parishes, and towns. As urbanization occurred throughout the twentieth century, populations across districts became wildly imbalanced; sparsely populated rural areas sometimes received as much representation as densely populated cities and suburbs. In a series of cases, the Court developed the one person, one vote doctrine and applied it to elections for Congress, state legislatures, county and municipal legislatures, and most kinds of special districts – a development that gave us the decennial spectacle of redistricting.

The Court went on to deploy the Fourteenth and Fifteenth Amendments to attack both racial gerrymandering and partisan gerrymandering, though unfortunately, the Court to this day has never fully effectuated its holding that partisan gerrymandering is unconstitutional on account of being unable to agree on the constitutional standard to be applied. Again invoking the Fourteenth Amendment, the Court invalidated hobbling restrictions on the ability of minor parties to compete in the political arena, including excessive signature requirements, heavy filing fees, and burdensome filing deadlines.

Under the Due Process Clause, the Court’s incorporation doctrine had a huge impact on the quality of democracy, primarily in its application of the First Amendment to laws regulating campaign speech and finance. In the seminal case of New York Times v. Sullivan, the Court invalidated state libel laws that protected elected officials from criticism of how they do their jobs. And in the area of campaign finance, for better or worse, the Court deployed incorporated principles of free speech to invalidate virtually all laws that regulate campaign spending. The current political landscape owes much to these important decisions.

The present state of American democracy

So how are things now? In my view, there has been considerable backsliding. The Rehnquist and Roberts Courts have been quite hostile to a strong role for the Fourteenth and Fifteenth Amendments in policing democratic practices. In recent decades, the Court has dialed back the congressional power to enforce those two amendments, culminating in the decision in Shelby County, which eviscerated the Voting Rights Act. In Citizens United, the Court overturned longstanding bans on corporate spending in the political arena. Overall, the Court has moved aggressively to dismantle all regulation of speech and spending, imposing under the Fourteenth Amendment a laissez-faire model of politics in which power acquired in the economic domain can be readily traded for power in the domain of politics.

Many also criticize the condition of American democracy on other grounds: poor, amateurish administration; excessive decentralization; excessive partisanship instead of professionalism, and so forth. All this points, in my view, to defects of constitutional design. The U.S. Constitution, as I have said, is not prescriptive about the forms and practice of democracy. But without more specific guidance from the people about how democracy should be practiced, government officials have too much latitude in how to construct democratic practices – or at least now seem more willing to use that latitude than has been the case in forty or fifty years.

An opportunity

Interestingly, an opportunity is arising soon for New Yorkers to take the lead in developing democratic institutions and practices that could serve as models nationwide. Our own politics in New York are remarkably undemocratic. There state legislature is notoriously gerrymandered, party leaders often thwart popular participation in candidate selection through cross-endorsement deals, and there is an alarming lack of a culture of ethical representation and responsiveness in Albany. Sadly, there appears to be no prospect in sight of legislative self-policing. In November, we get to decide whether to call for a constitutional convention to address these problems. I will be voting yes, and I sincerely hope a convention is seated and gets to work revising existing practices to show the nation and the world that good laws can make a real difference in the quality of democratic self-rule.

Thank you!