When Thomas Jefferson wrote in the Declaration of Independence that "all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness," he could not have meant then what we understand these words to mean today.
When the framers of the government wrote in the Constitution that "No person shall be...deprived of life, liberty, or property, without due process of law," and that the Constitution is "the supreme Law of the Land," they conveniently omitted a definition of the word person. When presidents from Abraham Lincoln to Woodrow Wilson to Franklin Delano Roosevelt enforced two sets of laws themselves—one that treated whites fairly and one that treated blacks unfairly—or permitted the government to conduct gruesome medical experiments on black men, what did they think of their oaths to uphold the Constitution?
Jefferson's immortal words in the Declaration attached the new nation's soul to what lawyers and judges call the natural law. But when he bought and sold slaves, Jefferson rejected the natural law for himself, in favor of what lawyers and judges call positivism.
Natural law teaches that our rights come from our humanity. Since we are created by God in His image and likeness, and since He is perfectly free—or, if you prefer, since we are creatures of nature born biologically dependent but morally free—freedom is our birthright. Liberty comes from our humanity, not from an outside source such as the government.
Had the framers and their successors adhered to these beliefs for all persons, there could have been no slavery, no Jim Crow, no public segregation, and none of the evils they spawned.
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|In October 2007, Judge Andrew Napolitano told a Reason audience that "George W. Bush has shown less fidelity to the Constitution than any president since Abraham Lincoln." Click above to watch.|
Unfortunately, positivism reared its ugly head. Positivism teaches that the law is whatever the lawgiver says it is, providing the rule is written down. Under positivism, so long as the legislature in a democracy was validly elected and followed its own rules in enacting a law, the law is valid and enforceable no matter what it says.
From the beginning of the settlement of the American colonies, the government sometimes enforced the natural law for whites but almost always enforced laws based on positivism for blacks. From slavery to war to Reconstruction to Jim Crow, the government presumed to pick and choose whose rights to respect and whose to reject, and it did so based on race.
The ultimate positivist rejection of the natural law happened to Dred Scott, a slave who sued for his freedom and lost. The sophomoric ratiocinations, moral contortions, and collectivist absurdities articulated by the Supreme Court of the United States as it purported to justify legally human slavery in Dred Scott v. Sandford spawned 150 years of horrific treatment of blacks that destroyed lives and suppressed freedom.
The Constitution's Original Sin
Slaves represented approximately 40 percent of the Southern population in 1789. Because apportionment was the vehicle through which interests would be represented in the new government, the more representatives were apportioned to a State, the more powerful that State would become. The number of allotted representatives was determined by population. Thus, Southern interests would be significantly threatened if slaves were not fully counted. Conversely, the North did not want the slaves counted at all in order to curtail Southern influence.
The result was the Three-Fifths Compromise. Widely considered to be the chief pro-slavery clause in the Constitution, it epitomized the racism of the document—as it reduced each slave to three-fifths of a person, a reflection of the inferior, subhuman class blacks would come to represent in the coming decades. Inherent in this compromise is a bitter irony, as it was the Southern slaveholding states that wanted slaves counted as full persons while the North and its abolitionists wanted slaves to remain uncounted; the slaves themselves, of course, had no say whatsoever in their constitutional standing.
Throughout the 19th century, American courts would repeatedly put the judicial stamp of approval on the institution of slavery. In 1804, the State of New Jersey enacted a law that declared "every child born of a slave, after the fourth of July of that year, should be free, but remain the servant of the owner of the mother until he or she should arrive at a specified age." The act was intended to abolish slavery gradually in New Jersey. In 1844, though, the state adopted a new constitution that held that "all men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness." Abolitionists brought suit claiming that this provision of the new New Jersey Constitution prohibited slavery in the State irrespective of the 1804 act.
Justice James S. Nevius, writing for New Jersey's highest court in 1845, disagreed. In State v. Post, he found that if the state had wanted to abolish something as paramount as slavery, it would have done so explicitly and not through some "doubtful construction of an indefinite abstract political proposition." Further, he noted that American slavery as a whole had existed alongside the similarly constructed Declaration of Independence and that this was demonstrative that those general declarations in favor of liberty were not incompatible with the provisions that recognized slavery.