The Supreme Court is hardly infallible. It makes mistakes, and sometimes those mistakes are huge. Among other abuses, Court decisions have resulted in, or justified after the fact, the continued enslavement of African Americans before the Civil War, their segregation after the war, the forced sterilization of poor and minority woman, the internment of 120,000 citizens of Japanese ancestry, and the taking and destruction of middle-class homes in Connecticut to help a multinational pharmaceutical company move into the former neighborhood.
Most often when the Court gets into trouble with a bad ruling, it’s because a majority of the Justices feel compelled to reach a result that seems to be right at the time—even when the ruling really cannot be justified by the words of a statute or the text of the Constitution. To avoid making even more mistakes, legal scholars and some Supreme Court Justices have in recent years championed a method of statutory or constitutional interpretation known as “originalism” and sometimes as “textualism.” This is in contrast to another method of interpretation called “living constitutionalism.”
Under originalism, the Justices will look at the words of a law or provision of the Constitution and try to decide what they meant at the time the law or constitutional provision was first adopted. And if circumstances have changed, we try to determine how the words best fit in today’s world. For example, we know that the First Amendment’s guarantee of a free press was meant to prevent government censorship of newspapers and periodicals. But how does that fit the internet? By most analyses, the internet fits well within the meaning of “press” that existed centuries ago, and therefore courts should find that government censorship of the internet is unconstitutional. But sometimes, the Court has strayed from or even ignored the language of the words of the Constitution. When it has done so, we have suffered serious violations of our civil liberties. Four such mistakes are described below.
Slavery extends to the free states in Dred Scott v. Sandford
One of the most infamous decisions of the Court was made just before the Civil War and may have contributed to the war being fought in the first place. Dred Scott was a Black slave whose owner took him from Missouri, a state where slavery was legal, into Illinois and the Wisconsin Territory, both where slavery was not legal. Of special note, slavery wasn’t legal in the territories like Wisconsin because of the “Missouri Compromise,” a law passed by Congress in 1820 that said that in exchange for making slavery legal in Missouri, it would be outlawed in other territories north and west of Missouri.
Mr. Scott was later taken back to Missouri by his owner. There Scott, aided by some friendly abolitionists—people who argued against slavery—sued for his freedom. He claimed that because he had been in Illinois and Wisconsin, where slavery was outlawed, he was a free man and could no longer be owned. In a long-drawn-out legal battle, Scott lost in the Missouri courts. He then sued his owner, John Sandford, in federal court, arguing among other things that Sanford had assaulted him, his wife, and his child.
After losing in the trial courts, Dred Scott’s case reached the Supreme Court. There, in 1857, with seven Justices in favor and only two opposed, the Court issued the most notorious opinion in its entire history. Writing for the Court, Chief Justice Roger Taney ruled that the case had to be thrown out because African Americans could not be citizens of the United States and only citizens could sue in federal court.
There was no basis for such a ruling anywhere in the Constitution. In fact, there had been a long history of African Americans having full citizenship rights in the original free states in the North. But as bad as that ruling was, the Court didn’t stop there. Justice Taney also ruled that the Missouri Compromise was unconstitutional—meaning that the institution of slavery could be imported into the northern territories.
Taney believed that by ruling once and for all that Blacks couldn’t be citizens and couldn’t gain freedom when they moved into a free state, and that more territories could become slave states, he would put an end to the controversy surrounding slavery. In fact, just the opposite happened.
The American public outside of the southern slave states was outraged by the decision. The abolitionists redoubled their efforts to end slavery, ultimately electing Abraham Lincoln as the nation’s 16th president. That in turn led to the Civil War and the deaths of over 620,000 soldiers from the North and the South.
After the North won the Civil War, the nation adopted the 13th Amendment, which outlawed slavery nationwide, and the 14th Amendment, which granted full citizenship rights to all Americans, including the former slaves. With these amendments, the words of the Declaration of Independence that “all men are created equal” were finally given substance. But even after these amendments, the Court has allowed rights to its citizens to be ignored.
Forced sterilization of a young mother in Buck v. Bell
In 1924, when she was 17 years old, Carrie Buck was raped and made pregnant by her adoptive mother’s nephew. To avoid scandal, her family shuttled her away to the Virginia State Colony for Epileptics and Feebleminded. Because Carrie’s birth mother was allegedly an unintelligent prostitute, and because Carrie and her child weren’t considered to be very smart either, the colony’s superintendent determined that Carrie should be sterilized against her will after Carrie gave birth to her illegitimate child, Vivian.
Virginia had a state law that was based on the now-discredited scientific theory of eugenics. The law promoted the idea that if unintelligent and unfit people were denied the ability to reproduce, the human race could be improved. To accomplish this, the state would sterilize males and females judged to be “mental defectives.”
Ms. Buck’s appointed lawyer argued that the forced sterilization violated her rights under the Due Process Clause of the Constitution. The Supreme Court did not agree. In an opinion by Justice Oliver Wendell Holmes, the Court was unsympathetic to Carrie Buck. Referring to an earlier case where the Court upheld forcing people to receive smallpox vaccinations, the Court wrote:
[I]n order to prevent our being swamped with incompetence… [i]t 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. … Three generations of imbeciles are enough.
With this decision, the Court virtually eliminated the constitutional rights of the developmentally disabled. After this decision, many states that lacked forced sterilization laws adopted them. Over the years since, more than 62,000 people, almost all poor and minority women, were sterilized against their will. Some women, like one of Carrie Buck’s sisters, were sterilized, without even being told, when they had other surgeries performed. Since this 1927 decision, the science of eugenics has been totally discredited, especially after it was used in Nazi Germany to murder over 6 million mentally ill, homosexuals, Romani, and Jews, among others. But even after the Second World War, there were forced sterilizations in the United States until 1981.
As for Carrie Buck and her child Vivian, neither turned out to be “imbeciles” as the Court said. Carrie later married, held a steady job, and was an avid reader her entire life. She had always regretted not being able to have other children. Vivian was an above-average student in elementary school until she succumbed to measles.
Forced internment of American citizens in Korematsu v. United States
After the Pearl Harbor attack in 1941, there was a great panic in the United States about the potential that American citizens with Japanese ancestry might be disloyal and become spies or engage in acts of sabotage. As a result, President Franklin Roosevelt ordered over 112,000 people with Japanese backgrounds from coastal regions into internment or concentration camps, where they were kept behind barbed wire for the duration of the war. Often, they were given very little time to put their affairs in order and they were forced to sell their farms and other properties for less than they were worth. There was no proof that the internees were disloyal to their adopted country. Unlike the concentration camps in Germany, the conditions in America’s camps were humane. Nevertheless, the forced relocation of American citizens into such camps surely had constitutional problems. However, the Supreme Court did not see it that way.
Twenty-three-year-old Fred Toyosaburo Korematsu refused to go to an internment camp, and he fled his home in San Leandro, California, to hide out in Oakland. He believed that he should have been given a chance to prove his loyalty with a trial before being imprisoned. He was caught and arrested and tried for disobeying the internment order. As the Supreme Court later noted, there was no question that Mr. Korematsu was a loyal American citizen.
By the time his case reached the Supreme Court in 1944, the war was almost over. Nevertheless, the Court decided it would not second-guess the decisions of our military leaders made at the beginning of the war. While it admitted that forcing people into camps was a hardship, the Court also wrote that “hardships are part of war, and war is an aggregation of hardships.”
In 1868, after the Civil War, Americans adopted the 14th Amendment to the Constitution in order to put an end to discrimination. That amendment reads, in part, that:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Imposing a special hardship on people solely because of their ancestry and without any proof of disloyalty is precisely the sort of thing that the 14th Amendment was designed to stop. What if we were at war again with England? Would that justify locking up all Americans with English ancestry in concentration camps? After all, when we fought the Revolutionary War, almost all of the American rebels had been born as British subjects.
The Court understood that its role was to protect the civil liberties of all Americans, but it claimed that the order that forced Americans like Mr. Korematsu into camps “was not because of hostility to him or his race.” That was a legal fiction to provide window-dressing for a blatant violation of the Constitution. In the years since the war, historians have documented that there was, in fact, a great deal of anti-Japanese racism at the time. There were California farmers who were happy to get rid of their competition and many newspapers that described the Japanese in very unflattering terms.
Although the Court has never formally overruled Korematsu, the Court has since disavowed its reasoning, and the nation has recognized the camps were a profound mistake. In 1976, President Gerald Ford issued a formal apology. In 1988, President Ronald Reagan signed a law that gave $20,000 to each surviving detainee. Shortly before he died in 2005, Fred Korematsu’s last words to his sister were, “I'll never forget my government treating me like this. And I really hope that this will never happen to anybody else because of the way they look, if they look like the enemy of our country.”
The government takes private homes for the benefit of a drug company: Kelo v. New London, Connecticut
Suzette Kelo lived happily in a nice little pink house with her neighbors in a working-class neighborhood in New London, Connecticut. Many of the residents had lived in that neighborhood for their entire lives. One elderly widow had even been born in her home early in the prior century. But New London was a tired little city that had seen better days. And the politicians began to hatch a plan.
They offered tax breaks and free land to a multinational drug company in order to lure it to build its headquarters in New London. Because the free land was occupied by the homes in Suzette Kelo’s neighborhood, the city said it would condemn and tear down those homes. But Kelo and many of her neighbors didn’t want to move—even if the city paid them for their homes. She sued the city, with the help of the Institute for Justice.
Governments have the power of eminent domain—which is the ability to condemn and take private property. But the Constitution’s Fifth Amendment says that private property can be taken only for a “public use” and with the payment of “just compensation.” Now it is pretty clear that taking private property for a public highway, military fort, or post office falls within the definition of “public use.” But is it a public use to take a private home from one owner and give it to a privately owned drug company?
At one time the answer would have been clearly “no.” In 1798, the Supreme Court wrote:
government can scarcely be deemed to be free where the rights of property are left solely dependent upon the will of a legislative body without any restraint. . . . We know of no case in which a legislative act to transfer the property A to B without his consent has ever been held a constitutional exercise of legislative power in any State of the Union. On the contrary, it has been consistently resisted as inconsistent with just principles by every judicial tribunal in which it has been attempted to be enforced.
But by 2005, when the Court decided Suzette Kelo’s case, the Court had strayed from the language of the Constitution. Instead of requiring that there be a “public use” for a taking, the Court said simply that there had to be a “public purpose.” And in New London, the extra tax dollars that a drug company would bring in was public purpose enough. Once again, by ignoring the plain words of the Constitution, the Court permitted an injustice to occur.
Not all the Justices agreed. Sometimes a Justice will write a dissent to explain why she thinks the majority’s decision is wrong. In the Kelo case, Justice Sandra Day O’Connor wrote, “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Many people were outraged by the decision and several states passed new laws prohibiting local and state governments from taking private homes for such private uses. But the decision remains on the books. It has not yet been overturned, and in some states people’s homes are not safe from private use condemnations. In New London, Ms. Kelo’s neighborhood is gone. But the drug company left town a few years later once its tax breaks ran out, and all that is left are weed-filled empty lots occupied by feral cats.
In the end, this case was about more than some homes and private property. It was about whether the Court will be serious about protecting our constitutional rights even when it would be easier not to, and even when the government can accomplish worthy goals if it ignores individual rights. Sometimes, as with these decisions, the Court fails its fundamental duty to protect our rights by ignoring the clear language of the Constitution. If nothing else, these decisions remind us that even the Supreme Court is fallible and that our history is filled with examples of where we should have done better. These are lessons that we must carry forward so we do not forget that we must safeguard all our liberties—even when they are held by people who are unpopular because of their race, religion, political philosophy, or ethnicity. Looking back at these decisions, we trust that the Justices will think, “We’ve made mistakes; let’s try very hard not to make any more.”
Conclusion
When the Court ignores the language of the Constitution, it has done the most damage to individual rights. While the Court may have thought it was doing the right thing by supporting a government policy it liked—whether that be economic development, the waging of war, the improvement of the human race, or the institution of slavery—it has badly misstepped when it has ignored the words of the Constitution. If it had followed the words of the Constitution, Mr. Scott would have been freed, 62,000 people would not have been sterilized against their will, Fred Korematsu and 112,000 others wouldn’t have been sent to concentration camps, and Suzette Kelo would still be living in her little pink house.
