A People's History of the Supreme Court

by Peter Irons

  Madison continued his crusade for religious toleration through the Revolution and into the period of independence. His patience was still taxed by efforts of the Church of England in Virginia, renamed the Episcopal Church, to retain its status as the established denomination. Working closely with his friend and mentor Thomas Jefferson, Madison drafted and the Virginia legislature enacted in 1785 “An Act Establishing Religious Freedom.” The law provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatever, . . . nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.” Jefferson later wrote that Madison’s law was “meant to comprehend within the mantle of its protection the Jew and the Gentile, the Christian and Mahometan, the Hindu an Infidel of every denomination.”

  Jefferson’s words reveal an attitude toward religious diversity that the Puritans had totally rejected. But it took another century and a half before the Supreme Court, first began to enforce Madison’s crowning achievement. the religion clauses of the First Amendment. And even today, despite Jefferson’s words, Jews and Muslims, Hindus and atheists, the “infidels” of our time, face hostility in communities across the country in which latter-day Puritans try to enforce their opposition to “anything that can be proved to be morally sinful by the word of God.”

  The exclusion of women from government, church, and the courts did not set the colonies apart from England, or from any other country at that time. Their legal status as “wards” of husbands stemmed from centuries of English common law and biblical precepts that reflected male domination of every institution in society. Saint Paul laid down as Christian doctrine in his letter to the Ephesians the attitude toward women that became written into English and colonial law: “Wives, be subject to your own husbands, as to the Lord. For the husband is the head of the wife, as Christ also is the head of the church He himself being the Savior of the body. But as the church is subject to Christ, so also the wives ought to be to the husbands in everything.”

  The legal term for the status of married women was “coverture,” which meant that wives were “covered” by their husbands in all areas of life, especially the control of property. With few exceptions, husbands could buy and sell property of any kind, real or personal, without the wife’s permission. In turn, wives could rely on courts to force husbands to provide them with the necessities of food, clothing, and shelter. An English resolution, submitted to Parliament in 1632 at the time of the Puritan settlement of Plymouth Bay, set out “women’s rights” in these terms: “Eve, because she had helped to seduce her husband, had inflicted upon her a special bane. See here the reason . . . that women have no voice in Parliament. They make no laws, they consent to none, they abrogate none. All of them are understood either married, or to be married, and their desires are to their husbands. The common laws here shaketh hands with divinity.”

  In one respect the laws of most colonies provided women with a right not shared by their sisters in England. Although a Protestant country, England retained the Catholic attitude toward divorce and made it virtually impossible to obtain. Perhaps because of Puritan abhorrence of Catholicism, the Plymouth Bay colony and most others allowed for divorce in cases of adultery and desertion. The Connecticut law of 1656 provided that “if any married person [be] proved an adulterer or an adulteress, . . . a separation or divorce shall, by sentence of the Court of Magistrates, be granted and published, and the innocent party shall in such case have liberty to marry again. . . . That if any husband shall, without consent, or just cause, shown, willfully desert his wife, or the wife her husband, . . . the husband or wife so deserted may justly seek and expect help and relief, according to I Corinthians 7:15.” The reference in this law to Saint Paul’s command that if an “unbelieving” spouse leaves a “believer” in Christ, “the brother or the sister is not under bondage in such cases” reflects again the colonial coupling of law and scripture, even though most colonists regarded marriage as a civil contract, with legal remedies available for its breach.

  The court records of the colonies show both the legal status of women as a form of property and regard for their well-being in cases of husbandly neglect or abuse. The Plymouth Bay court in 1659 ordered “the wife of John Spring of Watertown,” who had deserted him several years earlier, “to return with all convenient speed to her husband. . . . In case she shall refuse to attend this order, the court will take a speedy course to send her to her said husband.” On the other side, a jury in the same court in 1666 found that John Williams had defamed his wife, Elizabeth, by calling her a “whore” and ruled, “It is not safe or convenient for her to live with her husband, and gives her liberty at present to depart from him. . . . The court orders him to apparel her suitably at the present, to furnish her with a bed and bedding and such like necessaries, and to give her ten pounds yearly while she shall be thus absent from him.”

  The voices of women who chafed under the bonds of paternalism in the colonial period were few and faint. Even Abigail Adams, the strong-willed wife of John Adams, the revolutionary leader and future president, confined her feminist complaints to letters to her husband. Shortly before John Adams helped in drafting the Declaration of Independence in 1776, Abigail wrote to him: “I long to hear that you have declared an independency—and by the way in the new code of laws which I suppose it will be necessary for you to make I desire you would remember the ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice and no representation.”

  This early (and private) appeal for women’s suffrage fell on deaf ears. After the Revolution, the legal status of women slowly improved, particularly in the reformation of property laws. The New York legislature passed a law in 1849 that discarded the doctrine of coverture and provided that “Any married female may . . . convey and devise real and personal property, and any interest on estate therein, and the rents, issues and profits thereof in same manner and with like effect as if she were unmarried.” But women were still denied a voice in making the laws until Congress and the states amended the Constitution in 1920 and granted women the right to vote. And not until 1971 did the Supreme Court, in striking down an state law that gave preference to men over women in administering estates, rule that women were covered by the Equal Protection Clause that granted legal rights to former slaves.

  Slaves, of course, had no legal rights in colonial America. They were ruled by law, but they had no recourse to the courts to enforce the rights that white “freemen” enjoyed. The importation of Africans into the colonies began in 1619 (some accounts say 1620) with the arrival in Virginia of a “Dutch man of war” that carried a cargo of twenty blacks. These first African Americans were not, in fact, brought as slaves but as indentured servants, who would be freed after serving their masters for a term of years. Some of these early black arrivals later showed up on the colony’s rolls as free men. Although court records and statutes in Virginia and other southern colonies mentioned blacks in the forty years after 1619, their legal status was unclear before 1659, when the Virginia legislature first passed laws that used the term “slave” and applied it solely to blacks. After that time, virtually all blacks imported into the colonies arrived as slaves and were generally sold at auction.

  The differences between northern and southern colonies over the legal status of blacks were slight, since all the colonies (even the Quaker colony of Pennsylvania) accepted the institutions of slavery. The colonies differed largely in the number of persons held in slavery and the harshness of the southern “black codes” that provided for the whipping and execution of slaves who tried to escape or had the au
dacity to disobey or assault their owners or other white people. The Body of Liberties of Massachusetts Bay colony stated in 1641: “There shall never be any bond slavery . . . amongst us unless it be lawful captives taken in just wars, and such strangers as shall willingly sell themselves or are sold to us.” These loopholes, of course, allowed for slavery in Massachusetts, and the colonial census of 1754 listed 2,445 black slaves over sixteen years of age. At that time, slaves made up almost 20 percent of the male laborers in New York City and Philadelphia.

  The southern colonies had far more slaves than their northern neighbors and far more problems with “refractory” slaves who resisted their masters. The force and violence. The Virginia legislature passed a law in 1669 that acknowledged the difficulty of dealing with “the obstinacy of many of them by other than violent means” and provided that “if any slave resist his master . . . and by the extremity of the correction should chance to die,” the owner would be “acquit from molestation” and suffer no penalty. Southern colonists also feared, with some reason, that their slaves might plot or actually rebel against their condition. To prevent and punish such rebellions, the Virginia legislature provided in 1723 that “if any number of negroes” shall “consult, advise, or conspire, to rebel or make insurrection, . . . they shall suffer death.”

  Surprisingly, one of the harshest applications of law against slaves took place not in the South but in New York City in 1741. The greatest danger in the cities of that time was fire, since most buildings were constructed of wood and firefighting equipment, was rudimentary. A series of eight fires in the span of five days spread fear throughout the city, and suspicion centered on a group of slaves who congregated at an alehouse on the waterfront. After a roundup of slaves and quick trials, thirteen blacks were convicted of “treason” and burned at the stake, sixteen slaves were hanged for arson (along with four whites), and another seventy blacks were banished from the colony. The fevered reaction to the supposed Slave Conspiracy of 1741, particularly in the convictions and executions for “treason” against masters, illustrated the role of law in keeping slaves in subjugation.

  The institution of slavery, and the “black codes” that enforced white rule, endured for almost a century after the Declaration of Independence proclaimed that “all men are created equal” and are equally endowed with the rights of life and liberty. Even after the Thirteenth Amendment to the Constitution abolished slavery and the Fourteenth Amendment extended the “equal protection of the laws” to the former slaves, the Supreme Court in the 1880s and 1890s struck down civil rights laws and upheld the Jim Crow laws that replaced the “black codes” of the colonial era. The legacy of slavery and efforts to redress its impact on African Americans continue to divide Americans, including those nine Americans who sit on the Supreme Court.

  The people who received the worst treatment from the Puritans and other colonial settlers, and the least protection from their laws, were the Native Americans—known as “Indians” art the time, because Columbus was searching for India in 1492. From the very beginning of English settlement, relations between the Indians and settlers were marked by conflict. Even during times of relative peace and accommodation, the relentless search for new lands by the settlers created animosity on both sides, which flared into open warfare that lasted more than three centuries before the last resisting Indians finally succumbed to armed force near the end of the nineteenth century. The school-book myth of Pilgrims living in peaceful harmony with their Indian neighbors, sharing Thanksgiving feasts and native festivals, illustrates the fact that official history is written by the winners. Indians were the losers in virtually every battle with the colonists who forced them from their lands.

  The first English settlers in Virginia built their village of Jamestown in the midst of an Indian confederacy led by Chief Powhatan. During the brutal winter of 1610, the “starving time” for the English, Powhatan maintained an attitude of coolness toward the settlers, but his people fed the whites who fled into the wilderness in search of food. When the governor asked Powhatan the next summer to return the refugees, he replied—according to the English account—with “noe other than prowde and disdaynefull Answers.” The governor then sent English soldiers “to take Revendge” on the Indians. They burned an Indian village, cut down the corn around it, killed fifteen or sixteen Indians, forced the tribe’s queen and her children into boats, and then threw the children overboard and took sport in “shoteinge owtt their Braynes in the water.” After this masacre, the Indians waited twelve years before exacting their own revenge, killing 347 English settlers in a bloody rampage through the colony.

  From that time on, open warefare raged between the Indians and colonists. A noted historian of the colonial period wrote of the English response to the 1622 massacre: “Since the Indians were better woodsmens than the English and virtually impossible to track down, the method was to feign peaceful intentions, let them settle down and plant their corn wherever they chose, and then, just before harvest, fall upon them, killing as many as possible and burning the corn. . . . Within two or three years of the massacre the English had avenged the deaths of that day many times over.”

  The settlers of Plymouth Bay colony waged their own wars against the Indians with equal violence, fueled by biblical conviction that God had given the land to them. The Puritans employed the legal fiction that land on which Indians grew crops was “virgin” land because the Indians did not use proper (that is, English) methods of farming. In reality, the Indians employed a slash-and-burn agriculture better suited to the land than English plowing and planting. Governor John Winthrop, however, argued that because the Indians had not “subdued” the land for fields and meadows, the entire colony was legally a “vacuum” and that Indians had only a “natural” right to their lands and not a “civil right” that could be legally enforced. The Puritan settlers poured into this “vacuum” and took legal title to lands they “purchased” from Indians with deeds that were full of archaic English legal terms the Indians did not understand. The greatest source of misunderstanding was over the English concept of absolute possession of property. English common law provided that holders of land in “fee simple” could evict and prosecute any trespasser. Indians believed they had only given the colonists in these deeds the right to hunt and “traverse” the land, not to make permanent settlements. Over this legal misunderstanding—which the colonists did nothing to erase—much blood was shed on both sides.

  Conflicts with the Pequot Indians of southern New England simmered until 1636, when the murder of a white trader accused of kidnapping Indians led Governor Winthrop to give his troops a “commission to put to death” the Indian men of Block Island and to seize “some of their children as hostages” for the surrender of the murderers. The Puritan soldiers not only killed the Pequot men of Block Island but went up and down the coast of Long Island Sound, burning villages and crops. Winthrop’s military commander, Captain John Mason, decided to avoid facing Pequot warriors in open combat and instead to burn all the villages and massacre those who could not escape. William Bradford, former governor of the colony, celebrated the results in these words: “Those that scaped the fire were slaine with the sword; some hewed to peeces, others rune throw with their rapiers, so as they were quickly dispatchte, and very few escaped. It was conceived they thus destroyed about 400 at this time. It was a fearful sight to see them thus frying in the fyer, and the streams of blood quenching the same, and horrible was the stincke and sente there of, but the victory seemed a sweete sacrifice, and they gave the prayers thereof to God, who had wrought so wonderfuly for them, thus to inclose their enemise in their hands, and give them so speedy a victory over so proud and insulting an enemie.”

  The colonial period ended with another bloody war, this one waged by rebellious colonists against their English rulers. Ironically, the colonists who had deprived most of the population—religious dissenters, women, slaves, and Indians—of legal rights and voices in governance based
their Declaration of Independence on pious claims that “all men are created equal” and that governments must derive “their just powers from the consent of the governed.” Those who drafted and signed this solemn declaration in 1776 firmly believed in its principles and protestations, but they were all white men of property who simply did not comprehend that people unlike them had been equally “endowed by their Creator” with the same “inalienable rights” they claimed for themselves. And so, when another group of white men of property met in Philadelphia in 1787 to draft a constitution for the United States, they brought to this task the same lack of comprehension. The dispossessed and disenfranchised groups that had no voices in the Constitutional Convention were forced to wait almost two centuries until their own declarations of independence were heard—if not always heeded—by the Supreme Court.

  2

  “The Exigencies of the Union”

  On May 14, 1787, a dozen men gathered at the red-brick State House in Philadelphia, Pennsylvania. This was the same building in which another group of men assembled in 1776 and signed a Declaration of Independence that set in motion the revolution against English rule. Seven years of war had sapped the strength and resolve of British troops and their military and political leaders, and the rebellious American colonies won their independence in 1783. But the victorious revolutionaries, united in their rejection of English “tyranny,” had not united to replace the thirteen colonies with a new nation. All they had accomplished was to form a “confederation” of thirteen sovereign states, each one jealous of its prerogatives and unwilling to relinquish any of its powers to a national government.