A Plea to Social Conservatives

Social conservatives need to stop focusing on social issues and start focusing on constitutional issues. This is not because the social issues are not important. It is because all the social issues that conservatives care about have become constitutional issues. So if social conservatives wish to prevail, they will need to master the constitutional issues first. At the risk of repeating what some may already know, I will first define how the constitution applies to these social issues and then propose a way of advancing toward the goal of a legal arrangment that reflects conservative moral values.

To begin, let us define what a constitution is. In addition to establishing a government, a constitution sets limits on the powers of that government. The capacity of government to harm the citizens it was designed to protect is the essential underlying assumption of the American system of government and the necessity of constitutionally limited government follows from that. The U.S. Constitution primarily sets limits on the power of the Federal government, but in a few places it places limits on the State governments as well. For our purposes, it is the limits on the State governments that concern us and, in particular, the limits that the Fourteenth Amendment places on the State governments. As we will see, the legal status of every social issue that is of concern to social conservatives has to do with Supreme Court rulings based on this amendment.

The Fourteenth Amendment is one of the three amendments ratified within five years of the end of the civil war and, like the other two, was designed to address problems arising from the end of that war. In particular, all three were designed to address problems having to do with the rights of the African-Americans who had until recently been enslaved. The Thirteenth Amendment (1865) abolished slavery, the Fourteenth Amendment (1868) required States to protect the person and property of the newly freed slaves, and the Fifteenth Amendment guaranteed the right to vote to African-American men. Because the Fourteenth Amendment is so critical to our discussion, it will be necessary to consider it at some length, in order to place its meaning beyond any doubt.

The Republican Party held a majority in Congress at the end of the civil war and many Republicans were greatly concerned about the safety and well-being of the newly freed slaves in the southern states. The congressional debates in early 1866 are full of of this time are full of details gathered by the U.S. military as to the condition of the freedmen. A congressional committee also began to gather testimony to provide a basis for appropriate legislation. The testimony is full of stories documenting the vulnerable condition of the freedmen. In Louisiana, for example, they were not permitted to own land. If an employer refused to pay them, they had no recourse because they could not make contracts and were unable to sue. In Virginia, the courts refused to punish whites who committed violence against blacks. In many states, black men received harsher punishments for crimes than whites. Many Republicans in Congress were concerned that the abolition of slavery would be of no benefit to the freedmen unless this situation was addressed.

The Civil Rights Act of 1866, passed in March 1866, is the remedy that Congress provided for the freedmen. As this act has a direct bearing on the meaning of the Fourteenth Amendment, it will be useful to quote the relevant part of this act in full: