Seven Events That Made America America (11 page)

It would not be the last time that American court decisions would result in damaging, unintended, and unforeseen consequences. In the early 1900s, seeking to apply the new antitrust laws and thereby protect small business from predatory trusts, U.S. courts would in fact do great harm to smaller firms. George Bittlingmayer analyzed stock performance of small businesses supposedly protected by antitrust rulings, and found that action against large firms coincided with business downturns and that smaller firms did poorly during such judicial/regulatory activity.
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A similar study of the antitrust case against Microsoft showed a pattern of the securities of competitor firms, which should have benefited from a Microsoft defeat, falling every time the case against the computer giant advanced, and strengthening every time the case suffered a setback.
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In far more cases—the
Kelo v. New London
decision, for example—while the economic impact is likely to be long-lasting and significant, it has not been immediate.

Dred Scott
combined bad law with bad timing. It was exceptional in its judicial activism, with that activism made possible in part by the inability of the nation to address the festering issue of slavery through legislative and constitutional channels. Discerning the Founders’ intentions on slavery is difficult, and there were indeed mixed signals. None expected it to last long, yet none would risk disunion to extinguish it. Many thought the presumption of freedom within the states would relegate it to obsolescence. By the time of the Civil War, there had been no test case on the definition of personhood, and for all its overreach,
Dred Scott
also side-stepped that issue constitutionally. As Alexander Hamilton wrote, “Laws are a dead letter without courts to expound and define their true meaning and operation.”
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What is clear is that the Founders did not favor a supremely powerful, activist judiciary. Virtually all of the Founders were immersed in, and fully accepted, the concepts of government known as “Whig” principles that derived from John Locke and included such English writers as Henry St. John (Viscount Bolingbroke), Thomas Gordon, and John Trenchard. As proto-Whigs, the Founders had deeply held views about limiting the power of government, particularly the sovereign. Courts were to provide impartial bars of justice, that is to say, they were to fairly interpret the laws of the legislature or parliament—but never “make” law themselves. For the most part, the Whig concerns involved making certain one was tried by a jury of his peers, and that people had the right to file writs of habeas corpus so as to prevent mysterious and permanent disappearances to such places as the Tower of London.
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Virginia’s 1776 constitution declared that “all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”
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When the Founders drafted the Articles of Confederation, they did not even include a judiciary act, but instead put their faith in state courts.
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The delegates to the Constitutional Convention had explicitly rejected the notion that the judiciary should be included in the review process for laws, but a much different problem threatened earlier courts, namely insufficient power.
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The
Federalist Papers
focused on the immediate problem of ensuring the independence of the (then nonexistent) federal judiciary, as both the legislative and executive branches were endowed with considerable power. Alexander Hamilton, James Madison, and other Founders were deeply concerned that the courts not become mere pawns of the legislature, and retain their autonomy, but “instead of being subsumed by Congress or the president, the judiciary [subsequently] has subsumed substantial authority over the other branches.”
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Thomas Jefferson argued in 1820 that “the Constitution has erected no . . . single tribunal “above the other branches of government,” adding that “to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
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The
Dred Scott
decision constituted perhaps the final tear in the fabric of the Union in 1857 and illustrated perfectly what the Founders feared could happen if the Court overstepped its authority. Shortly thereafter, in the debate at Freeport, Illinois, Abraham Lincoln maneuvered Stephen Douglas into his fatal political misstep, in which Douglas invalidated the Supreme Court decision by saying that ultimately the people could exercise an 1800s version of “jury nullification” by simply refusing to enforce unpopular laws. Thus political reality, and the grimmest reality of all, the Civil War, overturned de facto what was not overturned de jure. And by that time, the other malignant impact of the
Dred Scott
decision, the Panic of 1857, had also been mitigated by economic growth. Yet the status of the territories was not decided except by the sword, and Kansas and its sister territories stood to remain nineteenth-century versions of Beirut or Belfast a century later until the question of who had authority over those areas was established once and for all. In the decades following the Civil War, the Supreme Court would routinely weigh in on economic matters, almost always with the same unintended and pernicious results, whether in antitrust rulings, eminent domain, or property rights. Roger Taney’s decision in 1857, however, represented a unique moment in which the Supreme Court managed to simultaneously abuse the Constitution, rule against human rights, severely damage the economy, and help start a war, all in one fell swoop.

JAMES MADISON, 1794

 

 

 

 

W
hat does the federal government do right? While a cynic might answer “nothing,” the United States government actually handles several tasks—namely, those delegated to it by the Founders—with competence and, occasionally, extreme skill. America’s military, for example, has proven exceptionally adept at overcoming setbacks, defeating more numerous foes, and building a culture of victory.
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The United States Coast Guard, while perhaps unable to stop the flow of drug traffic, has nevertheless proven extremely capable in handling rescue operations and preventing major terrorist attacks by sea. America’s federal courts have, at least until recently, maintained the sanctity of contract and encouraged the profit motive for the free-enterprise system. In other cases, however, even where the Constitution permits the federal government certain nonexclusive powers—such as the establishment of a postal system or the coinage of money—and where, at one point, those became either temporarily or permanently monopoly powers, the record has not proven as favorable.

A more important question for our discussion might be, “What is the federal government empowered to do?” Is it empowered to respond to natural disasters? If so, under what circumstances and for what reasons? The Constitution is explicit on this: the federal government is empowered to act to maintain order—and only to maintain order—when conditions at the local and state level endanger the nation as a whole. The Constitution does not allow it to engage in charity or “disaster relief ” out of goodwill, and, as major disaster relief efforts such as those used in Hurricane Katrina have proven, when the government does so, it circumvents normal community and local responses and generally mucks things up.

The Founders knew that, intrinsically, the government lacked the proper incentives to do many things and that private individuals and smaller communities would put resources to far better use. Despite the fact that the young Republic had been struck by hurricanes, floods, fires, diseases, and all sorts of other destructive events that today would qualify as disasters, no one asked the federal government for relief from a disaster until 1811, when a massive earthquake struck New Madrid County in Missouri. Some scientists claim this quake was the largest ever seen in North America—Otto Nuttli at St. Louis University estimated it reached Richter scale proportions of 8.7, or almost two points higher than the San Francisco quake of 1906.
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Yet there was no organized relief by the state. Instead, so-called earthquake Christians, church groups who heard about the quake, marched in to provide assistance. However, in 1814 (notably three years after the earthquake hit), a petition was presented to Congress for relief of the victims, based on a bill that had passed in 1812 granting Venezuela $50,000 for relief of an earthquake. The Missourians were sure Congress would be “equally ready to extend relief to a portion of its own Citizens.” After a year, Congress provided grants from public lands to relocate people whose farms or businesses were destroyed. Speculators moved in like locusts, and over the next thirty years, courts attempted unsuccessfully to sort out the claims. A “New Madrid claim” became “a synonym for fraud.”
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Out of this example, a clear picture emerges of the superiority of private sector and local responses to those of the federal government in the area of disaster relief. Subsequently, the Johnstown Flood of 1889, the 1900 Galveston Hurricane, the Dayton Flood of 1913, and the 1906 Great San Francisco Earthquake help solidify this picture, especially when compared to the sheer disaster that ensued after Hurricane Katrina struck New Orleans in 2005. In the first four cases, communities and individuals rose to the occasion and not only provided immediate relief, but organized short-term security and then undertook long-term planning to prevent future calamities. In the latter case, the Founders’ worst nightmares about bureaucracies—“swarms of officers,” as Jefferson called them in the Declaration—became reality. There was a reason the Founders hesitated to give overt powers of disaster relief to the federal government, and it became apparent after Katrina. Yet over a century earlier, another American city saw waves crash down on it, and while the event itself was a disaster, the response was anything but.

Johnstown, Pennsylvania, was a typical steel town facing atypically heavy rains in 1889, when the faulty design of the South Fork dam, located fourteen miles away, caused it to collapse and unleash 20 million tons of water down a valley leading to the community. The destruction was near total: over 2,200 people were killed, and the waters caused $17 million in damage. It constituted the worst single loss of civilian life in America prior to 9/11. Floodwaters carried trees and other debris smashing through the city and trapping anyone caught in the torrent of steel and wire from the nearby steel plant that had wrapped around wood from fallen trees, making removal all the more difficult. The flood destroyed the railroad, along with 1,600 homes, and four square miles of Johnstown proper. After the damage had been done, at least 27,000 people needed care, shelter, and food.

The dam had burst shortly after three o’clock on Friday, May 31, condemning the Johnstown citizens to a night of hell. By noon the next day, however, the waters had receded and citizens had already started to help stranded neighbors.
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As the finest historian of the flood, David McCullough, noted:

Less than three hours later, every surviving able-bodied man reported to the Adams Street schoolhouse, voted to elect a “dictator” whose instructions they would all follow (Arthur Moxham, as it turned out), and, despite mind-boggling fatigue—having already struggled to survive themselves—the men organized into committees and leaped into action. They cleaned up the wreckage and removed dead bodies and animal carcasses. Some seventy-five men were specifically appointed “deputies,” with tin stars cut from tomato cans, to throw up a cordon around the town’s banks and recover and account for all cash lying around. Virtually everyone had lost someone they knew to the flood, yet the work continued. They grimly tagged bodies of those they did not recognize as best they could (noting sex, age, hair color, distinguishing features), writing the information on any available paper.

Moxham and his deputies commandeered every remaining intact structure, and also began erecting tents from blankets and bedspreads that had started to arrive from nearby communities. Even though it was May, the storm had brought an unusual cold to the valley, requiring people to start controlled fires for heating, cooking, and boiling water. In spite of their dogged efforts, the survivors couldn’t process the dead fast enough. They transported the decomposing bodies across the river to Prospect Hill, where shallow graves were being dug as quickly as possible. George Spangler, the night watchman at the First National Bank, referred to the act in his diary as “holing the dead,” noting “I hold [sic] 62 to the semitre [sic].”
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