OPINION: The 14th Amendment, the real revolution
Originally, the Bill of Rights applied only to the feds, meaning victims of state abuse could expect little help from the federal courts.
So, if one faction gained control of the entire state government — including the state courts — the other factions in the state were S.O.L.
The equal protections guarantees of the 14th Amendment, adopted in 1868, changed all that. States — theoretically — were no longer free to pick and choose which laws benefited which citizens.
So, in 1874, "a bunch of damn women" brought federal suit attacking a clause of the Missouri Constitution denying women the right to vote. The nation's high court refused to help, observing — correctly — that the right to vote is a state, not federal, right.
So what? The 14th Amendment creates an express federal prohibition against discriminatory state laws.
In 1894, the nation's high court declared that corporations were citizens within the meaning of the 14th Amendment. The court went on to strike a state statute limiting the oppressive rates charged by national freight-haulers.
This judicial duplicity deserves repeating: Despite the plain wording of the 14th Amendment, women couldn't use the federal courts to secure the right to vote; but, railroads could appeal to the federal courts for protection from state laws limiting their profits.
The same year that it voided Nebraska's rate caps, a unanimous high court — speaking through Mr. Justice David Josiah Brewer — voided a similar Texas law.
Quoting from "The Supreme Court Justices: A Biographical Dictionary," with parentheses and emphasis on the latter part of the sentence: "Brewer's opinion exposed a philosophical line between (he) and his uncle, (U.S. Justice) Stephen J. Field, who (once wrote) that protection of property rights was the highest goal of the Constitution."
Similar corporate-centric thinking infested all areas of federal law.
Basically, the nation's high court used the federal Constitution to void most any state regulation that interfered with laissez-faire capitalism.
For instance, while the court did allow state laws regulating the hours and conditions of especially dangerous employment like mining, a 1905 decision voided a New York law requiring that bakeries be sanitary and limiting bakers to a 10-hour workday.
A 1903 Oregon law creating a 10-hour day for certain female workers was the first semi-universal labor law not struck down by the high court.
So, Oregon women landed one of the first blows in the fight that allows most of us to "work to live, rather than live to work."
But, that's a discussion for another day.
Greg Wasson is an activist, historian and executive secretary of the Committee for Petition Rights. He lives in Salem.
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