Justice in American Thought

Another sphere of justice revolves around the proper role of state power and the relationship between individuals and their government. The Federalists bestowed on the American intellectual landscape the best articulation of justice in connection with social order and public institutions. The Federalist view made clear that the institutional framework ought to exist to protect the basic rights of citizens, and property stood out as one of the most important personal rights. Clearly, the root of the centrality of property was derived from Locke's reasoning in the Second Treatise of Government (1690), which postulates a civil or political society founded on just laws, which are not available in a state of nature, no matter how rational men could be or how harmoniously they might work together. Even in this scenario, common rules of justice, accepted as part of a free compact, were necessary to avoid the vagaries of the individual's judgment. As already indicated, in the first half of the seventeenth century, the Pilgrims anticipated Locke's reasoning. In "Federalist Paper number 10," however, James Madison was more explicit than Locke. Justice, according to Madison, was needed to regulate the potentially lethal conflicts arising from disagreements on property. This regulation envisaged the rise of factions as inevitable, but sought to contain its effects by dispersing those factions through the whole society.

It might appear that Madison's vision of a society fragmented into different factions would be a denial of Winthrop's concern for a strong community. But this is not the case. Winthrop's community was one among many others and, in this sense, it might be seen as a faction in Madison's use of the term. In a nutshell, Madison argues that the diversity of factions would be the warranty against the prospect of a tyrannical majority. In a fragmented milieu, this majority would lack the means to arise, let alone to succeed. Hence the Lockean need of a central government that was conceived as the embodiment of a just social order seeking to regulate the disparity of interests. The anti-federalists consistently applied the logic of fragmentation. Just as a fragmented society was a guardrail against a tyrannical majority, so also a fragmented legislature would cancel the proclivity to factionalism. Hence a government in which all the classes of society should be represented as both the Federal Farmer and Brutus, two of the leading voices in the anti-federalist cause, insisted.

The slavery question that led to the Civil War (1861–1865) was the lightning bolt that limned the fissures underlying the moral and political landscape of the American society. Even when Lincoln's paramount concern was the preservation of the Union, and both the thirteenth and fourteenth amendment sought to create a new juridical reality for all people born under the jurisdiction of the United States, justice, understood as a set of principles and regulations serving as the moral compass of both individuals and public institutions, became more fragile and malleable. Neither women nor Native Americans were part of the notion of citizenship implicit in the post-civil war constitutional amendments. And in a series of decisions, the Federal Supreme Court reinstated inequalities and legal boundaries that the fourteenth amendment wanted to remove.

In the Slaughterhouse Cases (1873), the Supreme Court established a distinction between citizens of the United States and citizens of particular states, and concluded that Congress lacked power to regulate state actions in matters of local government, property, and civil rights. In other words, the court reasserted the "disjointed matters" that Emerson had mentioned in 1845. According to the legal doctrine of the Slaughterhouse Cases, the states, not the federal government, would be final arbiters in controversies pertaining to the same issues that had led to the Civil War. It would not take long to show how the purview of the state would perform when dealing with the rights of black citizens. In United States v. Cruickshank (1876), a case involving the murder of African-American citizens in Colfax, Louisiana, the sane court struck down the conviction of three white men. Writing for the majority, Chief Justice Morrison R. Waite found that the right of the victims to "peaceably assemble," as well as their right not to be deprived of life and liberty without due process, had not been violated. Furthermore, Waite argued that the power to initiate prosecution for murder belonged, exclusively, to the states. This was another way of saying that the dominant beliefs of particular states would prevail. If the states decided not to act, there would be no crime. In the Civil Right Cases (1883), the Supreme Court upheld racial segregation in public places, and in Plessy v. Ferguson (1895), put the seal of legality not only on segregation, but also on the social inequalities that the fourteenth amendment intended to overcome.

These cases show that the providential view of justice of the puritans was superseded by all the ramifications embedded in the very first phrase of the preamble to the Constitution: "We the people …" It was a phrase that departed from the self-evident truths so prominent in the Declaration of Independence. And this phrase carried a foreboding about the unstable and precarious role of natural law arguments in the American conception of justice. More than a democratic sentiment, "We the people …" expressed the design of a secular order without any transcendental anchors. Since the phrase, along with the whole constitutional text, would receive its authoritative interpretation from a political institution presiding over a society that blurred the line between diversity (in which there are some common links) and fragmentation (in which common links are absent), the outcome would be far too evident. It is ironic that Representative John A. Bingham, Republican from Ohio, referred to the universal and "higher laws" principles that he saw inscribed in the Declaration of Independence when he argued for the need of the Fourteenth Amendment, while the Supreme Court would resort to the particular beliefs of the states when eroding the clear meaning of this amendment.

The fractures of a social order continued unabated in the early twentieth century, especially with the territorial expansion of the American empire. The newly acquired territories after the Hispano-American War (1898) would be excluded from the constitutional protections available to white citizens.

In the Cherokee Nation v. Georgia (1831), the Supreme Court abandoned the providential view of justice, and upheld rights emanating from an idea of cultural superiority; namely, upheld rights stemming from the power to define and impose a definition of a superior culture. In the Plessy case the Supreme Court mangled the constitutional meaning in order to demarcate a new reality that justified segregation and inferior citizenship. Thus, the trajectory of the United States Supreme Court clearly suggests that the idea of justice as a dimension of natural law has stood on precarious grounds and not played any significant role in legal controversies concerning minority groups. Natural law served neither Native Americans nor African-Americans. Natural law presupposes an agreement on universal principles of morality, an agreement that, in a context of moral and cultural fragmentation, was nowhere to be found. Native Americans had to be civilized. A civil war was needed to alter the juridical classification of African-Americans. Yet, natural law arguments continue to lurk in judicial decisions addressing private conduct or decisions. The right of privacy seems to be the closest area whose underpinning insinuates natural law principles.