By Aziz Huq / Special To The Washington Post
Monday, the Supreme Court heard a challenge to Texas’s antiabortion law, SB 8; a measure that not only bans abortion after six weeks, but allows any private party to sue anyone who aids or abets the procurement of an abortion, knowingly or unwittingly. By allowing private citizens to go after doctors, nurses, ride-share drivers and others, Texas aims to cast a deep pall of uncertainty and fear around the constitutionally sanctioned procedure.
Texas’s law has been described as “unprecedented” and “inventive,” as if the state’s legislature had broken new ground by granting private citizens the legal power to stifle constitutional rights. But these labels miss important historical context: Throughout American history, laws have been enacted to license private parties to suppress the constitutional rights of others by filing a lawsuit and bringing the weight of the state to bear on rights-holders. Such measures have been repeatedly used to keep down subordinated groups. Far from being marginal, their sheer frequency suggests that SB 8 is no outlier, but an indication that our Constitution has an Achilles heel when it comes to individual rights.
SB 8 may tap into people’s desire to think they are vigilantes, boldly enforcing their morality in defiance of Supreme Court precedent. But vigilantes typically don’t rely on of the legal system to achieve their goals (though local laws may shield them from punishment).
A more precise early historical analogue than vigilantism of the sort practiced by the Ku Klux Klan and its ilk would be the two infamous Fugitive Slave Acts passed by Congress in 1793 and 1850. These undercut Black citizens’ Fifth Amendment right to due process and the habeas corpus right to challenge government deprivations of liberty. Under these acts, enslavers could hire agents to search for people who had escaped to free states from slavery; they could then turn to the courts — or later to “commissioners,” appointed by federal judges — to condone the rendition back south of their “property.” (They could also turn to the courts as a first step before a seizure.) Unsurprisingly, these schemes resulted not just in formerly enslaved people but, notoriously, many free Black citizens being seized and transported to the plantation and the whip.
Even when these acts were passed, no one seriously disputed that free Black Americans had constitutional rights to liberty; and much of the contemporary opposition to the acts was couched in constitutional terms. Yet the procedures created by the Fugitive Slave Acts were purposefully designed to circumvent the liberties of even free Black citizens. Under the 1850 Fugitive Slave Law, for example, proceedings were ruthlessly compressed; an alleged enslaved person could not speak or testify on his or her behalf; a commissioner got $10 when finding for the owner but only $5 if he ruled for the alleged enslaved person; and there was no judicial oversight. It was an arrangement designed to elicit swift decisions in favor of the enslavers, circumventing constitutional protections.
SB 8 likewise stacks the deck in favor of the people filing lawsuits. Among other things, it does not require a plaintiff to prove the defendant intended to help someone obtain an abortion); it places critical burdens of proof on defendants; and it awards not just “damages” of at least $10,000 to a prevailing plaintiff, but costs and attorney’s fees, too. (Defendants, however, can’t get any costs or fees if they win). This farrago of biases creates a broad chilling effect even before a lawsuit is filed.
There are other historical parallels. After the Civil War, and the abolition of slavery, former enslavers turned to private tort and contact legal remedies to undercut the promises of the 13th, 14th and 15th Amendments. Southern states enacted a network of contract and tort laws to keep Black labor in its woeful antebellum place. Many agricultural employers, for instance, required free Black workers to sign annual contracts that tethered them to their fields. A Black laborer who violated their contract could be arrested at an employers’ behest and then sent back to the plantation. These contracts often made the workers responsible for the cost of rations and “lost time” due to sickness, an arrangement that would often leave workers in debt; at which point they would be obliged to keep working so as to service their new financial obligation. (In a variant on this pattern, White landowners often falsely accused Black agricultural workers of fraud, had them arrested, paid their fine, and then forced them to work off the ensuing “debt.”)
Echoing SB 8, these laws also targeted third parties as a means of cutting off Black citizens’ constitutional rights. “Enticement laws,” for instance, forbade other employers from bidding on Black labor, while “emigrant agent restrictions” imposed financial penalties on Northern employers who attempted to recruit in the South.
The 15th Amendment, which was ratified in 1870, protected citizens’ right to vote from being “denied or abridged … on account of race, color, or previous condition of servitude.” Yet of course that was intolerable to many Southern whites, who set about inventively thwarting that goal: through local law, violence, and, importantly, by giving private white actors legal power to deny Black citizens the franchise.
Consider the approach of Texas Democrats. By the end of the 19th century, Texas was a one-party state, meaning victory in the primary translated directly into political power. In 1923, the state legislature barred Black Texans from voting in the Democratic primary. When the Supreme Court struck down this measure (and a successor law), the Texas State Democratic Party simply passed a resolution barring Blacks from membership. Because state law still mandated a primary, and Democrats predictably controlled the only one that counted, the party could leverage the law to effectively disenfranchise all Black voters. Initially, the Supreme Court deflected a constitutional challenge to this arrangement. It wasn’t until 1944 that the Court changed course and ruled that Blacks in Texas could not be robbed of their vote by that dodge.
In yet another instance of right-suppression using private law, real estate contracts kept racial segregation alive long after it was ruled unconstitutional. In 1917, the Supreme Court issued a surprising decision invalidating Louisville’s zoning law mandating racial segregation, and placing racial zoning laws out of bounds nationally. Drawing on a model developed by the Chicago Real Estate Board, real estate agents responded by adding clauses to deeds barring the sale or rent of real properties to Blacks, Jews, Chinese, Japanese, Mexicans and other members of minority groups. These clauses were a way of turning contract law into a mechanism for nullifying the constitutional bar on state-sponsored segregation. Once again, the Supreme Court initially found no constitutional problem (in 1928), only to change course to invalidate such contracts in 1948. By then, of course, racial residential segregation was well entrenched in cities around the country, because of these restrictive covenants.
SB 8, this history suggests, is just the latest example of a practice with a long and ignominious history: using the instrument of law to deprive others of rights while evading and thwarting constitutional review; and in particular harnessing the avarice and malice of private parties to stamp out others’ constitutional right. In many cases, such efforts have been successful; sometimes for years, sometimes for decades. The Supreme Court’s response to such challenges has typically been muddled and delayed (in some cases because some or all of the justices are sympathetic to the suppressors of rights).
If history offers the sobering lesson that the legal system has time and again been used to encourage private parties to undermine constitutional rights, it also provides little comfort that Supreme Court justices can be relied upon to vigorously push back.
Aziz Huq, who teaches at the University of Chicago, is the author of the forthcoming book “The Collapse of Constitutional Remedies.”
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