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Posted on 05/13/2002 6:04:59 PM PDT by NathanM
Faulty foundation of the 14th Amendment By Nathan McClintock
Since my column on the First Amendment was published, I have received various comments concerning the use of the 14th Amendment to justify Federal control over States rights. The 14th Amendment, which dates back to 1868, restricts the States from making or enforcing any law that violates the “privileges or immunities of citizens of the United States,” and protects citizens from being deprived of “life, liberty, or property”. This Amendment also gives each person equal protection under the law.
Although this Amendment sounds positive because of its protection of every U.S. citizen’s liberty, there is a flip side. This Amendment has allowed the protection of these rights to change hands from the State level to the federal level. Citizens can protect their rights and liberty best at the State level, because States have smaller populations. Therefore the people have a stronger voice, and are a more powerful political force.
The later part of the 14th Amendment that protects life, liberty, and property has been referred to as the “The Due Process Clause.” In 1897, the U.S. Supreme Court heard the case of Allgeyer v. Louisiana, and using the 14th Amendment to their advantage, the Court struck down for the first time a State statute. Even today, this clause continues to be used by the Federal Courts to strip rights, such as the First Amendment, from the States and hand them over to federal control.
However, a more conservative interpretation would lead us to conclude that this Amendment was designed to protect from discrimination between blacks and whites. Very simply, the Amendment dictated that State governments must give equal rights to all races. When viewed with the fact that the Civil War had terminated only three years prior, this interpretation makes the most sense.
In July of 1866, the U.S. Congress, controlled by a radical Republican majority, voted in favor of the 14th Amendment to act as a protection of civil rights. It must be noted that all 22 U.S. Senators from the Southern States were unseated and denied the privilege to vote on this Amendment. This action, denying Southern Senators their seats in Congress, directly violates Article Five of the Constitution where the States are guaranteed the right to equal suffrage in the U.S. Senate.
However, before any amendment becomes law, at least three-fourths of the States are required to ratify the proposed amendment in State conventions. Yet when the 14th Amendment went to the States for ratification, the southern States, with the exception of Tennessee, refused to sign signifying that many citizens opposed it.
Nevertheless, those in the U.S. Congress did not give up. They quickly passed “The Reconstruction Act” of March 1867, which divided the Southern States into five districts. Andrew Johnson, who was the U.S. President at the time, vetoed the “Reconstruction Act.” Congress, undeterred, voted to override the veto, and later decided to impeach Johnson because of his opposition to the Act.
In this way, the Federal Congress abolished the State governments in each of these districts, and sent a large military force to the region, effectively placing the Southern States under military dictatorship. This Act required that each State set up a new government by hosting a Convention whose duty it was to draft a State Constitution. Prior to a Convention, delegates to the Convention would have to be elected.
However, due to the military dictatorship now in control, the only people allowed to vote for the delegates were males, 21 years and older, who had taken an oath to support the Federal Government. Thus, in most cases, the delegates’ chosen were federalists, not Constitutionalists. The people of the South had lost all forms of true representation, leaving the common Southerner an outcast to the political system. And because of this new influx of federalism, the Southern States, now composed only of Federalist representatives, were finally forced to ratify the 14th Amendment.
That is the story of how a radical U.S. Congress literally forced the 14th Amendment’s ratification with total disregard for the peoples’ desires and the Constitutional ratification process. And in Congress’s supposed attempt to protect civil rights, they trampled even the most basic rights already in place. The 14th Amendment was not, and must never be considered to be, the “consent of the governed.”
Our Founding Fathers were concerned to keep the federal government from becoming a tyrannical central power. For this reason, the Founders tirelessly promoted States rights, believing them to be the best protection for the citizens.
Nathan McClintock is a self-syndicated columnist. To read his past columns, go to www.nathanmcclintock.com. He may be contacted at Nathan@NathanMcClintock.com. © Copyright 2001 Nathan McClintock. All rights reserved.
If what you're saying is that it was intended to make the BOR restrict the states, then perhaps it should have simply said so. "Original intent" is fine when there's a legitimate dispute about the meaning of a particular provision, but it can only go so far. The whole point of writing down laws is so that we won't have to keep wondering what somebody intended 5 generations ago.
As you say, the equal protection clause is somewhat vague and in order to attempt to limit its possible range of applications, some have suggested that it be limited to racial inequalities because of the historical circumstances surrounding its enactment. However, those who enacted the amendment could have easily placed that racial limitation in the text and they did not. Is it legitimate for us to add that limitation to our reading of the text just because we might be frightened by the possible range of interpretations that might be given to the provision without the limitation? As we recently saw, some of the most conservative members of our current Supreme Court thought that the provision should (they would say "must") be interpreted without such a limitation.
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I think you're going to have a hard time finding any evidence that the Founders intended for successive generations to reinterpret the rules of the Constitution time and again. You might as well not have a Constitution if those whom it was intended to limit are to be the ones who decide how much it limits them.
As for the 4th amendment's mention of "unreasonable", it actually has a quite specific meaning: If I'm not allowed to do it to you, neither is government - unless it has a warrant, or unless it's in a "hot pursuit" situation that won't admit of delay.
Yeah, but they could have turned back the supply ship without firing on an American flag in a federal installation. They had turned back previous supply ships without it leading to war. They wanted war. The states that had seceded by that point did not constitute a viable nation. The outbreak of war forced the other slave states to get off the fence.
I suspect their first response would be: "What's a phone tap? For that matter, what's a phone?"
No cite, naturally.
Well, we aren't supposed to need to reinterpret these indefinite phrases. We need only apply them to new and different circumstances.
You might as well not have a Constitution if those whom it was intended to limit are to be the ones who decide how much it limits them.
Well, there isn't any alternative to having the present generation interpret and apply the Constitution to current facts and circumstances. The authorization to interpret the meaning of an indefinite or vague phrase does not afford an interpreter with an unlimited range of meanings, but the acceptable options expand as the vagueness increases.
HUH?
The 13th abolished slavery in 1965, after the North and Southern states (3/4ths of all) ratified it, and before the southern state legislatures were stripped of their duly elected representatives. The 14th doesn't address slavery, nor did it need to. The KKK was started in response to military, anti-constitutional rule that was being imposed on the South during Reconstruction, after slavery had been long since abolished. For example, the occupying Union forces stripped the state legislatures of their duely elected representatives, and installed their own (Negro) puppets of the Union Party. This marked the birth of that peculiar institution later known as Affirmative Action. The blacks in the South were exploited by Northerners who hated southern whites.
If there was a problem with race relations in the South after the war, it was largely a result of resentment over vindictive radical Reconstructionist union party Congressional policies. The Union radicals just didn't believe in letting people sort out their own affairs. A parent who favors one child and spits at another, will pit the non-favored child against the favored child. The yankees had no business playing 'parent', to any adult citizen.
The 14th intended to say exactly what it said - "No State Shall...", and "Congress shall have power to enforce [this]..". Those words were enough to accomplish the objective of the Union Party leaders in the peculiar, non-representative, post-war Congress: To give themselves veto authority over southern state legislatures in the broad matters of equity.
"Equal protection" can be provided in separate facilities, or in a single facility. That's a state decision. Enemies of the 10th Amendment/the South are now beginning to understand that New York, not Washington, should be able to decide whether to have single-sex schools - to discriminate based on sex, now that the narrow-minded radicals in the ACLU are making a fuss about it in Harlem. (see http://www.ywlcs.org)
Gosh it's fun to watch the chickens come home to roost.
Activists need to succeed or fail in the Legislature, not the Judiciary.
Activists have perverted the purpose of the 14th Amendment from insuring that no state could, for example, deny a particular race, or ethnicity, a business license, simply based on their ethnicity - to regulating the rules of golf, as in the Casey Martin case, which was based on the authority of the ADA, which was based on the 14th Amendment.
The Lawyers are smothering out our liberty, because the 14th Amendment makes them much more efficient at imposing their will on the entire country, instead of having to do it one state at a time.
When NJ rejected the 14th Amendment, it said it would lead to a gross enlargement of the judicial power.
Vague provisions and terms expand the range of acceptable interpretive options for any interpreter, whether that interpreter is a legislator, an executive or a judge. Competent draftsman have always known that. When a competent draftsman chooses to use a vague or indefinite provision, he knows that he is delegating to future interpreters a greater range of options than he will be delegating if he chooses a more specific or definite provision.
The vagueness in the 14th is orders of magnitude greater than the vagueness in the 4th Amendment.
Well, just the term "unreasonable" in the Fourth Amendment delegates to interpreters quite a bit of latitude. But I certainly agree with you on the Fourteenth Amendment. If you just read the equal protection clause all by itself, it's almost unmanageably unclear.
Activists need to succeed or fail in the Legislature, not the Judiciary.
Activists know now and always have known that if what they want to accomplish is arguably constitutional, their best bet for success is to have broad public support and a friendly legislature. Any group that attempts to depend exclusively upon the judiciary to protect its interests is foolish.
Activists have perverted the purpose of the 14th Amendment from insuring that no state could, for example, deny a particular race, or ethnicity, a business license, simply based on their ethnicity - to regulating the rules of golf, as in the Casey Martin case, which was based on the authority of the ADA, which was based on the 14th Amendment.
I play golf, but I don't know anything about the reasoning of the Casey Martin case. A lot of conservatives demand that our judges be "strict" constructionists (just read the law and apply it), but how can a "strict" constructionist read the equal protection clause and limit its application to race or ethnicity? And if you want to shift to original intent, consider this:
"Thus, section 1 of the fourteenth amendment, on its face, deals not only with racial discrimination, but also discrimination whether or not based on color. This cannot have been accidental, since the alternative considered by the Joint Committee, the civil rights formula, did apply to racial discrimination." Bickel, The Original Understanding and the Segregation Decision 69 Harvard Law Review 59-63.
For their part, the courts have most aggressively used the equal protection clause in the areas of race and ethnicity. I think we're lucky that they've avoided taking a "strict" constructionist approach.
If the slaves were 'taken' by the federal government, the government would 'own' the slaves. This didn't happen - the slaves were freed, not taken. No compensation necessary.
It really isn't. See #79. It's the courts who've made it more complicated than it ever needed to be.
When the Florida legislature enacted a statute that made interracial cohabitation a more serious offense than cohabitation by persons of the same race, was the legislature correct or incorrect in its reading and interpretation of the equal protection clause? (See McLaughlin v. Florida (1964) 379 U.S. 184.)
When the Virginia legislature made it illegal for a member of one race to marry someone of another race, was the legislature correct or incorrect in its reading and interpretation of the equal protection clause? (See Loving v. Virginia (1967) 388 U.S. 1.)
So, yes, in case you were about to ask, that means decisions like Brown vs. Board of Education were erroneous, too. Does that mean people are defenseless against oppressive practices by their states? No, it means that it's largely up to them to defend themselves, either through the political process, or through other means if necessary, instead of having the feds come in and solve everything for them. The federal Constitution provides some protections against the worst kinds of state actions, but it can't provide an all-purpose screen against any and all laws that people might find objectionable. That has to be determined on a state-by-state basis.
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