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.
Walt and I have not seen eye to eye on most issues and this is the first time that I flagged him to an article. It would be rather tough for his standard line to fit this article.
If the country mobilizes in the not too distant future, the Constitution would be suspended anyway in the industries judged vital to national security.
That is because the 14th was not meant to be what it is now interpreted to be. It was the enforcement amendment to the 13th amendment. If the founders had intended for the federal constitution to be superior to states, then they could have easily REQUIRED all states to adopt the exact language of the federal constitution OR have disallowed state constitutions all together.
All that is required for a taking, is to deprive you of the property. They deprive you of the use of it. Other countries had compensated emancipation. Even some Northern States did. This is a great wrong that was done to the South. One day it's legal, one day it's not, and no compensation, because of a fraudulently ratified amendment. "Consent of the governed" is a concept that got lost in the transfer from the old Union to the New.
The 13th abolished slavery in 1865, 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 duly 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 Radicals had no business playing 'parent', to any adult citizen, but there were votes to be had. If it weren't so sad it would be very funny. The Congressional Radicals didn't want to just give blacks the vote, because many of them would have voted the same way as their Democrat masters, if they had been treated well under slavery, or had been living as freedmen already, as many were before the war. Plus, making blacks citizens was dangerous to the Radicals, because Five Fifths of blacks would then count for the census, instead of Three Fifths. That was going to increase the number of Southerners in the House of Representatives. From the Union-party viewpoint, something had to be done to insure that these dangers of simply adhering to what the Constitution said were neutralized, and that was one of the main goals of Reconstruction.
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. For example, 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.
I think your brain just divided by zero. :)
The wiping out of millions of dollars in capital, (in 1865 dollars) does not a wealthy region make. And that was exactly what was intended by the radical vindictives.
History first, then I can recommend some good math classes.
That is one of the problems with the 14th. Somehow, I feel that the court's aggressive use of the equal protection clause has been to enforce the doctrine that: some animals are more equal than others.
It's such a travesty, that they even have that clause to use, in the first place.
Casey Martin, if you didn't know, sued because he can't walk long distances and must use a golf cart to complete 18 hole tournaments. The PGA had long since said in their written rules, that no player would be allowed a golf cart. The Supreme Court changed the PGA rules, so that Casey can now ride a golf cart. The PGA is not even a State or a state funded agency. States, are supposed to be the only entities restricted by the equal protection clause. Now judges are breaking out of even the broad boundaries of the 14th Amendment. There ought to be a law that says no unelected judge can rule on a 14th Amendment case. Legislators ought to be elected.
Boy, I hate being on your side, but you are exactly correct.
Reinvested profits in the slave-owning states went for decades primarily into the purchase of slaves. In the non-slaveowning states, they went into the purchase of land or machinery.
In either case, this formed a capital investment which could be sold or borrowed against. The total market value of all the slaves in 1860 was at least 3 billion dollars. It is the perceived distant possibility of a threat to this accumulated capital asset which was the root cause behind secession.
After the war, this sum of capital was no longer available to anyone, not even the emancipated slaves. This meant that, leaving aside the physical damage caused by invasion, the South lost many decades of accumulated capital.
As a comparison, the total US federal budget in 1860 was 60 million dollars. In other words, paying off all slaveowners for the full value of their slaves would have taken the entire federal budget for 50 years. Obviously, this was never going to happen.
Slaveowners themselves are largely responsible for the fact that they were not compensated. Throughout the war, Lincoln tried repeatedly to get Union slaveowners in the Border states to agree to compensated emancipation. Even in the declining days of the War, when it was obvious to all but morons that slavery was doomed, they refused any such project.
It is also obvious that victorious northerners were unlikely to be willing to beggar themselves for decades to pay compensation to southern slaveowners who had started the war which had killed 100,000 more northerners than southerners.
Fair enough. The secessionists rolled the dice to protect their investment, and they lost. Where the true injustice arose is that men who had fought in the Union armies also had their slaves freed without compensation. There were many thousands of these men in the Border states.
Boy, I hate being on your side, but you are exactly correct.
Sticking up for property rights always makes you the underdog in a socialistic PC world. Marx was anti-property, and remembering that keeps me going; being anti-property is an evil position to take. So better to be "on my side" than against the rights of property. Thanks for your excellent post. I like the Lincoln-Johnson policies of "restoration", rather than the Union-radicals' party policy of Reconstruction, restorer. I'm on the restorer's side, and not the reconstructor's side. Restorers save unions. Reconstructors plunder them.
In either case, this formed a capital investment which could be sold or borrowed against. The total market value of all the slaves in 1860 was at least 3 billion dollars.
Would that be in 1860 dollars?
In that sense, it was different than a lot of the 14th Amendment cases in which the judiciary finds that a state statute is unconstitutional. In Martin, the court was just applying a statute that was passed by Congress. For its part, Congress claimed it was acting under the constitutional authority granted to it by both the Fourteenth Amendment and the commerce clause.
Yup. Do the math. Four million slaves. In 1860 the market value of a prime field hand was well over a thousand dollars. I tried to be conservative in my estimate. I have no idea how a direct comparison to today's dollars could be accurately done, but I have seen a statement that a prime field hand in 1860 was worth $40,000 in 2002 dollars. (If correct, that would be a total value for all slaves of 160 trillion dollars, which seems a little high.) In any case it was a lot of money by any standard and in any period.
So better to be "on my side" than against the rights of property.
I think you may have misunderstood me. I was agreeing with your analysis that the loss of the slaves represented an enormous loss of capital. I do not believe that the slaveowners ever had any moral right to property in their slaves, although obviously they had created a legal right.
The issue isn't protection from prosecution. Laws don't exist to protect people from prosecution. The case is essentially no different from laws that prohibit people under 21 from buying alcohol. They can be prosecuted for it, but I can't.
In addition to the antimiscegenation statute, Virginia also had laws for the protection of "legal" marriages (i.e., laws between parties of the same race). I'm gathering from your responses that you understand the equal protection clause to have been adopted to prevent citizens from harm by other citizens. The adoption of the equal protection law did not provide citizens with protection from unequal treatment by other citizens. For example, hotels were not prevented by the Fourteenth Amendment from refusing to provide service to blacks. That kind of private discrimination was made illegal in 1964 with the passage of the Civil Rights Act. In order to make an equal protection claim, a citizen has to demonstrate that he is being harmed or threatened with harm from some form of "state action."
The case is essentially no different from laws that prohibit people under 21 from buying alcohol. They can be prosecuted for it, but I can't.
You've put your finger on an important problem for courts. All statutes discriminate in one way or another. The law that you're talking about discriminates on the basis of age and the courts just do not feel that it would be appropriate for the judiciary to become very assertive in that area. In Loving, however, the antimiscegenation statute discriminated on the basis of race and the courts have held that, given the historical association between the adoption of the Fourteenth Amendment and the end of slavery, they will closely scrutinize the claimed necessity of any law that discriminates on the basis of race. As far as the courts are concerned, any statute that expressly discriminates on the basis of race is presumptively unconstitutional.
Maybe that's the criterion that the courts use, but that's not what protection of the laws actually means. It means protection against other persons violating you in some way. The fundamental mistake they make is in assuming that equal protection of the laws is synonymous with equal treatment by the laws. It is not, no matter how much they, or anyone else, want it to be.
In Loving, however, the antimiscegenation statute discriminated on the basis of race and the courts have held that, given the historical association between the adoption of the Fourteenth Amendment and the end of slavery...
The historical association is irrelevant, and misleading. The 14th amendment contains not one word about race, and contrary to what gets said many times, including here on this thread, it doesn't look at all as though its primary purpose was to protect blacks in particular. From reading it, and seeing its common themes, it seems clear to me that its purpose was to prevent the states from getting out of line again to the point of challenging federal authority. It's basically a "know thy place" amendment.
...they will closely scrutinize the claimed necessity of any law that discriminates on the basis of race.
There's one huge problem right there. There is absolutely nothing in the Constitution that in any way suggests that an otherwise unconstitutional law would become constitutional if someone can demonstrate a "necessity" for it. Either a law or practice is constitutional or it isn't. The old Soviet constitution guaranteed all kinds of wonderful freedoms - except that the government decided they had to suspend those guarantees out of "necessity". There's absolutely no way that nonsense should be tolerated here.
I hear what you're saying, but yours is a very novel view of the Fourteenth Amendment. As I understand it, you believe that it should be read to apply only to private conduct. Am I right?
Under your view of the equal protection clause, what would some person or entity have to do to violate it?
Not exactly. It - and I'm referring specifically to the equal-protection clause, not the entire amendment - applies to how courts apply the law. A court would be in violation of it if it were to give someone a lesser sentence for a crime against another, on the basis of who the victim was, because then that victim would be denied his equal protection.
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