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.
I'd have to disagree with that, from a legal standpoint. Taking is not the same as deprivation. The fifth amendment makes the principle very clear by saying, "nor shall private property be taken for public use, without just compensation." Clearly that principle was not violated with the 14th amendment.
Reminds me of the paragraph in :
http://www.freerepublic.com/forum/a38ae1fc86628.htm
Titled: If You Liked the Commerce Power. . .
Our Lords on the high court better change their opinion about discrimination based on ethnicity real quick, because some real dumb stuff, like fear of profiling, contributed to the FBI's unwillingness to elevate the Phoenix memo and save the World Trade Centers.
http://www.freerepublic.com/focus/news/686612/posts (Why we Need Racial Profiling)
That wasn't the case where Hugo Black developed his creative interpretation on how the 14th incorporated the Bill of Rights - but only some, at that, is it?
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