Faulty foundation of the 14th Amendment

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.

"The comedy is there because the Confederacy was specifically founded to ensure the perpetuation of slavery. "

But that should matter to you. The MOST basic right is for people to do what was done in the Declaration of Independence. You're talking about an issue within a pre-existing government, not the establishment of one. All bets are off when you're talking about the existence of government itself. Besides slavery was eroding in the border states, and farm mechanization would have made it no longer an economic necessity. It's really just a centralizer's boogey-man issue. Irrelevant.

I've given a lot of thouht to it, and I think the best attack on it would be to make it unenforceable by the Federal Courts

My route of challenge to the 14th would be for a state to forbid any private or government entity within it's boundries to accept any federal monies without the specific consent of that state legislature.

Since the 14th outlines only "state" infringements another route would be to allow state appelate courts simply "not to hear" certain challenges as in the federal system. This would preclude a basis for the complaintant eg. no state position; no violation of the 14th.

Thus the US Declaration of Independence and Constitution were indeed written to promote the consent of the governed, with wording that left the door open to eventually expand "the consent of the governed" to include all people.
The Confederate Constitution, OTOH, was intentionally written to exclude a third of its population from ever being able to exercise this right.

Please question yourself. You may have been indoctrinated. Both Constitutions were modifyable. The US Constitution secured the institution of Slavery in the Fugitive Slave clause, and a few other places sanctions the idea that there can be persons who are not free, in the US. It was a State issue.

The South's constitution had a clause that allowed it to be modified, so it's wrong for you to say that it intended to prevent a third of the population from ever having liberty. Constitutions say what they say, until they are properly modified. Nothing is ever iron clad permanent(except that "no state shall be deprived of its equal suffrage in the Senate" if it doesn't want to be). The Southern states would have abolished slavery, eventually. It was their decision to make. They quickly ratified the 13th, prior to the white disenfranchisement schemes of the Union party's Reconstruction.

It's really just a centralizer's boogey-man issue. Irrelevant.

Perhaps. Certainly if the Confederacy had won the war, it wouldn't still be holding slaves.

However, the issue wasn't irrelevant to both northern and southern people at the time. It had increasingly dominated the national dialogue from 1850 onward. The mere threat of some possible future threat to slavery is exactly what led the far south states to secede, as can be seen by the Declarations of Secession.

The Middle and Upper South states, OTOH, seceded because Lincoln called on them for troops to enforce the federal laws against the seceded states of the Confederacy. They felt, quite understandably, that if they had to fight they preferred to fight on the side they felt most kinship with.

Forcing the other slave states to get off the fence was, IMHO, the real reason the Confederacy fired on Sumter, instead of waiting a couple of days for them to be starved out.

It almost worked. All the important slave states joined the Confederacy except MO and KY. And it was very close in each of those states. Lincoln himself said that if MO and KY had seceded, the job of conquering the Confederacy would have been too big for the remaining Union states.

They did secede, partially. See here: Why are there 13 stars on Confederate flags (instead of 11)?

Does anyone truly believe that if the 14th amendment were to be overturned on these grounds that it would not be overwhelmingly reinstituted?

Considering that it's been the basis for so much Federal troublemaking, I'd think conservatives would have strong reasons not to reinstitute it. And they would only need to stop it in twelve states.

Which 12 states do you think would like to endure the massive riots and boycotts that such a percieved slap at the blacks in this country would engender? Who would be able to withstand the withering barrage of the media-driven labeling and mischaracterizations for a rather obscure (albeit important) constitutional principle? There are no statesmen in the arena! This fight is over. You could more easily reinstate slavery.

It would be refresehing to se a state break the 14th Amendment cycle: refuse to take the federal money and the federal rules.

Indeed it would, dispite the fact that the 14th has little to do with that cycle. -- The unconstitutional applications of the commerce clause are the 'evil' here, not the 14th.

Today we simply assume that if federal monies (and the attached strings that go with it) are available then it's simply the law.
This is the legacy of the 14th Amendment.

That is propoganda, put out by the states 'rights' people.

Actually, the 14th may save our 2nd amendment rights from the big government 'regulations' crowd, that claims a state & federal ability to write virtually any gun law on the 'well regulated' clause of the 2nd.

'Emerson' has refuted this view & the USSC may very well confirm it by 'incorporating', as per the 14th.

Read the Ashcroft 'decision' threads for the real truth.

Excellent point. What are the three states?- isn't Utah one?

More than that. Thirty-seven states ratified the Amendment, of forty-eight then in the Union.

So, the odd ones out would be:
Alabama, Delaware, Florida, Georgia, Kentucky, Maryland, Mississippi, Rhode Island, South Carolina, Utah, and Virginia.

Who would be able to withstand the withering barrage of the media-driven labeling and mischaracterizations for a rather obscure (albeit important) constitutional principle?

We have to put up with that now.

You could more easily reinstate slavery.

No you couldn't; the thirteenth was never in dispute.

Wishful thinking to be sure. THe 14th amendment had to be written because of the southern response to the 13th, which were the black codes. For all practical purposes, the black codes were the reinstitution of slavery, but with the state governments as the owners of the slaves. Remember that Black men recevied many rights with the 15th Amendment, but women did not receive the right to vote for another 50 years. Also, notice that the 15th Amendment does not say that it protects both men and women. Up until the 1920's, women did not share in protection of their rights. Could we conclude that women were slaves to the State? Don't forget that even today, some forms of slavery are legal. The 5th Amendment does allow for a person, who has committed a crime, to become enslaved to the State until his crime has been paid for. This idea, with the hard labor that comes with it, is a very effective tool in the fight against crime. Today, we need to use it more often!

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