Faulty foundation of the 14th Amendment

CPI News ^ | May 13, 2002 | Nathan McClintock

[inquest]

CPIng

[inquest]

While I'm not disputing the fact that the 14th is an illegitimate demon-child, I still should say that it doesn't go as far as the courts have said it does. The notion of "substantive due process", whereby, among other things, the Bill of Rights supposedly becomes binding on the states, is completely bogus. It was something that the courts pulled out of their behinds in - of all places! - Dred Scott vs. Sanford.

[edsheppa]

Reading between the lines, the article seems to say that the doctrine of substantive due process was the intent of the 14th amendment. It has always been a question of mine whether the intent was more limited and applied only to actual process. Instead it appears the drafters of that amendement really did intend that BOR restrictions would apply in future to state as well as federal gov't.

Regarding the legitimacy of the amendement that's called into question, I bet (but this is just a guess) that all the points made have been considered and rejected by the SC.

[H.Akston]

I guess when the 3/4ths mark was reached, the rest of the states just didn't bother bringing it to a vote in their legislatures. Can we really say they haven't consented, when they may have never voted for or against?

I believe Utah actually voted against it, and therefore would have a constitutional right to choose its Senators in the proper way.

All this assumes, of course that a Senator chosen by the people does not represent the "State". Some people might argue that a Senator that's in the Senate, no matter how he's chosen, who votes, represents the State, and therefore doesn't deny a State suffrage. I would then ask if the Founders intended for there to be a difference between a Representative and a Senator.

[H.Akston]

Please go away. :)

[H.Akston]

The notion of "substantive due process", whereby, among other things, the Bill of Rights supposedly becomes binding on the states, is completely bogus.

Amen, but - the Bill of Rights is binding on the states by the supremacy clause. All the judges in every state are bound by every thing in the Constitution. I believe Barron vs. Baltimore is where this bogus "incorporation" excrement was first plopped - by CJ John Marshall, in ruling on 5th Amendment property rights. well before the 14th Amendment existed.

[inquest]

the Bill of Rights is binding on the states by the supremacy clause.

I don't think that's true. The supremacy clause indeed prevents state law from conflicting with the Constitution. But if a state were to pass a regulation on speech, for example, that would in no way conflict with the requirement that "Congress shall make no law..."

[Spiff]

Being a student of the Constitution, I too have surmised that the 14th Amendment is the ill-fitted, weak link in the Constitutional chains that were intended to limit the Federal Government. It will prove/has proven to be the undoing of our free Republic. These articles only echo what I figured out on my own.

[tpaine]

Go away? - Do rational thoughts on constitutional issues somehow threaten yours, Hughey? -- Poor baby.

Maybe you should appeal to authority. -- Push the abuse button, -- a sympathetic mod may make all your problems go away.

[Spiff]

The "popularly elected senate" is an oxymoron. A popularly elected senate is really a House, where the members have 6 year terms. Their original purpose was to say no. Now they are too heholden to have any discipline. The 17th Amendment(1913) seems to me the worst thing that happened in the 20th Century, and the 14th was the worst thing in the 19th.

Again, we're in complete agreement. And we came to these same conclusions independently.

[steve-b]

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.

***BBZZZZTTTT!!!*** I'm sorry; the correct answer is that Johnson was impeached for violating the "Tenure of Office Act" (which required Senate approval to fire any appointee who had required Senate confirmation). The Act was repealed in 1887 and found un-Constitutional in 1926 (in a case regarding the power of the President to remove postmasters).

Nathan McClintock is a self-syndicated columnist.

If he learns the fine art of fact verification, maybe he'll be able to get a real job.

[tpaine]

Constitutional chains were intended to limit both the federal government, AND state/local governments.

Constitutional principles are -- "the supreme Law of the Land;" --

[inquest]

I think his point was that it was Johnson's opposition to the Reconsrtuction Act that turned the Senate Republicans against him. It's generally understood, if I'm not mistaken, that his impeachment had nothing really to do with the formal charges against him - that was just something for them to hang their hats on. They just didn't like Johnson, so they did what they could to try and get him.

At least that's how I read it. Maybe the columnist himself had something different in mind.

[billbears]

For all practical purposes, the black codes were the reinstitution of slavery, but with the state governments as the owners of the slaves.

LOL!!! Could you explain to me then what the black codes of the north, that were much worse, well before lincoln's war of tyranny were in response to then?

[steve-b]

his impeachment had nothing really to do with the formal charges against him - that was just something for them to hang their hats on

You're giving me Carvile flashbacks. ;-)

[steve-b]

Actually, I wish that the drafters of the 14th had provided a basic list rather than "privileges and immunities" -- for one thing, it would almost certainly have provided a no-nonsense, no-loopholes explication of the RKBA.

[billbears]

Actually that was only the charge. Johnson himself from the south saw some major Constitutional issues that arose from the Reconstruction plan that Congress had issued, mainly federal control of officers being one. The threat of impeachment was used for the simple fact that Johnson would not go along with some of the more ardent leaders in Congress who wanted to virtually destroy what was left of the South. Can you imagine that? Someone from Washington after the war actually caring what the states thought? Don't worry though it was the last time it happened

[FreeTally]

Constitutional principles are -- "the supreme Law of the Land;" --

Indeed, and IMHO, this fact makes your "incorporation of the 2nd amendment" argument null and void. Each and every individual are "the people" as referred to in the 2nd amendment. Their rights can not be infringed - by anyone, per the 2nd amendment and article VI, section 2.

[H.Akston]

"Again, we're in complete agreement. And we came to these same conclusions independently."

Which means we have made objective, disinterested, accurate observations based on sound reasoning.