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.

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.

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.

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.

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.

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..."

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.

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.

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.

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.

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

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

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.

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?

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. ;-)

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.

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

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.

"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.

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