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.
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.
The states 'rights' position has fought constitutional, individual rights 'supremacy' since Barron v Baltimore. -- The 14th was ratified to strike down Barron, but ignored. -- Now, the states 'rights' crowd insist that each amendent be incorporated separately by the USSC.
This continuing legal battle in the courts hardly makes any position null & void. - In fact, incorporation will 'back up' the supremacy clause, and reaffirm its original intent.
How do you explain the continued existence of official State religions well after the BOR was adopted?
We've disagreed on this point before in long past threads.
Why is it that you can't get the constitutional paradigm straight. Almost every line in the Constitution speaks of Congress shall or shall not, or the Executive shall or shall not, or whatever. There's very little about the States mentioned.
I mean, if the Founding Fathers intended each state to be beholden to the limitations in the Constitution and the Bill of Rights, don't you think they would have said so right in the Constitution!? The 1st Amendment would not say "Congress shall make no law respecting..." it would say "Congress nor the States shall make no law respecting..." And that goes for the rest of the Amendments (at least up until the 14th) as they come from the same constitutional paradigm. It would also preclude the need for the 10th Amendment all together.
Under your mistaken paradigm, Section 1, Article 1 of the Constitution, where it says "All legislative Powers herein granted shall be vested in a Congress of the United States" would mean that all legislative powers in the nation lie solely in the U.S. Congress. Meaning that there would be no need for State Legislatures, County governments, City Counsels, etc.
I know I've said this to you before. You seem to have confused our Federal government with a National government.
The Johnson impeachment was like the complete opposite of the Clinton impeachment. All the charges were false, and it was a political lynching designed to subvert the Constitution.
It shows you how radical republicans back then, slip so easily into the bleeding heart liberal's orthodoxy of today. Liars, all of them.
It kind of follows, that after "REconstruction", everything gets REversed.
Didn't the Supreme Court utilize the equal protection clause in a non-racial setting to decide the Presidential election in Bush v. Gore?
You typically use this language, but I honestly have no idea what you are talking about. I've never heard of anyone in the "states-rights crowd" mention "incorporation". Maybe I'm not paying attention. It is easily understood that Article VI, Section 2(the supremacy clause) makes any part of the BoR that does not say "Congress shall not...." apply to any law in the U.S.
Excuse the butt-in, but you're quite correct. This was one of the few times that the 14th Amendment served the cause of goodness. However. It was able to serve this cause, bacause it is so vague. Because it is so vague, it can be used to serve most any cause. That's the problem with it. It allows the Federal Courts to legislate, because it is so vague. In Bush vs. Gore, It was completely unnecessary to invoke, if the Constitution had been adhered to in the first place. State legislatures have plenary power to choose presidential electors. The US Supreme Court could have ruled that the FL Supreme Court's ruling was not binding on the FL Legislature. The outcome would have been the same - the method would have changed. The FL Legislature would have chosen electors by direct vote, for Bush, instead of relying on the indeterminate popular vote.
I think the Supreme court should have declared the Florida election indeterminate, and remanded the case back to the FLorida Legislature. The truest axiom that ever came out of that saga was "the margin of victory is less than the margin of error". That election was indeterminate - it might as well have not have happened, it was so full of mistakes.
It would have been quite a nice lesson for the American publik - to watch a Legislature actually choose electors. Just Like the Constitution Says They Can.
Constitutional principles are -- "the supreme Law of the Land;" --
We've disagreed on this point before in long past threads. Why is it that you can't get the constitutional paradigm straight. Almost every line in the Constitution speaks of Congress shall or shall not, or the Executive shall or shall not, or whatever. There's very little about the States mentioned.
The supremacy clause itself mentions that states are 'bound'. There are dozens of other 'mentions'. -- You are wrong.
I mean, if the Founding Fathers intended each state to be beholden to the limitations in the Constitution and the Bill of Rights, don't you think they would have said so right in the Constitution!?
They did. Art. VI, 2nd paragraph.
The 1st Amendment would not say "Congress shall make no law respecting..." it would say "Congress nor the States shall make no law respecting..." And that goes for the rest of the Amendments (at least up until the 14th) as they come from the same constitutional paradigm. It would also preclude the need for the 10th Amendment all together.
Nope, the rest refer to people. It doesn't 'go' for the rest.
Under your mistaken paradigm, Section 1, Article 1 of the Constitution, where it says "All legislative Powers herein granted shall be vested in a Congress of the United States" would mean that all legislative powers in the nation lie solely in the U.S. Congress. Meaning that there would be no need for State Legislatures, County governments, City Counsels, etc. I know I've said this to you before. You seem to have confused our Federal government with a National government.
And I've answered your confusion & overblown nonsense before. - Enough.
They did. Art. VI, 2nd paragraph.
Again, the Supremacy clause thing. You are so hung up on this one vague phrase that you can't seem to understand the rest of the Constitution or its intent.
What a puffed up ego. --- I was arguing the constitution v 'state rights' issue with the Mojo/Navigator crowd before you got here.
My views on the BOR's and constitutional 'supremacy' were set long before I got to FR.
The mid 60's battle over gun rights formed my position, - firmly for individual rights. - In '68, I quit both the republican party & the NRA, in disgust, when they caved, and passed the act.
That's what your question reminds me of.
When it comes to searches and seizures, I'm all for giving the police powers as much leeway as possible these days, as long as they profile Arabs properly.
The IVth amendment is vague, with the word "unreasonable", but at least it's talking about a specific practice.
The XIVth Amendment, might as well say - "No State Shall do unto its citizens what the Supreme Court would not do unto its citizens". That wins the prize for vagueness.
Although I'm not a huge fan of the 14th, and definitely don't approve of the way it was imposed on us, it can't be emphasized enough that it's not the amendment itself that's the real problem; it's the judiciary that refuses to stay in its place.
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