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'm so glad this message is finally getting out!
The 14th Amendment is a fraud, and the foundation of judicial activism in this nation.
The 14th Amenmdment is why no true conservative can ever bash the Confederacy. The Radical Republicans centralized this government, and gave the US judiciary veto power over State Legislatures.
This is not government by consent of the governed.
It can't be stressed hard enough how this amendment destroyed the Union the victors of the Civil War were supposedly trying to "save".
Which may be perceived as a good thing, in the not too distant future...
James Madison even said so.
http://www.jmu.edu/madison/emancslaves.htm
To provide a commensurate remedy for the evil, the plan must be extended to the great mass of blacks, and must embrace a fund sufficient to induce the master, as well as the slave, to concur in it. Without the concurrence of the master, the benefit will be very limited as it relates to the Negroes, and essentially defective as it relates to the United States; and the concurrence of masters must, for the most part, be obtained by purchase.
The 14th Amendment was one of the first times the US Government took property without just compensation, and they've been doing it ever since, with less and less qualms every year.
This would lead a resonable person to assume that the amendment had the requesit 3/4 of the states before approval by the senate.
Not true. Just before submission to the senate New Jersy withdrew it's ratification in protest to the high handed tactics of the Republicans.
The 14th then stands alone as the only extraconsitiutional amendment approved by the senate.
It comes as no surprise to anyone that this amendment has changed the face of our democratic republic. This amendment has singlehandedly reshaped our government into the centralized institution that it is today.
That's why it's so nauseating to see the Yankees praised as if they were divine saviors. They were men with the same designs and flaws that are in all men.
Reconstruction was a scheme from northerners embittered by Lincoln's assassination, looking for blood, personal gain, etc. and coming to the south to pit blacks against southern whites - to exploit uneducated blacks for political gain.
Not a day goes by that I wish Lincoln had not been assassinated. He would have been a friend of the South, and kept the vindictives at bay.
Few people realize that during Reconstruction, the radical occupiers actually held phony elections and installed black majorities in State legislatures! Just to "show" southern whites. Now think what that did for race relations for the next 100 years. Did you know that it took longer for the yankees to admit all the Southern states & Reps. back into Congress than it did to fight the 4 year war?
IF the south had won, I think we would have gotten back together by now, on constitutional terms. We probably would have done so to fight WWII. Who knows. I wish the Southern states had never seceded.
The short of it is Congress, the President and SCOTUS care NOT for what is written in the Constitution.
If they did;
Your money would be made of gold, silver or copper.
RICCO would never have become Law,
There would be no Federal Reserve Bank,
You could own and shoot machine guns,
Abortion would be legal at the Federal level, not because of some non-existant privacy right, but because the Federal Government does not have the right to legislate physicians or surgeons.
Police could not search your car without a search warrant or your permission,
You could buy codeine over the counter like asprin.
There would be no FDA, FAA, FEC, FCC or FBI.
You can probably name more. The point is the Federal Government ignores the US Constitution, the Several States don't seem inclined to demand their Rights and most of the People either don't know or don't care.
And of course Article V says "..No state, without its consent, shall be deprived of its equal suffrage in the Senate".
If nothing but for the principle of telling the truth.
So I think this article has importance. I'm glad it was written and posted.
Things have gotten so bad (or so tolerated) that just recently a large group became alarmed when the congress proposed federal aid to states to help with the cost of local rezoning (the federal way). The antagonist are up in arms over the further federal intrusion. They never once considered not taking the money.
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.
"This is not government by consent of the governed."
Anybody else see the hilarity of holding up the Confederacy as a defender of "consent of the governed?"
One third of the population of the Confederacy was held in slavery, with no rights whatsoever. The Confederate states seceded precisely because they saw the long-term perpetuation of this institution being threatened by Lincoln's election.
That noted, the 14th Amendment was indeed passed by questionable methods. But it was passed, and it is now part of the Constitution. Don't like it, organize and get it repealed.
I believe three states have and continue to be deprived of representation in the Senate without their consent (any state which ratified the Seventeenth Amendment, and any state which joined after its ratification may be presumed to consent; IIRC three states have done neither).
No funnier than holding up the post-revolutionary war US. Nothing was different about the Confederacy - except a bit more emphasis on state sovereignty. Slavery was a national institution even before the Declaration of Independence which says:
"...As FREE and INDEPENDENT STATES, they have full power to levy War, conclude Peace, contract alliances, establish Commerce and do all other Acts and things which INDEPENDENT STATES may of right do."
Independence is essential to liberty, as decentralization is essential to liberty. Don't fall for the slavery smoke, that the centralizers always throw up to confuse the real issue. Slave ships dropped anchor in Boston Harbor, and slaves were sold by Africans. They were felt to be too irresponsible for liberty, as children are.
State independence was thrown out with the slavery bathwater.
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.
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.
Absolutely opposite concepts.
Then I'd like to see someone sue because progressive federal taxation violates the equal protection clause.
Affirmative Action violates the equal protection clause.
Any Federal program that tilts the playing field, to achieve equal outcomes, violates the equal protection clause.
The insidiousness of the 14th is not just what it does to the states, but to the duplicitous hypocrisy it allows the Federal government to engage in. You can tell it's a product of Congress, for Congress.
Lets get portions of it repealed. 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 - but it would be enforceable by State Courts. Essentially, the equal protection clause would be written into every state Constitution, but not the federal one. The mechanics of this have precedent in the 11th Amendment, which takes US judicial authority away from out-of-staters, when they sue a State.
I have a dream that one day the ACLU would have to win 50 "equal protection" lawsuits, whereas now the 14th allows them to just win one, in order to control the entire nation.
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