US Constitution: Amendment Proposal | Eastern North Carolina Now

    On July 9, 1868, during the Reconstruction era - the era when the US Congress radically transformed the southern states - the 14th amendment was added to the Constitution. As the nation entered the 20th century, not only did the Supreme Court have the "sweeping" or "elastic" clauses, but all of a sudden, it had this brand new tool in its arsenal to sap power from the States. Beginning in 1925, it began to incorporate the Bill of Rights as prohibitions against the States, through the Due Process clause of the 14th amendment. In this first case, Gitlow v. New York, the 1st amendment's Guarantee of Free Speech was applied to the states. Through the "Incorporation Doctrine," the Court has held if the federal government cannot burden the rights recognized in those amendments, the states may not either. And so the trend continued, particularly in the second half of the 20th century and now into the 21st century. By turning again and again to the 14th amendment, the Supreme Court has overturned state laws restricting the rights of speakers (and most recently, allowed states to censor speech), has struck down state laws permitting prayer in public schools, has forced states to remove Christian symbols from public property and forced them to censor prayer before state and local meetings, has forced them dismiss gender identify in marriage laws and required them to redefine marriage, has forced them to forcibly integrate schools and now to forcibly integrate neighborhoods, and has overturned state laws restricting the rights of criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others. In short, the Supreme Court has used its unchecked power at the bench to use whatever authority or non-authority it wishes in order to neuter the states, recreate the United States as a boundary-less, one-size-fits-all nation, cookie-cutter type nation, and usher in sweeping social change. Typically today, as we have seen year after year, cases that pit the rights of states against the power of the federal government are usually decided by a closely-divided Supreme Court, with Justice Anthony Kennedy acting as the swing voter. It's hard to imagine that a mere difference in opinion, represented by a 5-4 majority, can abolish traditional norms and dismantle historic institutions, and thus change the entire social landscape of a nation.

    At one point, the clear meaning of the Bill of Rights was recognized, as stated in its Preamble: "The Conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, in order to extend the ground of public confidence in the Government and will best ensure the beneficent ends of its institution." The Bill of Rights was clearly intended as a set of limitations on the powers of the federal government.

    This point was emphasized by the Marshall Court in 1822. In the case Barron v. Baltimore, a profitable businessman suffered losses due to the buildup of sand in the Baltimore Harbor and particularly in the area of his wharf, denying him the deep waters he needed. He then sued the city for the losses caused by the sand-build up. In the decision, Chief Justice Marshall found that the limitations on government articulated in the 5th amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the 5th amendment was not applicable to the states. The decision read:


    The Bill of Rights was NEVER intended to be applicable to the States. If that was even a consideration at the time that the States were debating whether to adopt the Constitution, they never would have done so.

    Despite the efforts by the Supreme Court to twist constitutional jurisprudence, the 14th amendment was not intended to make the Bill of Rights applicable to the states. It was an amendment passed in 1868 in somewhat conjunction with the 13th amendment in order to make sure that the civil rights of the newly-freed blacks would not be infringed. Under the original Constitution, citizens of the United States were required to be first a citizen of some State, which is something that blacks could not claim (thanks to the Dred Scott decision). This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens and thereby leaving them with less protection and remedies under State laws of justice compared with a white citizen. The goal and function of the 14th amendment's first section was to give legal validity to the Civil Rights Bill of 1866. The goal of both the Civil Rights Act and then the amendment was to put an end to criminal black codes established under former rebel States that at the time were being administered under policies of President Andrew Johnson. The author of the language of the 14th amendment, Rep. John Bingham of Ohio admitted that he borrowed the language for both the Due Process and Equal Protection clauses from Chapters 39 and 40 of the Magna Charta. He further explained:

    (a) That the privileges and immunities of citizens of the United States refer only to those privileges and immunities embraced in the original text of the Constitution, Article IV, Section II. [See House Report No. 22, authored by Rep. Bingham on January 30, 1871]
    (b) That "citizens of the United States, and citizens of the States, as employed under the 14th amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution."

    As Alan Mendenhall writes that any debate over the 14th amendment must address the validity of its enactment. "During Reconstruction, ratification of the amendment became a precondition for the re-admittance of former Confederate states into the Union. [This has been termed] 'ratification at the point of the bayonet'" because in order to end the military rule imposed by the victorious North during Reconstruction and in order to be allowed to have representatives in Congress, the southern states were required to ratify the 14th amendment. "The conditional nature of this reunification belies the claim that the Fourteenth Amendment was ratified by any mutual compact of the states." For this reason, and for many others that are legally, ideologically, and constitutionally sound, it should be emphasized that many learned constitutional scholars are convinced that the 14th amendment was never constitutionally - legitimately - adopted.

    Just a few years after the (questionable) adoption of the 14th amendment, in 1873, the Supreme Court heard its first case addressing it, The Slaughterhouse Cases. The cases were a consolidation of three suits challenging a Louisiana law that established the Crescent City Live-Stock Landing and Slaughtering Company and required that all butchering of animals in New Orleans be done in its facilities. The Louisiana law was enacted for health concerns; it wanted to control animal blood that was seeping into the water system. The law seriously interfered with the businesses of individual butchers who were accustomed to slaughtering animals on their own property. It not only required them to do their butchering away from the city at the facilities of the Crescent City Livestock Company, but also to pay a fee for doing so. The law essentially created a monopoly. Justice Samuel F. Miller, joined by four other justices, held that the 14th amendment protected the privileges and immunities of national and NOT of state citizenship. The case involved state regulations of slaughterhouses to address the health emergencies resulting from animal blood that was seeping into the water supply. In the opinion, Justice Miller wrote that the 14th amendment was designed to address racial discrimination against former slaves rather than the regulation of butchers:


    In other words, Justice Miller's point is that the meaning and purpose of the 14th amendment is to negate the Dred Scott decision, legally establish citizenship rights to freed slaves and to ensure the privileges and immunities of national citizenship (as provided in Article IV, Section 2 of the US Constitution]. For example, as Miller explains, "the 15th amendment declares that 'the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.' The negro having, by the 14th amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union." The 14th amendment does nothing to alter the relationship between the federal government and state governments, nor does it remove any sovereign state power that existed prior to the amendment.

    Clearly, Justice Miller did not believe the federal government was entitled under the Constitution to interfere with authority that had always been conceded to state and local governments.

    To be clear that the amendment did not include or intend the "incorporation doctrine," another proposed amendment during the same era can confirm this. In December 1875, Senator James Blaine of Maine (rhymes) proposed a joint resolution that would "incorporate" the 1st amendment's guarantee of religious freedom as a limitation on the States. It read: "


    The amendment would become known as the Blaine Amendment. The effect was to prohibit the use of any public funds (federal or state) for any religious school. The bill passed the House but failed in the Senate. This amendment is significant (but ignored by the Supreme Court) because of this implication: If the 14th amendment was already understood to apply the Bill of Rights against the States, then why would such an amendment even need to be proposed. Furthermore, it was struck down by the Senate, particularly because it was seen as an improper effort to keep schools free from religion and also because it was seen as targeted religious persecution. The mid-1800s saw a great influx of Catholics into the country. They soon began establishing their own schools, where Catholic children could recite their own prayers and read from their own version of the Bible. The creation of these schools made many Protestants worry about whether the government would start funding Catholic schools and so the Blaine Amendment arose from this concern about the "Catholicization" of American education.



    As explained above, prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by the Supreme Court's decision in 1922 in the case Prudential Insurance Company of America v. Cheek. The case concerned the state of New York's ability to restrict freedom of speech. The decision read: "As we have stated, neither the 14th amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech' or the 'liberty of silence'; nor, we may add, does it confer any right of privacy upon either persons or corporations."

    In 1930, in the case Baldwin v. Missouri, the Supreme Court found that an inheritance tax imposed on intangible property (bonds and promissory notes) to property in Missouri held by a dying woman in Illinois violated the due process clause of the 14th amendment. Justice Oliver Wendell Holmes, a realist, was becoming worried that the Supreme Court was overstepping its boundaries with respect to the 14th amendment and scolded his fellow bench members in what would be one of his last dissents:


    Originalists (those who interpret the Constitution according to the original meaning and intent) and non-originalists alike have been skeptical over the years of the Court's 14th Amendment substantive due process jurisprudence. 2 of the 3 current "originalist" members of the Supreme Court, Justice Antonin Scalia and Justice Clarence Thomas, reject the substantive due process doctrine, and Supreme Court Justice Antonin Scalia has called it a "judicial usurpation" and an "oxymoron." [See Chicago v. Morales, 1999 and U.S. v. Carlton, 1994] Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As he made obvious in his dissents in Moore v. East Cleveland and in Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick (the first Supreme Court sodomy case), he argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." He further wrote that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and would send the Court down the road of illegitimacy. While originalists generally do not support substantive due process rights, they do not necessarily oppose protection of the rights. Rather, they believe in the paths that have been traditionally, and constitutionally, provided - through legislation and through the amendment process.

    Yet despite the legislative history surrounding the amendment and established jurisprudence regarding the limited reach of the "Privileges and Immunities Clause" in The Slaughterhouse Cases, the Supreme Court would later turn to the Due Process and the Equal Protection clauses to strike down state laws. As mentioned earlier, incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech. By the last half of the 20th century, nearly all of the first 8 amendments were found to be incorporated into state law through the 14th amendment. (All except the 3rd amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th amendments apply expressly to the federal government, and so have not been incorporated. Despite its narrowly-intentioned purpose, the 14th amendment is cited in US litigation more than any other amendment.

    The use of the 14th amendment as a sword against the States has blurred state boundaries and has all but reduced the state governments to looking after its day-to-day responsibilities. In most cases, the governments have become enforcement arms of the federal government. What the government can't do legislatively, judicially, or through executive action, it can accomplish through federal grants and funding ("money with strings").

    Again, the federal government is supposed to legislate only pursuant to the express powers delegated in the Constitution and for the express objects listed in Article I, Section 8. The 10th amendment emphatically states that all remaining (reserved) sovereign powers remain with each State. The definition of a "sovereign" includes the understanding that it has a fundamental, unquestioned right to make all necessary laws for those in its jurisdiction, as well as for its self-preservation and self-defense. Our government system is based on the notion of Dual Sovereignty. That is enshrined in the 10th amendment. The federal government is sovereign when it comes to those objects that the States delegated to it under the Constitution and the states are sovereign when it comes to everything else. In other words, when it comes to legislation and policy, the States have broad power within their individual spheres. Nothing written or originally intentioned in the Constitution (before the Court was given the chance to change things, through interpretation and judicial construction) has changed that balance. And that is why the federal government has no "Police Powers." Only the states have police powers. What are "police powers"? In the United States, a state's police power comes from the 10th Amendment, which gives states the rights and powers "not delegated to the United States." States are thus granted the power to establish and enforce laws protecting the welfare, safety, health, and morality of its people. The Supreme Court, at least until the turn of the 20th century (1905), has consistently held that the police power of a state embraces any law for such purposes that a state believes are necessary to protect and benefit its people, as long as such law does not infringe on any power delegated to the general government in the Constitution. Morality is outside the jurisdiction of the Supreme Court because then the decision rests on the morality of the justices. Welfare is a state issue, unless it is an issue that touches on "all Americans, in general." The Supreme Court must stick to an opinion based on the interpretation of the Constitution.

    In 1932, Justice Brandeis, in the case New State Ice Co. v. Liebermann wrote: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country." (dissenting opinion). The term "states as laboratories of experimentation" is, of course, a not only a reference to federalism but a statement of one of its greatest benefits - innovation and solutions. The case concerned the constitutionality of an Oklahoma statute forbidding the manufacture and distribution of ice without a license. Under the challenged statute, the state was authorized to issue such a license only upon a showing "of the necessity for a supply of ice at the place where it is sought to establish the business." The plaintiff was denied a license because it was deemed that there was a sufficient supply. A six-Justice majority invalidated the statute under the Due Process Clause of the 14th amendment as an unwarranted interference with the right to engage in private business in a lawful occupation. In his dissent, Justice Brandeis laid out some of his growing frustrations with the Court's substantive due process jurisprudence. The full comment reads: "There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the 14th amendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity. To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."