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Constitution Series: The Fourteenth Amendment – Original Intent and Unintended Consequences

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This is the nineteenth of twenty-five weekly articles in The Tennessee Star’s Constitution Series. Students in grades 8 through 12 can sign up here to participate in The Tennessee Star’s Constitution Bee, which will be held on September 23 from 9 a.m. to noon at Sycamore High School, 1021 Old Clarksville Pike, Pleasant View, Tennessee.

by John Harris

 

The Fourteenth Amendment was one of three amendments made to the United States Constitution in the five years following the end of the Civil War. These amendments were the Thirteenth, Fourteenth, and Fifteenth amendments. These three amendments were all adopted as part of the Northern efforts to address circumstances in or related to the Southern states following the war.

The Thirteenth Amendment, which was ratified in 1865, abolished slavery.

The Fourteenth Amendment addressed several issues concerning the former slaves including the issue of citizenship.

The Fifteenth Amendment prohibited discrimination in voting rights of citizens on the basis of a person’s race, color, or previous condition of servitude.

The Fourteenth Amendment was proposed and then passed just as the Civil War was ending. It was proposed at the same time that the federal Civil Rights Act of 1866 was enacted. Congress proposed it to the States as an amendment on June 13, 1866. It was ratified by 28 of the then 37 States on July 9, 1868, and certified as such on July 28, 1868 – more than two years after it was proposed.

On July 19, 1866, Tennessee was the third state to ratify the Amendment. Some states, such as Maryland, California and Kentucky (March 18, 1976), waited almost, if not more, than a century to ratify the Amendment.

As with all significant constitutional provisions and legislation, it is important that the amendment be read and understood in the context within which it was created. Reading the language in that environment and with a view towards understanding the circumstances that it was attempting to address is an important step in understanding what the Amendment truly was meant to accomplish. With respect to the 14th Amendment, all of those circumstances – all of them – centered on the political issues that the Republican controlled Congress was discussing in the immediate post-war era given that the former Confederate states soon would be resuming a role in the national government.

However, it is similarly important to understand what was not an issue in the minds of the drafters when these amendments were written. Thus, how an amendment is read, with respect to the intent of the drafters, should take into consideration that the drafters were not intending, for example, to define or create other rights unrelated to the transitional status of the slave population.

The Text of the Amendment

The Amendment contains 5 distinct and somewhat diverse sections spanning 435 words. It is the longest amendment to the Constitution and is the only one which addresses a number of distinct topics and even generally unrelated issues.

Amendment XIV to the United States Constitution states:

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In reviewing the Congressional legislative history of the Amendment, it is significant that most of the debates had more to do with Sections 2, 3 and 4 of the Amendment, which were intended to protect the political interests of the Northern states to control Congress in the post-war era.

Sections 2 of the Amendment dealt with the issues of how to count the increased population with respect to determining the number and composition of the members of Congress. The number of seats in Congress and how they are allocated among the states is based on the number and distribution of citizens among the states.

Section 3 was directed at prohibiting the leaders of the former Confederate states from ever holding any public office.

Section 4 declared Confederate war debt uncollectable but at the same time it ratified all of the war debt incurred by the North.

Over time, Sections 2, 3 and 4 of the Amendment have become of little current significance because the facts relative to those provisions have become largely moot with the passage of time.

However, Sections 1 and 5, the sections for which there was no significant amount of contemporaneous legislative debate, have become the “Devil’s playground” for the unintended expansion of federal powers by later Supreme Court cases. It is the Judiciary’s expansive reliance and interpretation of Section 1 of the 14th Amendment which has often given rise to claims that the federal judiciary is “legislating from the bench” on a wide variety of issues not otherwise expressly vested in Congress through the enumerated powers contained in the Constitution. Certainly, the Judiciary’s reliance on Section 1 to address numerous issues which have little or absolutely nothing to do with the issues on the minds of the drafters of the Amendment in 1866 is a matter than surrounds many objections to several of the the Court’s rulings in the last half-century.

Section 1 – Declaration of Citizenship.

The 14th Amendment was written by Congress to address a specific and limited issue in the immediate post-Civil War era. The issue addressed in Section 1 was whether the freed slaves, those individuals who had been born in the States, were to be classified as “citizens” of the United States and of the state in which they resided. This was an issue at the time because in some jurisdictions the state or local governments were denying to the freed slaves certain rights held by those who were not born as slaves.

In understanding the 14th Amendment’s original intent, it is important to understand that the United States did not have a formal immigration policy in 1866. The issue of children born in the United States to parents who were not United States citizens but who were citizens of other nations was not an issue that the drafters of the Amendment even perceived as an issue to be addressed. To those drafters, the status of such individuals was deemed to be settled law at the time as the Congressional debates establish. Those individuals were not deemed to be United States citizens. Thus, the issue on the minds of the drafters was what to do about the slaves who were born within the United States at a time when the parents were slaves owned by citizens of the United States. The slave parents had no other nation to which they were subjects.

Senator Jacob Howard, a Republican from Michigan who was elected in 1861 after serving as the Attorney General in Michigan for several years, worked on the 13th Amendment which is the amendment that abolished slavery. Senator Howard also worked on the 14th Amendment.

In speaking to Congress regarding the proposed amendment, Senator Howard explained the intent of Section 1 and also an amendment which he was offering to clarify the intent of Section 1:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country. (The Congressional Globe, May 30, 1866, p. 2890.)

Senator James Doolittle asked for clarification on whether the proposed amendment was intended also to include Indians born within the United States. In response, Senator Howard urged that the law was already clear that those born within the United States but “subject to” the law of another nation, such as Indians who were subject to their tribal nations, would not be considered United States citizens or citizens of any State under the proposed 14th Amendment. He responded:

Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nationals. (The Congressional Globe, May 30, 1866, p. 2890.)

Much of the debate on the amendments from Senator Howard and Senator Doolittle focused on the issues of Indians who were naturally born within the geographic limits of the United States but who would not be considered “citizens” under the amendments because these Indians were “subject to” the jurisdictions of their respective tribes. Thus, just being born in the United States was not enough. More was required and some classes of individuals were intentionally excluded based on the citizenship of their parents.

The debates reflect that the drafters held the belief and intent that children born of parents who were citizens of other countries, even if temporarily in the United States at the time of the birth, were not considered to be citizens of the United States or of any specific state because of the phrase “and subject to the jurisdiction thereof…” in the proposed amendment. A comment by Senator Edward Cowan during the debates makes this clear:

I am really desirous to have a legal definition of “citizenship of the United States.” What does it mean? What is its length and breadth? I would be glad if the honorable Senator in good earnest would favor us with some such definition. Is the child of a Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is murder to kill another man. You cannot commit an assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word.

It is perfectly clear that the mere fact that a man is born in this country has not heretofore entitled him to the right to exercise political power. (The Congressional Globe, May 30, 1866, p. 2890.)

What is clear from the legislative history is that the Congress was focused specifically on addressing the issue of establishing citizenship for those individuals who had been born in the United States of parents who were not subject to the “jurisdiction” of any other nation. Only one such population existed – the freed slaves. The specific intent was to declare that the freed slaves, many of whom were being denied recognition as citizens in some states, were by constitutional amendment citizens of not only the United States but also of the state within which they resided.

Nothing in the amendment was intended to grant or recognize citizenship to any individual born in America of parents who were “subject to” the jurisdiction of another nation – as the debate over the status of Indians and other examples made clear.

Within a few years of the ratification of the 14th Amendment, the United States Supreme Court addressed the scope of its declaration of citizenship. In what is referred to as the “Slaughter-House cases”, 83 U.S. 36 (1873), the Court described the limited purpose of Section 1 of the 14th Amendment:

The first clause of the fourteenth article was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States, and citizenship of the States, and it recognizes the distinction between citizenship of a State and citizenship of the United States by those definitions.

A few years later the Supreme Court addressed in Elk v.Wilkins 112 U.S. 94 (1884), the phrase in Section 1 of the Amendment “subject to its jurisdiction”. This phrase was examined in an action brought by an Indian against the state of Nebraska for refusing to register him to vote. In holding that an Indian who was born in the United States was not a “citizen” under the 14th Amendment (in the absence of other factors) and was not entitled to vote, the Court stated:

Chief Justice TANEY, … did not affirm or imply that either the Indian tribes, or individual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His words were: ‘They’ (the Indian tribes) ‘may without doubt, like the subjects of any foreign government, be naturalized by the authority of congress, and become citizens of a state, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.’ But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law. (Id., at 101.)

The Court continued:

The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. (Id, at 101.)

The Court, during the era when the 14th Amendment was adopted, made clear that the status of the parents determines the citizenship of the child. For a child to qualify for “birthright citizenship” under the original intent of the 14th Amendment, the child’s parents must have a “direct and immediate allegiance” to the United States and be “completely subject” to its jurisdiction. In other words, the intent was that the parents must be United States citizens at the time of the birth. Although not an issue at the time, this would have precluded, in the minds of the drafters, “birthright citizenship” being deemed to be held by children whose parents were illegally in the country as well as those legally in the country but citizens of another nation (as demonstrated by the exclusionary references in the debates to foreign ministers and even native Indians).

In the 1898 case of United States v. Wong Kim Ark, 169 U.S. 649, Mr. Ark claimed citizenship because he was born in San Francisco. His parents were Chinese, subjects of China but the record indicates that they were legal residents of California at the time of his birth. The court concluded in an extensive and somewhat rambling opinion that the status of the parents was crucial in determining the citizenship of the child. The Court, in a divided opinion, held that the case was before it for one purpose, that being:

to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. (Id, at 705.)

It is significant to note that the Court expressly used the term “domicil” in describing the status of the parents even though they were subjects of another country. The reliance on the status of the parents as being legally domiciled in the United States at the time of the birth would or should preclude “birthright” status to any child whose parents were not legally domiciled in the county, that is, the children of illegal aliens. That is, of course, if the Court were to be constrained by the plain words of the amendment and its legislative history.

In 1924, Congress enacted a statute that expressly granted full citizenship to native Indians, who were not citizens under the 14th Amendment even through they were born within the United States. See, 8 U.S.C. §1401.

Section 1 – What rights were being addressed?

In 1866, the issues before Congress were, as noted above, not focused only on the granting of rights to the freed slaves but also on dealing with the political issues created by the 13th Amendment (freeing the slaves) and dealing with the Confederate states in a post-Civil War era.

On the narrow issue of what rights and privileges were being contemplated by Congress at that time, we find instruction in the scope of the Civil Rights Act of 1866 which was enacted just prior to the adoption of the 14th Amendment. Section 1 of the Civil Rights Act provided:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

Thus, the Civil Rights Act of 1866 addressed certain specific rights as were then “enjoyed by white citizens,” namely –

– to make and enforce contracts,
– to sue, be parties, and give evidence,
– to inherit, purchase, lease, sell, hold, and convey real and personal property, and
– to full and equal benefit of all laws and proceedings for the security of person and property.

The historical record suggests that the objective of the 14th Amendment was to make clear that whatever rights may have existed at the time in those classes of people who were recognized as “citizens” prior to the 14th Amendment would be shared and held by those classes of people whose citizenship was being defined and recognized by the 14th Amendment.

Significantly, no new rights were being created. This point is critical to appreciate that the Judiciary’s later creation or “recognition” of an entire panoply of “rights” that are based solely on select clauses of the 14th Amendment but which did not exist in the eyes of the law in “white citizens” prior to its adoption in 1866 is a form of judicial expansion of rights that the drafters of the 14th Amendment did not intend or foresee.

Section 1 – Privileges and Immunities

The second sentence of Section 1 starts off with the declaration that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” The inquiry becomes what are such “privileges or immunities”?

The term “privileges or immunities of citizens” as used in the 14th Amendment is substantially the same as the clause in Article IV, Section 2 of the Constitution which states “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” That is, under the Constitution as drafted initially, the citizens of each state would have the same protections as the citizens of each other state. No state’s citizens would be treated differently from the citizens of any other state vis-a-vis the Constitution.

This interpretation has historical support. Thus, the phrase “privileges and immunities” also appeared in the Articles of Confederation at Article IV:

The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties impositions and restrictions as the inhabitants thereof respectively, . . . .

James Madison wrote concerning the meaning of the “privileges and immunities” phrase in the Articles of Confederation in Federalist No. 42:

It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction.

A review of the Congressional discussions and debates on the 14th Amendment do not indicate specifically what was intended by the phrase “privileges or immunities.” More specifically, there is nothing in the debates or the language of the amendment to show that the text was intended to mean something different than what it had meant for the preceding decades or centuries.

The literature since the Amendment’s passage suggests that the clause was intended only to clarify that whatever “privileges or immunities” were being recognized and protected in Article IV, Section 2, of the Constitution were also being secured and protected to those individuals who were being declared citizens by Section 1 of the 14th Amendment. Nothing new was being created. Quite simply, Congress was just making it clear that all citizens would be treated consistently to the same extent as provided in Article IV, Section 2 of the Constitution.

The privileges or immunities clause thus should be read to mean nothing more than whatever privileges or immunities were enjoyed by individual “citizens” of the United States prior to the adoption of the 14th Amendment were to be applied equally to those who were being granted citizenship status by the 14th Amendment. There is no historical evidence to suggest that Congress and the ratifying states were creating new privileges or immunities through the adoption of the 14th Amendment.

The United States Supreme Court addressed the topic in Paul v. Virginia, 75 U.S. 168 (1869) in which the Court said the following starting at page 180:

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws.

Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.

But the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges which they confer must, therefore, be enjoyed at home, unless the assent of other States to their enjoyment therein be given.

* * *
If, on the other hand, the provision of the Constitution could be construed to secure to citizens of each State in other States the peculiar privileges conferred by their laws, an extraterritorial operation would be given to local legislation utterly destructive of the independence and the harmony of the States. * * *

Nevertheless, some have asserted that the “privileges or immunity” clause in the 14th Amendment was somehow intended to require states to adopt certain substantive thresholds to their respective laws – that is to expand their respective state laws to some minimum threshold.

The “equality interpretation” of this phrase is unconcerned with the substantive content of a state’s law and it merely requires that whatever the state’s laws are that those laws apply equally to all citizens. On the other hand, those who embrace a “substantive interpretation” of the clause read into it a requirement that the Constitution could be used to force states to implement or recognize some undefined and evolving minimum package of federally protected “privileges” or “immunities.” That is, the “substantive interpretation” ignores what the intent of the drafters was in 1866 but it instead views the scope of the clause “privileges or immunity” to be an amorphous concept that expands – it only expands – as changes in society and public opinion evolve over time even without additional changes to the constitution itself.

Given that the Constitution had included the “privileges and immunities” phrase in Article IV, Section 2 and that this clause had been subject to both analysis and judicial construction for approximately 7 decades prior to its use in the 14th Amendment, it is likely that the clause was not intended to create or require the states to create new or evolving substantive rights for all of the citizens. Instead, given the lack of material debate on the issue, it is more likely that the phrase was intended at that time and by the drafters merely and simply to make clear only that whatever “privileges or immunities” already existed by virtue of Article IV, and for that matter, under the relevant English common law, would be equally applied to the class of individuals whose citizenship was being defined and established by the 14th Amendment itself.

Despite the original intent of equality of application of the state laws, there is strong evidence to show that over time the Judiciary has acted as if the 14th Amendment’s privileges or immunities clause has an unconstrained substantive element that can and has changed with the composition of the Supreme Court. Thus, it has become one of the tools that the Judiciary, perhaps wrongly, has used over and over to invoke the 14th Amendment’s language in order to fabricate new rights that quite clearly did not exist at any point prior as of the Amendment’s adoption in 1866 or, for that matter, for many years afterwards.

Section 1 – Due Process of Law

The second sentence of Section 1 also contains the clause “… nor shall any State deprive any person of life, liberty, or property, without due process of law….” But what was meant by the drafters in 1866 with respect to the clause “due process of law?”

The clause is essentially identical to a provision in the Fifth Amendment which states that citizens shall not “… be deprived of life, liberty, or property, without due process of law;” by governments.

Historically, the concept of due process of law dated back into English history to at least the Magna Carta signed by King John on June 15, 1215. Although the original was in Latin, an interpretation of Chapter 39 of the Magna Carta states:

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

Some 139 years later, in 1354, a statute was enacted under the reign of King Edward III which had the effect to restating much of what had been contained in the Magna Carta. In the 1354 statute, the phrase due process of law appears perhaps for the first time in formal form:

No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.

A full discussion of what specifically was meant by the drafters in using the clause “due process of law” is far beyond the scope of this writing. In general, however, the concept of due process requires that all of the actions taken by a government against an individual in the context of either civil or criminal legal proceedings will be fair, reasonable and that the actions will not be arbitrary or capricious. Further, the concept of due process requires that a citizen will be given adequate notice of any legal actions or proceedings and also the opportunity to be heard in and participate in those proceedings before the government takes away the citizen’s life, liberty, or property.

Generally, the concept of due process was further divided into at least two broad categories: substantive due process and procedural due process. Substantive due process addresses the prohibitions on government regulation or infringement of fundamental liberties – a concept that seems to continually expand as courts continue to find and create new “rights” where none are expressly stated or recognized in the common law history. On the other hand, procedural due process deals with how rights are enforced or protected in government proceedings.

The “due process of law” and its components of substantive and procedural due process, including what is sometimes referenced as the “incorporation doctrine,” have been some of the tools used by the federal courts since the late 1800s to substantially expand the scope of federal power far beyond that ever truly intended by the drafters of the Constitution much less by the states that ratified the Constitution. To some, the problem of the runaway federal judiciary finds its genesis in the ever evolving development, if not wholesale expansion, of the 4 simple words – “due process of law.”

An example of this “incorporation” doctrine, can be found in the Supreme Court’s ruling in McDonald v. City of Chicago, 561 U.S. 742 (2010). Prior to this case, numerous state and federal cases – including one by the Tennessee Supreme Court – had held that the 2nd Amendment in the Bill of Rights only operated as a prohibition against the federal government’s infringement of the rights that were recognized and protected by the 2nd Amendment, that is, the right of individuals to “keep and bear arms.” The case law was abundantly clear for over 2 centuries that the 2nd Amendment prohibition on government infringement on individual rights did not apply to regulate state action or statutes because those were issues that the states reserved to their own discretion through the 10th Amendment.

However, by use of the nebulous “incorporation” doctrine, the United States Supreme Court suddenly found in 2010 that the right of an individual to “keep and bear arms” as protected by the Second Amendment against federal infringement was also now, some two centuries later, a prohibition on state laws that might infringe those same rights because of the due process clause of the Fourteenth Amendment that came into existence in 1866. It could be argued that the Supreme Court creation of the incorporation doctrine from the language of the 14th Amendment – something never even mentioned in the drafters’ debates – is a sheer fabrication invented by the Court to legislate when and where it chooses to change, frequently substantially, well settled law or to create entirely new law.

Section 1 – Equal Protection

Section 1 of the 14th Amendment finally provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

The phrase “equal protection” like the phrase “due process of law” is the wellspring from which an overwhelming abundance of federal cases have devolved since the late 1800’s. However, if one steps back into the context in which the 14th Amendment was written and considers the specific purposes for which it was written, it is clear that the original intent was by no measure equal to the abuses of government expansion that have followed.

Again, the 14th Amendment was written in the immediate post Civil War era to deal with the status of the freed slaves (and others) who were not viewed as natural born citizens in some states and/or which were denied the rights of “white citizens” in some states. The 14th Amendment’s references to “privileges or immunities”, to “equal protection” and to “due process of law” were all originally intended to make clear that all citizens of the United States and of the specific state of their respective residences would enjoy and be protected by the same core set of civil rights that were recognized to be vested in “white citizens” as of 1866. The original intent seems clear in that light. There was no evidence in the historical record to suggest that the drafters of the 13th, 14th and 15th Amendments were fabricating tools that would give rise to massive new federal powers and the neutering of the 10th Amendment.

The clause was to, as a matter of federal law, make clear that a state legislature was prohibited by federal protections from denying to any citizen of the United States who was within its borders any privilege or immunity that the state granted to “white citizens.” If a state had a statute or regulation, that law could not be enforced discriminately against or in favor of one class of citizens over another – all were entitled to the equal protections of the law. Then in instances where a person was charged with a violation of the law, every person was guaranteed the same due process protections as were referenced in the Fifth Amendment and that had been previously applied to “white citizens.”

It appears that despite the original intent to focus on the issue of the freed slaves and others fitting the new definition of a natural born citizen, the 14th Amendment has become on of those vehicles which the federal courts have used, and in the eyes of many abused, in their quest to find and create rights, protections and privileges where none had constitutionally existed before – at least in the eyes of the law.

Sections 2, 3 and 4

The Congress spent much of its time discussing Sections 2, 3 and 4 of the Amendment. However, with the passage of time, each of these Sections have been rendered largely moot in the affairs of modern national and state governance.

As noted above, Section 2 dealt with the voting rights of the newly identified citizens – predominately the freed Southern slaves. Section 2 does not vest voting rights in the new citizens – and was not intended to do so as a matter of federal law. Section 2 was instead an amendment to Article I, Section 2, Clause 3, of the Constitution which counted slaves as 3/5 of a person for purposes of representation in Congress.

Section 2 of the Amendment provided that for purposes of Congressional representation, each citizen would be counted as a full – not a fractional – person but that representation in Congress would reduced to the extent that the capacity to vote was “… denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, …” except by forfeiture due to a criminal conviction or rebellion.

Thus, the 14th Amendment did not guarantee the right to vote to the freed slaves any more than the northern slaves had that right. What the 14th Amendment did was to provide an inducement for the States to, by state law, allow all male citizens, regardless of race, to participate in voting. States which disallowed the freed slaves to vote (or any subsequent classes) would be penalized in terms of congressional representation.

Section 3 was intended to disqualify those who had been instrumental in the Confederacy from holding any federal or state offices. It was viewed by some as an unnecessary punishment and indeed it may have been motivated by efforts to curtail the involvement of these former confederates in the anticipated presidential elections in 1868. The effect of Section 3 was lifted, as for those who were instrumental in the Confederate states, in 1898 when Congress granted relief to all.

Section 4 deals with the validity of the Northern war debt and at the same time declared the Confederate debts unenforceable as a matter of law.

Conclusion

The 14th Amendment, when read in light of its time and the issues on the minds of its drafters, was intended to make clear that whatever civil rights and federal protections of those rights were enjoyed by “white citizens” as of 1866 and thereafter were equally applicable to those being reclassified as natural born citizens by the Amendment. It also dealt with issues of how congressional representation would be adjusted, the capacity of Confederate officials to continue in public service and with the validity of both the Northern and Confederate war debts.

The 14th Amendment was not intended to create new rights that had not previously existed. It was clearly not intended to vest some vague authority in the Judiciary to craft from the heavens whatever rights, privileges or interests a handful of judges felt should exist but did not exist as a matter of a simple, layman’s reading of the words in the Constitution.

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John Harris practices law in Tennessee and is executive director of the Tennessee Firearms Association. He is the co-author of The Tennessee Star’s Guide to the Constitution and the Bill of Rights for Secondary School Students.

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