By 1866, new elections gave the radical Republicans more power in Congress and they were able to over-ride all of Johnson’s vetoes and push forward their agenda. "Radical Reconstruction" was the term for this era beginning in 1867. It began with Congress refusing to seat the South’s elected Senators and Representatives (under the clause of the Constitution that says "Each House shall be the judge of the...qualifications of its own members."). The southern electorate voted in a host of Confederate and antebellum southern officials, among them the former vice president of the Confederacy, Alexander Stephens, but the Republican- and Northern-controlled Congress recognized the potential they held posed for plans to remake southern society and would not seat them. With the end of the war in April 1865, former Confederate states began to tightly restrict the freedoms afforded the millions of freed slaves (as was envisioned the case would be). Several states soon passed "Black Codes," prohibiting blacks from, among other things, serving on juries, testifying against whites, or owning guns. The codes also created oppressive vagrancy laws that subjected those without work to arrest and prison. In 1865 the Ku Klux Klan formed in Tennessee as a secret society designed to terrorize blacks. For many Republicans in Congress, the passage of the Black Codes and the reemergence of ex-Confederate leaders meant that the Union victory was being undermined. Woods and Gutzman, authors of Who Killed the Constitution, made this comparison: “In the immortal words of Pete Townshend: ‘Meet the new boss, same as the old boss.’”
In response to attempts to disenfranchise blacks such as the Black Codes, the Republican majority in Congress attempted to guarantee the basic rights of blacks (such as the right to vote, to marry, to own land, the enter into and enforce contracts for labor and housing) by passing the Civil Rights Acts of 1866, which removed the civilian governments that had been established in the Southern states shortly after Lincoln’s assassination and divided the South into five districts, placing them under the rule of the US Army. Escape from permanent military government, however, was open to those states that established civil governments, took an oath of allegiance, ratified the Fourteenth Amendment and adopted black suffrage. In other words, states were required to ratify the Fourteenth Amendment before readmission to the Union. President Johnson, a southern Democrat who held traditional Jacksonian Constitutional views, vetoed the Act, correctly noting that Congress had overstepped its bounds and was attempting to assume control over matters that the Constitution reserved to the states. Congress, true to form, overrode this veto. They also tried to impeach Johnson so that he couldn’t try to obstruct their efforts any more, and even though they were successful in bringing articles of impeachment against him, they lost the decision to remove him from office by one sympathetic vote.
The culmination of Congress’ attempts to give basic rights to the emancipated slaves occurred in 1867 and 1868, when it passed a series of Reconstruction Acts. These measures were implemented and constituted the final restoration program for the South.
(Note: After 1877, Army rule ended in the South and a period called “Redemption” followed. This was the period of Jim Crow laws, the rise of the Ku Klux Klan, and the great disenfranchisement of many blacks. The Democratic Party dominated this new “Solid South” almost consistently until the 1960’s).
Let us dissect the Fourteenth Amendment, because its construction is immensely important. As we know, the Thirteenth Amendment wasn’t enough to immediately confer freedom to freed slaves. It merely abolished slavery … nothing else. The bitter states, and possibly even the border states, presented a formidable barrier to incorporating blacks as freemen into society. After all, there was nothing on record granting blacks citizenship or granting them any rights. Very importantly, the infamous Dred Scott decision was still legal precedent and law of the land. The Republicans would still have to deal with this case. In Dred Scott (1856), one of the most regretful opinions of the Supreme Court, the decision permanently blocked blacks from obtaining US citizenship and from having any rights that were protected under the US Constitution. Chief Justice Roger Taney announced the court’s decision on March 1857 which held that all people who were “descendants of African born slaves” could never be a citizen of the U.S. and consequently, not to bring a lawsuit before the court. In other words, according to the Supreme Court, black people had no rights which were recognized or protected by our Constitution. Slavery was still endorsed as legal and the Missouri Compromise of 1820 was unconstitutional (which required certain states, above the southernmost Missouri state line, to come into the union as non-slave states). Finally, slaves were still viewed as property and could not be taken away without offending the Fifth Amendment’s Due Process clause.
With this historical backdrop in mind and with these issues facing the re-unified nation, the Republicans pushed through the Fourteenth Amendment in 1868. The sole intention behind this amendment was to grant recently freed slaves the right of citizenship and to ensure that they would be treated fairly by the individual states and would not be denied basic rights of citizens. The Fourteenth Amendment, therefore, was drafted and narrowly designed to correct a single deficiency – that very real possibility that states might try to deny newly-freed blacks their “inalienable right to liberty.”
Section 1 of the Fourteenth Amendment reads: “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.” [Note that the first part of the 14th Amendment nullified the Dred Scott decision and the second part immortalized the Civil Rights Act of 1864. Section 1 of the 14th Amendment contains a “Privileges and Immunities” clause, a “Due Process” clause, and an “Equal Protection” clause].
There was no mystery about the meaning of the amendment’s provisions, according to the Supreme Court in 1873 when it had its first opportunity to address its merits. In the Slaughterhouse cases, the Court affirmed its meaning in true historical context. The issue at stake was whether the Fourteenth Amendment guarantees federal protection of individual rights which are denied or discriminated against by state governments and the Court held that it doesn’t. One reason for the majority's narrow construction of the amendment was its fear that a more expansive reading would threaten the basic functions of state governments, both by federal judicial action and through enforcement by federal statutes that might displace large areas of state law. Justice Miller delivered the opinion: ”The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history…… Notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity….
Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights--the rights of person and of property--was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.
But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this Court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts.”
Over the next 100 years, however, the Supreme Court did an about-face regarding its views of the Fourteenth Amendment, and intentionally disregarded the Congressional intent in drafting the amendment and disregarded the decision in the Slaughterhouse cases. No longer was it going to respect the limited purpose it was adopted for. No longer was it going to balance its limited purpose with the need for state sovereignty. The Supreme Court used the Fourteenth Amendment to apply fundamental rights to the States such that the States could not burden them. The Court eventually used its “Due Process” clause to incorporate particular rights contained in the first Eight Amendments to the States. In the case of Gideon v. Wainwright (1963), the Court clarified that the governing standard is whether a particular Bill of Rights protection is “fundamental” to our Nation’s particular scheme of ordered liberty and system of justice. Eventually the Court would hold that almost all of the Bill of Rights’ guarantees met the requirements for protection under the Due Process Clause.
The Supreme Court used the Fourteenth Amendment to apply fundamental rights to the States such that the States could not burden such rights. In other words, they made the various amendments binding on the States. In doing so, the Court has neutered the Tenth Amendment. It might not seem like a bad thing to have that extra layer of protection for our fundamental rights, right? But then you have to consider that whatever the Court determines to be an “adequate reading” of your rights is what will become binding on you at the state level. There is no buffer. If persons abuse their rights on the west coast, for example, such that it becomes disruptive of an orderly society, the Supreme Court can hear a case and burden those rights for everyone in every single state of the nation. If you think this is a stretch, consider what happened to the First Amendment. The First Amendment was intended as a prohibition on Congressional activity ONLY. “Congress shall make no law respecting the Establishment of Religion.” The amendment was a no-brainer. Clear as day. The First Amendment prevents the federal government from officially designating one religion over all others as the official national religion, so that there can never be any religious oppression or persecution in this country. Yet, not only could the Supreme Court read the amendment incorrectly (it must have somehow missed the clarifying word “Congress”), but it intentionally chose to ignore all written works on point which addressed its intention and meaning. So now, the law of the land is that there is a “wall of separation” that is “high and impregnable” between Church and State which not only applies to Congress, but applies to every school, public square, every state town hall meeting, and every local public place and event. The Fourteenth Amendment did that. And nine Justices. Almost 200 years of history was undone in less than 40 years.
Don’t get me wrong….I am ecstatic over the Supreme Court’s decision in McDonald. But I wanted to discuss what this case means, how it came to be decided as it did, and how fragile a decision it truly is. Had Obama appointed another Justice prior to this decision, we might not be celebrating a Second Amendment victory. Had there been even one less conservative Justice, we would be left to the mercy of the jurisdiction we live in as to whether we could own a gun to protect us from the criminals who obey no rules, including the ones banning weapons. We Americans are truly at the mercy and whim of the Court. We need to be more mindful of who wears the robes of our highest Court. We need to ROCK THE VOTE and get a President and other elected officials in Washington who will protect the Court from those who will take our precious rights away from us at every chance they get.
Which brings me to my last topic: Do we still need the Fourteenth Amendment? Should we repeal the it? At this point in time, does it serve more harm than good? I would argue that repealing the Fourteenth Amendment is a good first step in returning our system back to one that more adequately represents the intentions of our Founding Fathers.
Here are some thoughts I have in repealing the Fourteenth Amendment :
1). It is no longer needed… Slavery has ended. It has been over 140 years since the scourge has been removed from our nation. Blacks are no longer prohibited from voting, owning property, entering into employment contracts, marrying, etc. The very reasons for the Fourteenth Amendment are no longer exist in the US.
2). It will automatically return the Constitution to its original status regarding government power versus States’ powers. States rights will immediately be restored to honor the intentions of those representatives who fought so hard for their sovereign rights. The government will no longer be able to impose the regulations of the Bill of Rights onto the States (ie, it’s “view” such as “Wall of Separation,” Roe v. Wade, bussing, etc).
3). It will take care of the “illegal immigration” issue of birth in the US automatically guaranteeing citizenship. [Although there may be an argument that Section 1 of the Fourteenth Amendment contains a “qualifier” that may be used to get around this general assumption that birth on US soil guarantees automatic citizenship. Section 1 reads: “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.” The phrase, “subject to its jurisdiction” might be that “qualifier”]. Currently, an individual born in the United States is a citizen whether or not their parents are not legal. This has huge implications for our current (illegal) immigration problem. Many see “citizenship by birth” as an integral part of the Fourteenth Amendment. However, as one Oklahoma state representative offers: “This ‘Born-in-the-USA’ (sorry, Springsteen!!) provision could produce the absurd result that children of invading armies would be considered citizens of the U.S."
4). It will help neuter the “race card” which burdens free speech, interferes with law enforcement, and stymies meaningful dialogue on crucial social issues and other issues. Repeal of the Fourteenth Amendment signals that we are past Civil Rights indignations against the African race.
5). It signals to the people in this country that Slavery is in the past and we are officially moving forward. No more dwelling on it, no more talking about it as if apologies and policies are still necessary. Too many people in this country are here because of immigrants who came here during the 20th century and have no ties to that wretched part of our history. They shouldn’t have to be punished for it. And it’s certainly not helpful to black people either. They are a wonderful and vibrant part of our nation now.
Sure, we might have to re-visit this “Right to Bear Arms” (as allowed in the individual states) for protection if we repeat the Fourteenth Amendment, but my prediction is that States which are bold enough to fight crime, thugs, and gang activity will be the same States which will have no problem prohibiting an individual’s right to bear arms. Besides, it’s easier to have local protests against policies that are unpopular than it is on a national level. But first we have to get rid of the political mentality that the Fourteenth Amendment is the catch-all to solve all social problems or the foundation to change society at the (liberal) government’s whim. We have to get rid of the political mentality that the value of a vote outweighs the immense harm that the individual presents to the rest of society.
But for today, let’s just rejoice in knowing that for the coming years at least, the Second Amendment is strong and secure. The Supreme Court got this one right.
Citations:
McDonald v. City of Chicago, 153 U.S. 535 (Oct. 2009)
District of Columbia v. Heller, 554 U.S. (2008)
Duncan v. Louisiana, 391 U. S. 145 (1968)
Dred Scott v. Sanford, 60 U.S. 393 (1856)
Washington v. Glucksberg, 521 U. S. 702 (1997)
Everson v. Board of Education, 330 U.S. 1 (1947)
Slaughterhouse cases, 83 U.S. 36 (1872)
Gideon v. Wainwright, 372 U. S. 335 (1963)
Bob Weir, “Thanks to Otis McDonald and the Supremes,” American Thinker, July 3, 2010
Publisher's note: Diane Rufino has her own blog, For Love of God and Country.
Come and visit her. She'd love your company.
