Thus, the Fourteenth Amendment's “privileges and immunities” create no new rights, but merely ensure that the new citizens created by virtue of the Thirteenth Amendment's banishment of slavery are free to travel unmolested in the various states and entitled to whatever existing freedoms and protections are available to the citizens of the state they are visiting. In other words, travelers can’t be singled out for detainments, punishments or the application of special rules that aren’t applied to citizens from that state. (The Dred Scott decision was not far from Congress' mind when this amendment was drafted.)
No new rights were created by the “due process” standard either. “Due process,” which also appears in the Fifth Amendment, historically has a narrow legal meaning, simply providing for fair and impartial legal proceedings.
The “equal protection” requirement did create new rights, as it ensured that state legislation must be applied equally to all persons. A state, for example, could not impose harsher criminal penalties on one group than another. But it is more than stretching the Constitution’s fabric to conclude that this means the Bill of Rights applies to the states; it is inventing a new form of government out of whole cloth.
By its unlawful incorporation of the Bill of Rights as binding on the states, the Supreme Court essentially staged a coup d'etat, changing the first ten amendments from a limitation on federal power into a source of it. Those who would defend such a usurpation of authority should be held to a very high burden of proof that the enacting legislative body intended such a consolidation of power, particularly when such powers are mysteriously “discovered” nearly one hundred years after passage of the law supposedly accomplishing it.
Two questions immediately arise: First, why did the first five generations after the amendment was enacted – those who knew best what the amendment’s “original intent” was – behave as though no change had occurred in the federal government’s relationship with the states? Second, if the Congress enacting the amendment intended it to apply the Bill of Rights to the states, why didn’t they just say so, instead of inserting a “time bomb” into the Constitution whose meaning would be inexplicably uncovered a century later by a Supreme Court steeped in modern collectivist thinking?
The conclusion is clear: Despite all the fancy talk, the Fourteenth Amendment was never intended to incorporate the Bill of Rights and apply it to the states. Through judicial activism, relentless left-wing propaganda, and the supine acquiescence of the American people, nothing less than a giant swindle has turned the Constitution on its head. Hard as it is to accept, most of the federal government’s activities nowadays are unauthorized and unlawful, having no Constitutional basis.
The only saving grace is that, so far, our monstrous federal government – its limitations ignored, its separation of powers long forgotten – strives to be benign. Let’s hope it stays that way.
Typical was one Catholic Exchange reader who wrote, “I was taught that the whole purpose of the 14th [amendment] was to protect Federal rights. By extension, counties and cities would be similarly restrained from abridgement of Federal rights since they are creatures of the States.”
Therein lies the problem – this is what most people are taught. But to paraphrase Mark Twain, the problem isn’t what people don’t know, it’s what they know that isn’t so.
That intelligent, well-meaning people are confused about constitutional issues comes as no surprise. Since the Earl Warren era, the Supreme Court more often interprets the Constitution by what it wishes were there than what actually is there. The Court’s rulings bear no relation to the Constitution’s wording.
Consequently, no one knows what the Constitution, the basic foundation of our republican form of government, is going to mean tomorrow. It’s like playing football using goal lines that keep moving according to your opponent’s whims. You won’t win many games that way.
The current controversy over Attorney General John Ashcroft’s recent proclamation that the Second Amendment should be interpreted according to the Constitution’s “plain text” and the Founders’ “original intent” illustrates the point. If Ashcroft is sincere about taking the Constitution seriously – and I truly hope he is – it will require a sea change in our thinking. Even such earnest defenders of the Constitution as the National Rifle Association now routinely raise Second Amendment arguments – wrongfully, I maintain – in defending gun owners against restrictions imposed by state and local governments.
Contrary to contemporary interpretation, the Bill of Rights was aimed at limiting the federal government’s powers, not at restraining the self-governing authority of the states and the people. This logically follows from the Constitution’s construction and is enshrined in the Ninth and Tenth Amendments – neither of which has been repealed, as far as I know. Neglected, certainly, but not repealed.
States and local governments are intended to have broad power to regulate what they perceive to be pernicious or dangerous influences in their communities. Thus, if a city like Los Angeles or San Francisco enacts gun control curbs, these restrictions may be unwise and counterproductive, but they are certainly not unconstitutional. Likewise, federal gun control laws such as the Brady Bill and assault weapons bans are clear violations of the Second Amendment.
The Supreme Court never considered applying the Bill of Rights to the states until 1947, when Hugo Black, in his dissent in the case of Adamson v. California, “discovered” that the Fourteenth Amendment intended to make the Bill of Rights binding on the states. Furthermore, it was not until the Warren Court that the first Ten Amendments were used consistently to limit state action. Our ability to determine the destiny of our communities has not – to say the least – been the same since.
Where did the Court find the power to incorporate the Bill of Rights and thus bring states in under their jurisdiction, despite all the efforts of the Founding Fathers to the contrary? The Court hangs its hat on three phrases in the Fourteenth Amendment which it claims allows incorporation: the “privileges and immunities” clause, the “due process” standard, and the “equal protection” requirement – none of which holds up under close examination.
All three are contained in the second sentence of the Fourteenth Amendment’s Section 1: “No state shall make or enforce any law which shall abridge the privileges and 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.”
The “privileges and immunities” clause in the Fourteenth Amendment is an echo of the “privileges and immunities” found in Article IV, Section 2 of the Constitution, which themselves are linked to the “privileges and immunities” in the Constitution’s predecessor, the Articles of Incorporation. When read in context, these “privileges and immunities” are clearly only intended to protect the rights of U. S. citizens to what the Articles call “free ingress and regress” from state to state and to receive the same legal rights and protections as that state’s residents.