UNNATURAL SELECTION

Over the last 50 years, or so, the Supreme Court has discovered numerous surprising new principles in our 200-year-old Constitution.  In almost every case, the amazing new principle was said to reside in the 135 year-old 14th Amendment, possibly in combination with some other Amendment.  Let's review a few examples.

The Supreme Court has told us that the 14th Amendment, in combination with the First, protects flag burning.  Yet our forefathers, who adopted the 14th Amendment, punished public desecration of the American flag with death [1].

The Court has told us that the 14th Amendment demands gender equity in all state and local programs.  But Section 2 of the 14th Amendment expressly permits, even encourages, gender discrimination by the states in federal elections [2].

The Supreme Court claimed that the 14th Amendment mandates forced busing to integrate public schools.  That would be a big surprise to the folks who adopted it in 1866.  They intended quite the opposite and they said so on the record.  Even liberal law professors admit this.  See, for example, the essay by Laurence Tribe in Scalia et. al., A Matter of Interpretation: Federal Courts and the Law.  The Thirty-Ninth Congress, which drafted the 14th Amendment, also passed legislation which retained racial segregation in the Washington, D.C. schools.  When the Senate voted to adopt the 14th Amendment, it had separate black and white sections in its visitors' gallery [3].

The Court claims that the 14th Amendment forbids any meaningful state restrictions on abortion.  Yet the Amendment says not a single word about abortion, privacy, or "choice."  And when the states ratified the Amendment, most of them had anti abortion laws on the books.  They passed or toughened many of those laws in the 1860's and 1870's, right around the same time they ratified the 14th Amendment.  And Congress passed laws in 1865 and 1872 making it a criminal offense to send abortion information through the mail.  So we're told that, at the same time Congress and the states were passing laws against abortion, they amended the Constitution to nullify all those laws [4].

Contemporaneous with the adoption of the 14th Amendment, Congress passed four "enforcement" laws, (in 1866, 1870, 1871, and 1875) as Section 5 of the Amendment expressly authorized.  The text of those four laws, which ran in total to over 8000 words, was completely devoid of any language to support claims that the 14th Amendment protects flag burning or abortion, or demands public school integration or gender equity in state programs [5].

Given the numerous and obvious contradictions between the historical record and the claims of our judicial employees, one is entitled to wonder: do "We the People" have a major problem with employee fraud?

Perish the thought, say the liberal elites who write for the New York Times or teach in our law schools.  And they offer two main cover stories to explain away the contradictions.

The first one goes something like this.

Yes indeed, no one back then intended the 14th Amendment to protect flag burning or abortion.  No one intended it to demand gender equity or public school integration.  But the framers were very wise.  They knew that we would need changes as time went on.  So they used sweeping, vague language, guaranteeing things like "due process."  They wanted to give the Supreme Court the tools it needed to adapt the Constitution to the needs of changing times.
Let's call this one the 'vague-on-purpose' story.

The other main cover story goes more or less as follows.

Prior to the ratification of the 14th Amendment, the Bill of Rights restricted only the federal government.  But the framers of the 14th Amendment decided to change that.  They wrote the Amendment to "incorporate" the Bill of Rights against the states, so that federal courts would be able to force the states to honor our basic civil rights.
Let's call this one the "incorporation" cover story.

The Supreme Court prefers a combination of the two cover stories.  The Court has long taken the position that our forefathers intended the "due process" clause of the 14th Amendment to incorporate parts of the Bill of Rights against the states.  Exactly which parts it incorporates changes from time to time.  Whenever these changes occur, the Court will let us know.  Our judicial employees also claim that the authors of the 14th Amendment intended to give the Court free rein to expand without limit the meaning of the term "due process" [6].

A review of the history of the 14th Amendment reveals that both cover stories are false.  We'll take them one at a time
 

THE 'VAGUE-ON-PURPOSE' COVER STORY

There are at least four reasons to reject the "vague on purpose" cover story.  The first reason involves the 14th Amendment itself.  Its Section 5 explicitely assigns enforcement power to "Congress," not the courts.   The 14th Amendment's framers included Section 5 in response to a catastrophic piece of recent Supreme Court mischief.  In 1857, the Court had handed down the Dred Scott decision, a decision that was motivated by judicial bias and was grossly unjust, a decision that Abe Lincoln called a perversion of the Constitution, and a decision that Lincoln's contemporaries blamed for causing the Civil War [7].

After the Civil War ended, Congress responded to the Court's brazen power grab; it proposed the 14th Amendment.  The Amendment's first Section nullified the Dred Scott decision; its last one said,

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

That language wasn't used in Constitutional Amendments until after the Civil War.  Congress then began including such language to limit the Court's ability to "pervert the Constitution."  The Court actually admitted that Section V was intended to reserve enforcement power to Congress for a decade or so after the 14th Amendment was passed.  In 1879, in Ex Parte Virginia, the Supreme Court wrote:

"It is not said (by the 14th Amendment, that) the judicial power of the general government shall . . . be authorized to declare void any action of a State in violation of (its) prohibitions.  It is the power of Congress which has been enlarged.  Congress is authorized to enforce the prohibitions by appropriate legislation" [8].

The second reason is simple and obvious.  The framers of the 14th Amendment obviously knew the proper way to adapt the Constitution to meet the needs of changing times.  They did it three times within the space of five years, adopting the Thirteenth Amendment in 1865, the 14th in 1868, and the Fifteenth in 1870.  They used the method that the Constitution expressly requires us to use for that purpose.

The third reason involves the legislation (referred to in the sixth paragraph above) that Congress passed to enforce the 14th Amendment.  That legislation, which ran in aggregate to 8149 words, was quite specific and detailed.  Over the years, the Supreme Court found pretexts to nullify most of it, because the justices found it distasteful.  Nevertheless, it's beyond honest dispute that the enforcement legislation expressed the intent of our founders in framing and ratifying the 14th Amendment.  The Congresses that passed the enforcement legislation were contemporaneous with and dominated by the same political party as the Congress that framed the 14th Amendment and most of the state legislatures that ratified it [9].

The fourth reason is the clincher.  At the time the 14th Amendment was drafted and ratified, distrust for the Supreme Court was at an all-time high.  According to a Lincoln biographer, the Republicans (who sponsored the 14th Amendment) viewed Chief Justice Taney's death in 1864 as "the removal of a barrier to human progress."  In May, 1861, the New York Tribune had written that Chief Justice Taney "takes sides with traitors . . . throwing about them the sheltering protection of the ermine."  That same year the New York Times observed that Chief Justice Taney would "go through history as the judge who dragged his official robes in the pollutions of treason."  The Chicago Tribune called the Supreme Court "the last entrenchment behind which Despotism is sheltered." [10].

In December, 1866, The Washington Chronicle wrote that "treason had found a refuge in the bosom of the Supreme Court of the United States."  In March, 1867, Harper's Weekly accused the Court of trying to "reverse the results of the war".  In April, 1867, the National Independent wrote that the Supreme Court was "regarded as a diseased member of the body politic," and was at risk of "amputation"  Much of this criticism of the Court occurred while the 14th Amendment was before the states for ratification [11].

Members of Congress, who framed the 14th Amendment, were also disgusted with the Court.  They believed that it was usurping "political" power and that one of its usurpations had caused the Civil War.  In January, 1864, John P. Hale, of New Hampshire, made the following statement on the floor of the Senate [12].

"I will take this occasion to say that in my humble judgment if there was a single, palpable, obvious duty that the Republican party owed to themselves, owed to the country, owed to humanity, owed to God when they came into power, it was to drive a plowshare from turret to foundation stone of the Supreme Court . . ."
In 1865, Congressman Thaddeus Stevens of Pennsylvania expressed the opinion that recently deceased Chief Justice Taney was "damned . . . to everlasting fire."  Listen to excerpts from a speech given in the House of Representatives by John A. Bingham, of Ohio.  Bingham has been described by historians as "the leading House moderate" on the Joint Committee on Reconstruction (which drafted the 14th Amendment).  In January 1867, Bingham proposed "sweeping away at once the court's appellate jurisdiction in all cases."  He went on to say,
"if, however, the Court usurps power to decide political questions and defy a free people's will, it will only remain for a people thus insulted and defied to demonstrate that the servant is not above his lord, by procuring a further Constitutional amendment and ratifying the same, which will defy judicial usurpation, by annihilating the usurper's (amendment) in the abolition of the tribunal itself."
That's pretty strong language for "the leading House moderate" among the 14th Amendment's framers.  It underscores the degree of mistrust of the Supreme Court held by those framers [12].

In March 1868, for the only time in American history, Congress passed a law (The Judiciary Act of 1868) which diminished the scope of the Supreme Court's appellate jurisdiction.  A little later, in Ex Parte McCardle, the Court unanimously upheld the law.  The justices swallowed this bitter pill because the law had passed in the Senate by a vote of 33-9 and in the House by 115-57.  The justices knew the law's sponsors had the votes to impeach and remove as many Supreme Court justices as they thought necessary [13].

This is obviously not the sort of climate in which Congress would adopt an Amendment to give the Court a blank check to revise the Constitution to meet the needs of changing times.  In the 1860's, Congress viewed an out-of-control judiciary as the problem, not the solution.
 

THE "INCORPORATION" COVER STORY

If the 14th Amendment empowered federal courts to enforce the Bill of Rights against the states, this was one of the best kept secrets in American history.  There was no clue to this intent in the four enforcement Acts that Congress passed contemporaneous with the Amendment.  Furthermore, the Supreme Court itself was totally unaware of this sweeping new power a scant nine months after the Amendment was ratified.  The Court decided Twitchell v. Pennsylvania on April 5, 1869.

Mr. Twitchell had been convicted of murder under a process which his lawyer claimed violated the Fifth and Sixth Amendments.  The Supreme Court (unanimously) disposed of the case by citing the original understanding that the Bill of Rights restricted only the federal government, not the states.  Nobody mentioned the 14th Amendment.  If the 14th Amendment was intended to "incorporate" the Bill of Rights against the states, you would think that nine months after it was ratified somebody would have known about this intent, either the plaintiff's lawyer, or one of the nine eminent constitutional lawyers on the 1869 Supreme Court [14].

A law professor named Stanley Morrison reviewed a dozen different cases between 1868 and 1947 in which various defense lawyers asserted that the Bill of Rights should restrict the states as well as the federal government.  In the first few cases, the 14th Amendment wasn't even mentioned.  It wasn't until 1887, nineteen years after the Amendment was added to the Constitution, that a resourceful lawyer decided to try the "incorporation" story line [15].

The Court rejected this arguement unanimously until 1892, twenty-four years after the 14th Amendment was debated, passed, and ratified.  At that point, a few dissenters began to sign on to the fraud.  A few years later the Court decided to "incorporate" the "takings" clause of the Fifth Amendment in order to protect corporations from regulation by the states [16].

In 1876, Congress debated, and almost passed, a resolution to recommend to the states a proposed constitutional amendment to impose the First Amendment's religious freedom mandates on the states as well as the federal government.  The so called "Blaine Amendment" said,

No State shall make any laws respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.
Many of the folks who voted to adopt or ratify the 14th Amendment were (still) in Congress when it debated the Blaine Amendment.  They surely remembered what they had done, and intended, a scant eight years earlier.  They would not have bothered with a new Amendment to do what they had already accomplished with the 14th [17].

Charles Fairman, a colleague of Professor Morrison's, performed an exhaustive review of historical material which might illuminate the intent of the framers of the 14th Amendment with respect to the "incorporation" claim.  He studied the debates in Congress, speeches by congressmen campaigning for reelection in 1866, proceedings in the various state legislatures which ratified the Amendment, and relevant articles in the major newspapers of the time.  Then he wrote a lengthy article reporting what he found [18].

In summarizing, Professor Fairman wrote that he found a "mountain of evidence" debunking the incorporation story line and only a few "stones and pebbles" to support it.  That probably explains why it took the Supreme Court more than a generation to learn about the story [18].
 

NOTES & CITATIONS

1.  See the online essay Flag-Burning and Judicial Activism.

2.  See The Stealth Equal Rights Amendment.  The 14th Amendment has five Sections.  It can be found, along with the rest of the Constitution, in any encyclopedia, or by clicking here.

3.  See page 68 of the essay by Tribe in A Matter of Interpretation, by Antonin Scalia.  An account of the 14th Amendment's history relative to school segregation can be found in Berger, 1977, Chapters 4 and 7.

4.  See Mohr, 1978, pages 195-225 to review the history of mid 19th Century abortion laws.  See also the online essays, Harry's Abortion and Obstruction of Justice.

5.  You can find the four Enforcement Acts at the Library of Congress Web Site, or you can take the easy way out and read them at the Web Site at which I transcribed them.  If you choose to visit the Library of Congress, you can follow the hyperlink in the previous sentence to my Site and there find out how to access the enforcement laws once you get to the Library of Congress Site.

6.  The "substantive due process scam" is described in a pair of online essays, A Scam is Born and Evolution of a Scam.

7.  Lincoln is quoted by Senator Jenner during the August 20, 1958 debates on the Jenner-Butler Bill.  See the 1958 Congressional Record Senate, page 18645.  See also A Scam is Born.

8.  Professor Raoul Berger's historical review (see his Chapter 12) showed beyond honest doubt that the framers intended the language in Section 5 to withhold enforcement power from the courts.  The quote from Ex Parte Virginia can be found in Berger on page 221.  You can (early 1999) read the whole decision, as well as many other historic Supreme Court decisions, at the  'Lectric Law Library Lawcopedia's web site. http://www.lectlaw.com/tcas.htm.

9.  In nullifying the 14th Amendment enforcement legislation, our judicial employees caused African American citizens to suffer almost a century of Ku Klux Klan terrorism and Jim Crow laws in parts of the South.  See the online essays Congress Shall Not Have the Power and Racism in the Court.

10. See Silver, pages 223, 231, 232, and 239.

11. See Warren, Volume III, pages 170, 174, and 181.  The 14th Amendment was adopted by Congress on June 13, 1866 and ratified by a sufficient number of states on July 9, 1868.

12. The quote attributed to Senator Hale can be found in Silver, page 139.  The quote attributed to Congressman Stevens can be found in a footnote on page 222 of Berger, 1977.  The description of John A. Bingham as "the leading House moderate" was on page 86 of Maltz.  The Bingam quote was taken from Warren, Volume III, pages 170-171.  Most of the quote also appears in Boudin, Vol. II, page 75.

13. See Murphy, Walter F, page 27.  See also Warren, Vol. Three, pages 195 - 210.  The Supreme Court's decision upholding the Act ( Ex Parte McCardle, December 1868) can be found on the Internet at http://www.constitution.org/ussc/074-506.htm.

14. See Fairman, page 212, 213.

15. See Morrison, pages 229, 230.

16. See, for example, Levy (1986) page 167.  See also the essay by Professor Lino Graglia (pages 86 - 101) in Licht et. al.

17. See the relevant University of Minnisota Law School web site.

18. Check the Bibliography.  Fairman's article is on pages 85-219 of Fairman and Morrison.  A political scientist named Horace Flack published a book in 1908 in which he presented all the evidence he could find to support the "incorporation theory." The evidence was a bit scanty.  And the few scraps there were only supported the claim that Congress intended Section 5 to empower itself to bring the States under the Bill of Rights, using the "privileges and immunities" language, should it choose to do so.

Flack found no evidence whatever which indicated that Congress intended the 14th Amendment's "due process clause" to empower the Supreme Court to "usurp power to decide political questions."

 

To review works cited in this article, check the Bibliography.

 

This article is based on Chapter 6 in

The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.

However, it has been substantially revised since the January 2000 publication of the book.  See also Grand Larceny: An Unexpurgated History of the supreme Court

 

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D. J. Connolly.