Many of the federal Supreme Court’s worst rulings are justified by the 14th Amendment – everything from anchor babies/birthright citizenship to forcing homosexual marriage upon the States. William Watkins, Jr, in an excellent essay at the Chronicles web site (‘Time to Topple the Fourteenth Amendment’), explains how erroneous such rulings are.
Many of these rulings rely on what is known as the Incorporation Doctrine: i.e., the 14th Amendment’s guarantees of privileges and immunities, of due process, and of equal protection make the federal constitution’s Bill of Rights applicable to the States. But this is not what the writers of 14th Amendment intended, per Watkins:
‘To the extent the Privileges or Immunities Clause enforced the Bill of Rights against the states, this would have caused a major change in state practice—especially in the criminal law. States would be required to augment the use of grand juries, to grant jury trials in all civil cases where the amount in controversy exceeded $20, and so forth. But opponents of the Fourteenth Amendment never made these obvious arguments against its adoption. Why not? Because no one understood a few offhand comments about the Bill of Rights as embodying the purpose of the Privileges or Immunities Clause. Moreover, the Privileges or Immunities Clause caused no great state constitutional revival—even in solidly Republican states—to conform state constitutional practice to the federal Bill of Rights. Surely, if the state legislatures that ratified the Fourteenth Amendment had understood it to incorporate the first eight amendments some of the states would have put that into law. None did.
‘Also, if the Privileges or Immunities Clause was intended to incorporate the Bill of Rights, which includes the Fifth Amendment’s due process provision, why does the Fourteenth Amendment have its own Due Process Clause? Is this a drafting error, a double security for due process, or clear evidence that Congress did not believe the Bill of Rights was incorporated? The latter explanation makes the most sense.
‘Further compelling evidence against the incorporation doctrine is found in Twitchell v Pennsylvania (1868), in which the defendant contended that Pennsylvania denied him his rights under the Fifth and Sixth Amendments by failing to state with proper specificity the manner in which the defendant was alleged to have harmed the victim. The Supreme Court denied relief on the grounds that the Bill of Rights did not apply to the states. Surely, the justices of the Court, sitting in Washington and aware of the great debates that had taken place in Congress, would have understood that the Privileges or Immunities Clause had worked a constitutional revolution in applying the Bill of Rights to the states. The holding of Twitchell and the fact that the Fourteenth Amendment was not even mentioned in the decision speaks volumes about incorporation.’
Furthermore, the first appearance of a decision based on this new-fangled doctrine came in 1925, almost sixty years after the Amendment was declared a part of the Philadelphia charter in Gitlow v New York. This new jurisprudence began the current era of expansive federal power based on the 14th Amendment:
‘Thus, the Fourteenth Amendment’s Due Process Clause was the engine for incorporation. For most of Anglo-American legal history, “due process” was synonymous with legal processes (e.g., grand jury indictment, arraignment in open court, and a jury trial) that the government had to follow before depriving a person of life, liberty, or property. In the decades after the Civil War, the Supreme Court transformed due process into a vehicle to judge the substance of state legislation. The Due Process Clause served as a master key to give the Court access to a wide range of state policy matters.’
Two things may be noted in opposition to this new jurisprudence. First, the 14th Amendment originally had a very narrow purpose, to codify protections of former slaves into the federal constitution:
‘The origins of the Fourteenth Amendment cannot be understood apart from the Civil Rights Act of 1866 that Congress enacted over President Andrew Johnson’s veto. The Act, inter alia, defined United States citizenship and required that blacks and whites be treated equally under the law. It ensured blacks could make contracts, file suit in court, and engage in real estate purchases. The Act sought to ameliorate the situation of freedmen in the South who faced state Black Codes. Some of the stricter codes prevented blacks from owning property, required blacks to carry a pass or a license when traveling, and declared any unemployed black man a vagabond. President Andrew Johnson raised significant constitutional questions concerning Congress’s power to interfere with matters traditionally left to the state governments. Thus, the Joint Committee on Reconstruction created the Fourteenth Amendment to constitutionalize the Civil Rights Act.
‘The Amendment addressed, in the words of legal historian William E. Nelson, the Northern demand that postwar governments in the South
‘“be restrained in the future from discriminating against blacks and Northerners, and that this restraint be imposed without altering radically the structure of the federal system or increasing markedly the powers of the federal government.”
‘To quote Fourteenth Amendment scholar Raoul Berger, we must remember that “the purpose of the framers was to protect blacks from discrimination with respect to specified ‘fundamental rights,’ enumerated in the Civil Rights Act and epitomized in the §1 ‘privileges or immunities’ clause.” The Civil Rights Act, in pertinent part, provided that the following were required for the freedmen to enjoy meaningful liberty:
‘“[All citizens without regard to race or color] 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.”
‘Had the Supreme Court confined Fourteenth Amendment jurisprudence to the explicit purpose of the Civil Rights Act, it would not be regulating prayer in schoolhouses or running to remove the Ten Commandments from courthouse walls.’
Second, the 14th Amendment was never properly ratified:
. . .
The rest is at https://thehayride.com/2025/03/garlington-tear-out-the-14th-amendment-tumor/.
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Holy Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!
Anathema to the Union!
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