Trusting One Government To Save Us From Many – The Renegade Judiciary’s Abuse Of The Fourteenth Amendment

The endless claptrap over "civil rights" and the ridiculous activities this phrase supposedly encompasses has motivated me to re-publish my analysis of the Fourteenth Amendment, where much of this insanity originates.  If you're going to hold forth on the Constitution, you should at least acquaint yourselves with how the judiciary has mangled it.

My experience in public concerns and the observation of a life somewhat advanced confirm the opinions long since imbibed by me, that the destruction of our state governments or the annihilation of their control over the local concerns of the people would lead directly to revolution and anarchy, and finally to despotism and military domination. In proportion, therefore, as the general government encroaches upon the rights of the states, in the same proportion does it impair its own power and detract from its ability to fulfill the purposes of its creation. ~ Andrew Jackson, Second Inaugural Address, March 4, 1833
 

An independent judiciary, insulated from the ever-changing winds of politics, is vital to any society governed by the rule of law. The adjudication of cases and controversies in which the rights of citizens are at stake must remain beyond the sphere of politics, for if Lady Justice were to lose her blindfold then the scales would forever tip in favor of the powerful. Article III of the Constitution created just such an independent judiciary in the Supreme Court (and in such lower federal courts as Congress may wish to establish), whose judges receive lifetime appointments and whose compensation can never decrease during their tenure. But the glory of the independent judiciary has given way to the horror of an independent legislature, something so sinister that it motivated the American Revolution itself. Like the British Parliament before it, the Supreme Court today issues political pronouncements overruling the deliberations of America’s elected representatives. Nowhere has this abuse been more apparent than with regard to the States, who under the Constitution retained the great corpus of power to legislate on the health, safety, and morals of their respective citizens. For the past century or so, the Court has steadily transferred that power to itself and to the other branches of the federal government, a phenomenon that has its roots in the aftermath of our Civil War.

The American Civil War of 1861 - 1865 has rightly been labeled as the crossroads of our national existence, the conflict that ended slavery and transformed the Union from a plural alliance of States into a singular nation.* Not only did the war make an indelible impression on our collective psyche, but it also left an imprint on the law in the form of three constitutional amendments. As professor George Fletcher of Columbia University Law School has observed:**

At the heart of this post-bellum legal order lay the Reconstruction Amendments – the Thirteenth, Fourteenth, and Fifteenth Amendments, ratified in the years 1865 to 1870. The principles of this new legal regime are so radically different from our original Constitution, drafted in 1787, that they deserve to be recognized as a second American constitution.

The Thirteenth Amendment ended slavery (one of the few happy results of the Civil War), and the Fifteenth Amendment prohibited States and the federal government from denying citizens the right to vote on the basis of race. The Fourteenth Amendment, however, has had a far more dramatic impact. What makes the Fourteenth Amendment special is not its purpose, which is fairly humble. Rather, the Fourteenth Amendment’s significance comes about as a result of the Supreme Court’s century-long crusade to use it as a means for scouring the States of their police power and thereby undermining the Founders’ blueprint of decentralized and dispersed political authority.

Most important among the Fourteenth Amendment’s provisions is the following: 

SECTION 1 . . . 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.

The key to appreciating the gravity of this language is noticing that it signals a new prohibition on the States. Remember that the original Constitution listed very few such prohibitions. Unlike those earlier and concise prohibitions, though, this new language appears rather vague, and it’s precisely this vagueness that has provided a pretext for the Supreme Court to arrogate to itself the titanic ability to review state laws and to strike down at will those with which it disagrees. Such boundless federal oversight of the States flies in the face of the Founders’ plan, pursuant to which States enjoyed the presumptive ability to craft rules and regulations for their citizens. Now the Supreme Court presumes to act as a super-legislature that can second-guess the moral, political, and philosophical decisions of the state legislatures, thereby turning the constitutional order on its head. Under the Constitution of the Founders, the States decided which powers the federal government would have; now, it is the federal government that decides which powers the state governments will have.

TO BE CONTINUED 

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* A significant body of thought holds that the Civil War alone signaled the destruction of the constitutional order, which had been based on the voluntary membership of States.  Since the Southern States remained in the Union only against their will, the argument goes, the Union of the Founders ceased to exist upon Lee’s surrender at Appomattox in 1865.  For present purposes I am stipulating that the Civil War was fully justified, but that it nevertheless spawned a series of consequences that ultimately had the effect of inverting and thereby destroying the constitutional order.  The alternative viewpoint, which deserves serious consideration, will be addressed in a later entry.

**Professor Fletcher’s attitudes, which mirror those of the vast majority of his peers, are instructive because of their celebration of how the limited government created by the Founders has been buried in the sands of history.  This demonstrates how no serious debate exists as to the undoing of the Constitution; rather, the debate centers on whether we should mourn the Constitution’s death.