Many of the federal Supreme Court’s worst rulings are justified by the 14^th 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th Amendment was never properly ratified:

‘The facts of the Amendment’s ratification are messier than its interpretation. . . .

‘In February 1865, President Lincoln approved the Joint Resolution of Congress submitting the Thirteenth Amendment, which abolished slavery, to the state legislatures. As required by Article V, three-fourths of the states ratified it by Dec. 6, 1865. Secretary of State William Seward counted the votes of the Southern states for purposes of ratification. He declared that 27 of the 36 states had ratified the Amendment, and thus, it was part of the Constitution. Eight of the 27 were Southern states. Hence, it appeared that the South was politically restored.

‘Congress had other ideas. When Southerners elected to the national legislature began to arrive in December 1865, Republicans refused to seat them and denied that legal governments existed in the states of the old Confederacy. The Fourteenth Amendment was thus framed without Southern input or votes. . . .

‘Another troubling event was the expulsion of Senator John P. Stockton of New Jersey, who was an opponent of the Fourteenth Amendment. Stockton’s opposition kept the Fourteenth Amendment from passing the rump Senate by a two-thirds majority as required by the Constitution. Although Stockton had already been seated and the Senate faced the hurdle that a two-thirds vote is needed to expel a properly seated member, Senate leadership ignored the constitutional requirements and held a vote to unseat Stockton, which passed by a simple majority. This would have been allowed when Stockton first presented his credentials, but it became an act beyond the Senate’s legal authority after the decision had been made to accept him as a member.

‘In June 1866, Congress sent the Fourteenth Amendment to the states for ratification. It again rejected the state suicide or conquered province theory by choosing to send the Amendment to both Northern and Southern states. The admission of Nebraska to the union raised the number of states to 37; therefore, 28 states constituted the three-fourths needed for ratification.

‘Unlike the Thirteenth Amendment, the Fourteenth Amendment did not receive a warm embrace. The Southern states made loud protests. The loyal states of Kentucky, Delaware, and Maryland also rejected the Amendment. Ohio and New Jersey initially ratified but later rescinded their acceptance of the Amendment before 26 other states ratified.

‘In the face of opposition to the Amendment, Congress passed the first Reconstruction Act over President Johnson’s veto. Despite having sent the Thirteenth and Fourteenth Amendments to the Southern states, Congress declared that no legal government existed there and divided the South into military districts. Martial law was declared even though the war was already over. Congress also disenfranchised millions of white Southern voters. No Southern state would be allowed seats in Congress, the Radicals decreed, absent ratification of the Fourteenth Amendment. As Attorney Douglas H. Bryant has asked, “Yet what good is ratification by a government that is not legally recognized and entitled to representation in Congress? And if ratification by a congressionally unrecognized state government is allowed, why can’t an unrecognized state government reject an amendment?”

‘With pressure applied, the Southern states began to fall in line and ratify the Fourteenth Amendment. This was done under duress, with the Union army providing a show of force. Such coercion, according to common law, voids a contract. Even if the military’s action is dismissed as a mere threat and not the equivalent of physical compulsion, the common law would consider the contract voidable. Either way, Southern ratification of the Fourteenth Amendment was not freely and voluntarily obtained.

‘Moreover, even if we assume that New Jersey’s and Ohio’s recissions prior to declared ratification were invalid and that West Virginia’s secession from Virginia was proper during the Civil War and thus it was rightly considered a state, only 23 states ratified the Amendment without having guns put to their heads. This is well short of the 28 required.

‘Secretary of State William Seward recognized this in his proclamation of ratification. He acknowledged the recisions, expressed doubts about the legitimacy of the governments of some Southern states, and averred that if all irregularities were overlooked, then the Amendment had been adopted. A miffed Congress issued a resolution declaring that the Amendment had been ratified and that Seward should issue a proclamation without reservation. Congress only listed 27 states as having ratified the Amendment, which was one short of the constitutional requirement.

‘In summation, the submission of the Fourteenth Amendment to the states was constitutionally suspect because of the Stockton affair in the Senate. Ratification was more suspect considering the recisions and duress applied. Forrest McDonald, in a 1991 legal history article, sized up the matter up as follows: “Clearly, then, the Fourteenth Amendment was never constitutionally ratified, even if it had been constitutionally proposed.”’

Watkins’s solution to this mess is just as sound as the rest of his essay:

‘ . . . the sordid history should also encourage us to treat the Fourteenth Amendment as a nullity. We will never return to constitutional sanity and real federalism by tinkering with the Court’s interpretation of the Amendment. The whole of the Fourteenth Amendment is so far from the simpler aims of the Civil Rights Act that it may be irredeemable. Rather than arguing with Justice Thomas and Federalist Society conservatives about whether the Due Process Clause or Privileges or Immunities Clause incorporates the Bill of Rights, we should decline to give the Fourteenth Amendment de jure status as law. We should treat it as a nullity much like the American colonists treated parliamentary enactments infringing upon their rights as Englishmen.

‘Some will complain that dismissal of the Fourteenth Amendment is too radical to merit discussion. On the revolutionary scale, it is no more radical than the jurisprudence of the Court. The only real question is which path leads to republican, constitutional government: rejection of an amendment that was never properly framed and ratified or perpetuation of a judicial oligarchy that suppresses federalism and self-government?’

We are living in a time of great ferment not only in DC but also in the States.  The federal government is being radically reordered by the Trump administration; States are actively trying to re-Christianize their schools, to obtain gold and silver bullion as a hedge against inflation of the phony fiat Federal Reserve notes, etc.; and even at the county level, numerous red counties in Oregon and Illinois have held referenda to secede and join Idaho and Indiana, respectively.  The sane States in the South and elsewhere should take advantage of this revisionist moment and declare the 14^th Amendment to be invalid and thus without any further effect on them.

Since State constitutions now have their own protections against racial discrimination, there really isn’t any need for the 14^th Amendment, other than to act as the Leftists’ battering ram to destroy traditional Christian culture, and to destroy the independence and sovereignty of each State by consolidating them under the control of the federal government.  This would be a good cause for the various State Freedom Caucuses to champion going forward, along with their allies elsewhere in State and local government:  To rip out one of the main causes of the cancer of a metastasizing federal government from the compact written by the States.