Friday, July 24, 2015
The 14th Amendment
On February 8, 1861 the seven Southern States announced their secession from the Union they had pledged to join under the Constitution which included Article 1 Section 2; and a 3/5 of a person rule as far as slaves were concerned. This gave the more rural Southern states representation based on a population that included many slaves; whose votes went to their owners under the 3/5 provision. This was of course changed by the 14th Amendment in 1869.
The South violated the Constitution in seceding from the Union by claiming a Right under the 10th Amendment; which gives the States rights over certain issues; or powers; not relegated to the Federal Government. It sounds nice; but seceding violated Article 1 Section 4 which prohibits states from leaving the Union.
The 14th Amendment was, however, enacted under strange circumstances as the South was just getting back on its feet and re-establishing their state legislatures. North Carolina and South Carolina were the last 2 states to ratify the 14th Amendment, and only did so under duress. The 39th Congress made it mandatory for the states to ratify the Amendment as a condition of rejoining the Union. There are parts of the South where Amendment 14 is openly despised, and there has even been talk of trying to abolish it by Amendment, in much the same way as Prohibition; the 18th Amendment; was later repealed by the 21st Amendment.
This may sound far-fetched, but it’s really not. The crux of the argument for repeal would be that the states have a right under Article 1, Section 4; which gives the states the right to proscribe the time, place and manner in which to hold elections. That argument would hold that the state legislatures of the South; particularly North Carolina and South Carolina; were mandated to approve the 14th Amendment as a condition to re-join the Union. But a closer inspection of the text reveals that though they have that right, Congress may change or alter that law except for the choosing of Senators. Still, it would be a messy battle with much at stake.
As time went on the 14th Amendment became the “go to place” to fit in every perceived “right” which Americans wanted to include. Although I am in agreement with the issues at hand, I also think the 14th Amendment has become so overburdened that should it ever be repealed or amended it would affect many areas of our society. The 14th Amendment has become the easy path for expanding rights in all sorts of instances.
This sort of overburdening was not begun until after Women’s Suffrage; the 19th Amendment; which could have been added to the 15th Amendment giving the right to Vote to all men of any race. The problem with that would have been the ensuing call for universal suffrage at a time when black men were still routinely barred from voting in the Southern states. The implication of the 19th Amendment was that it had nothing to do with the precedent set up by the 15h Amendment. In other words; blacks were still not going to be able to vote. This is one of the instances in which bundling like-minded legislation would have resulted in a positive change.
Civil Rights and the Voting Rights Act both have their underpinnings in the 14th Amendment, and these protections should have been tacked onto that Amendment; making it stronger.
But the 14th Amendment now holds the Miranda Decision; which should have been founded under the 5th Amendment; the right to have due process; which would include an attorney and the right to remain silent.
Abortion and Same Sex Marriage are both rights which should have been held to exist under the 9th Amendment; “the enumeration of certain rights, shall not be construed to deny or disparage others retained by the people.”
This may all seem to be unimportant; and perhaps it is just a “parlor game” which I like to play when I have nothing better to do. But think of it this way; you’re mailing all of your valuables to a new home. Do you put them all in one envelope, or do you break it up into several packages so that you don’t lose it all in one shot? To put it more simply; you just don’t put all your eggs in one basket. This is especially true when there are other baskets lying around, waiting to be used.