Tuesday, April 24, 2012

The Fourteenth and You

Not much to say today. I will probably say it voluminously. What is contained in this post is the absolute truth, insofar as I can determine it. I've been seeing crap all over the web about the 14th amendment. There are a lot of issues with the fourteenth, a lot of people bleating about how it converts rights into privileges, etc. I'm going to give you the straight scoop, with footnotes.

 The fourteenth amendment had a single purpose, revealed by both the congressional record, and matters of law at the time. It didn't convert anything, didn't lose anything, only removed the state's power to remove the rights of the people, both at large, and individually.

The history of the fourteenth comes from the thirteenth, the amendment that was to end slavery.
 At the end of the civil war, the Republican party passed the 13th amendment, outlawing slavery in all of its forms. But slavery, itself, was not so easily vanquished. In many of the slave states, and many of the states in the North of the nation, freed slaves were denied the rights that every other citizen held.

The situation was intolerable to the nation, creating situations where different laws applied to different people, and 'giving the trumpet of freedom that we have been blowing throughout the land has given an `uncertain sound,' Jones v. Mayer Co. 392 U.S. 409 (1968)"

 The debate raged in the congress as to what to do. The Democrats from the south, and some republicans argued that applying the rights of a free man to an ex-slave was destructive of the union.

 The argument was based in racism and paternalism that the ex-slaves were incapable of handling such rights, and that it was the duty of the state to preserve the rest of the people from their behavior. The Dred Scott v Sanford case was a good example.

    For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

      In 1866, the first Civil Rights act was passed, creating title 18, section 241 and 242 of the U.S. code. It provided that anyone attempting to remove any right, upon the highway in disguise, or by enforcement of legislation would, upon conviction, be found a felon.

     The debate in congress and in the senate was quite clear on the matter, that anyone enjoying these rights could never be made a slave again. Included, at the time, were the full rights of every person under the constitution and laws of the United States. There was a suit filed, given the nature of the act, and successfully the suit was placed before the supreme court.

      There was insufficient power under the 13th amendment for the purpose, and on June 8, 1866, the 14th amendment was passed for the explicit purpose of placing that 1866 civil rights act into the law of the land. It removed from the states the power to remove rights from the people, of whatever derivation.

The debate in congress was again clear, that this was not merely for the ex-slaves, but for anyone who may ever again have someone attempting to remove those rights.

     The 1871 Civil Rights act was then passed. Under that act, it reestablished and strengthened the 1866 act, placing into the law of the land, under both the 13th and 14th amendments law making it a felony to enforce any law depriving or causing to be deprived from any person any right guaranteed under the constitution and laws of the united states, protecting the people's privileges and immunities as well.

      It was not enough to merely protect the rights, however, if the equal application of the law did not also reign. We had, and have an absolute right to be under the same law as every other person, a law where congress, no matter at state or federal level, cannot target the law at any individual. This was the Attainder clause... and that clause applied equally to the states.

     The fourteenth was merely a reapplication and clarification of that which was already law.  Congress, via this act, extended the protections of the constitution, in all aspects, against all the powers of the federal and state government, in all states, territories, districts, and possessions, against enforcement officers municipalities and provisional governments, without regard to their derivation where they are connected to the United States.

     It provided penalties for specific acts, to anyone doing them. Any person who, under color of any law, statute, regulation or custom who willfully deprives or causes to be deprived from any person in any state, territory, district or possession of any right under the constitution and laws of these United States shall be guilty of a felony. 

       It further provided that different pains, penalties, or punishments for persons of different colors or nationalities for any offense would be criminal as well. Congress, by that act, removed now and forevermore any power over those rights. They could not be denied by action of state or federal officers.

      The right, once applied in law, became a property right under title 42, section 1981-1984, and could not thereafter be removed by any subsequent congressional or state action. It changed the landscape of the nation, reducing both state and federal power, but it was ignored.

      The Ku Klux Klan got into power, and prevented by and large its enforcement for over a century. By the power of this law, had it been enforced, the civil rights fighting of those African Americans, and of the various other nationalities in this country would have been ended.

      Moreover, in the same act, it provided a right to the equal application of the laws for every person, regardless of derivation. The equal application of the laws was a simple concept, but one fought for over a century. The best definition of this was found in Ex Parte State of Virginia.


We have said the prohibitions of the Fourteenth Amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws.' They have reference to actions of the political body denominated a State, by whatever instruments or in whatever [100 U.S. 339, 347] modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.

    Then the State has clothed one of its agents with power to annul or to evade it. "But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured. Such is the act of March 1, 1875, and we think it was fully authorized by the Constitution." (346-47)

    "We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience...It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent." (348)

      It does not matter who the actor is, only that he acts. It does not matter who the person is, his nationality, legal, or illegal status. He shares the same rights to all the bill of rights, all the constitution itself, which is in its very nature a bill of rights.

      The same restrictions on government apply to every person, and it does not, by its nature, allow the destruction of the right to have rights, or the termination of the citizenship itself (Trop v. Dulles).

      It does not allow the operation of arbitrary laws, or unequal application of existing laws. (Yick Wo. V Hopkins.)

      It does not allow the state to get around a constitutional right by rulemaking or indirection. (Miranda v. Arizona).

      It does not allow the Congress to target the law against any individual, or group, by description or specification. (U.S. v Brown).

      No state has jurisdiction to legislate against things that occurred in other states. (6th amendment)

      Any law, predicated on a past act, can be seen in no other light than as punishment for that act. (Ex parte Garland).

        Those that claim that the 14th amendment converted the people into citizens of the United States are both correct and incorrect. It removed the powers, rights, and immunities of citizens from having different levels in different states, and no state could arbitrarily treat others different than their own citizens.  It provided a national character to the rights, which the states had no authority to intervene, and prevented those states from exercising power against those rights, where the federal government had no power to remove those rights as well.

        It provided that the rights of the people were sacrosanct against any actor attempting to take them.

It did not convert our rights into privileges, for rights, privileges, and immunities are all protected under that same law.

      We, the people of the United States hold the only power by which those rights may be suspended, for a time, from a person as punishment for a crime, and that power is only the power of the jury. It occurs in no other form, and not even the Supreme Court may alter the findings of a jury. It may find that they were poorly instructed, but it cannot examine their evidence, it is accepted as fact, having been found thereby.

       Those that would tell you that the fourteenth converted you into the property of the Federal Government appear to be both poorly educated, as well as, from my experience, quite biased against numerous races, and using lies to attack the thing that prevents them from making their misanthropy into law.

      The fourteenth amendment was intended as, and debated as, a palladium of liberty, a means by which a person could be vindicated in their rights against any taker, from the state officers, to judges, to prosecutors.

The court cases involved since 1871 show the derivation of the law, the evolution of that law, and leave no argument as to its application.


"Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then
‘the trumpet of freedom that we have been blowing throughout the land has given an `uncertain sound,' and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that under this provision . . . we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.'" (440)
"Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom - freedom to ‘go and come at pleasure' 79 and to ‘buy and sell when they please' 80 - would be left with "a mere paper guarantee" 81 if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.
-- Jones v. Mayer Co. 392 U.S. 409 (1968)
Mr. Hoar of Massachusetts stated: [Footnote 21]
    "Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently, and as a rule, refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man, and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection. If the jurors of South Carolina constantly and as a rule refuse to do justice between man and man where the rights of a particular class of its citizens are concerned, and that State affords by its legislation no remedy, that is as much a denial to that class of citizens of the equal protection of the laws as if the State itself put on its statute book a statute enacting that no verdict should be rendered in the courts of that State in favor of this class of citizens.

Monroe v. Pape


They found justification, however, for this extension in considerations such as those advanced by Mr. Hoar: [Footnote 29] "The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties. The question is not whether the majority of the people in every State are not likely to desire to secure their own rights. It is whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own as to insure that under no temptation of party spirit, under no political excitement, under

    Page 365 U. S. 183

    no jealousy of race or caste, will the majority, either in numbers or strength, in any State seek to deprive the remainder of the population of their civil rights."

--Monroe v. Pape


The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate, and, instead of lessening, increases its objectionable character. All enactments of this kind partake of the nature of bills of pains and penalties, and are subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included.

-- Ex parte Garland


Mr. Shellabarger, reporting out the bill which became the Ku Klux Act, said of the provision with which we now deal:

    "The model for it will be found in the second section of the act of April 9, 1866, known as the 'civil rights act.' . . . This section of this bill, on the same state of facts, not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights. . . . [Footnote 32]"

    Thus, it is beyond doubt that this phrase should be accorded the same construction in both statutes -- in § 1979 and in 18 U.S.C. § 242.

    At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment.

    Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment -- and they are forceful -- the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.
    The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this Court. [Footnote 29] But the
    Page 356 U. S. 100
    basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, [Footnote 30] and the principle it represents can be traced back to the Magna Carta. [Footnote 31] The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U. S. 349. The Court recognized in that case that the words of the Amendment are not precise, [Footnote 32] and that their
    Page 356 U. S. 101
    scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
    We believe, as did Chief Judge Clark in the court below, [Footnote 33] that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination
    Page 356 U. S. 102
    at any time by reason of deportation. [Footnote 34] In short, the expatriate has lost the right to have rights.
    This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. [Footnote 35] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. [Footnote 36]

--Trop v Dulles

    We do not hold today that Congress cannot weed dangerous persons out of the labor movement, any more than the Court held in Lovett that subversives must be permitted to hold sensitive government positions.

    Rather, we make again the point made in Lovett: that Congress must accomplish such results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied. Under our Constitution, Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals. [p462]
    This Court is always reluctant to declare that an Act of Congress violates the Constitution, but in this case we have no alternative. As Alexander Hamilton observed:

By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. [n40]

    The judgment of the Court of Appeals is
U.S.v Brown .

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