14th Amendment

[vis-à-vis]

Was the 14th Amendment ratified properly? Is application of the bill of rights to the States a good thing? Is it's evolution what original ratifiers wanted? These questions are explored in this interesting lecture by Historian/Author Thomas Woods. I enjoyed it so maybe you will.

Link to the video

 

[csmkersh]

If by "properly," you mean at gun point, then yes. Otherwise not only no, but Hell no. The Confederate states were required to adopt the 14th in order to get the Union army, carpet baggers and skalawags out of control. If they didn't martial law would continue.

Not locked yet?
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[El Tejon]

Was the 14th Amendment ratified properly? Is application of the bill of rights to the States a good thing? Is it's evolution what original ratifiers wanted?

Yes, yes, and yes.

 

[Bartholomew Roberts]

Was the 14th Amendment ratified properly? Is application of the bill of rights to the States a good thing? Is it's evolution what original ratifiers wanted?

Yes, yes and no (just to be contrary for our badgerish members).

The original author of the 14th clearly meant to extend the protections of Amendments 1-8 to the Constitution to state laws as well; but that has not yet happened (though it is close and getting closer thanks to Gura/Levy).

 

[Cosmoline]

The ratification process for 13 & 14 was very troublesome. From a broad view it essentially took the CW to create them, and there was certainly force used. Without the invasion of the CSA ratification would not have been possible. At least as to the whole US. But it's been in place and accepted for so long now it's hard to imagine trying to undo what's been done--both good and bad. And it's been accepted by both legislatures and courts now which is a de facto ratification.

 

[hugh damright]

If there is integrity in the Incorporation Doctrine, I don't seem to have found it yet ... as I understand it, they take the 14th's declaration that no State shall deprive any person of life/liberty/property without due process of law, and construe this to mean that no state shall deprive any person of liberty even by due process of law ... I think the term is "substantive due process" ... I don't see how the States could have understood themselves to have been ratifying "substantive due process".

 

[El Tejon]

If there is integrity in the Incorporation Doctrine, I don't seem to have found it yet

Very true. The "Selective Incorporation" doctrine is moronic and contrary to the intent of the Framers. However, it is a very graphic demonstration of the institutional racism that has crippled this nation.

they take the 14th's declaration that no State shall deprive any person of life/liberty/property without due process of law, and construe this to mean that no state shall deprive any person of liberty even by due process of law

hugh, you lost me. That is not at all how the incorporation mechanism works.

Can you please give me an example of your description? Thanks.

 

[ilbob]

I think it is a moot point. The winners get to decide the rules after the war is over. Thats just the way it is with wars.

 

[hugh damright]

The "Selective Incorporation" doctrine ... is a very graphic demonstration of the institutional racism that has crippled this nation.

I see it as a very graphic demonstration of judicial activism i.e. government by judiciary that has trampled the Constitution.

That is not at all how the incorporation mechanism works ... Can you please give me an example of your description?

Isn't this how it works? We start with the 14th's clause saying that no State shall deprive any person of life/liberty/property without due process of law, and we reconstruct it to mean that no State shall deprive any person of liberty even with due process of law. And of course the federal courts decide what is and isn't "liberty", and that seems to be about the size of it.

I don't see why I should list cases for you when you can google "incorporation doctrine" and see that it is based on substantive due process and find references to example cases.

How do you think the incorporation doctrine works? Is it your assertion that it is not based upon substantive due process?

The winners get to decide the rules after the war is over.

From what I can tell, even the 39th Congress would not have passed an amendment which they understood to be making the USBOR binding against the States.

 

[El Tejon]

I see it as a very graphic demonstration of judicial activism i.e. government by judiciary that has trampled the Constitution.

Yes, judicial activism done by the Lost Causers in the name of racism.

Isn't this how it works? We start with the 14th's clause saying that no State shall deprive any person of life/liberty/property without due process of law, and we reconstruct it to mean that no State shall deprive any person of liberty even with due process of law. And of course the federal courts decide what is and isn't "liberty", and that seems to be about the size of it.

No, that is not how it works. States are free to deprive its citizens of liberty after due process of law. However, States are not free to violate the U.S. Constitution as they were doing in the South.

Yes, federal courts determine what is a liberty interest under the federal constitution, and states determine what is a liberty at the state level as long as that "liberty" is not something like being inhumane to Black people that the Lost Causers were calling "my sacred right."

From what I can tell, even the 39th Congress would not have passed an amendment which they understood to be making the USBOR binding against the States.

The Framers were very clear what they were doing, extending the BoR to the States so Blacks could act in self-defense against Southern governments and the Klan (often the same). It is crystal clear from the Congressional Record.

The Lost Causers tried to throw mud on the intent of the Framers when they realized that it was mucking up their campaign of terror against Blacks.

 

[csmkersh]

The Lost Causers...

Your own bigotry is showing through quit well... And you need to go back and read your history, not what's taught in public schools.

IBFTL

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[hugh damright]

The Framers were very clear what they were doing, extending the BoR to the States ... It is crystal clear from the Congressional Record.

I think that assertion is way off.

First off, who are "the Framers"? Are we talking only about Bingham? Bingham and Howard? The whole reconstruction committee of fifteen? Or do we mean the Representatives and Senators who participated in the debates over the 14th? Or do we mean the House and the Senate i.e. the whole Congress? Is it your assertion that the 39th Congress would have passed the amendment if it had said that it made the USBOR binding against the States?

I think we should all be capable of making a distinction between a minority view and a consensus. While some radicals saw the intent as making the federal government the protector of fundamental rights including those in the first eight amendments, at what point does that become the intent of Congress in passing an amendment?

And I think we should be able to make a distinction between a legislative body passing a law and a legislative body proposing an amendment to the States ... in the former case, the law means what the legislative body intended it to mean ... in the later case, it is the States which make an amendment into law and thus it means what the States intend it to mean. How could the States have known that the 14th's "due process" regarded "substantive due process"? Does it even bear such a construction?

 

[El Tejon]

Bigotry to refer to what the White South first pronounced? No, it is accurate to refer those who stood in the way of the 1866 Civil Rights Act and the 13th and 14th Amendments as Lost Causers as they were fighting for the CSA's goals through the terror of CSA ghosts.

The "Lost Cause," the title of Edward A. Pollards 1866 history of the Confederacy, first referred to the South's defeat in the Civil War, but in time it came to designate the regions memory of the war as well.
Appomattox brought defeat, desolation, and despair to the white South. Almost at once, Southerners began to memorialize their failed cause, establishing Confederate Memorial Day and dedicating funeral monuments to the Confederate dead. These activities, usually held in cemeteries, evoked mourning and melancholy even as they honored the soldiers. They formed part of a larger process through which white Southerners assimilated defeat.

I do not know what is taught in public school, but I do know what is taught down South and it is wrong.

Myth of the Lost Cause: http://www.iupress.indiana.edu/catalog/product_info.php?products_id=19999

First off, who are "the Framers"?

Those that the Supreme Court has recognized as framing the Fourteenth Amendment. The Supreme Court looks to what the Framers wrote and stated to determine the scope of the Fourteenth Amendment. The Congressional Record is very clear--the Bill of Rights was to extend to the states to counter the misbehavior of the Southern States.

And I think we should be able to make a distinction between a legislative body passing a law and a legislative body proposing an amendment to the States ... in the former case, the law means what the legislative body intended it to mean ... in the later case, it is the States which make an amendment into law and thus it means what the States intend it to mean.

No, we do not make any such distinction in any theory of constitutional law. To do so is mere precatory language of those that oppose the extension of the BoR to the states.

We determine what a Constitutional amendment means by looking to what the Framers said.