What Was the Author of 14th Amendment's Intent?

 

"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 to deny to any person within its jurisdiction the equal protection of the laws." -- 14th Amendment, U. S. Constitution

I have written that I believe our Constitution and Bill of Rights must be construed consistently with the intent of the men who wrote them -- that is, according to their "original intent."

The Constitution became the Supreme Law of the land on June 21, 1788. In 1791, the first 10 Amendments (known as the Bill of Rights) were adopted.

But for those unfamiliar with Constitutional history, the 14th Amendment wasn't adopted until 1868, three years after the Civil War ended. So how should it be construed? Consistently with the intent of the men who drafted it in 1868, and with the intent of the Congress that approved it and sent it on to the states for ratification. But who were the drafters?

George Washington, James Madison, Benjamin Franklin, Alexander Hamilton and others who drafted the Constitution had long passed from the scene, and had no input in the 14th Amendment. It was largely drafted by one congressman, a man whose name will probably be unknown to any person who reads this piece: Congressman John Armor Bingham, R-Ohio.

In the words of the Supreme Justice Hugo Black, "Congressman Bingham may, without extravagance, be called the Madison of the first section of the 14th Amendment."

To understand Black's praise, it is necessary to understand that the Bill of Rights was written to limit the powers of the federal government, not state governments. The Bill of Rights, from 1791 until 1868, afforded nobody any protection against actions by a state. Indeed, in 1833, Barron v. Baltimore, Chief Justice Marshall, speaking for the court, specifically held inapplicable to the states the provision of the Fifth Amendment which declares: "nor shall private property be taken for public use, without just compensation." The court said that it could not hold that the first eight amendments applied to the states.This was the controlling constitutional precedent when the 14th Amendment was proposed in 1866.

Here is how Rep. Bingham, who served on the Joint Committee for Reconstruction, explained his work product to Congress:

"I have sought to effect no change in that respect in the Constitution of the country. I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath (to support the Constitution), and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution ...

"I had read -- and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States -- the great decision of Marshall in Barron v. The Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was: 'The amendments (to the Constitution) contained no expression indicating an intention to apply them to the State governments.' The Chief Justice also said, 'Had the framers of these amendments intended them to be limitations on the power of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.'

"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. ...

"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment."

Any fair reading of Rep. Bingham's remarks boils down to this: Chief Justice Marshall had ruled in 1833 in Barron v. Baltimore that the Bill of Rights (specifically the first eight amendments thereof) had no application to the states. Congressman Bingham concluded that the rights guaranteed by the first eight amendments were the "privileges and immunities" of citizens of the United States.

He wrote the 14th Amendment to guaranty those "privileges and immunities" against state action, and to make the first eight amendments of the Bill of Rights applicable to the states, as well as to the federal government.

He sought to create no new rights. He merely advocated here an amendment which would arm Congress with the power to compel obedience to the oath to support the Constitution, and punish all violations by state officers of the Bill of Rights.

More of Congressman's Bingham's remarks, can be found in the appendix to Justice Black's dissenting opinion in Adamson v. California, where the majority construed the 14th Amendment according to its own "more enlightened" intent.

Only Justices Black and Douglas thought it should be construed consistently with the way the author of the amendment explained his proposed amendment to Congress.



Posted Online: : Nov. 23, 2012, 6:10 am - Quad-Cities Online
by John Donald O'Shea


Copyright 2012
John Donald O'Shea

Abortion Is More than Just Another Social Justice Issue

I have often wondered how the German people continued to support Adolf Hitler and the Nazi party, as they came to learn the things he was doing.

I can only suppose their justification went something like this:

"Since Adolf Hitler took office, German unemployment has fallen substantially -- from six million in 1932 to one million in 1936. In addition, his government has embarked upon a massive infrastructure improvement program. If you take time to look, you will see the dams, autobahns, railroads and other public works constructed by this administration.

"The Fuhrer has instituted an array of social welfare programs designed to provide employment for every German citizen, and has instituted programs for social justice to insure a minimal standard of living for every German citizen. Before the Fuhrer, the unfortunate looked only to the charity of the individual; with his Winter Relief campaigns, the resources of the state are being put to use in feeding the poor and clothing the needy.

"The extermination of Jews is not the only important issue. To ignore the good -- the social justice -- that Hitler has done, and focus only on the extermination of a few Jews, and perhaps a few, a hand-full of mentally defectives, is to ignore Christ's social justice teachings that we care for the least of our brothers."

Add to the argument that another German might make, "That the churches should unequivocally denounce Hitler for what he is doing to the Jews, and the Gypsies, and the mentally handicapped."
I imagine that the rejoinder went like this:

"We do not want to be a nation of sheep who do not think for ourselves and weigh all the pros and cons of the various issues. I strongly feel that one needs to decide for oneself what issues are most important and for whom to vote. We certainly don't need the churches telling us how to think and how to vote."

Now substitute the phrase "abortion of fetuses" for the phrase "extermination of Jews," change the venue from Germany to the U.S, and fast-forward from the mid-30s to 2012.

What Hitler did to the Jews was "murder." The Jews were "human beings." Medically and scientifically, they were human beings.

They were as human as any other German. Only their religion was different. But even when they converted to the Christian faith, it made no difference. They were legislatively transformed into "sub-humans," stripped of the citizenship and rights, and exterminated.

Similarly, the human fetus developing within the womb is unquestionably -- from a medical and scientific perspective -- a "human being." And even if you deny that, if it is allowed to come to term, it will unquestionably emerge from the womb as a human being. It is only by deeming fetus in the womb "sub-human" that abortion (without serious justification) can be anything other than a killing which is "in the nature of" murder. (Note, that I am talking only about abortion, not contraception.)

My point is very simple. Human beings with well-(in)formed consciences cannot ignore the extermination or murder of their neighbors, whether they are Jews, Gypsies, the mentally impaired. From a medical and scientific standpoint all were humans, even if the mentally impaired were not "good poster children for the master race." And only those who ignored what their eyes should have seen, could argue otherwise.

Nor can human beings with well-(in)formed consciences ignore what abortion really is.

From a medical and scientific standpoint it is the killing of a human baby. That baby may not be fully developed. That may take nine months. But if not killed, it will emerge as a human, as fully human as you or me. And only those who ignore what their eyes should see, can argue otherwise.

The argument that the fetus is "no more than a part of its mother" is specious; the fetus contains the DNA of not only its mother, but its father as well. The mother's parts do not.

There is something askew with the argument that killing (or enslaving) other humans beings is just another "important" (social) issue. The argument that the government is doing "social justice" in providing the elderly with a pension, the poor with food stamps, and the unemployed with unemployment benefits, and that those things outweigh the extermination of Jews, Gypsies and the mentally impaired, or the enslavement of blacks, or the killing of children (fetuses) turns the notion of "social justice" on its head. Where was Hitler's "social justice" for the Jews when he "redistributed their wealth," sent them to concentration camps, and murdered them?

The reprehensible fact is that over 50 million fetuses have been methodically killed, and half our country doesn't care. But when somebody abuses a dog or kills a cat, the public is outraged. How many babies have to be aborted before the churches cry out?

Or must we look to Hollywood and politicians for our moral guidance?

Posted Online: :   Nov. 07, 2012, 3:02 pm   - Quad-Cities Online

by John Donald O'Shea

Copyright 2012
John Donald O'Shea

Why This JFK Democrat Won't Vote for President Obama

I have always considered myself a John F. Kennedy Democrat.
I sat glued to the radio when he tried to win the vice presidential nomination. I rooted for him as he debated Richard M. Nixon on TV.
It is because I remain a Kennedy Democrat that I won't vote for President Obama. I can't for three main reasons.
First, I think the president is dead wrong on how to raises revenues and revive the economy. I also believe that Gov. Mitt Romney, who is following JFK's approach, is right. Here is what JFK said. (As you read it, recall Joe Biden's derisive remarks to Paul Ryan: "Now, you're Jack Kennedy").
"There are a number of ways by which the federal government can meet its responsibilities to aid economic growth.
"But the most direct and significant kind of federal action aiding economic growth is to make possible an increase in private consumption and investment demand -- to cut the fetters which hold back private spending.
"It could ... be done by increasing federal expenditures more rapidly than necessary, but such a course would soon demoralize both the government and our economy.
"The final and best means of strengthening demand among consumers and business is to reduce the burden on private income and the deterrents to private initiative which are imposed by our present tax system -- and this administration pledged itself last summer to an across-the-board, top-to-bottom cut in personal and corporate income taxes to be enacted and become effective in 1963.
"In short, to increase demand and lift the economy, the federal government's most useful role is not to rush into a program of excessive increases in public expenditures, but to expand the incentives and opportunities for private expenditures.
"(A)ny new tax legislation enacted ... should meet the following three tests:
"First, it should reduce the net taxes by a sufficiently early date and a sufficiently large amount to do the job required.
"Second, the new tax bill must increase private consumption, as well as investment... When consumers purchase more goods, plants use more of their capacity, men are hired instead of laid-off, investment increases, and profits are high.
"Corporate tax rates must also be cut to increase incentives and the availability of investment capital.
"For all these reasons, next year's tax bill should reduce personal as well as corporate income taxes: for those in the lower brackets, who are certain to spend their additional take-home pay, and for those in the middle and upper brackets, who can thereby be encouraged to undertake additional efforts and enabled to invest more capital.
"Third, the new tax bill should improve both the equity and the simplicity of our present tax system. This means the enactment of long-needed tax reforms, a broadening of the tax base, and the elimination or modification of many special tax privileges.
"Our true choice is not between tax reduction, on the one hand, and the avoidance of large federal deficits on the other. It is increasingly clear that no matter what party is in power, so long as our national security needs keep rising, an economy hampered by restrictive tax rates will never produce enough revenues to balance our budget -- just as it will never produce enough jobs or enough profits.
"In short, it is a paradoxical truth that tax rates are too high today and tax revenues are too low and the soundest way to raise the revenues in the long run is to cut the rates now. ... This country's own experience with tax reduction in 1954 has borne this out. And the reason is that only full employment can balance the budget, and tax reduction can pave the way to that employment.
"The purpose of cutting taxes now is not to incur a budget deficit, but to achieve the more prosperous, expanding economy which can bring a budget surplus.
"I repeat: our practical choice is not between a tax-cut deficit and a budgetary surplus. It is between two kinds of deficits: (a) a chronic deficit of inertia, as the unwanted result of inadequate revenues and a restricted economy, or (b) a temporary deficit of transition, resulting from a tax cut designed to boost the economy, increase tax revenues, and achieve, I believe -- and I believe this can be done -- a budget surplus. The first type of deficit is a sign of waste and weakness; the second reflects an investment in the future." -- JFK, address to the Economic Club, Dec. 12, 1962.
The second reason, I can't vote for President Obama is because he doesn't tell the truth, and sends his surrogates to lie for him. It began with the Rev. Jeremiah Wright and William Ayers and continues with every unemployment report that excludes those who have given up seeking employment, as well as the series of lies about Libya, etc. I no longer have any confidence that anything he tells the American people will be the truth. Mr. Obama is the Democratic equivalent of the Richard M. Nixon.
Finally, I am tired of this president's broken promises to fix important things: Medicare and Social Security. I am tired of class warfare, and of his blaming everybody but himself. And I will not accept as the "new norm" that America grows poorer and weaker, while China gets richer and more powerful with our money.
Jack Kennedy wouldn't, and I won't.
(As a result of the JFK/LBJ tax cuts, unemployment fell from 5.2 percent in 1964 to 3.8 percent in 1966. And taxes paid by individuals rose from about $45 billion in 1964 to $60 billion in 1967.)

Posted Online: :   Nov. 1, 2012 at 2:22 p. m.   - Quad-Cities Online

by John Donald O'Shea

Copyright 2012
John Donald O'Shea