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The 14th Amendment;
Then and Now

July 20, 2015

Since the ratification of the 14th Amendment to The Constitution, in 1868, several pivotal Supreme Court decisions have had the effect of granting themselves authority to write law or claim rights effecting areas otherwise reserved to the states. 

In part the Amendment reads, “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 deny to any person within its jurisdiction the equal protection of the laws.” 

It’s the only Amendment in the Constitution that specifically authorizes the Federal Government to limit states.  The Amendment was written by Republicans to protect freed slaves from having laws passed by states that limited their natural rights found in the Bill of Rights.  Over time the Court, not Congress, would add protected classes, ethnic backgrounds, and others; supplanting the authority of Congress. 

Our history plainly spells out the origin of our rights outlined in the Bill of Rights; calling them “God given”, “natural”, “unalienable rights” or “the great rights of mankind.”  These rights focused upon choice of religious practice, freedom to speak, due process, limits upon governmental intrusion, and equality.  The Founders used world history to develop their governmental models focusing upon the Magna Carta and “ancient principles” found in the governments of Israel during the era of Moses.

In the end, they left the decisions for moral, political control, and other issues out of the court’s hands and primarily -- with few exceptions -- to the states.  It would take a Civil War to fully implement these rights to all. 

Yet, the 14th Amendment  has been used to resolve a long list of issues completely outside of the issue of slavery including Bush v. Gore, Roe v. Wade, Brown v. Board, and more recently Obergefell v. Hodges. 

At one point even liberal Justice Ginsburg “criticized the Supreme Court for imposing the broad holding of Roe v. Wade … on the states.  She noted “in my judgment, Roe ventured too far in the change it ordered.” . . . She further observed the national trend “toward liberalization of abortion statutes” . . . quickly ended when the Court greatly restricted the states’ authority to regulate abortion.”  The acceptance of, and willingness to abide by, the rule of law diminishes itself when courts wander into issues best suited for the legislative branches. 

Over the past 75 years we’ve seen an ongoing trend by the non-elected members of the Supreme Court to create laws, instead of applying what the drafters of the Constitution and its amendments intended.  The Constitution provides no check or balance against this practice.  Once appointed, Justices remain for life, left unchallenged and unaccountable to "We the People".  In our previous columns we suggested several ways to increase accountability of the court.  We believe some added balances -- such as providing for Congressional “overrides/vetoes”  -- should be considered by an Article V constitutional convention.

Mark, Bill, and John

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