Life before and after the 14th Amendment

One of the many atrocities that played out against us during Covid was the trashing of the Bill of Rights. Specifically, the following amendments were jettisoned:

First Amendment: Prohibition of the free exercise of religion. Churches were shut down.
First Amendment: Abridgement of freedom of speech. Facebook, YouTube, and even tiny Websites like NextDoor all forbade any criticism of the CDC or questioning of the existence of the virus.
First Amendment: Abridgement of freedom of the press, but don’t go there. It’s been a dead letter for ages.
First Amendment: The right of the people peaceably to assemble. Sports stadiums were shut down, along with indoor gathering spaces like concert halls and museums. Large gatherings were forbidden, along with even small family gatherings.
Ninth Amendment: Freedom to travel.

I wondered why no one spoke up in our defense! Where were the courts, the ACLU?

I was out of reading, and so scanned my bookshelf for something to re-read, and picked a book I remember enjoying very much … Everything You Know About the Constitution is Wrong, by Edward James Snowden, and no, not that Edward Snowden. To me, the book is delightful, from preface to acknowledgements.

As it turns out, we don’t have rights, enumerated or otherwise. The reason is a little clause that is Section 1 of the 14th Amendment, which was ratified on July 28, 1868. It is a wordy amendment that covers a great deal of ground, but for this purpose we will stick to Section 1:

Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

So much time has passed that its language seems benign now, but at the time of passage it was revolutionary. It’s intent, sponsored by John Bingham, was to turn the country upside down. Prior to then the United States had been a Federal Republic, with individual states free to act as they pleased for so long as they did not violate certain proscriptions: not to enter into treaties, coin money, and other matters that were left to the Federal Government. The states were like little monarchies. Most had their own constitutions. The Bill of Rights did not apply to them – it was merely a statement of the limitations placed on the Federal Government … “Congress shall make no law … etc.

The Federal Government was weak in that regard. It could do some things like print money, take on debt, referee disputes among the states, enter into treaties … all powers carefully enumerated. By the time of the Civil War, the seat of government was Washington, DC, and the Federal Government owned land in the Northwest Territories. It was in those places that the Bill of Rights applied, but not in the States. The rights enumerated in the Bill of Rights we’re said to be “inalienable,” that is, inseparable from citizens. The Federal Government did not give us those rights. We had them already, and the Federal Government (not the states) was prohibited from interfering with their free exercise.

Notice the wording above: “All persons … are citizens of the United States and of the State wherein they reside.” Mention of the State of residence was a mistake by Bingham, as his intent was as stated, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …” Can you see now why this amendment turned the Constitution on its head? That document was, with passage of the 14th, full of internal contradictions that the courts would have to deal with. We still honor it as sacred text, but have long jettisoned its original intent.

In essence, the process that ensued, which really took hold after World War I, was a series of court cases wherein the Bill of Rights was “incorporated” into the 14th Amendment. (See footnote.) The legal justification was called the “due process” clause, but that was thin reasoning, merely a bandage to attempt to repair a badly damaged document. “Incorporation” is a hard concept to understand, but as I read it, the process turned the tables on us. We no longer had inalienable rights. What rights we do have were given us by the courts. They could just as easily be taken away, as they were with Covid.

It is for that reason, in my view, that the atrocities visited upon us during Covid were legal, which is why no one spoke up anywhere complaining, not even our vaunted “Supreme Court”.  The 14th Amendment had undone us, and made us into something completely different than the Founding Fathers envisioned. What we need now is a new Constitutional Convention to write a new document to replace the original, but people reasonably fear what might result. So what we have is a happenstance system of court rulings and laws written by people who simply have to ignore anything in the Constitution written before 1868.

Another important aspect of that short paragraph (Section 1 of the 14th Amendment) is use of the word “person”, undefined. Was it deliberately so? By 1896 there had been almost 150 cases brought before the Supreme Court involving the 14th. Only 15 involved African Americans, supposedly the impulse behind its origination. The rest involved corporations. Here’s a brief recap of a famous case, Santa Clara County v. Union Pacific Railroad Company. It was the Court Reporter, J.C. Bancroft Davis, who despite the ordinary title was a powerful person. In an exchange with the judge in the case, Davis was told by the judge , “I leave it with you to determine whether anything need be said about [corporate personhood] in [your] report inasmuch as we avoided meeting the constitutional question in the decision.”

It’s a remarkable view of how laws are really made. Here is Snowden on the matter:

“Bancroft Davis put the comment in the headnotes of the decision, and thereafter it was taken to be part of the decision itself. Thus, the United States Supreme Court had decided for corporate personhood within the scope of the 14th Amendment without ever hearing arguments on the question.  … As Justice William O. Douglas would write in 1949, ‘the Santa Clara case becomes one of the most momentous of all our decisions […] Corporations are now armed with constitutional prerogatives.”

The 14th Amendment stands as one of the most (seemingly) devious plays by the power structure behind the governments of this country to pervert and destroy Federalism, and turn on the real power in the corporations that now run the country, backed by weak-kneed courts. Where once we were a constitutional republic, it took only 80 years to undo it. Thomas Jefferson notably said that his generation did not have the right to bind future generations. He wanted the Constitution to be a liquid document that would be changed and amended in generational intervals. I assume he meant by formal conventions, and not by what we got, a subtle phrase here and there to undermine it all.

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Incorporation of the Bill of Rights against the States by use of the Due Process clause in the 14th Amendment: These are the dates of court cases that decided the fate of the Bill of Rights.

1st Amendment: Against the establishment of religion, 1947; Free exercise of religion, 1940; Freedom of speech, 1925, Freedom of the press, 1931, Freedom to assemble, 1937, right to petition for redress of grievances, 1963.

2nd Amendment: 2010. (You read that right. Gun lovers only earned that right in the 21st century!)

3rd Amendment (freedom from quartering): It has been incorporated only in New York and Connecticut. Other states do not have that right.

4th Amendment: Unreasonable search and seizure, 1949; Exclusion of unlawfully seized evidence, 1961; warrant requirements, 1964.

5th Amendment: Protection against double jeopardy, 1969; self-incrimination, 1964; just compensation, 1897.

6th Amendment: Right to a speedy trial, 1967; public trial, 1948; impartial jury, 1968; right to a jury of local peers, NOT incorporated against the states; confrontation of adverse witnesses, 1965, right to subpoena witness testimony, 1967; right to counsel, 1963.

7th Amendment: Right to jury trial in civil cases, NOT incorporated against the states.

8th Amendment: Excessive bail, 1971; protection against excessive fines NOT incorporated against the states; cruel and unusual punishment, 1962.

As can be seen, it has been a long process to recover what was lost by passage of the 14th Amendment, and to reemphasize, these rights are not “inalienable”, and can be taken away by the very same judicial forces that incorporated them.