In “The War Nobody Saw Coming- The First Attacks” I attempted to showed that the opening salvos of the “culture” wars were two cases that were argued before the Supreme Court (SCOTUS). The first, Everson v. Board of Education of Ewing Township (1947), could be considered a victory for the American way of life. However, we all know that one victory does not win a war and unfortunately a year later (1948), McCollum v. Board of Education, the SCOTUS handed the enemies of the American traditions and religion a victory by expanding the “...Constitution beyond its letter and spirit through judicial legislation...”[1]
In both of these opening skirmishes in the war of Religion and which in turn would lead to a full assault on the war on Christmas and now traditional marriage. The SCOTUS and lower courts have basically held that the word “liberty” (“The power of doing that which is permitted by the law”) in the 14th amendment, written for the STATES, was/is the same as the word “freedom” (The power to live as one wishes) written in the 1st amendment for the NATIONAL government.
In making this interpretation SCOTUS basically ignored two cardinal rules: (1) that plain language must be followed, without addition or subtraction; and (2) that it must be kept in mind the evil which the writing was being made to cure.[2]
To begin with, the 14th makes absolutely NO MENTION
of the freedom. Therefore, those guaranteed rights laid
out in the 1st amendment should not have been be drawn
into or be construed as part of the 14th by expanding the
meaning of the word liberty.
Second, when the 14th was written the authors were dealing
only with the citizenship of newly freed slaves and the protection
of their liberty and their prospective rights. Once again, freedom of
religion, speech and Press were far from their thoughts.[3]. This
amendment not only made them a citizen of the United States but also
made them a citizen of the State of their residence. It also struck
the word "white" from the constitutions of northern States
which had limited citizenship to white males, thus in both the North
and South the Negro gained all the rights of citizenship [4].The First Amendment on Religion
Let's remember EXACTLY why the Bill of Rights was purposed by looking at the Preamble of the resolutions that were sent to the states, “The Conventions of a number of the States having, at the Time of their Adopting the Constitution, expressed a Desire, in Order to prevent Misconstruction or Abuse of its Powers, that further declaratory and restrictive Clauses should be added (emphasis added...OM): And as exceeding the Ground of public Confidence in the Government will best insure the beneficent Ends of its Institution.”
"Congress shall make no Law respecting the Establishment of Religion, or prohibiting the free Exercise thereof;..." This is one phase that EVERYONE should read very carefully for it contradicts the phase that is commonly accepted, “...no law respecting an Establishment of Religion..” and the key word in the original wording, “the”, which is a more declaratory and restrictive word than “an” as commonly read in the reprinting of the Bill of Rights today.
Since the Bill of Rights was written and passed by the STATES to guarantee their rights as INDIVIDUAL states, why should SCOTUS take authority to use the 1st Amendment of the STATES' Bill of Rights against them?
The Fourteenth Amendment on Religion
“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.” This amendment set aside the idea that a citizen of a state was not in contact with the national government under the theory of States rights because it was supposed that he owed his allegiance to the state and the state dealt with the Nation.
The first SCOTUS case didn't deal with the newly freed slaves, but from rival businesses where the challenge was that the 14th supplanted former State citizenship which would mean that the National Government was to be the source of all the rights which belong to the citizens of all free governments by virtue of their manhood, and for the protection (not creation) of which all just governments are formed. The Supreme Court rejected (1873) this contention and said that the Amendment did not disclose "any purpose to destroy the main features of the general system." It held that the command that "no State shall . . . abridge the privileges or immunities of citizens of the United States" and does not prevent a State from abridging privileges of State citizenship as distinguished from privileges of National citizenship. This momentous decision preserved State citizenship and State rights.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;...” The SCOTUS held that this meant, just as the language says, “the privileges and immunities of National citizenship and not to include those belonging to the citizen of the State. It is a prohibition, not respecting action by an individual or by a group of individuals, but only action by the legislative, the executive, or the judicial department of a State government.” Basically, fundamental state rights which are protected by the Bill of Rights is to prevent the Federal Government from “invading” a state.
Basically, this amendment prevented the NATIONAL (FEDERAL) government from entering a STATE except to enforce a right of NATIONAL citizenship.
“...nor shall any State deprive any person of life, liberty, or property, without due process of law;” This is an oft cited statement in the SCOTUS and other courts in the war of religion.
Just as the 5th amendment in the Bill of Rights was written as a guard against a tyrannical Federal Government. The 14th was written to guard against a tyrannical STATE and the writers copied the language from the 5th and as previously stated, “that plain language must be followed, without addition or subtraction”, so if the language is borrowed, it must mean exactly the same thing. Therefore, IF the “liberty” in the 5th did not mean the same as “freedom” of the 1st , then how could (can) the courts embrace the idea that “liberty” as written in the 5th and was borrowed and inserted in the 14th be the same as “freedom” written in the 1st ? Therefore, “liberty” in this amendment safeguards a person from unjust or unlawful imprisonment by the STATE, just as the 5th amendment curtails the FEDERAL government.
Again, this amendment prevents the FEDERAL government from entering a STATE in order to protect, “life, liberty, or property” UNLESS the STATE denies its due process in protection of rights springing from NATIONAL (not State) citizenship.
“...nor deny to any person within its jurisdiction the equal protection of the laws"
Article IV, Section 2 of the Constitution states, "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." In other words, a citizen of one State doing business in another State cannot be denied the privileges and immunities of the citizens of that State.
This clause in 14th was designed to prevent a State from discriminating between its own citizens and those of another state. As with the writing/ratification of this amendment, it was written primarily for the liberated slaves (although not mentioned specifically in this Amendment) and the language was without limitation, extending to "any person". Unfortunately this has been applied in upwards of a thousands cases in State and National courts to every perceived form of inequality alleged to arise out of the laws of States.
For example when Congress passed a law that fixed a punishment for three or more persons conspiring to deprive another of the equal protection of the laws was held invalid by the Supreme Court (1883) because the 14th is a limitation upon the State and not upon persons. The word "persons" also includes a resident alien or a corporation. (Thus according to this case much to the left's dismay, CORPORATIONS are PERSONS, therefore a Corporation is a person = people...OM)
The language and design of this clause was "to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." It also means that the FEDERAL government cannot enter a STATE to secure “the equal protection of the laws” of that STATE unless the laws being enforced are to deny the rights of NATIONAL (not State) citizenship.
As shown there is nothing in the language of the 14th Amendment written in 1866 that gives any indication or intention of the authors to rewrite or change the meaning of the 1st amendment written in 1789 to read, "Congress shall make no law [nor shall any State] respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.". Therefore, NOTHING in the 14th that should make the word “liberty” written after Emancipation to mean “free” exercise of religion, or the “freedom of speech, or of the Press,” dealt with by the writers of the 1st amendment seventy-seven years earlier.
Where in the Constitution do the courts have the authority to blend the 14th Amendment into the 1st Amendment? If there is be a mingling of the two amendments, shouldn't it be done by the people exerting sovereign power as the constitution makers and not by the assertions of SCOTUS or the authority of Congress? Why is it that in all the years of litigation and arguments concerning this mingling no one has dared to propose to the States an amendment for their ratification which would emasculate them as has been done by decisions handed down by the SCOTUS?
Why does it seem that there no constitutional concern to the STATES and the people that the SCOTUS, as well as the lower courts, have been very busy over the years, causing great confusion when it comes to our Fundamental Law, the Constitution? Or have the STATES become slaves to the NATIONAL government?
Concluded in "Just Because the SCOTUS Declares Something to be 'Constitutional' Does Not Make It So* - Part 2"
* Senator Rand Paul, Kentucky
[1] Norton, Thomas James, Undermining the Constitution - A History of Lawless Government, Devin-Adair Co., New York, New York, 1951. (Thomas James Norton was a member of the Bars of the Supreme Court of the United States, the United States Circuit Courts of Appeals for the 7th, 8th, and 9th Circuits, and the Supreme Courts of Illinois, Kansas, New Mexico, Arizona, and California.)
[2] Ibid Page 208
[3] Ibid Page 208
[4] Norton, Thomas James, The Constitution of the United States of America, Its Sources and Its Applications. The World Publishing Co., New York, New York. (1940)
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