The ink was barely dry on the final draft of the Constitution before the judicial “sappers and miners” had begun undermining the constitutional fabric of the nation. That partial quote, pulled from Thomas Jefferson’s letter to Thomas Ritchie in 1820, described what Jefferson saw the federal judiciary was already becoming less than 30 years after the Constitution was ratified. In the letter, Jefferson was thanking Ritchie for giving him a copy of “Construction Construed, and Constitutions Vindicated” by John Taylor of Caroline, a work on the role of general government under the Constitution (and a book every liberty and history lover should read).
According to Jefferson, it was not an overreaching Congress that should be most feared, for taxes and elections would keep them under control. In fact, he wrote: “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare juris-dictionem.’”
The sapping and mining began in earnest 1803 when the U.S. Supreme Court established in its Marbury v. Madison decision the concept of “judicial review,” determining that it was the purview of the courts to decide on the constitutionality of laws passed by Congress or actions taken by the President. It is a concept discussed at length in the Philadelphia Convention and the ratifying conventions of the several states, but found nowhere in the Constitution in Article III.
Most of the Founders — noted exceptions being John Marshall (the Supreme Court justice who wrote the majority opinion in Marbury v. Madison), Rufus King, Oliver Ellsworth and William Richardson Davie — argued against the concept. John Mercer of Virginia said that he “disapproved the doctrine, that the judges, as expositors of the Constitution, should have the authority to declare the law void.” He thought “laws ought to be well and cautiously made, and then be uncontrollable.” James Madison said, “The meaning of the Constitution may as well be ascertained by the legislature as by the judicial authority.”
But none of them thought the federal judiciary should have authority to overturn state laws.
Jefferson would later write of judicial review, “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”
In fact, Marshall himself argued both for and against judicial review in the 1788 Virginia Ratifying Convention when he claimed the Supreme Court could only rule on federal law, not state statutes. But in 1810, Marshall wrote the majority opinion in Fletcher v. Peck, a ruling in which a Georgia law was ruled unconstitutional. [i]
The Civil War’s aftermath
Following the Civil War, the Union occupying army began enforcing laws called “Black Codes” to regulate the behavior of newly free blacks. Even the Freedmen’s Bureau, a government agency under the Department of War tasked with defending the rights of blacks, worked to force blacks to continue laboring for paltry wages under Southern planters enduring a labor shortage in order to ensure continued cotton production. The Freedman’s Bureau also helped both the military and the local governments enforce vagrancy laws that required blacks hold jobs.
Southern states took up Black Codes of their own and began passing laws restricting the ability of blacks to own property, conduct business, buy and lease land, and move about freely in public places. Key provisions of these Black Codes were the vagrancy laws that labeled those blacks not working, those unable to pay certain taxes or those who violated certain other laws as vagrants.
Northern states also had Black Code laws both before and after the war. Theirs were mostly designed to keep blacks out of the states altogether.
To combat this and to establish that newly freed blacks had all the “privileges and immunities” of white citizens (i.e., that they could own property, conduct business, buy and lease land and move about freely in public places), Congress passed the Civil Rights Act of 1866. When he introduced the bill, Congressman James F. Wilson said the bill:
[P]rovides for the equality of citizens of the United States in the enjoyment of “civil rights and immunities.” What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government (protection against a monarchy). Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. The definition given to the term “civil rights” in Bouvier’s Law Dictionary is very concise, and is supported by the best authority. It is this: “Civil rights are those which have no relation to the establishment, support, or management of government.”
According to Raoul Berger in “Government by Judiciary: Transformation of the Fourteenth Amendment,” there were very specific “rights” guaranteed under the Civil Rights Act of 1866. As evidence, he quotes its framers. Berger writes:
Radical Senator Henry Wilson of Massachusetts urged the framers to ensure that the freeman “can go where he pleases, work when and for whom he pleases, that he can sue and be sued, that he can lease and buy and sell and own property, real and personal” — measures to strike the shackles of the Black Codes. Senator William Windom of Minnesota said that the Civil Rights Bill afforded the blacks “an equal right, nothing more . . . to make and enforce contracts [etc.] . . . It merely provides safeguards to shield them from wrong and outrage and to protect them in the enjoyment of the right to exist.” The framers responded to what Senator Timothy Howe of Wisconsin termed the South’s denial to blacks of “the plainest and most necessary rights of citizenship. The right to hold land . . . the right to collect wages by processes of law . . . the right to appear in the courts for any wrong done them.” In 1871, Senator Lyman Trumbull reminded the Senate that the Act declared that the rights of blacks “should be the same as those conceded to whites in certain respects, which were named in the Act.” And in 1874, the Supreme Court stated that “the Amendment did not add to the privileges and immunities of a citizen,” which had been construed in terms of trade and commerce.
Congress suspected the Civil Rights Act could be overturned or rendered unconstitutional, so lawmakers drafted the 14th Amendment in order to prevent its repeal and to give it the support of constitutional footing. But what it did was further trample the Constitution in order to codify the act into constitutional law.
The former Confederate states were to be allowed back into the Union upon their passage of the 13th Amendment. But when the 14th Amendment came along, Congress, knowing the Southern states would not likely ratify the amendment, wanted to count votes without Southern congressmen taking their seats and voting. In other words, the Congress had recognized the legitimacy of the Southern states in order to pass the 13th Amendment, but then delegitimized them again, requiring them to ratify the 14th Amendment as a prelude to removing martial law.
When the 10 former Confederate states — joined by Kentucky, California, Delaware and Maryland — rejected the amendment, Congress sought to coerce them into ratifying it. Sen. James Dolittle of Wisconsin said, “The people of the South have rejected the constitutional amendment, and we will therefore march upon them and force them to adopt it at the point of the bayonet.” Instead, Congress installed puppet legislatures made up of “Negroes, carpetbaggers and scalawags who obeyed the orders of the generals and ratified the amendment.” [Encyclopedia Americana]
When moderate Republicans saw Dolittle and other Radical Republicans in action, some had second thoughts on the amendment. The legislatures of two states, Ohio and New Jersey, declared they were rescinding their ratification. Oregon’s legislature passed a rescinding resolution three months after Secretary of State William Seward proclaimed the amendment ratified. In truth, only 21 of the 37 states ratified the amendment — short of the 28 required under the Constitution.
So what has the 14th Amendment wrought? It provided an opening through which federal courts have entered to create a host of new “rights” that never existed and trample on the rights of self-determination and states’ rights the Founders created. It’s into the 14th Amendment’s due process clause that activist judges have reached in order to strip the states and people of their liberty and give almost unlimited power to the general government.
Recall that the Bill of Rights was written to establish a set of restrictions on federal government. The Preamble to the Bill of Rights says so, as did the Founders. The courts agreed. Even Marshall said so in his opinion in Barron v. Baltimore. In that unanimous ruling, the court determined the Bill of Rights “contain no expression indicating an intention to apply them to State governments. This court cannot so apply them.”
Supreme Court decisions over the next several decades held that view even after the 14th Amendment became established law. In the first case, the court ruled in the Slaughterhouse cases that the amendment’s “Privileges and Immunities” clause affected only rights of United States citizenship, not state citizenship, and it did not restrict a state’s police powers. All that was turned on its head beginning in 1925 when an activist court cited the due process clause in Gitlow v. New York. In that case, the court applied the 1st Amendment to the states when it overturned the criminal conviction of Benjamin Gitlow.
Gitlow was a communist who was convicted of criminal anarchy for violating New York’s Criminal Anarchy Law of 1902 after writing a document called “Left Wing Manifesto” and publishing it in his newspaper, The Revolutionary Age.
Over the next several decades, the Supreme Court ruled in several cases based on this precedent. The “incorporation doctrine” spread until it eventually applied all the first eight amendments to the states.
But using the 14th Amendment, corporations have been granted by federal courts the same “rights” as citizens. Some believe that one of the purposes of the first section of the amendment was to grant rights to corporations on behalf of the railroads. (Do a Google search for railroads and the 14th Amendment conspiracy theory.)
The result of this is the Citizen’s United case, which granted freedom of speech to corporations and removed the previous ban on corporations and organizations using their treasury funds for direct advocacy. These groups were freed to expressly endorse or call to vote for or against specific candidates, actions that were previously prohibited. This ruling was based on the court’s ruling in Santa Clara County v. Southern Pacific Railway, which granted the same constitutional protections to corporations as individuals under the 14th Amendment’s “Equal Protection Clause.”
Corporations now control the political process. Corporations even control the Supreme Court.
Using the 14th Amendment, federal courts created a “right” to murder babies and have thrown out state-passed referenda on issues like traditional marriage and immigration. It was used to overturn a host of state-passed referenda in the 1990s. It’s the incorporation doctrine — in which the first eight Amendments in the Bill of Rights are “incorporated” to apply to the states — that courts use to restrict religious displays at municipal and state buildings and prayer at public schools. It’s the incorporation doctrine that federal government is using to strip your state of its sovereignty and you of your liberty.
Now you may be asking what can be done to correct this and return to constitutional governance. I’m not certain it’s possible save in the aftermath of economic and societal collapse or through secession.
Thankfully, some progressive pointy-heads are starting to posit the notion that the United States would be better off without the conservative Southern states. Of course, many Southern conservatives feel they’d be better off without Washington, D.C.; parts of Washington state; New York City; Chicago; Detroit; and most of California. So secession might be a peaceful process should it be undertaken. And it is clear that an economic collapse is underway and is being papered over by the banksters.
But one route for remedy is nullification. It’s a process already taking root in Colorado; Washington; Oregon; Alaska; and Washington, D.C. — all of which have nullified federal laws on marijuana. Nullification is a legitimate process and was first used by Jefferson and Madison in 1798.
Electing a Congress that is dedicated to the Constitution could work if there was a way to elect a host of constitutionally minded lawmakers who could remain uncorrupted until they became a majority. This would involve a local grass-roots effort of great magnitude. Such an outcome is unlikely, at best. But a constitutionally minded Congress could encourage states to further nullify unconstitutional laws and pass laws restricting the courts from ruling on them.
The 14th and 17th Amendments need to be repealed — the 14th for reasons already explained; the 17th because it took away the last bit of power states had to check federal legislation. Senators are now owned lock, stock and barrel by crony corporations and their lobbyists, which has created a fascist system. They are no longer beholden to their states and subject to recall should they vote against state interests.
Some have posited the notion that an Article V Convention would be a remedy. I have serious doubts that the outcome of such an undertaking would leave us less under tyranny than more. The same fascist corporations that control Congress and the president would like control any such convention.
The elites have used gradualism to slowly deprive Americans of their rights one by one and bit by bit. It will take 238 years or more to return the same freedom to Americans they had at the founding of the nation. And it can never be done through the election process if politicians continue to employ the so-called “art of compromise.” Because when liberty and tyranny compromise, liberty is lost.
[i] The Founding Fathers Guide To The Constitution, by Brion McClanahan, pp. 136-141.
The Essence of Liberty Volume III: Liberty: A Universal Political Ethic. This is the volume that pulls it all together. With reference to Hans-Hermann Hoppe’s description of Murray Rothbard’s work, it is a “unique contribution to the rediscovery of property and property rights as the common foundation of both economics and political philosophy, and the systematic reconstruction and conceptual integration of modern, marginalist economics and natural-law political philosophy into a unified moral science: libertarianism.” Available in both paperback and Kindle versions.
You might be interested in the other two volumes of this three volume set: The Essence of Liberty Volume I: Liberty and History and The Essence of Liberty Volume II: The Economics of Liberty