POC NL #23 – The 14th Amendment’s
Due Process Clause
The tool used by the Federal Courts to change our right to
“freedom of religion,” protected by the 1st Amendment,
“freedom from religion.”
This is a very important treatise and slightly longer - please read the entire article.
The last few POC Newsletters have made the case that the first sentence of the 14th Amendment was in the words of the Supreme Court:
IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872)
“… to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, ...”
The second sentence of Section 1 declares:
“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.”
This is the Constitutional Clause the Courts have used to DENY the sovereign authority over religion, the states retained for themselves, when they created our federal government.
A clear-cut case has been made in past newsletters that federal powers are limited and clearly enumerated per the 10th Amendment, and that the state’s powers are broad.
It is imperative then to take a closer look at the sovereign authority given up by the states, and moved up to the federal level through this 14th Amendment to our Constitution. It is critical that you understand exactly what the states gave up and why.
Without this knowledge it is impossible for you to know if, how, and when, the courts are over stepping their Constitutional bounds.
First you must understand the purpose of this amendment’s section 1:
To add the rights of citizenship to those freed from slavery by the 13th Amendment.
For the first time to specify the dual citizenship of, “… citizens of the United States and of the State wherein they reside.”
To secure the same “privileges and immunities” for these new, “citizens of the United States,” that had been enjoyed by the all the other “citizens of the United States.” These privileges and immunities are the ones guaranteed by the U. S. Constitution to the “citizens of the United States,” like the “Privilege of the Writ of Habeas Corpus, …” and, “… shall [not] be compelled in any criminal case to be a witness against himself,…” etc.
The citizens of each state have their own privileges and immunities protected by their own state constitutions.
The Supreme Court was clear to make this distinction between the privileges and immunities protected at the state and federal level in their first ruling on the 14th Amendment in:
IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872)
In the same case the U. S. Supreme Court clarified the purpose and limits of the 14th Amendment’s Section 1, when they said:
“We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”
The only sovereign authority given up and ratified by the states was their previous authority to determine citizenship.
The states were prevented from: “…depriv[ing] any person of life, liberty, or property, without due process of law; nor deny[ing] to any person within its jurisdiction the equal protection of the laws.”
No new rights were created by the amendment, only the requirement to treat all “persons” under their jurisdiction the same.
It is important to understand the distinction that, on one hand that the federal government was now given the authority to prevent a state from depriving a “U. S. Citizen” of the “privileges and immunities” guaranteed by the U. S. Constitution; and on the other hand in a more general sense the states were required to treat all “persons” the same under the law and not deprive any “persons” within its jurisdiction, of life, liberty, or property. Simply stated, those previously enslaved were to be treated equal under the law and not treated as a separate class.
This distinction between citizens of the United States, protected by our U. S. Constitution; and citizens of a State, protected by their state constitution; and persons, required to be treated equally by the states through the 14th Amendment; can be important in many federal court cases. These differences are a result of our federalist system of government where states and the federal government have specific areas of responsibilities and sovereignty.
It should be clear to this point that the states did not give up any authority over religion thru the 14th Amendment, and the 1st Amendment is still intact, preventing our U. S. Congress from making any: “… law respecting an establishment of religion, or prohibiting the free exercise thereof; …”
Congress can still not legislate without Constitutional authority and the federal courts still cannot rule in areas without specific federal authority except to rule inappropriate federal law unconstitutional.