U.S. Senate Votes To Overturn Constitution

[wyldberi]

U.S. Senate Votes To Overturn Constitution

Yesterday, September 28, 2006, the U.S. Senate, in a vote that closely followed partisan political party lines, passed legislation that overturned eight centuries of established law and the United States Constitution.

In 1215 A.D., on the field known as Runymede in England, John, King of England, was compelled by his Barons to sign Magna Carta, the Great Charter of English Law. This document granted to all John’s subjects and their heirs in perpetuity enumerated rights and limited the power of government to interfere in the personal lives and business activities of every English citizen and resident. Chief among these rights was the doctrine known as habeas corpus, which forces a legal authority to bring every person arrested before a judge, together with the evidence upon which the detainee was taken into custody to insure the accused is not being wrongfully charged and/or detained. This principle has formed the bedrock of justice in English Common Law and in the United States since that date.

Following in the aftermath of Wednesday's disastrous vote in the House of Representatives to set aside the rights guaranteed by the Constitution, the Senate confirmed the so-called "compromise" bill created by the collusion between Senators McCain and Graham and traitors in the bush administration.

Despite the specificity contained within the Constitution that guarantees individuals the right to have their case heard by a duly appointed court, legislators in our rubber-stamp branch of government succumbed once again to the strong-arm tactics of the bush administration, and refused to uphold their sworn oaths of office. It is truly astounding to witness how the current administration has attempted to maneuver its way around the recent Supreme Court decision that requires the administration to apply established U.S. judicial principles to those individuals who have been seized in bush's questionable program known as the "war on terror." Based on imaginary “war powers,” the bush administration has claimed bush, our dictatorial pretender to the office of President of the United States, has the authority to declare and detain any person he so decides to be an “illegal combatant.” Such determination can now be made upon the testimony of witnesses whose identity does not have to be revealed, and whose evidence can be arbitrarily classified as a state secret not subject to judicial review, and may include testimony that has been coerced, testimony that would be thrown out of court in any other legal proceeding in the United States and its territories.

A number of Liberal and Progressive news commentators have called this date the day democracy died in America. We cannot refute such statements, for indeed, this represents but one more step toward establishing a police state in America controlled by fascists. The road map Hitler used in leading his country into the disaster of World War 2 has been dusted off, and the bush/cheney/rove triumvirate continue goose-stepping their way into history.

[Nathan Morrison]

Wyld, did you write that? I'd like to publish it over the weekend, if that is alright with you... PM me or email and let me know.

[e-mail]

[wyldberi]

Yes, I did write it.

Help yourself.

[nick]

The torture bill overturning habeas corpus and the Padilla situation motivated me to blog on this and list what exactly our constitution says and how, in many instances, the current regime has completely disregarded it and the values of our founders:
Is Constitutional Government Dead?
nickdupree.blogspot.com/2006/10/is-constitutional-government-dead.html

[realdre]

First off any law or stated right in the Constitution can be overturned...its not illegal if it is voted on and things taken away...none of the rights of the Constitution were written in stone it has always been meant to be flexible and to adjust to the needs of society at whatever the current social pinnacle is at that specific time...which is the true power of the document.

[wyldberi]

realdre said:

First off any law or stated right in the Constitution can be overturned...its not illegal if it is voted on and things taken away...none of the rights of the Constitution were written in stone it has always been meant to be flexible and to adjust to the needs of society at whatever the current social pinnacle is at that specific time...which is the true power of the document.

Yes, the Constitution can be changed. The process by which it can be changed is via ratification of a Constitutional amendment specifying what is being changed. The amendment is first proposed, hammered out in the legislative houses of Congress and then presented to the various States for ratification.

Until that is done, any federal law or regulation that is created in contradiction to, or contravention of, the existing constitution and its amendments is un-Constitutional, and therefore, null and of no effect. Any attempt to uphold such an un-Constitutional law or regulation by a federal official violates the oath of office all officials take upon assuming their office, and therefore presents grounds for removing that official from office, and potentially facing charges for treason.

[realdre]

They have not changed anything though...to keep yelling theyve done something to the US Constitution is a complete misunderstanding of US history. Im assuming youre talking about the Military Commissions Act of 2006, first of when you talk about the Bill of Rights you have to look at the original intent of those provisions as specifically stated.

The right to trial by jury in civil cases, guaranteed by the 7th Amendment and the right to bear arms guaranteed by the 2nd Amendment have been distinctly held not to be privileges and immunities of citizens of the United States guaranteed by the 14th Amendment and in effect the same decision was made in respect of the guarantee against prosecution, except by indictment of a grand jury, contained in the 5th Amendment and in respect of the right to be confronted with witnesses, contained in the 6th Amendment it was held that the indictment, made indispensable by the 5th Amendment, and trial by jury guaranteed by the 6th Amendment, were not privileges and immunities of citizens of the United States, as those words were used in the 14th Amendment. We conclude, therefore, that the exemption from compulsory self-incrimination is not a privilege or immunity of National citizenship guaranteed by this clause of the 14th Amendment.

"Twining v. New Jersey, 211 US 78, 98-99"

Let's be clear...the "rights" of federal citizens are not given to them by God, as are our unalienable rights. Their rights are given to them by Congress alone, and the most significant point to understand and keep in mind is that, "What Congress giveth, Congress may taketh away". It has always been this way and it will always be this way.

Most Americans have no idea that there are two "classes of citizenship", nor do they understand the vast distinction between the two, and what it means in their lives.

Let's look at what the courts have said about federal citizenship:

"A 'civil right' is considered a right given and protected by law, and a person's enjoyment thereof is regulated entirely by the law that creates it." See...82 CA 369. 373, 255, P 760.

"The persons declared to be citizens are, "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject..." See...Elk v. Wilkins, 112 US 94, 101, 102 (1884)

While Elk v. Wilkins is a 14th Amendment case, the concept is still true concerning all federal citizens. In other words, all federal citizens must be, by their very definition, a person who is "completely subject" to the jurisdiction of the federal government (such as a citizen of Washington DC). Virtually any legal concept stated by the courts concerning a 14th Amendment citizen is operative upon all federal citizens.

"The privileges and immunities clause of the 14th Amendment protects very few rights because it neither incorporates the Bill of Rights nor protects all rights of individual citizens. (See Slaughter House cases, 83 US (16 Wall.) 36, 21 L. Ed. 394 (1873)). Instead this provision protects only those rights peculiar to being a citizen of the federal government; it does not protect those rights which relate to state citizenship." See... Jones v. Temmer, 839 F. Supp. 1226

"...the first eight amendments have uniformly been held not to be protected from state action by the privilege and immunities clause [of the 14th Amendment]." See...Hague v. CIO, 307 US 496, 520

"The governments of the United States and of each state of the several states are distinct from one another. The rights of a citizen under one may be quite different from those which he has under the other". See...Colgate v. Harvey, 296 U.S. 404; 56 S.Ct. 252 (1935)

"...rights of national citizenship as distinct from the fundamental or natural rights inherent in state citizenship". See...Madden v. Kentucky, 309 U.S. 83: 84 L.Ed. 590 (1940)

"There is a difference between privileges and immunities belonging to the citizens of the United States as such, and those belonging to the citizens of each state as such". See...Ruhstrat v. People, 57 N.E. 41 (1900)

"We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of it's own..." See...United States v. Cruikshank, 92 U.S. 542 (1875)

"It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual". See... Slaughter-House Cases, 83 U.S. (16 Wall.) 36; 21 L.Ed. 394 (1873)

[realdre]

In the Constitution of the United States, the phrase "Citizen of the United States" appears. Because this phrase appears within a Constitution, not a statute, the meaning of the phrase is determined by the meaning intended by those who wrote and signed the Constitution. If the intended meaning is manifest, there is no power on earth, which can alter the meaning of the phrase.

The meaning of the phrase "Citizen of the United States" is well understood. That phrase is shorthand for the sentence, "All the Citizens of the 13 independent nations [called "states"] that are a party to this Constitution". The important element that you should understand is that the "Citizen of the United States" spoken of in the Constitution of the United States is more properly and accurately a Citizen of the state in which he lives. The phrase "Citizen of the United States" is actually a euphemism used for convenience and brevity, and not a legal title.

After the Constitution was signed by all the states, the federal government began acquiring "territories". At the time, these territories were limited to the lands west of the established boundaries of the states, and lands not claimed by the states. People born in those federally held territories, by parents who were not Citizens of a state, became de facto "citizens of the United States". Although at that time there was no statutory authority for such a thing, international law had (and still has) a long established doctrine that, absent any extenuating circumstances, a person is a citizen of the national jurisdiction (or sovereignty) in which he's born. The federal territories were outside of the sovereignty of the individual state governments, and within the sovereignty of the United States government; hence the de facto status as a "citizen of the United States". This principle also applies to persons in Washington DC, which is under the exclusive sovereignty of the United States.

[For the sake of clarity, we shall be using a lower case "c" for a citizen of the federal government and an upper case "C" to denote a Citizen of a state of the Union.]

It should be noted that "citizens of the United States" are not The People who created the states, then by state action, created the federal government. These "federal citizens" are not "parties to the Constitution" and therefore did not have legal claim to the same rights, privileges, and immunities that state Citizens did.

One should take careful note that the Citizens of the states of the Union are the only Citizens who possess all the rights, privileges, and immunities spoken of in the US Constitution, plus whatever additional rights are secured to them by their own state Constitutions.

Prior to the Civil War, the southern states did not recognize blacks as persons who could become Citizens of their states. In fact it was well understood by the Citizens of these southern states that when their state Constitutions protected the right to own "property" or "chattel", that right included holding slaves. That was exactly what the framers of these southern Constitutions had intended and so that understanding was accurate and factual.

After the South lost the rebellion, the United States took the opportunity to free the slaves. This was easier said than done because the Constitutions of the Southern states hadn't changed a bit just because the South had lost the War. Their Constitutions still did not recognize blacks as persons who could attain citizenship.


"Prior to the adoption of the federal Constitution, states possessed unlimited and unrestricted sovereignty and retained the same even afterward except as such was surrendered to the federal government or they were expressly prohibited from exercising by the United States Constitution."-- Blair v Ridgely, 97 D. 218, 249, S.P. People v. Coleman, 60 D. 581

Congress was faced with a difficult dilemma; it wanted the freed blacks to become Citizens, but there was nothing in the US Constitution that gave Congress the power to alter the Constitutions of the Southern states. The best Congress could do in an immediate sense was to consider the South under "military occupation" of the United States (which it was) and recognize that as such, the Southern states came within the authority of Article I, Section 8, Clause 17 of the US Constitution.

What this meant was that as long as the Southern states were held as a "defeated foe" Congress could pass legislation that would operate within the area known as "the Southern states". However, in the future, when Congress would restored the Southern states to their former status as regular states of the Union, all such federal legislation would cease to operate in the Southern states. This meant that Congress needed a two phase solution. The first phase being the enactment of federal laws to operate within the "occupied territories" and the second phase being a Constitutional amendment to secure the principles of those laws even after the laws themselves lost authority in the Southern states.

It should be noted at this point that although the slaves were now free, and had been born in a state of the Union, they still were not Citizens of that state. In short, they had no citizenship at all. Under long established doctrines of law, a person who is not a citizen of a place in which he resides is an alien. The legal position of the freed slaves was tenuous - yes, they were free, but they were aliens in the land of their birth and were thus not entitled to the same rights, privileges, and immunities as Citizens.

Although defeated in battle, the people of the South were not yet ready to capitulate on the slavery issue and they moved quickly to use the "alien" status of the blacks against them. Almost immediately after the surrender of the Confederacy, many Southern states started enacting "Black Codes". These laws were intended to operate only upon "persons not citizens" (a phrase right out of Dred Scott v. Sanford, 19 How. 393), and thus effectively limit the new found freedom enjoyed by the former slaves by requiring them to apply for licenses to do anything from holding a job, to hunting for food.

Because the Southern states were under the "exclusive legislative jurisdiction" of Congress at this time, any state or local laws that conflicted with federal law would immediately become void and unenforceable. Congress moved quickly to quash the Black Codes. In rapid succession Congress passed the Enforcement Act, the Freedman's Bureau Act, and the Civil Rights Act of 1866. Collectively, these acts prevented the enforcement of the Black Codes and simultaneously imbued the freed black slaves with federally granted privileges that are euphemistically called "rights".

It is in the Enforcement Act that we first see the phrase "citizen of the United States" used as a "legal term" embracing only the recently freed black slaves. This term is then used again in the both the Freedman's Bureau Act, and the Civil Rights Act of 1866 in the same limited manner. It should be noted at this point that the phrase "citizen of the United States" had been used for nearly 8 decades before the Civil War, but always to speak of persons within federal territories. This was the first time that Congress had used the phrase to denote a person who had been born within a state of the Union. Congress could only apply the term in this way, within federal law, at that specific point in history because the South (where the freed blacks lived) was "federal territory" as long as it was being held by the United States military as a "defeated foe".

Phase two of Congress' plan was put into action with the drafting of the 14th Amendment. Here are its pertinent parts to this discussion:

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.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In drafting the Amendment, Congress was looking to make its federal laws (the Enforcement Act, the Freedman's Bureau Act, and the Civil Rights Act of 1866) a part of the US Constitution. In doing so they intended to ensure that the freed blacks would have certain privileges and protections remain in place after the United States pulled its army out of the South and restored the Southern states to their previous status as states of the Union. The Amendment would also insure that Congress had the national authority to enforce the provisions of the Amendment upon any state that attempted to violate them.

Because the Congressional Acts were merely intended to "hold the line" until the 14th Amendment was ratified, their intent is significant in determining the intent of the 14th Amendment.

The Civil Rights Act of 1866:

"All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States, and such citizen of every race and color shall have the same right in every state and territory of the United States to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens".

Please note that when the drafters of this bill meant to indicate a Citizen, they clearly used the word "citizen", however when defining "who" the Act applies to, the drafters used the word "person". As they used both words within the same paragraph, it is obvious that the drafters were keenly aware of the distinction.

Clearly Congressional intent was to provide non citizens with the same fundamental rights as de jure state Citizens (who in that day, were exclusively white). This intent was further clarified in President Johnson's speech when he vetoed that bill. President Johnson made this statement as part of his speech:

"It [the Civil Rights Bill of 1866] comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, persons of color, Negroes, mulattoes and persons of African blood. Every individual of those races born in the United States is made a citizen thereof."

Once again, it can clearly be seen that the intent of the this Act was to embrace "persons" (as defined in Dred Scott case), but in no way was intended to address or alter the relationship of the de jure white Citizen to his state of birth or domicile.

In the case of United States v. Otherson, the US Supreme Court found it necessary to review the historical foundations of the Enforcement Act. The Court found that Senator Stewart, who had sponsored the Enforcement Act legislation, had made the following remarks regarding the Act's intent. Stewart noted that the bill,

"...simply extends to foreigners, not citizens, the protections of our laws".

He also added that,

"This bill extends [the equal protection of laws] to aliens, so that all persons who are in the United States shall have the equal protection of our laws".

These realities were not lost upon the various courts that were later called upon to make determinations as to the intent of the various civil rights acts or the 14th Amendment. In Van Valkenburg v. Brown, 43 Cal Sup Ct. 43, the Court made the following statement:

"No white person born within the limits of the United States and subject to their jurisdiction owes his status of Citizenship to the recent amendments to the Federal Constitution".


Courts in the latter part of the 19th century were quite clear on the intended purpose of the Freedman's Bureau Act, the Enforcement Act, the Civil Rights Act of 1866, and the 14th Amendment. However, what has the Supreme Court said in this century?

In Hurd v. Hodge (1948), the court explained that in order to understand the Civil Rights Act of 1866,

"...reference must be made to the scope and purpose of the 14th Amendment; for that statute and the Amendment were closely related both in inception and in objectives which Congress sought to achieve".

The Court further stated that the purpose of the 14th Amendment,

"was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land".

The "original intent" link can also be found in several other cases as well. Justice Harlan noted that privileges and immunities protected by the 14 Amendment included [used in its restrictive sense] those set forth in the first section of the Civil Rights Act. Justice Thurgood Marshall noted that,

"the Congress that passed the 14th Amendment is the same Congress that passed the 1866 Freedman's Bureau Act",

and he concluded that the rights set forth in the Freedman's Bureau Act were dispositive of Congress' intent in the 14th Amendment.

In 1987, Justice William Brennan traced the "rights" [actually congressionally granted "privileges"] that are secured by the 14th Amendment to the Freedman's Bureau bill. He then went on to state that,

"The main target of the Civil Rights Act of 1866 were the 'black codes' enacted in the Southern States..."

As can be readily seen, even relatively recent Courts have acknowledged the fact that the 14th Amendment was simply intended to integrate elements of the Civil Rights Act of 1866 and the Freedman's Bureau Act into the Constitutional structure of the nation. Accordingly, the 14th Amendment only applies to non-citizens (aliens) who were the exclusive focus of the Civil Rights Act of 1866 and the Freedman's Bureau Act.

Now that the intent, meaning, and proper application of the 14th Amendment have been illustrated, it is clear that the Amendment made "federal citizens" out of specific aliens who otherwise would have had no form of citizenship at all. By converting these "aliens" into "federal citizens", they fell under the protection of the federal government with regard to those "rights" that had been conferred upon them by the 14th Amendment.

In consideration of these facts, Black's Law Dictionary (6th Ed.) defines the 14th Amendment this way:

The Fourteenth Amendment of the Constitution of the United States, ratified in 1868, creates or at least recognizes for the first time a citizenship of the United States, as distinct from that of the states;...

Note the vagueness in the definition "...creates or at least recognizes for the first time...". This vagueness is because Congressional intent purported to embrace only the recently freed slaves, but at the same time, the bare language of the Amendment, (without consideration of Congressional intent) seems to merely recognize the long standing principle that the federal government has its own citizens, who are not state Citizens; a legal reality that existed long before the 14th Amendment.

It has never once been asserted by any member of Congress, or by the courts, that the 14th Amendment, or the phrase "citizen of the United States" as used before the ratification of the 14th Amendment, applies to native born Citizens of a state of the Union. It should also be noted that the original use and application of the phrase "citizen of the United States" still continues today, unaffected by the 14th Amendment, which embraced only a very narrow and specific group of persons.

The Declaration of Independence states that, "all men are created equal, that they are endowed by their Creator with certain unalienable Rights" This clearly lays out the foundation of our rights - we are all equal before God, and the law; we possess rights which are "unalienable"; those rights are given to us by God (our Creator). Although the men who wrote the Declaration of Independence said that "all men" are created equal, when it came time to create the legal framework of a government, they understood that they could not include "all men" in a Constitution, but could only speak of those people who had formed the states, which then resulted in the states creating a national government of limited power. It is the state Citizens to whom the phrase "all men" would have to be limited for governmental purposes.

Accordingly, as the form of our governments began to take shape, the people who would be able to claim these, "unalienable rights", which the "Creator" granted, would only be the Citizens of the states. While this may seem like a narrow restriction, one must remember that a government can only make laws (including its Constitution) for its own "body politic", and no one else.

So what are these mysterious "unalienable rights"? The Declaration of Independence says that, "among these [rights] are Life, Liberty and the pursuit of Happiness". While "Life, Liberty and the pursuit of Happiness" is pretty all encompassing, the words of the Framers tell us that there are more rights involved, and that "among them" are found the rights of "Life, Liberty and the pursuit of Happiness". In other words, the language of the Framers tells us that "Life, Liberty and the pursuit of Happiness" is a designated group of rights within a larger body of rights referred to as our "unalienable rights".

This larger body of "unalienable rights" is vast. In fact, it is so vast that no one, not even the judicial branch, has ever attempted to list the rights contained therein. This is best illustrated by the old adage that, "My right to swing my fist ends somewhere before it hits your nose". In short, a Citizen can do virtually anything he or she wants, so long as it does not infringe on the rights of another Citizen, or endanger the community. Also inclusive in these rights are your protections against mistreatment by government; the primary protections being expressly stated in the Bill of Rights in the US Constitution.

"You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe."

-- John Adams, Second President of the United States. (1792-1801)

The US Supreme Court has stated that because these rights existed antecedent [prior to] the formation of either the states or the national government they are outside the government's power to alter, modify, or abolish.

With these powerful rights in our hands, one might wonder what sort of "rights" are possessed by "citizens of the United States" ?

[realdre]

Myth #1: The term "citizen of the United States" as used in the 14th Amendment, means the same thing in the opening verse of the U.S. Constitution. WRONG

Fact #1: The phrase "Citizen of the United States", as used in the opening of the U.S. Constitution, does not have the same meaning as the term "citizen of the United States", as used in the 14th Amendment.

The phrase "Citizen of the United States", as used in the opening of the U.S. Constitution, is shorthand for "All the Citizens of the 13 independent nations [called "states"] that are a party to this Constitution". This meaning is made unmistakably clear when one reads the words of Chief Justice Taney in the Dred decision. To my knowledge, no rational person has ever contended otherwise.

Chief Justice Taney makes it crystal clear that the phrase "people of the United States", and its pre-Civil War synonym, "Citizen of the United States" (as used in the opening of the U.S. Constitution), have a meaning that is forever fixed. It is forever fixed (according to Taney) because those phrases mean only what the men who wrote them, and voted on them, meant them to mean. That is the preeminent rule of constitutional interpretation.

In other words, neither you, nor I, nor the Chief Justice of the US Supreme Court can indulge in revisionist history in order to pretend that the words now mean something new and different than they did the day the author wrote them. Whether we like it or not, those words mean (forever) only the white citizens of the 13 independent states (and all states admitted to the Union thereafter).

That is not a racist statement; that is a historical legal reality. Sometimes a historical legal reality may bruise our modern conscience and sensibilities, but the fact that we may feel bruised and angry does not change what the men who wrote the document meant when they wrote the words.

Because the phrase "Citizen of the United States", as used in the opening of the US Constitution, has a fixed meaning for all time, it obviously can never be used to mean people of African decent brought here for the purpose of slavery, or their posterity; so says the US Supreme Court. [see Dred].

A constitutional amendment may change a mechanism or methodology of a constitution, but it can never change the meaning the framers had in mind when they wrote the document. Those who wish to dishonestly apply the 14th Amendment to people concerning whom it was never intended, will try to persuade you that even though the phrase "Citizen of the United States", as used in the opening of the US Constitution, has a fixed and permanent meaning for all time, the 14th Amendment somehow changed what the Founding Fathers meant when they wrote that phrase. That proposition is obviously absurd and can only be promoted by people who are either ill-informed or dishonest.

Since the term "citizen of the United States", as used in the 14th Amendment, quite clearly does embrace people of African decent, brought here for the purpose of slavery, and their posterity, this "citizen of the United States" must be a new and different term, separate and distinct from that used in the opening stanza of the US Constitution. And it is!

* Citizen of the United States (as used in opening of the US Constitution):

Any free white male who was a citizen of any of the original 13 states, and any free white male who is a citizen of any state thereafter admitted to the Union.

* citizen of the United States (as used in the Amendment):

Any person born in any state of the Union who was held in the bondage of slavery or involuntary servitude, and under the provisions of the Constitution of such state (at that time), not a citizen thereof.

In short, the 14th Amendment created another [new] class of citizen. This new type of citizen was not created by the well-settled and long existing rules and tradition of international law as relating to citizenship, such as is the case for men who gained their state citizenship by birth upon the land. This new class of citizen gained his citizenship by the citizens of the "original class of citizenship" agreeing to establish a new class of citizenship and gifting that new class of citizenship (by the Amendment) to a certain designated "class of persons" who, at that time, were without any form of citizenship.


Myth #2: Sections 1983, 1985, and 1986 of Title 42 of the United States Code prove that the 14th Amendment applies to all Americans. WRONG

Fact #2: People who make this argument are not only wrong, but none too bright. Their pet theory can only pretend validity if §1983, 1985, and 1986 exist in a vacuum, which of course, they don't.

Sections 1983, 1985, and 1986 are within Chapter 21, which is succinctly entitled "Civil Rights". As the California Supreme Court plainly stated:

"A 'civil right' is considered a right given and protected by law, and a person's enjoyment thereof is regulated entirely by the law that creates it". See...82 CA 369, 373, 255, P 760.

As all Americans should know, our "inalienable rights" are not "given by law", but according to the organic law of the United States, i.e. the Declaration of Independence, are given by God and are not subject to interference by the government.

Since Americans claiming the original class of citizenship have "inalienable rights", what rights have 14th Amendment citizens? The answer is as clear as it is unfortunate: mere civil rights.

Proponents of this erroneous argument begin at §1983. They conveniently forget that chapter 21 begins with §1981. Isn't it odd that the proponents of this erroneous argument happen to skip the first three sections [1981, 1981a & 1982] of the Civil Rights chapter? Not really, because if they directed your attention to the beginning sections of the chapter, their argument would immediately collapse.

42 USC 1981(a): All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.

Clearly "persons" are being distinguished from "white citizens". That is because the term "person" as used in §1981 is the same "person" as in the 14th Amendment, who is the same "person" as in the Civil Rights Act of 1866, the Enforcement Act, and the Freedman's Bureau Act, all of which deal exclusively with one "class of person", which is - Any person born in any state of the Union who was held in the bondage of slavery or involuntary servitude, and under the provisions of the Constitution of such state is not a citizen thereof.

It is also crystal clear that §1981 gives "persons" that which "white citizens" already had/have. Certainly Congress didn't write §1981 to give "white citizens" what they already had before §1981 was ever conceived!

So how does §1981 affect §1983, 1985 & 1986? Let's start by looking at §1983.

42 USC §1983 - Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution...

All federal civil rights laws since 1867 have been enacted solely on the constitutional authority of the 14th Amendment. [The Civil Rights Act of 1866 was applicable only to the Southern states that were being held by the Union Army as a defeated foe and therefore no constitutional question existed as to its applicability.]

We have already explained who the 14th Amendment citizen really is, so we will not cover that again. However, who is it that is "within the jurisdiction thereof" as stated in §1983?

The phrase "within the jurisdiction thereof" is taken from the language of section 1 of the 14th Amendment, which states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...

Put simply, "jurisdiction" is merely the lawful authority to act. Jurisdiction may arise from geography or subject matter. [See Federal Jurisdiction within this site.] In the case of the 14th Amendment, the jurisdiction is based on subject matter, not geography.

The issue being addressed in Section 1 of the 14th Amendment is plainly "citizenship". So where does citizenship come from? [See Citizenship within this site.] Prior to the ratification of the 14th Amendment, citizenship could only be obtained at the state level. Any rights, privileges and immunities [main body of the Constitution] obtained under the federal Constitution were based exclusively on one's status as a citizen of a state of the Union. It is still that way today for Americans who are within that original class of citizenship.

With the ratification of the 14th Amendment, the citizens of the states of the Union agreed to give Congress a hitherto unpossessed power; the power to grant a form of federal citizenship to those "persons" who had been born in any state of the Union, who'd been held in slavery, and under the Constitution of that state could not become a citizen thereof. The states also agreed to consider this new form of citizen as a citizen of a state if the person were to reside within a state.

In other words, §1983 offers its protection to the very same "class of person" as does §1981. In fact, §1981 provides the underlying legal basis, i.e. "... [to] enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens", upon which all other sections of chapter 21 are built. Or phrased another way, every section that comes after §1981 is merely a mechanism to enforce one or more elements of §1981.


Myth #3: The 14th Amendment changed the constitutional landscape so that the US Supreme Court's decision in Dred Scott v. Sandford was no longer operative in America. WRONG AGAIN...

Fact #3: Yes, but not in the way the purveyors of this argument would have you believe, and the distinction is significant.

The US Supreme Court ruled that the federal courts had no jurisdiction to even hear the Dred Scott matter because there was no issue cognizable under the federal Constitution. The Court ruled that there was no issue cognizable under the federal Constitution because Dred Scott and his family were not "Citizens of the United States", as such phrase was used in the Constitution, and as it was meant by the men who constructed the Constitution.

As previously discussed, no amendment can change what the Founding Fathers meant when they wrote "Citizen of the United States" in the opening of the US Constitution. Therefore, the Amendment could not overturn the underlying Constitutional premise the Court used to reach its determination, which was that black folks (and their posterity) who were brought here for the purpose of slavery could never be citizens in the sense in which that term is used in the main body of the US Constitution. In other words, the Amendment could not revise history.

What the Amendment did was to "add to" the Constitution by establishing a second "class of citizen" over whom the federal courts would have jurisdiction. However, underlying this seemingly favorable course of action was a pervasive and insidious problem in the making.

Prior to the ratification of the Amendment, for people in the original class of citizenship, their state courts dealt with virtually every matter that was appropriate to be brought before a court, and the federal courts could only hear matters that dealt exclusively with issues in the U.S. Constitution, or federal action in connection with the first 13 amendments. In other words, the line between state and federal authority in the lives of citizens was crystal clear.

Although the 14th Amendment was intended to serve a laudable purpose, the unintended consequence was to radically shift the balance of federalism and blur the lines almost beyond distinction. How did that happen?

For people in the original class of citizenship, the courts of the United States had almost no jurisdiction in their affairs. Opportunity for federal intervention in the lives of the average American was virtually nil. By contrast, when the 14th Amendment was ratified, the United States government became the preeminent protector of every "right" of the persons granted citizenship by the Amendment. This meant that the federal government could tell the states how they could and could not deal with "its" citizens.

In other words, a state legislature could vote to control this or that within it borders relating the proper view of life in that state, but the federal government had the right to say, "That's fine for your citizens [original class], but we won't permit you to apply that law to our citizens [14th Amendment] who may be living in your state". This meant that for the first time in history, the United States government could haul a state official into federal court for enforcing a law duly passed by the elected officials of the state for which he worked! While this was a positive tool for protecting the recently freed black slaves from egregious state legislation such as the Black Codes, it flung the door open to federal intervention in the states in a way the Founding Fathers had never intended, nor would have permitted.

Myth #4: The US Supreme Court has said that the 14th Amendment was intended to protect all Americans. WRONG AGAIN...going to take a little longer to explain but ok...here we go.

Fact #4: One of the cases frequently cited in support of that contention is Bartemeyer v. Iowa (1873). The Bartemeyer quote offered for that argument is:

"By that portion of the fourteenth amendment by which no State may make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, or take life, liberty, or property, without due process of law, it has now become the fundamental law of this country that life, liberty, and property (which include 'the pursuit of happiness') are sacred rights, which the Constitution of the United States guarantees to its humblest citizen against oppressive legislation, whether national or local, so that he cannot be deprived of them without due process of law."

This statement hardly supports the point of view it is offered to support. Let's look at the court's statement in two parts by breaking the sentence in half.

The first part of the statement is, "By that portion of the fourteenth amendment by which no State may make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, or take life, liberty, or property, without due process of law..." We can't imagine why anyone would disagree with that statement - it certainly states exactly what the 14th Amendment was intended to provide for the "persons" to whom it applied.

The second half of the sentence reads, "it has now become the fundamental law of this country that life, liberty, and property (which include 'the pursuit of happiness') are sacred rights, which the Constitution of the United States guarantees to its humblest citizen against oppressive legislation, whether national or local, so that he cannot be deprived of them without due process of law."

We've emphasized the critical words within that sentence. While the Court (and others) might like the general population to presume that the 14th Amendment embraced everyone, the need for legal accuracy compelled the Court to delineate to which citizen it was referring, by referring to 14th Amendment citizens as the nation's "humblest citizens". In Dred Scott, the Court referred to recently freed black slaves as:

"the unfortunate race"; "the subject race" [as in "subjugated"]; "inferior class of beings"; "the unhappy race"; "the unhappy black race".

The Court classified the recently freed black slaves by saying, "The Negro race is a separate class of persons" and "The deepest degradation was fixed upon the whole race".

In distinction to these less-than-flattering comments, the Court referred to the white race as "the dominant race", but more importantly held that only white citizens of the states of the Union could be considered "Citizens of the United States" (as such phrase is used in the opening paragraph of the US Constitution).

It should also be noted that the Bartemeyer decision was rendered in 1873, when language was used differently than it is today. When the Court used the phrase, "its humblest citizen" it is referring to "the unfortunate race", "the subject race", "inferior class of beings", "the unhappy black race". Because the 14th Amendment had provided the recently freed black slaves with a form of citizenship, the Court could no longer refer to that "separate class of persons" as it had in Dred, but needed to find a gentle manner of referring to the new class of citizens. Keeping somewhat in line with the outlook of the Court in Dred, which was the dominant perspective of the day, the Court referred to the new black citizens as America's "humblest citizens".

While it is hard to believe today, the most vocal abolitionists of the day did not seek "equality" for freed blacks. In fact, they had no intentions of making black citizens equal to white citizens. The very idea was considered ridiculous in that day. [It would be ninety years until the now defunct doctrine of "separate but equal" would be uttered.] The new black citizens were expected to be, and remain, "humble" in the face of white citizens. Even though black men and women (and certain other minorities) were no longer slaves, the vast majority of white Americans at that time expected the new black citizens to humble themselves at all time before whites. No one in that day seriously considered that ending slavery had anything to do with equality of the races.

Today, we tend to think of "humble" as being akin to "meek". That is but one definition of "humble". When the Bartemeyer Court used that word, it was applying the meaning more in line with the Court's dicta in Dred concerning the condition of the black race.

According to the 1994 Webster's II dictionary, humble also means: Exhibiting deferential or submissive respect. The word "humbled" is defined as: To make lower in condition or status. Given the history of blacks in America, considering the words of the Court in Dred, and considering the historical reality that even the most ardent abolitionists of the day did not see blacks as being equal to whites, which definition of "humble" do you believe the Court was applying?

In fact, at that time it was the well-recognized purpose of the 14th Amendment to vest the black citizens with only a short list of rudimentary rights. Those rights were:

1. To make and enforce contracts
2. To sue, be parties, give evidence
3. To the full and equal benefit of all laws and proceedings for the security of persons and property.

The harsh historical reality is that if the 14th Amendment had been touted in that day as a means of promoting or establishing equality between the races, it would never have been ratified.

The rights granted by the 14th Amendment are still codified to this very day in Title 42 of the United States Code, at §1981:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

You will see from the emphasized phrase that §1981 (which codifies the intention and limits of the 14th Amendment) makes it clear that "persons" ["a separate class of person" - Dred] are to be treated the same as "white citizens". The meaning is so clear that it is amazing anyone would contend otherwise.

Myth #5: The Due Process of Law commandment in the Fourteenth Amendment is a codification of the "One Law" rule prescribed in Deuteronomy

Fact #5: There is no historical support for this argument. There is not one single utterance along these lines from the men who drafted or sponsored the 14th Amendment, or from any political commentary during the ratification period.

Myth #6: If one does not believe that the 14th Amendment applies to everyone, then such a person is saying that white citizens are left in the same position as was Dred Scott before the adoption of the 14th Amendment.

Fact #6: This ridiculous argument is a pathetic last-ditch effort by those who are desperate to somehow manipulate people into accepting a false proposition. The position is so clearly errant that it deserves no comment. However, for the sake of thoroughness...

In Dred, the Court held that Scott was not a Citizen of the United States (as such phrase is used in the opening of the US Constitution) because he was a member of the black race, whose ancestors had been brought to America for the purpose of being slaves, and no such person, or such person's offspring, could be considered Citizens of the United States. The 14th Amendment was drafted to create a form of citizenship for such persons, and thus [allegedly] rectify their plight. Nothing about Dred, or the 14th Amendment, has anything to do with white citizens of a state of the Union.

Myth #7: The concurring opinion of Justice Field in Bartemeyer should be considered as spelling out the true meaning of the 14th Amendment.

Fact #7: It should be noted that Justice Field's opinion is just that - his opinion. It is not the decision of the Court in Bartemeyer.

Further, Field is rebelling against the Court's prior decision in The Slaughter-House Cases. In the Slaughter-House Cases, the Court held that the 14th Amendment applied only to those persons who had previously been held in slavery, and did not apply to white state Citizens. Field did not like the Court's decision in Slaughter-House, so in his concurring opinion in Bartemeyer he states his alternative view.

Field even goes so far in his concurring opinion as to reveal that his view [that the Amendment should be perverted to cover everyone] does not comport itself with the true meaning of the Amendment. After stating his opinion that everyone should be covered by the Amendment, Field writes, "[The Amendment] clothes its possessor, or would do so if not shorn of its efficiency by construction, with the right..."

Construction - The process, or the art, of determining the sense, real meaning, or proper explanations of obscure or ambiguous terms or provisionsby reasoning in the light derived from extraneous connected circumstances or laws or writings bearing upon the same or connected matter, or by seeking and applying the probable aim and purpose of the provision. Black's Law Dictionary, 3rd Ed.

Clearly, Field is saying is that his opinion (which he touts as "efficiency") would clothe everyone with the protections of the 14th Amendment unless one actually practices the art of construction. If one practices the art of construction (i.e. seeking out the true intended meaning), then Field's view of the Amendment is shorn. In short, Field admits that his view is only credible unless or until you look for the true application and meaning of the Amendment, at which time you find that his view isn't factual, but fanciful.

It is further evidenced that the concurring opinion of Field is merely wishful thinking because the actual holding of the Court in Bartemeyer is that the 14th Amendment had no bearing on the case. Despite the fact that the Amendment was irrelevant to the case, three justices, Bradley, Swayne, and Field, wrote concurring opinions that expressed their views on the 14th Amendment. Not surprisingly, all three justices disagreed with the Court's decision in Slaughter-House.

Considering the fact that the Court's actual opinion in Bartemeyer held that the Amendment had no bearing on the case, it becomes plainly obvious that these justices were pursuing a political and/or social agenda that had nothing to do with the case before them. Accordingly, legal researchers should be aware that these justices were voicing personal political views outside the scope of the case. Their remarks are clearly dicta. Interestingly, the people who tell you that your opinion should be based on this kind of social agenda-dicta will not tell you that dicta has no precedent effect upon future cases.

Dicta - Opinions of judges which do not embody the resolution or determination of the case before the court. Expressions in court's opinion which go beyond the facts before the court and therefore are individual views of author of opinion and not binding in subsequent cases as legal precedent. Black's Law Dictionary, 6th Ed.

Why would someone direct you to irrelevant dicta from a case where the Amendment was not an issue, when the Court had already decided the proper application of the Amendment in Slaughter-House? The word "deceit" leaps to mind.

[realdre]

Myth #8: The 14th Amendment prevents the states of the Union from infringing upon various rights held by all Americans.

Fact #8: This argument is flawed on a number of self-evident levels. As has been earlier noted, the 14th Amendment did not vest white citizens with any rights, and only vested the recently freed slaves (i.e. "citizens of the United States") with very limited rights. The only rights that can be protected by the federal government under the authority of the Amendment are those rights given by the Amendment.


As has been previously covered in this treatise, true American citizens have "inalienable rights", which come from God, not government. Is it then supposed that somehow, 78 years after our nation was founded, the 14th Amendment suddenly gave us our rights?

Some would say that the 14th Amendment simply prevented the states from infringing on the privileges and immunities clause [Article IV, Section 2], and the due process provision of the 5th Amendment. This silly theory is also easily debunked.

The federal Constitution is a contract between all the states of Union. In Article IV, Section 2 of the main body of the Constitution, we find the privileges and immunities clause:

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

This was one of the pivotal sections of the Constitution under review in Dred. There was/is no question that no state was at liberty to infringe on this provision, and if a state did so, there was no question that such a violation would raise a "federal Constitutional question" which would be heard by a federal court. In other words, the revisionist history claim that the 14th Amendment was needed to protect white state citizens from state abridgment of the privileges and immunities clause, is baseless and without a shred of merit.

The issue was not that an amendment was needed to protect white state citizens of the day from state abridgement of the privileges and immunities clause; the issue was that the recently freed black slaves needed to be granted some form of citizenship so that they too could enjoy some level of protection from state action.

The due process argument is just as vapid and meritless. Every state of the Union had/has a due process clause in their constitutions. Under the federal privileges and immunities clause [main body, not 14th Amendment], the right of due process would be secured to every American citizen traveling throughout the country. That was indeed the purpose of the privileges and immunities clause.

Once again, the problem was not that white citizens were without "due process" as they traveled from state to state, or that the federal government was not Constitutionally authorized to rectify state abridgements of due process rights. It was that the recently freed black slaves were not considered citizens - and therefore the protections of the privileges and immunities clause and due process did not apply to them.

As you can clearly see, white citizens did not need the 14th Amendment. Their protections were quite secure. The 14th Amendment was a grant of a special form of citizenship to the recently freed slaves (and their posterity), and also contained the framework of rights and protections that would be a part of this new type of citizenship.

[realdre]

But to answer you specifically,

All state laws must be made pursuant to the Constitution of the state and all federal laws must be pursuant to the Constitution of the United States. Laws that are manifestly incompatible with the language or intent of the Constitutions are null, void, and unenforceable. While it is commonly understood that a Supreme court of a state, or the United States, will declare a law unconstitutional, most people fail to recognize that the first step in that process is for a Citizen to decide, for himself, that a law is incompatible with the Constitution and refuse to obey the law. In other words, if we never take a stand, all laws will be presumed to be Constitutional. It is only through the belligerent actions of a nation's Citizens that laws are brought under review and then can be judicially declared unconstitutional.

And the problem with this not being considered unconstitutional is the simple fact most Americans are in favor of torturing terrorists, rather those suspected of such. And believe such people should be thrown under the bus and shown no mercy regardless of innocence or guilt which they see as variations of the truth rather than the truth itself. Its sad I give you that but it is true in the current time we live in, America.