THE 14th Amendment thread

[MonkeyPuppet]

This will be a series of pre-written break-downs, mostly from Original Intent, and some entries from the United States Code.  Comments are welcome, so long as the conversation is kept on topic.

The basic premise is that the 14th Amendment to the United States Constitution creates a separate class of citizen (citizen of the United States) which must be granted civil rights by the federal government.  By enforcement of this Amendment, the States must recognize these "rights".

Keep in mind that the vast majority of people in the 50 States of the union are NOT within this special class of citizen.  Also, the claim of being one of these by checking a box next to "U.S. Citizen" on a form does not automatically make you something you are not.  However, if the activity which facilitates the form is statutory in nature, there is a possibility that the implication is there.  You therefore would be setting aside your substantive due process rights in favor of mere procedural due process privilege.

Anyway, onto the reading...

[MonkeyPuppet]

Constitutions

CONSTITUTION, government. The fundamental law of the state, containing the principles upon which the government is founded, and regulating the divisions of the sovereign powers, directing to what persons each of these powers is to be confided, and the manner it is to be exercised as. Definition from: A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION by John Bouvier (1856 Ed.)

Here is how Constitutional scholar Henry Black defines a Constitution:

HANDBOOK of AMERICAN CONSTITUTIONAL LAW
by Henry Campbell Black, LL. D. Fourth Edition; West Publishing Company. 1927

Constitution Defined - § 3 . . .

A constitution differs from a statute or ordinary act of legislation in three important particulars:

1. It is enacted by the people as a whole (that is, by vote of the qualified electorate) who are to be governed by it, instead of by their representatives in a congress or legislature.

2. A constitution can be abrogated, repealed, or modified only by the power which created it, namely, the people in the sense stated above, whereas a statute may be repealed or changed by the legislature. The people, however, can modify or repeal their constitution only through the medium of a constitutional convention or constituent assembly, or by affirmative vote on amendments or on a new constitution duly submitted by the legislature.

In those states where the initiative and referendum are in use, the provisions of the constitution are as binding on the people in the exercise of their legislative prerogative as upon the legislature, that is, these devices cannot be used to alter the constitution in any other mode than as the constitution itself provides. [State v. Dixon, 59 Mont. 58, 195 P. 841; State v. Stewart, 53 Mont. 18, 161 P. 309; City of Ft. Collins v. Public utilities Commission, 69 Colo. 554, 195 P. 1099 ]

3. The provisions of a constitution refer to the fundamental principles of government and the establishment and guaranty of liberties, instead of being designed merely to regulate the conduct of individuals among themselves. [Constitutions announce principles, while statutes apply them. Sproules v. State, 97 Tex Cr. R. 561, 262 S. W. 757.] But the tendency towards amplification in modern constitutions derogates from the precision of this last distinction.


At present there are at least 51 Constitutions operative in the United States of America. There are the Constitutions of the 50 states of the Union, and the Constitution of the United States. I say "at least" 51 because many of the states of the Union have more than one Constitution. As an example, California has two and Oklahoma had at least six different versions that have been found as of the date of this writing.

As noted above by the famous John Bouvier, a Constitution's essential element is that it is, "…containing the principles upon which the government is founded, and regulating the divisions of the sovereign powers…" You will note that in Bouvier's definition, nothing appears about regulating Citizens. That is because, at least in a free nation, it is The People, in agreement with each other, who create the Constitution for the sole purpose of establishing, defining, and limiting the scope of government.

"The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government." -- Patrick Henry

Every state of the Union has a distinct and unique Constitution of its own. Of course if you are a state Citizen, as opposed to a "citizen of the United States" [federal citizen], then you should attempt to locate your state's original Constitution because that's the one that establishes the true and original structure, powers, and limitations of your state government…at least when the state addresses you. [See the Citizenship location within this website for the distinctions between state Citizens and "citizens of the United States".]

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.

Constitutions must be read and interpreted in plain English. One should take into account the way certain words or phrases may have been used or defined at the time the Constitution was drafted, and how they may differ from the use or definitions now in effect. The use and definitions of words or phrases as they existed at the time the document was written must control the interpretation of the provision(s) under review. Because most pre-Civil War Constitutions are intentionally succinct, significant weight must be given to the intended meaning of each section. If the intended meaning is not immediately clear from the language of the document, the "original intent" can be ascertained by review of the historical context of the issue being addressed and goals that must have been in the minds of the framers of the Constitution as they wrote the words. Usually the authors and signers of a Constitution will have written privately and/or publicly about the document or the various issued addressed within. Such writings have been routinely used to establish the exact meaning of various parts of Constitutions. Additionally, as we enter the 21st century, many of the questions we may ask have already been answered by various Supreme courts.

Constitutions are not "living documents" as is contended by some ignorant and verbose commentators. Because a Constitution defines the structure, powers, and limitations of the government, such elements are fixed, except as such may be altered by the amendment process. When a Constitution includes language that protects personal liberties (sometimes called "natural rights" or "God-given rights"), these provisions must remain in effect, and remain fixed as they are for all time. They are not subject to modification by amendment because no one, not even our fellow Citizens, has the authority to deprive us of our liberty. If the Constitution in question is a Constitution that is operative in America, there is the added aspect that such Constitutions are controlled by the principles espoused in our Declaration of Independence. In the Declaration of Independence it states,

"...all men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government."

In other words, if a Constitution was altered in such a way as to diminish personal liberties or remove their protections, then the government constituted by that Constitution would cease to be a valid government and the Citizens would be greatly justified in using whatever means necessary to bring that government to an end.

As our society grows in size, evolves socially, and advances technologically, various issues that have never before been tested upon the Constitution will need to be so tested. It has been this way since the first state Constitution was created and it is still that way today. Fortunately, since the nature of man hasn't changed in thousands of years, the principles contained within these constitutions remains valid and enduring. When all is said and done, the underlying purpose of a Constitution is to keep the ways of men in check.

"Let no more be said about the confidence of men, but bind them down from mischief with the chains of the Constitution." -- Thomas Jefferson

At this point it is probably prudent to explore why many states have more than one Constitution. Prior to the Civil War, each state of the Union had but one Constitution in existence. There was no apparent need for more than one because that single document could be amended by a vote of the People of the state. However, with the advent of the 14th Amendment to Constitution of the United States, the landscape was radically altered. [See Citizenship for the distinction between state Citizens and "citizens of the United States".]

Citizenship under the 14th Amendment, is not a result of one's birthright [unalienable right], as is the citizenship status of a state Citizen. The status of "citizen of the United States" (aka - federal citizen) is one that is bestowed by the Constitution. In other words, the status of "citizen of the United States" is a statutory privilege granted by the government.

The original Constitutions of the states were created by The People of the states and were designed to serve the de jure [legitimate] state Citizens. As such, these Constitutions limited the operation of government in the manner required for addressing state Citizens. However, the state governments were not bound by the same limitations when governing "federal citizens" because these federal citizens did not have the same protections from government interference as do state Citizens. [See case law on the lack of rights of "citizens of the United States".] As can be seen from the following US Supreme Court holding, "federal citizens" do not inherently possess the same rights as do state Citizens:

"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

[See case law for more court rulings on this subject.]


One can clearly see that when dealing with federal citizens, a state could act with much greater flexibility. It could act toward federal citizens in ways that would be unconstitutional if done to state Citizens. So why did this require new state Constitutions? In section 1 of the 14th Amendment, it states:

"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."

By ratifying this language, the states agreed to consider federal citizens living within their borders, a form of state citizen. We say, "a form of" because these federal citizens could not lay claim to the unalienable rights expressed in Declaration of the Independence, and thus were plainly in a different "class of citizenship". [See Citizenship for the distinction between state Citizens and "citizens of the United States".]

When the states agreed to consider federal citizens as a form of state citizens, it raised significant state Constitutional issues - not the least of which was that these new citizens were not a party to the original state Constitutions! These new citizens were not The People, and never could be. The original Constitutions of the states were written by and for The People of the states, not these new hybrid (State/Federal) citizens.

Normally these non-de jure state Citizens would simply have been considered aliens within the state, but the 14th Amendment changed that. The individual states of the Union now needed to create a new State government (operating in parallel to the de jure state government) that was established under a Constitution by and for these hybrid citizens, with their different set of privileges, immunities, and disabilities. To achieve this end, the legislatures of the states of the Union created new Constitutions under which to govern their new hybrid citizens.

These new Constitutions are not "constitutions" in the true sense. A true Constitution creates a government of, by, and for, The People; The People being the de jure Citizens of that society/community/nation. These new Constitutions are actually nothing more than "statutory laws" that are dressed up as Constitutions and referred to as such. The original Constitutions of states admitted to the Union before the Civil War are based on the fundamental beliefs and concepts espoused in the Declaration of Independence.

State constitutions drafted after the Civil War must be studied with a careful eye.  Under the long standing and well-settled doctrine of citizenship law, a person becomes a Citizen at birth, by the fact of the land upon which he is born, without there being any law necessary to grant him such citizenship. This is exactly the basis upon which state Citizens become Citizens of their respective states. However, 14th Amendment citizens would have no citizenship at all were it not for the adoption of the Amendment. This makes their citizenship a "fiction of law". A Constitution can only be created by real "Citizens of the land" and the government that is created by a Constitution can only govern these "Citizens of the land" (and aliens within its borders); that is because the government (at least in America) must derive its power from The People.

Now, here we approach fundamental issue - there is no such thing as a legitimate government that governs only "fictions of law". And while federal citizens obviously are real people, their citizenship is a fiction of law, thus rendering "their" constitution a mere statute (created by the de jure state legislature) and their newly formed [parallel] State government a mere appendage of the legitimate and original, state government. Unfortunately, we have long ago come to a place where the "mere appendage" is far larger and more well recognized than the original and legitimate state government.

Amending a Constitution

Amending a Constitution is the act of legally changing the document in such a way as to achieve a desired political objective, and make that objective the Supreme Law of the land. In general terms, an amendment may change the document by adding to it, taking from it, or modifying existing elements of it. However, not every element of a Constitution is open to amendment.

While the method of amending a Constitution is generally fixed by the original language of the document, the reasons for amending a Constitution are without specified limits. They can be as pragmatic as determining that a provision within the document does not function very well in practical application, or as whimsical as the transient morays of an era. The 11th Amendment to the US Constitution would be a good example of the former, while the 18th Amendment would be a good example of the latter.

The steps required to amend a Constitution are generally to be found within the main body of the Constitution and must be followed precisely if an amendment is to lawfully become a part of the Constitution. While different Constitutions mandate different procedures for the amendment process, there are several practical steps that are fairly universal:

* Draft the amendment.
* Explain its implications to the legislature and The People.
* Promote it. Reinforce why it needs to become a part of the Constitution.
* Vote on it.
* Certify that the amendment received the required number of votes.

Once certification is complete, the amendment then becomes an official and lawful part of the Constitution. However, because certain elements of a Constitution are not open to amendment; amendments that trespass upon those areas may be declared unconstitutional by the courts, if challenged.

The four principle purposes for amending a Constitution are the following:

1. To establish a "right" as a part of the nation's Constitutional law.
2. To protect a right already understood to exist.
3. To expand the government's authority.
4. To further limit the government's authority.

Whether an amendment, or a part of the main body of the Constitution, each provision of a Constitution falls within two categories. The first being self-executing; the second requiring the legislature to enact legislation to implement the intended purpose of the provision.

"A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced." -- Cooley's Constitutional Limitations, 7th ed., p. 121; Winchester v. Howard, 136 Cal. 432, 439 [64 P. 692, 69 P. 77, 89 Am.St.Rep. 153]; People v. Hoge, 55 Cal. 612. [15 Cal.2d 463]

It should be noted that the legislature has the prerogative to enact laws to protect a right contained in a self-executing provision. An example of this would be voter registration. By requiring voters to register, a citizen's voting rights are secured from abuse by non-citizens.

Further, while a state may impose reasonable and non-restrictive regulations upon the exercise of a Constitution right secured [recognized as pre-existing] to a Citizen of a state of the Union (such as the voting example cited above), rights granted by the Constitution may be controlled through legislation.

Additionally, It is well settled that a right granted by the Constitution may be waived by the inaction of the person entitled to exercise such right. [Bigelow v. Ballerino, 111 Cal. 559 [44 P. 307]; Gurnsey v. Northern Cal. Power Co., 160 Cal. 699 [117 P. 906, 36 L.R.A. (N. S.) 185]; Sala v. City of Pasadena, supra; Yonker v. City of San Gabriel, 23 Cal.App.2d 556 [73 PaCal.2d 623]].

In America, we now have three forms of Constitutions in operation. The first is the original [de-jure] Constitution of a state. Unless one initiates a court action that relies upon a provision of an original Constitution, the states now function exclusively upon the second form of Constitution - the new state Constitutions for federal citizens. The third form is the federal Constitution.

Because the states no longer actively function on their original Constitutions, they only amend the newer ones. In accordance with the limited protections of federal citizens, amendments to these newer Constitutions can address virtually any issue and can impose restrictions and limitations that are not enforceable upon de jure state Citizens.

The federal Constitution currently has 16 amendments that have been added since the document was ratified by the states in 1789. These amendments not only vary in purpose, but also in the areas and persons effected. There is a general belief in America that all amendments to the US Constitution apply to all Americans, as well as to the states of the Union. An examination of the decisions of the US Supreme Court shows that belief to be in error.

The first amendment that is illustrative of a significant point is the 13th. The 13th Amendment makes involuntary servitude and slavery unconstitutional (except as punishment after being duly convicted of a crime). The Amendment bans involuntary servitude and slavery "within the United States, or any place subject to their jurisdiction". Please note the word that we have emphasized - "their". This is the manner in which amendments and legislation must be written if the law is to apply within the sovereign lands of the 50 states and to their Citizens.

The 14th Amendment works in just the opposite fashion. The 14th Amendment embraces persons "born or naturalized in the United States, and subject to the jurisdiction thereof". The phrase, "subject to the jurisdiction thereof" does not state the "plural nature" [i.e. "their"] that is required to refer to the states of the Union. In the absence of the plural language, the courts have ruled that the law applies only to federal places or persons. The other manner in which federal law sometimes addresses this issue is with the phrase, "…in the United States, and subject to its jurisdiction". Both phrases shown in this paragraph refer only to federal places.

This would be a good place to toss in these legal tidbits for you to ponder:

"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..." -- Elk v. Wilkins, 112 US 94, 101, 102 (1884) [emphasis added]

"The provision of the Constitution of the United States, which gives Congress the power to establish 'an uniform rule of naturalization,' is construed to mean, that the rule when established shall be executed by the State. The Legislature of California has by express enactment, conferred the jurisdiction on the District Courts of this State to grant naturalization, according to the rules established by Congress." -- Frank Nowles - Ex Parte, 5 CAL 300 (1855)

The 15th Amendment restricts the federal government and the governments of the states from denying "citizens of the United States" the right to vote based on "race, color, or previous condition of servitude". This amendment applies exclusively to 14th Amendment citizens. You will notice that the 14th Amendment does not give federal citizens the right to vote, nor did the Enforcement Act, the Freedman's Bureau Act, or the Civil Rights Act of 1866, upon which the 14th Amendment was based. There was much debate in Congress and in the press after the ratification of the 14th Amendment on the subject of black voters.  While a handful of states allowed blacks to be Citizens and vote, the general consensus was that blacks should not be permitted to vote. Interestingly, many of the Congressmen and Senators who argued most strongly for the 14th Amendment, decried efforts to permit blacks to vote. The 15th Amendment ended that discussion.

The 16th Amendment is addressed in the area of this site that covers income tax.

The 18th Amendment created Prohibition. We've all heard the stories - especially about Al Capone. However, once again we find familiar language being used in the Amendment:

"After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."

Does this mean what you're thinking it means? Yes! In Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504 (1923), the US Supreme Court held that the language Congress used in the Amendment limited its application to areas under the exclusive legislative jurisdiction of Congress - which of course is not the states of the Union.

The 19th Amendment, like the 15th, lays restriction on the governments concerning interference with voting by "citizens of the United States"; this time no one can deny federal citizens the right to vote based on sex.

The 21st Amendment, which repealed Prohibition, is really rather fascinating. As you just read, in the 18th Amendment, federal lands and other places of exclusive federal jurisdiction were referred to as, "the United States and all territory subject to the jurisdiction thereof". In repealing the Amendment, Congress describes those same places this way:

"...any State, Territory, or possession of the United States..."

It is important to note that in federal law, Congress defines various places of exclusive federal jurisdiction as "States". These places are not "states of the Union". They are also sometimes referred to by Congress as "States of the United States".

The 23rd Amendment is both illustrative and disturbing. In this Amendment, the Washington DC is granted the legal right [privilege] to appoint electors to vote for President and Vice-President. This amendment (and various federal court cases) clearly illustrate that the District of Columbia is not a state of the Union. If it were, it would have been appointing electors since the beginning of our nation to vote for these offices, and no amendment would have been required to grant them that privilege.

It is also disturbing in that the people of the District of Columbia are not The People who are a party to the US Constitution. Why is a "State" comprised of solely non-de jure Citizens being given rights commensurate with the rights of true statehood?

The 24 Amendment again deals exclusively with federal citizens. This time they may not be denied various voting rights in the event that they fail to pay a poll-tax or any other tax.

The 26th Amendment again deals exclusively with federal citizens. This time they may not be denied voting rights based on age, provided that they have reached the age of 18.

Amendments not specifically listed or discussed were not thought to be relevant the issues being addressed.

The Constitution In Time of War

Many questions exist as to what steps the government may take in time of war, or other national emergency, concerning the US Constitution. The concerns range up to and include a concern that the federal government may attempt to suspend the Constitution.

Let us be clear from the outset; the Constitution provides that the government may alter one element, and one element only, during time of war - that being that the government may suspend the right of habeas corpus. That's it! Period! End of story!

Since the Founding Fathers were so thorough as to include the government's power to suspend habeas corpus in time of war, we can safely and accurately say that it is the complete list of the Constitution's provisions that can be suspended in time of war. If there was no mention at all within the Constitution of what provisions may be suspended during time of war, one might reasonably suggest that their failure to address the subject was an oversight that may be addressed by Congress or the courts if they see fit to do so.

However, having the habeas corpus provision specifically raised within the Constitution dispels any argument that they had not thoughtfully considered the issues of the Constitution operating in time of war and reached the decision that suspension of habeas corpus was adequate to address the circumstance.

At Original Intent we believe that the Founding Fathers intentionally and wisely limited the wartime suspension to only the right of habeas corpus in order to restrain future generations of US officials from using war as an opportunity to achieve ends not contemplated by the Constitution. We think that as in so many instances, the Founding Fathers showed great forethought and wisdom in thus restraining future prerogatives.

Certainly our national history would suggest that if broader powers of wartime suspension were available, they would have been used, and likely not in ways of which we would condone.

We must now tell you that the US Supreme Court has made egregious decisions in this area over the years. In many instances political expediency defeated the Constitution in their decisions. Such rulings can be cause for both anger and disappointment, but they are not unanticipated.

"...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing it's noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one... when all government...in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." -- Thomas Jefferson, 1821

Who among us can read those words and not a feel a sense of dread; a feeling of fear for our way of life? This sense of dread does not come from the fear that such events may occur in the future. It comes from an immediate recognition that this is exactly what has been happening in this nation.

In many court cases, the decision is incorrect because one side or the other did not present the proper argument to the court, and thus the "proper argument" simply was never presented to the court. Although we have no love of judges, for the rare judge with conscience, this must be one of the most difficult moments; knowing that a party is correct in their fundamental position, but having to rule against them because all of their arguments were off-point. In an effort to resolve that problem, let's look at what one Constitutional scholar has to say about the Constitution in time of war:

HANDBOOK of AMERICAN CONSTITUTIONAL LAW
by Henry Campbell Black, LL. D. Fourth Edition; West Publishing Company. 1927 THE

CONSTITUTION IN TIME OF WAR

§ 18. Even in the supreme exigency of a war in which the United States may be engaged, no provision or guaranty of the Constitution is abrogated, dispensed with, or even suspended.

The Constitution of the United States is a law for rulers and people equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism; but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence. (ex parte Milligan, 4 Wall. 123, 18 L. Ed. 281@ 295.) Indeed, it has been said that in times of stress, such as war or great public clamor, the constitutional restraints should be all the more firmly binding. (State v. Rowley ( Iowa) 187 N. W. 7.)

And why can the Constitution not be suspended during time of war? Because the rights of a state Citizen do not come from the Constitution and therefore these pre-existing rights cannot be abrogated by the government and, according to the Declaration of Independence, the protection of these rights is the sole purpose for the government's existence. What you are about to read does not apply to "citizens of the United States" because their rights are not pre-existing, but are granted by the Constitution.

§ 6. The constitutions of the American states are grants of power to those charged with the government, but not grants of freedom to the people. They define and guaranty private rights, but do not create them.

The state constitutions in this country grant and limit the powers of the several departments of government, but, generally speaking, they are not to be considered as the origin of liberty or rights. [ Ex parte Quarg, 149 Cal. 79, 84 P. 766, 5 L.R.A. (N.S.) 183, 117 Am. St. Rep. 115, 9 Ann. Cas. 747; People v. Warden of City Prison, 154 App. Div. 413, 139 N.Y.S. 277, 29 N.Y.Cr. R. 66.] But with more particular reference to the rights called natural, it must now be remarked that they exist before constitutions and independently of them. Constitutions enumerate such rights and provide against their deprivation or infringement, but do not create them. It is supposed that all power, all rights, and all authority are vested in the people before they form or adopt a constitution. By such an instrument, they create a government, and define and limit the powers which its agencies are to exercise, and they also specify the rights which the constitution is to secure and the government respect. But they do not thereby invest the citizens of the commonwealth with any natural rights which they did not before possess. This is shown by the provision found in the constitutions of many of the states that the enumeration, in the Bill of Rights, of particular rights or privileges shall not be construed to impair or derogate from others retained by the people.

[MonkeyPuppet]

Citizenship

As Americans, we are socialized to believe that we are all Citizens of this great nation we call the United States of America. Quite frankly, most Americans are pretty emotional about the issue. Try telling your neighbor, who fought against Hitler in WWII, that he's not a citizen of the United States, and see what reaction you get!

The problem is that the people who write laws don't write them in the same manner that you and I speak. [See the section on "legal terms" within The Law page.] Laws are written to achieve certain goals and the words used within laws are selected to achieve those goals. Sometimes the goals are legitimate and the language that is used, while confusing at times, is necessary to achieve the goal. Other times confusing language is used for no other reason than to obscure the truth from the casual reader.

The issue of citizenship is no less clouded by such use of language than is any other area of law. The definitions of words or "legal terms" must be sought out diligently and the context in which they are used always carefully considered. [See The Law for information on "words" v. "legal terms" and issues of "context".]

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, including that of a criminal in a black robe, 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 use 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. At the end of this section you will see federal and state court cases that clearly show that the rights of one class of Citizen are thoroughly different from the "rights" (actually Congressionally granted privileges) of the other class of citizen. This distinction in the "class of citizenship" continued without significant comment or concern until the end of the Civil War.

Although the Civil War was not fought over slavery (despite what you were taught in the public schools), the end of the Civil War nevertheless brought about the end of involuntary servitude and slavery in America. [See Article XIII of the Constitution of the United States.]

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. [See US Territorial Authority.] 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."

As we are now repeatedly drawing a distinction between blacks and whites, this is probably a good point to stop and address the topic of racism as it relates to this article. This is a historical examination of the law as it existed in the various states and the United States prior to, and after, the Civil War, and how the foundations laid down in those laws and court decisions may still affect our lives today. This article is not intended to critique or pass judgment upon the moral correctness (or lack thereof) of the laws which existed at that time, or upon the decisions of the US Supreme Court in reference to slavery, the Civil War, the various Civil Rights Acts, or the 14th Amendment. It is merely a history lesson with certain inevitable conclusions drawn at the end. Please do not impute any bias, in either direction, to Original Intent. Having said that, let's carry on.

As we have examined, 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.

We have covered a lot of ground in this piece and it is important to note that with all of the evidence that is available, 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.

To summarize the points that we have touched upon thus far:

1. There is an original Citizen of a state of the Union.
2. There is a "citizen of the United States" as that phrase has always been used.
3. There is a "citizen of the United States" as that term is used in the 14th Amendment.

At this juncture one might rightly ask what the practical distinctions are in the three forms of citizenship. Before we move forward with that, we should observe that the 14th Amendment merely constitutionalized the concepts by which the United States had been operating for decades under the doctrine of international law, defining the derivation of citizenship. What made the 14th Amendment necessary was that for the first time the federal government intended to grant federal citizenship to persons born within a state of a Union.

Rights of Citizens of the states of the Union

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. How's that for some strong protection!

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

The Poor Stepchild "citizen"

If the Citizens of the states of the Union have their "unalienable rights", what then do "citizens of the United States" have? Frankly, not much of value. For the balance of this section, we will use the term "federal citizen" to denote a "citizen of the United States".

A federal citizen has only those rights that have been granted to him by Congress by way of the numerous and various civil rights acts, and such rights as may have been invested in him by an activist US Supreme Court that felt it could legislate from the bench.

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. The only thing that may be surprising in all of this is that this is the first time you're hearing it! 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." -- 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..." -- 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." -- 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]." -- Hague v. CIO, 307 US 496, 520

"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

"There are, then, under our republican form of government, two classes of citizens, one of the United States and one of the state." -- Gardina v. Board of Registrars of Jefferson County, 160 Ala. 155; 48 So. 788 (1909)

"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." -- 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." -- 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." -- 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..." -- 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." -- Slaughter-House Cases, 83 U.S. (16 Wall.) 36; 21 L.Ed. 394 (1873)

It should be noted that many of the rights not attributed to federal citizens in the cases above have since been granted to them either by Congress or by the courts. These early decisions simply clarify and solidify the reality that federal citizens are not the same "class of citizen" as state Citizens.

Like so many areas in which the federal government has tread, it has unbalanced the equation. Where at one time there was no real problem with there being different classes of citizenship, with the ratification of the 14th Amendment, Congress went into overdrive with civil rights legislation. The result was a labyrinth of "rights" and protections for federal citizens. Some of these have even found their way into additional Constitutional amendments. Because the state Citizen is a member of The People; the people in whom the sovereignty of the states, and by association, the national government resides, such a Citizen is left to protect his own rights, with no special process to help him accomplish that end. In short, he must defend his rights with all his will, his energy, his money, and passion in the courts for as long as it takes to reach a final outcome.

Conversely, the federal citizen need only lodge a complaint with the appropriate federal agency and the power of the federal government moves to punish the person who has allegedly violated that federal citizen's rights. Of course this is legally appropriate since a federal citizen is little more than a ward of the national government. Such second-class citizens must be cared for by the government as they are not the masters of their government, but mere servants to it, and it is the master's responsibility to care for his servants.

[MonkeyPuppet]

The 14th Amendment Clarified

[Notice: This item is intended to read after you read both the Citizenship and Constitution treatises on this site.]

In the time since Original Intent's website went on-line, a small minority of people have attempted to argue against the proper meaning and application of the 14th Amendment to the Constitution of the Unites States of America, as stated on this site. If you have not yet read the Original Intent treatises on these subjects, you should stop now and read the treatises before proceeding further.

Some of the arguments raised against the facts and conclusions provided in the Citizenship treatise are merely mistaken, others are inane; all are misleading. The casual student may at times be swayed away from the truth by the specious arguments of people who may be seen as some form of "authority". These "authorities" may be people such as judges, attorneys, or law school graduates. Make no mistake - such people are not above misrepresenting the facts and conclusions. You should be the final arbiter as to the true meaning and application of the 14th Amendment. It is the purpose of this piece to clarify the issues so that the casual student will not be led astray by errant facts, specious arguments, or the flowery prose of legal refinement.

History

Most of the significant history of the 14th Amendment appears in the text of Original Intent's citizenship treatise. However, one historical fact is not included because it was presumed during the construction of the treatise that every American knows that the 14th Amendment was created to nullify the holding of the United States Supreme Court in Dred Scott v. Sandford, 19 How. 404 (1856).

Oddly, while the nullification of the Dred Scott decision is universally acknowledged as the reason the 14th Amendment was thought necessary, some ill-informed and/or illogical expositors attempt to use the Dred case as their rationale to turn the true meaning of the Amendment on its head. Fortunately, the words of Chief Justice Taney (author of the Dred decision) are unmistakably clear.

As is so often the case when one is dissembling, those who pervert the meaning and application of the Amendment refuse to even discuss quite a number of relevant facts while twisting and misrepresenting the few quotes upon which they rest their errant and flawed position. Amazingly, some even quote from various court decisions with the intention of destroying their opponent's position, while failing to realize or understand that the quotes actually eviscerate their own position. But such is the consequence for those who oppose the truth.

Let's be clear about one thing - there are many people - with differing motives - who will tell you that the 14th Amendment applies to everyone. Even some decisions of the US Supreme Court, written long after the Court's early 14th Amendment decisions were rendered, attempt to paint a picture that the Supreme Court justices who lived during the Amendment's ratification were somehow confused about its meaning, but that they [the later justices] know better the true meaning of the Amendment. Such representations are legal poppycock intended to support a court's political agenda. All judges know that one of the primary "rules of construction" (both constitutional and statutory) is that early decisions, made closer to the time of the event, are to be given far greater weight than the views of jurists who may have ruled on the subject many decades after the fact.

We will not quote from the Dred Scott decision in this piece, instead preferring that you read the decision for yourself and then apply the facts, logic, and reason contained below in the sections labeled, "Truth".

The Arguments

Errant Position #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.

Truth: 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 our 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.

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

Truth: 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." -- 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.] 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.] 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.

Errant Position #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.

Truth: 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. [Ah, the good old days!] 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.

Errant Position #4: The US Supreme Court has said that the 14th Amendment was intended to protect all Americans.

Truth: This is a statement that requires a little deeper digging to understand.

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.

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

Truth: 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.

Errant Position #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.

Truth: 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.

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

Truth: Justice Field was an activist justice. In other words, he cared little for what the law really said or really meant, but gave great weight to how the law might be bent to serve any social agenda he thought laudable.

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.

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

Truth: 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.

[MonkeyPuppet]

United States Code - Title 42 § 1981. Equal rights under the law

(a) Statement of equal rights

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.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.