Posted by
Andrews on Wednesday, May 27, 2009 7:34:42 PM
I am sure most who read the title of this post assume they would read a post about immigration. They will likely be disappointed. While repealing the 14th (and 16th and 17th) would certainly have an impact on immigration, I am not interested in that aspect. Instead, I am concerned with the entire concept of "incorporation" and the idea that the federal government can force states to adopt the Bill of Rights.
Looked at realistically, the 14th amendment is the second blow struck against federalism. The first blow came a few years earlier, when Lincoln used any available pretext to declare war and prevent sovereign states from withdrawing from the union. But the 14th was the second great blow, an amendment, adopted by states under federal occupation, which forces states to accept the rules which once applied only to the federal government. These policies set the stage for the Wilson administration to strike the final blow against federalism in the 16th and 17th amendments.
But it all started with the 14th.
The 14th is in itself a complete repudiation of federalism. The states gave to the federal government certain strictly defined powers, and only those. In all other matters the states retained sovereignty. Yet the entire intent of the 14th (outside of the citizenship issues) is to force the states to follow federal rules concerning the Bill of Rights. Which is contrary to federalism. Even assuming the 14th had been passed legitimately, it would still have been invalid, as states cannot force other states to follow their beliefs. On the question of citizenship, it is arguable that since that is a federal question the states can be forced to abide greater federal interference, but that is the only part of the 14th which is legitimate. The rest is simply unconscionable. No matter how strongly a majority of states felt they should be bound by the Bill of Rights, they had no right to force it upon other states.
The situation is akin to the current nanny state regulations. One individual can feel transfats or smoking is bad. A majority might even feel that way, but they have no right to force that view on others. Each citizen is sovereign in this matter, and cannot have his behavior controlled, even by a majority vote. Likewise, if even one state did not want to adopt the Bill of Rights as controlling local law, then they had the right to say no. And if every state DID want to adopt the Bill of Rights, then there was no point in passing the 14th Amendment. In other words it was either pointless, or, more likely, improper.
Of course fighting for this would bring the possibility of having our struggle horribly mischaracterized. Doubtless the left would argue we want to bring back Jim Crow, or even slavery. At the every least we would be accused of opposing civil rights of some sort. However that should not discourage us.Granted, fighting the 14th Amendment is hardly the first choice for our opening move, but it is something to bear in mind. If we truly believe in federalism, in the rights of states, and in a government constituted of sovereign citizens, delegating rights to sovereign states, coming together to form the Unites States, at some point we need to address the 14th, as well as the 16th and 17th, and we need to decide if we are more dedicated to our principles than we are worried about bad PR.
Unfortunately, the past has convinced me that most on the right are not.