Mr. Johnson asks a good question, one that deserves more attention by legal historians, so I am copying this to other lists for your consideration.
The principal author of the 14th was Rep. John Bingham of Ohio, and he is the main source of the speeches and writings that explain the 14th as extending the jurisdiction of the federal courts to all the rights protected by the Constitution as amended by the Bill of Rights. There was, however, a problem with the way the 14th was worded, and many felt, especially after the selective incorporation decisions of the Slaughterhouse Cases 83 U.S. 36 (1873), that the wording did not make it clear which immunities (rights) were included, especially given the way the First Amendment was worded. Thus the Blaine Amendment, to provide that clarification. There were similar efforts to clarify it to extend equal rights to women, which, as "persons", seemed to have been included. But many answered that argument with the argument that women were indeed equal, as were children, but that did not forbid the traditional disablement of the exercise of their rights as persons incompetent to exercise them. There is indeed a problem with the way the 14th was ratified, as well as with the way it was worded. Its framers were not of the intellectual caliber of James Madison, and that shortcoming shows in the ways they worded the amendment. (For that matter, most of the other amendments since Madison's original drafts, including the final form of the Bill of Rights, have suffered from a lack of competence in constitutional amendment draftsmanship.) In fairness, however, it is not easy to find a good way to reword the amendment to accomplish its framers' purposes, without making it almost as long as the original Constitution. It is an instructive exercise to try to reword it to avoid all the ways it has been misinterpreted. M.A. Johnson wrote: >>As explained by Jon Roland, of the Constitution Society, the >>language of the Fourteenth Amendment was "intended by the framers of >>the Fourteenth to extend the jurisdiction and protection of federal >>courts to all rights recognized by the Constitution and Bill of >>Rights against actions by state government." >>http://www.constitution.org/col/intent_14th.htm > > > > That the 14th was dubiously ratified aside, if what Mr. Roland > claims were true, why the longstanding effort (by many of the > same Persons that saddled us with the 14th) to provide the > Blaine Amendment, for instance? > > [Proposed by Senator Frelinghuysen, former Attorney General > of New Jersey and a leader of the Congress which had passed > the Fourteenth Amendment.] > > The [Blaine Amendment] very properly extends the > prohibition of the first amendment of the Constitution > to the States. Thus the [Blaine Amendment] prohibits > the States, for the first time, from the establishment > of religion, from prohibiting its free exercise, and > from making any religious test a qualification to office. > > Or as Chief Justice John Marshall opined: > > Had the people of the several states, or any of them, > required changes in their constitutions, had they > required additional safeguards to liberty from the > apprehended encroachments of their particular governments, > the remedy was in their own hands, and would have been > applied by themselves. The unwieldy and cumbrous > machinery of procuring a recommendation from two-thirds > of Congress, and the assent of three-fourths of their > sister states, could never have occurred to any human > being as a mode of doing that which might be effected > by the state itself. > > Regard$, > --MJ > > The Constitution wisely forbids Congress to > make any law respecting the establishment of > religion, but it is idle to hope that the > Nation can be protected against the influence > of secret sectarianism while each State is > exposed to its domination. We, therefore, > recommend that the Constitution be so amended > as to lay the same prohibition upon the > Legislature of each State, and to forbid the > appropriation of public funds to the support > of sectarian schools. -- Republican Platform of 1880 > > > > > > POLICIES FOR THE [EMAIL PROTECTED] LIST > For rules governing membership and posting in this forum please > visit http://www.amatterofjustice.org/amoj/10policy.cfm > > AMOJ Board > Yahoo! Groups Links > > > > > > > -- ---------------------------------------------------------------- Our efforts depend on donations from people like you. Directions for donors are at http://www.constitution.org/whatucando.htm Constitution Society 7793 Burnet Road #37, Austin, TX 78757 512/374-9585 www.constitution.org [EMAIL PROTECTED] Get your free digital certificate from http://www.thawte.com ---------------------------------------------------------------- ForumWebSiteAt http://groups.yahoo.com/group/Libertarian Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/Libertarian/ <*> To unsubscribe from this group, send an email to: [EMAIL PROTECTED] <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
