Sorry Guys, But the 14th Amendment Did Not Replace the 10th Amendment

Whenever the 10th Amendment or state rights are mentioned, a certain segment of the political spectrum immediately start claiming that all of that was done away with by the 14th Amendment. I encountered this when I wrote this article about the unconstitutionality of President Obama’s bathroom decree. One went so far as to claim that the 14th Amendment gutted the 10th Amendment. That would be quite shocking to those that wrote and ratified the 14th Amendment, because there is no evidence of that in the congressional records from the drafting of the 14th Amendment. Unfortunately far too many Supreme Justices have shared this mistaken belief.

A careful study of the congressional debate records from the drafting of the 14th Amendment will show that the amendment was written to grant the federal government the power to enforce the Civil Rights Act of 1866. That is not just my opinion.  Here is a quote from The Journal of the Joint Committee of Fifteen on Reconstruction by Benjamin Kendrick:

“Virtually every speaker in the debates on the Fourteenth Amendment—Republican and Democrat alike—said or agreed that the Amendment was designed to embody or incorporate the Civil Rights Act.”  

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The Civil Rights act of 1866 was passed in response to black codes that were all too common in the former slave states. Freed slaves were denied their most basic rights and subject to harsher punishment for crimes than whites. They were also punished for crimes that whites were not. Here is a link to the text of the Civil Rights Act 1866 .

Here is Section 1 of the 14th Amendment:

“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.”

If we compare the Civil Rights Act of 1866 and the 14th Amendment the relationship between the two becomes quite clear, according to the Civil Rights Act:

“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.”

These specific rights are known as privileges and immunities, which is the term used in the 14th Amendment. This is the same language as Article 4 Section 2 Clause 1 of the Constitution. These protections were extended to the State level for the protection of former slaves.

Both the Civil Rights Act and the 14th Amendment extend the Due Process clause of the 5th Amendment down to the State level to protect former slaves. Equal protection is also granted by both.

Here is an excerpt from a speech by Jacob M. Howard Congressional Globe 2766:

“The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it, the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body.”

The Supreme Court has used the 14th Amendment to grant themselves the power to overturn State laws, but the amendment specifically granted that power to the US Congress through the formal legislative process. During the debates it was obvious the Supreme Court was denied the power to enforce the 14th Amendment. Section 5 of the 14th Amendment is quite clear on this. The president does not have the authority through executive order. Here is a speech by Jacob M. Howard from Congressional Globe 2768.

“The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that “the Congress shall have power to enforce by appropriate legislation the provisions of this article.” Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.”

The 14th Amendment did not give the federal government complete control over the States the Supreme Court did that, unlawfully, by ignoring the plain meaning and intent of the 14th Amendment.

Jon Fournier

Jon Fournier is a strict constitutionalist who has studied the Notes on the Debates in the Federal Convention, the transcripts of the State ratifying conventions, The Federalist Papers, The Anti-Federalist Papers, and the writings of the framers of the Constitution. He has also studied economics through the writings of Adam Smith, F A Hayek, Ludwig von Mises, and Milton Friedman.

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