A Polarized America and the Fourteenth Amendment
As we enter a new decade, a deeply and desperately divided America is in danger of shattering along numerous artificially constructed fault lines, such as race, religion, ethnicity, gender, and sexual identity. Polarization of this kind has not been seen since the late 1960s or even just prior to the Civil War. Increasingly and sadly, we seem to be the Divided States of America, rather than the United States of America.
Could it be that much of the responsibility for this polarization should be laid at the doorstep of a few lines in one section of an Amendment to the U.S. Constitution ratified 150 years ago? Could it be that this one Amendment has been misconstrued and misinterpreted to spawn an “entitlement” society overrun by identity politics and groups and blocs of every stripe and strain all clamoring for their “rights,” often at the expense of the rights of others – leading to a nation afflicted by warring factions and burning hatreds?
It is hard to think of one Amendment to the Constitution that has had more to do with the divisiveness we face today than the Fourteenth Amendment ratified in 1868, three years after the Civil War. And, one section in particular has been most problematic. “Nor shall any State deprive any person of life, liberty, or property, without due process of law” appears toward the end of Section 1 of that Amendment.
On first reading, it sounds rather innocuous. After all, don’t we all want to ensure that no man or woman has his life or property stripped from him because of the whim of a treacherous tyrant? Don’t we all want to ensure a fair judicial proceeding or trial, the right to have counsel, call witnesses, and engage in cross-examination? Don’t we all want to argue our case in front of a judge or jury? Isn’t that what “due process of law” means? Yes, exactly. That’s called procedural due process and it is enshrined in both the Fifth and Fourteenth Amendments, the latter simply making it applicable against the states due to the aftermath of slavery and the Civil War.
We must recall the context in which all the so-called “Civil War Amendments” were passed. They were enacted after the bloodiest war ever fought on American soil, brother against brother – a fratricide of hellish dimensions. Why were they inserted into the Constitution? The primary and some would argue sole purpose was to protect the rights of the newly-freed slaves. They were enacted to give African-Americans the full protection of the nation’s laws – even by the states which the Bill of Rights did not apply to at that time ( at least in the interpretation of the courts ). These Amendments, including the Fourteenth, were not designed to protect the rights of women, ethnic minorities, illegal immigrants, homosexuals, or transgenders – as laudatory as the protection of the rights of those groups might be. The Framers of the Fourteenth would be dumbfounded to find this Amendment being used to “discover” a right to an abortion or to homosexual “marriage.”
Yet, it all comes back to that troublesome little phrase “Due process of law.” While you and I and the original authors of the Amendment understand it to mean what we refer to as procedural due process – a jury trial, right to call witnesses, etc., some clever judges along the way had some different ideas. They came up with something called substantive due process, which is what it implies – it seeks to pour something of substance into the words “due process” like certain “rights.”
Now, substantive due process, has a rather ugly history, one which the advocates of judicial supremacy try to ignore. It was used in 1857, for example, in the infamous Dred Scott decision to claim that the so-called “property rights” of white slaveowners were more important than the rights of human beings not to be held as chattel. This was eleven years before the Fourteenth Amendment, so this decision was based on the federal “due process” clause of the Fifth Amendment. Again, in 1905, in the widely-discredited Lochner vs. New York decision, the Supreme Court tried to prohibit state working hour limitations as a “substantive” violation of the fictititious “liberty of contract” supposedly guaranteed under the “due process” provision of the Fourteenth Amendment. While the courts – in the face of the New Deal and Great Society revolutions that massively mushroomed the role of the federal government in the national economy—have largely abandoned the idea of “economic due process” as exemplified by Lochner, they haven’t abandoned their zeal to rule by judicial fiat. Following the clarion call of the cultural Marxists, the courts starting adjusting their substantive due process theory to embody identity politics, creating “rights” regarding race, gender, ethnicity, marriage, sexuality, etc., all of which have led to the current splintering of American society.
The great Supreme Court Justice Oliver Wendell Holmes warned of the consequences of this twisting of the “due process” clause in one of his last dissents in 1930:
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of the Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. ( Baldwin v. Missouri ).
Starting with the Warren Court in the 1950s, we saw the Supremes use the Fourteenth Amendment to find new “rights” for communists, criminals, and atheists. In 1962, the “rights” of non-believers trumped the “rights” of the 90% of Americans who were believers as prayer was banished from public schools. By 1965, the Court was peeking into the bedrooms, striking down a rarely-enforced but legitimately-enacted Connecticut contraceptive law based on “penumbras” emanating from other Amendments that have a loose association with a so-called “right to privacy” ( which itself is not mentioned anywhere in the Constitution ). By 1973, Justice Blackmun believed this so-called “right to privacy” ( which did not exist ) was broad enough to encompass the right of a mother to kill her unborn child. Shades of Dred Scott which elevated the “rights” of one group over those of another!
Whenever we cavalierly conjure up new “rights,” we often trample on the rights of others. A woman over her unborn child. An atheist over a Christian. A member of a racial minority over an equally or better-qualified white American. That’s why the Framers in their wisdom gave us a defined Bill of Rights, not a floating crap game. They gave us a legislative process and an amendment process which, while challenging and time-consuming, allows for decisions to be made with deliberation and prudence with popular consent that will ensure that the rights of all are protected. Compare that process with one in which five lawyers on the Supreme Court decide on any given day what our “rights” are.
The misinterpretation of the “due process” clause of the Fourteenth Amendment has wreaked havoc and chaos in a nation based and built on the rule of law. It has bulldozed the rights of the states, destroyed the democratic process, invented “rights” out of thin air, and made us an “entitlement” society where various and sundry interest groups fight petty turf wars, demanding special privileges and special favors, all to the detriment of national unity. We need a federal judiciary that will consign substantive due process to the ash heap of history and revisit any and all rulings based on this erroneous and dangerous misapplication of an Amendment originally ratified to protect African-Americans who had just thrown off the chains of their slavemasters.
Dr. James Veltmeyer is a prominent La Jolla physician voted “Top Doctor” in San Diego County in 2012, 2014, 2016, 2017, and 2019. Dr. Veltmeyer can be reached at firstname.lastname@example.org
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