By Douglas V. Gibbs
A reader asked: Constitutionally, would the federal government have any way to aid a minority group that could not defend itself against the Majority?
My response:
Sir,
A minority group's "protection" is supposed to be a State issue, but over time the "Incorporation of the Bill of Rights to the States" has inserted the federal government into the process. It is from that statist concept, and the concept of judicial review, that we have come to believe that if something is a "Constitutional Right," the federal courts can, through their rulings, force a State into compliance in order to protect that "Constitutional Right." The claims of "equality" and "uniformity" often accompany the reasoning by these people in their argument. This is the main "logic" behind "civil rights" movements. In the process, the definition of what a right is, itself, has been manipulated. We must remember there is no such thing as "Constitutional Rights." Our rights are God-given, and they belong to individuals, and must be defended by those same individuals. The Constitution simply enumerates some of our rights, and then tells the federal government that it may not infringe upon those rights. Government intrusion into the arena of our rights is not only unconstitutional, but a primary reason why the federal government has been able to alter the direction of our culture, and then use the culture war to drive what they consider to be "progress" in the political system, enabling them to socially engineer society. To understand the problem, and how to solve it, we need to understand the whole foundation of our rights, and the manipulation by statists regarding the "interpretation" of the Constitution on these issues.
Our rights are "Natural Rights," given by the God of Nature, as John Locke put it. But, government is necessary to be established because, to quote Madison, "If men were angels, no government would be necessary." So, we must determine where the fine line is between where we take responsibility in protecting and preserving our own rights, and government can use the force of law to ensure everyone has access to their unalienable rights, regardless of who they are. However, while allowing government to make laws to protect our access to our rights, we have to also ensure that government does not make laws intruding upon our rights.
Those that oppose the original intent of the Constitution have taken the natural desire of people to protect their own rights, have inserted the federal government as the guardian of those rights, and then have "interpreted" the Constitution to redefine what a right is, and what a right is not.
The Equal Protection Clause reinforces Article IV, Section 2 where the Constitution states "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Both clauses are designed to ensure people are treated equally under the law. For example, as I tell my students, "Texas can't have special laws for people entering their State from California, while having a separate set of laws for native Texans."
The Equal Protection Clause of the 14th Amendment (one of the Civil War Amendments) was written by John Bingham of Ohio, and it was his intent to incorporate the Bill of Rights to the States through that clause, allowing the federal government to become the "guarantor" of our rights by allowing the federal government to become a regulator regarding State activities and laws regarding our rights. Before that time, the Bill of Rights was understood to be a list of enumerated rights (and all other rights not enumerated as indicated in the 9th Amendment), and then telling the federal government "hands off," "don't touch," "our rights do not fall within your authorities granted." Our rights are God-given, and belong to us, so it is our job to protect our rights, it is not the job of a central government somewhere in a far off set of buildings on the far side of the country.
Bingham supported incorporating the Bill of Rights to the States because the former slave States in The South, in his opinion, could not be trusted. They had misbehaved, according to many of the northern politicians, and must be forced by federal dictate to behave. He felt this was the only way to ensure blacks, and persons of a previous condition of servitude, enjoyed the rights afforded to white citizens. So, out of that, it is today believed that it is the federal government's job to force States to protect the civil rights of all people, regardless of what that right is. Therefore, using judicial review in connection with that premise, the statists have to simply ensure that the culture believes something to be a right, and then have the courts support the federal government's attempt to dictate to States regarding that so-called right.
We must remember, however, that the Civil War Amendments (13, 14, 15) were specifically designed to protect the emancipated slaves and their posterity, to ensure that the Southern States did not discriminate against these people based on their race, color, or previous condition of servitude, and not issues regarding marriage, or if a business should be able to refuse service to anyone for any reason (other than regarding race, color, or previous condition of servitude). We must also remember that though Bingham wanted to use the Equal Protection Clause to incorporate the Bill of Rights to the States, a tactic that runs contrary to the original intent of the Founding Fathers, during the 5 month period these amendments were debated (you can find those debates in the Congressional Globe, which are the records of Congress during that time period) Bingham's colleagues disagreed with him, and the majority opinion of the lawmakers upon approving the clause were that it would not be used to incorporate the Bill of Rights to the States. During the State ratification process the conventions and/or State Legislative sessions agreed with the majority, and ratified the amendment with the understanding that it would not incorporate the Bill of Rights to the States.
To understand why this is significant regarding the answer to your question, we must examine the premise regarding all of this.
Article IV, Section 2 was not instructing the federal government to force the States to comply, but was simply a clause indicating that States would ensure that citizens are entitled to all Privileges and Immunities of the Citizens in the several States.
Then, we run over to the Bill of Rights, and have to understand that there was a significant group of founders that disagreed with the creation of the Bill of Rights in the first place. James Madison, himself, believed the Bill of Rights to be unnecessary. Why would, for example, an amendment be needed to tell the federal government that the right to keep and bear arms shall not be infringed, when in the first seven articles there is no language granting the authority regarding gun rights to the federal government in the first place? Mr. Jackson of Georgia, during a session of the House of Representatives on June 8, 1789, discussing whether or not they should approve the proposal of twelve amendments, ten of which would become the Bill of Rights, said, "Do we not belong to the mass of the people? Is there a single right that, if infringed, will not affect us and our connexions as much as any other person? Do we not return at the expiration of two years into private life? And is not this a security against encroachments?" (page 29, The Founders' Constitution, Volume Five Amendmetns I-XII, Edited by Philip B. Kurland and Ralph Lerner, Liberty Fund, University of Chicago Press, 1987).
Those supporting the idea of a Bill of Rights, like George Mason, argued that a central government cannot be trusted, and will eventually attempt to infringe on the rights of the citizens. This attitude was largely driven by Saxon history in Britain, which includes the Magna Carta in 1215, and the Declaration of Rights in 1789. Remember, the colonists, and early Americans, considered themselves to be Englishmen, and revered the system brought to Britain by the Saxons.
From the point of view of the Founding Fathers, in regards to slavery, it was assumed that slavery would be abolished in the United States, by each State individually, during the lifetime of the men who were involved with the creation of the federal government. At that time, it was assumed, the former slaves would become citizens, and be protected by Article IV, Section 2. They were men of "sacred honor," and the nation was a virtuous nation, so why would the new citizens that were former slaves not receive the same treatment as all other citizens? Perhaps the founders had too high of an opinion of the capabilities of men when it came to the abolition of slavery, and the attitude towards the former slaves afterward.
So, to get back to the question, the answer in a sense is "yes" and "no." The federal government was established to handle the external issues (and some internal issues such as disputes between the States, or the postal system that had a direct impact on the preservation of the union), and the States reserved to themselves the original authority over all internal issues. Minority groups, and their plight in the face of tyranny, is an internal issue, unless it is the federal government committing the tyranny. So, if a State, for example, defines marriage as between a man and a woman, that is the business of the State. There is no authority regarding marriage granted to the federal government, nor is it prohibited to the States as an authority (10th Amendment). A law like that conforms to the privileges and immunities clauses of the Constitution, because it applies equally to all people. However, to make this a federal issue, what has happened, is that homosexuality has been elevated to being equal to race and color, making it a civil right, and based on the premise established by case law (which began with the Slaughter House cases in 1873) the federal government has assumed an enforcement position against the States.
In the end, it comes down to the basic question, is "Gay Marriage" a right.
Let us return to the Founding Fathers. Benjamin Franklin said that "Only a virtuous people are capable of freedom."
In the Declaration of Independence, in the opening paragraphs, the definition of what a right is is laid out in clear language.
a) Laws of Nature and of Nature's God entitle them.
b) We hold these truths to be self-evident.
c) They are endowed by their Creator.
d) Certain unalienable rights.
Which means our rights are God-given (endowed), we are entitled to have them, they are self-evident to us, and they are unalienable (inseparable; even when I don't have access to a right, that right still belongs to me).
If our rights are Godly in nature, then the definition of a right would have to come down to a single question: "Would God sanction that activity as a right?"
Also, we must also remember Pandora's Box. We don't want the Federal Government to be the guarantor of our rights. If the government can force a State to abide by the Bill of Rights (rather than us getting off our butts to protect our rights against a tyrannical State, ourselves) then we are also making the opposite available through precedent. In other words, in the McDonald v. Chicago case the Supreme Court told the City of Chicago it could not ban handguns as per the 2nd Amendment (an incorporation of one of the amendments from the Bill of Rights to the States), and on the surface that seems like a win for gun rights. But, if you allow the federal government to dictate to a city, or State, what it can or can't do regarding gun rights when the ruling is favorable, you have also just opened the door for the federal government to do the same when the answer may not be as favorable. If you allow the federal government to "protect" certain groups, the precedent can also be used to allow the federal government to do the opposite regarding those same groups.
So, should the federal government have any way to aid a minority group that could not defend itself against the majority? As per the 14th Amendment, regarding race, color, or previous condition of servitude, yes. From an original intent point of view, no. That is something that must be accomplished at the local level. Don't forget, when the minority Danbury Baptists wrote President Thomas Jefferson about the mistreatment they were receiving from the Puritan Church majority, he responded that religion is a State issue, and the federal government could not help them. They had to do it themselves, locally. A minority group can always defend themselves against the majority, if they are willing to do the work. Or, they can always move to a State that is more in line with their appeal.
Blessings,
Douglas V. Gibbs
Constitution Radio, KMET AM1490
Conservative Voice Radio, KMET AM1490
Publisher, TableTop News, www.tabletopnews.net
Author, "25 Myths of the United States Constitution," "The Basic Constitution,"
and "Silenced Screams: Abortion in a Virtuous Society"
President, Constitution Association
No comments:
Post a Comment