By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host
I received an email from a recipient of one of my books, and I thought you'd enjoy the discussion:
Hi Mr. Gibbs
I have been reading your book “25 Myths of the United States Constitution”, and have been enjoying it.
I just read “Myth 12 - The Bill of Rights Applies to the States” and have a question regarding your conclusion.
I have been doing some research and found this in Library of Congress documents:
Library of Congress. 1866, 39th Congress (Senate) Session 1
Congressional Globe Page 2764 (starting at lower right bottom of page) - page 2766
Senator Jacob Meritt Howard speaking to the Senate on behalf of The Joint Committee on Reconstruction, AKA The Joint Committee of Fifteen, regarding intent of the 14th Amendment (23 May 1866):
“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”. Page 2766
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=072/llcg072.db&recNum=845
Now for my response:
Thank you so much for your email.
The Congressional Globe is the appropriate source. In reference to your quote by Senator Howard, I believe the context of that quote was that he was referring to the citizenship clause. That said, it is possible he was also referring to John Bingham's equal protection and due process clauses, but I don't have the source with me at the moment, so I can't be positive. That said, like all of the legislators of his time, they were juggling some very interesting concepts and issues. While the Bill of Rights was never intended to allow the federal government to "guarantee" our rights, that was a conversation piece among the representatives who possessed the task of debating the Reconstruction Era Amendments to the U.S. Constitution. Remember, while they wanted to try to preserve State autonomy, they also felt that the southern States must be punished and not be allowed to do what they did, again. While on the surface it seemed perfectly logical to dictate to the States what they could or could not do regarding our rights and liberties, the potential consequences regarding the constituency and sovereignty of the States were not good.
The 14th Amendment was written for the purpose of ensuring that the States (more specifically the Southern States) were restrained in their effort to treat the newly emancipated slaves in any manner that could be considered unfair. Article IV., after all, called for the citizens to be equally entitled to the privileges and immunities of the several States. It was a difficult juggling act for Congress. A tightrope walk, to be honest. How do you ensure that the States treat everyone equally under the law, and that all citizens have equal access to due process, without allowing the federal government to become a dictatorial ruler over the sovereignty of the States? The intent was to force the States to play nice, but do so in such a way that it didn't force the States to be under the rule of a powerful centralized government.
John Bingham, the abolitionist congressman from Ohio, had every intent when he wrote the equal protection clause and the due process clause to use an iron fist to force the Southern States into compliance, and to incorporate the Bill of Rights to the States - creating a scenario establishing the federal government as the guarantor of our rights (which would ultimately lead to the federal government also defining our rights). It was Congress who essentially responded with, "Yeah, we need to corral the States into compliance of treating everyone equally, but we have to allow the States to govern their own affairs as much as possible, too."
As I like to explain, if the federal government must dictate to the States what they can and can't do internally, what's the point of having State Constitutions?
The language of Bingham's clauses also reveal something that has not necessarily been followed. The clauses specifically instructs the State governments not to pass laws that do not provide equal protection under the law, or deny one's rights without due process. It does not address other entities, such as businesses. Not that I would condone discrimination, but the 14th Amendment does not apply to business owners or individuals, it only applies to State governments. This is where cases like the Colorado Christian Baker drives me nuts.
We must also remember, our rights cannot overextend into other people's rights. What I mean by that is I have the right to swing my arms, but I don't have a right to swing my arms into your nose. I have a right to pursue care to fix my broken ankle, but I do not have the right to force a particular doctor to administer the care necessary to repair my broken ankle. While a gay couple may have the right to have their relationship, they do not have the right to force a particular pastor to marry them or force a particular baker to make their wedding cake. And, while someone of color may have the right to pursue a meal, there is no right to force a business to accommodate them at the lunch counter. Please don't misunderstand me. Racism is something I hate with a passion, but we can't force by law someone to not be a racist. That must come from within. And, they have a right to that racism, even though it is a disgusting way to think. That said, if a lunch counter refuses service to a black man, or a baker refuses to bake a certain cake because the message goes against their religious beliefs, or a pastor refuses to perform a ceremony for a couple for any variety of reasons, or a doctor refuses to fix my ankle for whatever reason they may muster, the culture should then be the factor that encourages the entity to do something, or not. As in any situation in a free market, they would then either reap the benefits, or the consequences, of their actions - and the future of the prosperity of their business, or church, or whatever, will be dependent upon those consequences.
At least, that how a system of liberty is supposed to work.
Blessings,
Douglas V. Gibbs
Fellow, American Freedom Alliance
President, Constitution Association
Radio Host, KMET AM1490
Author, "25 Myths of the United States Constitution," "The Basic Constitution," Concepts of the United States Constitution," and Silenced Screams: Abortion in a Virtuous Society."
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