by William E. Nelson
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Product Description
In a remarkably fresh and historically grounded reinterpretation of the American Constitution, William Nelson argues that the fourteenth amendment was written to affirm the general public's long-standing rhetorical commitment to the principles of equality and individual rights on the one hand, and to the principle of local self-rule on the other.
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By: Dan D'Amico and John Makarewicz, 2005-12-14
In The 14th Amendment: From Political Discussion to Judicial Doctrine, William E. Nelson examines the political rhetoric and circumstances that surrounded the framing of the Fourteenth Amendment, and from that, he attempts to determine what the purpose of the Fourteenth Amendment was supposed to be for the original framers. Nelson claims that the ideas of equality, individual rights, and local self-rule were all prevalent in antebellum rhetoric, and that these ideas were not in conflict. Through his examination in these three areas, Nelson comes to the conclusion that the Fourteenth Amendment was not intended to have been interpreted so broadly to regulate state legislation, but rather that it should be used to make sure that state laws simply apply equally to all citizens.
In the brief first chapter, Nelson discusses how critical scholarship pertaining to the 14th amendment has come to an impasse. There are various ways in which people throughout history have interpreted the scope of influence of the Fourteenth Amendment and from where the authority of this influence should come. Each of these different ideas have so much evidence to support it. Therefore, there is no clear agreement of how the Fourteenth Amendment should or should not be applied.
In the next chapter, Nelson lays the foundations for the whole premise of his book though clarifying what the ideas of liberty and equality were in antebellum America. Equality and liberty were two prevalent themes in antebellum political rhetoric. People of almost all political backgrounds, even pro-slavery southerners, used the political rhetoric of equality in antebellum America. The problem was whether or not blacks should be equal. Opponents to slavery supported the equality of blacks, and those who were pro-slavery used equality rhetoric to apply to the rights of slave owners to keep slaves. Political rhetoric about liberty took three distinctive forms in antebellum America. One form was that liberty was given to people through the natural law of God. Liberty was also discussed in how it ensured through a republican form of government, and finally, people thought liberty was guaranteed through local self-rule. These ideas established the background for the framing of the Fourteenth Amendment.
The actual political process of drafting and adopting the Fourteenth Amendment was very difficult due to the volatile nature of the country after the Civil War. The framers of the Fourteenth Amendment knew that they had to phrase the amendment in such a way so that the South would not completely reject it. They wanted the amendment to ensure the freedom of blacks and to prevent pro-slavery, racist groups from being able to attain political power again. Therefore, the actual language used in the Fourteenth Amendment moved from originally explicit language that clearly defined its scope of influence to much more ambiguous language that used the antebellum rhetoric of equality and liberty. The Fourteenth Amendment, in essence, was an attempt for the Republican Party to secure the results of the Civil War and the antislavery sentiments that were prevalent before the war.
The use of antebellum rhetoric took many different forms in several debates about the Fourteenth Amendment. Some, on the basis of a higher law tradition, argued in favor of the Fourteenth Amendment. This view reflected the religious values of many people at that time. They viewed slavery in any way to be evil, and that all people are equal under god. Therefore, there should be an amendment that prevents slavery or discriminatory treatment of any humans. Proponents of the Fourteenth Amendment also argued that the amendment was necessary because a republican form of government guaranteed a certain amount of rights to its citizens. These rights, however, were not explicit, so interpretation lacked any real definition due to its vague nature. Others also argued that ensuring human equality was a factor that supported the adoption of the Fourteenth Amendment. All Republicans agreed that blacks needed equal rights, but the Republican did not go any further. They thought that as long as state laws had the same universal effect on all its citizens and did not discriminate, then equality was ensured. The Republican framers of the Fourteenth Amendment did not see any need to give a strict definition of equality, but rather they wanted to ensure civic reformation.
This original understanding of the Fourteenth Amendment quickly was transformed as people tried to determine exactly what rights were guaranteed under the Fourteenth Amendment. The rights guaranteed by higher law, the political social order, and state law were thoroughly examined in order to develop a definitive list of equal, guaranteed rights. These efforts were basically futile because nobody could come to an agreement. Everybody agreed that blacks and all citizens should be equal, but they could never agree how they should be equal. There were no definitive answers.
Nelson then moves on to discuss the arguments that the southern Democrats presented against the adoption of the Fourteenth Amendment. There were two basic types of arguments. There were objections to the process in which the Fourteenth Amendment was passed. Democrats claimed that: 1) the Fourteenth Amendment was adopted without proper representation from the South, 2) it was never submitted to the president 3) the Fourteenth Amendment was a political document that Republicans fashioned behind closed doors that was intended to discriminate against the South 4) the Constitution should not be altered because alteration will undermine the essential value of the Constitution. Their other arguments were about the very substance of the amendment. One argument, basically, was racism. They believed that blacks were inferior, and so they should not be given the right to vote. Black suffrage would result in an uneducated voting population that would degrade elections and ruin the American political system. Their other argument was that the Fourteenth Amendment would cause the federal government to have too much power. They viewed the Fourteenth Amendment as a threat to the state's individual abilities to pass their own laws without interference from the federal government. It would ruin the sovereignty of the states.
The second half of Nelson's text is devoted to the debate of interpretation of the fourteenth amendment. The two major contradictory understandings are first introduced by Nelson's outlining of the Republican Rebuttals to the initial passage and applications of the amendment. These rebuttals focus on the arguments that interpret the amendment as granter of absolute rights versus equal protection.
This issue first arose surrounding the climate of the amendments passage engulfed in post Civil war northern and southern hostilities. The thirteenth fourteenth and fifteenth amendments all had direct intentions to ensure certain protections and understandings to stipulate over the southern states so as to clarify arguments surrounding civil rights. The north was concerned about potential for further war and insisted on dictating safety precautions to protect the rights of northern citizens traveling and relocating to the south.
Southern hostilities and anxieties towards these northern stipulations manifested themselves through the Republican debates as concerns about states rights. At first glance the fourteenth amendment appeared to be sacrificing the emphasis of local sovereignty towards a centralized federal power. Congress was infiltrating itself into the voting process, traditionally a state regulated and stipulated process, and if it could successfully do that nothing would be able to stop its trespassing into all aspects of personal life in the future.
This debate was thrown around Republican circles time and again until finally interpretations were offered that defined the emphasis on equality rather than absolutism that the fourteenth amendment allegedly provided. It was claimed that the fourteenth amendment did not proactively grant any additional rights to any additional citizens than before its adoption. In stead the fourteenth amendment was said to have given congress the authority to interpret and regulate the equality surrounding states legislations. With this understanding states were still responsible for controlling the voting processes in their regions but laws they utilized to do so could not be arbitrarily biased on the basis of racial discrimination. Purposes and determinants in the voting process had to be justified as having relevant positive affects on the overall welfare of society and could not discriminately disadvantage one group of people to the wills of others.
All appeared settled in terms of the Republican debate over the fourteenth amendment until in 1874 the wheels of government spun to shift the majority of representation to the Democrats who had yet to tackle the task of interpreting the amendment. The Democrats preliminarily vested large amounts of interpretational authority into the hands of the Supreme Court and alleviated the issue from being discuess at the political and bureaucratic level. From then on only cases and specific instances of application would be viewed to understand the effects of the fourteenth amendment.
Bradley and Field, the Slaughter house cases, Plessey v. Ferguson, and many other civil liberties cases have shaped the way our country and our government understands the wording and application of the fourteenth amendment however with the finitude of terms for supreme court judges always an inevitable hurdle, the amendment stands to swing in general interpretations as years pass to the whims and opinions of different judges and their selectors.
Perhaps all of these debates and applications should open the populations' eyes to the simple fact that governmental legislation though guised with benevolent intention is lined with a tendency to be proactively applied and tends to be subjectively beneficial to some while at the expense of other citizens. In this understanding the fourteenth amendment's equality emphasis is not only futile but also contradictory to basic logic in inception and application. The cyclical fluctuations that take place in government popular opinion put the civil liberties, local freedoms, and cultural privileges of American citizens at risk. As new candidates seek out unidentified and under utilized voting segments, their empty promises and vague interpretations of constitutionality grow the reach of governmental authority into deeper and deeper realms of our lives.
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