Start Updating the fourteenth amendment

Updating the fourteenth amendment

Lash is incorrect that this understanding would empower the federal government "to establish the national substance of everything from local contract law to marital law to public education." It would and did, however, empower the federal government to prevent systematic violations of natural and common-law rights by the states.

And finally, the Fourteenth Amendment introduced the ideal of equality to the Constitution for the first time, promising “equal protection of the laws.”A key feature of the Fourteenth Amendment was that it directly prohibited certain actions by the states.

In the House, John Bingham, the author of Section 1 of the Fourteenth Amendment, relied upon the Declaration to support numerous versions of that provision and stated that it would protect by national law "the inborn rights of every person." In the Senate, Jacob Howard cited , an 1823 decision in which Supreme Court Justice Bushrod Washington sought to define the privileges and immunities of Americans: "They may...

be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole." Although Justice Washington was interpreting Article IV's Privileges and Immunities Clause, Republicans repeatedly referred to his (inexhaustive) list of "fundamental rights." Congressman Frederick Woodbridge stated that the "object of the proposed amendment" was to protect "the natural rights which necessarily pertain to citizenship." Finally, when Schuyler Colfax, the speaker of the House, described the Fourteenth Amendment to his constituents, he called it the "the gem of the Constitution" because it placed the Declaration "immutably and forever in the Constitution." It is also uncontroversial that the Fourteenth Amendment was designed to ensure the constitutionality of the Civil Rights Act of 1866.

There is no reason to believe that either Bingham or any other Republican in the Thirty-Ninth Congress did not accept what influential Progressive jurists would later disparage as "substantive due process" or that the Fourteenth Amendment's Due Process of Law clause was not designed to prevent substantive unenumerated rights from being violated by the states.

It was proper, then, for state courts and, later, the Supreme Court, to use the Fourteenth Amendment's Due Process of Law Clause to safeguard individual freedom.

Had the Privileges or Immunities Clause only extended the Bill of Rights to the states, as Lash contends, it would not have fulfilled one of its key goals, that of "constitutionalizing" the Civil Rights Act of 1866.

Finally, regardless of how any particular Framer may have understood the Privileges or Immunities Clause, its language is broad and abstract.

The notion that the Due Process of Law Clause protected natural rights became a thesis that was asserted in the platforms of anti-slavery parties throughout the antebellum period.