The fourteenth amendment--the federal government's "loophole" through the tenth?


Jun 10, 2001
Minneapolis, MN USA
It is often said that the Civil War in the US wasn't fought over slavery. This I agree with, but slavery--and unequal protection of law based on race and class--seemed to be at the center of what would revolutionize the structure of government in the US after the Civil War. In that I am referring to the Fourteenth Amendment to the US Constitution, which contains a lot of things but is most widely known as the amendment that provides "equal protection of the laws". In and of itself this is an admirable concept--one law for everyone, rather than enforcement based on class, race, or any other factor--and indeed the way it was worded seemed to imply this. BUT it seems to have been used to override the Tenth Amendment (powers not listed in the Constitution reserved to states and the people) in many cases, more recent ones including Roe vs. Wade and the recent election decision by the Supreme Court. Here is the relevant text of the 14th, section 1:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This doesn't seem to imply "equal protection" to the extent that state laws should be made uniform--i.e. not "equal between states"--but rather, that people WITHIN a state should enjoy equal protection with others WITHIN the same given state. I.e. equal voting rights (which didn't really happen right after that), equal treatment by the judicial process, equal accountability to the laws of the state, etc. At least this is how I read it. But I've talked to some who agree with things like Roe v. Wade (whether you're "pro-life" or "pro-choice" or a fencesitter like me doesn't matter--it is a matter of states laying down criminal law for themselves, a traditional state role usurped in this case by Roe), who interpret it to mean that if one state allows a given "right" to exist (like legal abortions), all states should grant that same right to satisfy "equal protection"--something I don't read into this AT ALL. If this were the case, then the legal prostitution in Nevada would be universal to all states (right to make a living providing that kind of service), among many many other things.

I am not all that well versed in law and legalspeak, so anyone who understands such language can perhaps better enlighten me how the 14th got twisted around to support a decision such as Roe, basically ignoring the Tenth Amendment in the process.

Given how the 14th has been so twisted, giving the federal government a seemingly unlimited legal inroad into overriding states' rights, I almost wish we would have just enacted the 13th and 15th (ending slavery, and universal male suffrage with equal representation), even though the 14th as worded (the way I see it) wasn't a bad thing.

And by my saying I support state's rights, I should clarify my position by saying that, unlike some arguments at the time, slavery to me was NOT a legitimate state right, by the spirit of our national ideals of "all men created equal". That it was given allowance by the founding fathers was ultimately their biggest mistake IMHO, in that aside from the obvious crime against liberty that it was, its eventual and inevitable abolishment would forever blur our perception of the boundaries between state and federal power. It didn't have to necessarily, but it did, precisely because this was perceived by many as a state's rights issue rather than a broader crime against our fellow Americans. Our nation's "statement" for liberty, symbolized in our very founding, was from the start weakened severely by allowing some men to hold other men as property. We could have started with a much stronger statement by abolishing it (even if that would have meant not getting support from all the colonies, at first anyway) with our founding, and probably would have been a freer nation with more limited federal power even today, had we done so. Obviously this is only speculation, but even though the Civil War was fought for many reasons besides the slave issue, had there been no slavery, I don't think there would have been a Civil War--at least not the one we know. And that Civil War we know ended with a symbolic AND real victory of federal power over states, and served the interests of more than a few people who wanted to expand federal power at the expense of state and local rule in many matters.

I'd like to discuss this. I'm no historian, but I've been giving things like this a lot of thought lately. What factors have led to the eroding of constitutional protections, in this case, protections for state power and autonomy within the nation? Am I on to a big one here?
Ah, the glories of federalism. The reason I like the 14th amendment is how the system viewed the Bill of Rights before it.

Around 1820's or so, there was a case of Barron vs. Baltimore. In that case, it was declared that the Bill of Rights can only limit the power of the Federal Government, not a state government. What this means is that states are free to force testimony, abridge first amendment rights, ignore double jeopardy, and all that fun stuff.

Eventually, the 14th amendments equal protection clause allowed the Supreme Court, starting in 1896 (after downplaying the amendment ever since it was passed), to slowly "incorporate" the entire Bill of Rights, saying it applied to states as well as the federal government. This is why I like the 14th.

As for Roe vs. Wade, I do not believe the main controversy is whether the Bill of Rights should only limit the Federal Government. The question is, does the constitution or the Bill of Rights create a right for privacy, and thus a right for an abortion?
"The question is, does the constitution or the Bill of Rights create a right for privacy, and thus a right for an abortion?"

Abortion isn't necessarily a privacy issue. If it is viewed as murder (and there are good arguments for that view), then just as "privacy" doesn't allow one to commit a murder of a family member within their home, it wouldn't allow abortion. If it is viewed as not murder (and there are also good arguments for that view), then it would be a matter of privacy and government should mind their own business. I myself am undecided on whether it is murder or not; but given that criminal code (including murder) is a matter of state power, abortion IMHO should be left to state governments to decide on--some will call it murder and abolish it, others will call it not murder and leave it alone. Of course, federal funding of abortion clinics is, to me, a HUGE overstep of federal power, plus it is immoral--why should a taxpayer who believes it is murder be forced to finance it? If you want an abortion, YOU pay for it, is what I say. But that is another thread.

And privacy, btw, exists so far as "powers reserved to the people". States too have constitutions which limit THEIR power, so all areas not covered by either state or federal constitutions are off-limits to these respective governments, and are in the sphere of the people themselves. The fourth amendment (searches and seizures) also guarantees privacy in regards to limiting police intrusions on your property or home.

The effect of the 14th Amendment you stated is a good one I was not aware of (I always assumed the bill of rights extended to the state level, in that "shall not be infringed" or "abridged" wasn't followed with "by congress", although the rest of the Constitution refers to the powers of congress--but the BofR surely could have been worded more clearly if that was the intent. But if it DIDN'T mean "at all levels" then it was redundant, because the Constitution itself does not grant government powers that would infringe on these anyway)--but its wording doesn't indicate it. So again I see it as a vaguely-worded, poorly interpreted amendment that didn't clearly delineate federal power in regards to the states, but left open (through its vagueness, it apparently allowed all sorts of weird interpretations) a broad avenue for bombarding ANY aspect of state autonomy that some federal politicians may want to in future (and there goes the idea of limited government). Surely it could have been worded clearer--"the protections of the first ten amendments of the constitution shall be guaranteed by the states" would be good wording for what you describe--and done the job you attribute to it, without giving the feds (again, by whatever weird interpretations its vague wording could have afforded) unlimited licence to override states wherever they see fit.

At any rate, my reading of the amendment seems to indicate NEITHER of these things, but equal protection of laws within states ("within their jurisdiction"), among other things (the concept of US citizenship, absolvement of war debt for states, etc.). Personally I don't see how its wording could bring to pass what has been brought to pass with it, both the good you mention, AND the bad....
The only place it would ever conflict with State's rights would be when states are attempting to be restrictive on individuals. I don't see how it implies that people in different states should have the identical rights. I think the implication is that if if the Federal government grants a right the State government can't take it away.
Ok, another interesting thread. As a lawyer AND a enthusiastic “pro-choice”, I couldn’t make myself miss the opportunity to add a few of my own spice in this topic. However, as I’m not a USA citizen, and I am not really familiar with it’s legal system (I do know that it works based on the same philosophical principles of Brazil’s law); and because I didn’t actually read the amendments full texts or followed the mentioned examples except for what’s posted here…

… I warn whoever interested to read at their own peril and to forgive me if any mistake is made when it comes to specific inner-USA things. It’s just that I believe that I can add something in terms of interpreting law and something else about the moral issues raised.

But, as I’m sure I’ll get carried away, I’d like to make even another warning. This will probably be a LONG post, so beware and don’t blame me for it:) .


For starters, I think the concern expressed in this discussion (basically, that federal power is disrespecting the autonomy of each State) should be put in a sociological context.

There are a few theories about how nations were formed, but the most accepted one is called the “social contract” theory.

In the basic terms of its most modern take, it says: “each person in the world is born free to do as he pleases. However, since in society it’s impossible to avoid clashes of interests, what ultimately lead to conflicts, each person, implicitly, gives up part of his/her freedom – therefore giving up the right to do anything and accepting rules of behavior – in exchange for the State protection, that will assure that others will do the same. Because a partial but effective freedom is something better and more real than a theoretical ‘infinite’ freedom that is always challenged by other’s also ‘endless’ freedom”.

Since the 16th century (if I remember correctly), after the release of the book “The Leviathan” by Thomas Hobbes, the idea of central power is represented by that mythical character – The Leviathan – that is a HUGE monster full of scales, each scale a human being. Clearly, it represents that we are all bound to an infrastructure that limits our free will, but that also assures that we cannot be individually threatened, because IT – the structure – is too powerful.

United we stand, separated we fall. And, surely, union demands sacrifice. The human history is deeply marked by the search for the perfect balance between the need of organization and the respect for individuality, with variations as extreme as “Absolute Monarchy” (all the power centralized in one man, that can be represented by the French monarch Louis XIV famous phrase “I am the State”) to “anarchy” (that, unlike Civ games suggests, don’t mean “mess”, but the ultimate state of human conscientiousness, where everybody understands their roles and works for the good of society without the need of leadership).

When it applies to the arising of the USA government, the important thing to know is that, although the 13 colonies were indeed interested in becoming one nation, the weaker ones were also afraid of being absorbed by the stronger ones. When we hear now about how it worked well, it’s easy to imagine that they joining together were a natural, common sense thing, but back than, they didn’t know if the ideals that were defended until that day would stand.

To avoid that line of argument from those who didn’t support the idea of the 13 colonies getting together, it was promised that regardless of size or strength or amount of population, all would have the right to the exactly same participation in the federal matters and that they would be allowed to organized themselves internally, without the central power interference.

This challenges the protection/sacrifice equation and creates the space for distortions. And, that is what is funny about the matter of slavery in USA formation process; recognizing the right of the federation members to accept it was, by that line of thinking, a way to guarantee that USA was a free nation that wouldn’t force others to do what they didn’t want. The line between “human rights” and “state rights” wasn’t as clear as now.

Also, people got to understand that the paradox was much more Intricate than that. It was mentioned the matter of abortion being or not “murder” (and I’ll get into that matter later). Well, back than, there were serious arguments of what is a “human”. Some people really believed (or conveniently believed) that black people weren’t “humans”. Stupid as it sounds, it is the truth. For some time, even debates were made if they had souls, and, having somehow reached the conclusion that they didn’t, the Catholic Church didn’t, for some time, condemn slavery, and that’s why it could stand for so long in catholic empires such as Portuguese and Spanish.

Well, since that parameter of “freedom” was admitted, the USA was formed with a deep tradition of internal independence of its States in the relation with the Central Power, a tradition that lives up to this day, and can be illustrated with the worry that is expressed in this thread.

For example, France has just a Central power, and all the subdivisions of the country have administrative roles that submit to the main government. Brazil, like USA, have an internal division of the power, that goes even further because here even the cities have a part of the power (we are the only country in the world with such an atomic division), only that it’s the union that have the “residual competence” to deal with matters that have not been legislated before.

Of course that divisions are necessary to respect the regional wishes. But my point with all that is that I don’t see such a problem with the union interference, because it’s role is actually to provide the minimal standards that make possible that the regional differences stay in peace. Major matters like the value of life calls for such intervention, because they are too inflammatory to be allowed that completely opposite views stand together, at the price of encouraging the conflicts which avoiding is the main reason for the government very existence.

In the legal point of view, I’d like to add that constitutions are not regular laws; they don’t give rules of behaviors. Instead, they give basic standards of the minimal common behaviors expected to *constitute* a State and inspire it’s law.

Therefore, at least for what I get from those little pieces of the described amendments, one that says that in USA it’s the inner States that has the “residual power” to legislate does not conflict with another that allows the central power to establish parameters. Because while constitution strengths the legitimate self-determination of the atomic stances, it does not give an allowance to have postures that threatens the Union minimal standards.

Ultimately, each inner State should give up part of its free “self determination” in order to successfully be part of the “Leviathan”. Not meaning that it should accept to be controlled, but in the meaning that it should accept to be guided.

Well, I hope that have helped a little with your own personal digressions. Now, I’d like to add a few words about the abortion matter. Even knowing that it is not exactly the thread’s point, it’s far too interesting of a theme to let go the opportunity.

As I said before, I am “pro-choice”. I am also against death penalty. When I say it, people often call me crazy and ask things like “how can you pity criminals and favor the murder of babies?”.

And this is where they are wrong. I don’t “pity” criminals or favor any sort of murder.

First of all, one of the reasons why I’m against death penalty is a very common one. Human beings can make mistakes. And I’d rather see 10.000 murderers living than 1 innocent man killed with States’ sanction.

The other is a bit more unusual, and perhaps, new to most people. It goes back to the “social contract” theory. As I said above, people “join” the society for the protection it gives; it guarantees that we will not be robbed or murdered or raped with impunity.

Well, the ones that do those things are also members of the society. If the State kills them summarily, it’s just a wrong thing to do and raises serious questions on how that society treats its members and how much guarantees they actually have.

However, if it applies the “due process of law”, meaning that it still considers such person a member of society, than the “contract” is still in value, and the state is not entitled to take a life that it should “protect”. Even the fact that it should protect all the other members of the society makes no difference on that, because there are alternatives.

Imprisonment have both a “punitive” and a “educative” goal, so, as it plans to, theoretically, prepare the perpetrator to again be a productive member, it’s something acceptable. Death penalty however teaches NO lesson. Just punishes. And that is breaking the individual “social contract” that the state has with that particular citizen.

Ok, and what does it have to do with abortion? I wrote that to show that my take on those matters has NOTHING to do with personal merit of babies and criminals. The fact of one being guilty and one being innocent doesn’t give to anyone the right of life and death over them, at least unless someone that is “perfect” is born. Perhaps such person will be able to judge people that deeply.

The reason why I support abortion have to do with the woman’s right to make with her own body whatever she pleases. I won’t take long on that, because we all have heard lots of considerations on that field, so I will stick with one point that at least I never seen being debated on TV:

My point is: if the woman can be forced to “dedicate” her body to another human being before he is born, why such a duty disappears when that human already did? People call it “murder” because the child is defenseless. But a recently born baby is as defenseless as a fetus.
If that baby is born with malfunctions of any kind, the mother CAN’T be forced to donate a lung, or a kidney, or her spine medulla, ANYTHING. What makes the kid less deserving of the right to take advantage of her mother’s body after he/she is out?

Before anyone say that “every mother would die for her children”, I’d like to state that if it was true, abortion wouldn’t be a concern to begin with. Also, that she cannot be forced to donate even blood, something that is pretty easy and harmless to do.

Also, if we admitted that the mother have that obligation, for how long would it be? A year? 10? Why not forever? If the mother’s body is at the children’s disposal, why should that “right” cease one day?

And even worse, why just the mother? Why not the father? And brothers? Sisters? Grandparents? Uncles? Any near relative?

Now, I, personally, wouldn’t encourage anyone to do an abortion, because I treasure life. But I think that those who want to force their will over others should take some time to think of those things before painting woman as “murderers”.

Well, that’s pretty much what I had to say. I know that I strayed away from the topic a lot after a certain point but I just couldn’t help myself.

I also apologize for the long post, but at least you can’t say that you guys weren’t warned :) .

Regards:) .
I can't even read all this...:crazyeyes

I don't know if I'd call it a loophole. The Constitution is a very ambiguous document. That's why it has survived so long - since it can be interpreted in different ways, the prevailing issues of the day can be rendered constitutional or un-constitutional as the majority sees fit.

As I said at the top, I didn't read through all the posts but did notice the abortion issue. It's unconstitutional, then it's constitutional, then it isn't again. It's flopped just like the death penalty. Americans have had trouble as a whole making up our minds on these ethical issues. Until we decide - on an ethical or moral basis - the constitutionality of both these issues will waver.
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