Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

Amendment XIV

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.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Fourteenth Amendment and a Return to Federalism

The Fourteenth Amendment to the United States Constitution was enacted in 1868, just three years after the Civil War.  For obvious reasons, Congress didn’t trust the Southern States to voluntarily provide former slaves with all the benefits of U.S. Citizenship, so it specifically required them to do so via the federal constitution.  Subsection 1 of the Fourteenth Amendment states:

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 amendment greatly undermined federalism since before the enactment of the Reconstruction Amendments, civil rights were largely protected by state constitutions.  The Bill of Rights applied only to the federal government, which was smaller, and had less power.  In fact, some Southerners still maintain that the Civil War was not about slavery, but about State’s rights and the power of the federal government.

Justice Harlan described this nationalization of civil liberties as a “revolution…reversing the historic position that the foundations of those liberties rested largely in state law.”  Walz v. Tax Com. of New York, 397 U.S. 664, 701 (1970) (Harlan, J., dissenting).  Beginning in 1897, the Supreme Court began interpreting the Fourteenth Amendment’s prohibition on depriving any person of “life, liberty, or property, without due process of law” as incorporating the Bill of Rights in to the amendment so that they also applied to the states.  See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) (incorporating the Fifth Amendment).

The Free Exercise Clause of the First Amendment was incorporated in 1940 in Cantwell v. Connecticut, 310 U.S. 296 (1940).  Given the history of the Fourteenth Amendment, it’s assumed the Court thought it necessary to apply the Free Exercise Clause to the states because they could not be trusted to protect religious freedom with their own constitutions and statutes.  But those roles are now reversed.

The Supreme Court’s 1990 decision in Employment Div., Dept. of Human Services v. Smith drastically weakened the federal Free Exercise Clause by holding that general, neutrally applicable laws do not violate religious freedom.  In that case, a general law prohibiting ingestion of a hallucinogenic drug called peyote applied to everyone, so the fact that it also restricted the freedom of Native Americans who use it during religious ceremonies did not violate the federal constitutional.  Smith has had a profoundly negative impact on church religious freedom in such diverse areas as land use and the ability speak out on political issues.  As a result, States are now increasing the protection they provide to religious freedom because the federal courts can no longer be trusted to protect it.

To date sixteen (16) states have taken it upon themselves to enact Religious Freedom Restoration Acts protecting their citizens:  Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.[1] And at least twelve (12) states have interpreted their constitutions to provide the heightened protection applied by the Supreme Court of the United States prior to Smith:  Alaska, Indiana (possibly), Kansas, Maine, Massachusetts, Michigan,  Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin.[2]

So states now provide the real protection for religious freedom – an interesting return to the federalism that was undermined when it was thought states couldn’t be trusted to do so.

[1] Alabama – Ala. Const. amend. 622, § V(a); Arizona – Ariz. Rev. Stat. § 41-1493.01(B) (2003); Connecticut – Conn. Gen. Stat. § 52-571b(a) (2000); Florida – Fla. Stat. ch. 761.03(1) (Supp. 2003); Idaho – Idaho Code § 73-402(2) (Michie 2003); Illinois – 75 Ill. Comp. Stat. 35/15 (2001); Louisiana – La. R.S. § 13-5233 (2010); Missouri – Mo. Rev. Stat. § 1.302 (2009); New Mexico – N.M. Stat. Ann. § 28-22-3 (Michie 2000); Oklahoma – Okla. Stat. tit. 51, § 253(A) (2003); Pennsylvania – 71 Pa. Stat. Ann. § 2403 (2002); Rhode Island – R.I. Gen. Laws § 42-80.1-3 (2002); South Carolina – S.C. Code Ann. § 1-32-40 (Law. Co-op. Supp. 2002); Tennessee – T.C.A.§ 4-1-407 (2009); Texas – Tex. Civ. Prac. & Rem. Code Ann. § 110.003(a) (Vernon Supp. 2004-2005);Virginia – Va. Code § 57-2.02(B) (2007).

[2] Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994), Cosby v. State, 738 N.E.2d 709, 711 (Ind. App. 2000) (“Indiana Constitution may demand more protection for citizens than its federal counterpart”); Stinemetz v. Kansas Health Policy Authority, (KS app., May 4, 2011), Rupert v. Portland, 605 A.2d 63 (Me. 1992), Attorney Gen. v. Disilets, 636 N.E.2d 233 (Mass. 1994); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990); Davis v. Church of Jesus Christ of Latter Day Saints, 852 P.2d 640 (Mont. 1993); Matter of Browning, 476 S.E.2d 465 (N.C. App. 1996); Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (en banc); and State v. Miller, 549 N.W.2d 235 (Wis. 1996). See generally Angela C. Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U. L. Rev. 275 (1993).

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

3 replies
  1. yguy
    yguy says:

    The Bill of Rights applied only to the federal government

    So I’ve been told many a time, but I haven’t been able to trace this any further back than Barron v Baltimore, wherein Marshall asserted that constitutional prohibitions which don’t explicitly apply to the states can’t be applied against them, but failed to explain why, if that assertion is correct, the Great Writ, which is called a privilege in the suspension clause, does not apply to the states through the privileges and immunities clause of A4.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      The “trace back” is best handled as a “trace forward” from the lawyers Bible of the day, a.k.a., “Sir William Blackstone’s Commentary of the Laws of England”, and the background of the state constitutions already written at the time were the archetype for the federal constitution as all these constitutions have been English Common Law basis documents. Going by SCOTUS decisions really is not all that authoratative because what matters is the what the delegates and law makers debated and voted on to put the law into effect.

      The Philadelphia Convention debates sets the tone of just what sort of document that federal constitution is; and when George Mason quipped seeing the final form of the constitution that “there is no declaration of rights” it was understood because states have put into practice the use of their own bill or rights and the Common Law was the legal underpinning of those rights. Remove the Common Law, then these documents are rather open ended without much explanation for what was considered standard practice. And the less and less the courts use the Common Law for interpretation of the constitution, then the more and more the courts cannot be trusted with justice for you cannot have justice when regimes come and go and make the very same black and white words mean something else than the original. And those who say the constitution is out-dated and so not worth following are putting a double hit on their own rights because that invites someone else to come along and arbitrate away rights in the constitution while also giving consent to government actions by the federal seat that has not been given the moral authority by 3/4ths of the states. Such people are without excuse because there is an amendment process right there in the constitution.

  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The 14th is the probably the most controversial of all Amendments. Congressman Lawrence McDonald called it the “Illegal Fourteenth” because how different versions of the 14th circulated among the states such that not one version attained to the 3/4ths threshold for ratification. In addition, southern states often were being denied rights to return to congress and participate in things like ratifying amendments as punishment for their “rebellion”. What they reallly rebelled against was President Abrahan Lincoln’s party coming to power who was bent on not enforcing the federal slave fugitive laws that mandated northern states to return fugitive slaves. It was the northern states that refused to obey those federal laws claiming it was their state’s rights to nullify such federal laws and refuse to honor them. And now the Lincoln regime came to power who was certain to contravene and repeal those laws. So that was the ‘last straw’ of sorts that Senator Jefferson Davis made in his farewell exit speach on the Senate floor on the intent of joining the succession from the union.

    The Equal Protection Clause (the right to sue somebody) and the Due Process Clause (the rights you have to defend yourself in court) are rather butchered now by Substantive Due Process (the right to sue for an outcome) such that the federal government now not only has the power to question whether a state follows its own laws; but to question the outcomes of those very state laws. So now we have a federal court system that has taken license to nullify state laws hand-over-fist. Substantive Due Process out to be explicitly made unconstitutional to restore the federal system back to its place instead of the encroachment method by nationalization judicial fiat.


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