Replies to post #1297 on NO QUARTER FOR CORRUPTION (Focussing on The Fed./F

[bartermania]

""President Andrew Johnson saw the Reconstruction Act as "absolute despotism," a "bill of attainder against 9,000,000 people." In his veto message, he stated that "such a power ha[d] not been wielded by any Monarch in England for more than five hundred years." Sounding for all the world like Roger Pilon, Johnson asked, "Have we the power to establish and carry into execution a measure like this?" and answered, "Certainly not, if we derive our authority from the Constitution and if we are bound by the limitations which it imposes."

The rump Republican Congress overrode Johnson's veto and enacted statutes that shrank both the Supreme Court's appellate jurisdiction and the Court itself – just in case the judicial branch got any funny ideas of its own about constitutionalism. Jackboot on its neck, the South ratified, but not before New Jersey and Ohio, aghast at Republican tyranny, rescinded their previous ratifications of the mendment. Even with the fictional consent of the Southern states, the republicans needed New Jersey and Ohio to put the amendment over the top. No matter; by joint resolution, Congress declared the amendment valid. Thus it – you'll excuse the phrasing-- "passed into law." ""

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Definitions of Bill of attainder on the Web:

legislative act declaring that a person is guilty of a crime and setting punishment without the benefit of a formal trial. The Constitution forbids the federal government (Article I, Section 9, clause 3) and the state governments (Article I, Section 10, clause 1) from passing bills of attainder.
www.historycentral.com/Civics/B.html

a legislative act finding a person guilty of treason or felony without a trial; "bills of attainder are prohibited by the Constitution of the United States"
wordnet.princeton.edu/perl/webwn

A bill of attainder (or act of attainder) was an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial. The United States Constitution in Article 1 Section 9 explicitly forbids Congress to pass any bills of attainder, while they were abolished in the United Kingdom in 1870.
en.wikipedia.org/wiki/Bill_of_attainder

Link: http://www.google.com/search?hl=en&lr=&defl=en&q=define:Bill+of+attainder&sa=X&o....
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Bill of Attainder

Definition: A legislative act that singles out an individual or group for punishment without a trial.

The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed."

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.

"Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community." James Madison, Federalist Number 44, 1788.

Supreme Court cases construing the Bill of Attainder clause include:

Ex Parte Garland, 4 Wallace 333 (1866).
Cummings v. Missouri, 4 Wallace 277 (1866).
U.S. v. Brown, 381 U.S. 437 (1965).
Nixon v. Administrator of General Services, 433 U.S.425 (1977).
Selective Service Administration v. Minnesota PIRG, 468 U.S. 841 (1984).

Link: http://www.techlawjournal.com/glossary/legal/attainder.htm
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EX POST FACTO CLAUSE - A misnomer in that actually two Constitutional clauses are involved. The U.S. Constitution's Article 1 Section 9, C.3 states: 'No Bill of Attainder or ex post facto Law shall be passed,' and Section 10 says: 'No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law. . . .'

The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action.

Link: http://www.lectlaw.com/def/e086.htm
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Ex post facto law
From Wikipedia, the free encyclopedia

An ex post facto law (from the Latin for "from something done afterward") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or to aggravate a crime by bringing it into a more severe category than it was at the time it was committed; or to change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or to alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, an ex post facto law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

A hypothetical example: someone committed a high-profile, brutal murder, but the public thinks the existing laws will not punish the murderer severely enough; so the legislature enacts laws that will more severely punish those who have committed the crime of murder ensuring that this specific murderer will get a prison sentence longer than that prescribed at the time he committed the crime.

A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali.

Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most common law jurisdictions do not permit retroactive legislation, though some have suggested that judge-made 'law' is retroactive as a new precedent applies to events that occurred prior to the judicial decision. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as parliamentary supremacy allows the parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.

Link: http://en.wikipedia.org/wiki/Ex_post_facto

[Vexari]

are you a party to the rebellion?


Fourteenth Amendment, Section 2 riddle solved; "eligible voter" takes on new meaning..

In the Dec., 2005 edition of The IO, we ran a four-page section, "The federal plantation"—a series of articles about the 14th Amendment. We began by analyzing the amendment by section. Our analysis of Section 2 was that it was very difficult to understand but its affects are seen today as roles of disenfranchised voters (those who lost the voting "privilege" for one reason or another) are growing. Following is a thorough interpretation of Section 2. What it reveals: Shocking. The extent to which we have been duped: Humbling.

[Note: It is paramount for people who intend to be free that they become "experts" in three critical areas: 1. Who we are (in both the eyes of our Creator and the state, which are two different things); 2. How our bodies work (why they get sick and what keeps them healthy) and; 3. The nature of money. Since we are encouraged to graduate from public instruction without understanding in these areas, it is our responsibility, to ourselves and our countrymen, to obtain this critical knowledge on our own. The following article, while only scratching the surface of who we are in the eyes of the state, is a valuable contribution to our ongoing education into the "hows" and "whys" things have gone so badly for Americans. ~DWH]



By LB Bork

Introduction

The following is an advanced explanation regarding the language and intent of Section 2 of the Fourteenth Amendment.

First, the relevant part of Section 1 of the Fourteenth Amendment:

"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."

That establishes the legal fiction that all people born in the United States are "citizens of the United States" at birth. Also it establishes "dual citizenship"; this is a legal principal and/or status that did not exist in America prior to the Fourteenth Amendment.

Now Section 2 of the Fourteenth Amendment:

"Section 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."

The two sections make for a complex formula. What they do is:

1) Set forth that all people are "citizens of the United States" under legal fiction;

2) Establish new apportionment for the inhabitants of each of the several States;

3) Enfranchise the new "citizens of the United States" and;

4) Disenfranchise the state citizens.

The new body politic

In short, this formula created a new "body politic." The "state citizens" that were the members of the several States under the original constitutional system needed to be tricked into participating. This is the main or general purpose of Section 2 of the amendment.

Now, note that it was set forth by Noah Webster that an insurgent is one that breaks the law of his country or government. Here is the definition as set forth in the 1820s:

INSURGENT. A person who rises in opposition to civil or political authority; one who openly and actively resists the execution of laws. [See insurrection.]

An insurgent differs from a rebel. The insurgent opposes the execution of a particular law or laws; a rebel attempts to overthrow or change government, or he revolts and attempts to place his country under another authority. All rebels are insurgents, but all insurgents are not rebels.

The original—or de jure—political power of each state in the American union was held by each state in the original constitutional premise. This was not a power of the United States, i.e. the federal government. Each State could set its own parameters on how elections were to be held, i.e. who could vote for whatever reasons set forth. For example, the federal government had no power to mandate that women vote in any election. This was a state right held by the states prior to the Fourteenth Amendment. The premise is usurped by the 19th Amendment of the "new" constitutional system.

The political power of each state is the ultimate power which governs a country. In other words, without the consent of "people" or the body politic of any given country, there can be no government authorized to enforce laws among people.

At this time it is appropriate to define the word "country":

"COUNTRY. By country is meant the state of which one is a member.

2. Every man's country is in general the state in which he happens to have been born, though there are some exceptions. See Domicil; Inhabitant. But a man has the natural right to expatriate himself, i.e. to abandon his country, or his right of citizenship acquired by means of naturalization in any country in which he may have taken up his residence..."

~Bouvier’s Law Dictionary, 1856.

Each state in the Union is, therefore, more accurately characterized as a country.

Now, recalling the term insurgent above, a rebel endeavors to put his country under new authority. Again, the political power of a country is held as the ultimate power. This is inherent in the states via the people, not the federal government. Again, no people, no consent; hence no law can be established by a government. Voting is convincing evidence of consent: If you vote in elections you ascribe legitimacy to the offices of those who are elected.

Moreover, it should be noted that the Confederate forces in the so-called Civil War were not actually "rebels" as ignorant historians and federal officials commonly refer to them. This fact exists because, then and now, the United States has no lawful authority to force any state to remain in the Union, nor the authority to conquer any state. This is evidenced by citing the following definition:

Rebels. A term loosely but incorrectly applied to the Confederate Forces engaged in the Civil War. [emphasis added]

~30 Am J Rev ed lnsurr § 2

Remember, rebels have the primary purpose of turning the sovereignty of their country over to another power. The Confederate States in the War Between the States were not doing this at all: They—the states—were the power, not the United States.

Decoding Section 2

Stealthy language is ingeniously buried in Section 2 of the Fourteenth Amendment. We can "decode" Section 2 by removing superfluous language—a technique common among grammarians—to illuminate how the "inhabitants" (or de jure state citizens) of the several States were tricked into turning over their lawful political power to a new, insurgent governmental system under the "legal" operations of the Fourteenth Amendment:

"…the right to vote at any election…is denied…except for participation in rebellion, or other crime…"

Though many words have been deleted, the excerpt above contains the pertinent language buried in Section 2.

Now here is section 2 broken down for a more complete explanation:

"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."

That is setting forth that all people (or persons) in the state are going to be represented by the federal representatives. Indians are precluded as their tribes are considered separate sovereign nations and they are not party to the Constitution.

Now the next sentence:

"But when…"

The phrase "But when" is simply establishing that something is going to change from the first sentence.

Now the next part of the sentence:

"…the right to vote at any election…"

In summary it is saying: "But when the right to vote at any election..."

Now the next part of the second sentence:

"…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…"

That language can be eliminated. However, it should be understood that the officers to which they are referring are considered "insurgent" state and federal officers that are in agreement with the new U.S. citizenship (i.e. dual and/or federal citizenship). In other words, they are all willing to occupy offices within the new political system installed under the Fourteenth Amendment.

Now, here is the next part:

"…is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States…"

That sets forth the following:

1) It is denying something. What? The right to vote.

2) The right to vote is granted to who? Male inhabitants (the ones that are citizens of the United States and 21 years of age).

Remember, Section 1 states that all "persons" born in the United States are citizens of the United States. If you check the voting regulations in the states you will find that everyone must be a "citizen of the United States" to vote.

To this point we have decoded Section 2 as stating the following : "But when the right to vote at any election is denied."

Now the next part:

"...or in any way abridged…"

That part can also be eliminated. It just means that the right to vote is curtailed.

For what reason is it abridged? One reason is you cannot vote unless you are a citizen of the United States. The phrase "is denied" is sufficient in describing the action of not being able to vote.

Now, let us go over the action of why there is the denial to vote; in other words, the right to vote is denied or curtailed "…except for participation in rebellion, or other crime…"

The right to vote is denied or curtailed for these two reasons: 1) For anyone not participating in the rebellion and; 2) For anyone that is committing crimes.

That is the main part which portrays the state citizens—that are now deemed citizens of the United States—turning over the inherent political power of their states to the federal government. See the definition of "insurgent" above which portrays the definition of a rebel. The right to vote is also denied anyone who commits other crimes. In other words, anyone that commits a felony under the new system cannot vote; however, he is still represented under the assumption that he is a party to the rebellion. The state citizens involved in the rebellion are also represented for turning the political law of their countries over to the Congress.

In actuality, the last point has a hidden, dual purpose: 1) It denies anyone the right to vote EXCEPT FOR participation in rebellion; 2) It denies the right to vote (or curtails it) for committing a felony in the new governmental system, i.e. people who have a felony record today cannot vote.

In summary to this point we have: "But when the right to vote at any election is denied except for participation in rebellion."

Now let us remove "But when" as it is the factoring phrase that establishes that the representation is going to be reduced for the reason set forth (which will be explained in a moment).

This gives us: "the right to vote at any election…is denied…except for participation in rebellion."

Most people believe Section 2 would deny voting rights to those participating in rebellion. This is due to the general belief that the so-called rebels could not participate in elections of the puppet governments set up in the Southern States by the United States during Reconstruction. However, this belief requires them to unwittingly—or conveniently—leave out the word "except." Plus, this amendment affects all the states, not just those that sided with the Confederacy.

The Fourteenth Amendment is how the unlawful, insurgent, "r u m p" congress fixed things. They got the people to unwittingly turn-over the full political power of their countries to congress, i.e. the federal government.

It should also be noted that President Johnson opposed the Reconstruction Acts as unconstitutional and narrowly escaped being impeached by the "Radical Republicans" who forced their passage.

The formula completed

"…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."

The words "such male citizens" are the old or de jure state citizens who are new citizens of the United States that are participating in rebellion. Do they include the ex-slaves? That is questionable. Such "persons" were given the right to vote by the 15th Amendment. The de jure (original) state citizens—that are now agreeing to be federal citizens by voting in this system—bear (force their will on) on all state citizens that originally had the political power.

This last part is completing the reduction of representation in respect to the ones that are voting, or the ones participating in the orchestrated rebellion that overthrows the original bodies politic of the several American states.

The rebellion continues

Be advised that this is why the current system makes sure that everyone (not disenfranchised) is involved in elections. Have you noted the importance on voting today? The only justification for this insurgent/rebel governmental system to exist is to have people vote for it. All others are technically not represented; however the ones not voting are presumed to be United States citizens and are silently going along with the rebellion.

This is a complex formula. It involves the whole numbers of persons in each state, Indians who are not taxed, male inhabitants over the age of 21 and citizens of the United States.

The use of the term PERSON is used to indicate that one can be either a citizen of the United States or a state citizen (as noted at the end). It is not until we get to the word or term INHABITANT that we see that the sentence construction makes the persons aforementioned into "citizens of the United States" by their action of voting. This is referred to as an "operation of law."

The end of the formula where CITIZENS is used is where we can see that all persons may possibly not be citizens of the United States, i.e. federal citizens; but due to Section 1 there is a very strong presumption that they are such citizens; especially after taking benefits and acting as if they were "citizens of the United States" by signing state and federal government forms, etc.

A gray area is created using the term "persons," which includes many different personalities. The end of the sentence describes what the Fourteenth Amendment does to the de jure bodies politic: State citizens—de jure citizens (or persons)—are disenfranchised.

The following question/answer will clearly illustrate the legal concept indicated above:

Q: If you are in no way employed by, a shareholder of, or in business with, the General Motors corporation, does it’s body politic have any direct authority over you?

A: NO. You are not part of that corporation.

So, how can the corporation named the United States have power over you if you are not a member of its body politic?

Also, the United States—in the internal sense—is not a nation. It breaches the law of nations, hence, the members of the falsely created nation cannot be under a body politic government, but are under a body politic corporate.


What the 14th accomplished

Though not specifically addressed in this article, there is overwhelming evidence to strongly suggest that an illegally-seated congress did not properly ratify the Fourteenth Amendment. For more information on the political skullduggery behind the Reconstruction Acts and passage of the 13th, 14th and 15th amendments, follow the links at the end of this article or consult the books indicated.

Regardless of the provable illegality of the Fourteenth Amendment, its passage replaced state supremacy with federal supremacy and turned state citizens into federal citizens, completely reorganizing the political system as guaranteed by the Constitution and Bill of Rights as ratified.

Here is what sections 1 and 2 of the Fourteenth Amendment accomplished upon being recognized as "ratified":

1) Section 1 makes all people in the United States (the several states) citizens of the United States, i.e. federal citizens (see federal citizenship).

2) Section 2 sets up a legal fiction that all persons (or inhabitants) are represented by Congress. This includes all people living in the several states, including ex-slaves.

3) Section 2 enfranchises citizens of the United States, but not the ex-slaves; on its face this is done with the 15th Amendment.

4) Section 2 gets "state citizens" to participate in rebellion which in turn gives consent to a new political system installed by an illegally-seated Congress (the United States).

5) Section 2 disenfranchises state citizens of the several States.

6) Section 2 ultimately sets forth that the only ones represented in this new government are the ones voting and not committing crimes (under the presumption that the ones committing crimes are U.S. citizens).

Conclusion

The people of the United States of America are not under the principals of the original constitutional system. The current governmental system is an unlawful fraud. The only way it has authority is through the legal operations of the usurpers’ Fourteenth Amendment. The current government can only represent people that support it by voting; and the de facto-insurgent states can only regulate "its" citizens by private statutory law. These people are in rebellion against the republican system that was in place prior to the War Between the States. Accordingly, this is why the de facto Supreme Court says things like this:

"In this country, the law in effect in all but a few States until mid-l9th century was the pre-existing English common law... It was not until after the War Between the States that legislation began generally to replace the common law." ~Roe v. Wade, 410 US 113

LB Bork of Wisconsin is the author of "The Red Amendment" and hosts the People’s Awareness Coalition (PAC) website at www.pacinlaw.org. The Red Amendment is an analysis of the Fourteenth Amendment that is available through the website. Also posted to the site are articles on legal fictions, the relationships between sovereigns and subjects, the corporate nature of the United States, historic documents proving the illegality of the Fourteenth Amendment and essays seeking to unravel the terms used to define our existence and relationships to political entities. You can also write the PAC at PO Box 313, Kieler, WI 53812

Another excellent analysis of the criminal activities that led to the passage of the Fourteenth Amendment is "The Phantom Fourteenth" by Patrick Henry Omlor (2003, 60 pp., softcover) . Copies are available for $13 each (incl. s/h) by calling [phone] or by ordering online at www.phantomfourteenth.com.

Mortgage=Death pledge

Laypeople communicate with one another using words we define and understand within the context of common usage. Let’s call this language "Webster’s Dictionary English."

When laypeople are talking to lawyers/judges/legislators, they may be saying things that sound like Webster’s English, and we may be hearing them in Webster’s English, but they are using a completely different language we will call "Black’s Law Dictionary English."

This is one of the ways the working people of America are being systematically stripped of their rights—and dignity—by opportunists who develop no callouses on their hands while playing word games with our lives.

To become adept at determining when someone is speaking to you in Black’s while pretending Webster’s, get a Black’s Law Dictionary and start looking up words in common usage. You will be amazed.

Another way to investigate the language is to locate a dictionary of word origins and start looking up words. You will find that many Black’s definitions are more closely tied to word origins than definitions of common, contemporary Webster’s usage. You will also find that both Webster’s and Black’s definitions of words have origins eerily related to their contemporary usages.

An example to trigger your interest in this subject is the word "mortgage." We understand mortgages in contemporary terms as contracts whereby we purchase real property over time. In feudal days, when an impoverished heir (the eldest son of a noble) wished to borrow money, he would sign a pledge to pay the debt when he inherited the estate upon his father’s death. This arrangement was called a "mortgage." Mort = death; gage (of Teutonic origin) = pledge. Together they become "death pledge."

Today the most common way for people to buy property is over time, through usurers who force us to sign complicated contracts we benignly refer to as mortgages.





We have been taught to believe that the "Civil War" was fought by the Union to free the negro slaves and that the Fourteenth Amendment was passed to lawfully acknowledge their newly-won equality by amending the Constitution. The following excerpt proves that the intent of the Fourteenth Amendment was more comprehensive. It also supports the notion that the "revolted" states were being used to compel all the states to accept the provisions of the Fourteenth Amendment (federal supremacy) as a condition of acceptance in the new Union.

Consent to this condition?

"In the first place, we ask that they will agree to certain changes in the Constitution of the United States; and, to begin with, we want them to unite with us in broadening the citizenship of the Republic. The slaves recently emancipated by proclamation, and subsequently by Constitutional Amendment, have no civil status. They should be made citizens. We do not, by making them citizens, make them voters,—we do not, in this Constitutional Amendment, attempt to force them upon Southern white men as equals at the ballot-box; but we do intend that they shall be admitted to citizenship, that they shall have the protection of the laws, that they shall not, any more than the rebels shall, be deprived of life, of liberty, of property, without due process of law, and that "they shall not be denied the equal protection of the law." And in making this extension of citizenship, we are not confining the breadth and scope of our efforts to the negro. It is for the white man as well. We intend to make citizenship National. Heretofore, a man has been a citizen of the United States because he was a citizen of some-one of the States: now, we propose to reverse that, and make him a citizen of any State where he chooses to reside, by defining in advance his National citizenship—and our Amendment declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." This Amendment will prove a great beneficence to this generation, and to all who shall succeed us in the rights of American citizenship; and we ask the people of the revolted States to consent to this condition as an antecedent step to their re-admission to Congress with Senators and Representatives."

~ The Reconstruction Problem, speech by Rep. James Blaine (R-Maine), Skowhegan, Maine (August 29, 1866)

Blaine was a Radical Republican who ultimately lost his bid for the presidency in 1876 to Rutheford B. Hayes amid accusations that he used his office to profit from railroad deals.

--------------------------------------------------------------------------------

The Idaho Observer
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Link: http://proliberty.com/observer/20060519.htm

[bartermania]

The Squalid 14th Amendment
by Gene Healy

SEC. 1. 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.

SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. – Fourteenth Amendment to the US Constitution

Political decentralization and individual liberty: the two are intertwined, but the former doesn't guarantee the latter. As Americans discover every day, the government that's closest to you is often in the best position to put the screws to you. How should libertarian political theory deal with the problem of oppression by local sovereigns? In the American context, this question translates to: What should libertarians think of the Fourteenth Amendment?

It's a question without an easy answer. Classical liberals of good faith have found themselves on either side of the issue. Thus, Lord Acton, following the Confederacy's defeat, wrote to Robert E. Lee: "I saw in States' Rights the only availing check upon the absolutism of the sovereign will.... Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization." But by the late 20th century, libertarians have come full circle on the question of states' rights and the Fourteenth Amendment. Today, the libertarian orthodoxy holds that the Fourteenth Amendment perfected the Framers' design, fulfilling the promise of the Declaration of Independence. Further, the promoters of the new orthodoxy urge that the amendment be given robust application against the states, in order to secure our natural rights to life, liberty and property.

On this question, no one is more orthodox than Roger Pilon, Director of the Cato Institute's Center for Constitutional Studies. In him, Cato has an able advocate, one who provides a valuable counterweight to a New Right jurisprudence that overvalues majoritarianism and views the judicial branch as the gravest threat to our liberties. Unfortunately, Pilon's case for the Fourteenth Amendment is deeply flawed. His case for the political legitimacy of the amendment requires him to ignore the circumstances of its inception; and his case for the amendment's efficacy as a means of securing individual liberty depends on a Panglossian view of judges and federal supremacy. The defects in Pilon's arguments should prompt libertarians to reexamine the new orthodoxy on the Fourteenth Amendment.

Ratification "at the Point of the Bayonet"
Throughout Roger Pilon's published work, the watchword is "consent." We come out of the state of nature, so the myth runs, the better to secure our natural rights. The government we institute derives its just powers from the consent of the governed. "That, and only that, is the source of their legitimacy," Pilon tells us in Economic Liberties and the Judiciary. Though Pilon concedes that unanimous consent is a fiction, he suggests that the Framers did a tolerably good job in requiring broad consent for the adoption of our Constitution and in the procedures for its amendment. In a recent Cato Institute Policy Analysis paper, "Reviving the Privileges or Immunities Clause," Pilon and coauthor Kimberly C. Shankman write: "the supermajoritarian consent that was required for constitutional ratification and amendment...served, as far as practically possible, to legitimately institute government, authorize its powers, and change those powers."

Quite properly, given his emphasis on consent and legitimacy, Pilon has repeatedly excoriated the political branches for arrogating to themselves powers that the people never delegated through Article V's amendment process. In their Cato paper, Pilon and Shankman apply similar scorn to the judicial branch for ignoring the Fourteenth Amendment. They recount the story of the 1873 Slaughterhouse Cases, which "effectively eviscerated" that amendment's Privileges or Immunities Clause. The authors spare no venom in decrying "judicial resistance to popular will," which thwarted "the course that...the American people had meant the Court to follow."

But somewhere along the way, the true history of the Fourteenth Amendment's adoption has disappeared down a memory hole. When one reviews that history, it becomes clear why Pilon and Shankman prefer to discuss the amendment in the abstract, antiseptic terms of social contract theory. An "immaculate conception" account of ratification suits their argument better: the real story's a little too dirty for the kids.

We return to 1865. As the legally reconstituted Southern states were busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated Congress refused to seat Southern representatives and Senators. This allowed the remaining, rump Congress to propose the Fourteenth Amendment, consistent with Article V's requirement of a 2/3 majority for sending a proposed amendment to the states. Never mind that Congress also clearly violated that Article's provision that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate."

Though the Northern states ratified the Fourteenth Amendment, it was decisively rejected by the Southern and border states, failing to secure the 3/4 of the states necessary for ratification under Article V. The Radical Republicans responded with the Reconstruction Act of 1867, which virtually expelled the Southern states from the Union and placed them under martial law. To end military rule, the Southern states were required to ratify the Fourteenth Amendment. As one Republican described the situation: "the people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet."

President Andrew Johnson saw the Reconstruction Act as "absolute despotism," a "bill of attainder against 9,000,000 people." In his veto message, he stated that "such a power ha[d] not been wielded by any Monarch in England for more than five hundred years." Sounding for all the world like Roger Pilon, Johnson asked, "Have we the power to establish and carry into execution a measure like this?" and answered, "Certainly not, if we derive our authority from the Constitution and if we are bound by the limitations which it imposes."

The rump Republican Congress overrode Johnson's veto and enacted statutes that shrank both the Supreme Court's appellate jurisdiction and the Court itself – just in case the judicial branch got any funny ideas of its own about constitutionalism. Jackboot on its neck, the South ratified, but not before New Jersey and Ohio, aghast at Republican tyranny, rescinded their previous ratifications of the mendment. Even with the fictional consent of the Southern states, the republicans needed New Jersey and Ohio to put the amendment over the top. No matter; by joint resolution, Congress declared the amendment valid. Thus it – you'll excuse the phrasing-- "passed into law."

Link: Link: http://www.lewrockwell.com/orig/healy1.html