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IPFS News Link • Bill of Rights

Is The Fourteenth Amendment Good?

• http://mises.org-Allen Mendenhall

On the one side are those who praise the amendment for circumventing the power of the states to prejudice, police, regulate, or otherwise use force to impose discriminatory laws on their citizens. On the other side are those who, while acknowledging the problematic nature of state misconduct and wrongdoing, are not willing to condone the transfer of power from states to the federal government, and in particular to the federal judiciary.

The divide comes down to one's views on federalism, i.e., on the balance or separation of the state and national governments.

The first and fifth sections of the Fourteenth Amendment are the most controversial. Section One consists of the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause, and Section Five bestows on the US Congress the authority to enforce the amendment legislatively. These provisions have vested increased powers in the national government, allowing federal courts to bring states into compliance with federal laws regarding certain individual rights — or alleged rights.

The United States Supreme Court in Barron v. Baltimore (1833) held that the Bill of Rights — the first ten amendments to the US Constitution — bound only the federal government and not state governments. Through the Fourteenth Amendment, which was officially ratified in 1868, the United States Supreme Court and inferior federal courts have gradually "incorporated" most of the provisions of the Bill of Rights to apply against the states. The federal government has thereby empowered itself to bring state governments into compliance with provisions originally intended to restrain only federal abuses.


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