The Fourteenth Amendment & the Great Debate, Essay Example

The Supreme Court has taken on an extraordinary role. It has become the final policy maker of The Nation.  The narrow aim of those who framed the 14^th Amendment was to permit blacks to enter into contracts and own property. The amendment also forbids oppression by authorizing legislation to criminalize unequal punishment of blacks. The three clauses of the amendment include, Privileges or Immunities, Due Process of Law, and Equal Protection Under the Law. What was not included in the amendment was suffrage, or any mention of giving control of criminal, civil administration in the states to the court. This is very ironic, considering that is what the amendment has been expanded to cover. The due-process clause and the incorporation doctrine have been manipulated to by the Supreme Court to assume unconfirmed powers in a way that many argue is unconstitutional.

In Thomas McAffe’s article, “The Federal System as Bill of Rights: Original Understandings, Modern Misreadings,” he argues the common view of the Fourth Amendment on the surface is very different, when he states that, “Conventional wisdom maintains that the Fourteenth Amendment has been a major success. After all, the Equal Protection Clause was the basis for the constitutional revolution that ended racial segregation and began the movements for equal rights for African Americans and women (Chemerinsky, 1143).”  All of these positive factors make the Fourteenth Amendment appear in a light that is almost righteous. One might view questioning its validity, correctness, or authority, almost the same as heresy.  There are undoubtedly major benefits that this amendment has contributed to society, but as McAffe goes on to further note, “In the modern era, we have almost completely lost track of the relationship that the Framers of the United States Constitution perceived between the structure of our federal system and the protection of popular rights (McAffe, 1).” He is referring specifically to the incorporation debate as it relates to due process of law.

The incorporation debate revolves predominantly around the question of whether or not the framers of the Fourteenth Amendment meant for it to be applicable to states as well as citizens. Due Process if beyond a doubt one of the most humane and influential pieces of legislation,

Section1 of the 14^th Amendment specifically states 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 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.

Here the one line of applying legislation to the states by preventing them from exercising certain judgments, if those judgments infringe on Due Process of law. This small detail would mean the rights and freedoms allocated to citizens would also be applicable to corporations as well. Due process is a powerful piece of legislation. It was written to ensure that certain inalienable rights are protected. Very often when someone mentions a certain freedom and say that it’s protected under the Constitution, the Due Process Clause is to what they are referring. As Chemerisnky notes, “Fundamental freedoms, such as the rights to marry, procreate, purchase and use contraceptives, obtain abortions and raise children, are protected as part of the liberty safeguarded by the Due Process Clause (Chemerinsky, 1143).” These freedoms apply to individuals, but respectively the Federal government uses the constitution to enforce these laws on a state government level, even though it does not mention anywhere in the constitution that the Supreme Court has this authority.   The question is should the Federal government be able to execute and apply legislation.

In sum, the unconstitutional way in which the Supreme Court has taken advantage of the Fourteenth Amendment has led to major a major debate throughout history.  Is incorporation theory correct that certain clauses of the Fourteenth Amendment are as applicable to states as they are to citizens? Should a corporation have all the same rights of a citizen? Should the Federal government be able to interfere with state law? These are questions that have been debated off and on for the past 140years, and people will continue.

Work cited:

McAffe, Thomas B. “The Federal System as Bill of Rights: Original Understandings, Modern Misreadings.” Villanova Law Review. 43.17 (1998): n. page. Print.

Chemerinsky, Erwin. The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise. HeinOnline, 1991. Print.

Corwin, Edward S. The Supreme Court and the Fourteenth Amendment . 7. Michigan: The Michigan Law Review Association, 1909. Print. <http://www.jstor.org/stable/1271815>.