The original intent of the American Constitution is open to wide interpretation. The Constitutional interpretation is based on the Founding Fathers intentions with respect to Freedoms that are defined as the sole legitimate premise from which the constitution was written. One of the primary questions is what the Founders intended “as the proper relationship between religious expressions and public life, whether in education, law, government, or throughout society in general, is clearly documented in their numerous writing on this subject” (Barton 2016, 27). The development of the Constitution required a different thought process, strategy, and a specific set of ideologies and principles.
The Constitution’s meaning is to be found in the history of interpretations and constitutional law rather than what the Framers originally had in mind. The Framers’ first words were suggestive but not definitive, and it is fair to note that there is no last word. Therefore, the original intent and interpretation of the Constitution remain an open-ended and continuing process. The political and legal authority of the Constitution was understood to be founded on the idea of popular sovereignty, wherein some sense the people themselves had adopted the Constitution as the “supreme law of the land” (U.S. Constitution). The Founding Fathers were great statesmen as they saw the necessity of writing, building, and enabling a system that did not lead to tyranny. Often a statesman is referred to someone “who takes his orders directly from God”. The use of Scripture was used in the development of the Constitution. The Constitution begins with the language “Blessings of Liberty” and “do ordain and establish” and ends with the words “in the Year of our Lord September 17, 1797” (Dreisbach 2011, 402).
The rule of law, public interests, and Divine purpose are drawn from the Bible. The Constitution is the highest law, and the three branches of government are bound by its terms and limitations. The underlying principle of the American political and legal system.is also bound by the law, not by an individual person or one political party. The Founding Fathers “gave formal recognition to certain traditionally accepted natural rights, hitherto incorporated in the English charters, colonial grants, and state bills of rights” (Kelly 1991, 119) The direct and indirect reference to religion within our founding documents inherently shows the Founding Fathers were Christian and placed their beliefs within the public interest and Divine purpose. “Not surprisingly, both influential and ordinary citizens drew on biblical language, ideas, and themes in thinking and talking about the political challenges that confronted them” (Dreisbach 419). There is little doubt that America was founded upon Christian values from our Founding Fathers within their own words and lead us to the foundation and guiding principles upon which the Founding Era concluded.
Most Significant Change to Constitutional Order
The U.S legal system belongs to the family of common law jurisdictions, including Commonwealth countries, although the common law is subordinate to the Constitution, statutes enacted pursuant to it, and the doctrines of constitutional law developed by the courts (Zelizer and Schulman 2009). The federal courts are courts of “ordinary” jurisdiction and consider cases involving statutory and regulatory interpretation routinely along with constitutional cases (Ibid). There have been several alterations that were made to constitutional order since the inception of the Constitution, the most significate being the Fourteenth Amendment.
The Fourteenth Amendment “was ratified on July 9, 1868 and granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed. In addition, it forbids states from denying any person ‘life, liberty or property, without due process of law’ or to ‘deny to any person within its jurisdiction the equal protection of the laws” (loc.gov). The Fourteenth Amendment extended the protection of the Constitution to persons whose fundamental rights were violated by state and local governments. This altered the system of federalism and is the only one example of the key significance of federalism to constitutional development. In addition, the Fourteenth Amendment gave the Constitution its first definition of citizenship, often known as “birthright citizenship”, an antidiscrimination guarantee “equal protection of the laws”, was included that was to be great importance in the twentieth century, and Congress acquired the power to enforce these new rights (Ibid).
The impact of the Fourteenth Amendment, including its flexibility and broad application, could not have been foreseen by its authors nor by those who fought for or voted for its ratification. For instance, the Due Process Clause in the 14th Amendment was used to apply the Bill of Rights to the states, so that all levels of the government must ensure due process of the law (Tulane.edu) This is monumental, but it was not its only long-term impact, as the Fourteenth Amendment continues to be at the forefront of all civil rights discussions; its Equal Protection Clause became the foundation of the Civil Rights Movement. The “Civil Rights Movement first spawned a number of politically organized and active groups seeking to promote better economic and social conditions for blacks, then spun off “by way of osmosis and highly contagious analogical thinking” various groups to promote the political aims of other “oppressed groups”; women, Indians, Chicanos, white ethnic groups, students, homosexuals, the handicapped, the elderly, and many others, all previously not directly represented as such to an important extent in American Politics” (Higgs 1987, 249).
In understanding the Fourteenth Amendment’s original intent, it is important to understand that the United States did not have a formal immigration policy in 1866. The issue of children born in the United States to parents who were not United States citizens but who were citizens of other nations was not an issue that the drafters of the Amendment even perceived as an issue to be addressed (Franklin 2014). Those individuals were not deemed to be United States citizens. Thus, the issue on the minds of the drafters was what to do about the slaves who were born within the United States at a time when the parents were slaves owned by citizens of the United States (Ibid). Senator Howard, a Republican from Michigan who was elected in 1861 after serving as the Attorney General in Michigan for several years, and who worked on the Fourteenth Amendment, explained the intent for the Fourteenth Amendment was:
”This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country” (The Congressional Globe 1866, 2890).
What is clear from the legislative history is that Congress was focused specifically on addressing the issue of establishing citizenship for those individuals who had been born in the United States of parents who were not subject to the “jurisdiction” of any other nation (Franklin 1039). The specific intent was to declare that the freed slaves, many of whom were being denied recognition as citizens in some states, were by constitutional amendment citizens of not only the United States but also of the state within which they resided. Nothing in the amendment was intended to grant or recognize citizenship to any individual born in America of parents who were “subject to” the jurisdiction of another nation as the debate over the status of Indians and other examples made clear (1039-1040). Within a few years of the ratification of the 14th Amendment, the United States Supreme Court addressed the scope of its declaration of citizenship. In what is referred to as the “Slaughter-House cases”, 83 U.S. 36 (1873), the Court described the limited purpose of Section 1 of the 14th Amendment: “The first clause of the fourteenth article was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States, and citizenship of the States, and it recognizes the distinction between citizenship of a State and citizenship of the United States by those definitions” (U.S. Supreme Court)
The Fourteenth Amendment, when read in light of its time and the issues on the minds of its drafters, was intended to make clear that whatever civil rights and federal protections of those rights were enjoyed by “white citizens” as of 1866 and thereafter were equally applicable to those being reclassified as natural-born citizens by the Amendment (Epps 2007, 446). It also dealt with issues of how congressional representation would be adjusted, the capacity of Confederate officials to continue in public service and the validity of both the Northern and Confederate war debts. The Fourteenth Amendment was not intended to create new rights that had not previously existed. It was clearly not intended to vest some vague authority in the Judiciary to craft from the heavens whatever rights, privileges or interests a handful of judges felt should exist but did not exist as a matter of a simple, layman’s reading of the words in the Constitution.
There is evidence that the founding fathers believed that the Constitution should be permanent and unchanging over the decades if not centuries to come, given that it contained the lasting principles by which government should be conducted (Hamburger 1989, 87). They anticipated a few changes would be necessary, and this argued in favor of a multi-level process designed to make the process of amendment relatively difficult to preserve the permanent character of the Constitution. (88). Although changes in the Supreme Court’s decisions may be caused by issue change and by changes in the behavior of individual justices, membership change is generally regarded as the most obvious, measurable, and important source of change in constitutional law and judicial policymaking (Baum 1992, 40). Presidents, in particular, seek to shape constitutional law and judicial policymaking by selecting new appointees whose votes and persuasiveness on the Court are expected to move decision making in directions that comport with the chief executive’s values and policy preferences.
“The ratification of the Fourteenth Amendment has been responsible for reshaping the face of civil rights in America through such key rulings as Brown v. Board of Education, Roe v. Wade, and Obergefell v. Hodges” (Durkee 2018). The Fourteenth Amendment, and its broad nature, has been interrupted in varies ways that has hindered as well as advanced American’s rights. Within each Administration, the Fourteenth Amendment could impact several political issues that may find their way to the Supreme Court. We have seen this with abortion, LGBTQ rights, as well as immigration cases within the recent administrations. “The Fourteenth Amendment has been the foundation of our ongoing efforts to make America a more inclusive nation of equal opportunities and responsibilities. It is a cornerstone of our economic success, social cohesion, and political influence around the world” (Ibid).
References
- Barton, David. (2016). Original Intent: The Courts, The Constitution, and Religion. 6th ed. Aledo: Wallbuilder Press.
- Baum, Lawrence (1992). The United States Supreme Court. 4th ed. https://archive.org/details/supremecourt00baum. Accessed 26 April 2020.
- Deisbach, Daniel L. “The Bible in the Political Rhetoric of the American Founding.” Politics & Religion 4, no. 3 (2011): 401-427. Political Science Complete, EBSCOhost. Accessed 26 April 2020.
- Durkee, Alison (2018). “The 14th Amendment turns 150 today, but its legacy in Supreme Court Rulings is now uncertain.” Accessed 28 April 2020. https://www.mic.com/articles/190182/the-14th-amendment-turns-150-today-but-its-legacy-in-supreme-court-rulings-is-now-uncertain
- Epps, Garrett (2007). “Interpreting the Fourteenth Amendment: Two Don’ts and Three Dos”. 16 William. & Mary Bill Rights. Accessed 26 April 2020. https://scholarship.law.wm.edu/wmborj/vol16/iss2/3.
- Franklin, Paul. (2014). “Original Intent and the Fourteenth Amendment: Into the Black Hole of Constitutional Law. Chicago-Kent Law Review. Volume 89, Issue 3 (June 2014). Accessed 26 April 2020. https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4048&context=cklawreview
- Garraty, John A. (1987). Quarrels that have shaped the Constitution. New York: Harper & Row.
- Hamburger, Philip A. (1989). The Constitution’s Accommodation of Social Change. Accessed 26 April 2020. https://scholarship.law.columbia.edu.
- Higgs, Robert (1987). Crisis and Leviathan: Critical Episodes in the Growth of American Government (Independent Studies in Political Economy).
- Kelly, Alfred H, Winfred A. Harbison, and Herman Belz. (1991) The American Constitution: Its Origins and Development. 7th ed. Vol 1. New York: W.W. Norton.
- Zelizer Julian E. and Bruce J. Schulman (2009). The Constitution and Public Policy in U.S. History. State College: PSU Press.
- History of Law: The Fourteenth Amendment. Accessed 26 April 2020. https://employment.law.tulane.edu/articles/history-of-law-the-fourteenth-amendment
- The Congressional Globe. 39th Congress, 1st Session; May 23, 1866. Accessed 26 April 2020. http://www.ij.org/images/pdf_folder/Privileges_or_Immunities/howard-may-23-1866.pdf
- The Constitution of the United States of America. Accessed 26 April 2020. http://constitutioncenter.org/media/files/constitution.pdf
- The United States Supreme Court. Slaughterhouse Cases, 83 U.S. 36 (1872). Accessed 26 April 2020. https://supreme.justia.com/cases/federal/us/83/36/
- The 14th Amendment to the U.S. Constitution. Accessed 26 April 2020. https://www.loc.gov/rr//program/bib/ourdocs/14thamendment.html
