After the Civil War, the Radical Republicans attempted to guarantee black citizens in the south equal rights with the white majority. They put three constitutional amendments on the books, but were voted out of power in 1868. Shortly after, the Supreme Court ruled that the federal government had no police power, and had no authority to enforce the Bill of Rights. The Bill of Rights was solely a limitation on the power of Congress, but did not bind the actions of the states. This Supreme Court ruling allowed the southern states to impose government sponsored white supremacy.
The core of this ruling was the nullification of the privileges and immunities clause of the Fourteenth Amendment. Certain rights, according to the philosophy of Locke and others, are natural rights granted by God. These rights existed prior to and independent of the Constitution. As the Fourteenth only binds on the states rights established by the Constitution, the states are free to infringe rights established by God.
This is pure sophistry, a logical game played to justify racist intent. It isn't even good sophistry. The privileges and immunities clause specifies that all rights of the citizens are protected, regardless of whether the right is established by the Constitution, Locke, God, or Marx.
In the 20th Century, the Supreme Court got around this racist nullification of the privileges and immunities cause using the due process clause. Various elements of the Bill of Rights have been one by one 'incorporated' into the due process clause, thus binding the states to honor the federal rights. More recently, the Supreme Court referenced the privileges and immunities clause, restoring it to the Constitution. It is possible that the Court might restore the Fourteenth into something close to its original meaning.
They should not have the choice. I would insert one word to make the intent clear, and to puncture the sophistry. The following changes should not be necessary. The intent of the founding fathers should be clear. Still, it should not be left to the Supreme Court to decide if a given right applies during a given decade.
Blue indicates current wording. Red italics indicates proposed insertion into existing wording.
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. No State shall make or enforce any law which shall abridge the Rights, 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.
Another part of the Supreme Court's neutralization of the XIVth Amendment was denial of federal police power, or Congress's power to write laws protecting the rights of the people. Federal police power shall be addressed elsewhere. I would suggest an additional change.
Article One, Section 8. The Congress shall have the Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof, and to protect and enforce the Rights, privileges and immunities of the People.
The hot issue on this one is the Second Amendment. The changes listed above are intended to make the states honor the Federal Bill of Rights, which was the intent of the post Civil War Radical Republicans. Part of their intent was to arm the blacks. In granting the states the power to disarm blacks in the Jim Crow south, the racist 18th Century Supreme Court lay the groundwork for the slow nullification of the Second Amendment.
It would be really nice to have the written meaning of the Bill of Rights match the court precedents. However, many gun control advocates favor the existing precedents that interpret the Second as a right for the states to raise troops. (This common interpretation is in direct contraction to the Constitution's ban on state troops without consent of Congress.) I am hoping US v. Emerson might reestablish the written meaning of the Second Amendment. With the exception of an individual rights interpretation of the Second, there would be little disagreement that the Bill of Rights should be binding upon the states.
While we are on the Second Amendment, might we define and limit the powers of Congress to control access to weapons?
Congress shall have the power to register, tax and require permits for weapons uniquely suitable towards criminal use, but shall write no law regulating, taxing, requiring permits for, nor otherwise restricting ownership, keeping and bearing by stable law abiding citizens of full size shotguns and rifles optimized for hunting or target use, nor full sized side arms as typically used to enforce the law and to protect self or community, nor for full size weapons used as individual arms by light infantry.
The intent of the founding fathers was that the Militia would have arms equal to the standing armies. I believe their intent would be to protect state of the art infantry rifles, such as the current M16. I'm not sure this is entirely wise. Full sized large magazine fully automatic weapons might reasonably be included among those Congress might register, license and tax, but might not be able to ban. Note, the above does not grant Congress the ability to ban any weapon. One might wish to to change the Second Amendment wording "shall not be infringed" if one intends an outright ban of specific weapons types. It is possible that "shall not be infringed" might be weakened as part of a constitutional convention as long as the right to keep and bear some minimum set of weaponry is guaranteed.
The repeated use of "full sized" in the above proposal is intended to allow registration, tax and licensing of more concealable weapons types particularly suitable for criminal use, such as the short barreled junk handguns, sawed of shotguns, or submachine guns.
The other problematic amendment to the Constitution is the Ninth.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Bill of rights specifically lists many rights, but other rights that existed in colonial English common law were not mentioned. The Ninth established that just because a right isn't listed, this does not imply such rights are not valid and protected. One such is the freedom to travel. The courts properly folded this right into our precedents, regardless that it isn't specifically listed in the Bill of Rights.
Another such old English common law right protects women from government interference in family and reproductive decisions. This became the basis for Roe v Wade. Yes, there was an old common law tradition that the government can't meddle with family planning decisions. Roe v Wade is not an unreasonable decision. However, it is an example of the recent liberal tendency to "invent" new rights.
The Civil Rights decisions allegedly contain other examples of "invented rights." There would be decisions to be made in revisiting the civil rights court cases, and establishing or denying the rights "invented" by the courts. Is there a right for a child to be educated? If a service is being provided, may that service be denied or diluted on account of gender, race or age? Before we pull the plug on the 'invented' rights, which among them should be explicitly set in stone?
The Supreme Court has been bitterly divided between conservative strict interpretation of written law and liberal extensions of government protection of the rights of the people. It might be argued that the Ninth has been used to invite examination of old common law cases, with judges writing legislation from the bench to echo dated decisions. The opposite argument is that the liberal "invented" rights are in large part a return to old English common law, a return to the way things were before the Jim Crow courts repealed the Bill of Rights. Congress was not given a specific enumerated power authorizing meddling with family planning. Having babies is not a form of interstate commerce. Let's search the precedents for the rights that we truly need, implement them clearly, then pull the plug on additional invented rights. Let the courts be courts, the legislatures be legislatures.
The problem is Roe v. Wade. We cannot have a specific and exhaustive list of rights without deciding the extremely contentious abortion issue. My own inclination is to grant women an immunity from government interference in family decisions until the child is viable. I can honor and understand religious disagreement, but freedom of religion implies the government should not enforce such religious convictions. Each individual should have a right to resolve such deeply felt moral and religious decisions without outside interference.
Unfortunately, as long as the abortion conflict remains unsettled, a definitive and finite set of rights seems unlikely. Would the conservatives allow women's reproductive freedom to stand in exchange for language making it much more difficult for additional new rights to be invented? If not, the make up of the courts could keep shifting as the presidency changes hands, with the meaning of the Constitution changing radically as a result.
Rights - Powers - War - Jury