Institute on the Constitution: Post-Civil War Amendments Helped Undo The Bill Of Rights

(Note correction regarding the National Religious Broadcasters below…)

Those following my posts on the Institute on the Constitution may have noted that I have only once critiqued the content of the course being offered on Thursday nights at 8pm (ET) on the National Religious Broadcasters network.  There are two reasons for this. One, I think Michael Peroutka’s affiliation (board member) with the League of the South and his stated purposes for the course (support the League and prepare people for secession or something like it) are enough to warrant concern. The second reason is that the videos are not available for embedding on the blog. The NRB and IOTC have has rejected my requests for permission to clip relevant portions of the sessions. Thus, it makes clear presentation of the problems more difficult. (Correction: I asked the NRB for permission to clip relevant portions of the IOTC sessions and they informed me that the network does not have the authority to provide such permission since the network does not own the content. I apologize to NRB for misrepresenting their position).

In fact, I have many concerns about the content of the course.  Generally, Peroutka repeats many of David Barton’s mistakes. For instance, Peroutka insists that the First Amendment only applies to Christian sects.  He quotes James Madison out of context to attempt to prove this and he relies on Joseph Story’s opinion as the last word on the subject. He doesn’t cite other evidence which contradicts his thesis.  I have addressed this topic elsewhere. In fact, elsewhere in Story’s commentaries on the First Amendment, he specifically said that “the Catholic and Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.” Jews and Infidels were not considered to be sects of Christianity. Peroutka does not cite this section of Story’s commentary.

Last Thursday (session eight), Peroutka began discussing the Bill of Rights and has a curious view of the relationship of the post-Civil War amendments to the Bill of Rights. Peroutka contrasted the Bill of Rights with amendments 13 and following. Concerning those amendments, Peroutka said:

All of those [amendments] acted to break down the walls and expand federal power. They actually helped to undo the work of the bill of rights; to undo the first ten amendments.

While there is a sense in which some amendments may do this (giving Congress power to use legislation to give effect to the amendment), it is also true that the slavery amendments applied the Bill of Rights to millions of newly freed slaves.

Here is the text of the 13th Amendment:

SECTION 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SECTION 2.

Congress shall have power to enforce this article by appropriate legislation.

It is hard to imagine how this amendment undid the Bill of Rights. If anything, the promises of the Bill of Rights were extended to more individuals.

I will be watching to see what other concerns Mr. Peroutka has with the other post-Civil War amendments. Given this talk at a meeting of the Maryland League of the South by Peroutka’s IOTC senior instructor and pastor, David Whitney, I suspect he will take a dim view of at least the 14th Amendment.

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  • alkali

    One could reasonably argue that the Ninth and Tenth Amendments were substantially undercut by the Reconstruction Amendments. For example, to the extent that the Ninth and Tenth Amendments could be read to protect individual rights to own slaves and states’ power to enforce the legal institutions associated with slavery — and I think that’s a plausible reading — they no longer did so after the Thirteenth Amendment was passed. Of course, I think that’s an entirely salutary development.

  • alkali

    One could reasonably argue that the Ninth and Tenth Amendments were substantially undercut by the Reconstruction Amendments. For example, to the extent that the Ninth and Tenth Amendments could be read to protect individual rights to own slaves and states’ power to enforce the legal institutions associated with slavery — and I think that’s a plausible reading — they no longer did so after the Thirteenth Amendment was passed. Of course, I think that’s an entirely salutary development.


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