Clearly, you and I disagree about the text speaking for itself.

We shouldn’t rely on any person who says “X” means “Y”. That person cannot speak for others. Moreover in this case as Nieporent points out, we cannot agree on what Bingham said. Finally in this instance, your interpretation makes the 14th’s P&I redundant with Article IV’s P&I.

jrose: Are you arguing each state could decide for itself how the law treats P&Is (protecting some and abridging others), and need only apply this treatment equally to black and white men? The text clearly contradicts such a claim, instead prohibiting any state from abridging P&Is.

P&I’s were inserted for one reason: Remove alienage among citizens of different states. P&I’s have nothing to do with citizens of a State within their own state, hence, why Bingham said before and after the adoption of the 14th amendment: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

A state could say a black child cannot be educated in a white school and it would be no violation of the 14th amendment. Bingham’s own state had such a law and he fond it to be no violation of the 14th.

Are you arguing each state could decide for itself how the law treats P&Is (protecting some and abridging others), and need only apply this treatment equally to black and white men? The text clearly contradicts such a claim, instead prohibiting any state from abridging P&Is.

jrose: OK. What then was the common understanding of the phrases “privleges and immunities”, “due process” and “equal protection”.

Just what they said it meant during the debates: Proceedings in the administration of justice. Due process and the equal protection is the same thing: A state may not deny its laws of protection in due process nor can it unequally adminster them. A very plain and simple concept.

As far as as what P&I’s were concerned, it simply meant whatever P&I a state guarantees to all men, hence, protection in life, liberty and property!

So simple.

Peter: While some of the rts listed in the CR Act of 66 were taken from corfield v coryell, the fact remains that the CR Act of 66 was more specific. It wasnt understood as including all of Washington’s rhetorical flourishes. In providing that the states could not discriminate in bestowing rts among their own citizens, the p and i clause of the 14th am was broader than the CR Act of 66.

No. The CR act of 1866 simply said states could not place a black man on a different footing than the white man in protection of life, liberty and property. The 14th amendment was not any broader than the CR act of 1866. Bingham said so himself.

OK. What then was the common understanding of the phrases “privleges and immunities”, “due process” and “equal protection”.

I could not agree more that the text speaks for itself. And the text says nothing re the bill of rights, and no clause in the text was commonly understood as incorporating the bill of rts or even fundamental rts. Live by the rule you cite.

There was no ‘winking’ in the ratification process–people on both sides expressed their understanding of the clause, after the speeches of Howard and Bingham in feb and March of 66, almost no one during the next two years, in all of the hundreds speeches and debates, on either side of the issue, expressed the claim or argued that the clause incorporated the bill of rts.

This strikes me as wrong. It’s as if we say “X”, but we all wink at each other and “know” we really mean “Y”. Put me in the camp that concludes the text needs to speak for itself and we shouldn’t trust claims made in the debates.

If being true to original common understanding is conservative, then it might be conservative to give the P&I clause a broad interpretation that is more in line with substantive due process precedent than what Peter argues for.

Actually, I can prove them. As I have previously indicated, go to Proquest, do a search of newspapers from the ratification period, and will see numerous reports re speeches of advocates of the amendment suggesting it provided a constitutional basis for the Civil Rights Act of 1866. Bingham claimed amendment would incorp the bill of rts, as did Howard, but their claims were mere drops in the bucket compared to the alternate interpretation of section 2–that it provided constl authority for the CR Act of 66. Bingham is not an obscure lawmaker, and I did not claim he was. However the sheer volume of claims that the amendment merely constitutionalized the CR Act of 66 in comparison to his claim and that of Howard makes it evident the country did not view itself as subjecting the legislatures to the bill of rights.

It is true that lawmakers could have phrased the p and i clause with the exact words in the CR Act of 66. I dont have to explain why they failed to do so, because what really matters is the understanding of the clause that prevailed in the minds of state lawmakers, advocates of the amendment and opponents of it. While the reporting we have of the debates in the legislatures is limited, the available materials show absolutely no indication that lawmakers thought they were subjecting st laws and cosntitutions to the bill of rights. Opponents of ratification utilizied every available argument, but it did not occur to them to suggest the amendment incorporated the bill of rights. Advocates of the amendment did not make that argument either. The debates of the ratification struggle were well documented in the papers, and the newspaper reports are almost competely devoid of discussion of the bill of rights during the relevant period. On the other hand, they contain numerous reports of speakers claiming the amendment would provide const authority for the CR Act of 66.

The p and i clause was understood to provide to a constl basis for the CR Act of 66. The CR Act of 66 was not understood as encompassing the bill of rts, or all ‘fundamental rts.’ There may be good practical reasons today for accepting the incorporation doctrine, but as a historical matter, the idea that Americans and st legislatures in particular viewed the 14th am as incorp the bill of rts at the time they adopted it has no validity.

Great. All you have to do is prove any of these points, which you can’t do. We have Aldridge claiming that the 14th Amendment doesn’t incorporate the BoR because we have to treat Bingham’s words as sacred text — even though Bingham explicitly said that the 14th Amendment does incorporate the BoR. And we have you arguing that the 14th Amendment doesn’t incorporate the BoR because Bingham is just an obscure lawmaker and we shouldn’t pay any attention to what he said.

It makes little sense to claim that the 14th was merely intended to constitutionalize the CRA, because if so, they could have just used the words of the CRA, instead of saying something entirely different.

Your comment re Justice Washington’s opinion is a very good point–it was hopelessly broad.

There isnt anything conservative about preserving subst due process because it is hopelessly vague and extraordinarily destructive. It has turned the federal system on its head and converted the Sup Ct into a national privy council armed with a veto power over the states.

While some of the rts listed in the CR Act of 66 were taken from corfield v coryell, the fact remains that the CR Act of 66 was more specific. It wasnt understood as including all of Washington’s rhetorical flourishes. In providing that the states could not discriminate in bestowing rts among their own citizens, the p and i clause of the 14th am was broader than the CR Act of 66. However it was not understood as endowing the fed cts and Congress with authority to ensure that sts respected all ‘fundamental’ rts. This is why advocates of the 14th am were able to deny that amendment bestowed a rt of suffrage upon blacks.

The p and i clause was understood to provide to a constl basis for the CR Act of 66. The CR Act of 66 was not understood as encompassing the bill of rts, or all ‘fundamental rts.’ There may be good practical reasons today for accepting the incorporation doctrine, but as a historical matter, the idea that Americans and st legislatures in particular viewed the 14th am as incorp the bill of rts at the time they adopted it has no validity.

It may well be the case that Article IV’s P&Is are nothing more than a guarantee that a state not treat another state’s citizens as aliens, thus permitting each state to define for itself what a P&I is, and implying that Article IV is silent on what constitutes a P&I. However, doesn’t it seem like the 14th set a national standard for what a P&I that requires definition?

Or, we could just be conservative, respect precedent, and agree the P&I clause is a dead letter (and instead analyze substantive due process).

If indeed Washington’s view of “privleges and immunities” was the commonly undertstood meaning, it seems to me to be rather broad (“in their nature, fundamental … which have, at all times, been enjoyed by the citizens of the several States which compose this Union,… the enjoyment of life and liberty … to pursue and obtain happiness and safety”).

That doesn’t sound to distant from the fundamental rights analysis used in substantive due process, even possibly mimicking “deepy rooted in this Nations’ history”.

Peter: The fact remains that there is a broad understanding of the meaning of the 14th amendment’s terms that can be gleaned from the newspapers of the period. And that broad understanding is that it constitutionalized the CR Act of 66.

Exactly. The civil rights act of 1866 did not protect the citizens of a state from themselves but from discrimination of United States citizens as was the case of President Johnson’s pupet governments he set up in former rebel states.

“It does not prohibit you from discriminating, between citizens of the same race, or of different races, as to what their rights to testify, to inherit, etc., shall be. But if you discriminate, it must not be “on account of race, color, or former condition of slavery. That is all. If you permit a white man as an infidel to testify, so you must a colored infidel. Self–evidently this is the whole effect of this first section. It secures not to all citizens, but to all races as races who are citizens––equality of protection in these enumerated civil rights which the States may deem proper to confer upon any races.” –Samuel Shellabarger

If Johnson never set up governments in the former rebel states without consulting congress there never would had been a 14th amendment.

Allan Walstad: !00% nonsense. Sounds like you overdosed on propaganda from Saul Cornell.

Woman could not “bear arms” but they owned guns of all sorts and used them. You had to once pledge to “bear arms” to become a citizen of the United States.

What is that nonsense you are talking about there? :-)

I hate to pick nits, but it sounds like you’re saying, “Courts should only overturn precedent when they have enough votes to do so.” Isn’t this self-evident?

That’s obviously the first half. The second half is that when a dissenting Justice does not have the votes, he should apply the precedent as it is, not as he wishes it to be.

If Thomas would overturn Tucker v. Des Moines (Tinker maybe?), then in cases applying First Amendment precedent (say the right to religious beliefs), should he dissent/concur or join with the majority of the Court?

He should apply Tucker as faithfully as he can to the particular facts, notwithstanding his belief that Tucker is itself incorrect.

If he dissents or concurs based on the idea that Tinker v. Des Moines should be overturned, but disagrees or agrees with the result otherwise, where is the harm?

The harm is that he evinces a lack of respect for his colleagues and for the Court as an institution.

Let me rephrase what I mean: in a case that does not present the question “Should XXX be overruled” (usually because there’s no chance of such), every Justice should treat XXX as good law. The Court is not shy about asking the parties to brief whether to overrule a precedent (see, e.g. Citizens United v. FEC) but when it’s not on the table, it’s not on the table.

The 14th in its entirety was not intended merely to provide a constl basis for the CR Act fo 66. The p and i clause of the 14th was. The fact remains that when section two of the amendment was described during the ratif process, the most common description of its purpose–by far–was that it would provide a const basis for the CR Act of 66. It was often described as protecting the civil rts of blacks. To go home from the phrase, ‘civil rts’ to incorp the entirety of the bill of rts doesnt hold water either.

I am not certain why Congress didnt just use the language of the CR Act in the amendment, obviously they wanted broader language. However, the phrase ‘p and i’s’ had a clear meaning among lawyers–the meaning Justice Washington gave to the original p and i clause in corfield v. coryell. the rights he assigned to it, ie access to seaports and fed offices, did not include anything in the bill of rts.

This claim troubles me.

Firstly, if the 14th was to be no more than a constitutionalized version of the CR Act of 66, why didn’t its text match that of the statute. Secondly, the commonly understood meaning of “privleges and immunities”, “due process”, and “equal protection” could not have been limited to the CR Act.

The fact remains that there is a broad understanding of the meaning of the 14th amendment’s terms that can be gleaned from the newspapers of the period. And that broad understanding is that it constitutionalized the CR Act of 66. While two lawmakers claimed the p and i clause incorpd the bill of rts at the time Congress debated the measure, these claims were lost in the deluge of speakers claiming that it did much less than that. Speaker after speaker across the country, as indicated in the newspapers of the period, claimed that the amendment merely constitutionalized the CR Act of 66 (no discr by states in alloting priveleges). And despite the law review articles cited in the brief in heller, claims that the bill of rts was incorpd were mere drops in the bucket compared to the alternative view. The claim that somehow everyone understood that the p and i clause incorpd the bill of rts is hogwash, as is the claim that the country’s ‘silence’ in the face of the claims of the two members of congress re incorporation somehow constitutes consent. Opponents threw everything at the proposed amendment but the kitchen sink, ie claiming it would enfranchise blacks, but no one thought to warn that it would subject the sts to the bill of rts.

The wording of the 14A is rather broad if this is all that it did. I have read various accounts, including those from one or more members of this very blog, of the ratification process, and more than that was at issue. Many did argue “privilege or immunities” of national citizenship included those found in the BOR.

Some — included when talking just about the 13A — spoke about how freedom brings forth various rights over family life, including control over how many children you have. Many people at the time thought such intimate matters none of the state’s business and would be shocked if the state got involved.

I would think, yes, some would be shocked it let’s say the rhythm method was banned. Or, banning physicians to discuss the matter to a woman who might have a health problem.

“Birth control” means any number of things. So, yes, states would have at the time clearly understood they had some power to regulate in that area.

Anyway, “no one” was the standard. And, yes, some at the time promoted the right to family planning. The “free love” movement etc. This is in part why Mr. Comstock and others had to push for laws against sending such information over the mails. And, why some were upset, and thought in part their 14A rights were being violated.

Some even spoke in “right to privacy” language. Even the state in Griswold argued that some birth control methods were still possible.

My recollection is that the 14th amendment was understood as providing a constitutional basis for the Civil Rights Act of 1866 at the time it was ratified. EP clause was understood as allowing Congress to punish persons participating in lynchings when sts would not; p and i clause was understood as barring sts from discriminating against their black citizens on the basis of race (in the rts they granted), and DP clause was understood as a guarantee of procedural rts, ie jury trials, confronting hostile witnesses, etc.

If you go to proquest and do a search of newspapers during the 1866-68 period for “Bill of Rights” and “ratification,” or “amendment” you find nothing. Or almost nothing. On the other hand, you will find scores of speakers claiming the second clause of the amendment constitutionalized the CR Act of 66.

Felix Frankfurter?

Frankfurter strongly believed in deference to legislatures. That was jrose’s second definition.

Oren: My point is not about what the Court should do with precedent that it finds unpersuasive, but what an individual Justice should do about such precedent. If a Justice lacked 5 votes to overturn Swift, despite his reservations about it, he should give it full force of law.

I hate to pick nits, but it sounds like you’re saying, “Courts should only overturn precedent when they have enough votes to do so.” Isn’t this self-evident?

If Thomas would overturn Tucker v. Des Moines (Tinker maybe?), then in cases applying First Amendment precedent (say the right to religious beliefs), should he dissent/concur or join with the majority of the Court? If he dissents or concurs based on the idea that Tinker v. Des Moines should be overturned, but disagrees or agrees with the result otherwise, where is the harm?

Either you’re making a very obvious point or a very fine one that isn’t readily apparent. Could you clarify?

jrose:

“Conservative”

It could mean narrow decisions that respect precedent.
It could mean deference to the elected branches.
It could mean fidelity to original meaning or intent.

Or better yet, maybe a conservative applies principles (some consistent combination of the above or other methods) such that the results do not just happen to correspond with his/her policy preferences?

Felix Frankfurter?

Oren: The Justices are, in fact, allowed to communicate (this isn’t one of those bizarre riddles). They can simply ask.I’m sure everyone on the Court knows that Thomas would overturn Tucker v. Des Moines. I’m sure that he knows that not a single other Justice would vote with him. That’s what I mean about “time to move on” — an acknowledgment that despite his disagreement, Tucker is good law and will continue to be good law and that he ought to faithfully apply it to current cases until such time as it ceases to be good law.

I guess what I’m confused about is what “he ought to faithfully apply it to current cases” means in practice, considering that Supreme Court justices don’t do much application on their own. Do you mean, for example, that Justice Thomas should never write dissents based on his disagreement with Tucker v. Des Moines?

J. Aldridge: Its all about a state arming its citizens as part of the military power of the state. It forbids congress from taking away this military power.

!00% nonsense. Sounds like you overdosed on propaganda from Saul Cornell.

It could mean narrow decisions that respect precedent.
It could mean deference to the elected branches.
It could mean fidelity to original meaning or intent.

Or better yet, maybe a conservative applies principles (some consistent combination of the above or other methods) such that the results do not just happen to correspond with his/her policy preferences?

What was the meaning of the 14th at the time it was ratified with regards to prohibiting states from abridging individual rights?

If the 14th was not understood at the time it was ratified as barring the states from banning birth control, then interpreting the amendment for that purpose defeats the purpose of writing the amendment in the first place. Abolish Congress and the legislatures and make the Sup Ct the sole legislative body in the US. Under the law in every state contracts are interpd according to the intent of the parties, and laws are interpd according to intent of drafters. Policy reasons may exist that require taking a looser approach with constitutions, but those policy reasons, if they exist, make the written law dead law and replace the democratic process with the intent of judges. Why bother having amendments ratified and argue over their meaning at the time they are ratified (or rejected) if their interpretation is not going to be governed by the understanding of them possessed by those who ratified it?

Allan Walstad: That four justices would try to turn 2A into a dead letter is truly disgusting. The notion that Stevens was holding to the original meaning in that effort is absurd.

The 2A has always been a dead letter when it comes to a state and its own citizens! Has absolutely nothing to do with state citizens and firearms. Its all about a state arming its citizens as part of the military power of the state. It forbids congress from taking away this military power.

I always thought ‘judicial conservative’ meant a judge/justice who is careful about dramatic change in the law and respectful of precedent.

But, Orin suggests this was only true in the ‘60s and ‘70s. I take the implication to be that ‘judicial conservative’ now means ‘politically conservative judge/justice.’

Is this correct (I mean in legal circles, not talk radio)?