I am writing to inform you that the links I provided in my comment (Dan Goodman December 19, 2009 6:19am), two entries up, no longer work. The new locations for them are:

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FOOTNOTE

The Effects of the Fourteenth Amendment on the Constitution of the United States

http://www.australia.to/2010/index.php?option=com_content&view=article&id=327

Also,

A Look At Corfield (On Citizenship)

http://www.australia.to/2010/index.php?option=com_content&view=article&id=331

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There is also the following which I think would be appropriate.

Comment on Petitioner’s Brief: McDonald v. City of Chicago

http://www.australia.to/2010/index.php?option=com_content&view=category&layout=blog&id=91&Itemid=126

http://www.americanchronicle.com/articles/view/136777

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I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:

    “We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.

And:

    “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.

The last was later reaffirmed in Cole v. Cunningham:

    “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

    “In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:

http://citizenoftheseveralstates.webs.com/index.htm

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FOOTNOTE

The Effects of the Fourteenth Amendment on the Constitution of the United States

http://www.australia.to/index.php?option=com_content&view=article&id=15882

Also,

A Look At Corfield (On Citizenship)

http://www.australia.to/index.php?option=com_content&view=article&id=16868

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1929?

Solomon Grundy: Hey, if we can suddenly find a new right in the Second Amendment after 200 plus years, why the heck can’t we revisit the P/I clause? Con Law classes would be a lot duller if the SCt didn’t change the rules every so often.

What 200 years? We only lost the right about 80 years ago.

Aliens could lose big-time.

They get strict scrutiny against the states under Due Process and Equal Protection, zippo under P&I. Since P&I itself excludes aliens, it would be much harder to argue that the 14th Amendment intended to prohibit states from treating them differently.

I agree that they might lose out to some extent. But it’s not quite as bad as you suggest since they still get DP and EP under the 14th A (both apply to “persons”).

They get strict scrutiny against the states under Due Process and Equal Protection, zippo under P&I. Since P&I itself excludes aliens, it would be much harder to argue that the 14th Amendment intended to prohibit states from treating them differently.

I submit it was when believers (Dem and Repub) in big government realized libertarian principles might be attractive to too many people, and so decided to smear libertarians instead of engaging their ideas.

There is absolutely no evidence for libertarianism being “attractive to too many people”. In fact, the evidence is overwhelming to the contrary. Unless you mean less than 5% of the population as “too many”.

I’m curious about how this meshes with our conservatism v. activism discussion in the open thread. It seems that you allow the Court less leeway in declaring what its own previous rulings mean than in declaring what the Constitution means. The Court says that the takings clause was incorporated in Chicago Burlington & Quincy.

A fair question, though I suppose I could turn it around on you in the same way.

My suspicion is that the Court simply made a mistake (though it’s possible there was a deliberate fudge of the point). The substantive question — the incorporation of the Takings Clause — isn’t in doubt, so all that’s left is the explanation. If that explanation ever becomes the substantive issue in a case (it sometimes does) and the Court reaffirms it with full briefing, we can re-visit the issue.

To see this, it helps to realize exactly what life the brief aims to breathe into the Privileges or Immunities clause.

It breaths no life into the P&I argument for the simple reason it was universally understood the P&I’s of United States citizens had no application towards citizens of their own state.

It is not a P&I for someone within another state to claim a right to own a gun.

Mark Field: No, I don’t think it has to go that far though, in all other cases it has used that language AFAICR. Even in Palazzolo and First Lutheran, it does use those exact phrases (near enough), it just backdates the “incorporation” to a time when it didn’t actually happen. I’m just noting that backdating.

I’m curious about how this meshes with our conservatism v. activism discussion in the open thread. It seems that you allow the Court less leeway in declaring what its own previous rulings mean than in declaring what the Constitution means. The Court says that the takings clause was incorporated in Chicago Burlington & Quincy.

Is your position that a case doesn’t actually incorporate a provision of the Bill of Rights unless it actually uses the words “made applicable to the states by the 14th Amendment” or “incorporated against the states by the 14th Amendment”? Because that’s not the approach the Court itself takes when referring to Chicago Burlington & Quincy, Gitlow, etc.

No, I don’t think it has to go that far though, in all other cases it has used that language AFAICR. Even in Palazzolo and First Lutheran, it does use those exact phrases (near enough), it just backdates the “incorporation” to a time when it didn’t actually happen. I’m just noting that backdating.

Thanks Mark. I just added that point to my article. You are quite right, and it seems the Supreme Court sub silentio kinda incorporated the takings clause there.

You’re certainly welcome (and very gracious too). I’m glad blog comments serve some real world purpose besides annoying our hosts.

xqqme: Did the citzens of the United States Territories, by becoming citizens of a State formed from said territories, forfeit or extinguish their constitutional rights?

Nope. Let’s take the example of states admitted after the adoption of the Constitution but before the adoption of the 14th Amendment. Say Kentucky. Before statehood, Kentuckians had a right to be free of Congressional infringement of their freedom of speech under the 1st Amendment. After statehood, they had the same right. The fact that a new level of government was created, bound by a separate constitution, did not serve to forfeit or extinguish that right. But that doesn’t mean that the new government necessarily had the same powers and limitations.

Mark Field: Ok, the case I had in mind was Palazzolo v. Rhode Island, though in that case (as previously First Evangelical Lutheran Church), the Court did cite to Chicago Burlington & Quincy as “incorporating” the 5th, which it manifestly doesn’t do. Scalia signed on to both Palazzolo and First Evangelical. The way I’d read it is that one of these two cases actually incorporates the Clause. I think Scalia gets away with agreeing to incorporation because the Court pretends that it already had happened.FWIW, I have no problem with incorporating the Takings Clause; I think the Court was right to do so. I just think Scalia shouldn’t get to duck the issue.

Is your position that a case doesn’t actually incorporate a provision of the Bill of Rights unless it actually uses the words “made applicable to the states by the 14th Amendment” or “incorporated against the states by the 14th Amendment”? Because that’s not the approach the Court itself takes when referring to Chicago Burlington & Quincy, Gitlow, etc.

Mark Field: Ok, the case I had in mind was Palazzolo v. Rhode Island, though in that case (as previously First Evangelical Lutheran Church), the Court did cite to Chicago Burlington & Quincy as “incorporating” the 5th, which it manifestly doesn’t do. Scalia signed on to both Palazzolo and First Evangelical.

Thanks Mark. I just added that point to my article. You are quite right, and it seems the Supreme Court sub silentio kinda incorporated the takings clause there.

In Heller, the court ruled that the 2nd Amendment did indeed apply to the federal government. Illinois, and most of the current states were not in existence at the time of the adoption of the Constitution, but were at some point, federal “territories”.

As territories, under the ruling in Heller, the 2nd would apply to those citizens, and they would indeed be citizens of the United States. The quandry comes from this question:

Did the citzens of the United States Territories, by becoming citizens of a State formed from said territories, forfeit or extinguish their constitutional rights?

I always wondered when it became acceptable to equate libertarians with anarchists.

I submit it was when believers (Dem and Repub) in big government realized libertarian principles might be attractive to too many people, and so decided to smear libertarians instead of engaging their ideas.

Libertarians are no more anarchists than Democrats are socialists or Republicans are fascists. Being in favor of less government intrusion is not the same as being in favor of no government at all.

Not according to the Gura brief. His view of government power lets it enforce private contracts. That’s about it.

d) “Natural rights which are those rights common to all men, and to protect which, not to confer, all good governments are instituted.” (p.24) (quoting Bingham)

e) Rights that “are not and cannot be fully defined in their entire extent and precise nature.” (p.25) (quoting Howard)

Please tell me what government can do that doesn’t violate one of those two principles. Very, very little.

Not “classical anarchy” maybe but certainly anarchy-lite.

FWIW, I have no problem with incorporating the Takings Clause; I think the Court was right to do so. I just think Scalia shouldn’t get to duck the issue.

I pray that you and she are both right about him.

So sure, Lochner was not an absolute rule that would strike down any possible government interference with any possible contract. My point was that if Orin is correct that some Justices would see a newly-invigorated P & I jurisprudence as re-invigorating Lochner that would logically lead them to reject that approach, because even your version of Lochner — laws banning yellow dog contracts and minimum wage laws, e.g., violate the Constitution — is not where they want to go or where they should want to go.

FWIW, I don’t have an informed opinion as to whether that actually is what the justices think, or whether the P & I approach actually would lead there.

Mark, do you know which case Scalia supported the incorporation of the Takings Clause. In my research, I focused on cases where the Court actually considered incorporation, but I did not find cases where Scalia may have mentioned it in dicta.

Let me give a longwinded answer by way of explanation. I phrased my original question somewhat oddly, not because I was being coy but because the Court never has made a definitive statement to the effect “we hereby incorporate the Takings Clause”. Instead, sometime around 2000, they simply stated that the Clause had been incorporated. Scalia signed on to at least one of these opinions, but I’m going to have to find it for you.

no relation: Doug Kendall is in favor too. He believes that Roe should have been resolved on alternate grounds — and that P or I is the vehicle for that (and other stuff, like ssm).Thomas may be inclined to overturn Slaughterhouse, but he is unlikely to buy into the expansive vision advocated by the brief.

Constitutional Accountability Center (Kendall’s group) represented several Fourteenth Amendment scholars in encouraging the Court to overturn Slaughterhouse. You can read our materials (briefs, and a report, entitled “The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment“) here.

Regarding Kerr’s analysis of the P or I Clause’s prospects before the Court, it is not dissimilar from what Kendall and David Gans wrote in The Gem when they acknowledged that making such significant changes to constitutional law entails “risks and uncertainties, as well as rewards,” for both sides of the Court. The problem with Kerr’s analysis, however, is that it doesn’t take into consideration the fact that the Court actively chose to address this question of overturning Slaughterhouse. The Court had two cert. petitions to chose from regarding Second Amendment incorporation — one by the NRA, one by McDonald (Gura’s) — and only the latter discussed P or I. The City of Chicago took the extraordinary position that the Court should grant cert. in the case, but only on the due process question, not the P or I question. The Court, however, chose to grant only in McDonald, to hold the NRA’s petition, and to reject Chicago’s suggestion to narrow the question presented. It is difficult to square the fact that the Court did all this with Kerr’s suggestion that there will be little interest in overturning Slaughterhouse beyond Thomas.

Mark Field: Prof. Bernstein is correct on all counts. The reason I raised the issue is that I believe Justice Scalia has, in fact, supported the incorporation of the Takings Clause, though perhaps quite subtly.

I stand corrected Prof. B and Mark. Mark, do you know which case Scalia supported the incorporation of the Takings Clause. In my research, I focused on cases where the Court actually considered incorporation, but I did not find cases where Scalia may have mentioned it in dicta.