I am writing to inform you that the links I provided in my prior comment (Dan Goodman December 19, 2009 5:42am) 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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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    “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State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

____________

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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First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.

But then someone, like a justice on the court, would read House Report No. 22 authored by Rep. Bingham and approved by the House for printing in 1871 that would leave your arguments in flames.

Allan Walstad: Righting an obvious wrong that was done to the Constitution shouldn’t be a conservative vs liberal thing.

You’d think so, but remember that Heller was a 5–4 vote, so it’s not at all obvious to 4 of those members that a total ban on firearms like the one in D.C. violates the constitution.

Therefore any approach designed with the current court in mind would only seek to woo the 4 conservatives and Kennedy and totally ignore what the 4 liberals think, since they would oppose any second amendment rights whatsoever, no matter what the constitution says or does not say.

If your goal is to argue for a means to re-interpret the privileges and immunities clause, it seems to me that arguing that it encompasses a broad range of “natural rights” isn’t the way to go. There’s just too much unknown.

Rather than arguing for a broad interpretation, why not simply assert that the privileges and immunities are those specifically enumerated in the Constitution itself? The right to keep and bear arms (however you interpret the actual text) is a privilege for US citizens set forth in the constitution. Likewise, the immunity from self-impeachment in the 5th amendment is an immunity specifically provided for citizens of the US. They’re privileges and immunities not because they inherit from some abstract historical notion of rights, but because our nation has defined them to be privileges and immunities, a class that are so fundamental as to be extended to all citizens without abridgement by the states.

That limits the impact of the ruling. You aren’t opening a Pandora’s box of natural rights interpretation. You’re simply saying — the Constitution says citizens have certain rights, and states may not infringe upon those specific rights.

No idea how much water that holds, legally speaking, but it seems logical to me. It would overturn Slaughter House in a moderate way that wouldn’t topple the judicial apple-cart completely. That’s much easier to sell to the SCOTUS than a broad “anything goes” interpretation.

I think you’ve touched on a deeper debate that likely won’t be answered in this thread. Is Originalism a policy preference, an interpretive standard, or perhaps both? And if it is both, is that necessarily bad for your views on policy to be informed by a certain interpretive approach?

I agree that that debate goes far beyond this thread. My only comment before I let it drop is that I think liberals and conservatives both do themselves a disservice if they talk about how well an interpretive standard will support their policy preferences. If you believe in a standard, you should be willing to accept the bad with the good. JMHO.

Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes.
***
So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals

But what about the fifth vote? Kennedy voted with the majority in Casey, so “this will help undermine Roe” is going to hurt you in your quest to count to five. It’s also going to kill any hopes of winning any of the liberals.

And Kennedy also loves free-floating liberty interests:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Lawrence v. Texas, 539 U.S. 558, 568–69 (2003).

Mark Field: After all, a true originalist wouldn’t worry about what future liberals might do (a policy preference), s/he would worry about whether future judges might depart from originalism and in what ways (an interpretive standard).

I think you’ve touched on a deeper debate that likely won’t be answered in this thread. Is Originalism a policy preference, an interpretive standard, or perhaps both? And if it is both, is that necessarily bad for your views on policy to be informed by a certain interpretive approach?

I suppose it is ironic if you view Originalism as a mere fig leaf for judicial preferences.

That wasn’t what I meant. Your first comment seemed to use originalism as method of fixing your personal preferences regarding policy. IOW, I read your comment as doing exactly what critics of originalism argue. After all, a true originalist wouldn’t worry about what future liberals might do (a policy preference), s/he would worry about whether future judges might depart from originalism and in what ways (an interpretive standard).

What exactly in the language of the Fourteenth Amendment or subsiquent jurisprudence involving it makes you assured that the P&I clause should only be construed as protecting only those liberty interests that were considered protected as of 1868?

The short answer is there is nothing in the Constitution itself which imposes such a limit.

The Bill of Rights was clearly intended to protect individual liberty from federal usurpation. Extending it to the states properly protects against usurpation of individual liberty by the states. There is no “liberty” to use the government as an instrument of robbery against one’s fellow citizens, and therefore no Constitutional “right” to, e.g., healthcare at others’ expense. Of course, a future court could indeed “recognize” such a non-existent right, just as the courts have done all sorts of things to undermine the Constitution. Nothing new there.

Gene Hoffman: Please articulate how a “right to healthcare” can’t be found via substantive due process? Pre-Roe and Roe cases give plenty of stare decisis.At least in a P or I world, doctors have economic rights to oppose government mandates.–Gene

Gene,
As I read Glucksberg, the current substantive due process test for locating unenumerated rights, a right to health care, defined at that level of abstraction, would not be “deeply rooted” in our Nation’s histories and traditions. 20 years of Roberts and Rehnquist Court jurisprudence reigning in SDP has made it difficult to recognize new rights.

However, if you read some of Balkin’s work, as well as other essays in the Constitution in 2020, you will see arguments made that a right to equal education, a right to a stakeholder society (Bruce Ackerman) and other positive rights all fall under Privileges or Immunities.

At least in a P or I world, doctors have economic rights to oppose government mandates.

–Gene

Mark Field: Am I the only one who sees irony

Mark,
I suppose it is ironic if you view Originalism as a mere fig leaf for judicial preferences. I don’t see it quite that way. In my mind, adhering to the Original meaning of the 14th amendment is the least subjective way the Justices can resolve this case. While in many cases, it may reflect the views of the Conservative Justices (especially in the case of guns), I do not think that is the same thing as saying Originalism merely enacts the Judge’s personal views.

Mark Field:
The short answer is there is nothing in the Constitution itself which imposes such a limit. All arguments for how to interpret the Constitution, whether liberal or conservative, rely on factors outside the text itself.

I agree entirely with this point. I do not think my approach, or any approach, is compelled by the Constitution. But, for Justices who profess to be Originalists, and interpret the Constitution according to Original Meaning (however defined), I would like for the Justices to do so consistently. And the P/I case is a prime example. Looking at the meaning in 1868 is one way to analyze it, and a method that comports with my understanding of originalism.

What exactly in the language of the Fourteenth Amendment or subsiquent jurisprudence involving it makes you assured that the P&I clause should only be construed as protecting only those liberty interests that were considered protected as of 1868?

The short answer is there is nothing in the Constitution itself which imposes such a limit. All arguments for how to interpret the Constitution, whether liberal or conservative, rely on factors outside the text itself.

There are, however, a number of prior cases which suggests that the Court will limit the extent of the rights it chooses to protect. The Glucksberg case, already mentioned, suggests one approach. Another can be found in the case of Carolene Products. All such approaches rely on the value of precedent and persuasion.

“President Obama has the potential to totally transform the Judiciary. A future court could easily recognize a constitutional right to positive rights such as health care or social equality. Thus, we propose that the Court look to rights held as privileges or immunities during the time of Reconstruction, and not an evolving standard of rights (as articulated in Balkin’s work, and the Constitution in 2020 Project). If the Conservative majority takes a stand now, they can preserve an originalist jurisprudence for the forseeable future. If they punt, and let future Courts handle this, they are just waiting for Pandora’s Box to be opened.”

with this:

“Such an approach lends itself too easily to revealing a Judge’s personal views.”

Allan Walstad: The last thing I’d do is appeal to conservatives’ desire to undermine Roe. Then you’re sure to earn the liberals’ determined opposition. At best it’s a distraction.

Sure. Does anyone think there are five votes on the Court now for overturning Roe? If not, how does it help your client to include “as this case goes, so goes Roe” type arguments in most of the major points in your brief?

I would try to craft an argument that would appeal to the Court’s four conservatives...

I think that would be a big mistake, especially if incorporation of 2A would win under due process anyway. Righting an obvious wrong that was done to the Constitution shouldn’t be a conservative vs liberal thing. The last thing I’d do is appeal to conservatives’ desire to undermine Roe. Then you’re sure to earn the liberals’ determined opposition. At best it’s a distraction.

Blue Neponset: What are the chances that the liberal members of the Court outflank the conservatives by ruling in favor of incorporation and opening up the Pandora’s box mentioned above? Perhaps the anti-gun crowd should look at this case as an opportunity rather than a challenge.I’d certainly trade the right to own a .50 caliber sniper riflein NYC for the the right to health care.

Blue Neponset,
This is a very valid concern, and I think it underscores the importance of Conservatives, both in the academy and on the Bench, of taking Privileges or Immunities seriously, and not discounting it like Orin does.
But, even if the Liberals do not out-flank the Conservatives in McDonald, the next case, or perhaps the case after that, could open the box and constitutionalize a health care. For that reason, the Conservatives on the Court today should set up an originalist framework, like Washington v. Glucksberg. Unless the Court in the future totally rejects that framework, at least future Progressive Justices would at least be somewhat cabined in recognizing rights.

Shouldn’t that be the other way around? You mention failure to give adequate weight to the police power as one of the failings of DPC incorporation, but the police power belongs to the states, not the feds.

Perhaps the anti-gun crowd should look at this case as an opportunity rather than a challenge. I’d certainly trade the right to own a .50 caliber sniper rifle in NYC for the the right to health care.

Cato The ElderWhy couldn’t a liberal Supreme Court justice, for example, 10 years from now, make up a positive right to healthcare using the enduring persistance and overwhelming positive approval of the Medicare program as evidence?

Cato,
Putting aside arguments about originalism, and how law obtains its validity, to highlight the difficulties of citing public opinion polls, look no further than Kennedy v. Louisiana. In this case, Justice Kennedy found a national consensus that states no longer executed those who raped, but did not murder a child. After the case, the Court learned that they neglected to mention a UCMJ statute that Congress had recently enacting setting the death penalty for such a crime.
If the Court was not able to figure out a national consensus among 50 or so state statutes, how can we expect the Court to figure out a national consensus among polls? What percentage of the populace need be in favor of a provision to make it constitutional? 50% 75% 100%?

Such an approach lends itself too easily to revealing a Judge’s personal views.

Except in respect to jury provisions.

As to how P/I will avoid Roe, tricky business that. This is underlined by how various supporters of the P/I approach take just the opposite view. The right of newly freed slaves over their family life was deemed fundamental by many, including choices when or when not to have a child.

Slaves did not have such rights. Invasion of such basic privacy horrified many as much as not having weapons to protect those who would violate such privacy. To ignore this might be useful for the lawyers involved, but others would be less willing to do so.

You seek to appeal “not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.” This is precisely the tact we take.

The Court today more-or-less has 5 solid votes for incorporation. But as Justice Stevens and Ginsburg leave the Court, and Justice Scalia and Kennedy age, President Obama has the potential to totally transform the Judiciary. A future court could easily recognize a constitutional right to positive rights such as health care or social equality. Thus, we propose that the Court look to rights held as privileges or immunities during the time of Reconstruction, and not an evolving standard of rights (as articulated in Balkin’s work, and the Constitution in 2020 Project). If the Conservative majority takes a stand now, they can preserve an originalist jurisprudence for the forseeable future. If they punt, and let future Courts handle this, they are just waiting for Pandora’s Box to be opened.