I had a feeling my post predicting the votes on the Privileges and Immunity argument in McDonald v. City of Chicago might draw a disapproving response from Randy, and I see it did. Based on past experience, I gather Randy’s questions directed to me are rhetorical questions designed to defend Randy’s view of the Constitution, not ones asking for my response. But I did want to open a comment thread on the issue in case our commenters wanted to weigh in.
(Oh, and I should be clear that I think McDonald will win on the Due Process argument, perhaps by 7 or 8 votes; I just don’t think more than one Justice is on board for the P or I stuff, especially given that it’s not necessary to even reach the issue to decide this case.)
Doc Merlin says:
OUCH! Burn! I have to say though. Gura was going to do a very standard selective incorporation defense, but they specifically asked him to a brief on “privileges or immunities.”
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November 18, 2009, 11:11 amDebauched Sloth says:
As Randy indicates, the tenor or Orin’s post is that it was unwise for Alan to focus his brief on the P or I Clause because it is unlikely that five Justices can be counted on to candidly engage the actual text of the Constitution, put aside their personal anxieties and predilections, and simply decide the case based on their best understanding of what the words of the Fourteenth Amendment actually mean.
As I suggested in another post, that strikes me as not only a really sad commentary on the Court, but the very essence of judicial activism to boot. Yuck.
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November 18, 2009, 11:14 amJohn says:
Also, the NRA is a party (a respondent in support of petitioner), and its brief focuses on the standard selective-incorporation arguments. The boldness of Mr. Gura’s brief makes more strategic sense when viewed as part of a tag-team effort with the NRA.
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November 18, 2009, 11:19 amBarnett v. Kerr on McDonald v. Chicago. A fun little tussle is brewing on Volokh today. « Josh Blackman's Blog says:
[...] posted an open thread, which should yield some interesting [...]
wesley says:
Why couldn’t there be a narrow reading of the P or I clause that would get five votes to incorporate only the right to bear arms? I’m not convinced: that Scalia is attached to reliance interests more than persuasive textual readings; that Roberts and Alito would view overturning Slaughterhouse as “revolutionary”; that the liberal justices will take such a political view of Gura’s brief (I mean I’m not sure they’ll read it as an attempt to resurrect Lochner when they can read it just as easily as an attempt to incorporate a single provision of the Constitution that will probably be incorporated anyway).
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November 18, 2009, 11:39 amCH says:
NRA work with someone? Since when. Remember, they tried to sandbag Heller.
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November 18, 2009, 11:43 amMark Field says:
I find this an odd definition of “activism”. What Gura’s brief is asking the Court to do is overrule longstanding precedent and adopt a broad view of rights which the courts will protect. I’d describe the Justices who reject this approach as legal conservatives, the very opposite of “activist”. It’s Gura’s argument which I would describe as “activist”.*
*For the record, I lean to Gura’s side. But let’s call it for what it is.
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November 18, 2009, 11:49 amChris Newman says:
I think you’re copping out. Here, let me restate non-rhetorically a few questions I thought Randy was clearly trying to get you to answer:
1) Why, given your analysis of where the Court’s members are on this question, do you think they chose to grant cert on the case raising P&I instead of the one not raising it?
2) Given that (for whatever reason) the Court did grant cert on the P&I question, how would you have advised a lawyer to operationalize your realist approach to constitutional law in deciding what legal arguments to raise regarding P&I?
3) If, arguendo, we assume it to be actually true and demonstrable that at the time the 14th amendment was framed and ratified, it was widely understood to incorporate some understanding of natural rights, what role should that fact play in a Court’s construction of the clause today? Notice, I said “should,” which means I’m asking for a normative argument, not a prediction of the weather.
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November 18, 2009, 11:50 amBarrySanders20 says:
I appreciate Gura’s challenge to SCOTUS to abide by the principles they claim to champion. Of what marginal utility is another 14th A incorporation brief?
Reviving the text of the Constitution by overturning wrongly decided cases should not cause undue angst to our robed oracles, no matter the length of time these cases were allowed to fester. The argument Gura makes is completely different from the Warren Court’s expansion of rights in the 60’s– finding new rights that could never within a historical examination of the P&I clause. It is hardly a stretch to assert that the right to bear arms for personal protection was a privilege enjoyed by citizens of the United States in 1791 and was at the core of the rights sought to be protected in 1868. If SCOTUS refuses to recognize this due to political considerations, they expose — once again — that we are not a nation of laws but merely a nation of men (and strong Latina and Jewish women).
Maybe one or two will be embarassed enough to consider the argument Gura asserts.
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November 18, 2009, 11:51 amMark Field says:
“They” or “it”? Prof. Volokh would like to see your post in his thread.
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November 18, 2009, 11:52 amPubliusFL says:
Depends on whether your baseline for whether a court is “activist” is the actual constitution it’s interpreting or the court’s own previous pattern of conduct. If the latter, I guess there’s a certain logic to saying that when a historically activist court embraces activism, it’s therefore actually NOT activism.
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November 18, 2009, 11:55 amEcon_Scott says:
That Nice Mr. Gura has left the Justices No alternative.
A boy has stood forth from the crowd and shouted ” The Emperor has no Clothes”
To hold to Stare Desisis on “Slaughterhouse” will be to wipe out their reputations forever, among people of common sense, *
... and show them to all the world, for all time, to be Dupes taken in by a conniving tailor from 116 years ago.
Fools each that votes and writes to “affirm Slaughterhouse”
_______________________________________________
* (but not those of tortuous word smithing)
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November 18, 2009, 12:11 pmJ. Aldridge says:
Only if the court completely ignores (as usual) what “liberty” under due process has meant for 500 years.
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November 18, 2009, 12:11 pmkrs says:
Few things are more annoying than smug/condescending libertarians.
As for the substance, I’ll be interested to see how this plays out. The Supreme Court hasn’t had a “new” incorporation case in years. It’s easy enough to follow the old incorporation precedents, but I’m interested to see what the Justices will do when asked to apply a right against the states for the first time.
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November 18, 2009, 12:11 pmMichael Benson says:
What kind of “property” was “originally” guaranteed I wonder? Natural law theories of property, including Locke, put a variety of restrictions on property that are quite tricky to deal with. Further, Locke as secretary of the Carolina Company was quite interested in using the concept of natural law based property to justify English claims against American Indians. Since the right to property existed so that humans could cultivate land to be the most productive it could be, property that stood in the way of progress could be confiscated and redistributed to more worthy and productive owners. This argument was repeated frequently during the Early Republic, and it seems likely that the notion of property people had in mind in the 18th century was quite different from our own.
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November 18, 2009, 12:21 pmPubliusFL says:
If it were tortious word smithing, at least someone would presumably have standing to sue the justices who exhibited such bad faith. Tortoise word smithing, however, is just silly. Tortoises can’t peck at typewriter keys nearly as fast as monkeys can.
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November 18, 2009, 12:22 pmHadur says:
The point about not even having to reach the issue is cogent, I think. They are asking self-professed judicial restraint advocates (Scalia, Alito, Roberts) to make a landmark decision on an issue that is completely unnecessary to reach.
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November 18, 2009, 12:38 pmyankee says:
I think the fundamental problem with Randy’s analysis of the brief as a piece of advocacy is this:
No, it’s not his job to “faithfully report them,” it’s his job to spin them in the way most favorable to his client. He could have written a brief arguing for a narrow view of the PorI clause that incorporates the Second Amendment but otherwise doesn’t add much to the existing substantive due process analysis. But instead he wrote a brief calling for an extremely expansive reading of the PorI clause, a reading that’s guaranteed to alienate most of the Justices.
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November 18, 2009, 12:39 pmJ. Aldridge says:
Freehold.
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November 18, 2009, 12:39 pmJeffH says:
Two important things have happened since then. Gura won Heller. The Supreme Court denied the NRA’s cert petition and granted Gura’s.
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November 18, 2009, 12:43 pmJ. Aldridge says:
Bingham writing in House Report No. 22, Jan 30, 1871: The Fourteenth Amendment does not “refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two,” and the Fourteenth Amendment “did not add to the privileges or immunities before mentioned.”
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November 18, 2009, 12:52 pmguy in the veal calf office says:
What are those few things?
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November 18, 2009, 1:04 pmMark Field says:
My baseline is “where the Court is right now”. IOW, “activism” is defined as a departure from current law.
Defining it as a departure from the Constitution itself strikes me as begging the question (or alternatively, as imposing one’s own political view on the issue).
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November 18, 2009, 1:07 pmarbitraryaardvark says:
Orin: 7–8 votes for incorporation, no more than one to overrule slaughterhouse.
I think there might be more than one vote to side with plaintiffs on the P+I claim, but that does not require overruling Slaughterhouse. The NRA brief is very good on how the right to bear arms as a P+I is compatible with the holding of Slaughterhouse, narrowly construed to be about slaughterhouses and economic liberties a la Lockner.
Roberts likes unanimous decisions. Could there be a consensus on the court to incorporate, and then avoid the P +I claim? We know 4 justices supported the wording of the cert grant.
Legal realism suggests that it is in the interest of these judges to re-invoke the P+I clause, so that for the next n years the 14th amendment means whatever they say it does.
What would a wise latina find to be a privilege or immunity?
Assuming, arguendo, that plaintiffs win on some grounds, the real question is what is the standard of review. I assume as in Heller that it will be relatively lax, and reaching only the total ban found in chicago. Probably no member of the current court wants to hear hundreds of 2nd amendment cases. It is possible that states, as federalist laboratories of democracy, will be given extra leeway beyond the Heller “almost anything goes” standard.
All that needs to be done at this stage is incorporation (or P + I).
Giving teeth to the Second Amendment can be done later, perhaps in friendly state courts using adequate and independent state grounds to protect their decisions from review.
I think Gura’s briefing style is very much in his client’s interests, or he would have recruited different clients. If Gura wins on incorporation, McDonald will be famous. But if he wins on P+I, McDonald becomes a legend. He’ll have what Cory Doctorow calls “wuffie”; reputation capital. If they win on incorporation, the NYT can praise Roberts for compromising and not overturning Slaughterhouse. If the 2nd gets incorporated, there could be lots of dicta on P+I to set up a future case.
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November 18, 2009, 1:11 pmBruce Boyden says:
From Randy’s post: “Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.”
This strikes me as an odd response; there’s no criticism of Gura in Orin’s original post as far as I can tell. It’s just vote-counting. And the business about Orin viewing the case as a “hoot” seems to be just made up, unless there’s behind-the-scenes background.
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November 18, 2009, 1:11 pmChris says:
I hope the amici (or respondents or reply briefs) distinguish more carefully than did the petitioners among (a) privileges in the Bill of Rights, (b) traditional privileges widely recognized circa 1866–68, (c) traditional privileges widely recognized today, and (d) natural rights. Even if gun-possession rights fit all 4, it makes a big difference which of these is the meaning of “privileges of citizens of the United States.”
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November 18, 2009, 1:13 pmJ. Aldridge says:
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November 18, 2009, 1:17 pmJ. Aldridge says:
John Bingham on the meaning of due process:
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November 18, 2009, 1:26 pmPubliusFL says:
Does anyone today really believe that Slaughterhouse got it right? If pretty much everyone is agreed that Slaughterhouse got the P or I clause wrong, then describing it as “current law” is itself begging the question. Is the ultimate touchstone of constitutionality the Constitution itself or what the Court has said about it?
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November 18, 2009, 1:30 pmCurt Fischer says:
Prof. Barnett is not doing himself any favors with his latest post. Is his goal to annoy Prof. Kerr or to highlight his unwillingness to engage in an open-forum debate? It is hard to fathom how this post would help persuade anyone of the merits of his Constitutional views.
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November 18, 2009, 1:34 pmJ. Aldridge says:
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November 18, 2009, 1:46 pmCJColucci says:
I predict that, like Heller, McDonald, even if it overrules Slaughterhouse, will be much ado about little. A lot of us, as initiates into the mysteries of Con. Law, giggled at the silly-sounding doctrine of “substantive due process.” Many of us went on to think that, gee whiz, maybe the P&I clause is the “correct” source for what the Supremes do under the name of substantive due process. Slaughterhouse did that in as a doctrinal matter, but how many cases does anyone think would have come out differently if the Supremes had been using the P&I rubric all along rather than the somewhat comical “substantive due process”?
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November 18, 2009, 1:51 pmThe Curmudgeonly Ex-Clerk says:
I don’t know, Curt Fischer, I found Randy Barnett to be as persuasive as he usually is in his latest post.
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November 18, 2009, 1:52 pmOff Kilter says:
Mark Field: “Defining it [judicial activism] as a departure from the Constitution itself strikes me as begging the question (or alternatively, as imposing one’s own political view on the issue).”
This would only be true if you thought Constitutional interpretation were completely arbitrary.
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November 18, 2009, 1:53 pmAndrew Hyman says:
Orin, I won’t resort to Dan Ackroyd versus Jane Curtin jargon, but I do find your analysis somewhat superficial.
The NRA is arguing at great length for incorporating via the P or I Clause WITHOUT OVERTURNING SLAUGHTER-HOUSE. See pages 38–43 of their brief.
Instead of using that approach, you’re predicting that 6 or 7 justices will vote to overturn a longstanding precedent (Miller v. Texas) that rejected substantive due process incorporation: “as the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law.”
So, you’re saying that you agree with substantive due process? The doctrine underlying 90% of the Court’s judicial activism?
The justices themselves have unanimously confessed that “the substantive content of the clause is suggested neither by its language nor by preconstitutional history.” But that’s fine with you, Orin? The Court can do whatever it damn well pleases? It can take away the liberties of one person in favor of giving liberties to another? Legislators be damned?
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November 18, 2009, 2:09 pmJoe says:
“activism” is defined as a departure from current law
The word is annoying in part because it can have various meanings. This is a fair one, but many don’t define the word that way.
I too am curious why they specifically asked to be briefed on P/I. Seems reasonable to think that one or more of the conservatives (doubtful Kennedy) who don’t much care for substantive due process & don’t want to expand on it was so interested.
Thomas is a lead candidate given his previous opinions on the matter (supporting a substantive view of the clause), opinions btw that Scalia did not join. Roberts would gladly sign on to such a request since there would be nothing to lose in just asking for discussion.
It is an interesting inside baseball question. Maybe, Jan Greenburg knows? :)
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November 18, 2009, 2:16 pmthecabbage says:
But I did want to open a comment thread on the issue in case our commenters wanted to weigh in.
Sure. Randy’s point is valid and sound, but he could stand to chill.
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November 18, 2009, 2:39 pmBama 1L says:
Maybe the Court wants to shut down all this P/I business, or–better yet for the legal academy–decide the case on SDP but put out some confusing P/I dicta.
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November 18, 2009, 2:39 pmAndrew L says:
I just don’t understand why some of you think it’s okay for Orin to bait Randy but not the other way around — or okay for Randy to bait Orin but not vice versa. Either they’re both wrong, or they’re both grownups and people should stop taking good-natured ribbing so seriously.
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November 18, 2009, 2:39 pmJon M. says:
I definately agree with Orin’s analysis as to why there may be only one vote for P+I as a dispositive matte the others may think it is right, but my guess is that 8 Justices will think that stare decisis is insurmountable. If Scalia is one of the 8 as I think he will be then the other Justices will definately not go for it. Randy may be right in theory but I think he has it wrong with respect to what will happen in a practical sense.
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November 18, 2009, 2:48 pmAndrew Hyman says:
Jon M., stare decisis dictates no due process incorporation. That’s what the Seventh Circuit said. That’s what the Second Circuit said. They were correct.
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November 18, 2009, 2:57 pmjimM47 says:
J. Aldridge,
While I am always happy to see John Bingham quoted, I feel it should be noted in the thread that your presentation of them suggests the idiosyncratic reading of Bingham.
(That reading being that a) the Art II sect 4 P&I-clause does not incorporate against the states the bill of rights provisions, b) Bingham closely identified the Art 2 sect 4 P&I-clause with the Amend XIV PorI-clause, therefore c) the Amend XIV PorI-clause does not incorporate against the state the bill of rights provisions. I won’t rehash it, as anyone can go to federalistblog.us, where there always seems to be a post on this subject.)
But for the record, that’s a heavily contested reading. The now-common reading of Bingham is that he belongs within a tradition of constitutional interpretation that heavily contested whether states could legislate against the Privileges and Immunities of the United States (a term of art). Bingham acknowledged at the time of the debate over the 14th amendment (he had not previously) that Barron v. Baltimore had established that the federal courts would not enforce the bill of rights against the states (Some state courts continued to, though, incorporating the bill of rights into their own constitutions on natural rights theories). But at the same time, Bingham continued to maintain that state legislators were violating their oaths to the constitution by passing laws that contravened the protections in the bill of rights.
I’ll make no attempt to defend these views of Bingham’s on originalist grounds. But I do defend the idea that an originalist should import Bingham’s widely-held public views, whether correct or incorrect as a matter of interpreting the antebellum constitution, into the meaning of the amendment he helped to draft, and upon whose words many ratifiers would have relied.
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November 18, 2009, 3:17 pmDilan Esper says:
Depends on whether your baseline for whether a court is “activist” is the actual constitution it’s interpreting or the court’s own previous pattern of conduct.
I am going to be kind of postmodern here (which is strange, because I hate postmodernism and also have some sympathy for people who are upset that some constitutional law doctrines have veered so far from the text of the Constitution), but the problem with this sort of attitude is that there’s really no such thing as the “actual constitution” divorced from the two and a quarter centuries of interpretation and practice.
It’s analogous to contract cases where the parties have construed the agreement in a particular way consistently for 3 years and then somebody comes into court and says “that’s not what the contract says”. The parties’ agreement, in a certain sense, is that paper, but in another sense, it’s the mutual understandings and expectations that they operate under. That’s why we have all sorts of doctrines, from practical construction to mutual mistake, that uphold that understanding even when it may be inconsistent with what the parties may have written down.
The “actual constitution” can only be our collective understanding of the thing, including understandings that may not completely jibe with its text or the framers’ intent.
Now, perhaps Slaughter-House is inconsistent with that collective understanding, or it is possible to get back to the text / original understanding without doing violence to legitimate expectations, or maybe the moral case for doing so is so great that we are basically compelled to change the current understanding (that’s what basically happened in Brown v. Board of Education). But the “actual constitution” has to be the one we actually use and apply, not the one sitting under glass at the Smithsonian.
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November 18, 2009, 3:20 pmCarl Donath says:
Aldridge,
I’m puzzled by your insistence on posting quotes which provide setup but no conclusion. Yes, the Constitution was defined as empowering/restricting the federal government. Yes, at the time one could reasonably construe the Bill of Rights as limiting only Congress.
The 14th Amendment secures to the citizens of each state all the privileges and immunities (understood, per the McDonald brief in excruciating detail, to include the Bill of Rights) of US citizens regardless of state of origin. Upshot is a state cannot legislate into oblivion any federally-protected right/privilege/immunity which any citizen can enjoy in other states.
I don’t see how you can offer up these quotes (esp. in context with other quotes by the same framers and buttressed by detractors) and hold your conclusion without eviscerating the content of both the quotes and the amendment. Following your logic the most useful conclusion I can find is a Constitutional imperative that states treat visitors as one of their own — an awful lot of work for a rather lame result.
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November 18, 2009, 3:31 pmCarl Donath says:
Esper,
While SlaughterHouses may be official verdict on the amended “contract”, actual practice has worked around what is mutually understood as error by finding other paths to the same conclusion as P&I (some observe SDP is such a work-around). Having an ongoing mutual understanding that the verdict is wrong and the contract correct, we must still deal with those who still insist on using the erroneous verdict — “mutual understanding” is not universal, and now Gura is attempting to force SCOTUS back to clean up the mess so petty tyrants would stop trying to use it to their own oppressive ends.
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November 18, 2009, 3:40 pmMark Field says:
It’s current law in that every court lower than the Supremes is obliged to enforce it. The fact that I personally think Slaughterhouse was wrong (and I do) is irrelevant. Law consists of much more than the text, as Dilan noted.
No, it’s true as long as interpretation is contested. And even if it’s uncontested, it’s still true as long as the precedent stands, as I pointed out above.
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November 18, 2009, 3:59 pmPubliusFL says:
If that’s how you want to define current law, fair enough. But it should not surprise you to learn that many people who would self-identify as “legal conservatives” do not put the latest Supreme Court precedent at the top of the list of what they are trying to conserve.
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November 18, 2009, 4:20 pmAllan Walstad says:
...One of many examples of rubric by which constitutions are destroyed.
It’s not analogous at all. The question is whether the court itself made a very bad ruling that needs to be overturned, modified, or narrowed in some way. It’s not like everybody’s been going around perfectly happy with the idea that the Bill of Rights doesn’t apply to the states unless maybe the supremes make an exception via the due process clause. The real problem is the excessive deference to bad past decisions.
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November 18, 2009, 4:26 pmJoseph Slater says:
But remember, slow and steady wins the race.
Beyond that, while I’m no expert in this field, my best gues it that CJColucci is right in predicting that it wouldn’t have / won’t really matter all that much whether incorporation was / is done through the P & I clause or through substantive due process.
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November 18, 2009, 4:40 pmOren says:
On the other hand, we impose enormous transaction and uncertainty costs on the populace if we allow the prevailing doctrine (as distinct from the One True Meaning) to change with the legal winds.
In (admittedly strained) analogy to electrical systems, I think a legal system should always be overdamped so as to avoid the sort of inductive losses that come from excessive ringing.
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November 18, 2009, 4:49 pmJ. Aldridge says:
John Bingham: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
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November 18, 2009, 4:49 pmJ. Aldridge says:
And it turns out the “bill of rights” he was talking about was not the first Eight Amendments, but article 4, sec. 2. It’s no wonder incorporationists spin around in circles.
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November 18, 2009, 4:57 pmOren says:
Except when he quoted verbatim those 8 amendment when referring to the P&Is.
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November 18, 2009, 5:02 pmJ. Aldridge says:
He at least made it clear he wasn’t talking about citizens of a state under their own constitutions.
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November 18, 2009, 5:08 pmDilan Esper says:
One of many examples of rubric by which constitutions are destroyed.
No more than it “destroys” a contract to interpret the document the way the parties actually mutually understood their agreement to be, even if that is at variance with the text of the writing.
It’s not analogous at all. The question is whether the court itself made a very bad ruling that needs to be overturned, modified, or narrowed in some way. It’s not like everybody’s been going around perfectly happy with the idea that the Bill of Rights doesn’t apply to the states unless maybe the supremes make an exception via the due process clause. The real problem is the excessive deference to bad past decisions.
Everyone? No. But I would certainly argue that, even if the manner of incorporation wasn’t pretty, the applicability of the Constitution to the states through the due process clause has certainly become one of the background assumptions of our law, so much so that we now routinely speak of a state’s actions in suppressing expression as “violating the First Amendment” whereas 50 years ago, we would have spoken of a Fourteenth Amendment violation instead.
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November 18, 2009, 5:18 pmDoc Merlin says:
I have to disagree here with Orin. I think this case is far more likely to be dealt with and taken, precisely because it was a good way to deal with the P and I stuff. The court has been looking for a way to do this for a while, and this case is perfect. The liberals want P and I and the conservatives want guns. This case settles both.
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November 18, 2009, 5:36 pmOren says:
This seems like a distinction utterly void of difference. You could say that the 14A commands (approximately) “States shall not do things that, if done by the US, would violate 1–8″ or that it says “1–8 now apply to the States”.
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November 18, 2009, 5:52 pmBarrySanders20 says:
Oren– of course, 1–8 do not apply to the states. Only those special amendments that strike the fancy of the robed ones and that are invited to the club through selective incorporation apply to the states.
The others stay outside and are ignored by polite society.
That’s why P and I is a fairer and more rational basis to protect individual constitutional rights from abuse by the states/counties/cities/towns and whatever lower forms of government we have created that seek to impermissibly restrict individual rights.
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November 18, 2009, 6:19 pmDilan Esper says:
That’s why P and I is a fairer and more rational basis to protect individual constitutional rights from abuse by the states/counties/cities/towns and whatever lower forms of government we have created that seek to impermissibly restrict individual rights.
Perhaps. But you also have to think about the workability of doing it at this point. It would mean that all states that use criminal informations / complaints as the charging documents rather than grand jury indictments would have to convene grand juries at great expense. It would mean the end to both nonunanimous juries and juries of less than 12 people in criminal cases. It would mean a wholesale revision of jury trial rules in civil cases.
Plus, there’s an issue of citizenship kicking around in the background as well. The P&I clause applies to citizens, whereas the DP clause applies to persons. Does this mean that only citizens get the benefit of the bill of rights against state action? Or will there still be selective incorporation for noncitizens under the DP clause?
This is a much bigger can of worms than people are making it out to be. Now, you can argue that despite all this, you should do it, that this is the equivalent of Brown v. Board of Education where it is worth it to get things right even though it will result in a massive social upheaval.
But people who glibly talk about the “actual constitution” or the “lost constitution” without dealing with the practical consequences of the ideas they advocate are not trafficking in any sort of responsible jurisprudence.
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November 18, 2009, 6:48 pmJ. Aldridge says:
Damn, these P&I’s are starting to sound more interesting by the minute. :-)
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November 18, 2009, 6:50 pmjimM47 says:
You know, and I know, that an interpretation of art. 2, sec. 4 as protecting the rights of the first eight amendments is, at best, a defeated argument, and, at worst, was never a valid one. But if John Bingham knew this, then he was both a man outside his time and tradition and a perjurer of the highest order, since he is documented as saying unremarkably both that the PorI-clause protects the same rights as the P&I-clause, and that the PorI-clause protects rights inclusive of the first eight amendments.
I’ll consider any proof to be offered that Bingham was an anachronistic liar who tried to foist incorporation of the first eight amendments upon an unsuspecting nation through a years long pattern of deceit documented fully in the Congressional Globe, but I have asked for that proof before and never been shown it. So I am at best perplexed by the disparaging attitude you display to “incorporationists” among whom a great many impressive scholars can be counted.
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November 18, 2009, 6:57 pmJ. Aldridge says:
Oh? Can you point to any court holding or framer that ever suggested the P&I’s of United States citizens included all the protection of the first eight amendments, AND this protection extended to a state and its own citizens? Good luck.
Also, Bingham made it perfectly clear the P&I’s under the Fourteenth Amendment were the same as found under the original constitution and nothing had been added to them. To make matters worst, the entire premise behind the Fourteenth was not state treatment of its own citizens, but of citizens of other states.
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November 18, 2009, 7:38 pmJ. Aldridge says:
^^^^^^ I meant to quote this:
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November 18, 2009, 7:49 pmJ. Aldridge says:
You misunderstand Bingham. He was always upfront that the first eight amendments were not limitations against the states, especially between a state and its own citizens, and had no intention to change that. What Bingham felt is the oath of state officials might be enforceable under the 14th so if a judge sentenced a citizen of another state to cruel and unusual punishment that judge’s order can be reversed. He explained his theory of the first eight amendment being applicable to the states through the oath in 1866, as weak as it was.
You will never find Bingham suggesting the P&I’s of U.S. citizens apply to citizens of a state.
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November 18, 2009, 7:58 pmMark Field says:
I certainly understand this point — it’s how I feel (and how Lincoln felt) about Dred Scott, for example. And I’m not criticizing the attitude which says “we have to fight to get the correct interpretation”. That’s everybody’s right. I’m just saying that we have to recognize the existence of a state of affairs which is different and proceed from there.
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November 18, 2009, 8:04 pmDilan Esper says:
I certainly understand this point — it’s how I feel (and how Lincoln felt) about Dred Scott, for example. And I’m not criticizing the attitude which says “we have to fight to get the correct interpretation”. That’s everybody’s right. I’m just saying that we have to recognize the existence of a state of affairs which is different and proceed from there.
I think Mark is too easy on the folks who take this position. I think it’s extremely immature to insist that if the Constitution isn’t interpreted exactly my way, I won’t play in the sandbox anymore.
There are tons of constitutional doctrines that I think are wrong. I wish a number of decisions would be overturned. But that doesn’t mean I get to pretend they don’t exist or insist on arguing in an alternate universe where the Supreme Court decisions I don’t like have no authority and no effect on the country.
This is the worst sort of intellectual cop-out and nobody over the age of 3 should get to engage in this sort of reasoning. If you want to argue that any particular Supreme Court doctrine should be reversed, then you need to take intellectual and moral responsibility for ANY AND ALL disruption that might occur as a result of it. This, in the end, is what stare decisis is really about– the humility to understand that it isn’t worth ruining a lot of people’s lives just to get what you want.
People who constantly insist that there is a pure, Platonic Constitution out there and that decades of precedents can just be ignored when discussing it should be treated as the lunatics that they are.
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November 18, 2009, 10:23 pmjimM47 says:
[Note: anyone who has access to Lexis or WestLaw, don’t read me, I’m just an anonymous commenter on a blog. Read the Law review article I cite at the end of this post]
J. Aldridge:
Bingham stated the contrary, that he did have intention to change that, in a 1871 debate about legislation aimed at enforcing the protections of the 14th amendment:
Cong Globe 42d Cong. 1st sess. 84 app. March 31, 1871
I don’t think this can be construed ambiguously. Either Bingham is a liar, or the 14th amendment incorporates the first eight amendments through the PorI-clause.
Bingham’s contemporaries suggested just this. See Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57
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November 18, 2009, 11:13 pmKudos to Orin Kerr « Entitled to an Opinion says:
[...] Uncategorized Leave a Comment Randy Barnett gently ribs his co-blogger for his penchant for providing open threads on a topic when others (Barnett himself, David Bernstein, Jim Lindgren and I think sometimes Eric [...]
Gene Hoffman says:
First, for everyone in this thread that hasn’t met J. Aldridge, he really shouldn’t be responded to because his arguments are, well, not logical is a nicer way of saying it. A more correct way of saying it is that he is the type of internet commenter one should simply ignore. So I make a mistake by responding but he asked for it.
I’ll quote Senator Jacob Howard as quote in the Globe and the May 24, 1866 New York Times
So there is a framer, discussing the 14th as including the first eight amendments to the US Constitution in an effort to apply them as against the states.
Everyone else should just let J. Aldridge be...
–Gene
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November 19, 2009, 2:00 amJ. Aldridge says:
You seem to have ignored that part.
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November 19, 2009, 2:28 amJ. Aldridge says:
Actually no. He made it clear he was only speaking of what United States citizens might claim as such, and not citizens of a state.
After reciting Corfield vs. Coryell, Howard says: “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution.”
He is saying they “should” be included, not that they were included, or understood to be included. Of course Bingham would later say the Fourteenth did not add anything new to the P&I’s and they they remained the same as found under the original constitution. There was no eight amendments when the P&I’s were adopted under article four.
Again, you won’t find no framer who said the P&I’s of U.S. citizens made applicable the first eight amendments between a state and its own citizens.
John Bingham: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
“Everyone else should just let J. Aldridge be...”
That would make it easier for you to spew your disinformation I suppose.
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November 19, 2009, 3:11 amJ. Aldridge says:
He said he wasn’t talking about citizens of a state but only U.S. citizens, i.e., a citizen outside of the protection of their home state. That is what I believe you are misunderstanding about his March 31, 1871 speech.
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November 19, 2009, 4:09 amPubliusFL says:
You’re ignoring the 14th Amendment’s own definition of citizen of the United States. “Outside the protection of their home state” has nothing to do with it. You are a U.S. citizen when you’re in your home state as well as when you’re outside it.
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November 19, 2009, 9:20 amJ. Aldridge says:
Nope. The privileges or immunities clause never worked that way. It was to remove alienage of citizens of one state temporarily in another state. Even the Civil Right Bill of 1866 was decalred by its framer to not have any thing to do beween a state and its own citizens. It was no different under the Fourteenth Amendment.
The Republican complaint in 1866 was not the state treatment of its own citizens, but of state treatment of citizens of other states. Every complaint raised over state injustices involved treatment of citizens from another state (United States citizen in another state).
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November 19, 2009, 12:50 pmTweets that mention The Volokh Conspiracy » Blog Archive » Open Comment Thread on McDonald -- Topsy.com says:
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PubliusFL says:
You mean the frequent complaints of white officials disarming or refusing to arm black militias referred to blacks from one state who attempted to set up a militia in another state while on vacation or something?
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November 19, 2009, 1:48 pmJ. Aldridge says:
Those newly emancipated citizens were strictly citizens of the United States and not yet a citizen of any state in the former rebel states which was under the complete control of congress during reconstruction.
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November 19, 2009, 2:20 pmJ. Aldridge says:
You are talking about former rebel states who were under the jurisdiction and military control of congress, and who were intially set up and and governored by men approved by Johnson which pissed off republicans. There was no organized states in the south after the war.
Emancipated blacks were only United States citizens at this time, not citizens of any organized state in the south.
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November 19, 2009, 3:08 pmJ. Aldridge says:
And, emancipated blacks were only United States citizens at this time, not citizens of any organized state in the south.
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November 19, 2009, 3:10 pmGene Hoffman says:
Yet your construction of the 14A means they never ever gained citizenship in any state.
Logic; it’s not optional.
–Gene
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November 19, 2009, 4:56 pmGene Hoffman says:
Correct. Senator Howard was saying that the first 8 amendments should be included in the rights that everyone could assert against any level of government by the item he was introducing that day. That item was the Fourteenth Amendment.
It amuses me that Jim, aka, J. Aldrige, aka P.A. Madison, and aka, webmaster@idexer.com continues to hold out that his is the “truth.” It appears that these are his websites and I think they’re important when thinking about his credibility on the issue of the original public meaning or the original intent of the the 14A:
http://federalistblog.us/
http://www.idexer.com/
Those sites need to be seen to be believed. Once viewed it becomes pretty obvious that the focus is on the political results and not the actual history of the 14A. If I’m incorrect about the “truth” of your other postings J. Aldrige, well, I’ll happily take it back. However, my research tends to be accurate...
–Gene
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November 20, 2009, 1:39 amJ. Aldridge says:
They gained citizenship before the 14A, you know, Lincoln? They gained United States citizenship and was under the guardianship of Congress and its laws until reconstruction was completed.
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November 20, 2009, 11:33 amJ. Aldridge says:
No idea what you are talking about. You are becoming as paranoid as David Nieporent. When I post on Federalisltblog or anywhere else I use this name.
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November 20, 2009, 11:40 amPubliusFL says:
How? There was no such thing as United States citizenship prior to the 14th Amendment, except through citizenship in one of the states making up the United States. Dred Scott said that even that wasn’t enough, when it came to freed slaves. Dred Scott was overturned (on that point at least) by the Slaughterhouse Cases.
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November 20, 2009, 12:51 pmJ. Aldridge says:
The Freedman Act is how. It gave emancipated citizens the same protections as citizens of a state within the several states, and some additional ones due to the fact the southern states had been dissolved and brought under the jurisdiction of congress and the military.
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November 20, 2009, 1:51 pmjimM47 says:
Two terms of art:
1) Privileges and Immunities of the Citizens of the United States
2) Privileges and Immunities of the Citizens of [Insert the name of one of the Several States here]
(If you believe that the P&I are a matter of natural law that is the same everywhere, as some courts did, then the two are, in theory identical. But just as the common law varies from state to state, as a practical matter, some differences between the two must be acknowledged)
A standard reading of Art IV sec. 2 is that it provides federal protection of the P&Is of the state to all US citizens in the state. — i.e. it is a non-discrimination provision in that it requires states to treat out-of-staters the same as in-staters by applying the civil rights aspects of the state’s social contract with its citizens even to people not a party to that contract. Implicitly, an action can only be brought by citizens of other states.
A standard reading of Amend XIV sec. 1 is that it provides federal protection of the P&Is of the US to all US citizens in a state. — i.e. it incorporates the bill of rights, etc. by applying the civil rights aspects of the federal government’s social contract with its citizens even to governments not a party to that contract. Americans have simultaneous citizenship in their State republic and in the Federal Republic, so actions are brought in one’s capacity as a federal citizen.
To paraphrase: this guarantee is of the privileges and immunities of the citizens of the United States in the several States, not of the privileges and immunities of citizens of the several States in the several States.
J. Aldridge no doubt disagrees.
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November 20, 2009, 2:08 pmJ. Aldridge says:
J. Aldridge is laughing his butt off.
Bingham to Rep. Hale: “I respectfully ask him [Hale] to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States.”
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November 20, 2009, 2:47 pmjimM47 says:
[citation needed]
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November 20, 2009, 6:20 pmKharn says:
I still prefer the idea of a plain reading of the Amendment, rather than twisting quotes out of context from the author. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” My passport doesn’t list my state of citizenship (or even state of residence, its a blank with a suggestion to pencil it in with other emergency contact information), just that I am a citizen of the United States, so the 14A reads to me that all states must treat me fairly, even my own state.
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November 20, 2009, 9:46 pmJ. Aldridge says:
Rep. Samuel Shellabarger of Ohio on the P&I’s clause:
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November 21, 2009, 4:03 amGene Hoffman says:
Misdirection. The P AND I clause already did that by protecting state visitors since 1787. Your interpretation is that the P OR I clause in the 14A is a nullity as it duplicates Article 4 Section 2 — which makes your (and Rep. Samuel Shellabarger) interpretation illogical and wrong as a matter of any standard rules of interpretation. The P or I clause limited all states from interfering with the privileges or immunities of residents of their own state which include at minimum the Bill of Rights.
I know you really don’t want the states to have negative liberty enforced against them. You and the ghost of John C. Calhoun may continue to figure out which group of folks you’d like states to persecute together...
–Gene
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November 21, 2009, 11:51 pmJ. Aldridge says:
Bingham always had said it was a duplicate of Article 4, Section 2. He explained the difference between the two was enforcement. He said Oregon’s constitution was in violation of the P&I clause and Congress lacked authority to do anything about it.
Bingham: “The clause of the Fourteenth Amendment, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
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November 22, 2009, 12:06 pmJ. Aldridge says:
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November 22, 2009, 12:24 pmJ. Aldridge says:
That would had removed a right of the people of the states (self-government), something Bingham repetitively said the 14A did not do.
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November 22, 2009, 12:35 pmJ. Aldridge says:
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November 22, 2009, 1:28 pm