I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution (Art. IV, Sec. II) in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question, and assert those rights by solemn judgment, inflicting upon the offenders such penalties as will compel a decent respect for this guarantee to all the citizens of every State. –Rep. John Bingham (Cong. Globe, 39th, 1st Sess., 158 (1866))

Gene Hoffman: 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.

That would had removed a right of the people of the states (self-government), something Bingham repetitively said the 14A did not do.

We concluded the first number with the quotation of the First Section of the proposed Amending of the Constitution that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that “the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.” (New York Times, November 15, 1866)

Gene Hoffman: Your interpretation is that the P OR I clause in the 14A is a nullity as it duplicates Article 4 Section 2

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.”

J. Aldridge: Rep. Samuel Shellabarger of Ohio on the P&I’s clause:

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

It protects no one except such as seek to or are attempting to go either temporarily or for abode from their own State into some other. It does not attempt to enforce the enjoyment of the rights of a citizen within his own State against the wrongs of his fellow-citizens or his own State after the injured party has become or when he is a citizen of the State where the injury is done.

jimM47: J. Aldridge no doubt disagrees.

J. Aldridge is laughing his butt off.

jimM47: 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.

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.”

“This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

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.

PubliusFL: 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.

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.

J. Aldridge: 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.

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.

Gene Hoffman: 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.”

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.

Gene Hoffman: J. Aldridge: And, emancipated blacks were only United States citizens at this time, not citizens of any organized state in the south.

Yet your construction of the 14A means they never ever gained citizenship in any state.

Logic; it’s not optional.

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.

J. Aldridge: 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.

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

J. Aldridge: And, emancipated blacks were only United States citizens at this time, not citizens of any organized state in the south.

Yet your construction of the 14A means they never ever gained citizenship in any state.

Logic; it’s not optional.

-Gene

PubliusFL: 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?

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.

PubliusFL: 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?

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.

J. Aldridge: Every complaint raised over state injustices involved treatment of citizens from another state (United States citizen in another state).

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?

PubliusFL: 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.

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).

J. Aldridge: 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.

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.

jimM47: 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:

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.

Gene Hoffman: 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.

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.

jimM47: … as contradistinguished from citizens of a State …

You seem to have ignored that part.

J. Aldridge:
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?

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

I believe to these privileges and immunities may be added the personal right (sic) guaranteed by the first eight amendments of the United States (sic), such as freedom of speech and of the press, the right of the people peaceably to assemble and petition Government for a redress of grievances – a right pertaining to each and all of the people – the right to keep and bear arms – the right to be exempt from the quartering of soldiers in a house without consent of the owner – to be exempt from unreasonable searches and seizures, &c.. Here is a mass of privileges and immunities and rights….

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

J. Aldridge:

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.

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:

I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution, as follows:
[text of Amend XIV sec 1 omitted] …
Mr. Speeker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: [text of Amend I-VIII omitted]
These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, [text of P or I clause omitted] are an express prohibition upon every State of the Union…
[Bingham responds to a colleague's question about the Art 4 sec. 2 P&I clause, giving a standard and modest account of the clause, and quoting classic treatises by Webster and Story]
Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?
[Bingham then lists state laws passed before the 14th amendment that would have violated some of the first eight amendments]
Under the Constitution as it is, not as it was, and by the force of the fourteenth amendment, no State hereafter can [pass laws like those previously mentioned].

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.

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.

Bingham’s contemporaries suggested just this. See Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57

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.

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.

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.

jimM47: 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.

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.

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.

jimM47: 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.

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.