The Volokh Conspiracy

A Volokh Conspiracy Drinking Game

Orin Kerr • November 23, 2009 4:38 pm

At least for VC readers who regularly follow the comment threads: Every time commenter “J. Aldridge” mentions John Bingham, you have to drink.

Categories: Uncategorized

146 Comments

CountDuckula says:

What is this, the brewers’ and distillers’ full employment scheme?

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November 23, 2009, 4:41 pm
J. Aldridge says:

.... and continue pretending Bingham intended to make the U.S. bill of rights a limitation against a state and their own citizens, which he clearly disavowed.

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November 23, 2009, 4:42 pm
David Kopel says:

Given the implied drinking rate from this game, it should be particularly interesting to the readers of Modern Drunkard Magazine, as well as the VodkaPundit crowd.

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November 23, 2009, 4:42 pm
CountDuckula says:

J. Aldridge says:
.... and pretend Bingham intended to make the U.S. bill of rights a limitation against a state and their own citizens, which he clearly disavowed.

bottoms’ up...

i can’t read this thread any more until after i get home from work

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November 23, 2009, 4:44 pm
Kazinski says:

When I saw this study last week, I wondered who would routinely drank up to 11 shots a day:

And for those who drank anything from three shots to more than 11 shots each day, the risk worked out an average of 50% less [risk of heart attack].

Obviously the answer is those playing the John Bingham Drinking game.

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November 23, 2009, 4:50 pm
David Nieporent says:

.... and continue pretending Bingham intended to make the U.S. bill of rights a limitation against a state and their own citizens, which he clearly disavowed.

And by “clearly disavowed,” you mean “explicitly said.” (I know substantive comments don’t really belong in this thread, but I figure I’ll be too drunk shortly to point out that Aldridge is making stuff up.)

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November 23, 2009, 4:50 pm
Crunchy Frog says:

How about references to “the several States”? A beer chaser?

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November 23, 2009, 4:54 pm
J. Aldridge says:

David Nieporent: And by “clearly disavowed,” you mean “explicitly said.” (I know substantive comments don’t really belong in this thread, but I figure I’ll be too drunk shortly to point out that Aldridge is making stuff up.)

I could argue there is really no such thing as little gray creatures abducting pretty girls in the middle of the night and you would dismiss it as “Aldridge is making stuff up.”

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November 23, 2009, 4:55 pm
David Nieporent says:

Then there’s the teetotaler’s version: every time Aldridge correctly cites Bingham, you drink.

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November 23, 2009, 4:57 pm
Joseph Slater says:

If we’re accepting nominations for a broader VC drinking game, I say one drink for every use of the phrase “our black-robed masters.” I’m not sure where that came from originally, but it sure is an oft-used meme by some around here.

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November 23, 2009, 5:03 pm
Cornellian says:

This proposal borders on reckless endangerment.

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November 23, 2009, 5:07 pm
RealistLiberal says:

David Nieporent and Cornellian win the thread already.

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November 23, 2009, 5:11 pm
troll_dc2 says:

I come into this controversy without knowing (or caring) about the back story, but I note that a perusal of pages 122 and 123 of Curtis’ book No State Shall Abridge suggests that J. Aldrige is espousing Raoul Berger’s version of what Bingham said as opposed to what Bingham really said.

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November 23, 2009, 5:13 pm
BT says:

H/T to J Aldridge. It is not everyday that a commenter gets a thread all his own.

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November 23, 2009, 5:13 pm
loki13 says:

Perhaps we can go for a bizarre sort of negligent entrustment? Think of it this way:

OK has the keys to this blog. He is entrusting our sobriety in the hands of the ne’er do well teen, J. Aldridge, who he knows has a propensity to quote Bingham on each and every thread (even if were to involve, say, a manned misson to Mars, there would be some way for J. Aldridge to program his magical Bingham misquoting machine for that.... you know that the 14th. Am. was not meant to bind Mars to the Bill of Rights?). I think that OK would be liable for our dirnking.

In short– OK owes me a beer every time Aldrdige brings up Bingham. I think a keg a day will cover it. :)

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November 23, 2009, 5:17 pm
D.O. says:

If I had even a little sip of vodka each time David Kopel posts about another brillint brief in McDonald v. Chicago, I would be in a rehab by now. Even if I didn’t drink, but just be able to see the brilliance, my eyes would hurt.

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November 23, 2009, 5:19 pm
J. Aldridge says:

troll_dc2: J. Aldrige is espousing Raoul Berger’s version of what Bingham said as opposed to what Bingham really said.

Okay, what did he REALLY say?

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November 23, 2009, 5:21 pm
J. Aldridge says:

BT: H/T to J Aldridge. It is not everyday that a commenter gets a thread all his own.

Hey, I didn’t think of that. OK is making me famous :-)

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November 23, 2009, 5:23 pm
calattnyken says:

Would the dram shop act of the “several states” protect VC from the obvious exposure to liability from the acts of those who participate in this game?

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November 23, 2009, 5:27 pm
Foxtrot says:

J. Aldridge,

Maybe I missed the post where you explained your position more clearly, but you just seem to post isolated quotations. Perhaps you could (re)post what you think is Bingham’s clearest statement of the meaning of P or I and follow that with an explanation of that meaning (i.e. what did Bingham believe the legal effect of the Amendment would be? What new powers did it give the federal government and/or what did it prohibit the states from doing that had previously been allowed.

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November 23, 2009, 5:29 pm
troll_dc2 says:

J. Aldridge says:

troll_dc2: J. Aldrige is espousing Raoul Berger’s version of what Bingham said as opposed to what Bingham really said.

Okay, what did he REALLY say?

Curtis points out that Berger omitted the bracketed language in recounting what Bingham said:

The care of the property, the liberty, and the life of the citizen[, under the solemn sanction of an oath imposed by your Federal Constitution,] is in the States and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country. I have advocted here an amendment which would arm congress with the power to [compel obedience to the oath, and] punish all violations [by State officers] of the Bill of Rights[, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States, by that oath and by that Constitution].

Curtis notes that Bingham believed that state officers were required to obey the Bill of Rights by their oath to support the Constitution, the decision in Barron v. Baltimore notwithstanding.

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November 23, 2009, 5:38 pm
ShelbyC says:

Huh. Now when a commentor says something that we disagree with, we’ll be able to ask them if they’ve been reading a thread where J. Aldridge as been quoting Bingham alot.

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November 23, 2009, 5:47 pm
ShelbyC says:

calattnyken: ...protect VC from the obvious exposure to liability from the acts of those who participate in this game?

What about J. Aldridge’s liability?

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November 23, 2009, 5:49 pm
J. Aldridge says:

troll_dc2: Curtis notes that Bingham believed that state officers were required to obey the Bill of Rights by their oath to support the Constitution, the decision in Barron v. Baltimore notwithstanding.

Firstly, the bill of rights Bingham spoke of he defined as Article 4, Section 2 and due process under the fifth. I don’t know if Curtis included Bingham’s full explanation of enforcing the oath’s, but that was under the original February proposal and not the adopted language. Under the initial proposal of the 14th Bingham thought it “might” allow enforcing oath’s so that when a judge treated a citizen of another state differently than the states own citizens he could be punished.

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November 23, 2009, 6:04 pm
J. Aldridge says:

Foxtrot: Maybe I missed the post where you explained your position more clearly, but you just seem to post isolated quotations. Perhaps you could (re)post what you think is Bingham’s clearest statement of the meaning of P or I and follow that with an explanation of that meaning (i.e. what did Bingham believe the legal effect of the Amendment would be?

How about who the P&I’s apply to instead of what they might mean? They apply to a citizen of one state within another state: “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 23, 2009, 6:10 pm
ArthurKirkland says:

I recommend and enjoy alcohol beverages, particularly beers. Evidence indicates those who consume moderate volumes of alcohol live longer and are healthier than those who abstain. Not to mention more sociable (in general).

Intemperance, however, is a severe health risk (for the consumer and others); it is irresponsible to promote heavy consumption (and that study that discusses consuming 11 drinks a day in the context of a health benefit seems highly irresponsible). I dislike drinking games unless the “drink” is a sip of beer.

Alcohol is a great product whose role in the history of the United States (and that of civilization in general) is important, interesting and fun. Were I a conservative, I would apply for the VC’s alcohol beat.

By the way (and speaking of drinking games): Unless one would enjoy rolling a ping pong ball along a restroom floor for several minutes and then sucking on it for another minute, beer pong is a bad idea. That makes it a strange game to watch, and worse even than the proposed Bingham game.

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November 23, 2009, 6:16 pm
David Nieporent says:

Firstly, the bill of rights Bingham spoke of he defined as Article 4, Section 2 and due process under the fifth.

Yes, the first trick of this bizarre cult is to argue that the phrase “bill of rights” doesn’t actually refer to the bill of rights.

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

How about if you explain why you think that this means anything like what you think it means. Because nothing in those words says “They apply to a citizen of one state within another state.”

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November 23, 2009, 6:18 pm
RealistLiberal says:

David Nieporent: Yes, the first trick of this bizarre cult is to argue that the phrase “bill of rights” doesn’t actually refer to the bill of rights.How about if you explain why you think that this means anything like what you think it means. Because nothing in those words says “They apply to a citizen of one state within another state.”

Thank you for asking to explain that. I’ve seen the same quote repeatedly and always wondered how it went from one to the other. And the posts with some long quote with no context or explination of what it means to J. Aldridge is pretty annoying.

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November 23, 2009, 6:27 pm
B.D. says:

I’m hammered.

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November 23, 2009, 6:28 pm
Foxtrot says:

Mr. Aldridge,

Thank you for replying, but I’d like to second MR. Nieporent’s request for an explanation. Can you answer the questions without using a quotation (for now) and just explaining what you think Bingham thought the Amendment did? What was prohibited under the Amendment that was permitted before?

Am I correct in understanding your post about who to be saying the following:

John Bingham understood the words of the P or I clause to apply to citizens of one state when they are traveling and present in a state other than the one in which they are a citizen.

(In Beingham’s view: How is citizenship of a state determined? Are all US citizens citizens of a state? Are all citizens of a state US citizens?)

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November 23, 2009, 6:31 pm
Dilan Esper says:

Here’s some video of folks playing the John Bingham drinking game:

http://www.youtube.com/watch?v=lvt4b_qwC_Q

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November 23, 2009, 6:42 pm
Glenn Bowen says:

Orin at his most animated... yippee.

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November 23, 2009, 6:50 pm
jimM47 says:

Proposed exception to the rule: where J. Aldridge quotes Bingham, do not drink, if and only if, he provides a proper citation that actually allows you to read the quote in context yourself.

(I’ve never been able to find a text-searchable version of the Globe)

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November 23, 2009, 6:53 pm
Martha says:

Another possible game:

Whenever someone tries to prove something with a hypothetical political reversal (“Imagine if Bush/Obama had said/done that instead of Obama/Bush–the left/right would have gone crazy!”) take a drink.

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November 23, 2009, 7:03 pm
J. Aldridge says:

David Nieporent: Yes, the first trick of this bizarre cult is to argue that the phrase “bill of rights” doesn’t actually refer to the bill of rights.

Doesn’t sound like Bingham was talking about the entire 8 amendments: “Gentlemen admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several Slates, and that no person shall be deprived of life, liberty; or property without due process of law.”

David Nieporent: How about if you explain why you think that this means anything like what you think it means. Because nothing in those words says “They apply to a citizen of one state within another state.”

Bingham: “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 23, 2009, 7:06 pm
A. says:

ArthurKirkland says:

By the way (and speaking of drinking games): Unless one would enjoy rolling a ping pong ball along a restroom floor for several minutes and then sucking on it for another minute, beer pong is a bad idea. That

You are old.

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November 23, 2009, 7:16 pm
ChrisTS says:

As a philosopher (almost out of cranberry juice) I have to ask for clarification:

To exactly what does “you have to drink” commit me? A sip, a glass, a bottle? What are the allowed substances? I hate beer, but if the rest are playing with beer then I should get some sort of handicap for vodka.

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November 23, 2009, 7:28 pm
ChrisTS says:

A.: ArthurKirkland says:You are old.

Oh well, Arthur — I don’t even know what beer pong is.

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November 23, 2009, 7:28 pm
David Nieporent says:

J. Aldridge: Bingham: “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.”

No, sorry.

First, you didn’t answer my question. You claimed that a particular quote meant X. I asked you why you thought it meant X when it didn’t say X, but something else. Rather than answering me, you printed some other random quote.

Second, that other random quote doesn’t support you either. Even if you provided any source for this quote, which, of course, you do not, and even if you provided any context for this quote, which, of course, you do not, that still doesn’t say what you claim. Implying via rhetorical question that a state does not have the right to deny rights to citizens of other states is not equivalent to saying that a state does have the right to deny rights to its own citizens.

(Once more: “if A, then B” is not the same as “if not A, then not B.”)

Nowhere in that debate does Bingham say that states may violate the rights of their own citizens.

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November 23, 2009, 7:43 pm
ShelbyC says:

A.: You are old.

Is beer pong not done anymore?

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November 23, 2009, 7:49 pm
ArthurKirkland says:

A.: ArthurKirkland says:You are old.

I did not say that or anything close to it.

I said that I would expect any sentient being (with a single exception, at second thought — a woman whom I saw lick a door handle and a barroom floor on a $50 dare) to avoid beer pong after a few seconds of thought concerning the hygiene-related logistics.

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November 23, 2009, 7:56 pm
Oren says:

Firstly, the bill of rights Bingham spoke of he defined as Article 4, Section 2 and due process under the fifth.

Except when he READ ALOUD THE FIRST 8 AMENDMENTS TO THE CONSTITUTION.

[T]he privileges or 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. [Bingham read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.

Cong. Globe, 42d Cong., 1st Sess. 84 app. (1871).

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November 23, 2009, 7:56 pm
ChrisTS says:

I suspect that David Nieporent — that lefto loon — is trying to get us all smashed by engaging J. Aldridge.

Now that I think of it, Orin K: what counts as a ‘mention’?

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November 23, 2009, 7:57 pm
Oren says:

after a few seconds of thought concerning the hygiene-related logistics.

It’s customary (round here) for each team to keep a cup of water for cleaning of the ping pong ball.

With whom do you play beer pong? Heathens?

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November 23, 2009, 7:59 pm
Kharn says:

I dont want to die, I’m still a young man...

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November 23, 2009, 7:59 pm
Nathan Wagner says:

Mr. Aldridge and I had an extended discussion of Bingham’s views here:
http://www.volokh.com/posts/1235495542.shtml

I regret not having the time to procede further, because we had reached an interesting point.

In brief, Mr. Aldridge argues that Bingham and Congress did not design the 14th to impose new obligations on the states with respect to their own citizens in the P or I clause. Slaughterhouse was therefore rightly decided.

It is not clear to me that this is correct, at least in the terms in which Aldridge makes the statement, the devil being in what is meant by “new obligations.”

There is, I think, a strong case to be made that Bingham had a Radical Republican view of personal rights under the original constitution — that he believed slavery to have been fully unconstitutional prior to the 13th Amendment. He merely believed that the federal government lacked a specific grant of power to enforce these constitional rights against the states in cases where they violated the rights of their own citizens.

This, clearly, is not what most people understand the constitutional situation to have been prior to the civil war.

When Bingham repeatedly says, therefore, that the 14th creates no new obligations for the states, what he arguably does not mean is that is that the pre-Civil War scope of federal constitutional rights guarantees (as we usually understand it) was not altered. What he means instead is that the Radical Republcan view of the rights guaranteed under the original constitution is correct, and the 14th does nothing to alter that.

Mr. Aldridge has more detailed (and in my view more convincing) drafting-history arguments about the limits of Bill of Rights incorporation implied by the 14th. But his larger assertion — that the the 14th’s P or I clause left untouched the pre-Civil War scope of federal rights guarantees — is not, in my view, accurate, because Bingham understood those original guarantees to have been more substantial than we do today.

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November 23, 2009, 7:59 pm
J. Aldridge says:

David Nieporent: No, sorry.

Yes, you are just in shock and denial as evidenced by the fact you provide no quotes to support your version of the facts which says the P&I’s of U.S. citizens belong to citizens of state within their own state.

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November 23, 2009, 8:03 pm
Oren says:

When Bingham repeatedly says, therefore, that the 14th creates no new obligations for the states, what he arguably does not mean is that is that the pre-Civil War scope of federal constitutional rights guarantees (as we usually understand it) was not altered.

How do you explain the quote from the Cong. Globe then?

These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.

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November 23, 2009, 8:06 pm
Oren says:

Try Senator Howard on for size.

. . .but to these unenumerated rights should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the 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 exempted from the quartering of soldiers in a house without consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
[...] [T]hese guarantees stand simply as a bill of rights in the Constitution [...] States are not restrained from violating the principles embraced in them….The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

Cong. Globe, 39th Cong., 1st Sess. 2765–66 (1866) (emphasis added).

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November 23, 2009, 8:12 pm
Mark Field says:

(I’ve never been able to find a text-searchable version of the Globe)

Though it’s not easy, you can search this site. The search instructions are near the top in brown background. The Globe is one of the sources (see link at top of page).

Caveat: I don’t recall ever trying a search there. Usually I’ve had page references in advance.

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November 23, 2009, 8:12 pm
Nathan Wagner says:

Oren,

I don’t think we actually disagree. I understand Bingham to have believed that those eight articles were indeed never limitations on the power of the states prior to the 14th — not because they were not obligatory, but rather because the federal government had no express grant of power to enforce them.

See:

I ask the attention of the House to the further consideration that the proposed amendment does not impose upon any State of the Union, any obligation which is not now enjoined upon them by the very lettter of the Constitution. [...] And, sir, it is equally clear by every construction of the Constitution, its contemporaneous construction, its continued construction, legislative, executive, and judicial, that these great provisions of the Constutition, this immortal bill of rights embodied in the Constitution, rested for its execution and enforement hitherto upon the fidelity of the States. (Congressional Globe 39th Congress, p 1042)

And further:

With these provisions [the supremacy clause] in the Constitution for the enforement in every State of its requirements, it is surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person — those rights dear to freemen and formidable only to tyrants [...].
And I am perfectly confident that that grant of power would have been there but for the fact that its insertion in the Constitution would have been utterly incompatible with the existence of slavery in any State; for although slaves might not have been admitted to be citizens, they must have been admitted to be persons. (1090)

(Bingham in both cases)

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November 23, 2009, 8:13 pm
ShelbyC says:

ArthurKirkland: I said that I would expect any sentient being ... to avoid beer pong after a few seconds of thought concerning the hygiene-related logistics.

I think you may have stumbled onto the explaination for the non-existance of 7-up pong.

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November 23, 2009, 8:15 pm
J. Aldridge says:

Nathan Wagner: He merely believed that the federal government lacked a specific grant of power to enforce these constitional rights against the states in cases where they violated the rights of their own citizens.

Those constitutional rights he believed the government lacked power to enforce was Article 4, Section 2. And he always described these P&I’s as belonging to citizens of one state as the journey into another state and not any rights belonging to a citizen under their own state.

Bingham, January 9, 1866: “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 ...”

Bingham, House Report No. 22, January 30, 1871: “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.”

Did the P&I’s under Article 4 ever apply to a citizen within their own state? No.

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November 23, 2009, 8:17 pm
Nathan Wagner says:

Mr. Aldridge,

I don’t believe your quotes get at my point. Bingham believed slavery to have been unconstitutional prior to the 13th. This is not explicable in terms of the P&I’s of citizens of one state in another state.

If, therefore, this belief of his was not covered under Article 4, section 2, it must have had another derivation.

You may be entirely correct about Bingham’s understanding of the article 4 P&I clause, but that doesn’t affect the point I am getting at. Since it seems evident that Bingham wholly aside from article 4 section 2 believed that the Constitution protected (though without allowing the federal government to enforce) a broad guarantee of individual rights against the states, then we must bear that in mind when he says that the 14th changed nothing.

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November 23, 2009, 8:31 pm
jss says:

I guess there is no point in discussing bong pong. It can result in several states of conciousness..

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November 23, 2009, 8:33 pm
NickM says:

I suggest substituting Cruzan 151 for beer when playing beer pong for the hygiene-related reason that it is highly microbicidal.

The fact that it gets people very drunk very fast is just a side effect. ;-)

Nick

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November 23, 2009, 8:34 pm
Hercules says:

WHO IS ~~JOHN GALT~~ J. ALDRIDGE?

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November 23, 2009, 8:37 pm
ArthurKirkland says:

I think you may have stumbled onto the explaination for the non-existance of 7-up pong.

I would have guessed that this (or maybe a spicy round of Dr. Pepper pong, on special weekends) would be precisely what is played at fundamentalist campuses.

Muslim fundamentalists, however, couldn’t play Dr. Pepper pong — that brand, like some other unsuspected products, possesses a measurable alcohol content (which sometimes, I believe, approaches the legal threshold of one-half-percent alcohol by weight or volume). I assume Dr. Pepper pong would be acceptable at Hillsdale or Liberty (although a Grove City graduate has sworn that rum raisin ice cream was banned on campus).

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November 23, 2009, 8:41 pm
Laura(southernxyl) says:

that brand, like some other unsuspected products, possesses a measurable alcohol content (which sometimes, I believe, approaches the legal threshold of one-half-percent alcohol by weight or volume)

That’s not what I heard. The story around here is that Dr Pepper contains prune juice.

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November 23, 2009, 9:26 pm
J. Aldridge says:

Oren: . . .but to these unenumerated rights should be added the personal rights guarantied and secured by the first eight amendments of the Constitution...

Notice Howard says “should” be added, but doesn’t say they were added. Also note you left out the best part: “it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it are secured to the citizen solely as a citizen of the United States and as a party in their courts.”

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November 23, 2009, 9:34 pm
J. Aldridge says:

Nathan Wagner: ...this immortal bill of rights embodied in the Constitution, rested for its execution and enforement hitherto upon the fidelity of the States.

What do you think he was talking about? I don’t think anyone would seriously argue the first eight amendments ever rested on the “fidelity of the States.” Article 4, Section 2 however, did.

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November 23, 2009, 9:42 pm
ChrisTS says:

ArthurKirkland: I did not say that or anything close to it.I said that I would expect any sentient being (with a single exception, at second thought — a woman whom I saw lick a door handle and a barroom floor on a $50 dare) to avoid beer pong after a few seconds of thought concerning the hygiene-related logistics.

FIFTY bucks? Ugh. Had she been playing Bingham Pong?

On the other hand, perhaps she thought the alcohol content was a sufficient barrier to disease?

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November 23, 2009, 9:54 pm
Adam Kamp says:

May I suggest the radical, radical idea that sometimes Bingham might not have been 100% consistent in his phrasing of his ideas and that fine parsing of his _oral_ statements is probably a fruitless gesture?

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November 23, 2009, 9:57 pm
David Nieporent says:

J. Aldridge: Those constitutional rights he believed the government lacked power to enforce was Article 4, Section 2.

False. Or, rather, true, but he also believed that about the Bill of Rights.

And he always described these P&I’s as belonging to citizens of one state as the journey into another state and not any rights belonging to a citizen under their own state.

No, he didn’t. You keep trying to turn the P&I clause into a redundant equal protection clause.

Bingham, House Report No. 22, January 30, 1871: “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.”

Ah, so a committee report about women’s suffrage somehow proves something... but this quote, which is directly about the topic we’re discussing, keeps getting ignored:

Mr. Speaker, 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 or immunities of citizens of the United States, as contradistinguished from the citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.

Look! A quote from Bingham which is exactly on point, and directly refutes your claim.

Did the P&I’s under Article 4 ever apply to a citizen within their own state? No.

Ever when? Before the 14th amendment? No. Afterwards? Yes, of course. That was the entire point of the amendment.

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November 23, 2009, 10:04 pm
wolfefan says:

I notice that OK hasn’t responded for a while. Perhaps he has been playing the game.

Whatever else may be true of J Aldridge, based on this thread he definitely does not owe Orin a beer. :)

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November 23, 2009, 10:08 pm
J. Aldridge says:

Bingham, 1868: “That provision, gentlemen will remember, was a limitation imposed upon the State of Missouri in the very words of the Constitution itself, to wit: that its constitution never should be so construed, and never should be so enforced as to deprive any citizen of the United States of the rights and privileges of a citizen of the United States within the limits of that State. The fourteenth article of the amendments of the Constitution secures this power to the Congress of the United States.”

Six United States Statutes-at-Large, 645, provided that Missouri’s constitution should “never be construed to authorize the passage of any law, and no law shall ever be passed in conformity thereto, by which any citizen of either of the States of the Union shall be excluded from the enjoyment of privileges or immunities to which such citizens are entitled under the Constitution of the United States.”

Drink up everyone. (hic)

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November 23, 2009, 10:18 pm
Gene Hoffman says:

*Burp*

Fairman/Berger debunking from The Calguns Foundation here.

J. Aldridge quite fully adopt’s Berger and Fairman...

If one must play this game one needs a keg and a wide porcelain “prayer stool.”

–Gene

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November 23, 2009, 10:22 pm
Nathan Wagner says:

J. Aldridge:
What do you think he was talking about? I don’t think anyone would seriously argue the first eight amendments ever rested on the “fidelity of the States.” Article 4, Section 2 however, did.

You are correct: no one today would argue that the first eight amendments ever “rested on the fidelity of the states,” because no constitutional scholar today believes that, prior to the civil war, the first eight amendments were binding on the states as a matter of law.

Bingham, however, does appear to have believed, along with other Radical Republicans, that those amendments (or at least some subset of them) were binding on the states. He argues in my second citation (from 1090) that slavery was, from the beginning of the republic, unconstitutional because slaves were persons. Now, what is the significance of personhood as opposed to citizenship? –It is that even if it were argued that slaves were not citizens, so that they might plausibly have been denied protection under the P&I clause, yet they could never have been denied to be persons, and therefore the guarantee of rights provided by the 5th amendment applied to them.

Bingham’s underlying assertion is that the Bill of Rights — or at very minimum the 5th amendment — was from the very beginning binding on the states as concerns their relations with all those persons under their jurisdiction.

Though, in Bingham’s view as I understand it, the Bill of Rights thus was binding on the states from the beginning, it was not federally enforceable. No person could avail himself of a federal judicial remedy against state violations of his fifth amendment rights, and Congress lacked the power to pass any law enforcing those rights against the states.

The states’ respect of the Bill of Rights therefore “rested on the fidelity of the states” themselves.

You are correct that no serious constitutional scholar today holds to this view, but numerous Radical Republicans did, and it appears that Bingham was among them.

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November 23, 2009, 10:28 pm
J. Aldridge says:

Gene Hoffman: J. Aldridge quite fully adopt’s Berger and Fairman...

Never read either except maybe some excerpts or something. I adopt the framers views and original meaning.

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November 23, 2009, 10:30 pm
JRL says:

I went to top tier law school;
I have another graduate degree in addition to my law degree;
I have graduate course work in both American history and constitutional law;

and

I have never heard of John Bingham.
. . . but I’m still going to drink!

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November 23, 2009, 11:06 pm
Grubbs says:

The trouble with Aldridge is he is probably right in insisting the privileges and immunites clause is not applicable to state citizens. I cannot find anyone during the 39th Congress saying they applied to a states own citizens. Frankly, that House Report No. 22 Aldridge refers to is damaging as hell to the briefs in McDonald v. Chicago.

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November 23, 2009, 11:29 pm
Gene Hoffman says:

Grubbs: The trouble with Aldridge is he is probably right in insisting the privileges and immunites clause is not applicable to state citizens. I cannot find anyone during the 39th Congress saying they applied to a states own citizens. Frankly, that House Report No. 22 Aldridge refers to is damaging as hell to the briefs in McDonald v. Chicago.

In fact, House Report No. 22 means exactly the opposite of what J. Aldridge claims it means when you read the entire passage:

Forty-first Congress, 3d Session, House of Representatives, Report, No. 22, Jan. 30,1871, recommitted to the Committee on Judiciary and ordered to be printed. Mr. Bingham, from the Committee on the Judiciary, made the following report.

The Committee on the Judiciary, to –whom “was referred the Memorial of Victoria C. Woodhull, having considered the same, make the following report:

The Memorialist asks the enactment of a law by Congress which shall secure to citizens of the United States in the several States the right to vote ” without regard to sex.” Since the adoption of the XIV. Amendment of the Constitution, there is no longer any reason to doubt that all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside, for that is the express declaration of the amendment.

The clause of the XIV. 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 IV., section 2. The XIV. Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement, as an express limitation upon the powers of the States. It has been judicially determined [referring to Barron v. Baltimore] that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of section 2, article iv.

To remedy this defect [that both article IV., section 2. and the first eight articles of amendment were not enforceable] of the Constitution, the express limitations upon the States contained in the first section of the XIV. Amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution. The words ” citizens of the United States,” and ” citizens of the States,” as employed in the XIV. Amendment, did not change or modify the relations of citizens of the State and Nation as they existed under the original Constitution.

Emphasis and bracket comments added — Source of the House Report.

Bingham is consistent through history that the purpose of the 14th Amendment was to make the restrictions on violating individual rights including those restrictions found in the first eight articles of amendment of the Constitution enforceable against state governments. Remember in 1871, Slaughterhouse hadn’t been decided yet. The lower courts in Slaughterhouse understood Bingham’s intent and that the 14th made the first eight amendments applicable against the States.

It’s critical to understanding this quote to understand that Bingham believed that Barron was wrongly decided and that Article 2, section iv applied all individual rights in the Federal Constitution to the States from the day of adoption in 1789. When, from his point of view, Barron got that wrong, he proposed and saw ratified a restatement that all the privileges or immunities including the first eight amendments were now clearly applicable to the States.

–Gene

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November 24, 2009, 12:10 am
J. Aldridge says:

Gene Hoffman: In fact, House Report No. 22 means exactly the opposite of what J. Aldridge claims it means when you read the entire passage:

Looks pretty crystal clear to me.

Gene Hoffman:
It’s critical to understanding this quote to understand that Bingham believed that Barron was wrongly decided and that Article 2, section iv applied all individual rights in the Federal Constitution to the States from the day of adoption in 1789.

He never said it was wrongly decided. Now you are really making stuff up. He actually said it was “rightfully” decided in his March 31, 1871 speech.

He was always absolutely clear article 4, section 2 applied only to citizens outside of their home state, and under the 14A the same would be true.

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November 24, 2009, 12:23 am
Nathan Wagner says:

Grubbs: I cannot find anyone during the 39th Congress saying they applied to a states own citizens.

It’s an extended quotation, but here is Bingham on May 10th, introducing the amendment:

Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the rights under the forms of law or othervise to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy.

[...]

[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, “cruel and unusual punishments” have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.

Sir, the words of the Constitution that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States” include, among other privileges, the right to bear true allegiance to the Constitution and laws of the United States, and to be protected in life, liberty, and property. Next, sir, to the allegiance which we all owe to God our Creator, is the allegiance which we owe to our common country.

The time was in our history, thirty-three years ago, when, in the State of South Carolina, by solemn ordinance adopted in a convention held under the authority of State law, it was ordained, as a part of the fundamental law of that State, that the citizens of South Carolina, being citizens of the United States as well, should abjure their allegiance to every other government or authority than that of the State of South Carolina.

That ordinance contained these words:

‘The allegiance of the citizens of this State is due to the State and no allegiance is due from them to any other Power or authority: and the General Assembly of said State is hereby empowered from time to time when they may deem it proper to provide for the administration to the citizens and officers of the State, or such of the said officers as they may think fit, of suitable oaths or affirmations, binding them to the observance of such allegiance and abjuring all other allegiance; and also to define what shall amount to a violation of their allegiance and to provide the proper punishment for such violation.’

There was also, as gentlemen know, an attempt made at the same time by that State to nullify the revenue laws of the United States. What was the legislation of Congress in that day to meet this usurpation of authority by that State, violative alike of the rights of the national Government and of the rights of the citizen?

In that hour of danger and trial to the country there was as able a body of men in this Capitol as was ever convened in Washington, and of these were Webster, Clay, Benton, Silas Wright, John Quincy Adams, and Edward Livingston. They provided a remedy by law for the invasion of the rights of the Federal Government and for the protection of its officials and those assisting them in executing the revenue laws. (See 4 Statutes-at-Large, 632–33.) No remedy was provided to protect the citizen.

Why was the act to provide for the collection of the revenue passed, and to protect all acting under it, and no protection given to secure the citizen against punishment for fidelity to his country7 But one answer can be given. There was in the Constitution of the United States an express grant of power to the Federal Congress to lay and collect duties and imposts and to pass all laws necessary to carry that grant of power into execution. But, sir, that body of great and patriotic men looked in vain for any grant of power in the Constitution by which to give protection to the citizens of the United States resident in South Carolina against the infamous provision of the ordinance which required them to abjure the allegiance which they owed their country. It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law.

That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment. That is the extent that it bath, no more; and let gentlemen answer to God and their country who oppose its incorporation into the organic law of the land.

(Congressional Globe, 39th Congress, 1st Session, 2542–3)

Clearly in this speech, and by this example of the South Carolina law, Bingham states that states violated the privileges and immunities the US Constitution guaranteed to their own citizens, and he includes the provisions of the fifth and eighth amendments among those privileges.

Now, Bingham was making a rhetorically charged appeal that the amendment be passed, not enunciating incorporation theory in a scholarly paper, so his statement can only be taken so far. But throughout the debate on the amendment he is consistent at least in this: the belief that all or some of the provisions of the Bill of Rights were legally binding on the states as concerns their relations with their own citizens, even though no federal remedy for state violations was available.

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November 24, 2009, 12:26 am
ChrisTS says:

Gene Hoffman says:

Grubbs: The trouble with Aldridge is he is probably right in insisting the privileges and immunites clause

Insulting the P&I? What is wrong with you people?

Oh, never mind.

Glad to see some of us are still standing.

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November 24, 2009, 12:26 am
Nathan Wagner says:

Let me expand my last sentence:

But throughout the debate on the amendment Bingham is consistent at least in this: the belief that all or some of the provisions of the Bill of Rights, prior even to the adoption of the 14th, were legally binding on the states as concerns their relations with their own citizens, even though no federal remedy for state violations was available.

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November 24, 2009, 12:34 am
J. Aldridge says:

Nathan Wagner: Clearly in this speech, and by this example of the South Carolina law, Bingham states that states violated the privileges and immunities the US Constitution guaranteed to their own citizens, and he includes the provisions of the fifth and eighth amendments among those privileges.

Paul Madison showed his examples of state injustice involved citizens of other states. I don’t think this avenue of argument takes you anywhere.

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November 24, 2009, 12:53 am
Nathan Wagner says:

How specifically does one dismiss this example, in which South Carolina required of its own citizens, under criminal penalty, a loyalty oath to South Carolina?

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November 24, 2009, 1:01 am
David Nieporent says:

Grubbs: The trouble with Aldridge is he is probably right in insisting the privileges and immunites clause is not applicable to state citizens. I cannot find anyone during the 39th Congress saying they applied to a states own citizens. Frankly, that House Report No. 22 Aldridge refers to is damaging as hell to the briefs in McDonald v. Chicago.

Setting aside Aldridge’s misrepresentations of it, it’s unclear why a House committee report five years after the amendment was drafted, would be so “damaging.” One of the things I keep trying to explain to Aldridge is that House committees don’t have a judicial role.

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November 24, 2009, 1:23 am
David Nieporent says:

He never said it was wrongly decided. Now you are really making stuff up. He actually said it was “rightfully” decided in his March 31, 1871 speech.

No, he didn’t. PA Madison lied to you again.

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November 24, 2009, 1:24 am
Gene Hoffman says:

J. Aldridge:
He never said it was wrongly decided. Now you are really making stuff up. He actually said it was “rightfully” decided in his March 31, 1871 speech.He was always absolutely clear article 4, section 2 applied only to citizens outside of their home state, and under the 14A the same would be true.

Original source material is quite handy.

In Bingham’s speech here’s the kicker. Saying that Bingham agrees that Barron was rightfully decided is misleading. Bingham says that the Barron decision gave him a better idea of how to draft the 14A in what became it’s adopted form:

I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendment, as they stand, and I trust will forever stand, in the Constitution of my country. I had read — and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States — the great decision of Marshall in Barron vs the Mayor and City Council of Baltimore. wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was:

” The amendments [to the Constitution] contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” 7 Petrs, p. 250.

In this case the city had taken private property for public use without compensation as
alleged, and there was no redress for the wrong in the Supreme Court of the United States and only for this reason, the first eight amendments were not limitations on the power of the States.

...

In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in
February, 1866, to which the gentleman has alluded, I noted and apprehended as I never
did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said:

“Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.” Barron vs. The Mayor, 7 Peters, 250.

Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said “no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;
imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution, as follows:

“No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person of life. liberty. or property without due process of law. nor deny to any person within its jurisdiction the equal protection of the laws.”

I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker,that the scope and meaning of the limitations imposed by the first section, fOrteenth 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:

[And then he recites the first eight amendments]

Tbese eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.

Here is the specific page of the Congressional Globe.

That’s pretty clear that Bingham’s 14A was meant to overrule the holding in Barron and apply the first eight amendments against state action.

–Gene

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November 24, 2009, 1:28 am
J. Aldridge says:

Nathan Wagner: How specifically does one dismiss this example, in which South Carolina required of its own citizens, under criminal penalty, a loyalty oath to South Carolina?

I’m not sure he is talking about SC citizens under the P&I’s.

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November 24, 2009, 1:59 am
J. Aldridge says:

Gene Hoffman: That’s pretty clear that Bingham’s 14A was meant to overrule the holding in Barron and apply the first eight amendments against state action.

Bingham, March 31, 1871: “And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States.”

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November 24, 2009, 2:08 am
J. Aldridge says:

Mr. Speaker, 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.

Why is he singling out citizens of a state? If these P&I’s of U.S. citizens also mean citizens of the states there is no reason.

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November 24, 2009, 2:14 am
Nathan Wagner says:

Perhaps we can do this better by laying out the arguments more systematically.

I understand you to argue, through Bingham, that 1st section of the 14th means the following:

(A) Dred Scot is reversed (citizenship clause)

(B) The federal government has power to enforce the Article 4 P&I requirement that states accord the citizens of other states the same rights they accord their own citizens (privileges or immunities clause)

(C) The due process clause of the fifth amendment — and only that clause — is incorporated against the states (due process clause)

(D) The federal government has power to prevent states from according different rights to different classes of their own citizens (equal protection clause)

Is this correct?

We agree, I think, on (A) and (D). With regard to (C), though I have not expressly accepted your view, I do believe that you have made a strong drafting history argument.

It is with regard to (B) that we disagree. I understand your argument for (B) to proceed as follows (P’s are propositions and C’s are conclusions):

(P1) Bingham was the chief drafter of the amendment, and his views carry the most weight in terms of original meaning.

(P2) Bingham understood the Article IV P&I clause only to require that each state accord citizens of other states the same P&I’s it accords its own citizens.

(P3) Bingham stated that the clause did not impose any new obligations on the states.

(C1) Given (P2) and (P3), we can conclude that Bingham understood the P or I clause to be limited to authorizing federal enforcement of the Article IV P&I clause

(C2) Given (C1) and (P2), we can conclude that Bingham understood the P or I clause not to reach a state’s dealings with its own citizens, merely its dealings with citizens of other states.

(C3) Given (P1) and (C2), we can conclude that the original meaning of the 14th’s P or I clause is probably to authorize the federal government to ensure that no state denies citizens of another state the privileges it accords its own citizens — but not to authorize federal intervention in determining what specifically those privileges are.

Is this a fair summary of your argument?

I am not going to dispute (P1) or (P3), and I think (C2) and (C3) follow logically from their antecedents. My points of contention are as follows:

First, I am not certain that (P2) is correct, given that Bingham does on occasion, as I’ve quoted just above, suggest that the rights enumerated in the Bill of Rights (or portions thereof) are included in the original constitutional P&I’s, even as concerns a state’s interaction with its own citizens.

Second, and more fundamentally, I don’t believe (C1) necessarily follows from (P2) and (P3). It is not necessarily true, even supposing Bingham’s understanding of the Article IV P&I clause was that it dealt only with a state’s treatment of citizens of other states, that Bingham’s assertion that the clause imposed no new obligations on the states means that the clause only authorized federal enforcement of the Article IV P&I obligation. Quite simply, by saying that the clause imposed no new obligations on the states, Bingham could well have had in mind prior obligations additional to those imposed by the article IV P&I clause. (P2) and (P3) are necessary to conclude (C1), but they are not sufficient. You need the additional proposition that when Bingham spoke of obligations, he meant only those arising under the Article IV P&I clause.

It does not seem to me likely that this restrictive reading of Bingham is the case. I have demonstrated, I think, that Bingham believed and consistently said that the Bill of Rights (or numerous parts of it) were in fact binding on the states from the beginning of the Republic. Though the federal government had not been clothed with the power to enforce them, they remained, in his view, binding. Slavery, even before the ratification of the 13th, was unconstitutional because the fifth amendment was binding on the states. It does not very much matter whether the source of this obligation was the Article IV P&I clause (as he seems to say on May 10th) or whether it is through the state officials’ oaths of office (as he says in other places). So long as he perceived there to be a real true constitutional obligation, then, whenever he says that the P or I clause imposes on the states no new obligation, he may be said to consider as within the old obligation the requirement to adhere to the Bill of Rights (or to the relevant portions thereof).

I hope that this makes my objections clear.

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November 24, 2009, 2:27 am
jrose says:

Mr. Speaker, 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.

Why is he singling out citizens of a state? If these P&I’s of U.S. citizens also mean citizens of the states there is no reason.

Are we all too drunk to understand plain English? Bingham believes the P&I’s as a result of state citizenship are defined by each state. But, they cannot be less than the different set of P&I’s (the Bill of Rights) that result from U.S. citizenship.

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November 24, 2009, 8:41 am
PubliusFL says:

J. Aldridge: I’m not sure he is talking about SC citizens under the P&I’s.

Read the speech again:

That ordinance [of South Carolina] contained these words:

‘The allegiance of the citizens of this State is due to the State and no allegiance is due from them to any other Power or authority. . . .’

. . . .

But, sir, that body of great and patriotic men looked in vain for any grant of power in the Constitution by which to give protection to the citizens of the United States resident in South Carolina against the infamous provision of the ordinance which required them to abjure the allegiance which they owed their country.

The SC law only applied to citizens of South Carolina. How could it say that citizens of OTHER states owe allegiance only to South Carolina and not to any other power or authority? Bingham then refers to the Constitution’s failure to give protection “to the citizens of the United States resident in South Carolina” against this law. Here he is obviously referring to the citizens of South Carolina, the only people to whom the law could apply. And he does so using the same terms as Section 1 of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In summary: the citizens of South Carolina are also citizens of the United States residing in South Carolina. Therefore the government of the United States has an interest in ensuring that the rights of its own citizens (though they may also be South Carolina citizens) are not infringed by the state government. The original Constitution did not grant Congress any power to do so, so the 14th Amendment was necessary to remedy that defect.

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November 24, 2009, 9:38 am
Glenn Bowen says:

That’s not what I heard. The story around here is that Dr Pepper contains prune juice.

The first twelve rounds are on me– it’ll take that much at least as an initial dose.

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November 24, 2009, 10:57 am
andrew graham says:

And of course I don’t see this until the morning.

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November 24, 2009, 11:56 am
James T. Carrington says:

ArthurKirkland: I recommend and enjoy alcohol beverages, particularly beers. Evidence indicates those who consume moderate volumes of alcohol live longer and are healthier than those who abstain. Not to mention more sociable (in general).Intemperance, however, is a severe health risk (for the consumer and others); it is irresponsible to promote heavy consumption (and that study that discusses consuming 11 drinks a day in the context of a health benefit seems highly irresponsible). I dislike drinking games unless the “drink” is a sip of beer. Alcohol is a great product whose role in the history of the United States (and that of civilization in general) is important, interesting and fun.Were I a conservative, I would apply for the VC’s alcohol beat. By the way (and speaking of drinking games): Unless one would enjoy rolling a ping pong ball along a restroom floor for several minutes and then sucking on it for another minute, beer pong is a bad idea. That makes it a strange game to watch, and worse even than the proposed Bingham game.

The real drunks play beer pong / quarters with the pyramid cups containing water, and then consume their personal poison of choice when losing a cup to the ball / quarter. Flipcups is another matter entirely in the hygiene department.

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November 24, 2009, 11:56 am
Matthew says:

alredy to drunk to tipe anymor coments

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November 24, 2009, 1:48 pm
J. Aldridge says:

PubliusFL: The SC law only applied to citizens of South Carolina. How could it say that citizens of OTHER states owe allegiance only to South Carolina and not to any other power or authority? Bingham then refers to the Constitution’s failure to give protection “to the citizens of the United States resident in South Carolina” against this law. Here he is obviously referring to the citizens of South Carolina, the only people to whom the law could apply.

Well he is talking about citizens of the United States and not citizens of S.C. after he had made a big deal over the significance of citizens of a state and citizens of the United States. He might be referring to the revenue officers of the United States since this is the S.C. dispute in question.

Edit: I think I am right here. I remember now he making a big issue somewhere over the protection and treatment of United States revenue officers within S.C. and there was little the Congress could do to protect them short of calling out the militia.

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November 24, 2009, 2:33 pm
J. Aldridge says:

jrose: Are we all too drunk to understand plain English? Bingham believes the P&I’s as a result of state citizenship are defined by each state. But, they cannot be less than the different set of P&I’s (the Bill of Rights) that result from U.S. citizenship.

But he never said that prior to March 31, 1871. Up to this time he said just the opposite.

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November 24, 2009, 2:41 pm
J. Aldridge says:

PubliusFL: In summary: the citizens of South Carolina are also citizens of the United States residing in South Carolina.

Why didn’t Congress extend enforcement of the P&I’s to citizens of a state resident within their own state then?

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November 24, 2009, 2:43 pm
Oren says:

Well he is talking about citizens of the United States and not citizens of S.C.

There can be no such thing after the 14A declared that all citizens of (e.g. SC) are also US citizens concurrently to their SC citizenship.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

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November 24, 2009, 3:10 pm
PubliusFL says:

J. Aldridge: Well he is talking about citizens of the United States and not citizens of S.C. after he had made a big deal over the significance of citizens of a state and citizens of the United States. He might be referring to the revenue officers of the United States since this is the S.C. dispute in question.

The SC law he quotes explicitly applies only to “citizens of this State” (SC), declaring that they owe allegiance only to SC, and that the citizens and officers of the state of SC may be required to take oaths abjuring all other allegiance. Are you saying that when he refers to “the infamous provision of the ordinance which required them to abjure the allegiance which they owed their country,” he is referring to a statute that is different from the one he had quoted a few paragraphs earlier, but which also deals with abjuring allegiance?

J. Aldridge: Why didn’t Congress extend enforcement of the P&I’s to citizens of a state resident within their own state then?

You mean like it did via the Civil Rights Act of 1871? 42 U.S.C. § 1983 (originally part of the 1871 act) does apply to citizens of a state resident within their own state, and does protect such citizens against infringement of their constitutional privileges or immunities. The only problem is that the content of these privileges or immunities was eviscerated by the Slaughterhouse Cases.

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November 24, 2009, 3:12 pm
Gene Hoffman says:

J. Aldridge:
Well he is talking about citizens of the United States and not citizens of S.C. after he had made a big deal over the significance of citizens of a state and citizens of the United States.

And finally J. Aldridge admits that the logical outcome of his position is that residents of South Carolina are not Citizens of the United States or of South Carolina!

–Gene

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November 24, 2009, 4:09 pm
J. Aldridge says:

Oren: There can be no such thing after the 14A declared that all citizens of (e.g. SC) are also US citizens concurrently to their SC citizenship.

But citizens of the United States cannot claim any privileges and immunities until they remove themselves from their own state into another. This has long been Bingham’s argument and the courts.

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November 24, 2009, 6:28 pm
J. Aldridge says:

PubliusFL: You mean like it did via the Civil Rights Act of 1871? 42 U.S.C. § 1983 (originally part of the 1871 act) does apply to citizens of a state resident within their own state, and does protect such citizens against infringement of their constitutional privileges or immunities.

Not according to Trumbull who wrote it.

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November 24, 2009, 6:32 pm
PubliusFL says:

J. Aldridge:
But citizens of the United States cannot claim any privileges and immunities until they remove themselves from their own state into another. This has long been Bingham’s argument and the courts.

Where do you see that? Bingham’s statement about the SC statute that we’ve been discussing logically applies only to SC citizens residing in their own state. How can it apply to anyone else?

J. Aldridge:
Not according to Trumbull who wrote it.

Quote? I see no limitation in the statute’s text.

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November 24, 2009, 8:23 pm
Oren says:

But citizens of the United States cannot claim any privileges and immunities until they remove themselves from their own state into another. This has long been Bingham’s argument and the courts.

So, your position is that the Federal Government can restrict the freedom of the press in MA so long as they make an exception for non-MA residents? IOW, so long as I am present in my home state, the P&I’s (which are chiefly defined by the A1-8) do not apply to me?

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November 24, 2009, 8:38 pm
Nathan Wagner says:

Oren: So, your position is that the Federal Government can restrict the freedom of the press in MA so long as they make an exception for non-MA residents?

J. Aldridge’s position is that MA could restrict the freedom of the press absolutely, without in any way violating the federal constitution. What MA could not do, however, is to guarantee freedom of the press for its own citizens while restricting it for citizens of other states. In that latter case the out-of-staters who were denied freedom of the press could seek federal remedy under the P or I clause of the 14th amendment.

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November 24, 2009, 9:25 pm
PubliusFL says:

Nathan Wagner:
J. Aldridge’s position is that MA could restrict the freedom of the press absolutely, without in any way violating the federal constitution.What MA could not do, however, is to guarantee freedom of the press for its own citizens while restricting it for citizens of other states.In that latter case the out-of-staters who were denied freedom of the press could seek federal remedy under the P or I clause of the 14th amendment.

Unfortunately for Mr. Aldridge’s theory, the 14th Amendment says nothing about in-staters versus out-of-staters. Just “citizens of the United States,” which applies equally to both groups.

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November 24, 2009, 11:18 pm
Oren says:

Nathan, I got that much. Indeed, the MA government did impose all manner of restrictions on free speech until the Warren Court started smacking them around, so I don’t doubt it one bit.

What I don’t understand his how Federal P&I’s (chiefly defined by the first eight amendments, acting) can be a function of whether I reside permanently in the state in which I am currently situated. That makes no sense. The first eight amendments of the Constitution surely apply to the Federal Government irrespective of residency status.

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November 24, 2009, 11:21 pm
J. Aldridge says:

PubliusFL: Unfortunately for Mr. Aldridge’s theory, the 14th Amendment says nothing about in-staters versus out-of-staters. Just “citizens of the United States,” which applies equally to both groups.

No. Bingham always said the P&I clause under the 14A was a direct import from Article 4, Section 2. That has always been interpreted to mean privileges or immunities citizens from out of state could claim.

BTW, it is Bingham’s theory, not mine.

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November 25, 2009, 12:05 am
Nathan Wagner says:

Oren,

We’re at the tail end of this thread, and I don’t know if Mr. Aldridge is still around, but I think I can state his views. He can certainly correct me if I make a mistake.

Let’s break this up into different questions.

(1) Do “the first eight amendments...apply to the Federal Government irrespective of residence status”?

J. Aldridge would answer yes. He would say they are binding on the Federal government, but most of them are never binding on the states.

(2) Are the Federal P&I’s defined by the first eight amendments?

J. Aldridge would answer no. His contention is that the P or I clause of the 14th Amendment merely gave the Federal government the power to enforce the P&I clause of Article IV against the states.

But doesn’t the Article IV P&I clause effectively refer to the Bill of Rights? Again, J. Aldridge would say no (and here he’s mainstream). The Article IV P&I clause simply says that no state may deny to citizens of another state the P&I’s it accords its own citizens. Thus the P&I clause of Article IV does not undertake to define specific P&I’s: it just says that whatever P&I’s a state chooses to recognize for its own citizens, it must also recognize in its dealings with all citizens of the United States irrespective of residence.

In J. Aldridge’s view, therefore, because the P or I clause of the 14th only gives the federal government the power to enforce the P&I clause of Article IV, and because the P&I clause of Article IV does not create federal P&I’s, the P or I clause of the 14th Amendment itself does not enforce any federally-defined rights against the states. It has no content of specific rights. All it does is to give the federal government the power to intervene if a state, in contravention of the Article IV P&I clause, denies to residents of another state rights that it accords its own citizens.

(3) Does the 14th enforce the Bill of Rights against the states, whether through the P or I clause or otherwise?

J. Aldridge would say that the 14th only incorporates the due process clause of the fifth amendment against the states. Nothing else — no other portion of the first eight amendments — is constitutionally enforceable by the federal government against the states.

I hope this helps.

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November 25, 2009, 12:26 am
Nathan Wagner says:

Mr. Aldridge,

Do you care to address the argument I made in my comment last night that it is not sufficient to establish your point to argue (1) that Bingham understood the Article IV P&I clause only to require that each state accord citizens of other states the same P&I’s it accords its own citizens and (2) to point to statements by Bingham that the 14th imposes no new obligations on the states?

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November 25, 2009, 12:42 am
PubliusFL says:

J. Aldridge:
No. Bingham always said the P&I clause under the 14A was a direct import from Article 4, Section 2. That has always been interpreted to mean privileges or immunities citizens from out of state could claim.BTW, it is Bingham’s theory, not mine.

Where in Section 1 of the 14th Amendment do you see any limitation on which U.S. citizens’ privileges or immunities a state is prohibited from abridging? If the text contains no such limitation, but instead is phrased in absolute terms, why do you think that is?

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November 25, 2009, 6:55 am
David Nieporent says:

J. Aldridge: No. Bingham always said the P&I clause under the 14A was a direct import from Article 4, Section 2. That has always been interpreted to mean privileges or immunities citizens from out of state could claim. BTW, it is Bingham’s theory, not mine.

It’s not Bingham’s theory; you have never quoted a single thing where he said that there was a distinction between in-state and out-of-state. (No, “in, and not of” says nothing about in-state vs. out-of-state.)

And, contrary to your claim, Article 4, Section 2 says nothing about in-state vs. out-of-state either. Moreover, the fact that Bingham said that the P&I clause imported Article 4, Section 2 rights — he did say that, but he also explicitly said it imported the first eight amendments (he read them into the record so even the dimwittedest person would know exactly what he meant) — does not mean it imported procedural limitations from Article 4, Section 2. You really don’t grasp the difference between substantive issues and procedural ones. (When he says that the 14th amendment involved no new rights, he didn’t mean that it didn’t do anything; he meant that it involved existing rights which could now be enforced against the states.)

The bottom line, though, is that it doesn’t matter what Bingham said; it matters what the text of the 14th amendment says. And nothing in there makes any distinction between in-state and out-of-state.

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November 25, 2009, 7:30 am
Oren says:

No. Bingham always said the P&I clause under the 14A was a direct import from Article 4, Section 2.

Except when he said (as quoted above) that the P&I’s therein are chiefly defined by the first eight amendments.

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November 25, 2009, 10:15 am
Nathan Wagner says:

David,

Speaking purely textually, I think J. Aldridge’s argument is not so easily dismissed. If the P or I clause incorporates the first eight amendments, then the due process clause is redundant. Moreover, Aldridge has cited some legislative history to the effect that there was an attempt in committee to expressly quote other clauses of the Bill of Rights in section 1, but this was defeated. That sort of maneuvering would be pointless if the P or I clause already incorporates the first 8 amendments.

What then does it mean? J. Aldrige contends that the P or I clause, by apeing the language of the Article IV P&I clause, was only designed to allow Congress to enforce the Article IV P&I clause. And he is correct, moreover, that the Article IV P&I clause does not define or create rights. Let me explain.

We speak today of residency rather than citizenship when talking about states. But in 1789, the individual states were pretty much their own nations, so the idea of state citizenship had more significant meaning. A state might, for example, levy a fee for passage on a road. Without the Article IV P&I clause, the state could have excepted its own citizens from the fee, while charging it to citizens of other states. This would have been an immunity the state allowed its citizens. The Article IV injunction, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” means that each state has to treat citizens of other states in the US the same way it treats its own citizens. If it excepts its own citizens from the fee, then it must also except the citizens of every state in the union from the fee.

Notice, however, that the clause only references the P&I’s recognized by the individual states. Its purpose is not to spell out what P&I’s a state must recognize but rather to spell out for whom the state must recognize them. The Article IV P&I clause, therefore, does not create specific federal rights.

Thus, J. Aldridge’s argument, in my view, actually makes a great deal of logical and textual sense. The problem with it, again in my view, is that Bingham says all over the place that the Bill of Rights applied to the states even prior to the 14th. Sometimes he appears to say that it applied by virtue of the Article IV P&I clause — that was a Radical Republican interpretation. At other times he follows Webster in saying that it applies by virtue of the state official’s oaths to uphold the US Constitution. Because he had this expansive view of the pre-14th scope of the Bill or Rights, it is difficult for me to believe that Bingham thought the 14th meant something as narrow as J. Aldridge suggests.

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November 25, 2009, 2:59 pm
J. Aldridge says:

Oren: Except when he said (as quoted above) that the P&I’s therein are chiefly defined by the first eight amendments.

Right, in 1871 and 2 months after he said nothing was added to them and they were the same as found under the original constitution, section 2, article 4. His March 31 statement is not persuasive.

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November 25, 2009, 4:33 pm
J. Aldridge says:

David Nieporent: It’s not Bingham’s theory; you have never quoted a single thing where he said that there was a distinction between in-state and out-of-state. (No, “in, and not of” says nothing about in-state vs. out-of-state.)

Yes I have, its just you keep diverting attention from them because they destroy your 2A bubble.

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November 25, 2009, 4:35 pm
jrose says:

Speaking purely textually, I think J. Aldridge’s argument is not so easily dismissed

I disagree. Article IV’s P&I clause is vague enough to be open to many interpretations, including Aldridge’s (a state must treat other state’s citizens the same as it treats its own). But, the text of the 14th’s P or I clause further restricts the states from abridging the P or I’s of citizens of the United States. To me, that means those P or I’s are absolutes across the entire country. What they include (Bill of Rights or other things) is a separable issue.

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November 25, 2009, 4:37 pm
J. Aldridge says:

Nathan Wagner: The problem with it, again in my view, is that Bingham says all over the place that the Bill of Rights applied to the states even prior to the 14th.

No problem if you understand he actually defined the bill of rights he was talking about as Article 4, Section 2 and due process and not the entire 8 amendments.

The protection of the laws of due process, and their equal application, is a P&I. Only reason due process is found because he wanted alen and stranger to be protected and not just citizens of the states.

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November 25, 2009, 4:38 pm
J. Aldridge says:

jrose: But, the text of the 14th’s P or I clause further restricts the states from abridging the P or I’s of citizens of the United States. To me, that means those P or I’s are absolutes across the entire country. What they include (Bill of Rights or other things) is a separable issue.

Except he always refer to Article 4, Section 2 as only applying to United States citizens even though the words do not exist under Article 4.

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November 25, 2009, 4:46 pm
David Nieporent says:

J. Aldridge: J. Aldridge says:

Oren: Except when he said (as quoted above) that the P&I’s therein are chiefly defined by the first eight amendments.

Right, in 1871 and 2 months after he said nothing was added to them and they were the same as found under the original constitution, section 2, article 4. His March 31 statement is not persuasive.

Sorry, but you don’t get to quote him as gospel when you want and ignore him when it undermines your case. He said it. It’s exactly as “persuasive” as anything else he said. The difference is, it’s directly on point, so it’s much clearer than anything you’ve cited, none of which says what you want it to.

Moreover, once you understand that he thought that they were always protected, then there’s no contradiction. Nothing was added, because they were already there. They were the same as found in the original constitution.

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November 25, 2009, 5:01 pm
J. Aldridge says:

David Nieporent: Sorry, but you don’t get to quote him as gospel when you want and ignore him when it undermines your case. He said it. It’s exactly as “persuasive” as anything else he said. The difference is, it’s directly on point, so it’s much clearer than anything you’ve cited, none of which says what you want it to.

The problem is you want to ignore the fact he said these P&I’s are distinguished from citizens of a state and citizens of the United States. There is no purpose to make such a distinction if there was no distinction between the two.

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November 25, 2009, 5:14 pm
J. Aldridge says:

David Nieporent: Moreover, once you understand that he thought that they were always protected, then there’s no contradiction. Nothing was added, because they were already there. They were the same as found in the original constitution.

As usual, you are dead wrong. He never said they were always protected, only that he didn’t understand why the framers did not give congress the power to enforce Article 4, Section 2.

You are right they are the same found under the original constitution, but you ignore the fact under the original constitution they never had anything to do with the first 8 amendments.

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November 25, 2009, 5:21 pm
jrose says:

Speaking purely textually

the text of the 14th’s P or I clause further restricts the states from abridging the P or I’s of citizens of the United States. To me, that means those P or I’s are absolutes across the entire country.

Except he always refer to Article 4, Section 2 as only applying to United States citizens even though the words do not exist under Article 4.

He? Would that be He Who Must Not Be Named (else you get drunk). Nah, couldn’t be. He Who Must Not Be Named has no bearing when we are “speaking purely textually”.

Also, it is clear from the text that since Article 4 only applies to citizens of each state, it only applies to United States citizens (every citizen of a state is also a U.S. citizen). So what? That unremarkable conclusion has no bearing at all on whether the 14th Amendments’ P or I’s are different than those of Article 4.

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November 25, 2009, 8:44 pm
David M. Nieporent says:

J. Aldridge: No problem if you understand he actually defined the bill of rights he was talking about as Article 4, Section 2 and due process and not the entire 8 amendments.The protection of the laws of due process, and their equal application, is a P&I. Only reason due process is found because he wanted alen and stranger to be protected and not just citizens of the states.

Even less of a problem if you understand that when he said bill of rights he meant the bill of rights, which we know he did because he explicitly said so. He said the P&I were to be found chiefly in the first eight amendments.

The problem is that your hypothesis requires you to completely ignore his March 1871 speech, whereas everyone else’s understanding finds no contradiction between that speech and his other comments.

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November 25, 2009, 8:57 pm
Nathan Wagner says:

J. Aldridge:
No problem if you understand he actually defined the bill of rights he was talking about as Article 4, Section 2 and due process and not the entire 8 amendments.

The protection of the laws of due process, and their equal application, is a P&I. Only reason due process is found is because he wanted alien and stranger to be protected and not just citizens of the states.

I afraid I think this actually makes your case less convincing. The weightiest aspect of your case, to me, is that by your reading no part of the 14th is redundant. If the P or I clause only gives the federal government power to enforce the Article IV P&I clause, and if Article IV only refers to state P&I’s without creating federal ones (as has been the consistent judicial and scholarly interpretation), then the necessity of the due process and equal protection clauses is plain. If, however, the Article IV P&I clause actually does create federal rights to due process and equal protection that the states from the beginning were bound to respect by virtue of federal constitutional injunction, then the 14th’s due process and equal protection clauses are redundant: the 14th’s P or I clause has done all the work already.

True, you state that Bingham included due process because he wanted to extend it aliens and strangers rather than just citizens. Well, the 5th is not limited to citizens, so you are positing a separate implicit due process right created only by Article IV section 2. That’s a lot of machinery.

But even conceding the point, the equal protection clause is limited by the jurisdiction clause, the function of which (to open a can of worms) is to exclude aliens. That makes it wholly redundant.

Moreover, the claim that the Article IV P&I clause creates no specific federal rights has the virtue, not only of being the accepted interpretation, but also of freeing us from the necessity to determine what anyone believed them to be. Once argue that specific federal rights were created by Article IV, and we immediately get into the mess of trying to determine their scope — or at least what Bingham believed their scope to be. I think we’ve demonstrated in this thread that he said enough that trying to argue he believed they only included due process and equal protection is not an easy battle.

Drop Bingham. You’ve got a better textual case without him.

It’s been fun. Happy Thanksgiving!

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November 25, 2009, 10:22 pm
J. Aldridge says:

David M. Nieporent: Even less of a problem if you understand that when he said bill of rights he meant the bill of rights, which we know he did because he explicitly said so. He said the P&I were to be found chiefly in the first eight amendments.

True, but he says those P&I’s that are chiefly defined in the first eight amendments only applied to citizens of the United States as such, and not citizens of a State. Plus, he never said the P&I’s of U.S. citizens applied to citizens under their own States, or that they included the first 8 amendments in 1866. The fact is he said just the opposite.

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November 25, 2009, 10:27 pm
jrose says:

But even conceding the point, the equal protection clause is limited by the jurisdiction clause, the function of which (to open a can of worms) is to exclude aliens. That makes it wholly redundant

I disagree. Green card holders and most temporary visitors are subject to the jurisdiction of the states.

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November 25, 2009, 10:39 pm
David Nieporent says:

J. Aldridge: True, but he says those P&I’s that are chiefly defined in the first eight amendments only applied to citizens of the United States as such, and not citizens of a State.

Citizens of a state are citizens of the United States. You’re imagining distinctions that don’t exist.

Plus, he never said the P&I’s of U.S. citizens applied to citizens under their own States, or that they included the first 8 amendments in 1866. The fact is he said just the opposite.

No, he didn’t. You can’t find any quote where he did. You can find quotes where he said “in, not of,” or other random sentence fragments out of context, but you can’t find any quote where he said, “P&Is of U.S. citizens do not apply to citizens under their own States” or “P&I of U.S. citizens do not include the first 8 amendments.” Those would be “just the opposite,” but he didn’t say those things.

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November 25, 2009, 10:51 pm
J. Aldridge says:

Nathan Wagner: True, you state that Bingham included due process because he wanted to extend it aliens and strangers rather than just citizens. Well, the 5th is not limited to citizens, so you are positing a separate implicit due process right created only by Article IV section 2. That’s a lot of machinery.

The protection of the laws in due process was always a recognized P&I of U.S. citizens long before there was ever a 14A. The reason is all governments are instituted to provide protection in life, liberty and property to its citizens. The P&I’s tells states not to discriminate against other state citizens by withholding the protection of the laws. The only thing the 14A does is allow Congress to enforce it. There can no longer be any discrimination of U.S. citizens like the Constitution of Oregon once did.

The 14A makes none of this “redundant.”

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November 25, 2009, 11:41 pm
J. Aldridge says:

David Nieporent: Citizens of a state are citizens of the United States. You’re imagining distinctions that don’t exist.

True, but not for purposes of P&I’s. Did you ever hear of anyone ever claiming the protection of the P&I’s under Article 4 against their own state in the 19th century?

I don’t know how much clearer he could had been that the P&I’s do not apply to citizens as citizens of a state in House Report No. 22. It is clear he said the P&I’s are the same as found under the original constitution, and nothing was added to them. I know of no court case that ever said these P&I’s can be claimed by citizens of a state against their own state. Shellenbarger was very clear citizens under their own state cannot claim any P&I’s of citizens of the United States.

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November 25, 2009, 11:51 pm
Grubbs says:

David Nieporent: Citizens of a state are citizens of the United States. You’re imagining distinctions that don’t exist.

I don’t think he is imagining anything because if there was no distinctions there would be no reason to refer to both terms “citizens of a state” and “citizens of the United States.” John Bingham is on record saying the 14th amendment did not change the relations between the two as they had always existed.

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November 26, 2009, 12:08 am
David Nieporent says:

J. Aldridge: True, but not for purposes of P&I’s. Did you ever hear of anyone ever claiming the protection of the P&I’s under Article 4 against their own state in the 19th century?

Sure. See the Slaughterhouse cases. That’s exactly what the plaintiffs claimed.

J. Aldridge: I don’t know how much clearer he could had been that the P&I’s do not apply to citizens as citizens of a state in House Report No. 22.

Really? You don’t know how? I do. Here’s how much clearer he could have been: “The P&Is do not apply to citizens as citizens of a state.” But he didn’t say that.

It is clear he said the P&I’s are the same as found under the original constitution, and nothing was added to them.

Right. But that’s a substantive question — what the P&Is are — not the procedural question of who can enforce them.

I know of no court case that ever said these P&I’s can be claimed by citizens of a state against their own state.

So?

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November 26, 2009, 12:39 am
J. Aldridge says:

David Nieporent: Sure. See the Slaughterhouse cases. That’s exactly what the plaintiffs claimed.

Yes, but what did the court say? They said the same thing congress had said.

David Nieporent:
So?

So you have not been arguing American law, just fantasy.

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November 26, 2009, 12:53 am
J. Aldridge says:

Grubbs: I don’t think he is imagining anything because if there was no distinctions there would be no reason to refer to both terms “citizens of a state” and “citizens of the United States.” John Bingham is on record saying the 14th amendment did not change the relations between the two as they had always existed.

You can’t point out facts to David Nieporent. You can argue there is no such thing as Santa Claus and he would argue he just sat in his lap at the mall.

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November 26, 2009, 12:58 am
David Nieporent says:

J. Aldridge: You can’t point out facts to David Nieporent. You can argue there is no such thing as Santa Claus and he would argue he just sat in his lap at the mall.

You mean like the “fact” that when Bingham said “bill of rights” he didn’t mean “bill of rights”?

Or the “fact” that when Bingham said “chiefly found in the first eight amendments,” he didn’t mean “chiefly found in the first eight amendments”?

Or the “fact” that even though the 14th amendment has no limits in its text based on which state a person was a citizen of, the 14th amendment secretly was only meant to apply to citizens of other states?

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November 26, 2009, 1:14 am
J. Aldridge says:

David Nieporent: You mean like the “fact” that when Bingham said “bill of rights” he didn’t mean “bill of rights”?

You mean the fact Bingham said the “bill of rights” he was talking about was only the P&I’s under Article 4.

David Nieporent:
Or the “fact” that when Bingham said “chiefly found in the first eight amendments,” he didn’t mean “chiefly found in the first eight amendments”?

You mean when he was talking about what a citizen of the United State might claim as distinguished from a citizen of a state? (Ignoring for the moment he all but called himself a liar two months earlier over what he was claiming on March 31, 1871.)

David Nieporent:
Or the “fact” that even though the 14th amendment has no limits in its text based on which state a person was a citizen of, the 14th amendment secretly was only meant to apply to citizens of other states?

You mean you still haven’t learned the distinction between a citizen of a state and that of a citizen of the United States in terms of P&I’s? What had always been their relationship?

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November 26, 2009, 1:57 am
jrose says:

J. Aldridge: True, but he says those P&I’s that are chiefly defined in the first eight amendments only applied to citizens of the United States as such, and not citizens of a State. Plus, he never said the P&I’s of U.S. citizens applied to citizens under their own States

If those P&I’s (chiefly the first eight amendments) only apply to citizens of the United States as such, then the prohibition against abridging them must be limited to restrictions on federal law. But, the plain text of the 14th Amendment (“No State shall”) contradicts that claim. Moreover, “No State” would cover my own state as well as all the others.

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November 26, 2009, 9:03 am
J. Aldridge says:

jrose: If those P&I’s (chiefly the first eight amendments) only apply to citizens of the United States as such, then the prohibition against abridging them must be limited to restrictions on federal law.

If the P&I’s were in fact chiefly defined by the the first eight amendments than he would had said so long before 1871. The fact he is he never said they were and had always said just the opposite of what he said on March 31, 1871.

The text says “no state shall” means no state shall discriminate against citizens of other states like Oregon had. That is all it means. That is all the P&I’s ever meant.

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November 26, 2009, 11:40 am
David Nieporent says:

J. Aldridge: If the P&I’s were in fact chiefly defined by the the first eight amendments than he would had said so long before 1871. The fact he is he never said they were and had always said just the opposite of what he said on March 31, 1871.

He did say so. He used the phrase “bill of rights.” You just ignore him and pretend that when he said bill of rights he didn’t mean the bill of rights. At no point did he ever say the “opposite” of what he said on March 31, 1871.

J. Aldridge: The text says “no state shall” means no state shall discriminate against citizens of other states like Oregon had. That is all it means. That is all the P&I’s ever meant.

If they had meant “no state shall discriminate against citizens of other states” they would have said “no state shall discriminate against citizens of other states.” But they didn’t say that. (*) They just said that no state shall abridge the P&I of citizens of the United States.

(*) Or, rather, they did — but that was the equal protection clause, not the P&I clause.

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November 26, 2009, 12:07 pm
J. Aldridge says:

David Nieporent: He did say so. He used the phrase “bill of rights.” You just ignore him and pretend that when he said bill of rights he didn’t mean the bill of rights. At no point did he ever say the “opposite” of what he said on March 31, 1871.

You ignore the fact he said what “bill of rights” he was talking about and it wasn’t the entire first 8 amendments.

David Nieporent:If they had meant “no state shall discriminate against citizens of other states” they would have said “no state shall discriminate against citizens of other states.”

Why? It was universally accepted the P&I’s of United States citizens did not apply to citizens of the United States within their own state. Bingham was very clear the 14A did not change this fact.

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November 26, 2009, 1:19 pm
jrose says:

J. Aldridge:The text says “no state shall” means no state shall discriminate against citizens of other states like Oregon had. That is all it means. That is all the P&I’s ever meant.

And if you are wrong about the meaning of P or I’s in the 14th, and they do refer to (at least) the Bill of Rights, would you agree that states are required to not abridge those rights as it relates to the citizens of their own and other states?

I know that “if” is something you disagree with, but before debating the substance of the “if”, I want to confirm that you concur that other defenses you have proposed (such as a distinction between state and national citizenship) do not hold under the assumption (yet to be discussed) that you are wrong about the “if”

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November 26, 2009, 2:51 pm
J. Aldridge says:

jrose: And if you are wrong about the meaning of P or I’s in the 14th, and they do refer to (at least) the Bill of Rights, would you agree that states are required to not abridge those rights as it relates to the citizens of their own and other states?

That is too hypothetical of a question because it consists of two hypotheticals, which if either is correct destroys your argument.

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November 26, 2009, 6:04 pm
jrose says:

It’s one hypothetical (the meaning of the P or I’s in the 14th refers to at least the Bill of Rights), and a very easy question to answer.

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November 26, 2009, 6:47 pm
PubliusFL says:

J. Aldridge: You ignore the fact he said what “bill of rights” he was talking about and it wasn’t the entire first 8 amendments.

Quote?

J. Aldridge:
Why? It was universally accepted the P&I’s of United States citizens did not apply to citizens of the United States within their own state. Bingham was very clear the 14A did not change this fact.

Then why did Bingham use a South Carolina statute applicable to South Carolina’s own citizens as an example of an abridgment of the privileges and immunities of citizens of the United States when explaining the meaning of Section 1 of the 14th Amendment in the House, back in 1866 (May 10)? Why did he describe the constitutional want supplied by the amendment as “the power . . . to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State”?

Later that same month, why did Senator Jacob Howard describe the extent of Section 1 thusly?:

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon state legislation. . . .
The great object of the first section of this amendment is, therefore, to restrain the power of the states and compel them at all times to respect these great fundamental guarantees.

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November 27, 2009, 11:54 am
J. Aldridge says:

PubliusFL: J. Aldridge: You ignore the fact he said what “bill of rights” he was talking about and it wasn’t the entire first 8 amendments.

Quote?

“Gentlemen admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several Slates, and that no person shall be deprived of life, liberty; or property without due process of law.”

PubliusFL:
Then why did Bingham use a South Carolina statute applicable to South Carolina’s own citizens as an example of an abridgment of the privileges and immunities of citizens of the United States when explaining the meaning of Section 1 of the 14th Amendment in the House, back in 1866 (May 10)?

Seems to me he said at the time he was speaking of “remedy by law for the invasion of the rights of the Federal Government and for the protection of its officials and those assisting them in executing the revenue laws.” Bingham: “Why was the act to provide for the collection of the revenue passed, and to protect all acting under it, and no protection given to secure the citizen against punishment for fidelity to his country?”

He mentioned it before and complained of the lack of protection of U.S. citizens within SC collecting revenue from SC laws. But this was when SC was on the warpath over duties many years before.

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November 27, 2009, 4:17 pm
PubliusFL says:

J. Aldridge:
“Gentlemen admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several Slates, and that no person shall be deprived of life, liberty; or property without due process of law.”

Aha, so things have changed a little. Before you said that Aldridge used “bill of rights” to refer ONLY to the protections of Article IV, Section 2. Notice that here he refers to the 5th Amendment as well, which is part of (lo and behold) the Bill of Rights. It was not uncommon in these debates for people to discuss the individual rights protections in the Constitution collectively — the first 8 amendments together with the protections in the original Constitution like Art IV Sec 2.

Also, Bingham is NOT (as you say) defining “bill of rights” as the P&I clause or even the P&I clause plus the 5th Amendment. He is simply using a partitive construction, indicating which part of the bill of rights he is discussing. If I were to talk about “the force of the provision in the bill of rights that Congress may pass no law respecting an establishment of religion,” would you conclude that my conception of the bill of rights consists only of the establishment clause?

J. Aldridge: Seems to me he said at the time he was speaking of “remedy by law for the invasion of the rights of the Federal Government and for the protection of its officials and those assisting them in executing the revenue laws.” Bingham: “Why was the act to provide for the collection of the revenue passed, and to protect all acting under it, and no protection given to secure the citizen against punishment for fidelity to his country?”He mentioned it before and complained of the lack of protection of U.S. citizens within SC collecting revenue from SC laws. But this was when SC was on the warpath over duties many years before.

No, citizens actually collecting revenue were protected. He said that back 33 years before, when South Carolina passed its objectionable law, Congress WAS able to pass a law protecting federal revenue officers and any SC citizens assisting them, but Congress was NOT able to pass a law protecting ordinary SC citizens forced to abjure their allegiance to the United States. Hence the need for the 14th Amendment PorI clause. But the PorI clause would be absolutely useless to remedy this defect unless it served to protect SC citizens living in SC against an act of their own state government — the very evil complained of.

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November 28, 2009, 8:42 am
J. Aldridge says:

PubliusFL: Notice that here he refers to the 5th Amendment as well, which is part of (lo and behold) the Bill of Rights. It was not uncommon in these debates for people to discuss the individual rights protections in the Constitution collectively — the first 8 amendments together with the protections in the original Constitution like Art IV Sec 2.

Why does people automatically think he is talking about the entire first eight amendments when he was simply referring only to due process and Article 4?

Note he says it is a P&I “to bear true allegiance to the Constitution
and laws of the United States.” Never heard of that P&I before. Congress already defined them in the civil rights bill and neither allegiance or any of the eight amendments were included. Plus, you don’t quote Kent or Story as to the meaning of the P&I’s when you want them to either be applicable to a citizen within his/her own state, or want to include all sorts of “hidden” rights.

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November 29, 2009, 11:14 pm
PubliusFL says:

J. Aldridge: Why does people automatically think he is talking about the entire first eight amendments when he was simply referring only to due process and Article 4?

Here he is referring to due process and Article IV. The point is that his language is not exclusive. You cannot extrapolate from the quote you gave to conclude that whenever Bingham refers to the “bill of rights,” he is referring only to only the due process clause and P&I clause, against all tradition and common usage.

J. Aldridge: Note he says it is a P&I “to bear true allegiance to the Constitutionand laws of the United States.” Never heard of that P&I before.

But whether you have heard of that privilege or immunity before or not, it seems indisputable that the 14th Amendment privileges or immunities clause must apply to a state’s own citizens for Bingham’s speech to make any sense. Yeah, I don’t quote Kent or Story, because what I’m trying to nail down here is Bingham’s understanding of the 14th Amendment PorI clause.

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November 30, 2009, 8:48 am
J. Aldridge says:

PubliusFL: Here he is referring to due process and Article IV. The point is that his language is not exclusive. You cannot extrapolate from the quote you gave to conclude that whenever Bingham refers to the “bill of rights,” he is referring only to only the due process clause and P&I clause, against all tradition and common usage.

It is exclusive because the 14A only speaks of Article 4 and due process and nothing more.

PubliusFL:
Yeah, I don’t quote Kent or Story, because what I’m trying to nail down here is Bingham’s understanding of the 14th Amendment PorI clause.

Didn’t Bingham nail it when he said the P&I’s were of U.S. citizens in, not of, a state? This proves he isn’t talking about what you would like to think.

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December 2, 2009, 7:04 pm

A Volokh Conspiracy Drinking Game

146 Comments

CountDuckula says:

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