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.

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.

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.

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.

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.

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.

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.

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”

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.

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.

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.

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.

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?

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?

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.

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.

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?

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.

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.

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.”

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.

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

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.

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!

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.