Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: “Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.”
To make a long story short, during the latter half of the 20th century, Fairman and Berger were the pre-eminent legal scholars opposed to incorporation of the Bill of Rights. Fairman was a close ally of Justice Felix Frankfurter. In the 1949 case Adamson v. California, Justice Black (with support from two other Justices) wrote an dissent arguing for total incorporation of the Bill of Rights; the dissent included a lengthy appendix with selections from the congressional ratification debates on the Amendment.
Fairman and Berger both looked at original-period sources, and argued for merely selective incorporation (Fairman) or no incorporation (Berger). Their views were later challenged by, inter alia, Michael Kent Curtis, Richard Aynes, and Akhil Amar. The Curtis v. Berger pro/con articles in the law reviews are some of the harshest exchanges I’ve ever read between two legal scholars. The brief’s Table of Authorities provides a list of key law review articles, if you want to study the history of the debate.
The brief’s main argument, which I find persuasive, is that Fairman and Berger really did grossly misread Jonathan Bingham and the early history of the Fourteenth Amendment. Accordingly, the Court in McDonald v. Chicago should not be guided by their views.
And for those VC readers who have been playing Aldridge’s Bingham for the last seven hours, you better tap another keg.
Orin Kerr says:
HWdasd.....sdasdssssaaaaaaaaaaaaaaaaaaaaaaaaaaa
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November 24, 2009, 12:09 amJ. Aldridge says:
I did a quick first read and it appears this amicus makes the fatal mistake of confusing state citizenship with national citizenship. Looks to be some factual errors too. The amicus appears to argue there is no evidence Bingham viewed the civil rights act as identical to the 14A when he said that is exactly the purpose of the 14A.
Noticed they make no mention to House Report #22 of 1871 which would destroy their arguments.
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November 24, 2009, 12:11 amKazinski says:
Right on time. I’ve got a 5 gallon of keg 12% ABV Imperial IPA out in the garage right now, and I’m down to the dregs of a keg of Champagne yeast finished IPA, soon as that’s gone I’ll switch the lines.
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November 24, 2009, 12:22 amGene Hoffman says:
House Report #22 of 1871 (which can be read in its entirety here) is consistent with what Bingham and other anti-slavery republicans thought the correct interpretation of the Constitution was. Bingham believed that Article 2, section iv. made all the individual rights applicable against the states and that slavery was unconstitutional from 1789. Bingham actually said in House Report #22 that Barron was wrongly decided and that the 14A overruled Barron in so much as Barron attempted to say that the first eight amendments didn’t bind the States. At the time Barron was decided, Bingham believed the the “Privileges and Immunities” in Article 2 included the first eight amendments. However, to correctly overrule both Barron and Scott (citizenship of persons) he had to restate Article 2, section iv.
Why else does Bingham mention “the first eight articles of amendment of the Constitution” in House Report No. 22 of 1871?
–Gene
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November 24, 2009, 12:26 amJ. Aldridge says:
Like he said before, it was because it was feared the court would hold Article 4, Section 2 was just as unenforceable as the first 8 amendments. Remember, they were attempting to enforce the P&I’s under the civil rights bill of 1866.
Didn’t Bingham say Barron was “rightfully” decided in his March 31, 1871 speech?
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November 24, 2009, 12:31 amDavid Nieporent says:
No.
(In fact, googling, it appears that PA Madison is the only person who has ever said this.)
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November 24, 2009, 1:39 amDavid Nieporent says:
Er, I don’t mean that PA Madison is the only person who ever said Barron was right; I mean PA Madison is the only person who has ever said that Bingham said it. (And by “only person” I don’t count his sock puppet Aldridge as a separate person, since the latter just blindly parrots whatever the former tells him.
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November 24, 2009, 1:41 amGene Hoffman says:
First Bingham said:
Then he read the first 8 amendments and said:
From Cong. Globe House of Representatives, 42nd Congress, 1st Session 84.
Bingham certainly liked that Barron gave him the definitive way to make the Bill of Rights Applicable to the States and that’s what he said in the speech. It’s right there at the link above.
I love original source material being online.
–Gene
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November 24, 2009, 1:44 amOrder of the Coif says:
Here’s the definitive answer “Then he read the first 8 amendments...”.
You can’t get clearer than that.
Oh, maybe they could be tattooed on the inside of J. Aldridge’s eyelids.
Then he would always have all eight of them in sight.
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November 24, 2009, 1:56 amJ. Aldridge says:
Bingham says on 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.”
Doesn’t sound like someone who intended to reverse Barron.
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November 24, 2009, 2:23 amJ. Aldridge says:
That pretty much explains everything. Why do you guys keep beating a dead horse?
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November 24, 2009, 2:28 amGene Hoffman says:
Actually that’s exactly what Bingham says. Start at the paragraph that begins “In reexamining the case of Barron...” Bingham makes it quite clear that he chose the words “no State shall” in response to the holding in Barron that if the Bill of Rights had bound the states from 1789 then “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.” to overrule Barron by imitating the original framers.
The full text is right here. You’re trying to distort it but it’s pretty darn clear.
–Gene
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November 24, 2009, 2:35 amGene Hoffman says:
The only dead horse here is you. The 14A intended to newly apply the first 8 amendments to someone, somewhere. Who and where under your interpretation?
–Gene
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November 24, 2009, 2:37 amJ. Aldridge says:
Oh the text is clear, its just you are trying to read way, way too much into it. You are best to just take Bingham’s word for what he says.
First he says the first 8 amendments had always been “rightfully” decided to only be limitations on the power of Congress, not on the power of the States.
Secondly, he says he followed Marshall’s advice in Barron and made it clear over what was to be limitations on the power of the states just like the other limitations found in the constitution.
Very simple statements that need no forced constructions you are giving it.
I think if Bingham really wanted to reverse Barron he would had said so. He didn’t.
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November 24, 2009, 3:09 amJ. Aldridge says:
I don’t know, the 14A says nothing about the first 8 amendments.
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November 24, 2009, 3:11 amKazinski says:
Clearly J. Aldrige either hasn’t read Bingham’s actual speech or he willfully misconstrues it. While Bingham does say that Baron was rightfully decided, he introduced the 14th amendment because while he thought the Constitution as written did not incorporate the first 8 amendments, he thought the Constitution should have been written so it did, hence the amendment. There is no contradiction there.
Go to the link Gene Hoffman helpfully provided above. The relevant passage starts near the bottom of the 1st column and continues til Bingham helpfully reads the first 8 amendments middle of the second column. Bingham says:
But don’t take my word for it, and definitely not Aldrige’s, go to the link and read it for yourselves.
Thanks to Gene for supplying the link and resolving the issue once and for all, and thanks to J. Aldrige for giving me a ridiculous excuse to have as many beers as I’d like to drink. Because I brew my own its unmetered.
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November 24, 2009, 3:12 amKazinski says:
One other point about Bingham’s attitude toward Barron. In the 1871 speech Bingham is plain that he doesn’t like the result of Barron, but respects the legal reasoning behind the decision, and says that when “reexamining Barron after my struggle in the House” he says that he realized Marshall was right in saying that if the Founders wanted to apply the amendments to the States, they would have explicitly said so. They didn’t, so Bingham makes a point that he is explicitly saying that the “Privileges and Immunities” i.e. the amendments, are binding on the States.
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November 24, 2009, 3:28 amJ. Aldridge says:
You must be drinking something potent there.
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November 24, 2009, 3:39 amHarvey Mosley says:
Very potent. My guess is sodium pentathol.
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November 24, 2009, 4:40 amPubliusFL says:
What your analysis of “as contradistinguished from citizens of a state” is missing is that the citizens of the United States and the citizens of the several states are the same people. The same people have certain rights guaranteed as state citizens (those listed in their state’s constitution) and certain rights guaranteed as U.S. citizens (“chiefly” those “defined in the first Eight Amendments to the Constitution of the United States”). The 14th Amendment gave the federal government the power to protect the federally-guaranteed rights of its own citizens (nothwithstanding the fact that they are also state citizens) against infringement by state governments.
Therefore, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Bingham said that the substance of these privileges/immunities are defined in the first 8 amendments. The key thing you need to understand is that all of a state’s own citizens are also citizens of the United States. The provision says that states cannot abridge the rights of U.S. citizens. It contains no exception from its protection for those U.S. citizens who are citizens of the state doing the infringing. That would be an exception tending to swallow the rule.
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November 24, 2009, 10:16 amdave h says:
I read that as a concession.
Thanks to everyone here for pointing out huge chunks of the original source material. The plain reading of the amendment certainly seemed to indicate that some set of basic rights could not be abridged by an government. However, I was willing to consider another interpretation, and Aldridge’s initial quotes did suggest a different reading. A fuller survey of the quotes, as provided here, indicates quite clearly that the amendment was as sweeping in scope as I gathered from the text.
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November 24, 2009, 10:20 amBob from Ohio says:
Good for you Mr. Aldridge. It is good to stick up for your position despite chidlish ridicule.
Exactly right. There is no textual support for their incorporation view. So post-ratification political speeches of one person are somehow despositive of the intent of an earlier Congress and all the ratifying legislatures.
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November 24, 2009, 11:12 amKazinski says:
Aldrige,
Bingham’s exact words on Barron and the scope of the first section of the fourteenth amendment. There is no other way to honestly interpret it other than incorporating the first eight amendments:
Its a little long but it doesn’t mislead like all the little snippets you take out of context.
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November 24, 2009, 1:03 pmDavid Nieporent says:
I would think that whether it’s good to stick up for one’s position would depend not on whether one is ridiculed for it but on whether one’s position has merit.
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November 24, 2009, 1:15 pmJames T. Carrington says:
This exercise would be great for one of those collaborative-document tools like Google Wave — you can all look at the original document, and append comments where you see clear meaning. Then all of us can read the commented source doc to decide which side is more clear. I’ve been reading these threads over the past few days and still don’t have a grasp on which “side” is correct in its interpretation.
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November 24, 2009, 2:21 pmDoc Merlin says:
I am worried that McDonald will lead to the court saying that things like transfer payments from the gov, housing subsidies, etc etc are “rights.”
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November 24, 2009, 2:58 pmFederal Farmer says:
I think J. Aldridge suffers from the notion that some seem to have that the 14th Amendment defined two sets of citizens: white citizens and somewhat lesser newly freed black citizens.
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November 24, 2009, 3:35 pmThales says:
My liver is toast.
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November 24, 2009, 3:44 pmGene Hoffman says:
Those are generally distinguished as “positive rights” versus “negative rights.” There is plenty of original intent and original public meaning that the privileges or immunities are negative liberty rights of the “no government shall” variety.
J. Aldridge: I’ll give you this. You are pretty good at being a bald face liar in front of the actual text. Remember that you quoted Bingham’s speech as being dispositive of your point and the text itself shows in fact that he, as the drafter, always intended the privileges or immunities in the 14A to include at least the first eight amendments and so limit the states.
You want to read it some other way as a means to an end but transparency of the actual quotes is not your friend. It’s probably why you don’t link to your sources.
–Gene
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November 24, 2009, 3:59 pmJ. Aldridge says:
What about the mountain of his words prior to March 31, 1871 in interpreting it? This was a very partisan bill for which he was accused of playing fast and lose with the facts by other speakers that came up after him.
Bingham: “Who ever before heard that any State had reserved to itself the right, under the Constitution of the United States, to withhold from any citizen of the United States within its limits, under any pretext whatever, any of the privileges of a citizen of the United States, or to impose upon him, no matter from what State he may have come, any burden contrary to that provision of the Constitution which declares that the citizen shall be entitled in the several States to all the immunities of a citizen of the United States?”
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November 24, 2009, 4:43 pmPubliusFL says:
When Bingham says “any citizen of the United States within its limits,” where do you find the qualication “except those citizens of the United States that are also its own citizens”? When Bingham says “no matter from what State he may have come,” where do you find the qualification “unless he comes from the very State seeking to impose the burden”? For the life of me, I can’t see how this quotation supports the distinction that you’re making between citizens of the state and non-citizens temporarily present in the state.
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November 24, 2009, 4:58 pmJ. Aldridge says:
Among others, this qualification that he repeated both in 1866 AND 1870: “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 24, 2009, 5:29 pmJ. Aldridge says:
You are in panic mode now I see.
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November 24, 2009, 5:33 pmFederal Farmer says:
If you remove the “not of” due to its nature as a clarifier, the sentence should stand on its own:
“This guarantee is of the privileges and immunities of citizens of the United States in the several States.”
That clearly means none of the several states can abridge the privileges and immunities of a citizen of the US when that citizen is in that state.
If it read as below, it makes no sense:
“This guarantee is of the privileges and immunities of citizens of the United States of the several States.”
Here endeth the lesson. Now, I see I’m behind half a keg.
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November 24, 2009, 5:39 pmJ. Aldridge says:
:::::Rolling Eyes::::::
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November 24, 2009, 6:19 pmPaperNuncio says:
J. Aldridge: I think you’ve got it! You are quite clearly the only sane person in a world of insane people.
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November 24, 2009, 7:05 pmFederal Farmer says:
Let me make it simple for you. I don’t know what state you reside in, I’m guessing Denial, but so far I’ve resided in 3. I was born in one, resided there 15 years. Move to the second, resided there 3 years. Went to College in third, had sort of a dual residency and finally moved permanently to that third one, where I reside now. In all cases I was, and am, a US Citizen and a resident of each of the states. While a resident of the first I was protected by the 2nd Amendment due to my US Citizenship. While in the second I was protected by the 2nd Amendment and my state’s Constitutional RKBA. While in the third I was protected by the 2nd Amendment and my state’s RKBA, such as it is. But also, if I feel like traveling to PA, while in PA, I am protected by both the 2nd Amendment and the PA RKBA. I’m not protected by my state’s RKBA while in another state. However, if you travel from Denial, or wherever, and are in my state, you are protected by my state’s RKBA and the 2nd Amendment.
State citizenship died when the 14th Amendment was ratified, for the most part. My rights as a US Citizen follow me from state to state. No state may abridge them.
Simple.
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November 24, 2009, 8:39 pmJ. Aldridge says:
Bingham, House Report No. 22, January 30, 1871: “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”
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November 24, 2009, 8:47 pmFederal Farmer says:
Sure, it didn’t change the reality of citizenship by 1871. We are residents of whichever state we are in, but always citizens of the US. Deal with the fact that that war was lost.
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November 24, 2009, 10:23 pmJ. Aldridge says:
We are all citizens of the U.S, but for P&I purposes we must first remove to another state in order to claim their protection. The 14A did not replace state bill of rights with the federal bill of rights.
Sen Trumbull, April 11, 1871: “The fourteenth amendment has not extended the rights and privileges of citizenship one iota. They are right where they always were.”
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November 24, 2009, 11:53 pmJon Rowe says:
JA:
I have to refresh my notes in this, but what did Sen. Trumbull think of Barron?
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November 25, 2009, 12:26 amFederal Farmer says:
Are you playing Aldridge’s Bingham yourself, cuz you shouldn’t post drunk. I never said your state of residence’s rights followed you to another state. I never said, and McDonald doesn’t argue, that every state’s rights are the union (no pun intended) of all states’ rights. I said that no state may abridge the US Bill of Rights. They are allowed to grant greater protection, but not lesser. Please try to argue to the point.
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November 25, 2009, 12:50 amTGGP says:
Any of y’all have an opinion on Austin Bramwell’s radical take on the 14th amendment?
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November 25, 2009, 1:16 amJ. Aldridge says:
Never come across any speech of his where he mentioned Barron, sorry. It was his opinion the 14A offered nothing substantially new to the constitution and there would be very few violations of it now slavery was abolished.
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November 25, 2009, 3:51 amPubliusFL says:
Those two little words (“not of”) will not bear so much weight as you are trying to place on them. What Bingham is saying is that the privileges and immunities guaranteed by the U.S. Constitution are rights that individuals hold as U.S. citizens (which U.S. citizens happen to be located in the several states) as further defined in the U.S. Constitution (“chiefly” the Bill of Rights). They are not the same as whatever privileges and immunities the same individuals may hold as state citizens (citizens of the several states), which are rights further defined in the various state constitutions. Bingham often makes this distinction between citizens of the United States and citizens of the several states. The key difference is in the source of rights and which sovereign has an interest in protecting and enforcing them. The difference is not so much in who has the rights, since U.S. citizens and state citizens are pretty much the same people.
My interpretation is consistent with the text of the 14th Amendment, which states that all state citizens are first U.S. citizens, and flatly states that states may not abridge the privileges or immunities of U.S. citizens. Your interpretation must account for why the text does not state that this prohibition does not actually cover the vast majority of U.S. citizens in any given state, if that is what it was supposed to mean.
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November 25, 2009, 6:51 amGene Hoffman says:
Haha. First I note you have backed off on your false claims about Bingham’s March 1871 speech since I linked to it. Now you’ve moved on to House Report #22 — linked here — and it to doesn’t say what you want it to.
I’m not really arguing with you because you’re not logical. You’ve stated in other threads that the residents of South Carolina aren’t citizens of South Carolina — which is the only way you get around other comments of Bingham.
As such, I’m pointing out the original sources of your quotes so that people actually interested in learning the truth can read it themselves.
I suggest if you want to find any credibility you have to link to the sources of your quotes. Each time I look them up they don’t mean what you say they mean.
–Gene
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November 25, 2009, 10:23 amJ. Aldridge says:
Okay Einstein, if I am in a state that I am a citizen of, do I claim two competing protections of a bill of rights, state and federal?
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.”
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 ...”
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November 25, 2009, 2:35 pmFederal Farmer says:
Not competing. Both are active but by the supremecy clause, the US BoR controls where conflicting. Basically it sets the minimal set of rights. States are free to expand rights, but cannot restrict them below the Federal threshhold.
I don’t see what is so hard to understand about that. I suspect you are being deliberately obtuse.
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November 25, 2009, 2:42 pmJ. Aldridge says:
I think Bingham had always been perfectly clear he is talking about discrimination of citizens of other states by another state. Who was the one state he said violated the P&I’s of United States citizens? It was Oregon. Sec. 4 of the Oregon Constitution: “No free negro or mulatto, not residing in this State at the adoption of this Constitution, shall ever come, reside or be, within this State, or hold any real estate, or make any contract, or maintain any suit therein …” Bingham said that violated the P&I’s clause because many were citizens of the United States.
I never said residents of South Carolina were not citizens South Carolina. I have said they are not U.S. citizens for purposes of claiming P&I’s of United States citizens while residing in SC. You are really making up shit now.
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November 25, 2009, 2:45 pmJ. Aldridge says:
One problem is the first eight amendments were never considered part of the P&I’s under article 4. There was no first 8 amendments when the P&I’s were adopted under the original constitution. THe framers and commentators never hinted they would become part of P&I’s when they were adopted. I know Howard said they should be included, but he never said they were and no one ever said they were prior to 1866. But the House judiciary committee said nothing new was ever added to them by the 14A.
It was well accepted the P&I’s had nothing to do with the federal constitution but with everything citizens could claim under state laws.
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November 25, 2009, 2:53 pmGene Hoffman says:
I guess that citizens and residents of South Carolina don’t qualify for a U.S. Passport then since they aren’t U.S. Citizens.
Keep making **it up.
–Gene
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November 26, 2009, 1:18 amWhat’s that Smell? « Conservative Libertarian Outpost says:
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