I have no strong feelings, or really any feelings whatsoever, about the right of a criminal defendant to confront the witnesses against him, protected by the Sixth Amendment. So I can examine recent Confrontation Clause jurisprudence with an unjaundiced eye, and conclude that it makes no sense.
The Supreme Court, led by Justice Scalia, created a revolution in Confrontation Clause jurisprudence in the 2004 Crawford case. Before Crawford, the Court for many years had held that testimony admitted under any "firmly rooted" hearsay exception satisfies the Clause.
Scholarly work, especially by Prof. Richard Friedman of the University of Michigan Law School, showed that as a matter of original meaning, this was an incorrect interpretation of the Confrontation Clause, that the right to confront witnesses went beyond protecting a defendant from unreliable hearsay. The historical research persuaded Scalia, and Scalia persuaded his colleagues. This past term, the Court held, for the first time, that forensic reports are subject to the Confrontation Clause, threatening a certain level of havoc in state criminal justice systems.
Here's the rub: Crawford is, as far as I can tell, correct as a matter of original understanding of the Sixth Amendment, and therefore is properly applied to federal prosecutions. The problem is that Crawford, and most of the major subsequent Confrontation Clause cases, are state cases, arising under the Fourteenth Amendment.
The Fourteenth Amendment's Due Process Clause is said to "incorporate" the Sixth Amendment's Confrontation Clause. But, as a logical matter, the right incorporated by the 14th Amendment in 1868 is the understanding of the Confrontation right as of 1868, not the understanding as of 1791. And my understanding is that the experts (I am not one) agree that by 1868 the original 1791 understanding of the Confrontation Clause had been lost, and that the Confrontation right was thought to be coextensive with protections against hearsay--precisely the position Scalia rejected on originalist grounds in Crawford!
Thus, Crawford exposes what I see as a major flaw in Scalia's originalist methodology. When a right protected by the Bill of Rights is applied to the states via the 14th Amendment, it has to be the 1868 understanding of that right, not the 1791 understanding, that governs. (This likely has implications for other rights as well, including freedom of expression, the right to bear arms, and the right to not have private property taken for public use without just compensation.) Not only has Scalia not applied this insight, I don't think (correct me if I'm wrong, please) there's any evidence that it's ever occurred to him.
I'm not a hard-core originalist, but to the extent original meaning is supposed to govern Supreme Court decisions, Crawford, and its state-level progeny, are wrongly decided.
The purpose of the authors in 1868 should only be applied to what the authors were properly able to define with their 1868 amendment, which did not modify the meaning of the 6th amendment, only expanded its application.
Am I missing something?
Incorporation of the Bill of Rights against the states is not automatic, but only covers things needed to protect basic freedoms.
Thus, the federal right to a jury trial in small-dollar cases does not apply in state court.
Similarly, reliable hearsay should not be barred in state court, since that is not implicit in the concept of ordered liberty. Rather, such prohibitions are found only in the nebulous outer reaches of the original conception of the federal confrontation right.
Similarly, the perverse Booker-Apprendi line of cases should not be applied fully in state court, either.
As relates to confrontation, the key case is Pointer v. Texas, 380 U.S. 400 (1965). In that case, the Supreme Court held that the right to confront witnesses was so fundamental that it applied to the states. However, the reasoning of that case was that whatever you consider the right to confront witnesses to be, it is so fundamental that it applies to the states -- not that the framers of the 14th Amendment actually intended it to apply to the states.
As a result, if you accept the Supreme Court's incorporation cases on the basis of stare decises, then your critique doesn't work. To be able to criticize Scalia, you need to be an originalist about incorporation itself and insist that Scalia should be originalist about it, too. But my recollection is that Scalia has said that incorporation is one of those "water under the bridge" doctrines that he won't revisit on stare decisis grounds whether it is right or wrong.
The bottom line: Scalia is wrong only to the extent he would insist on being an incorporation originalist, and he hasn't shown any interest in being an incorporation originalist.
for every small detail of the right and its application you would need a separate incorporation case for state law and a case from federal court to apply it to the original amendment.
bad move-there is enough confusion over the meaning and enough barriers to getting final supreme court rulings on the nuisances that we dont need that.
Personally, I've always found this puzzling, since an amendment can clearly change the effect of previously existing clauses. Politically it makes for odd debates because, for example, the argument for individual gun rights is FAR stronger in 1868 than it is in 1791.
As a logical matter, since it's written in the present tense, the 14A protects the rights as they understood in 2009.
If the writers of the 14A wanted to codify a particular understanding of "due process", they would have written that in.
It seems possible that Thomas might -- he's written solo dissents and concurrences suggesting that the Privileges or Immunities Clause should be the source for incorporation. But if so, he certainly doesn't seem to feel strongly about it, since he's also authored plenty of opinions saying that the 1791 understanding of the First Amendment should govern cases involving, e.g., state regulation of student speech.
As someone sympathetic to, but ultimately unpersuaded by, originalism, I've always thought that this tendency to apply 1791 understandings to incorporation cases undermines the persuasiveness and coherence of originalism.
No. The 14th amendment says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It does not say "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States in 1868", nor does it say "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States in 1791." The rights which are incorporated against the states are those we understand to be rights today.
If we believe today that one of those privileges and immunities is the right to confront certain kinds of witnesses, then it's perfectly consistent with the 14th to incorporate that against the states even if that right was not considered to be a privilege or immunity at the time of ratification of the amendment. If your great-uncle says "I'm leaving you everything in my closet", then you get everything in his closet even if he's forgotten some of what's in there. If the authors of the 14th had wished to enumerate specific immunities and privileges, they had the opportunity to do so.
And that amendment refers to the process that is due, not the process that was due. A clause which refers to a referent that has changed does not, itself, change in meaning but simply refers to something different.
But it doesn't. The right protected in 1868 was the right as understood in 1791 (according to originalist theory), irrespective of deviations between 1791 and 1868. Thus, when the Bill of Rights is incorporated against the States, it is the right as understood in 1791 that is incorporated. That is, the enactment of the Fourteenth Amendment didn't change any rights (NEW AND IMPROVED 1868 ORIGINALIST UNDERSTANDING!), it just applied those existing (1791) rights against the states.
Now, you can also make the argument that the "priviliges or immunities" or the "due process" that was incorporated was the 1868 understanding of those rights, but that view is not logically required (or even the most reasonable position, for that matter).
"If the 14th A. was meant to incorporate fundamental liberties, which we have defined as including most of the liberties protected by the Bill of Rights, why would it incorporate a lost, obsolete interpretation of those liberties?"
Because that's the extant version of those rights. If you want to change them, then you have to amend their source (the Bill of Rights itself) not merely apply them to the states.
Suppose we took an originalist approach to the Third Amendment and that we amended the Constitution to explicitly say "the Third Amendment applies to the District of Columbia and every State." If we take originalism seriously, we have applied the 1791 understanding of the Third Amendment to the states. Just because the Amendment that applied the right to the States occurred in 2009, does not imply that the right is the right as understood in 2009, because if that's what we meant, we would could have created a new right rather than borrowing the old one. When you bring in the old one, you bring it in warts and all.
I had thought that incorporation came via the "no state shall deprive any person of life, liberty or property without due process of law," with the relevant portions of the bill of rights incorporated into the meaning of "liberty." As always, I stand to be corrected.
But that is already the case to some extent. For example, the right to a jury trial in a criminal case has been held to be incorporated against the states. Duncan v. Louisiana, 391 U.S. 145 (9168) But, unlike federal juries,state criminal juries need not be unanimous. Johnson v. Louisana, 406 U.S. 356 (1972).
So a right can indeed be "fundamental" and incorporated, but not all its federal details.
http://en.wikipedia.org/wiki/Due_process#In_England
In deciding Crawford, the Supreme Court expressly overruled a 30 something year old precedent, Ohio v. Roberts. For lack of a better description, that was the case that said so called "reliable hearsay" was permissible under the confrontation clause. However, as Scalia pointed out, there was tremendous confusion, if not outright disagreement, as to what constituted reliable hearsay.
He cited a bunch of cases with similar fact patterns and differing conclusions as to what would be admissible as reliable hearsay and what would not be admissible. The bottom line was that there was no consensus as to what was reliable and what was not. Among other things, Scalia appeared to be saying that the Court should establish a bright line. (It may be instructive to note that the Washington Supreme Court ruled the evidence in Crawford to be reliable and thus admissible. In his concurrence, Rehnquist would have overruled that part of the decision below and retained the rule set forth in Ohio v. Roberts. In effect, Rehnquist proved Scalia's point about the futility of retaining Roberts as precedent.)
The discussion here regarding whether selective incorporation and originalism means that you look at the 1780's version of the confrontation clause, or the 1868 version, is totally irrelevant to those of us who venture into the pits. You might as well try to determine how many angels can dance on the head of a pin.
You're preaching to the choir here on this point, but as you can see from other comments in this thread, many originalists do see it that way.
It's the difference between a pointer and a variable. If you change the variable, then the value of the pointer changes. If you change the right to which the reference refers, then the content (and therefore the meaning) of the reference changes.
In earlier times, there was a companion term “due course of law”. See Davies, and others, for details on the distinction.
So the right embodied by the First Amendment is applied to the States. What right is that?
If I am originalist, then the ONLY right embodied in the First Amendment is the right as understood in 1791.
I don't have to change the reach of that right at all, I just have to apply the same right against the states. As an originalist, I must reject the 1868 understanding of the First Amendment as incorrect to the extent it deviated from the 1791 right, so all that could have been incorporated was the "correct" (1791) First Amendment.
(I won't say that my way is "the right way," but I reject the premise that the contrary view is logically required.)
This matters for the current discussion since, if such rights exist, surely it's their 1868 or 2009 versions that are incorporated and not their 1791 version.
Scalia is on record as saying that, although he disagrees with the incorporation doctrine, he is willing to apply it because, among other reasons, it is "manageable." Because he disagrees with it as a matter of doctrine, he is likely willing to apply the guarantee equally across the board for the sake of manageability, maybe because he sees the doctrine itself as already incorrect.
1. Can the states infringe on rights protected by the Ninth Amendment, if these right pass the tests for "incorporation"?
2. Can the states infringe rights that, on the federal level, are not Constitutional rights?
You are spot on. It always irks me when the Supreme Court refers to the 1791 understanding of a particular provision of the Bill of Rights, even when deciding what is actually a Fourteenth Amendment case. If you asked Justice Scalia, and he were being honest, he would probably say that we really do not know much about the intentions of the framers and ratifiers of the Fourteenth Amendment, but full incorporation furthers judicial restraint. Judges do not have to discern which aspects of which rights are "fundamental" or "implicit in the concept of ordered liberty," for that would leave them at large to import their own subjective views into the law. We just create a bright-line rule, as in Crawford, and apply it across the board. That is how Justice Black viewed total incorporation, and he and Justice Scalia are blood brothers in that respect.
licrimlawyer, I used to represent criminal defendants as well, and my former clients have reaped the benefits of Crawford. But if the umpire blows a call that goes in my team's favor, I am not going to pretend it was a good call.
As Mitchell Berman has recently explained, there are dozens -- if not hundreds or even thousands -- of variants of originalism, so it's probably not useful to say (as I did) that the logic of originalism requires a certain position, since there is no single "logic of originalism." But the most common form seems to hold that the understandings of the people who wrote and ratified a constitutional provision should determine how the words of that provision are interpreted. Thus, if we're interpreting the Privileges or Immunities Clause, we should ask what people in 1868 understood the privileges or immunites of citizens of the United States to be. If they understood such privileges to include a right to be free from all government action concerning religion, then that understanding should control, even if it differs from what the ratifiers of the First Amendment thought (and even if it differs from how the ratifiers of the First Amendment would have presumptively applied it against the States had they thought to do so). I suspect that the 1868 generation thought that the rights they were incorporating were essentially the same rights that the 1791 generation understood. But if those understandings varied in certain respects, or even if they were mistaken (e.g., their received wisdom on the original understanding of certain rights was distorted), then the most common form of originalist theory would say that those 1868 understandings should control.
"But that is already the case to some extent. For example, the right to a jury trial in a criminal case has been held to be incorporated against the states. Duncan v. Louisiana, 391 U.S. 145 (9168) But, unlike federal juries,state criminal juries need not be unanimous. Johnson v. Louisana, 406 U.S. 356 (1972).
So a right can indeed be "fundamental" and incorporated, but not all its federal details."
Except that there's a considerable difference between not requiring unanimous verdicts in state criminal trials and having two entirely divergent glosses of the same enshrined right. The whole argument you're responding to only works from a functional, pragmatic perspective; it never attempted to deal with David's originalism argument. So you'd be maintaining doctrinal purity at the expense of horizontal and vertical uniformity.
To put this another way, why wouldn't the original understanding of the 14th Amendment include the understanding that some case law might be mistaken and that that mistake might not be recognized until after the 14th Amendment is ratified? After all, the 14th incorporates amendments, not necessarily current interpretations of those amendments.
As for the understanding of the rights as of some year, the understanding in 1791 was everything left over after powers are delegated, which makes them much broader than even the broadest 2009 understanding, if we avoid mistakenly overbroad interpretions of powers, especially the Commerce and Necessary and Proper clauses, which is critical.
The great problem with incorporation is that state constitutions may delegate powers that restrict rights in a way that would be unconstitutional if done by the federal government. If the framers of the 14th intended to extend the jurisdiction of federal courts to all federally defined rights, which I find the legislative record supports, then state police powers will have to be found to be severely constrained. It may even be necessary to hold all broad state police power clauses to be void for vagueness, and require states to amend their constitutions to be much more specific about power delegations.
Speaking of which, anyone know if the defendant in this case is an ancestor of S.C. Gov. Mark "Hiking the Appalachian Trail" Sanford?
It seems to me that the general view of incorporation is that it binds the states with a separate set of standards than the federal government based on changing views in time. Are you saying that the Federal Government is bound under the 1791 meaning and the States under a different meaning entirely? That a different level of process would be due in state vs federal criminal procedings, among other things because of evolving standards between the 4th and 14th amendments?
Or would the intent of reuse of language in the 14th amendment from the 4th amendment indicate an intent that the 14th amendment tracks the case law of the 4th?
If we are to agree with incorporation doctrine, wouldn't that be the same thing?
Or is this just an argument against pure originalism as an abstract judicial philosophy?
But then there are these two quotes:
And
I don't see where you address why exactly Crawford is wrongly decided and in fact argue that it was CORRECT from an originalist perspective. You seem to be attacking it through the proxy of state cases. Is this right?
1. When ratified in 1791, the popular understanding of the Confrontation Clause protected against the particular strain of hearsay.
2. The 14th amendment ratified in 1868 specifies that states can't abridge the privileges or immunities of citizens of the US.
3. By an originalist understanding, the Confrontation Clause continues to protect against that particular strain of hearsay in 1868 and even to today.
4. This means the right to confront and not be subject to such hearsay is a privilege due to citizens of the United States -- as, I think (perhaps not well-informedly enough, as I know I lack the knowledge to intelligently reconcile this with the trial amendment that has gone unincorporated so far), is true of the entirety of the Bill of Rights and of the Constitution as a whole, except when discussing the powers granted to the specific levels of government (by a theory of "contradiction avoidance") (and perhaps other contradictory parts which spring to mind less readily).
5. Therefore, the 14th amendment's Privileges or Immunities Clause applies the rights recognized by the Confrontation Clause to the states -- those understood in 1791.
6. Therefore, states are prevented from recognizing such hearsay.
(Yes, I know [or think I know] that Slaughter-House disagreed, but as far as my understanding goes I believe that case to have been decided wrongly. I also acknowledge that this mostly makes the 14th Amendment's Due Process clause a superfluity [except in any cases where due process as understood in 1868 exceeds due process as understood in 1791, of which I again claim ignorance], assuming one terminates its bounds before entering the Equal Protection clause, but then again, it's not clear to me we'd realized by that point that it's worth the trouble to be painstakingly precise and explicit in the text of amendments, so I'm willing to write it off as being over-explicit [which Slaughter-House shows was good!] and pedantically mostly unnecessary.)
Again, I'm no scholar, but I see nothing inconsistent in the above. It's a little convoluted to explain, to be sure, but I think it's logically defensible.
DB is saying that if Crawford etc were federal cases they would be completely correct. The argument he is putting forward is that the rights incorporated by the 14th (or at least an originalist argument) would be the version of those rights as understood at the time the 14th was ratified.
But because Crawford and the other cases are all state cases they should only have to meet the lower standard that had been accepted by the time the 14th was ratified, even though the federal right would still correctly protect against the exact same evidence.
At least that is what I understand DB to be saying, from a policy perspective I very much like Crawford and there have been plenty of posts defending the reasoning on constitutional grounds.
So does that mean that every amendment would have two versions from an originalist perspective? Why would an originalist not see the privileges and immunities as a general principle rather than a fixed set of standards?
By that logic, shouldn't the current understanding of the 1868 understanding of the 1791 understanding be the deciding factor? Once meaning begins to float, it can drift away anywhere.
Scalia has actually used your argument to defend enforcing the regulatory takings line of cases against the state- firmly extablished in 1868, although not at all in 1791. Lucas, at note 15
My problem with the professor's argument is in this sentence: "as a logical matter, the right incorporated by the 14th Amendment in 1868 is the understanding of the Confrontation right as of 1868, not the understanding as of 1791." I think this is clearly wrong. The originalist will say that the 6th Amendment should always have been applied in context of its 1791 understanding, and if that right is then later incorporated against the states, the precedent created as a result of that 1791 understanding would then apply against the states. It's not like the Court would then say, "Now that we have incorporated the 6th Amendment to apply against the states, all of our prior 6th Amendment decisions suddenly do not apply against the states, and we must now begin to create a new body of 6th Amendment jurisprudence solely for the states, as separate from the federal government." That's silly. The Court would instead take the previous federal decisions and apply them to the states. And those previous federal decisions should be applying the 1791 understanding.
Now, the 1868 understanding comes in when we are dealing with a right that exists under the Privileges &Immunities Clause (or some other 14th Amendment right) that does not exist under the Bill of Rights. Any of those rights would have to be applied through 1868 eyes.
So he's incorporated the new interpretation of the Confrontation Clause. And he'll likely incorporate the Second Amendment. And he'd probably interpret the Excessive Fines Clause if given the opportunity. But his unwillingness to cast off a century of constitutional interpretation is a pretty petty critique.
Next, perhaps, we can see calls on him to criticize Marbury v. Madison.
yes. but that unanamous trial verdict is the ONLY example of that. really
i defy you to find another right which is incorporated but applies diffrently to the states than the feds.
(i knew there was one such exception but i had forgotten what it was-thanks for pointing it out)
1) The P/I clause has nothing to do with the BOR. Not in the eyes of the original framers, anyway. The former spoke to states rights vis-a-vis other states. That is, what Peter got in PA, Paul visiting from NY ought to get when he meets Peter.
Alternately, the BOR protections were, in the eyes of the framers, safeguards against federal usurpation and encroachment. They had nothing to do with the states, Peter or Paul above. That is, the framers wanted the national government tamed, regardless of what states did to each other or to themselves. The framers respected state sovereignty and feared central government.
So, please. Immediately disconnect P/I and the BOR.
Doing so, we can dispense with any idea that the P/I clause incorporated anything, from any year. And we thus arrive at the due process clause. Here, the authors of the 14A were referencing the rights within the Civil Rights legislation of that era. That recent legislation was dawdling and drifting. But they weren't refering to any BOR protections in devising the 14a. Bingham and his buddies wanted to ensure that 1) Blacks (nad others) were considered as citizens and 2) that the states could no longer exempt blacks from justice. The civil rights bills were inept toward that effort. Hence the due process clause emerged within the 14A and gave clarity to their prior legislation. It provided legislative muscle, then and thereafter.
So here's the key point. Incorporation as a judicial instrument-if it is to embrace the BOR in part or whole as being applicable to the states- does so on the basis of orginal understanding of those rights, by default. Nobody in the 39th congress, the 14A crowd, ever touched or contemplated the BOR, unless as a passing afterthought. It is therefore moot to consider what the 14A authors thought of the BOR rights, since they were not a data point in any way toward the 14A's construction. BOR protections (via the 14A) find their essence from day one, if you will.
History lesson over.
Well, if the understanding of a right were the same at the ratification of the 14th and the time of the BoR or constitution then there would only be one standard for that right. I'm not sure any such right exists that hadn't reached a different understanding by the middle of the 19th century however.
I would think that at very least they were referring to the due process protections in 4a, given the reuse of language.
This is just wrong.
Sen Bingham, Cong. Globe, 42d Cong., 1st Sess. 84 app.
Indeed, that was the 1790 understanding. Come 1860, however, it became clear that the citizens of the United States (as distinguished from their role as citizens of the various States) needed protection from the various States that the State governments were unwilling or unable to provide.
At the time of the 14th Amendment, they may have intended to incorporate the current meaning of the 6th Amendment. But they may alternatively have intended to incorporate the correct meaning of the 6th Amendment. Or what I believe, with them being sophisticated politicians, they meant to incorporate whatever future Courts would determine the meaning of the 6th Amendment to be. With the knowledge that those Courts might or might not be originalist.
Your history lesson is immediately suspect as you are confusing the "Privileges or Immunites" (Am. XIV) with the "Privileges and Immunities" (Art. IV).
There is a legion of scholarship about incorporation. While I hesitate to speak for others, I would say that the majority of people who have seriously studided the issue believe that the 14th Am. was meant to incorporate at least some of the Bill of Rights against the states (see generally too many law review articles to cite). Many believe that the court took a wrong turn in Slaughterhouse by reading PorI out of the 14th as a vehicle for incorporation, thereby requiring the clunkier use of SDP (subtantive due process).
You are not required to believe or accept this. But your history lesson is, at best, debatable.
In recent years, there's come to be quite a broad scholarly consensus (including conservatives, liberals, libertarians, and others) that the Privileges or Immunities Clause incorporated substantive rights (and not just rights of equal treatment) against the States, and that these substantive rights basically included the ones listed in the Bill of Rights. There's some dispute about specific rights, and whether the 14th only incorporated the Bill or Rights, or that plus other rights, but the broad consensus is that the framers and ratifiers of the 14th thought that the privileges or immunities of citizens included (most of) the rights mentioned in the BoR.
See this recent brief for a historical overview. ("Leading proponents and opponents alike of the Fourteenth Amendment understood it to protect substantive, fundamental rights—including the rights enumerated in the Constitution and Bill of Rights.").
But if one is to incorporate the 9th amendment, then wouldn't that lead him/her/them/that person to the fourth choice?
I agree that it would be silly. But I think this actually explains why the 1868 understanding should control. The key to your analysis is that "those previous federal decisions should be applying the 1791 understanding." But what if they weren't?
Let's try a little thought experiment. Imagine that the 14th Amendment had never happened or that the Supreme Court suddenly decided to overrule the incorporation doctrine wholesale, such that none of the protections of the Bill of Rights could be enforced against the States. Now, we in 2009 don't like that, so we decide to amend the Constitution to incorporate those rights. And let's say (for simplicity's sake) that we decide to do it on a right-by-right basis, and we start by ratifying an Amendment that says, "State and local governments shall make no laws abridging the freedom of speech." We all believe (let's assume) that "the freedom of speech" protects symbolic acts like flag burning, and even transmission of pornographic material, so long as it doesn't feature children. If later historians conclude (pace EV) that the 1791 generation clearly did not understand "the freedom of speech" to protect such activities and material, what do we do?
I'd think that the logic of originalism* -- to the extent that it's rooted in theories of authorial intentionality or democratic legitimacy or comity or something else -- would dictate that it is our understanding of "the freedom of speech" that should determine the contour of that right as against the States. No?
*I'm referring here to "hard originalism" or "originalism simpliciter." There's another form of originalism, associated with Jack Balkin and Larry Solum, which would say that only our original understandings of the semantic content of the Amendment should control, not our original expectations of application, but let's set that to one side.
But if one is to incorporate the 9th amendment, then wouldn't that lead him/her/them/that person to the fourth choice?
It might, but the 9th Am. has been all but read out of the Constitution under current jurisprudence. Rights not specifically enumerated in the BoR are found through Due Process (SDP) as a product of either ordered liberty (liberals) or history/tradition (Glucksberg/conservatives).
"The 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. "
But incorporation is through the Due Process clause, not privileges and immunities. Thomas (although his approach makes more sense) is a minority of one on this point.
PersonfromPorlock:
"By that logic, shouldn't the current understanding of the 1868 understanding of the 1791 understanding be the deciding factor? "
I'm not sure this would make a difference. But it is important to remember that it is a right or set of rights that is being incorporated, not a set of Amendments. So the question is not, "How was the Sixth Amendment understood in 1968?" but is "how was the right to confrontation understood in 1968?" The key word in the 14th is "Due Process", not "incorporation"; incorporation is a means of defining or determining the understanding of Due Process.
That is probably the best 2 sentence summary of the status of enumerated rights I've ever read.
It's standard MLA to substitute the gender of the speaker for the third person.
No, you're still not getting it. The 14th Am. was not about applicability of rights (which are subdivided into privileges and immunities). It was about the jurisdiction of federal courts to decide cases between a citizen and his state involving such rights. Nor was it an expansion of jurisdiction. It overturned Barron, not just in 1868, but retroactively, saying in effect that federal courts had that jurisdiction since 1791, and that the Barron court just got it wrong.
The 14th overturned Dred Scott by making all persons, born or naturalized, citizens, and the rights of the Constitution and BoR applied to persons, not citizens, so it covered all persons who were citizens. That only left Indians and foreign visitors (and Indians were treated as foreign visitors), which were covered by Art. III Sec. 2 which established the jurisdiction of federal courts "between a State, or the Citizens thereof, and foreign States, Citizens or Subjects". So every person is covered, unless one wants to include animals or space aliens.
And, yes P&I would include the unenumerated rights referenced by the 9th Am. That, and not the First Am., is the proper source for the applicability to the states of the rights recognized in the First Am.
Possibly, but that doesn't seem to be completely clear from the evidence. Here's Bingham, for example:
And "Thaddeus Stevens, a political leader in the House and head of the House delegation of the Joint Committee on Reconstruction, explained that “the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect….” Cong. Globe, 39th Cong., 1st Sess. 2459 (1866)."
Source.
It may be that Bingham, Stevens, etc. thought that the Bill of Rights, properly interpreted, should have always applied as against the States. But they recognized that this question had been settled to the contrary, and so believed that the 14th Amendment was necessary to apply those rights against the States. I find it difficult to read the statements above as merely statements about federal court jurisdiction, but perhaps there is other evidence supporting your view.
I personally am opposed to ruling the second amendment incorporated in the 14th Amendment because I think this would be unnecessary and that courts should stick to current precedent as much as possible.
Presser establishes a Federal/State distinction in the role of firearm regulation where the state has a responsibility to maintain the capacity of the militia by allowing an individual right to keep and bear arms (yes, I am aware that courts have misread Presser, but if you read the case carefully, it provides STRONGER individual rights to keep and bear arms than does Heller). In essence while the court rejected the idea of incorporation of the 2nd Amendment, it ended up with a functionally equivalent result, had state courts carefully read the opinion. I don't see a major benefit to incorporation of the 2nd Amendment.
As for the 3rd Amendment, I don't think that Engblom v Carey ruled on incorporation there even when they held that it barred the states from quartering national guardsmen in state employee housing rented to other state employees.
The 2nd and 3rd Amendments, by any careful reading of precedent, are functionally (if not in name) incorporated anyway.
While there is precedent for an amendment overturning a SCOTUS decision (11th), I am somewhat baffled by your creative understanding of the 14th Am. I have never come across anything, either in the text of the 14th Am. or in any historical materials, that explains the 14th Am. as dealing with Fed. Ct. jurisiction, and, read as a whole from a purely textual perspective, it seems baffling (and, absent any historical sources, wholy implausible).
Given that:
1. Barron was decided in 1833.
2. It wasn't really a pressing issue (not considered a mistake of any kind at the time).
3. There is some historical evidence about what they wanted to do (incorporate) as well as some textual evidence (terms of art in the 14th) that contradicts you claim.
4. I haven't seen any material that supports your assertion.
I would love to see some evidence that supports you claim. It's not that I'm saying you're wrong; I just haven't seen any evidence to support the idea that you are right.
"I would think that at very least they were referring to the due process protections in 4a, given the reuse of language."
Allowing your point ( and you likely meant the 5a), the rule of thumb is that an enumeration of a given clause or right is to assume that the balance are excluded.
In theory, this would be fine.
In practice, the State Supreme Courts have proven time and again totally insufficient at protecting those rights enumerated in their respective Constitutions*.
*Interestingly, in the very early republic State courts often cited the USC in invalidating State laws, but that's another kettle of snakes under the bridge.
Barron was not decided on jurisdictional grounds, it was decided on the merits -- to wit that the 5A did not apply to the State of MD.
<The privileges or immunities of citizens of the United States, as contradistinguished from citizens of a State,..>(quoting Bingham.)
I'm aware of Bingham's excessive words and desires ideally relating the BOR to the states (his intent of the 14A); but I'm also aware of his inability to offer an unambiguous version of his intent for a successful ratification-to his very colleagues and courts.
For every one of John's statements that reflects a desire to incorporate the BOR(in the vein you suspect), dozens of contemporaneous actions and views exist that reveal his gross inability to succeed in establishing that intent. I won't bother detailing the history. As noble as his intent was, and I love the man, we are objectively left with what was passed-and the denouement of that legislation didn't then or later manifest what you think it does, absent a singular focus on his speeches here or there, or a Justice Black spin.
Still, I'm grateful for the cite and feedback.
Rep. John Bingham (R-Ohio), who was called by Justice Hugo Black "the Madison of the Fourteenth Amendment," stated that the amendment was intended to overturn Barron v. Baltimore (1833), in which the Supreme Court had held that the federal courts did not have jurisdiction to apply the Bill of Rights in cases between a citizen and his state. See Congressional Globe, 39th Congress, 1st Session. pp 1088-90. See also Congressional Globe, 42nd Congress, 1st Session, Appendix, p. 150, where Bingham restated his intention in drafting the 14th Amendment.
Also see Religious Liberty and the Secular State, The Constitutional Context, by John M. Swomley, Prometheus Books, Buffalo N Y (1987) pp 61, 72.), summarized here.
And see "Intent of the Fourteenth Amendment was to Protect All Rights".
Not in that era, and specifically rejected by the Ninth Amendment.
What was passed protects P&Is, which were understood to be partially enumerated by the BoR.
Wrong. You might try actually reading the decision, which ends withe the words:
That is because they reflect the original understanding that the rights thus recognized pre-exist and are superior to all constitutions in all countries and for all time, thus the states are bound by them.
When Marshall said in Barron that the BoR was not "applicable" to the states he meant not applicable by his Court (or by implication federal courts generally). He didn't find that the states were not bound to protect those rights, only that that court lacked jurisdiction to decide in cases involving those rights between a citizen and his state.
The Court clearly concluded that it did not: "We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States."
This was not a decision stating that the Fifth Amendment restricts State action, but that no federal court (including the Supreme Court) could declare it as such. It was a decision clearly stating that the Fifth Amendment doesn't restrict State action. That the result of this determination was a dismissal for lack of jurisdiction doesn't mean that the key issue was the scope of federal court jurisdiction.
It did not say anything about whether the states were bound by the 5th or other rights in the Constitition or BoR, only that the Court lacked jurisdiction. It was up to the state courts to protect such rights, and if they failed to do so, up to the state citizens to make their state courts do so.
Again, I quote: "We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States."
And also:
Under your view, I take it that a State court could strike down a State law as violative of the U.S. Constitution. But if that issue of federal law were appealed to the U.S. Supreme Court, it wouldn't have jurisdiction to hear the claim? Or is the question of whether the U.S. Constitution binds the States a question of State law that each State can decide on its own? I have to say, this position seems so clearly contrary to the language of the case as to be baffling.
In my view, this is a distinction without a difference.
Anon321: "I agree that it would be silly. But I think this actually explains why the 1868 understanding should control. The key to your analysis is that 'those previous federal decisions should be applying the 1791 understanding.' But what if they weren't?"
The originalist would argue that there is no excuse for not consistently applying original intent, and we should undo those decisions inconsistent thereby. As for your hypo, let's make it more plain: What if, in 1868, the current interpretation of the 6th Amendment was wholly inconsistent with original intent; does that mean that the 14th Amendment thereby incorporated only THAT interpretation of the amendment (on the premise that they would not have done the incorporating if the amendment was still interpreted in an originalist fashion)? I would agree that this would be the case if the 14th Amendment explicitly did incorporate the Bill of Rights against the states. But it did not. It instead used generalist language that the Court has interpreted to mean incorporation. So I do not see an intent by the 1868 drafters to adopt contemporary understanding of the amendments.
IANAL, and I'm not trying to play one, but I don't see how this could be right -- not as a matter of law, but as a matter of logic.
It seems to me that if there is an incorporation decision in 1868, it necessarily concerns the 1868 understanding of whatever is (or is not) incorporated. If that understanding is the same in 1868 as it was in 1791, OK. If not, the 1868 understanding would control.
Yes? No?
Correct, and that happened in several cases.
Precisely. The case would stop at the top court of the state under Barron.
It has exclusive jurisdiction to do so under Barron (which I and some of the framers of the 14th considered to have been decided wrongly on this point).
Marshall's language was an attempt to avoid inciting the South to secede, and that political purpose made the opinion incoherent.
The Founders considered the rights recognized in the Constitution and BoR to pre-exist and be more fundamental than either the U.S. or state constitutions. They regarded all governments everywhere and at all time bound by them. They just didn't create federal courts that could adjudicate all of them. The question remained whether the adoption of the BoR (except the First) made the rights they recognized federal questions. Marshall in Barron decided they did not clearly do so. Others, then and later, disagreed.
I appreciate the evidence and citations you provided. However, I also believe that your reading of Barron differs from mine, and I believe that Anon321 reads the holding of the case correctly, both as a logical matter and as it has been interpreted.
IOW, the citations you provided re: Barron would only provide evidence for your account if there was some evidence that your (creative?) reading of Barron re: jurisdiction was one shared by others; I don't believe that to be the case- either today, or in 1868.
Debates on the Bill of Rights, House of Representatives,
Amendments to the Constitution, 8 June , 21 July , 13 , 18-19 Aug. 1789. Annals 1:424-50, 661-65, 707-17, 757-59, 766. [8 June]
Once the pre-existence of those rights is established, everything else, including my reading of Barron and the 14th, follows.
I know of none that was thus appealed. The state court decisions stood.
I think you have it right, and Prof. Bernstein agrees. However, a number of comments in this thread disagree. I don't get it. And some of the arguments in defense of the "frozen in 1791" side make no sense to me -- the whole point of the amendment process is to be able to change the original wording and/or meaning as necessary.
I think you are mistaken. The Privileges and Immunities clause of the 14th Amendment was not a one-time operation, but a permanent linkage. If one electrical circuit is wired to another, any change in the voltage on the second circuit immediately propagates to the first circuit.
Your view would permanently enshrine 1868 interpretations as binding on the states, never to be altered. It seems highly unlikely that the authors of the 14th Amendment intended that.
Also consider this: suppose there are "Privileges and Immunities" under the Constitution that were established after 1868. Under your interpretation, those "Privileges and Immunities" could not be incorporated until another Amendment was passed.
If a state court strikes down a state law as violative of the federal constitution (or other federal law), the state can (and typically does) appeal that decision to the U.S. Supreme Court. Happens all the time. Just from this past term, we have Arizona v. Gant (in which the Arizona Supreme Court held that a search by a state officer had violated the Fourth Amendment), Oregon v. Ice (in which the Oregon Supreme Court said that an Oregon sentencing law violated the Sixth Amendment), Arizona v. Johnson (another AZ court Fourth Amendment decision), and Vermont v. Brillon (in which VT Supreme Court had found a state prosecution violative of right to speedy trial).
Semantic quibble, at best. Marhsall said there was no Federal Right which is why there is no jurisdiction.
Had there been a Federal Right, there would have been jurisdiction, so the matter turns on the merits -- does the 5A bind the State of MD.
I don't necessarily think you are incorrect in some of your ideas re: natural law. There was a belief (that we no longer have) that there was some perfect "natural law" and that common law was a gradual evolution toward that natural law. Sort of akin to Plato's cave, except that common law would gradually evolve from the shadows of our understanding of the perfect "correct" law to the idealized figures.
However, this goes against the idea of a written constitution and of any constraints on the judiciary. If one judge's antennas go into the ether and scoop up a different idea of the "perfect" law than another, there is little to criticize. I realize that I have oversimplified matters (the use of logic and reason and precedent etc.), but the example gets to the heart of the problem.
A further example of this is the Erie RR case- it isn't that Justice Story was wrong, it's just that it was a Conflict of Laws case (Federal vs. State laws) and the entire conception of what law was changed completely between Swift and Erie.
So, again, I am not sure what you're getting at. I do not think that your description of Barron is accurate (based on my reading). I think that the Framers did believe in natural law, ass did the jurists of the time, but that belief is not helpful for a written constitution (they wrote down what they thought the limits were, and included the 9th as a catchall). Finally, from a normative point of view, I think that while you might have an interesting point of view, it is most certainly a radical one, and one that is not descriptive of the current law (nor has it been for some time, or, perhaps, ever-- even though there was a belief in natural law, there weren't any SCOTUS cases from the early years relying on the 9th). So I think it would be nice if you include some caveats in your writing instead of stating your assertions as fact. For example- simply writing, "While the current Supreme Court has not adopted my view, I think the following would be better for the following reasons."
Rarely in the 20th or 21st centuries, and almost unthinkable in the 19th.
Wrong. Every right might have a remedy, but it need not be a judicial remedy, or a remedy in any particular courts provided. The remedy could be political, or a matter of "self help". Many rights are left to the political process, and denied jurisdiction in courts.
That is for lawyers. For us legal historians what matters are the facts of history, logic, and linguistic analysis. A court opinion is just another fact, to be respected only if they get it right. The opinions of fools don't become authoritative because they happen to wear black robes.
Please name some of those rights.
And they wrote a Constitution that recognized but did not create those rights, as the above quote from Madison shows. I regard us all as bound by that understanding, even if too many people today seem to have difficulty understanding the concept. That is their problem, and it is not incumbent on the rest of us to allow them to impose their difficulties on us.
Simple logic:
1. Rights pre-exist and are superior to the constituions, written or unwritten, of all polities, which are bound to protect those rights.
2. States are polities; therefore
3. States are bound to protect those rights.
The fact that the rights may be recognized in the U.S. Constitution and not in a state constitution is immaterial. They do not depend on being recognized. They existed and were expected to be protected even before the Bill of Rights were adopted. They could just as easily be recognized in a scripture, the scribblings of a madman, or glyphs by aliens on the moon.
As for justiciability, there is no constitutional mandate that we have any courts, federal or otherwise, other than the Supreme Court, which could consist of a single judge. Courts are to avoid civil conflict that would result if there were no peaceful alternatives for resolving disputes, and to enable the enforcement of laws. If tomorrow the government closed all the courts, our rights would remain the same. For remedies citizens might have to unofficially elect judges and support courts by subscription, enforcing judgments by militia. (That is a fair description of how things worked in the early republic.)
Lawyers need to put aside their indoctrination and get back to fundamentals.
See Wikipedia article on "Political question".
To those could be added:
1. A claim not to have a statute or amendment enforced that was never actually adopted or ratified.
2. A claim that an official not exercise powers he has no authority to exercise. (Writs of quo warranto have been placed out of reach of ordinary citizens, or are denied under the doctrine of immunity.)
I will leave it to others to come up with more as an exercise. Good question for an exam.
Be careful about citing Wikipedia.
I think you have made several recent claim that are, well, somewhat interesting. Let's see:
1. Your idea that there are rights without remedies (or with political remedies) is nothing short of bizarre. Certainly, they cannot be referred to as "rights". To give you an obvious example, when the Alien &Sedition Acts were passed, they most certainly violated your First Amendment "rights". Yet, since no court declared them unconstitutional, there was no remedy. While I am sure, in some abstract sense, the people jailed under the A&SA could claim that they had a First Amendmend right, and it had been violated... well, that was worth as much as the saliva it took them to work up the outrage. This gets into the whole question of whether the Constitution is self-executing (see also Bivens), but a right without a remedy is not a right at all, as it may be violated at any time without repercussion.
2. Your other notion (that these rights bind all polities etc.) is, well, quaint. I'm sure the people of North Korea are happy to know about their right to freedom of speech and expression (let alone RKBA). But it's also very western-centric, an very common-law centric. I never realized that jury trials were part of natural law... so many places, at so many times in history, have managed to not have them! And, again, this presupposes that "someone" (you?) is able to divine what these natural laws are, and is so kind to share them with the rest of us, and that the rest of us don't diisagree with you.
You write about the indoctrination of lawyers- yes, we have a certain way of looking at things. But you have some truly strange ideas, and writing things like "[t]he opinions of fools don't become authoritative because they happen to wear black robes. . . ." doesn't lend credibility to your arguments. When you're so far out in left field, and your ideas have been discussed and found wanting by so many generations of legal scholars and historians, perhaps a little humility is in order.
Not to say that you're wrong- I might think so, but that's you're business. But as they say, a fanatic is one who, when proved wrong, redoubles his effort. You would gain credibility by at least acknoledging your normative beliefs are so misaligned with the descriptive, and, furthermore, by not treating the many intelligent people who work in the field and disagree with you as "fools" who are "indoctrinated".
Not claiming it as authoritative. Just a list of some cases.
Another example:
3. A claim of a right not to obey a commander or articles of war when there is no declared state of war.
4. A claim that Congress has violated its own rules.
Are those rights? Certainly, there are parts of the Constitution which have been declared to be "political questions" (e.g., Article V and how the Senate conducts impeachment trials), but what Constitutional right is currently held to be a PQ?
Not the the Supreme Court in all those "political question" cases. This used to be Law 101.
Sure there was. It was the Election of 1800, called by Jefferson the "Revolution of 1800".
It is in large part, mot in others.
Every right has at least one remedy, but it is not necessarily a judicial remedy, or actually available. The remedy may be put out of reach of most people without money or connections. That is the predicament of most ordinary citizens face today, and the cause of much discontent. (See the recent Tea Parties, or any forum on judicial abuse.)
The Founders did not agree, and they are our lawgivers.
The ones who have managed to escape are.
Read the Madison quote. Stems from the social compact, which is not exactly "nature", but does precede and is superior to the written constitution of government.
In my essay, "Social Contract and Constitutional Republics", I analyze the sources of rights to be:
1. Constitution of nature
2. Constitution of society
3. Constitution of the state
4. Constitution of government
The Founders. I'm just passing on their ideas, restating some for clarity.
You may find them more acceptable after you think about them a while.
Many agree with me, including many on our People page, most of whom mostly privately agree with me, but generally choose not to be so upfront about it.
I acknowledge some disagree, but don't find it necessary to keep repeating that.
I was apeaking of judges rather than scholars, but I don't respect judge worship. Violation of the First Commandment.
You keep pointing to "political questions". As a refresher, a political question is simply something that is non-justiciable for prudential reasons. IOW, it has nothing to do with "rights". It has to do with justiciability. If something is moot, or not ripe, it falls in the same category. You could say the same about issues of standing. It has nothing to do with rights.
Put another way, since you say that rights can be vindicated by the political process, isn't everything a right? Red cars offend you. You see a red car that offends you, You don't get this "right" vindicated by the courts. So you go the legislature that then passes a law banning red cars. Was it a right? Was it a right previous to the legislature acting? If the legislature passes a law that is simply a proclamation "There shall be no red cars, and everyone has a right not to be offended by red cars, but there shall be no enforcement of this statute." and you bring an action to enforce your right that the court rightly dismisses (no remedy), where was your right?
The mind boggles.
This gets into the whole question of whether the Constitution is self-executing (see also Bivens),
It is in large part, not in others.
Okay... I'll take the bait. What parts are self-executing, and what parts aren't? Feel free to use Bivens and the exceptions part of Art. III.
That is just saying "Plaintiff may have a right but we won't provide a remedy." It is inviting him to try something else, such as a private bill, or perhaps a pardon.
It has to do with remedies, and while there can be remedies without corresponding rights, generally there are some.
Of course it does. Just because the court won't provide a remedy doesn't mean there isn't one. It may even be a judicial remedy that the court just doesn't want to provide, even though it has a duty to do so.
Incidentally, the doctrine of standing stems from Frothingham v. Mellon, 262 U.S. 447 (1923), discussed by "The Metaphor of Standing and the Problem of Self-Governance", by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988. Before that, it was the accepted rule that private parties could judicially prosecute a public right.
There are different kinds of rights, but generally we have a right to do anything for which there is no delegated power to restrict, and no exercise of such power.
No.
Legislation with no enforcement clause somewhere is just an expression of opinion or aspiration, not a true law.
Perhaps you are beginning to grasp it.
Legislation with no enforcement clause somewhere is just an expression of opinion or aspiration, not a true law.
And if a right is not enforced (aka given a remedy), it is just an expression of opinion or aspiration, not a true right.
This gets to the self-executing nature of the Constitution. If Congress ever stripped the Courts of their ability to hear certain types of cases (under, say the exceptions part of Art. III), such that there is no remedy, is there a right, or just an aspiration.
Congress passes legislation stripping the Courts of their ability to hear 1st Amendment claims.* You may have an aspiration, but no right, as there is no remedy when the government infringes upon your ability to speak. You might argue there is a political remedy (vote out Congress, amend the Constituion), but that is an inchoate right- no more a right than any right that does not currently exist that comes into being through the political process.
*Assume that the Courts would allow them to do this :)
Craig v. Maryland was the case where the Supreme Court held that people accused of child abuse do not have a right to directly face their accusers. Since Craig, a waive of false-accusation cases came to light clarifying not only that children can be bamboozled into making false accusations, but that face-to-face confrontation is in fact critical to ferreting out whether such bamboozling occurred. The Supreme Court is doubtless still dealing with the embarassment of being so utterly wrong.
Bivens and the Art. III exceptions are well-trod ground. As Akhil Amar has argued, the original jurisdictions of Art. III are self-executing.
Let's go further afield.
Keep in mind there are many different kinds of "execution", so that complicates the discussion.
Generally, constitutional rights, perhaps expressed as restrictions on powers, are self-executing, and delegated powers are not.
Assignments of duties are typically self-executing, but of course someone has to carry out the duties, so in that sense they are not.
Specifications of structures are partly self-executing, but of course the structures have to be filled with content. Thus, it specifies a Congress, but members have to be elected to it. A president, but someone has to be elected to fill that position.
That leaves procedures, many of which are partially specified in the Constitution, but with a need to fill in the details. Such as elections, the first of which were conducted by volunteers at their own expense, without legislation or a public appropriation. That worked, but wasn't entirely satisfactory as things got more complicated.
For a right created by an enactment or a contract, no, but not for rights that stem from nature, the social compact, or the state (pre-government). Those rights contain their own remedies, although they may be brutal ones. Generally, those that stem from the Constitution proper have remedies, although many of them have been getting somewhat inaccessible lately.
Okay, you are buying Ex Parte McCardle, which was an incorrect construction of the clause. The clause is only about two kinds of jurisdiction, original or appellate, not "no jurisdiction". The exceptions to appellate jurisdiction are original (and vice versa). The Framers did not contemplate stripping jurisdiction for a certain kind of case from all courts. The Supreme Court at least has jurisdiction over any case it chooses to adjudicate, including the constitutionality of the stripping statute. Of course Congress can accomplish much the same thing by not creating any lower courts or consenting to the appoointment any justices to the Supreme Court, but that would raise objections from several constituencies.
There is always the right of revolution if things get to that point. That is what militia is about.
Re: The Political Question Doctrine, is it just me, or do you think whether the 27th Amendment would be valid would be punted by the courts as a "political question?"
So far the only challenges to the ratification of an amendment have been treated as political questions, even if that term was not used. So, yes.
Perhaps as interesting would be what would the Court do with a suit to enforce the 27th (which is already being violated). I would expect either "political question" or denial of standing, which is another ruse used.
1, Administrative
2. Judicial
3. Political
4. Coercive
Lawyers, bless them, sometimes seem to think the only remedies are administrative or judicial, because that is the way they are trained or indoctrinated. Sometimes they venture into political remedies. But they seldom consider the last: coercion, for which they have the quaint term "self help".
We need to keep in mind that the foundation for all remedies is violence, which is the ultimate remedy for all rights. Indeed, one may almost define rights as that which people will tend to resort to violence to protect, if they can't get the support of enough people to do so with only a threat of violence.
Administrative and judicial remedies all involve getting the support of public institutions for one's position, with the resort to violence by those institutions using hired agents if your position is upheld but the opposing party resists.
Political remedies are likewise a matter of assembling support of strong enough political forces in support of your positiion. A majority vote stands in for going to war, with the expectation that the greatest number will probably prevail, so it is better not to take it that far, but just vote on it.
But, ultimately, if nothing else avails, one has the remedy of force, either by oneself or with the assistance of family and friends. That is how civil conflict develops, and the costs and risks can be high. High enough that we are rationally reluctant to resort to it before exhausting nonviolent alternatives. That is why I said that remedies can be brutal.
By loki13's reasoning, most people in this society today have no rights, because they can't afford a lawyer or lack the skills to prosecute their own cases pro se. We need to ask if that is really his position. Many lawyers think that way, but the way that courts today put judicial remedies out of reach of all but the wealthy and well-connected is a tinderbox waiting for a spark. It is only surprising that people have put up with the situation for so long without resorting to violence, and much of the violence that already occurs arises from unmet grievances.
Imagine how much better it would be if we organized and trained those street kids to function as militia, defending themselves, their communities, and us, without resorting to crime.
I think at a certain point we are simply talking past each other. Just as you cannot fathom my position (thinking it the product of years of indoctrination, I am sure), I find your position so inherently contradictory that it is utterly baffling.
You write both that it doesn't matter what is written in any Constitution (it could be the mere scribblings of a madman) and yet have an amazing fealty, bordering on deification, for the Franmers ("The Founders did not agree, and they are our lawgivers."). It would be trivial to point out the number of ways in which the Constitution was flawed as a political document (election of VP) and as a statement of natural law (treatment of slaves). Why should the BOR be accorded any status as Natural Law- were the antenna just particularly attuned in a ay that has not been before or since to the ether?
You believe that rights can be found through the political process or through the barrel of a gun. Well, sure, if that's how you chose to define 'right'. If I have a gun, and you don't, I suppose I have a right to your wallet. But "might makes right(s)" isn't really what I was talking about.
The belief in natural law is charming, and there are still some scholars (mostly Christian) who might support you. But the conception of what law forms naturally seems to have varied significantly throughout cultures and times; in a previous thread on Athens and Sparta, I am sure that their respective societies would have had very different conceptions of what the correct natural law was. This isn't moral relativism; I might choose better systems- but it smacks of hubris to say that you know what the natural law is. Even the common law jurists working at the time believed they were working toward it (which favors the idea of a living constitution, and increased common law, as opposed to fealty to our "lawgivers").
In short, while I always enjoy the conversation, it's like a conversation between a line and a sphere; I'm not sure that we can understand one another.
Didn't say that. I said it doesn't matter what form or who writes a recognition of rights, as long as they get it right. Doesn't have to be in a constitution. They arise out of human nature and the social compact, awaiting to be discovered, or not.
I took an oath to "preserve, protect, and defend the Constitution against all enemies, foreign or domestic", and I take my oaths seriously.
Hardly trivial. I have done it myself in such writings as my Draft Amendments.
On the whole, yes.
Nor is it what I am talking about. Might doesn't make right, but in a healthy society the good guys will outnumber and outgun the bad guys. Not all societies are healthy. But either way, people have rights, even if they have to die for them.
The principles of sound constitutional design, like the principles of other sciences, have become better understood, at least by more enlightened people. We see that in the convergence of the designs of national constitutions.
Part of that evolution was to reach a point at which it was found necessary to codify and stabilize their experience and insight into a written constitution that would be difficult to amend. The wisdom of that insight is seen in how most of the departures from compliance have been really bad ideas, even if that is not appreciated by most of our contemporaries.
And that oath makes an external reference to a possibly-changing referent.
Let me ask a question, if there was an amendment (duly ratified, let's even say unanimously ratified by both Houses and all 50 State legislatures just for the sake of argument) making Obama President for life, would you still feel bound to protect Obama's rule? This question might be sound trite but I think it's quite important because it will help me understand exactly how you conceive the relationship between your oath and the referent ("The Constitution").
Such an amendment would be incompatible with the superior constitutions of nature, society, and the state, which provide the principles of sound constitutional design, and as such would be unconstitutional, even if enacted according to Art. V.
Likewise amendments that might infringe on the rights, privileges and immunities recognized in the Constitution. They are superior to constitutions of government.
So far I do not find any parts of the present Constitution, as originally understood, to have such a conflict, although I am of the opinion the income tax amendment was not actually ratified, and I have grave doubts about the 14th (although I generally otherwise approve of it).
Who decides if an amendment is "incompatible with the superior constitutions of nature, society, and the state"? To a pro-life person, the Due Process Clauses fit the bill to the extant that it requires a right to an abortion. To some people the 22nd Amendment and the Qualification Clauses would be void under your rule, because they limit the People in choosing who is to run the federal government. I'm sure there would be people who would try to use your rule to void the 16th Amendment.
In short, your rule would turn the Constitution into Swiss Cheese and possibly destroy it.
It should, if the debate is properly conducted, shift the ground of debate from policy preferences to the principles of sound constitutional design, and at that level of discourse, we can approach the issues more scientifically.
Actually, the so-called "right to abortion" does not really arise from the Due Process Clause, except negatively. It arises from the fact that at the time the Constitution was adopted ersonhood was considered to begin at birth, not at conception or some intermediate point. The due process clause would apply if the fetus were a person, otherwise not. That entire discussion is thoroughly muddled by fuzzy thinkers. I have discussed how to treat it here.
There is no conflict between term limits or other qualification clauses and the principles of sound constitutional design.
There are two main problems with the income tsx amendment: It wasn't actually ratified according to Art. V; and it didn't define "income". (Wages are not income. See Jeffrey dickstein, Judicial Tyranny and Your Income Tax, 1990, soon to be online.)
Every bizarre, difficult-to-understand, way out-of-left-field, internally contradictory approach to constitutional interpretation has one thing in common:
The people proposing it don't like income taxes.
I began from a position of approving the income tax. But after reviewing the evidence and arguments, was compelled to the conclusion the income tax on wages is unconstitutional, as are inheritance and gift taxes. Income taxes on corporate entities are constitutional.
My response is to design an alternative to the income tax on wages that would be constitutional, discussed here.
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