Archive | Fourteenth Amendment

The Battle Cry of Freedom


A wonderful song at all times, and especially around Independence Day, especially this year.

“The Battle Cry of Freedom” was written during the Civil War, and sung by Union troops going into battle. This video pays tribute to Ulysses Grant, the General most responsible for winning the war for the Union. Elected President of the U.S. in 1868 and re-elected in 1872, U.S. Grant vigorously enforced federal civil rights laws to protect the freedmen. Not until Lyndon Johnson in 1963-69 would an American President work with such determination for civil rights. After leaving the White House, Grant served as the 8th President of the National Rifle Association.

The National Rifle Association’s brief in McDonald v. Chicago quoted President Grant:

Subsequently, President Grant issued a report on enforcement of the Civil Rights Act which noted that parts of the South were under the sway of the Klan, which sought “to deprive colored citizens of the right to bear arms,” and to reduce them “to a condition closely akin to that of slavery * * *.” Ex. Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872).

The brief  likewise quoted a report from General Grant about the conditions in Mississippi which had helped convince Congress of the necessity of the Fourteenth Amendment, to make the Second Amendment applicable to all state and local governments:

“The statute prohibiting the colored people from bearing arms, without a special license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).

McDonald v. Chicago brings the United States an important step closer to accomplishing a central purpose of the Fourteenth Amendment: making all of the Bill of Rights applicable to every state and local government in America. It was a national tragedy that the Supreme Court essentially nullified much of the Fourteenth [...]

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“Justice Souter’s Bad Constitutional History”

Last month, retired Justice David Souter delivered the commencement address at Harvard.  His speech was a veiled challenge to proponents of originalism. Some commentators, such as Washington Post columnist E.J. Dionne, Slate‘s Dahlia Lithwick,  and TalkLeft’s Big Tent Democrat were impressed.  Others, not so much.

In today’s WSJ, Northwestern University’s John McGinnis and USD’s Michael Rappaport take issue with Justice Souter, suggesting he misunderstands original meaning jurisprudence and inadvertently justifies the jurisprudential methodology that produced such horrors as Plessy v. Ferguson.  Here is a taste:

At the recent Harvard commencement, retired Supreme Court Justice David Souter attacked what he regards as the “simplistic” model of giving the Constitution a “fair reading.” A judge, he said, must determine which of the conflicting constitutional values should become our fundamental law by taking account of new social realities. . . .

Justice Souter actually provided a primer on how not to be a judge. He made up a Constitution that never was to justify a kind of judicial power that was never intended. . . .

Justice Souter recognizes that his method of interpreting the Constitution is indeterminate, but he argues that it is necessary to put our trust in justices to reach just results. The historical reality is that this interpretive method permitted justices to create a Constitution of their own contrivance in the service of injustice.

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Advice to Rand Paul re: Civil Rights Act of 1964

Read David Bernstein’s excellent blog post. Unfortunately, because the title of David’s post referred to Bruce Bartlett and not Rand Paul, some seeking a “libertarian” take on this issue may overlook his analysis. To David’s libertarian analysis I would add the following considerations pertaining to the original meaning of the Constitution:

(1) The problem of Jim Crow in the South was a direct product of slavery–indeed it was a deliberate and concerted effort by Southerners to reimpose slavery in everything but name. Slavery was a private as well as a public institution, which is why the Thirteenth Amendment was not limited to state action. As such, even private conduct that amounted to “badges and incidents” of slavery should have been reachable by Section 2 of the Thirteenth Amendment, which empowered Congress to make laws to put that provision into effect. It was under Section 2 that Republicans in Congress passed the first Civil Rights Act of 1866, and the Freedman’s Bureau Act. Whether or not these acts were truly within the original meaning of the Thirteenth Amendment is, of course, a matter of dispute. I think the better analysis of the Thirteenth Amendment was explained by Justice Harlan in his dissenting opinions in the Civil Rights Cases and Plessy v. Ferguson. The opposing view that limited the reach of the Thirteenth Amendment was articulated by President Andrew Johnson — a “War Democrat” — when he vetoed the Civil Rights Act in his highly racist veto message. Because Johnson’s reading of the Thirteenth Amendment has largely prevailed among legal scholars of all stripes, Section 2 of the Thirteenth Amendment is generally overlooked in debates concerning the scope of Congressional power over “private” conduct.

(2) As David mentioned, the South systematically denied free blacks, and whites who wished to deal with [...]

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Kurt Lash on Privileges or Immunities

Part 2 of 3-part series. This installment, “The Origins of the Privileges or Immunities Clause, Part II: John Bingham’s Epiphany,” has a very detailed analysis of changes in the drafts of the 14th Amendment.  Lash argues that the drafting history shows that the Fourteenth Amendment was intended to protect every part of Amendments I through VIII, but not to protect any unenumerated rights.

I’m still inclined to a broader view of the 14th Amendment, but perhaps I will change my mind after reading Part III of the series. Regardless, anyone with an interest in the original meaning of the 14th Amendment will benefit from reading this article. Obviously the aforesaid group does not include most of the current Justices of the Supreme Court. [...]

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Destroying the Constitution’s Structure is not Constitutional

Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which points the way to strong, recent, and repeated precedent suggesting that Obamacare is unconstitutional.

Let’s begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:

In your view, which of the following federal programs or agencies are constitutional?

(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate

In my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using “constitutional” in the normal sense of the word as it appears in most modern public dialogue. That is, “Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?” This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent. The Supreme Court can change its own precedents, but for for purposes of argument, I am presuming that the Supreme Court would not overrule any precedents.

As Jack Balkin, Sandy Levinson, and others have ably pointed out, “constitutional” can be used in a different way, in that people express aspirations about what the Constitution should mean, even if that meaning is contrary to current precedents. For example, a person in 1946 might say “Discrimination against women is unconstitutional.” That person would [...]

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A Message from/to Rick Hills

I thought Volokh readers might enjoy an email exchange I had earlier today with NYU lawprof Roderick Hills earlier:

Hi Randy —

I thought I’d send along a recent blog post at Prawsblog that gives you, Cato, Ilya, etc some flak in a good-natured way. (Brian Galle also has a post on health care federalism that might interest you). . . .




Hey Rick,

I am at the intermission of “The 39th Steps” (in DC) but managed to read your post before the play started. I am not sure when I will be able to reply, but wanted to note that I jointly submitted the Cato brief in Comstock that you like so much. And, in Raich, I also litigated a Ninth Amendment/Due Process Clause theory. It was the Ninth Circuit’s ruling for us that propelled the Commerce Clause theory to the Supreme Court (where we continued to assert Ninth Amendment/Due Process theory). When the Supreme Court declined to consider that theory, we then argued and lost this claim on remand to the Ninth Circuit.

Unlike some I could name, I feel free to employ the whole Constitution–including e.g. the Privileges or Immunities Clause of the 14th Amendment which qualifies state power–both the parts the Court is more inclined to accept and those parts which, for now, are “lost” but not yet repealed.

BTW, as a fan of the film I am really enjoying the play.



PS: Feel free to clean this up (I am using my cell phone) and post if you like.

I expect that Rick has probably been away from his PC while enjoying his Sunday and unable to add my message to his post. So, as comments on Prawsblawg seem not to be working or are disabled–oh, sweet [...]

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Married Women’s Property Rights and the Privileges or Immunities Clause

In the McDonald oral argument, Justice Ruth Bader Ginsburg implied that an originalist approach to the Privileges or Immunities Clause might justify protecting property rights for men, but not for married women. She claimed that “a large portion of the population at that time [1868] didn’t have those rights” and asked McDonald’s counsel Alan Gura whether “married women at that time across the nation ha[d] the right to contract, to hold property, to sue and be sued.” Presumably, Ginsburg meant to criticize originalism rather than endorse gender discrimination. If so, I think the argument fails.

Unfortunately, Gura failed to point out that most states had enacted Married Women’s Property Laws by the 1850s, which did indeed give them the right to own property separate from that of their husbands.

There were, in many states, greater limitations on married women’s freedom of contract. But some married women were nevertheless employed outside the home under employment contracts, and the married women’s property laws gave them the right to sign contracts related to their property. New York’s widely influential 1860 law on “The Rights and Liabilities of Husband and Wife” also gave married women broad rights to contract and to sue and be sued. Thus, an originalist approach would certainly protect married women’s right to property and at least a fairly broad right to contract.

Ginsburg would have been on firmer ground in pointing out that states did not give women the right to occupational freedom equal to that of men, and many had laws banning women from various professions. In 1873, the Supreme Court upheld an Illinois law barring women from becoming lawyers against a P or I Clause challenge in Bradwell v. State. The majority of the justices upheld the law simply on the ground that the Clause [...]

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Hamburger’s “Rough Draft” on Privileges or Immunities

As Jim Lindgren has noted, on the eve of the argument in McDonald v. Chicago, Philip Hamburger has posted on SSRN what is labeled a “rough draft” of a new paper entitled, Privileges or Immunities. This timing is unfortunate. Given that this is a serious work of scholarship by a serious scholar, it demands serious attention before its argument can be fully evaluated. Yet it is posted now with a reference to the McDonald case in its very first paragraph.

I have only had a chance to peruse it quickly and have some initial impressions. The article focuses on antislavery uses of the Privileges and Immunities Clause of Article IV ([what Hamburger calls “The Comity Clause”), as do I in my new paper, Whence Comes Section One: The Abolitionist Origins of the Fourteenth Amendment. In the latest version of my paper posted earlier this week, I make it clear that this Clause was typically invoked by antislavery lawyers and activists on behalf of free blacks. Hamburger correctly stresses this point as well. So far so good. [For the record, unlike Hamburger, I make no claim that my paper has any bearing on the McDonald case and I deny the evidence I examine is dispositive of the original meaning of Section One.]

But Hamburger’s thesis is that all the Privileges or Immunities Clause of Section One accomplishes is to provide federal enforcement of the Article IV Privileges and Immunities Clause AND NO MORE. By the way, he seems not to have noted that this aspect of his thesis is completely inconsistent with Justice Miller’s opinion in The Slaughter-House Cases which consigns the protection of these fundamental natural or civil rights to the states free of federal protection. Hamburger is not very precise about what he is claiming to [...]

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Federalism and the Akaka Bill

The House of Representatives recently passed the Akaka bill, H.R. 2314, which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes. Most of the debate over the bill has focused on the racial aspect, since it apparently seeks to create a government entity under the exclusive control of a single ethnic group. This may be a violation of the Equal Protection Clause. Whether this constitutional objection is valid or not, I think there are serious constitutional federalism problems with the legislation.

I. The Commerce Clause Doesn’t Give Congress the Power to Create an New Indian Tribe for Native Hawaiians.

Supporters claim that Congress has the power to enact this bill under the so-called Indian Commerce Clause, which gives Congress the authority to “To regulate Commerce . . . with the Indian tribes.”

As legal scholar and US Commission on Civil Rights Commissioner Gail Heriot pointed out in her testimony against the bill, this is “a thin reed indeed upon which to predicate a power to create a tribal government.” Heriot emphasizes that the power to regulate commerce with existing Indian tribes does not include the power to create a wholly new tribe:

The United States has long recognized the sovereign or quasi-sovereign status of certain tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Federal policy toward them was simply an appropriate bow to reality. To withdraw recognition to any such group without very good reason would be an injustice.

By retroactively creating a tribe out of individuals who are already full citizens of both

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Goodwin Liu on the Second Amendment

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

[W]hat we have seen in recent years gives me pause. . . . Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.

. . .No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of “dual sovereignty.” Those statutes include the Gun-Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the Trademark Remedy Clarification Act, the Age Discrimination in Employment Act, the Violence Against Women Act,  and the Americans with Disabilities Act.

. . .

United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a

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Whence Comes Section One? (Second Notice)

Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings.

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Cardozo Law Rev. symposium on McDonald v. Chicago

Cardozo De Novo, the online companion to the Carodozo Law Review, has a symposium issue on firearms law and policy, with a focus on McDonald v. Chicago. Articles include The Second Amendment in the Living Constitution, by me; a critique of the Stevens dissent in Heller, by David Hardy; and a proposal by Michael Anthony Lawrence that all restrictions on liberty be judged according to a “reasonable time, place, and manner” standard.

In the comments section, feel free to discuss any of the articles. [...]

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Privileges or Immunities Extravaganza

On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment’s Due Process clause, or under the Privileges or Immunities clause. There’s been plenty of interesting scholarship recently on Privileges or Immunities. Here’s a guide to some of the most important articles:

Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 94 Minn. L. Rev. 102 (2009). Today, the conventional wisdom is that The Slaughter-House cases asserted that the Privileges or Immunities clause does not protect the Bill of Rights. But until 1900, the conventional reading–including in Supreme Court opinions–was that the case only rejected application of procedural rights to the states. The idea that SH rejects the application of substantive rights (e.g., freedom of speech, right to keep and bear arms) came during the progressive era, as the Court and the rest of the legal elites panicked about labor unrest, and decided that states should have wide latitude to suppress dissent. The historical evidence supports using PI to make the Second Amendment apply to the states.

Timothy Sandefur, Privileges, Immunities, and Substantive Due Process, 5 NYU J.L. & Liberty (forthcoming). SH’s most egregious error was in nullifying the principle of “paramount national citizenship” which lay at the heart of the ideology of the 14th Amendment’s advocates. Revitalizing the PI clause should not lead to the abandonment of “substantive due process.” This article provides the best collection of citations and sources in  defense of the theory that, long before the 14th Amendment was written, it was widely understood that the principle of “due process” substantively prohibited certain [...]

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The Right to Arms in the Living Constitution

That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago.

Here’s the abstract for my Cardozo article:

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.
When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.
In the 20th century, some elements of the legal elite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed
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Stephen Halbrook Christmas Special

A fifty-three minute podcast interview with Stephen Halbrook. Over the last three decades, Halbrook has been the greatest legal champion of Second Amendment rights. As a scholar, as an attorney (with a 3-0 record in the Supreme Court), and as a public advocate, Halbrook has done tremendous work in saving the Second Amendment from nullification, and in putting the courts and the legal academy back on the track of recognizing the right to arms in the Second and Fourteenth Amendments. We talk about the broad scope of Halbrook’s career, and about McDonald v. Chicago, in which Halbrook is representing the National Rifle Association as a party “respondent in support of petitioner.” [...]

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