Friday, March 22, 2019

Kurt Lash @ Law & Liberty on the P or I Clause

Kurt Lash has a new post on the Law & Liberty site about the Privileges or Immunities Clause and unenumerated rights. Note Lash disagrees with among others Randy Barnett that the P or I Clause validates unenumerated rights. I'm pretty sure I agree with Barnett here, but I'd have to refresh my recollection on the research.

Where Lash does fantastic work -- illustrated here -- is on the ENUMERATED rights that the P or I Clause was meant to incorporate to apply against state and local governments. Including but not limited to the first eight amendments of the federal bill of rights.

Lash reports:
The man who drafted the Privileges or Immunities Clause, John Bingham, could not have been clearer about his desire to enforce the Bill of Rights against the States. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “[t]he proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-day. It “hath that extent—no more.”[2] On March 9th, Bingham again declared that “the enforcement of the bill of rights [against the states] is the want of the Republic.”[3] On May 10, following the submission of Bingham’s final draft, once again Bingham declared “There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply.”[4] The Privileges or Immunities Clause would finally allow congress to enforce provisions like the eighth amendment’s protection against cruel and unusual punishments. Once again, Bingham assured his colleagues, “That is the extent that it hath, no more.”[5]  Finally, in 1871, Bingham explained: 
"Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.  . . . They secured  . . . all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. . . . 
Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.”[6]

15 comments:

Tom Van Dyke said...

"Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.”


An interesting process question: What of unenumerated rights where Congress has passed no legislation for their enforcement? Bingham seems to be saying they need to be legislated.


[An analogue is the current "emoluments" controversy, where the Constitution forbids public officials from taking presents/profits/gains from outside the government, particularly foreign agents. But Congress has never passed a law for its enforcement. ["No governing authority," as Al Gore once put it.]

Our Founding Truth said...


1871, January 30—Mr. BINGHAM..

The clause of the fourteenth amendment, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.

To remedy this defect of the Constitution, the express limitations upon the States contained in the first section of the fourteenth amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution. The words “citizens of the United States,” and “citizens of the States,” as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution.

-House Report No. 22 Summarizing 14th & 15th Amendments, Report of the Committee on the Judiciary of the House of Representatives
http://www.federalistblog.us/h-r-report-no-22-bingham/

There's much more direct evidence agst incorporating the p and I. You are misreading the difference between citizens of the nation and citizens of the states.

Jonathan Rowe said...

Sorry OFT, I don't follow.

Jonathan Rowe said...

Tom: Did you get Keith Whittington's book on judicial supremacy? I still haven't gotten through it. I probably should have bought you that one instead of Frazer's which I still haven't ordered myself yet.

(But when we do round II with Frazer's new book, at least you have it).

One of the chief criticisms of the 14th amendment is that it's not a well worded one and the record surrounding its construction is a mess.

I'm not even sure of how it was all meant to go down, but I suspect Congress was expected to play a much greater role in the construction of substantive rights than it has. In other words, while Justice Scalia may have been right on America's Founders and the free exercise of religion not guaranteeing a right to religious exemptions (in Smith), I suspect the framers, perhaps ratifiers of the 14th would think the holding of City of Boerne v. Flores insofar is it removes from Congress the jurisdiction of constructing constitutional civil rights, the exact opposite of what they intended.

The problem with this understanding -- as Prof. Munoz told me and a distinguished group -- is that every new Congress would be akin to a new constitutional convention.

Tom Van Dyke said...

There isn't much to say about Gregg Frazer's book. He wrote exactly the book I predicted he would--saying the same thing over and over about how an absolute prohibition on revolt in Romans 13 is the true ["plain"] meaning while giving little schrift to the revolutionaries' arguments and counterarguments. In the end, one hears only Gregg's [favored] side of the story.

As I predicted, a missed opportunity for Gregg and for any reader not already fully versed in the subject to learn about the topic comprehensively. But there's nothing "wrong" with Gregg's book. [And in fairness, the Loyalists had more than Romans 13 in their arguments--although that was still the strongest one. Then again, some turned out to be wrong, like their predictions of economic disaster for the new independent America. But he's on solid ground when writing of the illegal seizures and persecutions of the Loyalists, perhaps the book's real shining virtue.]
__________________________


As for Scalia in Smith, even his fans scratch their heads a little on that one. But his insistence on a legislative remedy did result in the Religious Freedom Restoration Act [RFRA], which does still hold some efficacy--that the government must seek the path that leads to the least abridgement of religious freedom while pursuing its desirable [desired] goals.

In a very real way, this escape hatch is more judiciable than deciding every case on the zero-sum game desirable goals vs. religious freedom. We could look at the Obamacare contraception issue and uncontroverially conclude that finding another way to dispense free contraceptives rather than forcing the Little Sisters of the Poor to do it is in the spirit of RFRA--without being forced to decide whether it is an unacceptable infringement on religious freedom or that free contraception is such a compelling government interest that we must force the nuns to participate in it.




Our Founding Truth said...

There is no change in anything regarding anything in the constitution. Read it again.

All the 14A does is enforce the rebel states from persecuting blacks, which included black codes etc,.


It made blacks, citizens of the nation and citizens of their own state. Bingham never referenced other protections other than what the constitution says; due process, life, liberty and property.

Nothing else applied; nothing.

Howard and Bingham's right hand man in house said the same thing.

According to Bingham, "the rebel States would make no denial of right to emancipated citizens no [fourteenth] amendment would be needed. But they will make denial."
--Cong. Globe, 39th, 1st Sess., 430 (1866)


Bingham had said," in the event of the adoption of this amendment, if they [States officials] conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow-men."
--Cong. Globe, 39th, 1st Sess., 1090 (1866)

Lash is taking everything out of context.

Also, art 4, sec 2 was ratified before the b of r. Applying them to the states could not be the intent.
http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm#pi

Tom Van Dyke said...

Bingham had said," in the event of the adoption of this amendment, if they [States officials] conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow-men."
--Cong. Globe, 39th, 1st Sess., 1090 (1866)


Which requires legislation by Congress. Interesting.

Jonathan Rowe said...

OFT: Bingham said the P or Is are the first 8 Amendments to the US Constitution. You can't make him "unsay" that.

Rather, you could argue that all this went over the ratifiers' heads and that the ambiguous term "Privileges or Immunities" isn't explicit enough to drive any points home.

It infamously has been termed an "ink blot."

Tom Van Dyke said...

Or what did Scalia call that P or I stuff? Law school law?

Our Founding Truth said...

Nothing changed, so it doesn't matter. Post the quote in context and you'll see lash is taking it out of context. Nothing got applied to the states except forcing rebel states to grant everything listed in the constitution. In the link, Bingham goes over what exactly are privilegees

Jonathan Rowe said...

OFT: I don't think that you understand that originally the bill of rights applied only against the federal government. Bignham is saying they now apply against the states. Or perhaps he's saying the federal government is now empowered to apply them against the states.

Jonathan Rowe said...

I do love the ideals of liberty and equality that underlie the 14th Amendment; but I will not defend its wording or the record surrounding it. It's actually quite a mess.

Our Founding Truth said...

Bignham is saying they now apply against the states."

You obviously didnt read the link or what i posted. That's bad scholarship Jon.


"The words “citizens of the United States,” and “citizens of the States,” as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution."

-House Report No. 22 Summarizing 14th & 15th Amendments, Report of the Committee on the Judiciary of the House of Representatives
http://www.federalistblog.us/h-r-report-no-22-bingham/

Schelliberger, Bingham's right hand man in House said the same thing. So did Jacob Howard and Thaddeus Stevens; it's in the link. There was no change as Bingham says above, and to prove you and Lash are wrong, Bingham quotes Barron v Baltimore to support no change in the constitution's relation to the states.

If you won't buy it, that's your business.


Tom Van Dyke said...

It occurs to me that although free exercise of religion is an individual right, the Establishment Clause was merely a protection of the states against encroachment by the national government.

It was constitutional for a state to have an official state church; for the federal government to establish one for the whole country would be an encroachment on the rights of the states.

But the Establishment Clause was never intended as a guarantee of a personal right of "freedom from religion." To hijack the 14th Amendment to make it one is beyond the power of an amendment lacking specific language or intent to modify or replace the sense of a previous one as originally ratified.

Jonathan Rowe said...

No OFT. You don't get to post a link to an article and claim "context." "Context" is a short cut for "the words mean what I want them to mean."

The original piece has smoking gun quotations from Bingham that can't be explained away.