Thursday, March 28, 2019

Two More Interpretations of the P or I Clause @ Law & Liberty

We have seen, at the Law & Liberty site, Kurt Lash argue that the Privileges or Immunities Clause of the 14th Amendment incorporates the first eight amendments of the federal Constitutions to apply against state and local governments.

At that site, Devin Watkins just argued that the P or I Clause protects in addition to the enumerated rights Lash notes, unenumerated natural rights. This position is similar to Randy Barnett's and Timothy Sandefur's and also happens to be one with which I sympathize.

Finally, David Upham argues that the P or I Clause protects neither the enumerated federal bill of rights, nor unenumerated natural rights, but rather something else. Something more limited. Upham explains more his idea we have seen before that P or Is have to trace back to 1776, not 1787-1791. As he writes:
Hence, as Senator Howard indicated by quoting Justice Washington, the privileges of U.S. Citizenship are as old as the Republic; to find them, we should look back to Year 1 of the United States—or 1776. 
Why then, did Senator Howard look to rights listed in constitutional amendments adopted in 1791—the sixteenth year of the “Independence of the United States”? Probably for the same reason he looked to the “privileges and immunities of citizens” of Article IV, as expounded by Justice Washington in 1823. As Howard noted, such constitutional law merely “secured,” “guarantied” or “recognized” pre-existing rights. Such law did not create these rights, but provided very strong evidence thereof. And to identify the fundamental rights of citizenship, severally recognized by the American states from 1776, perhaps the best place to look would be the fundamental rights that the same American states jointly enumerated in the Constitution just a few years later.
Let me note that while I love the spirit behind the 14th Amendment -- of liberty and equality, classical liberalism's twin pillars -- the actual text and historical record surrounding it is, quite frankly, confusing and messy. Plenty of things to cherry pick and hang one's hat on. Give an inch, and take a mile. In for a penny, in for a pound.

1 comment:

Tom Van Dyke said...

There was a time I purposely ignored anything to do with the 14th Amendment and the jurisprudence that followed. What was the point?

The 14th seemed to be a cudgel to which early courts gave dizzying spins [birthright citizenship, Slaughterhouse] and by the time they got done with Everson, Roe, Casey and Lawrence, Obergefell, the invention of "rights" unimaginable by its ratifiers was a virtual certainty.

The "conservative" approach to it is hazardous enough even without 150 years of stare decisis to attempt to respect; the "living constitutionalist" approach can tease out virtually any "right" from "substantive" due process and "equal" protection of the law where any social mores and distinctions are de facto "discrimination," discrimination of any sort being facially unconstitutional.

There seems to be a small bit of coherence lately, now that the tough moral questions of human life have been tabled by Casey's establishment of moral relativism as the law of the land

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”

At this point, study and debate of 14th Amendment jurisprudence and theory is a rearguard action, to see if there remains any refuge in America for objective morality, away from the heavy hand of what some philosophers have called the "dictatorship of relativism."