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November 4, 2009, 06:44 PM | #101 | |
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November 4, 2009, 07:44 PM | #102 | ||
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November 4, 2009, 08:19 PM | #103 | |||
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Last edited by Hugh Damright; November 4, 2009 at 08:28 PM. |
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November 4, 2009, 08:40 PM | #104 | |||
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We do have Rep. Lawrence's proclamation that the term "privileges and immunities" is meant to encompass fundamental civil rights. Reading all the various commentary together, there seems to be a general understanding that the 14th addresses fundamental civil rights (such as RKBA). |
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November 4, 2009, 10:20 PM | #105 | ||
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President Grant was elected before the 15th Amendment passed. Even after its passage, things like poll taxes and literacy tests put voting out of the hands of many Freedmen. It would be 1965 before black suffrage was truly protected. "Negro suffrage" didn't exist during Grant's campaign, and during his Presidency, it was just not pervasive enough to influence national policy one way or another.
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November 5, 2009, 10:42 AM | #106 | ||
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"In the election of 1868, Ulysses S. Grant won ... but his 300,000 vote margin (out of 5.7 million votes cast) was solely because of the black vote in the South. In the next presidential election, the Republicans would need the votes of the blacks in the North and border states if the party was to stay in the White House." But I've never read this book, I was just trying to find some easy reference. Quote:
Last edited by Hugh Damright; November 5, 2009 at 11:03 AM. |
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November 5, 2009, 11:45 AM | #107 |
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I believe I entered this discussion to suggest certain uses of the words privileges/immunities/rights by using an example, that the SCOTUS might find the right to keep a gun in the home to be a "privilege or immunity" associated with US citizenship (i.e. "incorporate" it), and they might find the right to carry a concealed weapon to be a "privilege or immunity" associated with State citizenship (i.e. an intrastate affair beyond the reach of federal government). Someone raised another view, where there is only one kind of P&I, those associated with US citizenship, and that the very term "P&I" is a reference to fundamental rights which must be federally protected. And we explored what the term "privileges or immunities" means, and where it came from. But it seems like there is a rub here, two constitutional theories which can't both be right ... in one view there are P&I associated with US citizenship and P&I associated with State citizenship ... and in another view all P&I are associated with US citizenship.
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November 5, 2009, 01:02 PM | #108 |
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Just got a list of some good discussions of the same subject (the "privileges and immunities" clause and the 14th) from Dave Kopel's Newsletter.
'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified Clayton E. Cramer, Nicholas James Johnson, and George A. Mocsary Working Paper Series October 19, 2009 http://papers.ssrn.com/sol3/papers.c...act_id=1491365 "If the Fourteenth Amendment is found to incorporate the Second Amendment against the states, what meaning of the Second Amendment does it include? This paper examines judicial and popular understandings of the Second Amendment in the period between ratification of the Bill of Rights and the Fourteenth Amendment." The text of the article may be downloaded from one of the sites linked to the Social Science Research Network's site. Background Reading for Supreme Court's New 14th/2d Amendment Case David Kopel The Volokh Conspiracy September 30, 2009 http://volokh.com/2009/09/30/backgro...mendment-case/ Dave here offers a collection of material for those wishing to acquire background for the NRA v. Chicago case. 7th Circuit decision in NRA v. Chicago Dave Kopel with Jon Caldara Dave Kopel's Second Amendment Podcast June 4, 2009 http://audio.ivoices.org/mp3/iipodcast307.mp3 Jon Caldara and Dave discuss the 7th Circuit decision in NRA v. Chicago. The Privileges and Immunities Clause Dave Kopel with Rob Natelson Dave Kopel's Second Amendment Podcast July 23, 2009 http://audio.ivoices.org/mp3/iipodcast319.mp3 Dave interviews University of Montana law professor Rob Natelson about Natelson's research on the original meaning of the Article IV provision: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." 46 minute podcast. |
November 6, 2009, 07:03 AM | #109 |
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Hugh, if many States during Reconstruction, prohibited free speech, freedom of religion and/or the right to keep and bear arms, do you think the 14th Amendment would have been considered to apply to the States?
ETA: Or do you think there would never have been a 14th Amendment introduced if the only violations to the BOR's involved the 1st and 2nd Amendments? |
November 6, 2009, 02:08 PM | #110 |
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It was much simpler than that. The 14th Amendment nullification by the Slaughterhouse ruling was to protect the big city political corruption and power of places like NYC and New Orleans. There were too many big powerful political figures who simply couldn't be allowed to lose their clout. The P&I clause and equal protections was the core issue of the case as the big players in city government could pull strings and exert big power, no more no less. It's exactly why the sheriffs in SF, LA, and Santa Clara counties in California do as they do and NYPD, NJ, and Maryland's police system withhold CCW's for all but the rich and powerful. It's about power, control, and the ability to grant favors.
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November 7, 2009, 12:58 PM | #111 | |
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What makes sense to me is to see the 14th as being intended to address black codes, and then to focus on the worst black codes - the States that had constitutions which said that no negroes were allowed. We can take the Southern black codes and the USBOR out of the picture, and we are still left with a most serious problem ... the 13th turned the slaves into freedmen, and the States had a right to exclude negroes. What if every State excluded negroes? Where were the negroes to go? As an analogy, what if a State had a Constitution which said that no Virginians could enter? I think it is clear that such a law would violate Article IV, Section 2. The 14th was needed to make the freedmen/negroes into citizens, so that the federal jurisdiction delegated by Article IV, Section 2 would apply to them as well. But the 14th went further, because Article IV regarded a federal power to prevent a State from discriminating against citizens from other States, while the 14th regarded a federal power to prevent a State from discriminating amongst its own citizens. I think that Article IV, Section 2 was needed to make the US partly national, such that a citizen of one State could go to another State and have, to some degree, the same rights that citizens of that State had. And the 14th Amendment was needed to make the freedmen into citizens, such that they could go to (or remain in) any State and have, to some degree, the same rights as other citizens there. I don't believe that either provision, Article IV or the 14th Amendment, was intended to make the USBOR binding against the States, it appears to me to be just the same old radical misconstruction, intended to make it appear constitutional for the federal government to stick its nose where it doesn't belong. |
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November 7, 2009, 01:45 PM | #112 | |
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There are those who believe that aspects of Reconstruction, including the 14th Amendment, also ran counter to the 10th. The phrase "States' Rights" often comes up. They're missing one essential point. The 14th Amendment doesn't infringe on rights. States don't have rights--individuals do. The 14th was written to protect rights upon which no legitimate government, state or federal, can infringe. This isn't to say that states should not be allowed to try their own approaches and address regional concerns; they simply may not compromise the fundamental rights of their citizens. That's what the 14th Amendment was meant to address.
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November 8, 2009, 07:09 AM | #113 |
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I see Hugh. Thanks for the response.
I disagree in the sense that the 14th Amendment was written to prohibit the denial of fundamental rights even though that amendment may have been "triggered" by the ex-slave situation at the time. |
November 8, 2009, 02:36 PM | #114 | |
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I have not argued with Hugh, here, mostly because Bart and Tom are doing an excellent job, without my 2 cents being added. Hugh however, continues to blindly cling to a history and meaning that never was, and may confuse some who aren't as well read as others here.
Therefore, I offer the following commentary. Art. IV Sec. 2 of the U.S. Constitution: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.The first clause merely guarantees that a citizen of one State, traveling to another State, will enjoy the same rights (Privileges and Immunities - see my post, #50 for a brief, but accurate synopsis) as the citizens of that other State. The second clause, above, provided for extradition of criminals to the State where the crime was committed. With the passage of the 13th amendment (slavery abolished), clause 3, above, was superseded and rendered null. Because of a Supreme Court case in 1833, Barron v. Baltimore, it was held that the BOR had no affect upon the States. The BOR was only a prohibition upon the Federal Government. That's the way things stood for the next 35 years. The 14th amendment (1868) changed all of that. And that is precisely the core of the current argument. The Court in Slaughter-House, 1873, either refused to abide by the new powers of the federal government to force the States to abide by the BOR, and/or it refused to acknowledge that Barron was overturned in a completely constitutional manner. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.Clause 1, Section 1 of the 14th amendment officially creates dual citizenship, much like the dual sovereignty of the States and the Central governments in the original constitution. Citizens are now both citizens of the State in which they reside, (but more importantly, for the purposes of the 14th) and citizens of the U.S., that is, the Federal Government. Hughes arguments that U.S. citizenship existed before this is merely a de facto1 argument. the 14th makes it (U.S. Citizenship) de jure.2 No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;Clause 2 gives primacy to U.S. citizenship over State citizenship. It is this clause that overturns the decision of Barron and its progeny. The BOR (amendments 1 thru 8) is now in full force against the States. However, it is this very clause, the the Majority in Slaughter-House rendered null. Quote:
Hugh Damright, like Justice Miller and the Majority, refuses to recognize the implicit fact that Federalism had changed. 1. de facto: existing in fact, whether by actual law or not. 2. de jure: existing in law. |
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November 8, 2009, 04:19 PM | #115 |
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I guess I fall somewhere between Hugh Damright and his opposition. In my view, the Privileges or Immunities Clause incorporates federal privileges and immunities into the states, but not state privileges and immunities with each other.
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November 8, 2009, 08:02 PM | #116 | |
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While I agree with the sentiment expressed above in post #114, I am extremely troubled by the dissenting opinions in Slaughterhouse. The dissenting justices wrote eloquently about "privileges" and "immunities" but never stated that they embraced the rights enumerated in the US Constitution's Bill of Rights. IMHO, citing the Bill of Rights would have been a logical starting point for the dissenting justices, but that starting point is conspicuously absent from their writings.
My reading of the dissenting opinons points to an interpretation that the 14th amendment addressed equal protection under the laws of specific states. Quote:
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November 9, 2009, 04:20 AM | #117 | ||
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Regardless, as Senator Trumbull said on that April 11th in 1872: "you have not advanced one step in the argument unless you can define what the privileges and immunities of citizens of the United States are" Trumbull went on to say that he understood the privileges and immunities to be those which the federal government was bound to protect, whether a citizen was in one of the united States or in a foreign State, and that this power existed before the 14th. A number of people seemed to say something similar, that the provision was there all along, as if the 14th left the Constitution where it found it. Bingham construed Article IV, Section 2 so as to make the USBOR binding upon the States and saw the the 14th as creating a power to enforce that existing provision. And Senator Poland from Vermont also said that the 14th's "privileges and immunities" clause secured nothing beyond what was originally intended by Article IV, Section 2 ... but I don't know what he meant when he said it. Quote:
Last edited by Hugh Damright; November 9, 2009 at 12:50 PM. |
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November 10, 2009, 01:30 AM | #118 | |
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Taney used "privileges" and "rights" interchangeably in Scott v. Sanford (and Waite would do the same in Cruikshank) when describing rights. The choice of the terms "privileges" and "immunities" by the drafters of the 14th Amendment was a deliberate response to this. Even Charlie Easterbrook, who refused incorporation of the 2nd Amendment in the 9th circuit, believes this interpretation of the clause. (He also hates Space 1999, but he and I will just have to agree to disagree on that one.)
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November 10, 2009, 07:00 AM | #119 | |
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Al: Thanks for the info. in your post above! |
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November 10, 2009, 11:43 AM | #120 | |
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One of the best places to begin to understand what was meant by the Art. IV Sec. 2 clause 1, would be to read the opinion of Corfield v. Coryell (6 Fed. Cas. 546, no. 3230 C.C.E.D.Pa. 1823). The opinion was authored by Justice Bushrod Washington.
Why would this be a good place to start? Justice Washington had studied law under Justice James Wilson. He replaced Wilson on the Supreme Court in 1798. Washington had been a member of the Virginia ratifying convention. Washington voted in favor of the Constitution. Washington therefore, was one of the surviving members of the time the Constitution was written and his opinion in Corfield, which built upon several other State and lessor federal decision, is of great importance in understanding original meaning. Justice Washington lived at the time of the writing of the Articles of Confederation. He knew that the Constitution was made "in order to form a more perfect union" than was possible under the Articles. He was most aware of the Lockean principles of rights, or privileges and immunities, that all citizens held under a free government. It remains one of the few judicial commentaries on the P&I clause that embraced those rights, both natural and political: You won't find any "right to travel" in the BOR. Why? Because it was such a fundamental right that no one thought it needed to be mentioned, except by inference, in the P&I clause. You won't find a right to protect your property, for the same reasons. Under Lockean principles, the basic rights were Life, Liberty and Property. Self-defense was considered an act of property rights. You owned your person and therefore had a right to defend that person. Just as you had a right to defend any of your property from any unjust taking. You don't have to agree with these "natural law" rights. What you do have to do is to agree that the men of the founding era did believe in these principles and acted upon them. It was therefore understood, at the time of the founding, that certain fundamental rights were enjoyed by all citizens, regardless of what State they were citizens of. It was unthinkable, at that time, that a State would consider trampling the rights of its citizens. But come the Civil War and the States did exactly that. The 14th amendment was much more than a simple vehicle to ensure the constitutionality of the Freedman's Bureau Act. It was meant to allow the federal government the necessary means to enforce the rights of all citizens upon the States. The amendment does this by creating and elevating US Citizenship above that of State Citizenship. All the States must now protect the Privileges or Immunities of US Citizens. Justice Washington, "riding circuit" in Corfield, stated that the list he gave was not inclusive, but only listed some of the fundamental and basic privileges and immunities of citizenship. If he had bothered to render that "tedious" task of defining all the rights, we can be sure that freedom of speech, the press, assembly, religion, defense of self and ones property, would have been listed. These and many more. These are all fundamental rights, basic to the ordered liberty of citizens under a just and free government. And that is how we get to the inclusion of the BOR within the 14th amendments first clause. The fact that the dissenters in the Slaughter-House Cases did not mention this may be nothing more than it was an accepted fact among the dissenters. Self evident, is a term that comes to mind. Unlike legal wrangling today, the omission of such did not necessarily mean it was excluded. The one thing we can take away from the Slaughter-House Cases is that the majority of the Court refused to render the amendment its meaning. They literally refused to believe that the American people wanted such a profound change in Federalism. Next week, Monday the 16th to be exact, Alan Gura will have submitted his brief in McDonald. I suspect this brief will become one of the major legal writings on 14th amendment meaning, if not the seminal monograph. |
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November 11, 2009, 06:51 AM | #121 |
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Thanks for the great info. Al.
Another question: What type of contract/agreement do the States enter into when entering the Union? Is there a formal agreement in the sense of contract, etc.? So far, this is as far as I have gotten, (I'll do more searching): (The Enabling Act) http://en.wikipedia.org/wiki/Enabling_Act_of_1802 I would think this "contract" or "agreement" would require the recognition of fundamental rights throughout the respective State (i.e., fundamental rights recognized in the U.S constitution and common law). Last edited by RDak; November 11, 2009 at 06:59 AM. |
November 11, 2009, 08:16 AM | #122 |
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The documents containing details of conditions for statehood have varied state by state.
The annexation of Texas, at the time a sovereign country, was unique in that it started with a treaty that led to statehood. Here are examples of other congressional acts enabling statehood: Hawaii and Utah. Here is a list of the statehood process for all states. Here is a Congressional Record report on statehood histories. Last edited by gc70; November 11, 2009 at 08:24 AM. |
November 11, 2009, 09:00 AM | #123 |
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Thanks for the info. gc70.
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November 11, 2009, 09:31 AM | #124 |
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RDak, I hope this answers your question:
Article IV, Section 3 New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.The above section of the Constitution does 2 things. The first clause allows for the admittance of new States into the union, with restrictions on making new States out of existing States. Exactly how this should be done is not specified. The second clause grants power to the Congress to administer all Federal lands that are not States; Such as making a territory into a State or States. The enabling Act of 1802 became the precedence of how a new State is to be admitted. It set forth the rules by which a people (of a territory or other possession of the US) could elect representatives and vote on Statehood; Write their own Constitution and petition the Congress for admittance. It is not a contract, agreement or compact (in the sense of the original 13 colonies under the Articles of Confederation), but a series of official legislative acts by the Congress relative to the people of the proposed State. Under the Articles of Confederation, the union of the Colonies/States were declared to "be perpetual." The Constitution was ordained "to form a more perfect union." The logic then holds that since it took the States of the Union (via the Congress) to admit another State into Union, therefore said State was placed in perpetual union with all other States. That is, the new State was incorporated into the body politic. Such a thing is more than a mere compact, agreement or contract. To dissolve the incorporation (union) requires that the corporation (union) agree to such dissolution. In other words, How a State became a State (by consent and Acts of the Congress) is exactly how a State would shed its union (by consent and further Acts of Congress). That conforms to Article IV Section 1 of the Constitution. Any State that had signing documents that seemed to say something different, have no force of law, once admitted into union with the other States. |
November 11, 2009, 09:56 AM | #125 |
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Yes, it helped alot.
A State becomes part of the Union in a more meaningful way than that of a contract or agreement. It is merged, incorporated, made part of, etc. Thanks for the info. |
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