Posted on 02/27/2007 8:10:52 PM PST by AZRepublican
Police powers were asserted by the federal government under the Commerce Clause around the early 1800's. The 14th amendment had nothing to do with it.
"The language does not oust the state and local construction of their own laws"
States can prohibit sodomy? Nude dancing? States can allow display of the Ten Commandments? Nativity scenes? States can search without a warrant? States can close a newspaper? States can have their own religion?
Prior to the 14th amendment they could. And did.
And they did after the fourteenth also, much to the approval of those who had framed it. Bingham said the amendment enjoined no new obligation on either States or citizens.
For a while, yes. Until the U.S. Supreme Court found the Due Process loophole.
"Bingham said the amendment enjoined no new obligation on either States or citizens."
In the closing debate in the House, Bingham stated:
"It was an approbrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment."
Huh? Bingham believed that the privileges and immunities of U.S. citizens *included* the Bill of Rights (Amds 1-8). He stated this quite often and explicitly. The author couldn't be more wrong here. Pretty hard to take him seriously after such a ridiculous error.
One has to wonder what "unconstitutional acts" he was referring to since he agreed the bill of rights were not a limitation upon the states. The due process clause is not much of a loophole IMHO because as Madison states in another article that the fourteenths only deals with denial, not the administration of due process.
I don't have time right now to go searching for a lot quotes. However, since your article quotes Bingham in 1871, I'll give you one quick one from Bingham in that same year. Try here.
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and 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. . . .That whole section is well worth reading. Starts on page 81, I think.These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States," are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. . . .
If for some reason you still need something from 1866, ping me later tonight after 11 (Eastern Time) or anytime tomorrow, and I'll find something for you.
I agree with Sandy in post #24 -- Bingham intended the 14th to apply the BOR to the states.
But it appears as though he was only one of a very few who thought the 14th accomplished that. It took almost 100 years for the U.S. Supreme Court to selectively incorporate some of the BOR. Some amendments still aren't incorporated.
"The due process clause is not much of a loophole"
It is, and here's how it works.
The U.S. Supreme Court starts with the 14th amendment clause, "nor shall any State deprive any person of life, liberty, or property, without due process of law". The court then declares that some right (for example, free speech) is so essential and fundamental to the concept of liberty that no state may deny it without due process.
Now, all you have to do is substitute something for "free speech" and off you go.
The P&I's he speaks of there are the very P&I's he officially said on January 31, 1871:
'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 State," 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 two section four.'
He makes it officially impossible for the first 8 amendments to be limitations upon the States through article 4, section 2. He is, in the words of Madison, "tooting his horn" on the anti-KKK bill. He never suggested during 1866 that the 14th would make the first 8 amendments a direct limitation upon the States. No one has found such a declaration from Bingham in 1866. Will you be the first?
The Slaughterhouse Cases were the first test of the 14th amendment, and the court concluded that the privileges and immunities of citizens of the United States did NOT include the BOR.
Read what I posted. It was the 14th's "liberty", not the 5th's.
"can be anything more then what Bingham and the courts at the time said it was."
The "fundamental to the concept of liberty" phrase has been repeatedly used by the U.S. Supreme Court when incorporating the various amendments.
> Read what I posted. It was the 14th's "liberty", not the 5th's.
I know, BUT Bingham was very clear in saying: "The residue of the resolution, as the House will see by a reference to the Constitution, is in the language of the second section of the fourth article, and of a portion of the Fifth Amendment adopted by the First Congress in 1789, and made part of the Constitution of the Country. "
The 14th's liberty is the same as the 5th's. He included the due process clause because Barron v. Baltimore prevented Congress from enforcing the first eight amendments against the states, and there was no desire or support to overturn that ruling.
Yes and no.
The Bill of Rights, including the 5th, only applied to the federal government. The "liberty" mentioned in the 5th didn't have to contain rights "fundamental to the concept of liberty" (ie., freedom of speech, freedom of the press, freedom from unreasonable searches and seizures, etc.) because those rights were already protected from federal infringement in the other BOR amendments.
The "liberty" in the 14th applied to the states. Freedom of speech, for example, wasn't automatically included as "liberty" in the 14th and applied to the states. It wasn't until 1925 in Gitlow v New York, that the U.S. Supreme Court decided speech was fundamental to liberty (in the 14th) and must also be protected by the states.
Bingham was speaking out of both sides of his mouth. He expected the BOR to apply to the states (through the P&I Clause), yet spoke of how the 14th was no different than other parts of the existing U.S. Constitution.
He was denied his wish by the ruling in the Slaughterhouse Cases a few years after ratification. But, 50 years later, the U.S. Supreme Court started using "liberty" and "due process" (not P&I) to do Bingham's work.
Now, it would be different if the U.S. Supreme Court said, for example, that Freedom of Speech must be protected by the states AND the definition of "speech" is determined by the Supreme Court of each state. That, at least, preserves some semblance of a republic.
But the U.S. Supreme Court decides what is speech and that definition applies to all 50 states. They say nude dancing is "speech", then by God all 50 states must allow it. If the court says a Nativity Scene on public property is an establishment of religion, then no state may allow it.
Five justices run the entire country. Not what the framers had in mind.
Judicial activism is a long and dishonorable tradition.
So it would appear (and later confirmed in the Slaughterhouse Cases). Yet he did say,
"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment."
How else can one interpret that sentence?
IF you would have read the court case you would have seen (and agreed) why the court concluded the way they did.
Oh, and it's the Bill of Rights not the Bill of Privileges. You would have freedom of speech, freedom of the press, freedom from unreasonable searches, and the RKBA protected by the states as a privilege?
How else can one interpret that sentence?
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and 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. (Goes on to quote each of the first eight amendments)...He is saying the P&I's are *chiefly* defined in the first eight amendments, not that that the entire eight are direct limitation due to the 14th. This is a dramatic reversal from earlier speeches where he said the P&I's were defined from article 4, section 2.
I'd also point out he said this March 31, 1871... 5 years after his speeches for adopting the 14th. He wasn't being honest, and as Paul Madison has pointed out, refused to defend his inconsistencies from earlier speeches when challenged.
My guess is he was being a typical crackpot on that day.
He was denied his wish by the ruling in the Slaughterhouse Cases a few years after ratification. But, 50 years later, the U.S. Supreme Court started using "liberty" and "due process" (not P&I) to do Bingham's work.
Consider this statement by him: "The care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country."
And after the adoption: "Only the States can define their own laws, under their own Constitutions." Of course, the Supreme Court takes it upon themselves to do all the defining.
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