Replies

I wish enough people would be as thoughtful and willing to listen as you - it might change things.

If it helps, below is an extended version of the argument in favor of judicial restraint for limiting the scope of the 14A based on sound analysis of original understanding and intent. It is an excerpt from this previous thread: http://www.freerepublic.com/focus/news/3188860/posts?page=86#86

The focus of the discussion was in a different direction as the one here, but the points made are germane to the issue of the "Incorporation Clause" doctrine and the 14th Amendment.

Other Side: What is the basis for saying that the framers of the 14th Amendment intended it to apply only to former slaves?

Me:

- The historical context of the post-civil war reconstruction period to instate the former slaves as full U.S. citizens with full rights as others.

- The legal context of this being the middle of the three reconstruction amendments.

- The lack of clear text that proves specific provision of unparalleled and massive expansion of federal power which would have been completely out of place from the purpose of these post-civil war reconstruction amendments and would have produced much evidence, of which there is none, of debate and discussion about such a radical departure from American governance, as noted below.

- The weight of the probative value of accuracy and precedent in a SCOTUS case decided four years after the amendment was ratified versus 131 years later.

- The intent of the ratifiers, not the drafters. Thomas’ argument rests on the drafters’ intent to apply Corfield v. Coryell rights. But as noted below, there is scant evidence this was intended by the ratifiers and it is the intent of the ratifiers, not the drafters, that counts.

Judge Robert Bork, the generally recognized leading scholar on Constitutional Law of his time and most notably focused on original understanding and intent in construction, said this about the fourteenth amendment:

"The fourteenth amendment was adopted shortly after the Civil War, and all commentators are agreed that its primary purpose was the protection of the recently freed slaves. As we have seen, of the amendment's three clauses, two have been pressed into service of judicial imperialism - the due process and equal protection clauses - while the third, the privileges and immunities clause, has remained a cadaver that it was left by the Slaughter-House Cases. It is this corpse that [former dean of the Stanford law school] Ely [and apparently now Justice Thomas] proposes to resurrect.

"The due process clause will not do as a warrant for the creation of new constitutional rights because, as Ely notes, it is simply a requirement that government not do certain things to people without fair procedures, not a statement of what things may not be done. The fifth amendment's due process clause, which applied only against the federal government, was later copied in the fourteenth amendment, which applied to the states. 'There is general agreement that the earlier clause had been understood at the time of its inclusion to refer to lawful procedures. What recorded comment there was at the time of replication in the fourteenth amendment is devoid of any reference that gives the provision more than a procedural connotation' (J. Ely, Democracy and Distrust (1980) at 105-16). That is true, and it is more than enough to condemn the hundreds of cases, stretching from Dred Scott to today, in which the courts have given the due process clause substantive content in order to read their own notions of policy into the Constitution.

"Ely's attempt [and apparently Thomas' proposed attempt] to make the privileges and immunities clause do the work that has been improperly assigned to the due process clause is, however, unsuccessful. He points out that 'there is not a bit of legislative history that supports the view that the Privileges or Immunities Clause was intended to be meaningless' (Id. at 103). That is hardly surprising. One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.

"Bingham and Howard meant these additional rights [taken from Corfield v. Coryell]. That the ratifiers did is far less clear. Certainly there is no evidence that the ratifying convention intended such power in judges, and it is their intent, not the drafters’, that counts. Nor is it easy to imagine the northern states, victorious in a Civil War that lead to the fourteenth amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves. The only significant exercise of judicial review in the past century had been Dred Scott, a decision hated in the North and one hardly likely to encourage the notion that courts should be given carte blanche to set aside legislative acts.

"Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion.

"We know there is no evidence that the ratifiers imagined they were handing ultimate governance to the courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit” (R. Bork, The Tempting of America (1990), excerpted at 180-83).

And, therefore, in reference to Justice Miller’s opinion in the Slaughter-House Cases, Bork says, “ Miller was following sound judicial instinct: to reject a construction of a new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members. [ ] In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race” (id. at 37-38).

Other Side: Under Bork's interpretation, a state could disarm its citizens and it would be entirely constitutional.

Me: Yes, but you miss some important issues.

1) States are local governance, governed by the people of the state through the ballot by representation and directly by initiative and propositions. The majority of people of a given state are in control of what that state does as long as the feds don't interfere.

2) History shows it is the FEDS who impose noxious and unconstitutional requirements on the states. History also shows that the states, left alone, generally are in harmony with the rights and freedoms of individuals. Easiest example is abortion. Before 1973, the states generally prohibited abortion. It was SCOTUS and their application of the 14A against the states that outlawed state anti-abortion laws, allowing the infanticide of some 70 million unborn. Another easy example is currently, the greatest pressure against gun ownership isn't the states, it's the feds.

3) The freedom of states to run their own show, generally, is much more in line with the constitutional design of federalism. And, again, history tells us that the chances of a state disarming its citizens is much less likely than the feds forcing disarmament using the 14A as their club.

Yes, Bork says that the intent of the P&I clause in the 14A is not understood which is basically what Justice Miller said. So both are on solid constitutional ground. You're concerned about the consequences, but consequences are not the driving force of construction, whereas original understanding and intent are. Consequences are more of a sanity check in the light of original intent and understanding.

Here, the consequences are sublime in that the states represent smaller and more local and responsive governance keeping the federal government at bay and presumably within its constitutional limits where it belongs. Again, our greatest threat by far in this country is not the states, it is the $4 trillion bloated unconstitutional federal government that threatens out free way of life.

Other Side: What does Bork say about the meaning of Privileges and Immunities of US citizens, as the terms were understood in the late 1860s?

Me: Well, if you are asking about the general understanding of the P&I Clause before the 14A, Bork says, "Most people have always thought that the article IV clause simply prevented a state from discriminating against out-of-staters in favor of their own citizens" (R. Bork, The Tempting of America at 181).

If you are asking what the P&I Clause was intended to mean in the 14A, as quoted on what I posted to you, Bork says this about the P&I Clause: "One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.”

So his point is judges should not insert their own personal moral viewpoints of what THEY think a clause should mean where they have no guidance from original understanding of the text. He therefore approved Justice Miller's judicial restraint and "sound judicial instinct" in doing just that.

Bork is inferring that, the history of the definition of P&I notwithstanding, there is not enough evidence to understand what and why they put P&I in the 14A. But there is PLENTY of reason conclude that no constitutional revolution was intended by the 14A. It seems that P&I in the 14A is a moot point that Thomas wants to resurrect to give "justifiable" life to the utterly discredited incorporation doctrine. Justice Miller saw that P&I in the 14A added nothing to P&I in Article IV, so it was a moot point as far as he was concerned.

I agree with Bork and Miller and believe simply that the ratifiers were trying to put former slaves on equal footing with all U.S. citizens. Just guessing (something Bork, admirably, was loathe to do which is why he might have been one of our greatest Justices if he had been given the chance), my sense is the ratifiers were simply wanting to confirm that states could not discriminate against black out-of staters. In that sense, P&I in the 14A doesn't add anything, only confirms the full citizenship status of former slaves. But that's my opinion only, not a constitutional basis for construction. I sense it's probably Bork's also, but he was disciplined and discrete enough to keep his personal opinions separate from valid constitutional construction.

Anyway, the argument is not about the historical definition of P&I. It is about what and how it was intended to mean and be used in the 14A. The P&I of Article IV is not so much about what P&I itself is so much as the P&I in one state is valid for out-of-staters. Beyond this, you guys are displaying a "fundamental" flaw of understanding a basic presumption of the Constitution.

The original body of the Constitution doesn't name specific "rights" or P&I's. It is well understood that those rights named in the so-called "Bill of Rights" were listed only to appease the anti-federalists so the Constitution could be ratified. Whatever rights, powers, and liberties not delegated to the federal government by the Constitution or forbidden to the states by it belongs to "the States and the people respectively." The ninth and tenth amendments confirm that.

So the effort to define P&I is inconsistent with the whole presumption of the Constitution, that as far as the Constitution is concerned, all rights not delegated or forbidden belong to the states and the people. They don't have to be listed nor should they be listed because as far as the Constitution is concerned those rights and P&I's are none of the feds business. Only discrimination of P&I by one state upon non-state citizens is a concern of the federal government.

You and Thomas want to ratify the "fundamental" rights in Corfield v. Coryell which is pure conjecture which the single Justice of the Supreme Court as much as admitted in his opinion, which evidently the drafters but not the ratifiers wanted to use in the 14A.

There is no proof that is what the ratifiers intended by P&I. Your conjecture is as good as mine, that the ratifiers meant nothing more than to confirm former slaves had the same P&I as understood in Article IV among the states as any other U.S. citizen. In the sense of probability, mine is much more likely than yours because yours would have resulted in a Constitutional revolution of which there would have been some record of the debates and discussions that would have ensued.