Posted on 05/21/2002 11:54:40 AM PDT by tpaine
The Incorporation Debate
The Issue: Does the Fourteenth Amendment "Incorporate" the Protections of the Bill of Rights and Made Them Enforceable Against the States?
Introduction
The debate over whether the Fourteenth Amendment makes appicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution.
The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later. By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. In subsequent cases, attention focused on the Due Process Clause.
Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others. The Court's test for choosing which provisions--along with all the accompanying baggage of decisions interpreting the federal rights--were incorporated changed over time.
The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.
Note that there are several possible positions that could be taken with respect to the incorporation debate.
First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states and no more. This was the view argued for by Justice Black.
Second, one could argue that the provisions of the Bill of Rights are essentially irrelevant to interpretation of the Fourteenth Amendment, and that violations of the Due Process Clause are to be determined by a natural-law-like tests such as "Does the state's action shock the conscience?" or "Is the state's action inconsistent with our concept of ordered liberty"? This is the "No Incorporation" Theory advanced by Justice Frankfurter, among others.
Third, one could take a position such as Justice White did in Duncan that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions. This view is often called the "Selective Incorporation" Theory.
Finally, one could adopt either a "Selective Incorporation Plus" view or a "Total Incorporation Plus" (see Justice Murphy's view in Adamson, for example) view. These views hold that in addition to incorporating some or all of the provisions of the Bill of Rights, the Fourteenth Amendment also prohibits certain other fundamental rights from being abridged by the states.
Cases
The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)
The Fourteenth Amendment (Section 1):
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.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Bill of Rights
Incorporated or Not Incorporated?
1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Fully incorporated.
It's funny, because in the couple of months I've been on FR, I've encountered a number of different debating tactics. There've been some who've distorted what I've said, some who've just responded in these total tangential non sequiturs, and some who just get plain nasty. But you have a very unique style - you just outright dismiss points that contradict your position, and don't even bother to deal with them. It's actually kind of amusing.
In the four years + that I've been here, your type comes and goes constantly. -- You clowns somehow assume your bafflegab style of bull makes 'points'. It seldom does. - Thus, most of it is dismissed, leading to your little snits, like this one.
- You are right, it's amusing.
But just in case you're willing to actually do some debating, I'll say this once again for your, uh, consideration. Due process refers to the actual process by which a law is administered. It has nothing to do with the kind of restriction on activity that the law imposes.
That is your amusing opinion, contradicted by the USSC opinion I posted yesterday. - You're trumped.
I know that you want it to mean more than that. I know that your political philosophy calls for a very minimalist approach to governing (which really isn't all that bad a philosophy), but the law says what it says, not what you want it to say. Now you can dismiss that as nitpicking all you want - as if the meaning of the words contained in the laws has nothing to do with what the law actually says! - but you'll just be building a wall of ignorance around yourself (and judging from the results, it looks like construction is coming along just fine).
Another fine little meaningless rant. Amusing.
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Thanks for your admission. Rare honesty from a statist.
So let's see: I was saying "Live and let live", and you were demanding federal intervention to right the wrongs in your locale, but I'm the statist. Ah yes, it's all clear now... (?)
-- You weren't saying that, & - I wasn't either. - In context, you made a 'statist' type admission. - Which is why you didn't repost it.
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Nope, the constitution doesn't give the feds the power. The political system has. YOU are the one confused.
What do you think, the 14th amendment enforces itself? What would have been the point of passing it if they didn't expect the feds to intervene to make it stick?
The 14th gives the 'feds' no power to violate legitimate state power. ---- It merely restates the limits. State cannot violate the individual inalienable rights we have always possessed.
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You've made my point, - in 'bold'. -- The 14th is not the problem here. The states submit to the feds for political reasons, not constitutional ones.
Well, sure, in a paragraph that size, you can pluck out just about any sentence in isolation and have it say something that was never intended. Allow me to highlight the points that would pluck it back into context: "That [referring to judicial harassment using the 14th amendment as a pretext], combined with their dependence on federal subsidies to do just about anything (which often is necessitated by the increased costs that litigation imposes), creates a culture of total submission to federal authority within state governments." In other words, 14th-amendment litigation makes states vulnerable to all sorts of Jesse Jackson-style pressure groups, and weakens their resistance. The increased costs that result from such litigation, along with the measures they have to take to avoid it, increases the states' dependence on Washington, which in turn further erodes their sovereignty. Get it? (why do I ask)
Indeed, why bother? -- Your own words keep digging you into that same 'political' hole.
Our political system is corrupt, -- not the constitution.
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Read some history. There are dozens of USSC decisions citing the 14th. Try 'findlaw'.
I wasn't asking for all the cases which cite the 14th, I was asking you which ones you think were essential to furthering the cause of liberty in this country (or does Findlaw have a tpaine Hall of Fame section?) I think you'd be adamantly opposed to any attempt to change the Constitution in way that removes that power of the feds. Is that true? No. Really? So you wouldn't be opposed to a repeal of the 14th amendment? Why didn't you just say so in the first place?
-- Really? -- I suppose you think you've made a clever 'point' again. This is getting boring. Close to dismissal time.
I'd be very interested in seeing whatever evidence you might have that the framers of the 14th amendment intended to overturn or even water down these laws.
To be valid, common criminal law requires a victim, an injured party. -- You want the state to be that injured party....Apparently, you want the state to enforce 'morals' as a majority defines them.
Nice try at evading my question by impugning my motives for asking (speaking of straw men). Maybe you'd like to try answering it, now?
No thanks.
-- I answered, - you aren't happy, and call it evading. I'm just gonna dismiss yet more of your pointless bull.
It's funny, because in the couple of months I've been on FR, I've encountered a number of different debating tactics. There've been some who've distorted what I've said, some who've just responded in these total tangential non sequiturs, and some who just get plain nasty. But you have a very unique style - you just outright dismiss points that contradict your position, and don't even bother to deal with them. It's actually kind of amusing.
In the four years + that I've been here, your type comes and goes constantly. -- You clowns somehow assume your bafflegab style of bull makes 'points'. It seldom does. - Thus, most of it is dismissed, leading to your little snits, like this one.
- You are right, it's amusing.
But just in case you're willing to actually do some debating, I'll say this once again for your, uh, consideration. Due process refers to the actual process by which a law is administered. It has nothing to do with the kind of restriction on activity that the law imposes.
That is your amusing opinion, contradicted by the USSC opinion I posted yesterday. - You're trumped.
I know that you want it to mean more than that. I know that your political philosophy calls for a very minimalist approach to governing (which really isn't all that bad a philosophy), but the law says what it says, not what you want it to say. Now you can dismiss that as nitpicking all you want - as if the meaning of the words contained in the laws has nothing to do with what the law actually says! - but you'll just be building a wall of ignorance around yourself (and judging from the results, it looks like construction is coming along just fine).
Another fine little meaningless rant. Amusing.
------------------------
Thanks for your admission. Rare honesty from a statist.
So let's see: I was saying "Live and let live", and you were demanding federal intervention to right the wrongs in your locale, but I'm the statist. Ah yes, it's all clear now... (?)
-- You weren't saying that, & - I wasn't either. - In context, you made a 'statist' type admission. - Which is why you didn't repost it.
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Nope, the constitution doesn't give the feds the power. The political system has. YOU are the one confused.
What do you think, the 14th amendment enforces itself? What would have been the point of passing it if they didn't expect the feds to intervene to make it stick?
The 14th gives the 'feds' no power to violate legitimate state power. ---- It merely restates the limits. State cannot violate the individual inalienable rights we have always possessed.
-------------------------------
You've made my point, - in 'bold'. -- The 14th is not the problem here. The states submit to the feds for political reasons, not constitutional ones.
Well, sure, in a paragraph that size, you can pluck out just about any sentence in isolation and have it say something that was never intended. Allow me to highlight the points that would pluck it back into context: "That [referring to judicial harassment using the 14th amendment as a pretext], combined with their dependence on federal subsidies to do just about anything (which often is necessitated by the increased costs that litigation imposes), creates a culture of total submission to federal authority within state governments." In other words, 14th-amendment litigation makes states vulnerable to all sorts of Jesse Jackson-style pressure groups, and weakens their resistance. The increased costs that result from such litigation, along with the measures they have to take to avoid it, increases the states' dependence on Washington, which in turn further erodes their sovereignty. Get it? (why do I ask)
Indeed, why bother? -- Your own words keep digging you into that same 'political' hole.
Our political system is corrupt, -- not the constitution.
---------------------------------
Read some history. There are dozens of USSC decisions citing the 14th. Try 'findlaw'.
I wasn't asking for all the cases which cite the 14th, I was asking you which ones you think were essential to furthering the cause of liberty in this country (or does Findlaw have a tpaine Hall of Fame section?) I think you'd be adamantly opposed to any attempt to change the Constitution in way that removes that power of the feds. Is that true? No. Really? So you wouldn't be opposed to a repeal of the 14th amendment? Why didn't you just say so in the first place?
-- Really? -- I suppose you think you've made a clever 'point' again. This is getting boring. Close to dismissal time.
I'd be very interested in seeing whatever evidence you might have that the framers of the 14th amendment intended to overturn or even water down these laws.
To be valid, common criminal law requires a victim, an injured party. -- You want the state to be that injured party....Apparently, you want the state to enforce 'morals' as a majority defines them.
Nice try at evading my question by impugning my motives for asking (speaking of straw men). Maybe you'd like to try answering it, now?
No thanks.
-- I answered, - you aren't happy, and call it evading. I'm just gonna dismiss yet more of your pointless bull.
If there were other posters on this thread - even one - who react to what I have to say the way you do, then I might be inclined to think that the problem is with me, not you. But as I said, your obfuscational abilities are quite unique. And by the way, you're the only one on this thread who's been doing any snitting. The rest of us have been holding normal conversations, in case you didn't happen to notice.
That is your amusing opinion, contradicted by the USSC opinion I posted yesterday.
Real profound observation there. Of course that opinion was contradicting what I had to say, because I was contradicting it. But apparently you don't want to get involved. That says enough.
Another fine little meaningless rant. Amusing.
Yup, I didn't think you'd actually want to discuss the subject, once the logic didn't start heading in your direction. It's also amusing that you think you can score more points by using my own word back at me. Cle-verr!
You weren't saying that, & - I wasn't either. - In context, you made a 'statist' type admission. - Which is why you didn't repost it.
And I notice you didn't repost it either, in order to prove your point. This is what I said: "I'm happy to let you and the rest of the people of your state work things out for yourselves. I'll deal with my state." In other words, "Live and let live." And yes, you were calling for federal intervention, whether you acknowledge it or not. Unless you really think the feds should just stop worrying about trying to enforce the 14th.
The 14th gives the 'feds' no power to violate legitimate state power.
Now there's a nice little Clintonesque line. Sure they have no power to violate "legitimate" state power, but as the SCOTUS opinion that you keep bringing up makes perfectly clear, the federal courts claim full authority do decide on their own what constitutes "legitimate" without giving any concrete understaning as to how they're to decide that - meaning, they can just inject their own personal opinions at pleasure. And my, how they do.
Indeed, why bother? -- Your own words keep digging you into that same 'political' hole. Our political system is corrupt, -- not the constitution.
That wall of ignorance is still holding strong, I see.
I answered, - you aren't happy, and call it evading. I'm just gonna dismiss yet more of your pointless bull.
Here, you're really showing your true colors. You were all too happy to answer me back when you thought you had a great answer for me - remember that non sequitur about "victims" which I shot out of the sky? - but then once you're painted in to a corner, "I'm just gonna dismiss yet more of your pointless bull," even though my question hadn't changed, only your inadequacy at answering it.
And no, you didn't even come close to answering the question. I asked you what evidence you had that the framers of the 14th intended to overturn these various state laws I mentioned, and you responded with your own tin-pot ideologies as to what you considered a "valid" law - as if I truly wanted to hear any more of your wisdom on that subject.
Anyway, you can dismiss all you want - you said that earlier in the thread, remember? But then you started up again with me, all on your own. Feel free to start up again any time you like.
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To: inquest
You and Judge Black have claimed that the framers of the 14th intended to say a certain thing. I'm not arguing that point.
Of course you are; -- the framers intended to restrict states from violating constitutional rights. They wrote exactly that.
What you both have failed to explain is why it is that what somebody claims he intended to write is to be considered more valid than what he actually writes.
Nope, -- we haven't failed to explain, YOU have failed to understand the actual written language of the 14th. WE can't help you, it appears. - And I no longer WANT to.
You also failed to counter the point I made about the text of the amendment, in showing in detail that it doesn't mention the Bill of Rights, or even allude to them. All you said in response to that, is (again) that the framers intended to have it refer to the Bill of Rights. Thus, you're taking the conversation around in circles, and I think anyone watching us can see that.
Whatever. -- I, nor anyone else, is obligated to 'counter, in detail' your imaginings. Indeed, it appears to be impossible, due to your inability to frame logical points.
Whether or not you terminate the conversation is your choice, but that's not going to stop me from pointing out your non sequiturs to everyone else.
Have at it. - You'll simply make a bigger spectacle of your irrationality.
38 posted on 5/23/02 2:28 PM Pacific by tpaine
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You did not respond to the above.
--- Then, a few days later, you again made a comment to the effect that the true 'intent' of the 14th was to subjugate the states to federal power. - I countered, - and thus, -- we again find ourselves at this impass.
You insist that the constitution is flawed. I insist it is not.
Our political system is flawed.
Okay,now that we've established (1) that these Civil War amendments contain new delegations of power to Congress (e.g., Section 5 of the Fourteenth Amendment) and (2) that Congress is only empowered by these amendments to fashion legislation that is "appropriate" to enforce the amendments, we come to another fun issue.
What constitutional mechanisms, if any, exist to ensure that Congress does not enact legislation in excess of the powers that have been delegated to it by these amendments?
I didn't respond to it because you made it clear you didn't want to go any further. From that very post: "WE can't help you, it appears. - And I no longer WANT to." Plus, if we did go further, we would have just been going around in the same circles we'd been going around in, and Ned had much more interesting things to talk about.
Then, a few days later, you again made a comment to the effect that the true 'intent' of the 14th was to subjugate the states to federal power.
I never said that, or anything to that effect. I certainly did say that the feds are presently using the 14th for that purpose, because they clearly are; but I never said that that was the intent of the framers. To help clear up my position on that, you might refer to my #8: "My biggest problem isn't with the actual provisions of the amendment, but with the way it gets glaringly misapplied."
The same mechanisms that exist to ensure they don't enact legislation excess of any of its constitutional powers. Someone raises a challenge by defying their law, and the court (usually an appeals court, I would imagine) makes a ruling whether or not the law in question is indeed constitutional. Yes, that means judges have to get involved at some point. That's not what I have a problem with. I can even forgive them if their legal reasoning is different from mine. But certain things I consider unacceptable are: deciding a case based on whether or not they think it would be good for society; "compelling government interest"; saying that the Constitution is a "living" document, and therefore has to "adapt" to our changing "needs"; making rulings based on whether or not the results thereof would fit in with what was supposedly envisioned by the draftsmen (such as racial voting statistics); failing to delineate their legal reasoning, instead resorting to airy-fairy "principles"; to name a few.
Okay, so first, we have the power of the judiciary to hold that a statute is unconstitutional. In that regard, do you agree with the Supreme Court's claim in Marbury v. Madison (1803) that the Court has that power?
Second, we have the power of the President to veto the legislation and, at a minimum, delay the Congress by requiring that it pass the legislation with a super-majority.
Third, we have the power of the people to elect to the Congress and the presidency persons who will respect the views of the people regarding the appropriate boundaries of Congressional power.
Assuming that you accept the propriety of judicial review, how should the Supreme Court actually review a statute like the one we were discussing which suspended the use of literacy tests? Congress was authorized to suspend the literacy tests because they were being used by certain states to deny or abridge the right of black citizens to vote. Did the Court actually make that factual finding itself - that the literacy tests were in fact being used to discriminate against blacks? Or did the Court just accept that fact as accurate because Congress declared that Congress had found that fact to be true? Should the Court just accept the accuracy of Congressional findings? As a practical matter, does it have any choice? How could the Court independently determine the accuracy of Congressional findings?
These turn out to be the pivotal questions in terms of whether or not the Supreme Court can impose meaningful internal limitations on the legislation of Congress. If the Court cannot find sensible means by which it can review the accuracy of Congressional findings, the Court's role, as a practical matter, becomes limited to declaring an act of Congress unconstitutional only when the act violates a specific prohibition in the Constitution (e.g. the Bill of Rights).
I never said that, or anything to that effect. I certainly did say that the feds are presently using the 14th for that purpose, because they clearly are; but I never said that that was the intent of the framers.
I posed the question about the 14ths 'intent' at posts 97/99, to little coherent response. - Finally, at post #114, I asked:
What IS your main point? Can you formulate one, or are you just trying to pettifog the issues?
"Why, my main point is that the 14th amendment doesn't incorporate the BOR. Surprised you didn't see that either."
First time you've actually claimed that, I believe. -- What then, is the 14ths purpose, if it does NOT apply the BOR's to the states? - 114 tpaine
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You made no reply.
-- Thus, to all practical effect, case closed as to your intentions.
Sure, everyone actually has that "power", though of course, certain judicial officers' opinions have more of an effect on society than other people's. Suffice it to say, it's their job to make such determinations, moreso than anyone else.
Did the Court actually make that factual finding itself - that the literacy tests were in fact being used to discriminate against blacks? Or did the Court just accept that fact as accurate because Congress declared that Congress had found that fact to be true? Should the Court just accept the accuracy of Congressional findings? As a practical matter, does it have any choice? How could the Court independently determine the accuracy of Congressional findings?
A few things need to be cleared up. First of all, the supreme court has no power to determine findings of fact, but only whether or not the law was properly applied. Secondly, enforcement is a fundamentally executive and judicial, not legislative, function. When the Constitution gives Congress the power to enforce anything, it's not overriding Articles II and III; it's simply giving Congress the power to empower the proper executive and judicial authorities to do their job in enforcing the law - particularly by specifying what the consequences should be for violating it. It does not give Congress the power to pass new restrictions on activity, or to actually conduct investigations and proceedings themselves.
Now, although SCOTUS can't make any determinations of fact themselves, they can examine the proceedings of lower courts, to determine if the rules of presenting and examining evidence were properly observed. But there has to be a lower court ruling to begin with, which there apparently wasn't, in this case; Congress decided to become judge, jury, and executioner all on their own, which, IMHO, is flagrantly unconstitutional. The proper way of handling it would be the same way government handles any discrimination complaints in the private sector: by having the proper (Congress-appointed) authorities investigate to determine whether or not unlawful discrimination is occuring, and to take appropriate corrective action in those particular cases where it is found to be occurring.
And by the way, I did answer your question, at #118, which is what led us to the present conversation.
Well, the power of the Supreme Court to declare or treat an act of Congress as unconstitutional and therefore unenforceable was not deemed to be obvious to everyone when Marbury v. Madison was decided in 1803. I don't think that you will find that power to be clearly provided for in the Constitution. Moreover, I think that the lack of any clear textual support for that power is very helpful in understanding why the Court has for the most part exercised that power more sparingly than it might have exercised a power for which there existed clear constitutional authority.
A few things need to be cleared up. First of all, the supreme court has no power to determine findings of fact, but only whether or not the law was properly applied. When the Constitution gives Congress the power to enforce anything, it's not overriding Articles II and III; it's simply giving Congress the power to empower the proper executive and judicial authorities to do their job in enforcing the law - particularly by specifying what the consequences should be for violating it. It does not give Congress the power to pass new restrictions on activity, or to actually conduct investigations and proceedings themselves.
Now, although SCOTUS can't make any determinations of fact themselves, they can examine the proceedings of lower courts, to determine if the rules of presenting and examining evidence were properly observed. But there has to be a lower court ruling to begin with, which there apparently wasn't, in this case; Congress decided to become judge, jury, and executioner all on their own, which, IMHO, is flagrantly unconstitutional. The proper way of handling it would be the same way government handles any discrimination complaints in the private sector: by having the proper (Congress-appointed) authorities investigate to determine whether or not unlawful discrimination is occuring, and to take appropriate corrective action in those particular cases where it is found to be occurring.
None of our branches can perform its function without making factual determinations. How can the Congress be expected to appropriate funds for the construction of a new post office in your city without first making the factual determination that a new post office is needed? And if there already exists two post offices within one block of your home and the Congress decides to build another post office on your block, do you think that the judicial branch has the power to decide that the Congress is mistaken in its factual determination that the third post office is necessary?
And if the Congress were to make a factual determination that too many traffic accidents are caused by vehicles which are colored red, white and/or blue rather than green and based on that finding passed a law requiring that all postal trucks be painted green, do you think that a court has the power to decide that the Congress's factual determination is incorrect and that blue postal trucks would actually be safer?
This is the essence of the problem that is faced by any Supreme Court which wishes to be an "activist" court and decide that Congressional acts are in excess of the Congress's constitutional powers. If the Congress makes the factual determination that certain states are using literacy tests to deny or abridge the right of citizens to vote based on their race and that it is necessary to suspend the literacy tests in order to enforce the Fifteenth Amendment, what legitimate procedures exist for the Court to determine that the Congress's factual determinations are incorrect?
I'm not sure why there was so much controversy over it. It was explicitly anicipated in the Federalist Papers, and Article III, Section 2 states, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution...." Elsewhere, it states that the Constitution itself is indeed law ("the supreme Law of the Land"), so therefore the courts clearly have the power to apply it, as they would any other federal law.
None of our branches can perform its function without making factual determinations. How can the Congress be expected to appropriate funds for the construction of a new post office in your city without first making the factual determination that a new post office is needed?
Congress can make factual determinations to do what they have the power to do. In the case of enforcing the 15th amendment, they have the power, as I said in the previous post, to appoint the officers and define the procedures for dealing with the lawbreakers. Information that they might need in order to pass such legislation would include: the number of polling places throughout the country, particularly in the areas where compliance is likely to be a problem; the success or failure which current procedures have had in ensuring compliance; the tactics that lawbreakers use in order to cover their activities - these are things that would help determine how much funding is needed to support the authorities, what agencies they should be allowed to share information with, what their command structure should be, and what the consequences should be for violating the law. They do not need to make investigations to determine what kinds of additional practices should be outlawed, because they don't have the power to outlaw them in the first place.
And if there already exists two post offices within one block of your home and the Congress decides to build another post office on your block, do you think that the judicial branch has the power to decide that the Congress is mistaken in its factual determination that the third post office is necessary?
No, of course not. If Congress is given the power to establish post offices, they can establish as many as they damn well please. In the case of outlawing literacy tests, the issue isn't whether or not Congress' facts are correct, because that's irrelevant. The only issue is whether or not they have the power to outlaw such tests to begin with, which they don't.
If the Congress makes the factual determination that certain states are using literacy tests to deny or abridge the right of citizens to vote based on their race and that it is necessary to suspend the literacy tests in order to enforce the Fifteenth Amendment, what legitimate procedures exist for the Court to determine that the Congress's factual determinations are incorrect?
It is not necessary, and certainly not proper, by any stretch, to suspend a lawful practice in order to enforce an unlawful practice. As I mentioned, the authorities go after businesses all the time for violations of anti-discrimination laws, without there being any need for suspending the use of the ordinary criteria business use to screen employees, regardless of whether or not some businesses have been dishonestly applying those criteria in a discriminatory manner. It's no different with screening of voters. States have the right, under the Constitution, to use whatever screening criteria they choose, except for race, color, previous condition of servitude, gender, payment of poll taxes, and age, for those over 18. Everything else is fair game, and indeed protected by the Constitution from congressional interference. The only thing the federal authorities have the power to do is take action against specific violators, or suspected violators, when they've determined that there have been, or are likely to have been, violations of the rules I mentioned above.
Well, believe it or not, there were some in those days (including President Jefferson) who believed that the Supreme Court had not been empowered by the Constitution to tell the Congress that the Congress had incorrectly interpreted the Constitution when it enacted legislation. They argued in substance that courts were supposed to just read and apply the laws of Congress and that courts were not supposed to make the laws. As a matter of fact, I still hear politicians and others making that argument.
But Chief Justice Marshall agreed with you and held, "It is emphatically the province and duty of the judicial department to say what the law [including the Constitution] is." Marbury v. Madison (1803). And to give you an idea of just how talented Marshall was, he declared this power of judicial review in a case in which (1) the result was in favor of the Jefferson administration and (2) the result brought the litigation to an irreversible end. So there was nothing that Jefferson or anyone else could do about it.
Here's a part of Article I, Section 8 that I hadn't before mentioned:
"The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
In McCulloch v. Maryland (1819), the Supreme Court had an opportunity to provide some meaning to that provision. See if you agree with Chief Justice Marshall's reasoning in this case:
"The government which has a right to do an act, and has the duty of performing that act, must, according to the dictates of reason, be allowed to select the means, and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception."
If you agree with Chief Justice Marshall's reasoning in McCulloch, who gets to select the particular means by which the Fifteenth Amendment is to be enforced? And who would have the burden of establishing that the means selected (i.e., the suspension of literacy tests) is an improper means of enforcing the Fifteenth Amendment?
The answer to the first question would be Congress, primarily. As to the second question, I guess the courts would have that burden, for all practical purposes. But I think the real question you were getting at isn't who makes that determination, but how that determination should be made.
I think you're being very charitable by calling suspension of literacy tests a "means" of enforcing anything. It really isn't - it's just a new prohibition. It is simply not necessary, in order to enforce a particular law, to prohibit other activities that might be related. Enforcing drunk-driving laws, for example, does not require outlawing alcoholic beverages altogether. Sure it would make it more convenient, but if the Constitution only gave Congress the power to prohibit drunk driving, by no stretch of the imagination would they also have the power to prohibit alcoholic consumption. They can only prohibit the act itself, not things that might lead people to commit the act. And if Congress, through its investigations, was able to learn that certain states were misusing literacy tests to discriminate against blacks, then they also had the ability to determine who was using those tests improperly, and who was using them lawfully - so there was demonstrably no need to outlaw the practice altogether.
So what are necessary and proper means of enforcing laws? It's as I said before: having the proper executive authorities make investigations when they suspect a violation, having them level charges when their investigations lead them to believe that a violation has in fact occurred, and having the proper judicial authorities take it from there to its conclusion. Also, Congress, under the necessary-and-proper clause, can, for example, provide for the punishment for any acts of violence or fraud against the officers of the United States, since it would be improper (i.e. potential conflict-of-interests) for them to have to rely on the good graces of state governments to provide them with the proper security so they can do their jobs. Also, Congress would have the power to exempt them from various state laws and practices that might hamstring them (which I think McCulloch vs. Maryland was concerned with, or was it Maryland vs. Bank of the United States?), and to hold them liable only in federal court (not state courts) for any crimes they might commit in the course of their duties. Necessity and propriety does not involve giving Congress entirely new categories of power over society, just for the sake of exercising delegated powers.
You're raising one of the most important constitutional issues that this country has ever faced. When selecting a means by which to accomplish a constitutionally permissible end, is the Congress restricted to only those means which are indispensable to accomplishing that end or is the Congress entitled to select any means so long as the means selected is not prohibited by the constitution?
President Washington had been in office less than two years when he had to confront this issue regarding formation of a national bank. Secretary of State Thomas Jefferson argued that the Federal Government had no constitutional authority to create a bank, whereas Secretary of the Treasury Alexander Hamilton argued in favor of the plan.
Jefferson argued that the “necessary and proper” clause only authorizes Congress to pursue its express constitutional objectives with means that are indispensable to achieving the objective:
“If has been urged that a bank will give great facility or convenience in the collection of taxes, Suppose this were true: yet the Constitution allows only the means which are "necessary," not those which are merely "convenient" for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.”
In response, Hamilton argued that the “necessary and proper” clause should be read less restrictively:
"In entering upon the argument, it ought to be premised that the objections of the Secretary of State and Attorney General are founded on a general denial of the authority of the United States to erect corporations. The latter, indeed, expressly admits, that if there be anything in the bill which is not warranted by the Constitution, it is the clause of incorporation.
Now it appears to the Secretary of the Treasury that this general principle is inherent in the very definition of government, and essential to every step of progress to be made by that of the United States, namely: That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society."
After considering these arguments, President Washington agreed with Hamilton and approved the national bank. In McCulloch v. Maryland (1819), Chief Justice Marshall sided with President Washington and Hamilton on this issue:
”We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”
Who do you think was right about all this?
Isn't that the purpose of the priviledge and immunities clause? States are prohibited from denying a person the priviledges and immunities that the person is entitled to as a citizen of the United States.
First of all, if you were to say to me, there was a certain unspecified constitutional question that Alexander Hamilton and Thomas Jefferson - or Hamilton and just about anyone else - were arguing over, and were to ask me which one is right, without even knowing what the question was, I'd say that it's most likely that Hamilton was wrong, simply because he stood out time and time again as the most statist and authoritarian of the Founding Fathers. Further, I find it interesting to contrast the quote from him that you cited, with his remarks in the Federalist No. 33, concerning that very clause of the Constitution:
Though a law therefore for laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controuled; yet a law for abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but an usurpation of power not granted by the constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both.
So in the passage you quoted, he seems to be saying that the N&P clause refers to anything that might be useful in exercising a particular delegated power, but here in the Federalist, the series of essays designed to convince people to vote for the Constitution in the first place, he's saying that even when a state engages in a practice that renders it difficult for Congress to do its job (in this case, taxing the same object Congress is trying to tax), Congress nonetheless has no power to restrain that state.
Having said that, I do think that Hamilton seems to make some reasonable points, after perusing the link you posted. Although I'd have a little trouble swallowing his idea that a central bank would be necessary to the regulation of interstate commerce, I do generally agree that Congress has the power to create entities and programs designed to support government operations, particularly when it's doing things (such as establishing a bank) that any private entity has the right to do. Unfortunately, I don't know enough about the specific controversy surrounding the bank to make a specific commentary, and I'm a bit suspicious of it, because I really don't know what a bank could do for government that government can't do for itself using less involved means. But generally speaking, the case is of an entirely different order than the one we've been talking about, where we're talking about Congress' right to restrict a state activity that it hasn't been given the express power to restrict.
This is how I understand necessity and propriety: I'm assuming first, that the whole point of listing the powers of Congress, was that Congress would be generally limited to only those powers, which the 10th amendment seems to confirm. Therefore, as I said in my last post, the clause can not be understood to mean giving Congress new categories of power over society. In other words, Congress can't just change the "landscape" out there in order to make it easier for them to drive around - as Hamilton seemed to agree in Fed 33. That is not necessary and proper. Necessary and proper acts include doing things that private entities would be allowed to do, in order to provide support for constitutional operations; and they also include passing laws that are of the most basic nature that any government would be able to pass and still be able to call itself a government, such as, as I mentioned in the last post, providing for the punishment of acts of violence against federal officers doing their job. It should not involve much of anything else.
Well, sure, but these privileges and immunities, as they apply to citizens specifically not to persons in general, have a very specific meaning. They're not the same as rights, which are much harder to nail down. For further details, see post 28.
Right, Hamilton argued that:
(1) the congressional means must be "plainly adapted to that end," (i.e. useful); and
(2) the congressional means must be among those means "which are not prohibited" by the Constitution (e.g., the Bill of Rights).
Jefferson's view of strict necessity is not without its own problems. For one thing, any time that there exists more than one alternative means to accomplish a particular end, no one of those alternative means can be viewed as an indispensable means. If you can travel to Brazil by means of either ship or car, neither means can be said to be a strictly necessary means. A sometimes separate issue concerns what might be called extravagance. In his argument, Hamilton pointed out that the lighthouses that the government had already provided were not strictly necessary to the exercise of any express constitutional power. Marshall cited the congressional statutes providing for criminal laws against perjury. Isn't it at least a matter of opinion whether courts can function without criminalizing false testimony? And since the Constitution expressly provides for procedures in the event of a president's death or disability, how could a Secret Service protection detail be viewed as indispensable?
BTW, who did Jefferson envision would be resolving any differences of opinion concerning these issues of what is really necessary? In post 148, I listed three of the possible constitutional checks on Congress to ensure that Congress does not exceed its authority. Do you think that Jefferson would have trusted judges to choose the means by which the Congress exercised its express powers? At the time, Jefferson was arguing that President Washington should veto the legislation to establish the national bank. But the President does not require any strict definition of the term "necessary" in order to exercise his veto power. The President can veto legislation whether or not he thinks the legislation is constitutional.
You’ve made reference to Federalist No. 33. Hamilton argued there that, in the last analysis, we must depend upon the people to enforce limits on the Federal Government:
“But it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union? I answer first that this question arises as well and as fully upon the simple grant of those powers, as upon the declaratory clause: And I answer in the second place, that the national government, like every other, must judge in the first instance of the proper exercise of its powers; and its constituents in the last. If the Foederal Government should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people whose creature it is must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify.”
Can you see why judges like Marshall might feel that it would be inappropriate in a representative democracy for the judiciary to be choosing between "alternative means" and/or deciding on the propriety of a means which is arguably just an "extravagance"? Aren't legislatures inherently better equipped than courts to resolve these issues in a manner consistent with the wishes of the people? As a general rule, our courts have felt poorly equipped to get deeply involved in these issues. As an alternative, they have attempted to utilize specific constitutional prohibitions (e.g., the Bill of Rights, the bill of attainder and ex-post facto clauses, etc.) to impose limits on the exercise of federal powers.
Under the circumstances, what more do you think courts should reasonably be expected to do?
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