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Another take on the Balkanization 14th Amendment article
Clayton Cramer has agreements as to P or I incorporation of enumerated rights, but not nonenumerated ones.
Having spent a fair amount of time studying the legislative history, there are two complicating factors.
(1) When the framers of the 14th referred to the Bill of Rights, they sometimes referred to the first eight, and sometimes to the first ten, amendments.
(2) They also referred to the privileges or immunities clause as meant to include three classes of rights.
(A) Those listed as "privileges and immunities" in case law interpreting that term as used in Article IV, §2 of the original Constitution. There was a circuit opinion by Bushrod Washington that talked of these in very broad and mostly economic terms -- the right to practice a lawful profession, to own and dispose of property, etc.. This was relevant because some Black Codes forbade blacks to engage in certain businesses or to own real estate inside city limits. These were, in the Bill of Right sense, nonenumerated rights.
(B) Rights protected against Federal interference by the original Constitution, e.g., the right to petition for habeas corpus, the prohibition against ex post facto laws.
(C) Liberties protected against Federal interference by the US Bill of Rights. Some Framers insisted that these were meant to bind the States under Article IV, §2, but that provision had no allowance for Congressional enforcement, so it remained a nonbinding moral duty only. (The view in modern case law is that Article IV, §2 only prohibits discriminatory State action against citizens of other States, in relation to "privileges and immunities" of State citizens, but in 1866 there was a very respectable body of opinion otherwise. This had been a staple of antislavery thought before the Civil War, arguing that the Article IV duty to turn over escaped slaves was unenforceable by Congress, and that the fugitive slave acts were unconstitutional).
Update: a respectable argument can be made (and was in fact made by the early commentator William Rawles) that the 2A applies to the States. But the Supreme Court went the other way in Barron v. City of Baltimore, and in many following cases. During the Congressional debates on the 14th, an opponent argued that it wasn't needed because the Bill of Rights already applied to the States (he was a former NY judge, BTW). Sponsor John Bingham had to hunt up a copy of Barron and read it into the record.
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I have to disagree with FWB on a couple of major points. Privileges and immunities were understood as applying to rights in 1789, and not just rights coming from an established government. My research indicates the P & I terminology was a reference to all rights of the people. It was used that way from colonial days through the formative period of the Constitution. My research extends up to the notification that the Bill of Rights was ratified in 1792.
One of the most interesting uses of the P & I phraseology I found was from 1755 and involved an armed defensive association specifically formed to guard against the voluntary “militia” formed under Pennsylvania's only Colonial Period militia-like law. As justification for this defensive activity not supported by any law, a supporter stated that the subjects in Pennsylvania were equally free and entitled to equal privileges and immunities.
My new book, The Founders' View of the Right to Bear Arms, indexes over a dozen references to privileges and immunities (not always used together or in this order and often used along with the term rights). I urge all those preparing to argue about Second Amendment incorporation and how the Privileges and Immunities terminology was used later during Reconstruction not to completely ignore its usage prior to and during the Ratification Era.
As for the U.S. Bill of Rights being intended to apply, other than the First Amendment, directly to the states, I must disagree with FWB on this also. As one example, the Third Amendment would make no sense under such an interpretation. Only Congress could keep up troops during time of peace and that specific prohibition could not apply to the states because they could not constitutionally have troops in time of peace. This is an after-the-fact legal interpretation type of argument. Such an interpretation could be used to argue that it was the intent for the Third Amendment to alter the Constitution's state troop limitation, an argument very similar to gun control advocate arguments about the Second Amendment and an intent to alter the militia powers of Article I, Section 8. However, any such argument would run counter to the historical fact that it was the Federalists' general intent to limit state authority under the Constitution and to guarantee under the Tenth Amendment only that authority to the states that the Federalists left them in the first place.
I am unaware of Founding Era documents that indicate an intention of applying the U.S. Bill of Rights protections for individual rights directly to the states. My views on why the U.S. Bill of Rights provisions protecting individual rights were not intended to limit the states directly are based upon the Founding Period historical documents, not modern legal arguments. A better understanding of the actual history of the Second Amendment and the rest of the U.S. Bill of Rights provisions certainly clarifies this disagreement. That history indicates an intent to limit the newly proposed government, not state governments. The intent for the U.S. Bill of Rights was always to apply restrictions on the new Federal Government, and those restrictions were understood to be protections for the same rights as those contained in the existing state declarations of rights. This was the understanding from the first moment of the first utterance of “bill of rights” in relation to the U.S. Constitution. That moment occurred in the Federal Convention when George Mason suggested the need for a bill of rights and pointed out that it would only take a few hours to draw one up because the state declarations of rights could be used as an aid.
Where are all the Founding Era documents calling for a federal bill of rights to limit the states? I have gone through the period sources, and have even edited and published the only complete document collection on the Second Amendment's Ratification Era development, The Origin of the Second Amendment, and am unaware of documents that support FWB's interpretation.
Of course I don't question your research, David. However, I do have a few questions.
The First beings "Congress shall pass no law..."
The Third ends "...but in a manner to be prescribed by law."
Seems to me that the First clearly calls out who the rights are protected against. The Third clearly calls out that the right is subject to acts of law.
The Second reads to me as a clear command. The Right of the People to Keep and Bear Arms shall not be infringed. To my eye, the Federal government is commanded to protect the right.
The Federal government, in its duty to protect the citizenry, must be able to rely upon the militia. Were a state to deny the right to keep and bear arms to its citizens, how could the Country rely upon them when needed?
The Federal government is required by the Second Amendment to protect the people's right to keep and bear arms from anyone, be it the Federal government itself, a state, county, city or foreign power.
We are getting off-track here because my Third Amendment example is actually a modern and legally oriented argument, not relevant at all to ratifying period discussion concerning it. That being noted, the Third Amendment's language "to be prescribed by law" does not refer to the peacetime quartering of soldiers in my example. In peacetime, no amount of prescribing laws will allow the government to quarter soldiers without the owner's consent as such laws are specifically unconstitutional. The point is that none of this type of modern legal argument can prove or disprove the Third Amendment was originally intended to apply to the states.
Having discussed this direct state limiting intent issue at length with some of its supporters in the past (not on any forum), the evidence relied upon, the First Amendment's specific language, is not very compelling considering the history of the Bill of Rights. Such an argument is similar to that regarding interpretation of the Second Amendment based on language in a clause deleted from the Bill of Rights, like the conscientious objector clause. The demands for the U.S. Bill of Rights are probably some of the best documented political arguments in all of American history. It is unfortunate that a lot more people are not familiar with them. We know that the Founding Era intent was to protect these rights against misconstruction and abuse of powers by the new government under the Constitution. What we need to know and have no evidence from the period for are where the demands that a U.S. Bill of Rights was also needed to protect those rights against the states are to be found? In addition to the lack of evidence for the proposition, there is clear evidence against the proposition.
As for the argument that the Federal government must be able to rely on the militia and that state laws violating arms possession are void, that is exactly one of the points made in the Presser v Illinois decision, IIRC. A state law interfering with federal militia powers would be void, and the Second Amendment would have nothing to do with that fact. Federal powers are paramount to anything in the state constitutions, whether they be powers or rights protections. That is the reason why a U.S. Bill of Rights was necessary, because the protections already found in the state bills of rights would not protect the people of the state against violation of their rights by the new Federal government. This is also the reason why those of the Founding generation did not look at the U.S. Bill of Rights protections as limits on the states when it was developed.
In the majority of states that already had a bill of rights the concern of this discussion was not an issue. In the other six states there was little concern expressed about the matter. In Connecticut, one commentator suggested that the state, which later operated under its colonial charter until 1818, should adopt a new constitution and bill of rights. There was no suggestion that a Federal Bill of Rights was needed to protect against state action.
I've only read about 150,000 pages of info on the Constitution and that leaves me short a few hundred thousand. However, ignoring all the
"intent", one need only look at the wording of the Constitution to determine that privileges and immunities and Rights were distinguished from each other by the Framers. Privileges and immunities terminology appears in the body of the Constitution but is missing from the BoR and vice versa. The relationship is readily apparent.
I have not found any discussion contemporaneous with the BoR that specifically stated that the Framers considered leaving control to the states except for the points concerning the 1st amendment. I will however expand my studies to see IF I can locate anything.
The third amendment might at first glance be thought to apply solely to the fed. The third is not about a Right but is about control of government. Under your interpretation, the national guard units of each state are in violation of the prohibition of states keeping troops in time of peace. The national guard are not the Militia even in light of judicial decisions to the contrary. Having the Militia defined in terms similar to the National Guard was defeated three times when proposed during the writing of the Constitution. But we know that states kept up military "troops" similar to the guard and the third amendment can be easily understood to apply to these "troops" as well.
I submit that the 5th, 6th, and 7th amendments would make little sense applied solely to the fed. The fed was granted no authority to exercise eminent domain. The only way the fed could obtain lands within a state is written in Article I, section 8 wherein the fed may purchase lands with the permission of the legislature of the state wherein the lands lie. There are no implied powers (another lie perpetrated on the uneducated and ignorant by elitists).
One must bring the DoI into the discussion when one views Rights versus P&I. If there were not a recognized difference, the terminology and the discussion would not have ensued.
As I stated, it is completely logical that the BoR applies to the states, especially future states, due to the republican form of govenrment guarantee.
I will look forward to reading your work and especially locating copies of your sources for further reading.
I've only read about 150,000 pages of info on the Constitution and that leaves me short a few hundred thousand. However, ignoring all the
"intent", one need only look at the wording of the Constitution to determine that privileges and immunities and Rights were distinguished from each other by the Framers. Privileges and immunities terminology appears in the body of the Constitution but is missing from the BoR and vice versa. The relationship is readily apparent.
I have not found any discussion contemporaneous with the BoR that specifically stated that the Framers considered leaving control to the states except for the points concerning the 1st amendment. I will however expand my studies to see IF I can locate anything.
The third amendment might at first glance be thought to apply solely to the fed. The third is not about a Right but is about control of government. Under your interpretation, the national guard units of each state are in violation of the prohibition of states keeping troops in time of peace. The national guard are not the Militia even in light of judicial decisions to the contrary. Having the Militia defined in terms similar to the National Guard was defeated three times when proposed during the writing of the Constitution. But we know that states kept up military "troops" similar to the guard and the third amendment can be easily understood to apply to these "troops" as well.
I submit that the 5th, 6th, and 7th amendments would make little sense applied solely to the fed. The fed was granted no authority to exercise eminent domain. The only way the fed could obtain lands within a state is written in Article I, section 8 wherein the fed may purchase lands with the permission of the legislature of the state wherein the lands lie. There are no implied powers (another lie perpetrated on the uneducated and ignorant by elitists).
One must bring the DoI into the discussion when one views Rights versus P&I. If there were not a recognized difference, the terminology and the discussion would not have ensued.
As I stated, it is completely logical that the BoR applies to the states, especially future states, due to the republican form of govenrment guarantee.
I will look forward to reading your work and especially locating copies of your sources for further reading.
But lets see: States MAY keep troops in time of peace IF Congress grants permission. At that point, the third amendment would come into play against the states
But to the point, is not the Constitution for the united States the supreme Law of the land? Does not the Constitution for the united States contain limitations on state action? If a particular clause or paragraph is not designated as being applicable to a singular authority, would that clause then not be applicable against all authorities?
You state that evidence that the BoR was not meant to apply against the states exists. Please post references to that claim. I would welcome the information.
At issue is the fact that the Courts have done nothing legitimate in their interpretations. Neither the courts nor the Congress nor the executive have any legal authority to interpret any of the founding documents. Those are lies perpetrated on the true authority, the People, by persons desirous of expanding their power. The truth lies in understanding Creator/created and who is in charge. Every part of the government is subordinate to the Constitution and the Constitution is subordinate to We the People. It is not nor has ever been any different except in the lies the judges and legislators and executive officials have espoused.
The most obvious historical evidence that the U.S. Bill of Rights was not originally intended to protect against state action (only Federal action) is found in Madison's speech and amendments proposal to Congress.
Madison specifically wanted to protect freedom of religion, freedom of the press, and jury trials in criminal cases against state action. He therefore proposed an amendment to that effect to be added to Article I, Section 10 of the Constitution, the provisions of which all limit state action. Every provision of Section 10 begins with "No State shall . . ." as did Madison's rights protecting provision he intended to add there.
All of the other individual rights protections were to be inserted in Article I, Section 9 (except a few that require court action for implementation, such as jury trials in civil cases, etc). All of the First (including freedom of religion, and free press), Second, Third, Fourth and a number of other strictly individual rights protections of the Fifth and Sixth Amendments (like hiring a lawyer) were to be added there - in Article I, Section 9. The provisions of Article I, Section 9 were intended as limits on the Federal Government, not the state governments.
It is very unfortunate that the actual statements of the Founders regarding these matters, such as Madison's speech to Congress and the developmental history of the Second Amendment throughout the ratification debate, are not much more widely known and relied upon by those interested in such subjects, especially those in the legal profession. If those in the legal profession were familiar with Madison's speech to Congress on amendments, they would have instantly recognized that the professional historians' amicus brief in the Heller case contained assertions that were directly contradicted by Madison's statements when introducing the Bill of Rights amendments.
I have done my very best to provide a complete collection of Ratification Era documents illustrating the Second Amendment's development as part of the Bill of Rights, including the relevant period Bill of Rights sources and also the discussions about the militia powers as well as other statements concerning the limited nature of the government under the Constitution. While most in the legal profession have ignored much of this material, at least the judges of the 5th Circuit, and more recently the legal professionals involed in the Parker/Heller case as well as the Supreme Court, have decided to rely on on it. The reasons for any such reliance are that the facts of the period are more important than anyone's opinion today unless those stating an opinion can demonstrate that it is based upon period facts.
There is a lot more period evidence contradicting any original intention that the U.S. Bill of Rights provisions protecting individual rights were developed to limit state powers. However, as David Hardy, who is a very good lawyer has noted, a compelling argument can be made for this proposition. Its only problem is that virtually all of the period historical evidence contradicts it, just as virtually all of the period evidence contradicts advocates of gun control who argue the Second Amendment was not intended to protect individual rights.
When Congress decided to place the proposed amendments as a list at the end of the Constitution rather than added in to related materials as originally suggested, Madison indicated that such a change would probably lead to ambiguity in the future. This is certainly the case with the argument FWB is making as well as the case with the debate over interpreting the Second Amendment.
Read the period historical Bill of Rights sources. No one has ever regretted doing so.
Thank you for your response.
Primarily, the amendments were placed at the end so as not to cause confusion over who developed them. If the amendments had been entered into the body of the original document, the implication would be that the original signatories had approved the words. Rather than portray a falsehood, the BoR was placed at the end of the document in order to provide clarity in this instance.
While Madison's remarks sould be included in any review, the fact that nothing in his speech came to fruition sould be taken as evidence that the rest of the Congress disagreed with his take on the matter. This should tend to negate the importance of his ideas as a basis for determining the applicability of the amendments as ratified. Nothing is more common than for a law to mean more or less than the intention of its author.
Do you have complete reproduced notes from the house and senate for the discussion during the writing of the proposed amendments? Is it not quite possible that the senate rejected Madison's proposals because the senate already believed the BoR to be applicable against the states? Why is it that the Constutitional law books of the time run contrary to your statements? Rawle, both 1825 and 1829, specifically states that the BoR binds the states.
Madison was not the sole force behind the BoR. A rather more important force was George Mason. Madison was against a BoR for numerous reasons, accepting the proposal of a BoR at the urging of men like Mason grudgingly. A singular source does not make for a solid foundation.
The BoR is written in unambiguous wording. No statement in the BoR would provide anyone with the idea that the limitations applied only to the federal government. One must make great ASSumptions to reach that conclusion, which is what Marshall did. Had it not been for direction that Barron took, we would not be having this discussion. And Barron went the way it did because Marshall, as a Hamiltonian, was stealing power so that he could build his SC stronger.
Regardless, lawyers think P & I are the same as Rights. But P & I come FROM the government while Rights come from the Creator (D of I). The Framers of the 14th could have said anything they wanted but it is what the people who ratified the 14th knew that counts. Rights are NOT P & I because P & I can be restricted by government. Rights cannot be restricted (inalienable). So it matters not what is taught when that which is taught is incorrect.
The BoR applied to the states as well as the fed from the beginning Barron to the contrary. Marshall was an idiot as is proven by his lack of exactness and lack of knowledge in man of the cases wiht which he was involved. Rawle in 1825 and 1829 stated the BoR bound the states. The fact that the 3rd amendment (our 1st) was singled out as applicable only to Congress provides more evidence against Barron. And the requirement that the fed guarantee to every state a republican form of government is best served by placing the major ideas about a republican form of government in the supreme Law of the land.
The discussions during the framing of the BoR bear out the fact that the Framers of the BoR discussed the leaving those items covered in our 1st amendment to the control of the states but no such discussion about the other amendments was made.