The Federalist Blog

One of the core arguments advanced by the Justice Department in a lawsuit against Arizona’s immigration law is that under “our constitutional system, the federal government has pre-eminent authority to regulate immigration matters.” The government further states this “authority derives from the United States Constitution …”

Here is the problem with this: There is zero evidence the States had ever surrendered their authority over internal State immigration matters to the federal government. The Constitution’s enumerated powers say nothing about immigration. What power not expressly granted means it was expressly withheld.

I know some will say the power to make uniform rules of naturalization is the power grant over immigration. This argument, however, could never pass the smell test because immigration and naturalization was always viewed as two separate and unrelated subject matters. Immigration deals with movement of people while “uniform rules of naturalization” deals solely with citizenship requirements.

Immigration has always been a primary concern and exercise of the States themselves rather than a federal concern after the adoption of the current Constitution. Additionally, States continued to maintain their own immigration bureaus and immigration commissioners within select countries.

When Congress made treaties that touched on immigrants within States it was made clear that State law dictated the rights and liberties of the immigrants and not anything national law could because such laws would never be in pursuance to anything authorized by the Constitution. State immigration matters was never viewed as anything having to do with foreign affairs but only with internal State affairs.

The court is fully aware of the fact there is no vested concern over internal State immigration found under the US Constitution. To get around this major obstacle the court had to make a half-hearted argument that immigration was an “incident of sovereignty belonging to the government of the United States.” This can be translated to mean the power over the time and manner of setting your sprinklers is an “incident of sovereignty belonging to the government of the United States.”

In other words, there would be no limit to what the government could claim is an “incident of sovereignty belonging to the government of the United States.”

For Congress to claim “pre-eminent authority to regulate immigration matters” two conditions must be true, 1) the power be expressly delegated, or incident to an express power and, 2) the power must be expressly withheld from the States. Because neither condition is true, there is not even a question of concurrent exercise involved.

In a world of truth and honesty it is Arizona who can claim pre-eminent authority over immigration matters within Arizona and not Congress.

If you think fighting the Patient Protection and Affordable Care Act is a matter solely devoted to filing lawsuits you are deeply mistaken. The reason lawsuits will have little effect is because the entire judicial system is a house of cards built upon a foundation of fiction and lies the court is willing to jealousy defend even if they must continue with deceit. Justices on the court are no longer concerned with defined limited powers or original meaning behind enumerated powers anymore then they are interested in why States refused to surrender domestic concerns over to the general government.

The court has increasingly grown in modern times to concern itself only in declaring what it feels the Constitution ought to have said instead of what it was approved by the people of the States to have said.

Lawsuits against Obamacare is by no means frivolous, but because the court in the end will always choose not to disturb the great centralization of power that has been judicially created by deferring to Congress. Example: When the Civil Rights Bill of 1964 was challenged, the court held that “The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.”

In other words, since a majority in Congress had decided discrimination was something they ought to regulate within State limits the court was not going to entertain any serious factual analysis to whether the regulation of commerce ever had anything remotely to do with intrastate discrimination. This act of judicial restraint has become a valuable defensive tool the court employs to protect the centralization of federal power within State limits.

Likewise, members of Congress will avoid the question all together by pointing to the courts past deference when the court would uphold the power of Congress to “regulate many aspects of American life” through the Commerce Clause. This deferring back-and-forth assures questions of limited powers and original meaning will go ignored by both branches.

Neither the court nor many members of Congress have any desire to defend their self-created powers publicly over anything having to do with buying and selling because they know they cannot defend such powers in any open, honest public forum where facts can be presented to dispute the courts numerous instances of ignoring historical evidence and purpose of regulating commerce.

The court would consider it a nightmare to have to defend prior commerce precedent such as “the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices” in the face of overwhelming evidence such nonsense was never part of the practice of regulating commerce. Price control never remotely had anything to do with the regulating the exchange of trade for that was something strictly left to the exclusive legislative powers in making rules for buying and selling - something Congress does not possess intrastate. The fact is the regulation of commerce was solely to protect or encourage domestic manufactures through imposts and duties on importable articles of trade insures the court will avoid any evidentiary analysis of its meaning and constitutional purpose. (See here for a historical analysis of the regulation of commerce.)

The court will almost assuredly resort to the great defense shield of denial known as “stare decisis” as a clever way of protecting the courts own judicial malpractice from scrutiny while at the same time leaving its vast centralization of power in Congress intact. Therefore, all the lawsuits in the world challenging Congress or the courts own erroneous interpretations of the past will fail.

A better way to attack Obamacare than with lawsuits will be to confront justices of the court and members of Congress with the kind of questions that lead to the truth being revealed.

An example for such questions might be a half-page Ad in the WSJ that asks the court and Congress how did the States and other Nations regulate their commerce with each other before and after the adoption of the Constitution? Answer: The Levying of imposts and duties on “goods, wares, and merchandizes” imported.

Billboards could quote James Madison on the purpose behind the power to regulate commerce among the States as growing “out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

Alternatively, how about a television commercial that quotes Madison on the understood purpose behind regulating commerce: “The power (regulation of commerce) has been understood and used, by all commercial and manufacturing nations, as embracing the object of encouraging (promote) manufactures. It is believed that not a single exception can be named.”

As these two quotes show (find more here), the regulation of commerce was never understood to embrace laws on buying or selling. If it had meant that you could bet none of the original 13 States would had ever consented to adopting the Constitution.

While such tactics might not change anything over night, it could ultimately force the court to realize their constitutional revisionism lacks critical factual analysis that allows the court to be nothing less than a judicial accessory to despotism. Maybe this could eventually lead to judicial rulings that are firmly based upon careful analysis of historical evidence and defined division of powers that truly defines our republican form of government without the false pretense.

Excerpts from President Monroe’s Special Message on Internal Improvements, May 4, 1822:

If, then, the right to raise and appropriate the public money is not restricted to the expenditures under the other specific grants, according to a strict construction of their powers respectively, is there no limitation to it?

Have Congress a right to raise and appropriate the public money to any and to every purpose, according to their will and pleasure? They certainly have not. The government of the United States is a limited government, instituted for great national purposes, and for those only. Other interests are committed to the states, whose duty it is to provide for them.

Each government should look to the great and essential purposes for which it was instituted, and confine itself to those purposes. A state government will rarely, if ever, apply money to national purposes, without making it a charge to the nation. The people of the state would not permit it. Nor will Congress be apt to apply money in aid of the state administrations, for purposes strictly local, in which the nation at large has no interest, although the states should desire it.

The people of the other states would condemn it. They would declare that Congress had no right to tax them for such a purpose, and dismiss, at the next election, such of their representatives as had voted for the measure, especially if it should be severely felt. I do not think that in offices of this kind there is much danger of the two governments mistaking their interests or their duties. I rather expect that they would soon have a clear and distinct understanding of them, and move on in great harmony. …

My idea is, that Congress have an unlimited power to raise money, and that in its appropriation, they have a discretionary power, restricted only by the duty to appropriate it to purposes of common defence, and of general, not local, national, not state, benefit.

This may be old news by now, but I wanted to add a few remarks regarding the Association of Community Organizations (ACORN) argument that a House resolution amounted to a “bill of attainder” that resulted in a cut off federal grant money to the group. Judge Nina Gershon agreed, writing, “They [ACORN] have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt.”

Interesting how discretionary funding can lead to complaints of a “bill of attainder” over discretionary defunding, especially when no individual was attainted nor was there ever a bill demanding an individual to be attainted. Would it be a “bill of attainder” for Congress to cut off funds because of ethical questions or because of cost overruns? Could bills of attainder become the new tool of the courts to get more deeply involved in legislative matters under the ruse of protecting companies or groups against attainders?

Perhaps more interesting how a bill of attainder can be confused with a “bill of pains and penalties.” This would be as if the court saying the word “apple” generically includes all “oranges” - leading to court’s arguing over “oranges” even though the only issue before them is “apples.”

The confusion can most likely be traced to passing comments of Chief Justice John Marshall’s attainder dicta in Fletcher v. Peck when he wrote, “A bill of attainder may affect the life of an individual, or may confiscate his property, or both.” It is important to note the issue before the court was not bills of attainders.

Marshall clearly is speaking of punishment under Article III §3 which reads, “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Congress is empowered to declare the punishment of treason which may, or may not, include death, but is prevented from extending the period of corruption of blood and forfeiture beyond the life of the accused, unlike under the English custom of mandatory death and loss of property.

Bill of attainders were bills in parliament used in cases of treason and were death and corruption of blood was sought, and where the accused was condemned only by the united judgment of the Crown, the Lords, and the Commons and were never used to inflict general criminal penalties. Bills of attainder were resorted to when there was fear there might not be enough evidence to convict someone of treason in a court of law.

Bills of attainder and bills of pains and penalties are different bills with different results, much like the difference between a traffic ticket and lethal injection. One results in the pain of death and attaintment while the other results in pain of penalties.

No one had ever used a parliamentary bill of attainder to obtain “pains and penalties,” which makes current confusion between the two bills more baffling. There is zero evidence that Gerry and McHenry understood a bill of attainder to also include bills of pains when they proposed prohibiting its use for legislative conviction during the convention.

So was ACORN’s defunding an act of attainder? The answer is clearly no because there was no bill of attainder that stated the accused is hereby convicted, attainted and “shall suffer the pains of death.” Same general arguments with a bill of pains as there was never any bill calling for congressional conviction through enactment.

Instead, Congress simply made a determination to stop funding the group based upon legal or ethical questions surrounding the group, not punishment as a result of a bill for legislative conviction. Since funding is an exclusive function of a legislature, they and they only control the purse strings that require no judicial finding of fact to grant or withhold.

A reader asks what was Rep. John Bingham’s understanding of the privileges and immunities under Article IV §2 and whether he understood them to apply to resident citizens of a State. Good questions since Rep. Bingham made it very clear the Fourteenth Amendment incorporated Article IV, §2 privileges and immunities jot-for-jot in order to provide for their enforcement only.

Bingham, like all abolitionists, viewed Article IV §2 as an anti-discriminatory provision that if voluntarily recognized would prevent States from discriminating against citizens of other States (read: newly emancipated black citizens) in their fundamental rights in security of life, liberty and acquiring property. This was a big deal after the civil war because of the large migration of emancipated black citizens moving about from State to State. Rep. Bingham would a number of times elevate the “citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States” under Article IV §2 to the level of a “sacred bill of rights.”

This of course could lead to mass confusion with those not familiar with his constitutional thinking whenever they encounter him referring to the “bill of rights” in his speeches, not knowing for sure if he was speaking of the Comity Clause or the first eight amendments. The following remark by Bingham illustrates his understanding of the Comity Clause as anti-discriminatory:

When you come to weigh these words, “equal and exact justice to all men” go read, if you please, the words of the Constitution itself: The citizens of each State (being ipso facto Citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis “of the United States”) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.

The Civil Rights Bill of 1866 was Congress’ first attempt to enforce all the privileges and immunities of citizens of the United States by declaring there shall be no discrimination between citizens on account of race or color in their privileges and immunities. What did Congress and Bingham believe were the privileges or immunities of United States citizens? They believed Article IV §2 placed citizens of one State on the same equal footing in terms of fundamental protections of life, liberty and property of the citizens of the State they ventured into. That is, they viewed Article IV §2 as preventing one State from discriminating against citizens of another State when they come within their limits in the fundamental protections of life, liberty and property.

Bingham writing for the House Judiciary Committee in House Report No. 22 in 1871 confirms this understanding by citing Justice Story and Webster:

The learned Justice Story declared that the intention of the clause (“the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States”) was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances. (Story on the Constitution, volume two, page 605.)

In the case of the Bank of the United States vs. Primrose, in the Supreme Court of the United States, Mr. Webster said:

“That this article in the Constitution (article four, section two) does not confer on the citizens of each State political rights in every other State, is admitted. A citizen of Pennsylvania cannot go into Virginia and vote at any election in that state, though when he has acquired a residence in Virginia, and is otherwise qualified as is required by the constitution (of Virginia) he becomes, without formal adoption as a citizen of Virginia, a citizen of that State politically.” (Webster’s Works, volume six, page 112.)

By no means did Article IV §2 provide for uniform privileges or immunities from one State to the next. Woman who enjoyed property rights within their own State of residence could never claim the same rights in a State that did not grant such rights to its own female citizens. The privileges and immunities of United States citizens is a straightforward concept but with both Bingham and Sen. Howard’s reference to “amendments” under the federal Bill of Rights muddy the waters — or so it seems.

Both Bingham and Howard talked about the first eight amendments and how they relate to the privileges and immunities of citizens of the United States versus citizens of a State while pointing out they did not bind the States in anyway. Bingham remarked in February of 1866 that the “existing amendments are not applicable to and do not bind the States, they are nevertheless to be enforced and observed in States.” Howard said essentially the same thing.

Bingham is not talking about existing federal amendments to be observable with citizens within their own State, but by citizens of the United States who are not citizens of the State (or any State for that matter). This of course describes the condition of newly freed slaves who had been declared citizens of the United States but were not yet citizens of any State from gaining the same protections under Article IV §2. Prior to the Fourteenth Amendment a person was required to be a citizen of a State for purposes of Article IV §2, the Fourteenth changed that to cover citizens who were not citizens of any State (emancipated blacks).

There was no legal theory that said the first eight amendments made up the privileges and immunities under Article IV §2, and there was no federal Bill of Rights when Article IV §2 was adopted nor any suggestion they had become part of the privileges and immunities under Article IV §2 after they had been adopted. In addition, Bingham said nothing was added to the “privileges and immunities” under the Fourteenth Amendment in House Report No. 22, and asserted they were an identical import to the privileges and immunities under Article IV §2.

Bingham pointed out to Rep. Garfield on April 4, 1871 that the only difference between Article IV §2 and the Fourteenth Amendment is that Article IV §2 did not include the words “citizens of the United States.” Did this fact make any fundamental difference? No because as already demonstrated Bingham viewed Article IV §2 as the privileges and immunities of United States citizens. This means it is futile to argue the addition of the words “citizens of the United States” introduced any new meaning to the privileges and immunities of citizens of the United States.

Since both Bingham and Howard were insistent they were speaking of the privileges and immunities of citizens of the United States under Article IV §2, leads us to the only logical conclusion they were merely using the federal amendments to define in general terms those fundamental rights the States already guaranteed to their own citizens for which they were obligated to extend to citizens of the United States under Article IV §2.

They may had extra reason to refer to the federal Bill of Rights because former rebel states were under United States jurisdiction until new State constitutions had been adopted and restored as States. In the mean time, the federal Bill of Rights was the privileges and immunities for all citizens of the union within these former rebel States.

It would clearly be an abridgment of the privileges and immunities for any State to deny a trial by jury to citizens of another State (citizens of the United States) simply because they are naturalized citizens from a certain country or race. Since there was no universally accepted theory explaining how the privileges or immunities of United States citizens could embrace the first eight amendments under the federal Constitution, would had required explicit language to accomplish this under the Fourteenth Amendment. The absence of this explicit language speaks volumes.

There is no evidence that Congress or Bingham viewed the Comity Clause as anything a citizen of a State could claim against his or her own State. As Bingham makes clear as quoted earlier, “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.” He asked “that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction.”

He asked Rep. Robert Hale “to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States.”

On May 14, 1868, Bingham declares the Fourteenth Amendment protected the privileges and immunities of United States citizens the same way as did Six United States Statutes-at-Large, 645 had by preventing Missouri from depriving “the rights and privileges of a citizen of the United States within the limits of that State.” That provision protected the privileges and immunities of United States citizens by declaring the Constitution of Missouri should “never be construed to authorize the passage of any law, and no law shall ever be passed in conformity thereto, by which any citizen of either of the States of the Union shall be excluded from the enjoyment of privileges or immunities to which such citizens are entitled under the Constitution of the United States [Article IV §2].”

Rep. Bingham further confirms the understanding that it is the privileges or immunities of citizens of a State which citizens of other States were entitled when he said: “It (privileges and immunities clause) is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”

Therefore, it is clear Congress and Bingham viewed the Comity Clause no differently than earlier law commentators had in that it served to prevent States from placing citizens of other States on an unequal footing with their own citizens in terms of fundamental protections in life, liberty and property. In other words, it removed “alienage” so citizens of one State could go into other States to purchase property, make and enforce contracts, sue, receive a trial for crimes, etc., just as Congress spelled out in the Civil Rights Bill of 1866.

Did the Fourteenth Amendment change anything in terms of rights and protections of citizens of the United States? Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, said in 1871, “The fourteenth amendment has not extended the rights and privileges of citizenship one iota. They are right where they always were.” In other words, fundamental rights States are required to extend to citizens of the United States are still those fundamental securities in life, liberty and property secured by every State to its own citizens.

The Supreme Court recently held in Citizens United v. Federal Elections Commission that corporations had a First Amendment right to spend money to support or oppose political candidates. The Court struck down federal laws regulating independent political advertising by for-profit and non-profit corporations before an election even as they reaffirmed rules about disclosure and disclosures for ads and against direct corporate giving to candidates.

The court assumed if a corporation could not engage in political speech then neither could major media outlets who advocate for or against candidates via endorsements, opinion columns, etc., because they are themselves corporations. Justice Kennedy speaking for the majority: “The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”

The major problem with Citizens United and all post commentary is the fact there never was a Federal First Amendment issue involved in the controversial McCain-Feingold Act. By arguing McCain-Feingold violated the First Amendment ended up turning the entire issue upside down while ignoring major points of constitutional law. Yes, McCain-Feingold is unconstitutional but not because of the First Amendment, but because of Congress’ lack of authority over regulating pre-election activities.

What purpose did the First Amendment serve under the Federal Constitution? James Madison said it served as proof “that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the [first] amendment was intended as a positive and absolute reservation of it.”

This means Congress never possessed any lawful authority to regulate speech or the press in the public sector within the several States, and thus, had no constitutional authority to pass the McCain-Feingold Act. Some might argue the Constitution gives Congress the power to alter the regulation of times, places and manner of holding elections, and therefore can regulate electioneering. If one wanted to take such an idea, seriously, they would find the “manner” the Constitution speaks of relates strictly to determining whether votes would be by paper ballot or viva voce and not the regulation of pre-election activity.

In other words, one would never find an ounce of authority to regulate the financial activities of an election within each of the States. On the other hand, no Constitutional provision prevents States from imposing restrictions on corporative spending on any candidate within their limits. A State could enact its own McCain-Feingold Act and it would be free of federal constitutional objections.

I like to add that it is silly to argue how a corporation might be considered a “person.” Whatever rights a corporation might have depends on the laws they are created under. Corporations do not vote; they do not serve time in prison; they don’t sit on juries or hanged for high crimes. In other words, corporations are formed as business entities with limited liabilities and not for purposes of taking on a life of an individual person.

A corporation gives people who formed them no greater or less freedom to speak or petition government with their grievances. A restriction against a “corporation” is no restriction on individual persons. In other words, if a “corporation” is prevented by State laws from spending on political campaigns the persons who formed the corporation are still free to spend as individual persons outside of the corporate shell.

As Justice Ruth Ginsburg put it during oral arguments, “a corporation, after all, is not endowed by its creator with inalienable rights.” Justice Sotomayor was on the right track when she suggested the court should revisit the error in Santa Clara County v. Southern Pacific Railroad Company (1886) which “gave birth to corporations as persons.” Justice Sotomayor added, “There could be an argument made that was the Court’s error to start with.”

To quickly sum up, the issue here isn’t freedom of speech or of the press but one of proper constitutional authority to regulate by law how much money may be spent and by who during an election. Such authority only can found with the States and not with Congress.

Like many pro constitutional gun ownership activists, Alan Gura’s brief for the petitioners in McDonald v. City of Chicago attempts to cast doubt on Slaughterhouse precedent that says the Fourteenth Amendment was not intended “as a protection to the citizen of a State against the legislative power of his own State.” He wants to convince the court that their privileges or immunities doctrine is profoundly erroneous. However, did Slaughterhouse really get it wrong?

The written evidence strongly suggests that in fact Slaughterhouse did indeed get it right.

Firstly, the “privileges or immunities of citizens of the United States” had identical meaning as to the original phrase found under section two, article four that reads, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Rep. Bingham would refer to article four, section two as the “privileges or immunities of citizens of the United States” before he had used the phrase under the Fourteenth Amendment. Some examples:

• “Gentleman admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States…”

• “This guarantee [Art. IV, Sec. II] is of the privileges and immunities of citizens of the United States in, not of, the several States.”

• “It [Art. IV, Sec. II privileges and immunities] is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States.”

If anyone has any doubt of this should consult with Bingham’s report of the judiciary committee, dated January 30, 1871 in response to the memorial of Victoria C. Woodhull:

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 States,” 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 four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States.

Secondly, these privileges or immunities were never understood to extend protection to citizens within their own State, and instead, merely followed a citizen of a State whenever they removed themselves to another State. This provided for a general National citizenship whenever the citizens of a State found themselves in another State. Bingham made this clear as words can make it clear when he said, “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.” (Cong. Globe, 39th Cong., 1st Sess., 158 (1866))

Influential Radical Republican, Samuel Shellabarger of Ohio, said in July of 1866 when he proposed his own bill to enforce all the privileges and immunities of citizens of the United States, that such privileges and immunities “protects no one except such as seek to or are attempting to go either temporarily or for abode from their own State into some other.”

Chancellor Kent (2 Commentaries, page 71) says: “If they [citizens of the United States] remove from one State to another they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made, and to none other.”

Enforcement of the privileges or immunities of United States citizens was squarely aimed at the organic law of Oregon that abolitionists felt violated the privileges or immunities of United States citizens that read, in part: “No free negro or mulatto, not residing in this State at the adoption of this Constitution, shall ever come, reside or be, within this State, or hold any real estate, or make any contract, or maintain any suit therein …” Abolitionists like Bingham viewed most free Negro’s as citizens of the United States.

Gura suggests the Fourteenth Amendment “left unaddressed the content of state citizenship.” If one pays close attention will find the Fourteenth Amendment did nothing to change the relationship between State and National citizenship. Bingham made that clear in House Report No. 22 when he wrote, “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”

I will cut this short by restating the ruling in Slaughterhouse in terms of the privileges or immunities of United States citizens under the Fourteenth Amendment was correct and is fully supported by the historical record. It is interesting to point out that when the 39th Congress attempted to enforce all of the privileges or immunities of United States citizens through legislation the mention of the Second Amendment was absent.

UPDATE: Edited to take into account two issues raised by Mike Hansberry.

Have you ever wondered why all the hullabaloo over judicially forcing the first eight amendments of the Federal Constitution to be applicable between a State and its own resident citizens even though the Constitution is completely silent on the subject? Can anyone for a moment ever imagine a single State — that alone ten or more States — willing to surrender their judicial authority over their own resident citizens within the limits of their State? There wasn’t a chance in a million of that ever happening.

Those who strenuously embrace incorporation do so under the same general views as did an early architect of incorporation, Justice Hugo Black, namely because, Rep. John Bingham of Ohio who was the chief sponsor of the Fourteenth’s first section, referred to the “bill of rights” and the case of Barron vs. The Mayor and City Council of Baltimore during the congressional debates. Black interprets this as Bingham intending “to make the [entire] Bill of Rights, applicable to the states.”

In Barron, the court had ruled the obvious, that the first eight amendments were not limitations on the power of the States: “These amendments demanded security against the apprehended encroachments of the general government—not against those of the local governments.” In his dissent in Adamson v. California, Black writes:

My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed, its submission and passage persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.

Analysis of the congressional debates refutes Black’s unfounded assertion that says there was an intention to reverse the ruling in Barron in order to make the entire first eight amendments applicable against a State and its own resident citizens. Rep. Bingham brought up the case of Barron vs. The Mayor and City Council of Baltimore not for any intended purpose to reverse its holding that the first ten amendments are not applicable against the States, but to show Congress had no power over the organic law of a State that denies “eight hundred thousand natural-born citizens of the United States” the right to due process of law:

Mr. BINGHAM. The gentleman will allow me to ask him to point to a single decision. The gentleman says that the sufficiency of the Constitution has been tested and found in the past. I ask him now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindication of a right or the redress of a wrong? Where is the decision? I want an answer.

Mr. HALE. The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his questions with a warning. I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of the liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression.

Mr. ELDRIDGE. I wish to know if the gentleman from Ohio [Mr. BINGHAM] has found or heard of a case in which the Constitution of the United States has been pronounced to be insufficient?

Mr. HALE. I would rather leave these gentlemen to answer one another at some other time, if it will answer their purposes as well.

Mr. BINGHAM. I beg leave to say that I am ready to answer the gentleman now, and to produce such a decision [Barron], whether the gentleman from New York is or is not.

Mr. HALE. This is no doubt a very interesting side issue; but the gentlemen will pardon me if I prefer to go on with my own speech now, and leave them to make theirs in proper order.¹

The following day Rep. Bingham draws attention to Barron in response to his own question from the day before:

Mr. HALE. If he is relating what took place in the debate.

Mr. BINGHAM. I am relating what I asked the gentleman yesterday.

Mr. HALE. In the debate?

Mr. BINGHAM. Yes, sir, in the debate. A gentleman [Mr. ELDRIDGE] on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment. Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts.²

It turns out Bingham’s only direct reference to Barron in the year 1866 was solely to answer his own question of whether an organic State law that denies prosecuting a suit in State court to citizens of the United States could be remedied in federal courts and not to show any deliberate intention to make the entire first eight amendments applicable between a State and its own citizens. Moreover, Bingham had pointed out in a speech on March 31, 1871 that “it was decided, and rightfully, that these [first eight] amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States.” Not something someone would say if they were unhappy with the fact it had been decided the amendments were not limitations against the States (some have argued that Bingham felt Barron was wrongly decided).

The AP reports that the federal government will begin taking land from seven property owners so that a Flight 93 memorial can be built in time for the 10th anniversary of the 2001 terrorist attacks. “We always prefer to get that land from a willing seller. And sometimes you can just not come to an agreement on certain things,” said National Parks Service spokesperson Phil Sheridan.

One major problem: The Federal Government has no authority to condemn private property within a State no more than they do within, say, China. This means this is not an issue of law over the taking of property for just compensation but merely an act of unlawful usurpation. To exercise the power of Eminent Domain requires exclusive legislative powers, something that was withheld from national government within State limits.

Only way for the Federal Government to acquire property to build a monument would be as suggested under Section 8, Article I, “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” In other words, the Constitution recognizes Congress has no authority to take property as they please without first obtaining permission of the State Legislature and purchasing the property - just as would be true within another country.

When Washington D.C. needed drinking water, it took an act of the Maryland legislature in 1853 to approve and to condemn the land for the Washington aqueduct to be built upon. The court in Pollard’s Lessee v. Hagan noted, “the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in the cases in which it is expressly granted.”

President Monroe said in 1822 the “condemnation of the land, if the proprietors should refuse to sell it, the establishment of turnpikes and tolls, and the protection of the work when finished, must be done by the state.”

Some may mistakenly point to Amendment V that reads, in part, “nor shall private property be taken for public use, without just compensation” as evidence the framers might have envisioned the taking of property as an exercise of national sovereignty.The first Eight Amendments recognized only limitations of federal power and not of any powers delegated directly, or indirectly, to Congress. The Constitution was adopted without a so-called Bill of Rights because to federalists it did not make any sense to “declare that things shall not be done which there is no power to do.” Hamilton warned of falling into this trap by adopting a federal Bill of Rights:

They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government.

Scary what members of Congress and the courts “think” the Federal Government has authority to do nowadays under our Republican form of government. Let the State of Pennsylvania build the monument if they so desire.

Updated 4/10/09

Reading through the unanimous, 69-page decision of the Iowa Supreme Court striking down the state’s 10-year-old ban on same-sex marriage, reads more as an advocacy for same-sex marriage than constitutional fact finding. While I do not have much time to Blog on this case now, I will quickly point out deliberate and obvious factual errors the court used to invalidate Iowa’s same-sex ban.

The court declares the “primary constitutional principle at the heart of this case is the doctrine of equal protection.” The court assumes this doctrine of equal protection is found under Section VI of the Iowa Constitution that reads: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

The constitutional provision that all laws shall be general and of uniform operation does not require them to operate uniformly on all the people of the State, nor, when relating to cities, on all the cities of the State, but if a law is made to operate upon a particular condition as to persons or property, and is operative whenever and wherever the same conditions exist, affixing the same consequences, it is a general law in its operation even though it only operates in one of the conditions or classes specified. State ex rel. West v. Des Moines, 31 L.R.A. 186, 96 Iowa, 521. 65 N.W. 818.

The second section of the clause that reads, “the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens,” has a specific and well understood meaning and was borrowed from the Indiana State Constitution of 1851, which had adopted the language with the following understanding during the State constitutional convention:

The section which declares that the Legislature shall not bestow any title of nobility, nor confer hereditary distinctions, nor grant extraordinary privileges, was read a second time.

Mr. READ of Monroe moved to amend by striking out the words, “grant extraordinary privileges,” and inserting the following: “Nor grant to any citizen or class of citizens privileges and immunities which, upon the same terms, shall not belong equally to all citizens.”

Mr. READ said that his object in offering this amendment was to render the section more distinct and definite in its signification. It was not designed to Interfere with the rights of corporations, and had no reference whatever to a State Bank, nor would it affect any of the institutions of the State. He was convinced that such a principle as that embraced in the amendment should find a place in the Constitution. He had consulted a number of legal gentlemen on the subject, and they all agreed it was a sound principle. It was merely intended to prevent that which had been much complained of in this country, and which might be called class legislation.

Class legislation is one of those terms that today can generally mean whatever a person presents it to mean, but really never had anything to do with discrimination based on race, sex, age or religion. Essentially it meant giving a privilege to one or a few named individuals or companies while ignoring everyone else. It was namely in response to the outcry of granting the right of eminent domain to railroad companies. The granting of a exclusive liquor license only to a certain wealthy liquor magnet and no one else would also be considered class legislation because it excludes everyone else.

On the other hand, requiring $50,000 or more land ownership as a condition for granting a liquor license would not be class legislation because it is merely a condition and not a privilege being exclusively granted to one individual or company. Justice John Pettit, a delegate to the convention at the time, explained the proposed Indiana provision this way during the constitutional convention of 1851:

This section applies to the future action of the Legislature. It declares that the Legislature shall not hereafter place one class of citizens upon a pedestal of fame and wealth, and trample another in the dust of ignominy and poverty. That is what this section provides for. … Well, sir, the section before us provides that no rights shall be given to one class of the community that are not given, upon the same terms, the same conditions, and under the same circumstances, to all.

Same purpose was sought for the language during the Iowa constitutional convention of 1857. Future speaker of the Iowa House, John Edwards, who advocated for the insertion of the words from the Indiana Constitution, explained the meaning of the words this way during the Iowa convention:

[I]ts object is contained in a nut shell, and is merely this: It is to prevent the General Assembly from granting any privileges or immunities to any citizen or class of citizens that it would not be willing to grant to any other citizen or class of citizens upon the same terms. It is to prevent the Legislature from granting exclusive privileges to any class of citizens.

George Ells provided for the benefit of members of the Iowa Convention Webster’s difinition that “embraces all we claim for the word ‘privilege’”:

A particular and peculiar benefit or advantage enjoyed by a person, company or society, beyond the common advantages of other citizens. A privilege may be a particular right granted by law or held by custom, or it may be an exemption from some burden to which others are subject. The nobles of Great Britain have the privilege of being triable by their peers only. Members of Parliament and of our Legislatures have the privilege of exemption from arrests in certain cases. The powers of a banking company are privileges granted by the Legislature.

During the 1866 Nevada Constitutional Convention, identical language was proposed to be inserted into the Constitution that would have the following effect:

Mr. Nourse: I understand that the object of the section is to prevent such disgraceful proceedings as occurred in the last Legislature. … a prohibition of special legislation—that you shall not grant to John Smith and his associates, a charter to build a road here or there, but you may pass a general act, providing that persons who wish, may incorporate so and so, and thereupon, if you choose, may have the right of way across private property—may have the power to have it condemned to their own use by such course as may be prescribed by the Legislature; leaving the whole thing open to public competition, and not tied up to any right given specially, and irrevocably, to any favored corporation, like, for example, the Camden and Amboy Railroad in New Jersey.

In Strange v. Board, etc., 173 Ind. 640, the Indiana Supreme Court confirmed the above:

As we have shown, there may be classifications, and rights may be conferred upon some classes and not upon others. A familiar example is the conferring upon corporations and upon individuals, the right of eminent domain, and all that is required is that the privileges or rights conferred or liabilities imposed shall be the same to all who fall within the same class or are similarly situated, and that is an express recognition of the clause of our own Constitution (Section 23 which is identical to Iowa’s Section 6).

The Indiana Supreme Court in Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005) has already tackled the same issues (DOMA) as presented before the Iowa Supreme Court under identical constitutional language and held limiting marriage to opposite-sex couples does not violate the State Equal Privileges and Immunities Clause. The Indiana appellate court also pointed out that there “is binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution.”

Thomas Cooley says: “Many states prohibit the intermarriage of white persons and negroes; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against another; it merely forbids marriage between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede and prevent it. Race prejudice, no doubt, has had something to do with establishing this law, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege or exemption.”

The court demonstrated their incompetence in interpreting constitutional law when they wrote: “Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.’” Would disallowing marriage to “one man and one woman,” who are closely related also render marriage “no right at all”? Put a different way, would marriage be “no right at all” if closely related (brother and sister) gay or lesbian couples were disallowed by law?

If the answer is no (and this is the well-established answer), then neither can disallowing marriage between the same sexes would have no material effect on any right by law to marriage between opposite-sex partners. The court is simply grasping at straws here.

CONCLUSION

Why did I devote attention to the debates of both the Indiana and Iowa constitutional conventions? Because the Iowa Supreme Court uses textual and historical arguments when interpreting the Iowa Constitution. The court says the purpose of any constitutional inquiry is “to ascertain the intent of the framers.” Redmond v. Ray, 268 N.W.2d 849, 853 (Iowa 1978).

The court relies on plain text that “give[s] the words used by the framers their natural and commonly understood meaning.” Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 553 (Iowa 1995). The court will “also examine the constitutional history and consider ‘the object to be attained or the evil to be remedied as disclosed by circumstances at the time of adoption.’” Id.

When the constitutionality of a statute is merely doubtful, the Iowa Supreme Court will not interfere, as it must be shown that legislative enactments clearly, palpably and without doubt infringe upon constitutional rights before an attack will be upheld. State v. Jaeger, 249 NW2d 688 (Iowa, 1977).

Therefore, Iowa laws of marriage are neither class legislation nor does the law grant exclusive privileges or immunities to any one class at the exclusion of all other classes of citizens who meet the conditions of law for entering into marriage. Likewise, denial of SSM also operates equally on all couples who meet the condition of being same-sex and places no new burdens or special obligations upon them.

And finally: “If all laws were held unconstitutional because they did not embrace all persons few would stand the test.” City of Clinton v. Wilson, 257 Ill. 580; Hawthorn v. People, 109 id. 302.

UPDATE: I found some time today to update this on my way out the door, and also removed a few lines that could be misunderstood.

Related: Historical Meaning Behind ‘Equal Protection of the Laws’