The Federalist Blog

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 the attainment of some individual. 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 generically 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 Marshal’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.

Marshal clearly is speaking of the only bill of attainder authorized by the Constitution 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.

Any other use of a bill of attainder outside of treason is forbidden under Article I §9.

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

No one had ever submitted a bill of attainder to obtain “pains and penalties,” which makes current confusion over the differences between the two bills more baffling.

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 and attainted and shall suffer the pains of death. Same general arguments for a bill of pains as there were no bill for the conviction through enactment. In other words, ACORN has not been found guilty through enactment by an act of Congress.

Instead, Congress simply made a determination to stop funding the group because of legal or ethical questions surrounding the group. This does not remotely rise to the level of an congressional attainder.

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 believe 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 venture into. That is, they viewed Article IV §2 as preventing one States from discriminating against citizens of other States when they come within their limits in the fundamental protections of life, liberty and property.

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 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.

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 identical in meaning to the privileges and immunities under Article IV §2.

On the other hand, it was well accepted that States were required to extend the same fundamental rights which they guaranteed to their own citizens under their own Bill of Rights to citizens of other States under Article IV §2. Therefore, Bingham and Howard likely were using the Federal Bill of Rights to illustrate those fundamental rights found in all State constitutions for which they were required to observe for all citizens from everywhere in the union.

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. 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.

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? Sen. Trumbull 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 for very specific purposes of limited liability or tax considerations and not for purposes of taking on a life of an individual person.

Furthermore, the judicial power of the United States did not extend to corporations under Article III.

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).

Bingham showed no negative concern over the fact the first eight amendments had been decided to not be limitations against the States in a January 30, 1871 House Judiciary Committee Report he authored as chairman:

It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article. To remedy this defect of the Constitution, the express limitations upon the States contained in the first section of the fourteenth amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution.³

Here Bingham makes clear the “defect” the Fourteenth Amendment sought to remedy was not to change the fact the first eight amendments were not enforceable against the States, but to remedy the defect of a missing enforcement provision for the privileges and immunities of United States citizens. Two months later on March 31, he suggested during debates on a very partisan anti-KKK bill that the first eight amendments were a limitation against the States through the privileges and immunities of United States citizens as distinguished from citizens of a State:

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.”

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’

The similarities between the right to bear arms under the United States Second Amendment and Article XVII of the Massachusetts Constitution of 1780 are nearly identical. Both speak of a right of the people “to keep and bear arms” for purpose of providing security through common defense. It certainly would not be unheard of to find provisions of the Massachusetts Constitution found incorporated into the United States Constitution because we know that is where “advice and consent” comes from.

Text Comparisons:

Initial Proposed Second Amendment: The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country.

Massachusetts Constitution Art. XVII: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.

U.S. Senate Second Amendment Proposal: A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms for the common defense, shall not be infringed.

Final Second Amendment Edit: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The principal variation between the Second Amendment and the Massachusetts provision is the Federal Constitution speaks of a well-regulated militia as a “security of a Free State” while the Massachusetts provision refers to a “common defense” through an armed populace. It would not be a stretch to say “common defense” and “security of a free State” structurally speak of the same thing. James Madison in 1813 spoke of well-armed militias in terms of both security and defense as “the great bulwark of defense and security for free states.” Hamilton had said the militia was “the most natural defense of a free country,” and “the guardian of the national security.”

Thomas Jefferson remarked in his 1808 message, “For a people who are free, and mean to remain so, a well-organized and armed militia is their best security.”

On December 13, 1859, the governor of Massachusetts requested the opinion of the State Supreme Court on questions relating to the militia, and in response to the governor, the justices said the United States Second Amendment and Article XVII of the Massachusetts Constitution were both “similar provisions.” Would had been difficult to refer to these two constitutional provisions as similar if the Second Amendment was viewed as an individual right to privately own and use weapons for personal defense while the State Constitution was viewed strictly as a right of the people to maintain armed militias for their common defense in contrast to entrusting their security to a standing army in times of peace.

Prominent Massachusetts politican, Francis Bird, said of the Massachusetts “right to bear arms for the common defence” on October 29, 1853:

Not for self-defence, Mr. Attorney-General and Messrs. Justices, for that is a natural right, and needs no constitutional guarantee; but for the “common defence.” The Attorney-General graciously admits “the right of individuals peaceably to organize themselves into armed bodies, at their own expense, for military instruction or defence against lawless violence.”

Speaking of the Federal Second Amendment, he says:

“To keep and bear arms,” not for self-defence, not for “military instruction,” not for “special service in keeping guard;” but as members of a “well regulated ” [State] militia. This was the very purpose of adopting this second amendment to the federal constitution—to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment, the right of the people to bear arms, not for “making defence under special exigencies,” which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State.

As I have said here, the Massachusetts provision to keep and bear arms can only be understood through events of the revolutionary war. Massachusetts Governor Gage was ordered by the King to confiscate public arms from the Charlestown arsenal, invoking public outrage, and the King made sure no arms shipments could be delivered to the colonies. This forced the Massachusetts Committee of Safety to secretly collect muskets and gunpowder and keep at a secret location where they could later be used to arm local militia members.

Elbridge Gerry of Massachusetts confirmed this during his remarks on the Second Amendment on August 17, 1789:

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late Revolution. They used every means in their power to prevent the establishment of an effective militia to the Eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia; but they were always defeated by the influence of the Crown.

Both National and Massachusetts constitutions recognize this plight of the people of the colonies during the war in arming themselves to combat British forces by forbidding government to do what the King had done in disarming their ability to organize and bear arms against a common enemy. Otherwise, a national standing army would exist locally to replace local militia forces under the pretense of providing for security and defense of the State. As Pomeroy explained, the object of the Second Amendment is “to secure a well-armed militia” so that no national standing army would be required during time of peace.

The reason the Second Amendment or Article XVII of the Massachusetts Constitution does not imply an individual right to possess arms is because armed individuals acting under their own right would be useless in providing security or any kind of meaningful defense without proper organization and training. Judge Story drove this point home in his commentaries when he remarked, “[h]ow it is practicable to keep the people duly armed without some organization it is difficult to see.”

C.J. Marshal said, “In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments.”

The Second Amendment neither is a right nor does it recognize a right, but merely puts Congress on notice that no power exists that allows them to encroach and disarm the State militias or replace them with a standing army. There never was any need for a constitutional amendment for personal self-defense using a gun no more than there was ever a need for a constitutional amendment to eat food, or seek warmth.

The phrase “Equal Protection of the Laws” is another way of saying “equal justice” or, “under the protection of law,” which was a popular expression during colonial times to show different religious sects and denominations were equal “under the protection of law.” The first version of the Fourteenth Amendment secured “to all persons in the several States equal protection in the rights of life, liberty, and property.”

The primary sponsor/author of the Fourteenth Amendments first section, Rep. John A. Bingham of Ohio, said the words “Equal Protection” were already part of the existing Constitution in the words “no person” and not “no freeman” shall be denied due process of the laws under the Fifth Amendment. In other words, even though there was no mention of “due process” in this early version, it was strictly understood to have meant the equal protection of those laws of “due process.” In his last major speech on the Fourteenth Amendment prior to it being submitted to the States for approval, pointed out no State under the original Constitution had no right to to deny anyone the equal protection of the laws:

No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection protection of the laws or to abridge the privileges or immunities of any citizen of the republic, although many of them have assumed and exercised the power, and that without remedy.

No State ever had a right to deny the Equal Protection of the Laws because to Bingham it was a “universal” right derived from the laws of due process:

The great men who made that instrument [U.S. Constitution], when they undertook to make provision, by limitations upon the power of this Government, for the security of the universal rights of man, abolished the narrow and limited phrase of the old Magna Charta of five hundred years ago, which gave the protection of the laws only to “freemen” and inserted in its stead the more comprehensive words, “no person;” thereby obeying that higher law given by a voice out of heaven:”Ye shall have the same law for the stranger as for one of your own country.”

Rep. Bingham also reminded members of the House of Representatives a number of times that the “Equal Protection of the Laws” were the words of the 40th Chapter of the Magna Charta: “We will sell to no man, we will not deny or delay to any man right or Justice.”

The insertion of these words into the Magna Charta was intended to fix England’s custom under King John of bringing gifts or payment to the King in order to obtain justice before his courts, or extorting fines from suitors or causing delay or denial to right of justice. In other words, under the 40th chapter the right to justice was no longer dependent upon the prerogative of anyone but of the law of the land.

“The common law of England is not the common law of these States.” —George Mason

What might the phrase “natural-born citizen” of the United States imply under the U.S. Constitution? The phrase has always been obscure due to the lack of any single authoritative source to confer in order to understand the condition of citizenship the phrase recognizes. Learning what the phrase might have meant following the Declaration of Independence, and the adoption of the Fourteenth Amendment, requires detective work. As with all detective work, eliminating the usual suspects from the beginning goes a long way in quickly solving a case.

What Natural-Born Citizen Could Not Mean

Could a natural-born citizen simply mean citizenship due to place of birth?

Unlikely in the strict sense because we know one can be native born and yet not a native born citizen of this country. There were even disputes whether anyone born within the District of Columbia or in the territories were born citizens of the United States (they were generally referred to as “inhabitants” instead.) National Government could make no “territorial allegiance” demands within the several States because as Madison explained it, the “powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Jurisdiction over citizenship via birth within the several States was part of the “ordinary course of affairs” of the States that only local laws could affect. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State. Framer James Wilson said, “a citizen of the United States is he, who is a citizen of at least some one state in the Union.” These citizens of each State were united together through Article IV, Sec. II of the U.S. Constitution, and thus, no act of Congress was required to make citizens of the individual States citizens of the United States.

Prior to the Revolutionary War place of birth within the dominions of the crown was the principle criterion for establishing perpetual allegiance and citizenship. After independence each State was free to establish their own maxims on the subject. James Madison’s own State of Virginia adopted a birthright law authored by Thomas Jefferson in 1779 that recognized parentage (citizenship of father) in determining citizenship of the child:

[A]ll infants, wheresoever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any, of the United States of America, shall be deemed aliens.

Some States made citizenship conditional on either parent in terms of their citizenship, such as Kentucky: “[E]very child, wherever born, whose father or mother was or shall be a citizen of Kentucky at the birth of such child, shall be deemed citizens of that State.” One common law found in a number of States that defined those born as citizens read, “All persons born in this state, and resident within it, except the children of transient aliens, and of alien public ministers and consuls, etc.”

The State of Connecticut adopted a law that read, “All persons born in this State … except aliens, paupers, and fugitives from justice or service, are and shall be deemed to be citizens of this State, owing it allegiance and entitled to receive its protection, until they shall have voluntarily withdrawn from its limits and become incorporated into some other State or sovereignty as members thereof.” States that were slow in enacting laws over acquiring citizenship through birth forced courts to adjudicate citizenship disputes under common law rules.