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.
]]>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.
]]>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.
]]>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).
]]> 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:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first Eight Amendments to the Constitution of the United States. Those eight amendments are as follows: [Quotes the eight amendments here.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.4
For citizens of a State under their own constitutions there isn’t anything in these Bingham remarks to get excited over. You don’t make a distinction between citizens of a State and citizens of the United States if there is no important distinction between the two when it comes to privileges or immunities. Incidentally, Bingham was fond of referring to the privileges or immunities under article four, section two as the “privileges and immunities of citizens of the United States,” and thus, it is clear the language under the Fourteenth Amendment that no State shall “abridge the privileges or immunities of the citizens of the United States” was no different in meaning then under article four. 5
In May of 1868 Bingham points out the Fourteenth Amendment’s privileges and immunities allows Congress to enforce the same restrictions that was placed on the State of Missouri in 1821, to wit, that Missouri’s constitution 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.” (6 U.S. Statutes at Large, 645)6
Moreover, there is a significant factual problem with these Bingham remarks that needs pointing out: Bingham wrote two months earlier in House Report No. 22 that the Fourteenth Amendment does not “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,” and the Fourteenth Amendment “did not add to the privileges or immunities before mentioned.”7
The problem is this: The privileges and immunities of United States citizens under section two of the fourth article was never understood to have anything to do with any of the first eight amendments by either the founders, scholars or the courts. In fact, there were no bill of rights under the U.S. Constitution when the privileges and immunities of United States citizens was finally adopted under article four, section two, and when the first eight amendments became part of the Constitution, no one claimed they had become privileges or immunities of United States citizens. For there to be any validity to these 1871 Bingham remarks he would had to have specifically declared in writing under section one of the Fourteenth Amendment that all of the first eight amendments are now privileges or immunities belonging not only to United States citizens, but also citizens of the States to have any far reaching affect.
However, two months earlier Bingham and fellow members of the House Judiciary Committee said that never happened because the Fourteenth Amendment “did not add to the privileges or immunities.” No doubt the judiciary committee was speaking the truth in H.R. Report No. 22 because the Fourteenth Amendment does not address other provisions of the bill of rights other than article four, section two and due process. Senator Howard did suggest the first eight amendments should be included in the privileges or immunities of United States citizens but did not endorse that recommendation nor made any claim that in fact they were included. Additionally, Howard says:
I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts.8
The interesting thing is Sen. Howard made no attempt to say this would change under the proposed Fourteenth Amendment, especially between citizens and their own State of residence. The New York Times on November 15, 1866, wrote of the Fourteenth Amendments privileges and immunities clause: “This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that ‘the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.’”
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.”9 At the time Bingham felt the Fourteenth Amendment might make it possible to enforce the oath of State judges and lawmakers:
The oath, the most solemn compact which man can make with his Maker, was to bind the State Legislatures, executive officers, and judges to sacredly respect the Constitution and all the rights secured by it. And yet there is still another provision lest a State Legislature, with the approval of a State Executive, should, in disregard of their oath, invade the rights of any citizen or person by unjust legislation, violative alike of the Constitution and the rights secured by it, which is very significant and not to be overlooked, which is, “And the judges of every State shall be bound by the Constitution of the United States, anything in the constitution and laws of any State to the contrary notwithstanding.”10
This would be a weak argument if Bingham was suggesting State officers and judges were forced to recognize limitations imposed only upon Congress — which means he probably were speaking of article four, section two as the rights State legislatures were obligated to recognize. Moreover, he can be found referring to article four, section two in speeches as a standalone bill of rights (see below).
What was always the understanding of the meaning privileges or immunities of United States citizens?
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.” He also says these do not extend to citizens of their own State but only those citizens who “remove from one State to another.”
In other words, only when a citizen of a State removes himself does a National citizenship follow and not beforehand because he is only a citizen of a State wherein he resides. Bingham explains this removal does not mean a transfer of laws from one State to another:
The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It 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.11
Every citizen has certain universal privilege or immunity due to being a citizen, such as an absolute right to live (personal security), personal liberty, and the right to acquire and enjoy property. Others include the right to make and enforce contracts, to purchase, hold, and enjoy property, and to share the benefit of laws for the security of person and property. These are the rights of citizenship in all of the States and means no State can discriminate in these fundamentals protections of citizenship because someone may be a citizen of a different State or race.
Many wrongly assume that when Bingham spoke of a “bill of rights” he must have been speaking of the entire first eight amendments, and this of course is demonstratively false. The privileges or immunities of United States citizens and due process of law were a “bill of rights” in their own separate right. Rep. Bingham refers to the privileges or immunities of United States citizens under article four, section two and due process — both clearly incorporated under the Fourteenth Amendment as the “bill of rights” Bingham was addressing:
“Gentlemen 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 Slates, and that no person shall be deprived of life, liberty; or property without due process of law.”12
“What more could have been added to that instrument to secure the enforcement of these provisions (privileges and immunities of United States citizens) of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”13
“[W]e are not opposed to the bill of rights that all shall be protected alike in life, liberty, and property; we are only opposed to enforcing it by national authority, even by the consent of the loyal people of all the States.”14
“But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the republic within every organized State of the Union …”15
It should be evident that when he speaks of the “bill of rights” he was not directly referring to entire first eight amendments of the U.S. Constitution. I should point out once more that the rights to protection of life, liberty and property was considered a privilege of United States citizens under article four, section two.
House Judiciary Committee chairman, James F. Wilson of Iowa, understood what bill of rights Bingham sought to enforce: “I find in the bill of rights which the gentleman (Bingham) desires to have enforced by an amendment to the Constitution that ‘no person shall be deprived of life, liberty, or property without due process of law.’” Wilson mentions no other provisions found in any of the first eight amendments.
Bingham never once pointed out the entire first eight amendments when speaking of the bill of rights in the year 1866, only article four, section two and due process. No doubt if he truly intended to make the entire first eight amendments applicable between a State and its resident citizens he would had clearly indicated that intent — especially in the absence of any legal theory that said the privileges and immunities of United States citizens included any or all of the first eight amendments against State denial. Of course, had he said it was the intention to make the first eight amendments applicable against a State and its own resident citizens would had the same chance of being ratified by two or more States as you being killed from the impact of an asteroid.
On the other hand, there was a good chance of ratifying a proposition that simply enforces what already was found under the original Constitution, namely, protecting citizens of the United States (read: newly emancipated black citizens) in their privileges and immunities whenever they go from State to another. One of the most profound statements Bingham may had made in regards to the Fourteenth Amendment can be found in House Report No. 22 where 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.”16
In other words, the Fourteenth Amendment did not replace State citizenship with National citizenship. Bingham pointed out this absolute truth before and after the adoption of the Fourteenth Amendment when describing the privileges and immunities of United States citizens: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”17
Again, he reinforces this point on February 28, 1666 by saying “if you intend every citizen of every State shall in the hereafter have immunities and privileges of citizens in the several States, you must amend the Constitution.” In simple English, he is simply saying it is only those citizens of a State who remove themselves to another who can claim these privileges or immunities as citizens of the United States. This is exactly how the privileges or immunities of citizens of the many States has always worked.
Citizens of the United States, Not Citizens of a State
The evidence is overwhelming that the 39th Congress had no intention of protecting State citizens from their own laws and constitutions (Bingham considered State citizens under the protection of their own Constitution and laws18), but only United States citizens as such within any State of the Union. Members of Congress always made it clear it was not citizens under their own State constitutions they sought to protect, but citizens of one State within another State as Bingham makes clear here:
Bingham again asks:By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question …19
I ask 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.20
Bingham asked Rep. Robert Hale of NY:
I respectfully ask him [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. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?21
Radical Republican, John Broomall of Pennsylvania, complained of the treatment of citizens of a State within another State:
For thirty years prior to 1860 everybody knows that the rights and immunities of citizens were habitually and systematically denied in certain States to citizens of other States: the right of speech, the right of transit, the right of domicile, the right to sue, the writ of habeas corpus, and the right of petition.22
Indiana Governor, Oliver P. Morton, said the purpose of the Fourteenth’s first section was to prevent discrimination of citizens from other States:
It has happened in times past that several of the Southern States discriminated against citizens of other States, by withholding the protection of the laws life and liberty, and denying to them the ordinary remedies in the courts for the vindication of their civil rights, and hence the adoption of this provision.23
As the reader probably can determine on their own, these discrimination charges against other State citizens had everything to do with those citizens who were primarily black. Generally, many States did not recognize people of color as citizens like some of the northern States had. This is why it was important to define who were citizens under the Fourteenth Amendment so no State law could recognize only white persons as citizens of the United States, leaving black citizens to be treated as though they were alien.
Bingham, like other Republicans, charged States with violating the rights of citizens during the congressional debates of 1866. It appears, however, these charges were not over a State violating the rights of its own resident citizens but of citizens of other States (citizens of the the United States). Example, Bingham often charged the State of Oregon with violating the rights of citizens.
The reason was under Sec. 4 of the Oregon Constitution there was the provision that read, “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 …” To Bingham, free blacks were citizens of the United States because they were born to parents who owed no allegiance to any foreign country, and the Oregon Constitution violated article four, section two of the U.S. Constitution that reads: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”
Another example would be accusing the State of Georgia a number of times for violating the rights of citizens by throwing them in the penitentiary for teaching their fellow man (Indians) the gospel. Turns out they were South Carolina missionaries who had ignored Georgia’s law of trespass upon Indian land. These missionaries were set free once they promised not to violate the law anymore and return to South Carolina.
As it may well be apparent by now, the privileges and immunities of United States citizens have no effect on citizens of State within their own State of domicile. In this regard, the ruling in the infamous Slaughterhouse cases in limiting the application of the privileges and immunities to only citizens of the United States and not citizens of a State was correct because the opinion was fully supported by both the legislative history, the text and the understanding of how privileges or immunities of United States citizens under Article IV worked.
Of course, due process and the equal protection of the laws (identical protections to protect against both denial and unequal justice) would tend to address citizens under their own State of residence, but in reality this is a very narrow limitation against denial or unequal justice that isn’t likely for any State to violate. Laws of a State are the result of their citizens demand and there is very little, if any, interest for citizens to deny themselves protections in life, liberty, or property within their State. The addition of due process and the equal protection of those laws of due process served the purpose of extending protection to not just citizens of the United States, but to alien and stranger alike.
Due Process
Incorporation today is judicially accomplished through the “liberty of person” under the due process provision and not through the privileges and immunities of United States citizens, which is odd because no one ever suggested the liberty of person had anything remotely to do with fundamental rights found under any of the first eight amendments. Thomas Jefferson wrote in 1823 of the liberty of person under due process:
There are certain principles in which the constitutions of our several States all agree, and which all cherish as vitally essential to the protection of the life, liberty, property and safety of the citizen. [One is] Freedom of Person, securing every one from imprisonment, or other bodily restraint, but by the laws of the land.
Congress in 1868 passed a bill (“Rights of American Citizens in Foreign States”) highlighting the meaning of this “liberty of person” under “due process of law” as it had always been understood to mean: Freedom from unlawful physical detention or imprisonment. Of course, this “liberty of person” has always been protected by the great writ of habeas corpus, which had nothing to do with anything other than improper physical detention or imprisonment. Bingham had made it clear what was understood by the words “due process of law”:
The gentleman read from the Magna Charta of England, that “no freeman shall be taken or disseized,” &c., “but by the judgment of his peers and the law of the land;” forgetful of the fact that the words “no freeman” were words of limitation, and limited this great charter at the time it was adopted to one half the population of England, and forgetful also that these words of limitation were swept away by the Constitution of the United States, in which it is declared that “no person shall be deprived of life, liberty, or property without due process of law.”24
There was no rational basis in fact for the court in Gitlow v. People of New York (1925) to say, “[f]or present purposes we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Under this deeply flawed assumption, any person could conceivably demand habeas corpus proceedings whenever they feel their freedom of speech is being infringed. Gitlow has provided future courts a blindfold to place over their eyes in order to follow this corrupt assumption over a cliff without ever questioning if there was any factual basis behind the assumption.
There is nothing found under the Fourteenth Amendment’s first section that would extend to Congress under section five any authoritative powers over the States because the first section consists only of “negative limitations” against State authority that requires no positive laws from Congress in order to be observed. In other words, the first section is a law unto itself. Bingham explains what would constitute a deprivation by the States:
There are other negative provisions in the Constitution of the United States; for example, the express negative provision that no State shall pass any law impairing the obligation of contracts. By virtue of your judiciary act, as it has been in force from the foundation of the Government to this day, that limitation upon the power of the States is uniform, and whenever or where ever any State has undertaken by legislative enactment or by constitutional provision, if you please—I care not which—to impair the obligation of contracts, that wrong has, by the operation of your law, been righted.25
This suggests for there to be a violation of the Fourteenth’s first section there would have to first be some act of State authority to change the States Constitution or enact some law that not only would directly deny State protection in the laws of due process to some class of persons, or might administer its laws of due process by statute unequally in State courts (due process is the protection of laws that not only cannot be denied, but also must be equally administered). Bingham said in the year 1871 that the Fourteenth Amendment provides security against “the abuses of State authority,”26 not against private or municipal government acts — or in other words — only those acts that are sanctioned and authorized under authority of the State.
Bingham’s close colleague, Rep. Samuel Shellabarger of Ohio, said the effect of the first section of the Fourteenth Amendment is a “negation upon the power of the States, and that as the fifth section of that amendment only authorizes Congress to enforce the provisions thereof, therefore Congress has no power by direct legislation to secure the privileges and immunities of citizenship, because the provision in each section is in the form of a mere negation.”27 The text of the Fourteenth Amendment certainly supports what Rep. Shellabarger says.
It was never proper in principal for any State to condemn anyone to death, imprison or confiscate their freehold property without the proceedings of the law of the land of the State that protects against arbitrary acts of the State in depriving someone of life, liberty, or property. Citizens of a State do not send representatives to their Capitals to pass laws to deprive them of these laws of protection, but some States were known to withhold them against black citizens of other States (Example: Oregon). However, what could be done if a State did indeed amended their constitution or passed some statute that did ignore the citizenship of people of color and withheld the protection (or unequal protection) of the laws?
Nothing could had been done until passage of the Fourteenth Amendment.
Saying a State deprives someone of the States laws of due process because some might feel a law is unfair or harsh, is not the same as a State withholding its laws of protection by direct authority of the State, which is the only concern of the first section.
For those States who did not practice arbitrary denial of the laws of protection before condemning anyone in life, liberty and property, the Fourteenth Amendment had no effect. Rep. Bingham confirms this when he told Rep. Robert Hale of New York that the proposed Fourteenth Amendment “under no possible interpretation can it ever be made to operate in the State of New York while she occupies her proud present position.” Additionally he says, it would apply only to States “that have in their constitutions and laws today provisions in direct violation of every principle of our Constitution,” which “applies unquestionably to the State of Oregon.”28
As already pointed out, the Oregon Constitution discriminated against black citizens of the United States by declaring they shall never “come, reside or be, within this State,” or hold any real estate, make or enforce contracts, etc. This isn’t to say a State cannot refuse anyone from their limits because Bingham had agreed in the past it was permissible under the Constitution for any State to say convicted felons, vagabonds or aliens shall not come within State limits. Indeed, there was nothing shocking about laws preventing foreigners from owning real estate or conducting business within State limits.
How do we know all of the above is the correct reading of the Fourteenth Amendment? We know because Bingham said at least half-dozen times in speeches before and outside of the House of Representatives that the Fourteenth Amendment takes away no right that ever belonged to the States or their citizens. Some examples:
“It (Fourteenth Amendment) takes from no State any right which hitherto pertained to the several States of the Union, but it imposes a limitation upon the States to correct their abuses of power, which hitherto did not exist within the letter of your Constitution.”29
“The adoption of this proposed [fourteenth] amendment will take from the States no rights that belong to the the States.”30
“Do gentlemen say that by so legislating (enforcing the Fourteenth Amendment) we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existence.”31
“No right reserved by the Constitution to the States should be impaired …”32
“I repel the suggestion made here in the heat of debate, that the committee or any of its members who favor this proposition seek in any form to mar the Constitution of the country, or take away from any State the right that belongs to it, or from any citizen of any State any right that belongs to him under that Constitution.”33
“[T]he Proposed amendment does not impose upon any State of the Union, or any citizen of the Union, any obligation which is not now enjoined upon them by the very letter of the Constitution.”34
Federal interference with how citizens govern themselves in terms of their own laws and constitutions would be a denial of a right citizens of a State have long reserved for themselves. Therefore, Bingham is clearly addressing a States obligation towards non-discrimination of fundamental rights of citizenship between citizens of other States under Article IV, Section II.
Conclusion
The Fourteenth Amendment was, in principal, a desirable addition to the Constitution of the United States to protect newly emancipated freedmen after the war who were returning to former rebel States governed by pro-confederate men approved by President Johnson while taking away nothing from the States under the original Constitution. Without the Fourteenth Amendment there was nothing to stop reorganized rebel States from ignoring citizenship of newly emancipated freedmen by withholding the protections of the laws of due process, to make and enforce contracts, prevent permanent domicile, etc.
However, it has been subjected to judicial abuse through an assumption that has gone very wrong by the court pretending the “liberty of person” secures fundamental rights, something the word “liberty” under due process was never understood to mean, or modified to mean by the framers. This has resulted in cracks and holes being formed in that division of sovereignty between State and Federal Governments, resulting in laws of cities, counties, police and schools coming within the purview of federal courts.
The Fourteenth Amendment incorporated what it says it incorporated, nothing more. It did not replace the bill of rights of State citizens with the Federal bill of rights. If it really had incorporated the entire first eight amendments against a State and its own citizens then there was no purpose for Congress to attempt to amend the Constitution with the Establishment Clause of the First Amendment in 1875 to apply against States. This attempt was not in response to the Slaughterhouse cases, but because of a request from President Grant and the understanding among members of Congress the privileges or immunities of citizens of the United States had nothing to do with citizens of a State or any of the first eight amendments.
In 1869 after the Fourteenth Amendment had become officially adopted, Chief Justice Chase denied a writ of error in Twitchell v. Commonwealth35 on the grounds the 5th and 6th amendments did not apply to States, only the federal government. What made this case very significant was the fact Twitchell’s lawyer, William Wheeler Hubbell, had advocated in 1863 for a constitutional amendment to overrule Barron and to make the Bill of Rights binding on the States. The fact he did not argue the Fourteenth Amendment did just that speaks volumes.
The truth of the matter is, loyal States of the Union felt they were simply giving “enduring effect” of the Civil Rights Bill of 1866 when ratifying the Fourteenth Amendment: “In its special application to the condition of the insurgent States, its adoption by Congress was designed to give certain and enduring effect to the provisions of the Act commonly called the Civil Rights Bill.” 36
Senator John Sherman of Ohio, a Radical, said the Fourteenth Amendment’s first section “was an embodiment of the Civil Rights Bill.”37
During the debates for the adoption of the Fourteenth Amendment during the Michigan convention in July of 1867, P.D. Warner from Oakland read the Fourteenth’s first section and said, “I think that is substantially the language of the Civil Rights Bill.” The Civil Rights Bill of 1866 protected against citizenship discrimination between different classes of citizens (naturalized citizens, other State citizens) but did not prevent a State from discriminating between its own citizens.
Of the forty-seven sections of civil rights legislation passed by Radical Republicans, forty-two had either been repealed directly, or declared invalid by the Court. This included enforcement acts of the Fourteenth Amendment. Radicals, however, suffered an even worst fate than their Reconstruction Acts when they were voted out of power en masse beginning in 1874.
If the court wishes to continue with their incorporation nonsense they simply should insist on a constitutional amendment that puts everyone under the control of a single central government. Maybe then they could stop pretending to be enforcing constitutional law that never existed or, has no basis to exist.
Endnotes
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.
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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’
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 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.
]]> One of the first acts of the First Congress in 1789 was to require all federal judges to equally administer those laws that protect all in their life, liberty and property by solemnly affirming to “administer justice without respect to persons, and do equal right to the poor and to the rich.”While all State constitutions generally guaranteed due process of the laws, this guarantee could be denied or unequally administered to persons of color, lead to President Andrew Johnson in his December 1865 message to Congress to declare there should be “equal and exact justice to all men.” This became the battle cry behind Rep. Bingham’s quest to amend the Constitution to guarantee “equal and exact justice to all men” before courts of justice.
The Fourteenth Amendment’s Equal Protection Clause was an important addition for giving effect to the Equal Protection of the Laws under the Civil Rights Bill of 1866, which Bingham had said he intended to codify under the Fourteenth Amendment. With the addition of the Equal Protection Clause under the Fourteenth Amendment, the following protections of law under the 1866 Civil Rights Bill was given full effect: “[F]ull and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
This is why Senator Howard introduced the Equal Protection of the Laws this way before the Senate:
It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?
Rep. Thaddeus Stevens (Co-Chairman of the Reconstruction Committee) introduced the words in the House this way:
Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man. … Now different degrees of punishment are inflicted, not on the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men.
Howard and Stevens clearly are not speaking of social equality, but rather equality of justice in due process. On December 20, 1870, Bingham removed all doubt to this understanding in a speech before the House on the meaning of the Equal Protection of the Laws:
What did this great people proclaim by the adoption of that amendment, with one unbroken voice, from Maine to California and to Oregon? It was this: that neither the Carolinas, nor Ohio, nor New York, nor Pennsylvania, nor any other State in this Union, shall deny to the chiefest offender hitherto against the rights of this people the equal protection of the laws, and especially of the Constitution and of all laws made in pursuance of it; equal protection with the first man in the Republic. In other words, it places Davis and Toombs and Slidell and Benjamin, who were of the architects of that atrocious revolt (civil war), under like protection of the law with Grant and Sherman and Sheridan, wherever they might be in the Republic, thereby proclaiming them citizens of the United States, and as such by the people’s decree, which no man shall question, entitled to the equal protection of the laws, and that no State should deny to any of them the equal protection of the laws. … They are thereby assured in the general rights of citizens of the United States, and enabled in everyplace proudly and truthfully to exclaim, “I, too, though the greatest of offenders against its laws, am a citizen of the Republic.”
In a December 20, 1870 speech, Bingham points out no State may deny the equal protection “not of its laws, but of the laws,” i.e., laws of due process. If these words really meant, “any law,” then it would have been a total waste of time to adopt the Fifteenth Amendment because any law that denied suffrage because of race would have easily been found inherently unequal.
Three years after the adoption of the Fourteenth Amendment, Bingham declares what laws deserves equal protection: “[N]o State should deny to any such person any of the rights which it guaranties to all men.” What laws do States guarantee to all men post Fourteenth Amendment? The laws of due process, of course.
And finally, it is important to note that only courts administer the laws of due process in the course of proceedings of justice who must recognize equality of all persons before them and not cities, counties, jails, police departments, or even schools. No State would had ratified an Amendment to the Constitution that would have required direct social equality in every law.
]]>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.
]]> Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?It is very doubtful the framers adopted the doctrine found under the old English doctrine of “natural-born subject.” The British doctrine allowed for double allegiances, something the founders considered improper and dangerous. The American naturalization process required all males to twice renounce all allegiances with other governments and pledge their allegiance to this one before finally becoming a citizen.
Framer Rufus King said allegiance to the United States depended on whether a person is a “member of the body politic.” King says no nation should adopt or naturalize a person of another society without the consent of that person. The reason? Because “he ought not silently to be embarrassed with a double allegiance.” House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a ‘double allegiance.’ By our law a citizen is bound to be ‘true and faithful’ alone to our government.”
Under the old English common law doctrine of natural-born subject, birth itself was an act of naturalization that required no prior consent or demanded allegiance to the nation in advance. Furthermore, birth was viewed as enjoining a “perpetual allegiance” upon all that could never be severed or altered by any change of time or act of anyone. England’s “perpetual allegiance” due from birth was extremely unpopular in this country; often referred to as absurd barbarism, or simply perpetual nonsense. America went to war with England over the doctrine behind “natural-born subject” in June of 1812.
Because Britain considered all who were born within the dominions of the crown to be its natural-born subjects even after becoming naturalized citizens of the United States, led to British vessels blockading American ports. Under the British blockade, every American ship entering or leaving was boarded by soldiers in search of British born subjects. At least 6,000 American citizens who were found to be British natural-born subjects were pressed into military service on behalf of the British Empire, and thus, the reason we went to war.
Fourteenth Amendment
Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States - a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else.”
This national rule prevents us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one allegiance.
The primary author of the citizenship clause, Sen. Jacob M. Howard, said the “word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
United States Attorney General, George Williams, whom was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction” under the Fourteenth Amendment “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” He added, “Political and military rights and duties do not pertain to anyone else.”
Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes a great deal of sense for the time because there was a great deal of controversy over conflicts arising from double allegiances.
Just as a person cannot be naturalized and subject to the jurisdiction of the United States while owing allegiance to another nation neither can anyone born. Why would “subject to the jurisdiction thereof” be any different with persons born since this jurisdiction equally applies to persons born or naturalized? If allegiance simply meant location on American soil, then what was the purpose of having aliens renounce their allegiance to other countries and pledge their allegiance to this one for purposes of becoming naturalized? Perhaps because locality itself was never enough to confer allegiance and citizenship?
It is worth noting that wives and children were never naturalized separately but became naturalized through the father/husband. Because “subject to the jurisdiction thereof” requires not owing allegiance to any other nation, and because the nation does not recognize double allegiances that can be created at common law, narrows the possibilities to what “natural-born citizen” can mean.
Natural-Born Citizen Defined
One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example), they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature - laws the founders recognized and embraced.
Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. This law of nature is also recognized by law of nations. Sen. Howard said the citizenship clause under the Fourteenth Amendment was by virtue of “natural law and national law.”
The advantages of Natural Law is competing allegiances between nations are avoided, or at least with those nations whose custom is to not make citizens of other countries citizens without their consent. Any alternations or conflicts due to a child’s natural citizenship are strictly a creature of local municipal law. In the year 1866, the United States for the first time adopted a local municipal law under Sec. 1992 of U.S. Revised Statutes that read: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Rep. John A. Bingham commenting on Section 1992 said it means “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))
Bingham had asserted the same thing in 1862 as well:
Does the gentleman mean that any person, born within the limits of the Republic, and who has offended against no law, can rightfully be exiled from any State or from any rood of the Republic? Does the gentleman undertake to say that here, in the face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not the subjects of any other sovereignty, are native-born citizens, whether they be black or white? There is not a textbook referred to in any court which does not recognise the principle that I assert. (Cong. Globe, 37th, 2nd Sess., 407 (1862))
Bingham subscribed to the same view as most everyone in Congress at the time that in order to be born a citizen of the United States one must be born within the allegiance of the Nation. Bingham had explained years earlier that to be born within the allegiance of the United States the parents, or more precisely, the father, must not owe allegiance to some other foreign sovereignty (remember the U.S. abandoned England’s “natural allegiance” doctrine). This of course, explains why emphasis of not owing allegiance to anyone else was the affect of being subject to the jurisdiction of the United States.
It should be noted this allegiance due under England’s common law and American law are of two different species. Under the common law one owed a personal allegiance to the King as an individual upon birth. Under the American system there was no individual ruler to owe a personal allegiance to.
The constitutional requirement for the President of the United States to be a natural-born citizen had one purpose according to St. George Tucker:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. …The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.
Charles Pinckney in 1800 said the presidential eligibility clause was designed “to insure … attachment to the country.” President Washington warned a “passionate attachment of one nation for another, produces a variety of evils,” and goes on to say:
Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill- will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.
What better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child to return in later life to reside in this country bringing with him foreign influences and intrigues, and thus, making such a citizen indistinguishable from a naturalized citizen.
Therefore, we can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. A person who had been born under a double allegiance cannot be said to be a natural-born citizen of the United States because such status is not recognized (only in fiction of law). A child born to an American mother and alien father might be said to be a citizen of the United States by some affirmative act of law (if there was one) but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.
UPDATE:
I came across this interesting speech by the Speaker of the House of Representatives, Langdon Cheves, in February of 1814:
The children have a natural attachment to the society in which they are born: being obliged to acknowledge the protection it has granted to their fathers, they are obliged to it in a great measure for their birth and education. … We have just observed that they have a right to enter into the society of which their fathers were members. But every man born free, the son of a citizen, arrived at years of discretion, may examine whether it be convenient for him to join in the society for which he was destined by his birth.
Cheves is obviously drawing on the works of Emmerich Vattel, Law of Nations. Not something you would expect from the Speaker of the House of a Nation that supposedly adopted England’s common law.
UPDATE II:
Rep. A. Smyth (VA), House of Representatives, December 1820:
When we apply the term “citizens” to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him.
Related:
]]>Why does the State of Georgia need approval by the Justice Department? The answer, according to the Department of Justice, is because Georgia is one of several states with a history of discriminatory voting practices. Well guess what; all States North or South can be said to have had a history of “discriminatory voting practices.” Why are Georgia and several other southern States being singled out - and more importantly - under what authority delegated to Congress to do so?
In a June 24, 1870 speech, Fourteenth Amendment framer, John Bingham, said, “I deny that you can rightfully impose upon Georgia any conditions whatever that you cannot impose upon Ohio and New York. The States are equal.” Later he added, “When Georgia’s representation is officially restored by the very letter of your reconstruction acts, all colorable excuses for imposing any civil or political conditions upon her shall no longer exist.”
Speaking of another former rebel State, Virginia, Bingham scolds fellow Radical Republicans over an attempt to impose unequal conditions upon that State on January 14, 1870:
You, the party of liberty and justice, attempt to fasten fetters upon one State which you dare not impose and have no authority to impose upon other States; you attempt to provide that a State admitted to representation in the Congress of the United States shall be governed not by those elected by its citizens under their own laws, but by such officials as may be appointed by act of Congress! It is your right and your duty to govern Virginia until she is reorganized under a republican form of government satisfactory to the Congress of the United States, with just such officials as you deem right and proper; but your right to do so passes away the moment you restore the State to its representation in the Congress of the United States and approve its reorganization under your acts of reconstruction.
Senator Jacob M. Howard (member of the Committee of Reconstruction) like most members of the Senate had no illusions over whether the exclusive authority to regulate “the qualifications of electors, both in the choice of State officers and in the election of Representatives to Congress and electors of President and Vice President” belonged with the States. The “manner” spoken of under the U.S. Constitution means determining the outcome of an election by either voice or ballot; having absolutely nothing to do with qualifications of voters to vote. Mr. Howard bluntly illustrates where the exclusive right to determine voter qualifications resides:
As far as a State Legislature or a State convention should trench upon the rule expressed in the Fifteenth Amendment relating to race, color, and previous condition of servitude, and to those subjects only, its legislation would be void, and Congress could interfere under the second clause of the amendment to correct that legislation. To that, I agree; but suppose the State affixes as a qualification of a voter the necessity of being the owner of, say, two hundred dollars’ worth of property. Suppose the State should alter its Constitution so as to require from the colored man the possession in his own right of two hundred dollars’ worth of property, which is the old rule in the State of New York, does the Senator from Nevada hold it to be in the power of Congress to alter in any way by congressional enactment that qualification of the State?
No, sir. Why not? Because the qualification does not relate to color, race, or slavery, but only to property, the subjects being as distinct from each other as the sun is from the moon. No, sir; Congress in such a case as that would have no authority whatever to interfere to correct the evil… .
The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them; and that will be the case until the Fifteenth Amendment shall have been adopted, that amendment relating only to color, race, and slavery, not to property, not to educational qualifications, or anything except these three specific subjects.
Speaking of the Fifteenth Amendment before the House in May of 1870, Rep. Bingham said, “the general power of the States to “regulate,” in the language of the Constitution, the election of Representatives to Congress is conceded by all who have ever read that instrument.” In further driving this message home, he quotes a year later Alexander Hamilton in Federalist No. 59:
Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments?
If the people of the States had ever concluded their exclusive power over voter regulations (State or Federal) was best entrusted with Congress then there would have been lengthy public debates and a constitutional amendment to document this decision of surrender. Because there is no such record of such debates or any documented amendment to this affect, leaves neither the courts nor Congress any pretense to pretend that they have - unless of course this nation has long ceased to be a democracy.
]]>Before discussing the meaning of the words “freedom of speech, or of the press” as established under early American law, we should first understand why these words are found under the United States Constitution. Mr. Madison explained in 1799, “Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt, 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.” Alexander Hamilton argues in Federalist No. 84 why such an amendment does not belong under the federal constitution:
Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. 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 power to prescribe proper regulations concerning it, was intended to be vested in the national government.
As one might suppose from the above, Congress would be just as powerless in abridging the freedom of speech or the press without the First Amendment; and the First Amendment served only as a declaration that no such power had been vested with Congress over speech or the press.
]]> The biggest modern error in understanding freedom of speech comes from viewing it as a right to be heard (or seen) in every imaginable situation. Such was never the purpose of the constitutional freedom.Freedom of speech and of the press served one purpose in America: To remove the fear of the common law doctrine of seditious libel so citizens could freely speak or publish their grievances or concerns regarding public affairs or conduct of public officials. In England, it could be dangerous to criticize government, or peaceably assemble or petition government for redress of grievances because anything one might speak or write (or draw) could end up being used against them under the charge of seditious libel where truth would be of no defense.
In 1808 for example, the British newspaper publisher, John Drakard, was indicted over an article questioning military flogging, and the jury had been instructed that the military establishment had been injured and “it was not to be permitted to any man to make the people dissatisfied with the Government under which he lives.” Henry VIII once made it a high treason crime to suggest his marriage to Anne of Cleves was valid even though it was the truth.
How can we know for sure the freedom of speech or of the press means freedom from seditious libel? All early American laws over speech and the press dealt solely with breaches of the peace or public morality (blasphemy, obscenity, profanity, etc.), but never restraints against public discussion of public measures, grievances or criticism of public officials where truth was of no defense. In other words, the common law doctrine of seditious libel was absent from American laws.
Benjamin Franklin, writing in The Pennsylvania Gazette, April 8, 1736, wrote of the American doctrine behind freedom of speech and of the press:
Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.
James Madison in 1799 wrote, “In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law.”
The Democratic-Republican caucus included the following in their 1800 platform: “An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states. … Freedom of speech and the press; and opposition, therefore, to all violations of the Constitution, to silence, by force, and not by reason, the complaints or criticisms, just or unjust, of our citizens against the conduct of their public agents.”
Generally speaking, all State constitutions or laws stipulated along the lines that the “press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity,” and “in prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may he given in evidence.” Other common expression of the freedom found were, “No law shall ever be passed to restrain or abridge the liberty of speech or of the press; but every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of such right.”
If freedom of speech or of the press alone was understood to mean the liberty to freely write or speak whatever one wishes then there can be no purpose for the additional declaration that says persons may also “freely speak, write, and publish his sentiments on all subjects.” It is too clear freedom of speech and of the press had specific meaning and that meaning could only have been freedom from seditious libel. Thomas Cooley hit the ball out of park when he wrote of the freedom found under American constitutions:
The mere exemption from previous restraints (Blackstonian theory) cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications, … Their purpose [of the free-speech clauses] has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. … The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.
It should be apparent now how States could prohibit “books or other publications of a sectarian infidel or immoral character” from being “distributed in any common school,” or prohibit public discussion of acts of sexual gratification, or even solicitation for donations on public property without permit. The great advantage of adhering to original meaning is that it does not act to force courts to invent “exceptions” under the constitution to either sanction a law or rule the law unconstitutional.
The liberty of speech or of the press in this country can be said to have been born in the year 1735 in the colony of New York. The story begins on November 5, 1733 when John Peter Zenger published his first issue of the Weekly Journal that included this criticism:
[T]he sheriff was deaf to all that could be alleged on that [the Quaker] side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty’s Council and counsellor-at-law, and by one William Smith, counsellor-at-law, that such a procedure [disqualifying the Quakers for affirming rather than swearing] was contrary to law and a violent attempt upon the liberties of the people, he still persisted in refusing the said Quakers to vote….
Governor Crosby wanted Zenger charged with seditious libel but found it difficult to obtain a grand jury indictment against him. To get around this obstacle Crosby instructed his attorney general to file a formal accusation of a criminal offense before two justices. This in return led to a bench warrant and arrest of Zenger.
The trial opened on August 4, 1735 on the main floor of New York’s City Hall with Attorney General Bradley’s reading of the information filed against Zenger. Bradley told jurors that Zenger, “being a seditious person and a frequent printer and publisher of false news and seditious libels” had “wickedly and maliciously” devised to “traduce, scandalize, and vilify” Governor Cosby and his ministers. Bradley said that “Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled.” (Linder, The Trial of John Peter Zenger (2001))
Additionally, Bradley explained truth was of no defense for seditious libel under state law while Zenger’s attorney argued the law should not be interpreted to prohibit “the just complaints of a number of men who suffer under a bad administration.” The judge instructed the jury the “law is clear that you cannot justify a libel,” and the “jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”
With law and precedent squarely against him, the jury nonetheless found Zenger not guilty and the beginning of public opposition to trials of seditious libel had been established. Gouverneur Morris (served on the committee of five responsible for the final drafting of the Constitution) would write a half-century later: “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.” It is this liberty we find under the First Amendment and State constitutions today.
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