The Federalist Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This may be old news by now, but I wanted to add a few remarks regarding the Association of Community Organizations (ACORN) argument that a

House resolution amounted to a “bill of attainder” that resulted in a cut off federal grant money to the group. Judge Nina Gershon agreed, writing, “They [ACORN] have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt.”

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

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

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

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

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

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

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

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

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

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 lead to a major point of constitutional law to be completely ignored. 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 the needed sovereignty to tell corporations or persons how to spend their money within the several States, and thus, lacked 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 thereby authorizing how money may be spent in federal electioneering. However, the “manner” the Constitution speaks of is restricted only to the manner of how votes shall be casted, e.g., paper ballot or viva voce and not the regulation of any pre-election activity (see here).

There is no Constitutional provision that prevents States from imposing restrictions on corporative spending on any candidate within their limits no more than there was was any question of the exclusive authority of States to impose voter qualifications in both local and Federal elections (again, see here). A State could enact its own McCain-Feingold Act and it would be free of federal constitutional objections.

Additionally, I like to add that it is silly to argue how a corporation might be considered a “person.” Whatever rights a corporation enjoys is dependent upon the rights granted by the law they are created under such as the right to sue and to be sued. Corporations do not vote or sit on juries. Corporations are formed as business entities for purposes of limited liability and not for purposes of taking on a life of an individual person.

A restriction against a corporate entity to do a certain thing is no restriction upon individuals of the corporation. A law that says a corporation cannot vote for a candidate running for public office would not prevent officers or employees from casting a ballot themselves.

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 but the issue of lack of proper constitutional authority for Congress to regulate by law how much money may be spent and by who during an election. Such an authority as with voter qualifications rests with the States.

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.

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

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

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

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

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

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

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

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

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’

Equal Protection of the Laws simply means all persons shall be tried and punished equally before courts of law as it did under Common Law. The clause has no application outside of criminal law which explains why the Fifteenth and Nineteenth Amendments were needed.

Justice Scalia speaking of the Fourteenth Amendments Equal Protection Clause (EPC) to students at UC Hastings College of the Law in September 2010 remarked, “nobody thought it was directed against sex discrimination.” Scalia could have added nobody thought it was directed at segregation, elections, marriage or local civil law, either.

The phrase “Equal Protection of the Laws” is another way of saying “equal and exact justice” or, “under the protection of law.” Long before the Fourteenth Amendment came into existence the phrase “Equal Protection of the Laws” was used in England as synonymous with “impartial administration of justice.” Bills of Pains and Penalties were objected on the grounds it placed subjects outside of the protection of laws of Due Process in court proceedings.

First thing one must understand from the words of the clause is what it does not say, such as equal rights, equal treatment or equal benefits, etc. The clause speaks only of laws of “protection.”

These laws of “protection” obviously must be the laws of Due Process since these are the only laws of protection of person and property that has been known to law for centuries. This is confirmed by the clauses primary author, Rep. John Bingham of Ohio, explaining how the Magna Charta “gave the protection of the laws only to freemen” while the Fifth Amendment’s Due Process clause used “more comprehensive words, ‘no person'” shall be deprived of life, liberty or property without Due Process of law, and thus, “the people by their Constitution declared the equality of all men, and by the express limitation forbade the Government of the United States from making any discrimination.”

This Equal Protection applied to citizens of a State within the limits of another State (but not their own State) because Due Process was a privilege and immunity of citizenship that followed citizens outside of their State under Section II of Article IV, and hence, already existed as a limitation against State action: “No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws,” explained Rep. Bingham. The problem at the time of course was not every State considered persons of color born in the United States to be a citizen which in return meant they could deny them the protections of law.

To remove any doubt, Rep. Bingham in his March 31, 1871, Congressional Globe remarks explicitly stated the EPC was only to secure equality in Due Process:

Surely the gentleman (Farnsworth) then supposed the words “equal protection of the laws” were more than a glittering generality; that they were to be enforced to the extent of securing all guarantees of life, liberty, and property as provided by the supreme law of the land, the Constitution of the United States.

A year earlier Rep. Bingham stressed “no State can deny the equal protection, not of its laws, but of the laws,” i.e., laws of Due Process protection.

The EPC was explained in the House of Representatives by Rep. Thaddeus Stevens (Co-Chairman of the Reconstruction Committee) as securing only Due Process in the administration of justice in State courts:

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.

Senator Jacob M. Howard explained the EPC in the same terms 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?

Apparently the Senate later considered “head taxes” that some states were unequally levying against immigrants depending on their nationality to be a penalty in law requiring the tax to be “equal” among all immigrants. This might have been a real stretch considering it was at war with the legislative debates but appears to be the only questionable assertion of its application by those who were directly responsible for its adoption.

Probably nobody explained the EPC better than Governor Oliver P. Morton of Indiana in July of 1866:

By this it is intended to throw the equal protection of the law around every person who may be within the jurisdiction of any State, whether citizen or alien, and without regard to condition or residence, not only as to life and liberty, but also as to property. 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 (be a witness, give evidence, enforce contracts, etc.) for the vindication of their civil rights, and hence the adoption of this provision.

It’s no wonder the Court in the 1873 slaughterhouse cases observed the only way for an Equal Protection case to come before the court was by “State oppression, by denial of equal justice in its courts.” History of the words proves the court correct here.

Some argue it would had been absurd for the insertion of two clauses securing the same guarantees of Due Process. This line of argument misses the point of how the two clauses operate: Removing the option of Southern States arguing they are not denying anyone Due Process by unequally applying it to different racial classes. In other words, the Fourteenth Amendment secures Due Process from both outright denial as well as from being unequally administered in State courts to different racial classes.

And finally, it is important to remember the only controversy sought to be addressed by inclusion of the Equal Protection Clause was how former rebel States under the administration of President Andrew Johnson were administering criminal law (black codes) with different degrees of punishments depending on color of the accused along with different trial rules (prohibition of black suspects to give evidence, be a witness, etc.) and not general public law. Blacks were also prohibited from seeking justice in courts to enforce contracts or protect real property ownership.

Mr. Bingham argued again in 1875 against the new Civil Rights Act that the clause could not be used as an instrument to interfere with public laws of the states outside of the courtroom:

I know of no power lodged in the central government to interfere in the domestic affairs of these States or their laws in absence of some positive organic act of a State that places one class of persons at an disadvantageous over another in the protection of life, liberty or property before their courts of justice for an offence made a crime. The fourteenth of amendments most certainly does not confer this power.

He was as absolutely correct then as he is now.

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

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

What Natural-Born Citizen Could Not Mean

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

Unlikely in the strict sense because we know one can be native born and yet not a native born citizen of this country. There were even disputes whether anyone born within the District of Columbia or in the territories were born citizens of the United States (they were generally referred to as “inhabitants” instead.) National Government could make no “territorial allegiance” demands within the several States because as Madison explained it, the “powers delegated by the proposed Constitution to the Federal Government, are few and defined,” and those “which are to remain in the State Governments are numerous and indefinite.”

Jurisdiction over citizenship via birth within the several States was simply an exercise of a States “numerous and indefinite” powers. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State. James Madison said citizenship rules “have obtained in some of the States,” and “if such a law existed in South Carolina, it might have prevented this question from ever coming before us” (question of Rep. William Smith being a citizen or not).

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 to the King, however natural citizenship via birth could require being born to a British subject depending on the era in question. After independence this perpetual allegiance to the crown was abandoned for the principle of expatriation.

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 for which could never be thrown off. Under the American system there was no individual ruler to owe a perpetual personal allegiance to.

Furthermore, unlike the British practice, States required everyone including aliens to take an oath of allegiance to the State as a condition of residency. Children born to these residents were considered born into the allegiance of the State. In addition to this, States also had specific laws that banned citizenship to alien born who were not resident aliens who had declared their allegiance. New York for example, responded through enactment of a law to the ruling in Lynch v. Clarke (1844) that had used common law rules of citizenship by birth to specifically exclude children born to “transient aliens, and of alien public ministers and consuls, etc.”

In other words, unlike under the common law, birth by itself did not create allegiance to anyone due merely to locality.

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 allegiance to the King from birth. The British doctrine could create 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 sole allegiance to this one before finally becoming a citizen.

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.” It wouldn’t be practical for the United States to claim a child as a citizen when the child’s natural country of origin equally claims him/her because doing so could leave the child with two competing legal obligations, e.g., military duty.

Under the old English common law, birth was viewed as enjoining a “perpetual allegiance” upon all to the King 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,” which is vastly different from local jurisdiction due to physical location alone.

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 claim of 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.”

This remark by Howard puts his earlier citizenship clause remark into proper context: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

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 arguing the physical presence of being subject to laws silly because being subject to another countries laws while visiting makes no change to an aliens allegiance to their native country.

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 not claimed, or at least with those nations whose custom is to not make citizens of other countries citizens without their consent. Under Sec. 1992 of U.S. Revised Statutes (1866) made clear other nation’s citizens would not be claimed: “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 of course was paraphrasing Vattel whom often used the plural word “parents” but made it clear it was the father alone for whom the child inherits his/her citizenship from (suggesting a child could be born out of wedlock wasn’t politically correct). 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. As the court has consistently ruled without controversy, change of location never changes or alters a persons allegiance to their country of origin except by acting in accordance to written law in throwing off their previous allegiance and consenting to a new one.

This of course, explains why emphasis of not owing allegiance to anyone else was the effect of being subject to the jurisdiction of the United States under the Fourteenth Amendment.

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.

Conclusion

Extending citizenship to non-citizens through birth based solely upon locality is nothing more than mere municipal law that has no extra-territorial effect as proven from the English practice of it. On the other hand, citizenship by descent through the father is natural law and is recognized by all nations (what nation doesn’t recognize citizenship of children born wherever to their own citizens?). Thus, a natural-born citizen is one whose citizenship is recognized by law of nations rather than mere local recognition.

Chairman of the House Judiciary Committee, James F. Wilson of Iowa, confirmed this in 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”*

When a child inherits the citizenship of their father, they become a natural-born citizen of the nation their father belongs regardless of where they might be born. It should be pointed out that citizenship through descent of the father was recognized by U.S. Naturalization law whereby children became citizens themselves as soon as their father had become a naturalized citizen, or were born in another country to a citizen father.

Yes, birth is prima facie evidence of citizenship, but only the citizenship of the nation the father is a member.

* Temporary sojourners like transient aliens were a description applied to aliens other than resident aliens. The difference being temporary aliens were here for temporary purposes, such as work, travel, visitation or school, who had no desire to become citizens or was prevented from becoming citizens by law. Resident aliens were those who desired to become citizens and had renounced their prior allegiances and had taken the legal steps to become citizens or reside within some state per state law.

UPDATE: In regards to questions about the citizenship of the mother: Mothers citizenship rarely ever influenced the citizenship of their children except in certain situations such as the father dying before the child was born or when the identity of the father was unknown.

Related: What “Subject to the Jurisdiction Thereof” Really Means

Related: Nothing Unusual about States Denying Citizenship to Alien Born Children

Related: Was U.S. vs. Wong Kim Ark Wrongly Decided?

Voting rights groups in Georgia were successful in stopping State election officials from using Social Security numbers and driver’s license data to check voters’ immigration status. Advocacy groups had told a federal three-judge panel that using the data to verify whether voters are citizens amounts to a “systematic purging” of voting rolls that must be approved by the Justice Department.

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.