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Author Topic: 14th amendment incorporation  (Read 4890 times)
Jim Valvano
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« on: November 19, 2005, 03:35:21 pm »
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Emsworth and A18 believe that the 14th amendment incorporates the Bill of Rights.

Based on the scant extant original intent material available I would have to agree with them. However, the actual text of the amendment seems to suggest otherwise: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law" Since the bolded phrase appears in the 5th amendment, why would it need to be repeated here unless incorporation wasn't the intent of the article?
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« Reply #1 on: November 19, 2005, 05:02:22 pm »
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A law can not violate the core meaning of due process.
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Emsworth
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« Reply #2 on: November 19, 2005, 07:02:12 pm »
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The answer follows from the text of the privileges or immunities clause: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

The term "due process of law" is synonymous with "by the law of the land." Is not possible for a state to "make or enforce any law that denies due process of law"; this would be a contradiction in terms. Thus, due process had to be spelt out separately.
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A18
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« Reply #3 on: November 19, 2005, 09:13:25 pm »
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The Establishment Clause does not contain a "right" of citizens, and thus may not be incorporated by the Privileges or Immunities Clause.
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Emsworth
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« Reply #4 on: November 20, 2005, 07:33:57 am »
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The Establishment Clause does not contain a "right" of citizens, and thus may not be incorporated by the Privileges or Immunities Clause.
Citizens have an "immunity" from establishment of religion.
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A18
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« Reply #5 on: November 20, 2005, 07:40:35 am »
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The problem is that the Establishment Clause protected state establishments of religion. By "incorporating" the right, you are effectively obliterating it.
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Emsworth
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« Reply #6 on: November 20, 2005, 08:34:21 am »
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The problem is that the Establishment Clause protected state establishments of religion. By "incorporating" the right, you are effectively obliterating it.
No doubt, the Framers originally intended to protect state establishments. But the original purpose of the establishment clause is irrelevant.

The actual meaning of the establishment clause was not that state establishments of religion were protected. It was that citizens were guaranteed an immunity from establishments of religion,  albeit only at the federal level. The Fourteenth Amendment extended such an immunity to the state level as well.

The original understanding of the Fourteenth Amendment seems to have been that the entirety of the first eight amendments were incorporated, not just certain clauses. Thus, when Congress was debating a bill to enforce the Fourteenth Amendment in 1871, Representative John Bingham (author of the privileges or immunities clause) said:

"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:

"Article One: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [...]

"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' are an express prohibition upon every State of the Union."


Quite clearly, Bingham understood the privileges or immunities clause as incorporating the whole of the first eight amendments. A similar understanding was expressed when Congress considered the Civil Rights Bill in 1874. Senator Thomas Norwood (a reactionary opponent of Reconstruction) said:

"The following are most, if not all, the privileges and immunities of citizens of the United States: [...] immunity [...] from the establishment of any religion."

There is no indication that the immunity from religious establishments was not incorporated by the Fourteenth Amendment.
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A18
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« Reply #7 on: November 20, 2005, 12:38:26 pm »
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What did you expect him to do? Edit out the first clause of the Bill of Rights? Note that this is also a post-Ratification speech by one man, and I believe it was part of a debate over the Ku Klux Klan Act.

In searching the appendix to Black's famous 1947 dissent in Adamson v. California, I could not find a single reference to the Establishment Clause.

Note that I take no position as to whether or not the Establishment Clause applies to the states. I actually lean towards incorporation. But I think there is reasonable doubt. In order to come to a conclusion, I would want to look at more evidence than a few isolated speeches, which tell us more about a few men than the consensus reading of the very ambiguous Privileges or Immunities Clause, that bewildered the Fourteenth Amendment's opponents and continue to confuse scholars today.
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Jim Valvano
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« Reply #8 on: November 20, 2005, 05:26:00 pm »
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Thanks for the information. I must say that the proposition that the establishment clause might not be incorporated is an interesting one indeed.
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« Reply #9 on: November 22, 2005, 02:11:14 am »
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After reading dozens of more articles on the subject, I'm starting to lean towards the view that the Privileges or Immunities Clause was an anti-discrimination provision, modeled off of that of Article IV.

Article IV did not create fundamental rights, but simply required a state to grant to citizens of other states those fundamental rights that it afforded its own. The citizen of another state was entitled to the same treatment as a native citizen.

Proponents of the Fourteenth Amendment often characterized it as nothing more than a guarantee of equality, and the ratifying conventions never discussed incorporation.. I do not think that any one view of the very ambiguous clause can be correct, but I think this one may fit the evidence the best.

Under an equality interpretation of the amendment, the Bill of Rights guarantees were among the fundamental rights that must be extended without discrimination where they were available, but the state was under no obligation to provide them.
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Emsworth
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« Reply #10 on: November 22, 2005, 06:44:01 am »
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After reading dozens of more articles on the subject, I'm starting to lean towards the view that the Privileges or Immunities Clause was an anti-discrimination provision, modeled off of that of Article IV.
Any links? This interpretation does not seem to fit well with the plain text of the clause, and might make the equal protection clause redundant. However, I am interested in seeing some of the articles that led you to this view before commenting further.
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A18
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« Reply #11 on: November 22, 2005, 03:57:05 pm »
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I was reading law review articles, and excerpts from books. I don't have any links, unfortunately. But see especially David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 342-51 (1985); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992). Also, Field's dissent in Slaughter-House.

I think the most likely interpretation of the equal protection clause is that, like the wording suggests, the state governments must protect the life, limb, and property of all persons equally from private parties.
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Emsworth
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« Reply #12 on: November 22, 2005, 05:54:41 pm »
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The view that the privileges or immunities clause is only an anti-discrimination provision seems a little unsatisfactory to me. This interpretation strikes me as rather unnatural.

I still adhere to the incorporationist interpretation of the privileges or immunities clause (although I might change my mind, if the evidence points in a different direction). The speeches by the framers of the Fourteenth Amendment are not conclusive. They are in many cases contradictory and unclear. At best, I realize, they indicate the differing private interpretations of a few people. Thus, I would base my conclusion on a slightly different approach (but an historical approach nevertheless).

The privileges or immunities clause had close equivalents in colonial America. The Charter of the Dominion of New England provided that New Englanders "shall have and enjoy all Liberties, and ffranchizes, and Immunities of free Denizens and naturall Subjects." The Charter of the Massachusetts Bay Colony provided that those who live in Massachusetts "shall have and enjoy all liberties and Immunities of free and naturall Subjects." The Charter of Carolina ensured that colonists would have the "liberties, franchises and priviledges of this our kingdom of England." Similar language appeared in most other colonial charters.

The interpretation of these colonial clauses seems to have been that the  colonists were entitled to all the fundamental rights of English freemen. These rights were not subject to abridgement by the colonial governments or by anyone else. Thus, the Virginia Resolves include the declaration that "the Colonists aforesaid are declared entitled to all Liberties, Privileges, and Immunities of Denizens and natural Subjects." The Continental Congress agreed, resolving: "our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England."

These clauses bear some similarity to the privileges or immunities clause. They protected the "immunities of free and natural subjects" (or some variant thereof), just as the Fourteenth Amendment refers to the "privileges or immunities of citizens of the United States." The colonial clauses were (as I indicated above) interpreted as "incorporating" the rights of Englishmen in the colonies. They were not interpreted as allowing the royal governors to apply extend only such rights as they pleased, as long as they extended them equally.

I would apply a similar line of reasoning to the Fourteenth Amendment's privileges or immunities clause. Just as the colonial clauses "incorporated" the rights of English subjects in the colonies, so too would the Fourteenth Amendment "incorporate" the rights of American citizens in the states. These privileges or immunities, of course, are those enumerated in the Bill of Rights and elsewhere in the Constitution (e.g., the habeas corpus clause).

I realize that the comparison is not a complete or straightforward one. However, this appears to be the chief argument I could come up with in favor of the incorporationist interpretation, while avoiding speeches from the Fourteenth Amendment's framers.
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A18
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« Reply #13 on: November 22, 2005, 06:40:04 pm »
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Professor Harrison has argued that the word "abridgment" covers any discrimination that provides fewer affirmative rights for blacks than whites, and thus the clause forbidding any state from abridging the privileges or immunities of citizens of the United States worked to constitutionalize the Civil Rights Act.
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Emsworth
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« Reply #14 on: November 22, 2005, 06:58:52 pm »
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Professor Harrison has argued that the word "abridgment" covers any discrimination that provides fewer affirmative rights for blacks than whites...
The Fourteenth Amendment does not erase the distinction between state citizenship and national citizenship. In fact, the citizenship clause of that amendment acknowledges this "dual citizenship" of Americans.

Each type of citizenship is associated with different privileges and immunities. The privileges and immunities of state citizenship are defined by the state constitutions, while the privileges and immunities of national citizenship are (in my opinion) defined by the federal constitution.

Under Harrison's interpretation (it seems), each state would be allowed to determine what rights constitute the "privileges or immunities of citizens of the United States," as well as what rights constitute the "privileges and immunities of citizens of the several states."Because of this repudiation of the distinction between state and national citizenship (and due to other reasons), I feel somewhat wary about adopting this line of reasoning.
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Yates
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« Reply #15 on: November 22, 2005, 08:11:14 pm »
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Being a law junkie, this thread is quite interesting to me.  It seems as though the clause in question is referring to the states creating their own laws.  However, many say that the Constitution has no right to dictate laws of the states. 

The clause in question guarantees the freedom of all United States citizens from laws which can be described using the words in the clause.  The Constitution is a literal document, and it sets the laws for the entire nation.
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« Reply #16 on: November 22, 2005, 08:13:39 pm »
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Welcome, Yates!

The clause in question guarantees the freedom of all United States citizens from laws which can be described using the words in the clause.
The problem lies in determining what laws "can be described using the words in the clause."
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Yates
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« Reply #17 on: November 22, 2005, 08:38:14 pm »
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Welcome, Yates!

The clause in question guarantees the freedom of all United States citizens from laws which can be described using the words in the clause.
The problem lies in determining what laws "can be described using the words in the clause."

Thank you, Emsworth.

That is a good question.  It must be answered by a court of law.  The Constitution occasionally leaves some questions, such as your question, unanswered.  It is then necessary for the judiciary to determine the answer.
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A18
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« Reply #18 on: November 23, 2005, 05:05:46 am »
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After reading a lot more, I'm now firmly back in the incorporation camp. I think that although original intent would likely require an equality reading of the provision, original meaning yields an incorporationist interpretation. At the very least, this appears to have been the emerging consensus prior to Slaughterhouse.
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Jim Valvano
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« Reply #19 on: November 23, 2005, 04:37:13 pm »
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After reading a lot more, I'm now firmly back in the incorporation camp. I think that although original intent would likely require an equality reading of the provision, original meaning yields an incorporationist interpretation. At the very least, this appears to have been the emerging consensus prior to Slaughterhouse.

OUt of curiosity, what led you to believe that an original meaning interpretation of the Constitution is superior to an original intent interpretation?
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« Reply #20 on: November 23, 2005, 05:02:52 pm »
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OUt of curiosity, what led you to believe that an original meaning interpretation of the Constitution is superior to an original intent interpretation?
I cannot speak for A18, but I share the view that the original meaning of the Constitution is more important than "original intent."

I do not feel that the purpose of any clause is particularly important. Different framers had different intentions; one cannot really boil everything down to a single purpose. Furthermore, the motives of any Framer are (in my opinion) unimportant. It does not matter if any Framer had some secret meaning in mind when he wrote down the words. The People ratified what was on paper, not what was in the Framers' heads.

Original meaning, however, is of much greater importance. The words in the Constitution should be understood now as they were understood then. The meaning of the Constitution cannot change except by amendment.

I think that the most appropriate term for this philosophy of interpretation is "originalist textualism." It is originalist because it looks at the original meaning of the words, but textualist because it does not go beyond the words themselves.
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A18
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« Reply #21 on: November 25, 2005, 10:05:44 pm »
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"Original intent" could lead to a number of different interpretations of the Privileges or Immunities Clause. There is even legislative history supporting the assertion that the provision creates no new rights at all.
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