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Lash on the Original Understanding of the Privileges or Immunities Clause:
A very interesting paper, via Legal Theory Blog.
William Spieler (mail) (www):
link to ssrn isn't working.
8.19.2009 6:47pm
William Spieler (mail) (www):
It's also not working for me from the legal theory blog. maybe it is on my end?
8.19.2009 6:48pm
cboldt (mail):
I was able to d/l the paper.
8.19.2009 6:49pm
Chris 24601 (mail) (www):
Really interesting, especially the 1803/1819 stuff, and my appetite's definitely whetted for part II. I'm especially anxious to see several things explained:

(1) Bingham's use of Corfield to explain the 14A P/I in January 1871 in his Woodhull-petition report for the House Judiciary Committee. At the end, Lash quotes the Bingham's incorporationist bit from the CRA1871 debates in March 1871, but to say Bingham "never relied on Corfield" (p. 3) isn't right (though Lash might mean just in 1866). Reconciling the two 1871 Binghams isn't easy, let alone the 1866 Bingham(s), but I want some story about the Woodhull report.

(2) Howard's introductory use of Corfield to explain the 14A P/I clause.

(3) How a supposedly incorporation-friendly Slaughterhouse opinion was understood in such an incorporation-unfriendly way just three years later in Cruikshank.

(4) How the 14A supports the CRA1866 prohibition on racial discrimination against the freedmen in land ownership, given that the EPC applies to aliens, who were uncontroversially denied land-ownership rights on racial grounds. (See, e.g., here at 266-270.)

(5) Given Article VI, how a state could possibly interfere with genuine federal rights in a way making a Slaughterhouse-style P/I nonredundant.
8.20.2009 12:09am
J. Aldridge:
Bingham preferred Webster over Corfield when describing the P&I's of U.S citizens. However, it was Corfield that Congress decided to define the P&I's under the Civil Rights Bill.

Quote: "According to Bingham, the Privileges or Immunities Clause protected 'other and different privileges and immunities' than those protected by Article IV."

Yeah, he did say that once, but only 5 years after the debates and never once before. He also broubt that up during a highly partisan speech.

Quote: "As of Reconstruction, Article IV's protection of 'privileges and immunities of citizens in the several states' was broadly understood as providing sojourning citizens equal access to a limited set of state-conferred rights."

That is what Bingham had always beleieved. He also didn't believe they belonged to corporations.

I think House Report No. 22 of 1871 speaks of what the Bingham and the framers really intended and confirms Slaughterhouse was largely correct.
8.20.2009 1:11am
J. Aldridge:
Also, it is important that Bingham and the framers always made a distinction between U.S citizens and citizens of a state. According to Bingham in H.R. No. 22 ion 1871, 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."
8.20.2009 1:45am
Andrew Hyman (mail) (www):
J. Aldridge, Bingham explained as follows to the House of Representatives in 1866: "The proposition pending before the House is simply a proposition to arm the Congress...with the power to enforce the bill of rights as it stands in the constitution today. It hath that extent—no more" (emphasis added).

By saying "no more", Bingham made very clear (in 1866!) that he was trying to protect other and different privileges and immunities than those protected by Article IV.

I found Lash's article particularly interesting in that it buttressed what seems obvious from the language of the Clause itself. The Clause refers to federal rights that apply nationwide --- not merely in the states, but everywhere else in the country, including the territories and also the nation's capital. The language of the Clause was familiar from many treaties ceding territory to the United States.
8.20.2009 2:15am
J. Aldridge:
^^^ Due Process was a bill of rights... Article IV was a bill of rights. Too many "assume" when he speaks of the bill of rights he was speaking of the entire first eight amendments. He wasn't and he said so.

Bingham: "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."

Guess what? You find due process mentioned in the Fourteenth's first section and not the First Amendment, Second Amendment, etc.

James F. Wilson: "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.'"
8.20.2009 2:32am
Andrew Hyman (mail) (www):
J. Aldridge, it's true that we find due process explicitly mentioned in the Fourteenth's first section and not the First Amendment, Second Amendment, etc. Akhil Amar has concisely explained the reason for that: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."

I see no reason to believe that, when Bingham referred to the "bill of rights", he was referring only to the due process clause of the Fifth Amendment. On the contrary, he explicitly said otherwise (in 1866):
[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.

I agree with you, however, that there is some doubt about whether he was referring to every last jot of the first eight amendments. For example, it may be that the Establishment Clause is inapplicable, because it may guarantee a state right rather than an individual right. Likewise, the Seventh Amendment may be inapplicable, because it is not "fundamental" in the sense described by Justice Washington in Corfield v. Coryell. But by an large, Bingham was referring to what everyone now and everyone then understood to be the bill of rights, in my opinion.
8.20.2009 3:50am
J. Aldridge:
Akhil Amar has concisely explained the reason for that: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."

Ugh! Akhil has been debunked, don't know why he needs to be again here. First of all, due process was included not for the purpose of protecting aliens, but for the purpose of enforcement. The court had ruled in Barron that the Fifth did not apply to the states along with the other amendments. That is why Bingham brought up Barron to prove Congress had no power to enforce due process under the civil rights bill and needed to include it in a constitutional amendment.
Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.

All the examples of state injustice Bingham referred to had nothing to do with the states own citizens, but citizens of other states within another state (Article IV, section II which Bingham called a bill of rights).
8.20.2009 4:27am
David M. Nieporent (www):
Yeah, he did say that once, but
Isn't selective quoting fun? You get to ignore the things he said contrary to your argument. While focusing on a House Report of no legal significance.
8.20.2009 6:54am
Andrew Hyman (mail) (www):
J. Aldridge, Amar has been debunked? Not that I know of. Here's an extended quote from Amar, which seems to entirely prove his point:

Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens. But for this, a special clause was needed speaking of "persons," not "citizens." As Bingham explained his amendment on the floor of the House:

Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens [of the United States]? Is it not essential ... that all persons, whether citizens or strangers, within this land, shall have equal protection in [Page 1225] every State in this Union in the rights of life and liberty and property? [142]


A few weeks later, Bingham reiterated the point in debates over the Civil Rights Act of 1866 when he proposed to substitute the word "inhabitant" for "citizen": "[A]re we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates .... Your Constitution says 'no person,' not 'no citizen,' 'shall be deprived of life, liberty, or property,' without due process of law." [143]

Howard's explanation to the Senate was identical. After explaining that the privileges and immunities of citizens of the United States included "the personal rights guarantied and secured by the first eight amendments of the Constitution"-a passage we shall return to later-he patiently elaborated that the subsequent clauses of Section One were needed to "disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State." [144] On this issue as well, the views of Bingham and Howard were widely shared by their Reconstruction colleagues. [145] Indeed, Section One's distinction between the rights of citizens and those of aliens stretches back to its earliest draft in committee: "Congress shall have power to ... secure to all citizens ... the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property." [146]

This seems convincing to me.
8.20.2009 7:50am
krs:
sometimes when people say "debunked" or "discredited" they actually mean "disagreed with"
8.20.2009 7:59am
Wererabbit (mail):
Are you sure this is a law review article? It seems to be very helpful in understanding the law. It's way too practical to be a law review article.
8.20.2009 10:28am
J. Aldridge:
David M. Nieporent said: "Isn't selective quoting fun? You get to ignore the things he said contrary to your argument. While focusing on a House Report of no legal significance."

Not selective quoting, but putting his remark in perspective, something no one ever does when they quote him. I've never ignored anything he has ever said, I simply point out what you think he means and what he said he meant are two different things. And the H.R. N0. 22 is of legal significance because it was approved by the entire Judiciary Committee whose members voted for the Fourteenth including Bingham who wrote it. And then there is the entire House who approved the report to be printed. It is more significant then an isolated remark by Bingham 5 years after the fact.

You hate it because it confirms what Slaughterhouse had concluded and blows up the opportunity to incoporate the 2A.
8.20.2009 10:58am
Chris 24601 (mail) (www):
Bingham's report for the House Judiciary Committee doesn't support Slaughterhouse unambiguously. See here for the full context.

Also, FWIW, Bingham's 1866 "power to enforce the bill of rights as it stands in the constitution today" ditty was talking about a precursor to the 14A, not the actual 14A P/I clause we have. See here for more context. That material is important in showing that he had Barron on the brain and wanted it reversed, but isn't dispositive, I think, on what the actual text of the 14A expresses. His 8A ditty was indeed talking about our actual 14A P/I text, but isn't as clear.
8.20.2009 11:25am
J. Aldridge:
J. Aldridge, Amar has been debunked? Not that I know of.

Don't believe me then cut-n-past his work and lets see.
A few weeks later, Bingham reiterated the point in debates over the Civil Rights Act of 1866 when he proposed to substitute the word "inhabitant" for "citizen": "[A]re we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates .... Your Constitution says 'no person,' not 'no citizen,' 'shall be deprived of life, liberty, or property,' without due process of law."

He is right, what is your point if any here? He copied the Fifth Amendments "any person." But that isn't the reason the due process was added if that is what you are arguing.
Howard's explanation to the Senate was identical. After explaining that the privileges and immunities of citizens of the United States included "the personal rights guarantied and secured by the first eight amendments of the Constitution"

Oh geez, talk about putting words into Howard's mouth! Didn't Howard say up front that "It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion."?

And didn't he also say, "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 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."?

And didn't he also add that these P&I's of U.S. citizens "may assert this right and these privileges and immunities, and ask for their enforcement whenever they go within the limits of the several States of the Union."? IOW, these are not P&I's state citizens under their own state can ask to have enforced. Amar cannot understand that!
8.20.2009 11:31am
J. Aldridge:
Bingham's report for the House Judiciary Committee doesn't support Slaughterhouse unambiguously.


Yes it does.

That material is important in showing that he had Barron on the brain and wanted it reversed, but isn't dispositive, I think, on what the actual text of the 14A expresses.

Sorry, you fall into the same trap as many other's do by claiming he wanted Barron overturned. That was never his wish and he only brought up Barron to demonstrate Congress had no authority to enforce neither the Article IV nor due process.
8.20.2009 11:37am
David M. Nieporent (www):
And the H.R. N0. 22 is of legal significance because it was approved by the entire Judiciary Committee whose members voted for the Fourteenth including Bingham who wrote it. And then there is the entire House who approved the report to be printed.
It doesn't matter if it was blessed by the Pope and given a Bar Mitzvah by the Chief Rabbi of Jerusalem, too. The House of Representatives is not empowered to decide what a previously-enacted constitutional amendment means.


Also, FWIW, Bingham's 1866 "power to enforce the bill of rights as it stands in the constitution today" ditty was talking about a precursor to the 14A, not the actual 14A P/I clause we have.
I've tried to explain that to Aldridge before; it didn't stick. His approach is to assume that if at one time Bingham expressed a view about what a 14th amendment should say, this necessarily demonstrates what Bingham believed about what a different 14th amendment ultimately meant.


IOW, these are not P&I's state citizens under their own state can ask to have enforced.
Those are indeed "other words," because they're not at all what he said.
8.20.2009 11:42am
J. Aldridge:
The House of Representatives is not empowered to decide what a previously-enacted constitutional amendment means.

Don't they have the power to say what their own approved amendment means, or do they just write non-sense and let the courts decide what it should mean?

I've tried to explain that to Aldridge before; it didn't stick. His approach is to assume that if at one time Bingham expressed a view about what a 14th amendment should say, this necessarily demonstrates what Bingham believed about what a different 14th amendment ultimately meant.

Bingham had said in 1871 the 14th's language in both Feburary and May 1866 versions meant the same thing. Why do you and Chris 24601 think other wise?

Still David, you have never put forward any legal theory or court holding pre-1866 that says the P&I's of U.S. citizens included the entire first eight amendments. Weird Bingham and Howard would suggest such a theory that had never been put forward before and which the words do not support.
8.20.2009 11:54am
Repeal 16-17 (mail):
Don't they have the power to say what their own approved amendment means, or do they just write non-sense and let the courts decide what it should mean?


Read City of Boerne v. Flores (1997). The Supreme Court is the only governmental body which may make a final binding interpretation of the Constitution.
8.20.2009 12:06pm
David M. Nieporent (www):
Don't they have the power to say what their own approved amendment means, or do they just write non-sense and let the courts decide what it should mean?
No, they don't have the power to say (*) what their own approved amendment means.

For one thing, Congress is not the branch of government empowered to interpret the laws.

For another, it's not "their own"; the amendment is not the House's proprietary document. The House ratified it, as did the Senate, as did the states. The House's interpretation would be merely one among many potential ones.

For a third, there's no "their" to refer to. The House which was part of the 39th Congress ratified the Amendment in 1866; the House which was part of the 41st Congress issued that House Report of which you're so fond. These were different bodies, with different makeups. Only about 25% of the Representatives in the 41st Congress were in the House in the 39th.




(*) Well, they have the power to "say" it, just as I have the power to "say" that Derek Jeter is an overrated baseball player. They can "say" whatever they want. But it's of no legal significance.
8.20.2009 2:12pm
J. Aldridge:
No, they don't have the power to say (*) what their own approved amendment means.

Good, now maybe the court will stop researching the legislative debates.
the House which was part of the 41st Congress issued that House Report of which you're so fond. These were different bodies, with different makeups. Only about 25% of the Representatives in the 41st Congress were in the House in the 39th.

The 10 members of the 41st House Judiciary Committee were members of the 39th Congress (I actually looked them up once).
8.20.2009 2:35pm
Repeal 16-17 (mail):
Good, now maybe the court will stop researching the legislative debates.


Have you ever heard of "persuasive authority"? It's like when a State court cites a ruling of another State's court. The Supreme Court is not bound by what the Congress says regarding a law it passes, but it can consider it "persuasive". On the other hand, the Supreme Court can simply ignore or reject what the Congress said regarding a federal law (e.g., see Exxon Mobil Corp. v. Allapattah Services, Inc. (2005))
8.20.2009 3:30pm
David M. Nieporent (www):
The 10 members of the 41st House Judiciary Committee were members of the 39th Congress (I actually looked them up once).
Check again; I believe you'll find that you're mistaken.

Not to mention that the report you're talking about wasn't even unanimous.
8.20.2009 3:32pm
Chris 24601 (mail) (www):
J. Aldridge: "Bingham had said in 1871 the 14th's language in both Feburary and May 1866 versions meant the same thing. Why do you and Chris 24601 think other wise?"

Not sure what you're referring to. Here's Bingham's main March 1871 speech.
8.20.2009 3:43pm
Apodaca:
Rats. At first, I thought Orin's title referred to Bat for Lashes.
8.20.2009 6:16pm
Andrew Hyman (mail) (www):
J. Aldridge said, "Don't believe me then cut-n-past his work and lets see." But I did cut and paste a huge quote, here.

Additionally, when Bingham said that he wanted to overturn Barron v. Baltimore and thereby apply the Bill of Rights against the states, it's very clear that Bingham meant he wanted to apply AT LEAST the bulk of the amendments 1-8 against the states. That does not resolve the question of whether the actual text of the 14th Amendment gave the American people fair warning (I think it did give fair warning, and certainly the text supports P or I incorporation much more than it supports due process incorporation).

Congressman Bingham may have ALSO included the Article IV P and I Clause in his definition of the "bill of rights" that he wanted to apply against the states via the new 14th Amendment. Basically, Bingham wanted to apply whatever nationwide limitations already restrained the federal government, so that they would restrain the states too. Bingham's allies, like Senator Jacob Howard, acknowledged that the courts had not yet spoken clearly about whether the Article IV P and I Clause imposed any restraints on the federal government (Howard suspected that it did). Therefore, Howard acknowledged that the effect of the 14th Amendment would be indeterminate until the courts spoke more clearly about the meaning of the Article IV clause. Howard said: "we may gather some intimation of what probably will be the opinion of the judiciary by referring to ... Corfield v. Coryell." I don't see anything implausible about the meaning of the 14th depending upon the meaning of other amendments, and indeed the Supreme Court continues to analyze and elaborate about the original intent (circa 1789) of the Bill of Rights when applying it against the states via the 14th Amendment (circa 1868).
8.20.2009 7:57pm
Andrew Hyman (mail) (www):
That last sentence of mine should have said: "I don't see anything implausible about the meaning of the 14th depending upon the meaning of pre-existing parts of the Constitution, and indeed the Supreme Court continues to analyze and elaborate about the original intent (circa 1789) of the Bill of Rights when applying it against the states via the 14th Amendment (circa 1868)."
8.20.2009 8:09pm
J. Aldridge:
Check again; I believe you'll find that you're mistaken.

Not to mention that the report you're talking about wasn't even unanimous.

Yeah, it was 9 members, not 10! Loughridge and Blair wrote a minority report arguing for political rights for women but they never disputed the majorities conclusion of the P&I's.

The senate report on the same subject a year later was unanimous.
8.21.2009 2:16am
J. Aldridge:
Not sure what you're referring to. Here's Bingham's main March 1871 speech.

Referring to his January 30, 1871 remarks were he said, "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 IV, Section 2."

He is saying the Fourteenth's P&I's are the same as found in the original constitution and also said nothing was ever added to them. IOW, nothing changed from his original proposed amendment to the adopted one - the P&I's remained the same!
8.21.2009 2:26am
J. Aldridge:

Additionally, when Bingham said that he wanted to overturn Barron v. Baltimore and thereby apply the Bill of Rights against the states, it's very clear that Bingham meant he wanted to apply AT LEAST the bulk of the amendments 1-8 against the states.

Huh?!?

When did Bingham ever say he wanted to overturn Barron? In fact, Farnsworth said in 1871 only reason Barron was brought up by Bingham was to show congress had no power to legislate over life, liberty or property of U.S. citizens within a states. Bingham never, ever brought up Barron as case he wished overturned. That is plain crackpot fantasy.
Therefore, Howard acknowledged that the effect of the 14th Amendment would be indeterminate until the courts spoke more clearly about the meaning of the Article IV clause. Howard said: "we may gather some intimation of what probably will be the opinion of the judiciary by referring to ... Corfield v. Coryell."

Sure, and like in Corfield it would have little to do with state citizens within their own state because both P&I clauses only addresses U.S. citizens outside of their states.
8.21.2009 2:36am
Andrew Hyman (mail) (www):
J. Aldridge, this will be my last comment in this thread, because I do not wish to be subjected to hostile insults (e.g. "crackpot fantasy"). So, you can have the last word between us.

In his speech of February 28, 1866 Bingham cited Barron v. Baltimore for the proposition that "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." Thus, the idea that Bingham did not include the articles of amendment in the phrase "bill of rights" is plainly incorrect. Clearly, he was calling for Barron to be overturned and the following words clinch it in my view: "The proposition pending before the House is simply a proposition to arm the Congress...with the power to enforce the bill of rights as it stands in the constitution today. It hath that extent—no more."

In any event, the American public and state legislatures had before them the plain text of the amendment, rather than Bingham's remarks, so it makes no sense to quibble about what Bingham said. As the article by Kurt Lash (linked in the blog post above) makes clear, the language "immunities of citizens of the United States" was very familiar to Americans of that era, from treaties in which territory was acquired by the United States; the inhabitants of those territories were guaranteed the rights of U.S. citizens even though the territories were not part of any of the states (in contrast to the rights guaranteed by the Article IV Privileges and Immunities Clause which presumed presence in one of the states).

Frankly, I do not understand where you're coming from, J. Aldridge. I don't know if you are totally against incorporation of the Bill of Rights, or if you instead think that the Due Process Clause is the only proper vehicle for incorporation. In any case, I believe that the Privileges or Immunities Clause is the only proper vehicle for incorporation. So now, go ahead and have the last word if you like. Cheers.
8.21.2009 3:17am
Chris 24601 (mail) (www):
J. Aldridge,

Sorry--from the context above, I thought you were referring to something from Bingham equating his February 1866 language with the later 14A P/I language. We disagree about how to understand the January 1871 report and how clear it is, but, as I said, others can go look at the context here. And, of course, that statement is not obviously consistent with Bingham's statement in March 1871.
8.21.2009 9:14am
J. Aldridge:
Let us view Bingham's actual February 28, 1866 remarks, shall we?
Mr. BINGHAM. Yes, sir. in the debate. A gentleman 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.

Notice he says why he brought up Barron and it wasn't for the reason he wanted it overturned. Note also that the 14th only speaks of a provision of the fifth article of the amendments, and not all eight of them. And remember, Congress already passed "A bill to declare and protect all the privileges and immunities of citizens of the United States in the several States," and it didn't mention any of the first eight amendments.

So I'm back asking where did Bingham say he wanted to overturn Barron?

In any case, I believe that the Privileges or Immunities Clause is the only proper vehicle for incorporation.

Unfortunately the P&I clause doesn't address state citizens of their own state to be of any value if it had been written to make all eight amendments binding upon the states through the P&I's. Said Bingham in December of 1870: "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States."

The first section of the 14th amendment is simply another Missouri Compromise just as Bingham said it was in 1868.
8.21.2009 9:31am
J. Aldridge:
Chris 24601:

It doesn't really matter if what Bingham said on March 31, 1871 was true or not. He made it clear he was speaking of the P&I's of U.S. citizens as distinguished from citizens of a state. IOW, his speech is of little use for citizens under their own state today.
8.21.2009 9:47am
David M. Nieporent (www):
So I'm back asking where did Bingham say he wanted to overturn Barron?
Somehow you managed to boldface the wrong thing:
I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.


Plus the language Andrew cited:
The proposition pending before the House is simply a proposition to arm the Congress...with the power to enforce the bill of rights as it stands in the constitution today. It hath that extent—no more."


Finding a report from 1871 about another subject entirely -- woman's suffrage -- and ignoring the actual statements Bingham made at the time seems rather... crazy, don't you think?

Yeah, it was 9 members, not 10! Loughridge and Blair wrote a minority report arguing for political rights for women but they never disputed the majorities conclusion of the P&I's.
Actually, it was Butler, not Blair, and both Loughridge and Butler were not in the 39th Congress, so your claim that you "actually looked them up once" is rather undermined, don't you think?
8.21.2009 11:43am
Chris 24601 (mail) (www):
FWIW, Loughridge and Butler take explicit exception to the majority's exposition of privileges and immunities: "The majority of the committee hold that the privileges guaranteed by the XIV. Amendment do not refer to any other than the privilege embraced in section 2, of article 4, of the original text. The committee certainly did not duly consider this unjustified statement." See here.

I can't quite follow J. Aldridge's explanation for why Bingham's March 1871 evidence is irrelevant. As Lash explains, Bingham made a sharp distinction between Article IV and the 14A, saying, after referring to several expositions of Artivle IV, such as Corfield, "Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?" As I said in my very first comment near the top of the thread, I'm not saying that this is the only relevant data point; the January report is important too. But they are in some tension. And the fact that the author of a report said something pretty different two months later is an important reason not to take the report as interpretively decisive. Cf. Skidmore v. Swift &Co., 323 U.S. 134, 140 (1944) ("consistency with earlier and later pronouncements" is among "those factors which give [an interpretation] power to persuade, if lacking power to control").
8.21.2009 12:33pm
J. Aldridge:
David M. Nieporent, try reading what Bingham actually said a few times and see if you can make a distinction between "wanting" to overturn something and being asked to "cite" cases.
The proposition pending before the House is simply a proposition to arm the Congress...with the power to enforce the bill of rights as it stands in the constitution today. It hath that extent—no more."

Forgetting he referred to the P&I clause and due process as a bill of rights are you?

And yes, it is Butler and not Blair, and looks like they were members the following year. I'm so proud of you!
8.21.2009 2:31pm
J. Aldridge:
I can't quite follow J. Aldridge's explanation for why Bingham's March 1871 evidence is irrelevant. As Lash explains, Bingham made a sharp distinction between Article IV and the 14A, saying, after referring to several expositions of Artivle IV, such as Corfield, "Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article...

It's not relevant because if Bingham desired to add the the P&I's he past up the opportunity in May of 1866. Plus he made it irrelevant by ruling out citizens of a state for protection of the first eight amendments.

If he really believed this he would never had attempted to add the Takings Clause in April of 1866 just before the amendment went to the states. He could just had said all of the first eight amendments are part of the P&I's of state citizens. Doubt many states would had went for that.

The January report is very important because it tells why the 14th amendment was adopted in a non-political context.
8.21.2009 3:12pm
David M. Nieporent (www):
It's not relevant because if Bingham desired to add the the P&I's he past up the opportunity in May of 1866. Plus he made it irrelevant by ruling out citizens of a state for protection of the first eight amendments.
He did no such thing. Why you think "in, not of" is some magic incantation that negates everything he said is beyond me.


David M. Nieporent, try reading what Bingham actually said a few times and see if you can make a distinction between "wanting" to overturn something and being asked to "cite" cases.
He cited the cases and explained that overturning those cases was why the amendment was needed. Declaring that something is needed implies that you want to do it.

And it's pretty bad when you have to try to argue that bill of rights doesn't refer to the bill of rights.
Forgetting he referred to the P&I clause and due process as a bill of rights are you?
No, that's exactly the point. He didn't draw the distinctions you're desperately trying to draw.
8.21.2009 3:23pm
David M. Nieporent (www):
It's not relevant because if Bingham desired to add the the P&I's he past up the opportunity in May of 1866.
Apparently the concept of circular reasoning escapes you.

In 1866, he put forth an amendment that protected P&I. In 1871 he explicitly said that the P&I includes the Bill of Rights. Of course, it's possible that he was changing his mind, but the much simpler explanation, the way that makes these statements consistent, is that he didn't "pass up the opportunity" in 1866; he did it.
8.21.2009 3:27pm
J. Aldridge:
In 1871 he explicitly said that the P&I includes the Bill of Rights.

He did, but for whom? Bingham: "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..."
8.21.2009 3:46pm
David M. Nieporent (www):
He did, but for whom? Bingham: "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..."
Jesus H. Christ. Read the very next sentence. After he said the part you quoted, he identified what those "first eight amendments" were, and he said, "These eight articles I have shown never were limitations on the power of the States, until made so by the Fourteenth Amendment." He couldn't have been more explicit if he tried. The eight articles -- that is, the first eight amendments -- were made limitations on the power of the States by the Fourteenth Amendment. Bingham said so.

Again, I don't subscribe to the notion that Bingham's word defines the constitution, but if one does, case closed.

So whatever you think the clause you bolded means, you're mistaken.
8.21.2009 4:48pm
J. Aldridge:
Jesus H. Christ. Read the very next sentence. After he said the part you quoted, he identified what those "first eight amendments" were, and he said, "These eight articles I have shown never were limitations on the power of the States, until made so by the Fourteenth Amendment."

He always said there were two types of citizens, state and national and he says here he is referring only to national citizens here and not state citizens. Why do you think it was important for him to single out state citizens? Also, wasn't this the first and only time he ever said such a thing?
Again, I don't subscribe to the notion that Bingham's word defines the constitution, but if one does, case closed.

Ah, but you want Bingham's March 31, 1871 muttering and his use of the phrase "bill of rights" to describe Article IV and "due process" to be your basis of incorporating the 2A.
So whatever you think the clause you bolded means, you're mistaken.

I'm convinced it means just what Bingham, Stevens, Trumbull, Howard and Slaughterhouse says it means.
8.22.2009 3:20am
David M. Nieporent (www):
Ah, but you want Bingham's March 31, 1871 muttering and his use of the phrase "bill of rights" to describe Article IV and "due process" to be your basis of incorporating the 2A.
1) I don't know why you keep singling out the second amendment.

2) I don't want Bingham's statements to be the basis of anything.

3) He said it in 1866, he said it in 1871.

I'm convinced it means just what Bingham, Stevens, Trumbull, Howard and Slaughterhouse says it means.
Howard said that the "great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." And that was right after he explained that these guarantees included "the personal rights guaranteed and secured by the first eight amendments of the constitution."

Howard couldn't have been more clear. Bingham couldn't have been more clear.
8.22.2009 8:58am
J. Aldridge:
Quoting Howard out of context will do you no good, David. Let's read what he said just before your quote shall we?
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.

Again, neither him nor Bingham are talking about a citizens of the states but only U.S. citizens as a party in federal courts.
Howard couldn't have been more clear. Bingham couldn't have been more clear.

You are right as long as you don't misquote them and put words in their mouth.
8.22.2009 9:23am
David M. Nieporent (www):
Again, neither him nor Bingham are talking about a citizens of the states but only U.S. citizens as a party in federal courts.
You don't understand what you're reading. Yes, he said that, and his argument was that that's why the 14th amendment was needed: to change that. I didn't quote him out of context at all. You aren't paying attention to whether people were describing the law as it was or the law as it should be.

You don't understand a very simple legal issue: the bill of rights limited what government could do. However, Barron said that the federal courts couldn't enforce them against the states, and nothing in the constitution gave congress any power to do so. The 14th amendment was designed to change that. That was the entire point. Under your theory, the 14th amendment didn't do anything at all. (Which is, indeed, what a bare majority of 5 judges said in the Slaughterhouse cases, but they were being unfaithful to what Howard
8.22.2009 1:57pm
J. Aldridge:
Again, neither him nor Bingham are talking about a citizens of the states but only U.S. citizens as a party in federal courts.

You don't understand what you're reading. Yes, he said that, and his argument was that that's why the 14th amendment was needed: to change that. I didn't quote him out of context at all. You aren't paying attention to whether people were describing the law as it was or the law as it should be.


OK I'll bite: What does this have to do with Bingham or Howard distinguishing between U.S. citizens and state citizens in P&I's?
8.22.2009 3:56pm

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