Due Process as Pandora’s Box
The Washington Times carried an opinion piece last month by two social conservatives concerned about the upcoming McDonald v. Chicago decision. If you have been following this issue, you know that the team representing Otis McDonald seeks to have the Supreme Court recognize that the Fourteenth Amendment imposes the Second Amendment on the states. So why are social conservatives (who are generally pro-gun) concerned? Their concern is this: what theory will the Court use? To quote Ken Klukowski and Ken Blackwell:
Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered ObamaCare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it.
There are three major provisions of the Fourteenth Amendment with respect to imposing the Bill of Rights onto the states (also known as “incorporation”): the “privileges or immunities” clause (P or I), the “due process” clause (DPC), and the “equal protection” clause (EPC).
The historical evidence strongly suggests that the Fourteenth Amendment was understood by both supporters and opponents as incorporating the entire first eight amendments of the Bill of Rights onto the states through the privileges or immunities clause. The purpose of the due process clause was to make sure that before the southern states deprived blacks and white Republicans of life, liberty, or property, the governments would have to go through something recognizably like a trial. The purpose of the equal protection clause was to make sure that whatever laws the southern states passed applied equally to everyone. If a southern state required blacks to make annual labor contracts (as some states had done immediately after the Civil War), then the law had to apply to whites as well.
In 1873, the Supreme Court handed down a bad decision known as the Slaughterhouse Cases, in which it refused to recognize that the privileges or immunities clause incorporated the protections of the Bill of Rights. A few years later, in U.S. v. Cruikshank (1875), the Court continued down the same line, overturning a conviction of Klansmen who had murdered dozens of freedmen. (Gun control advocates love to cite Cruikshank because that Court ruled that the Second Amendment didn’t protect individuals from state gun control laws.)
Good on you, Clayton.
Our beloved Constitution and the acres of Code and Statute books have become a cat’s cradle of reiterative blind alleys thanks to the sophistry of progressive’s jurisprudence.
No one has the will to overturn any of it.
Sorry to say, we’re done for.
The Founders view was not the cramped vision peddled by some “so-called” Conservatives which gives the government broad punitive powers subject to only a few discrete limitations (e.g. Robert Bork’s vision of the 9th Amendment ["There is almost no history that would indicate what the ninth amendment was intended to accomplish."]).
I like how John Adams said it… “You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”
And of course Jefferson “Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”
The Founders certainly recognized that there were many rights enjoyed by all human beings. But what rights? Jefferson, being something of a liberal, wanted to amend the Virginia code so that buggery, instead of being a capital offense, would be a castrating offense instead.
The Constitution granted limited powers to the federal government, but left the states considerable power to otherwise pass laws for what the legislators thought was the common good.
Clayton, your points are right on. I replied at length to Klukowski Op-Ed here http://joshblackman.com/blog/?p=3103
It is also worth noting that Ken seems to misunderstand my use of the term Pandora’s Box, in an article I published in the Georgetown Journal of Law & Public Policy, titled “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States.” You can download a copy here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583
I take it for granted that leftwing legal thinkers could care less about the actual words and meaning of the U.S. Constitution. The original framers were reactionary white dudes deprived of our modern insights and sensibilities. At the very most, these ancient coots might deserve a kind word here and there. It is therefore the duty of the current generation to approach their writings in a postmodernist manner. And when this corruption of language occurs—it intrinsically leads to tyranny. That is why Barack Obama publicly criticized the Supreme Court justices the other night. He simply assumes they are to carry out his wishes. After all, Obama is the enlightened one sent by the zeitgeist to lead we lesser mortals to the Promised Land. It is absurd for the judges to disagree with his wonderful and exalted self.
RKV writes:
And yet John Adams was the principal architect of the Massachusetts Constitution of 1780, which provided for the state government to establish a church, and directed the legislature to pass mandatory church attendance laws:
That John Adams–what a libertarian!
Ah, the old canard, that because some Founder or other believed in a particular law regarding a particular topic that no change can ever be made in any law regarding that topic.
Not that we should extend that to slavery of course, it is acceptable that we changed that.
And never mind if buggery charges are only applicable to men with men and not men with women, equal protection can obviously never be taken to supersede that original intent. Likewise let us not be concerned about how evidence of such was obtained, the 4th Amendment guarantee of person must never be taken to extend to such matters.
And of course we can force people to not merely pay for the construction and support of Protestant churches, but also force their attendance upon the same without it being an establishment of religion simply because we do not discriminate against Protestant churches in such regard. Other Christians, however not “really” Christian they may be not being Protestants, still get to hear about Jesus, and followers of other faiths are simply not worthy of consideration.
Garbage.
Sheer and utter garbage.
That you must construct a slippery slope leading to sex with 10 year olds as part of a prop for a bizarre constructionism that is more a prelude to dominionism than institutionalized pedophilia demonstrates the utter absurdity of the position.
Will you next propose a slippery slope to cannibalism if anyone dares assert a right to make an affirmation as per the No Religious Test clause?
Did I say he was a libertarian Clayton? I did not. You also know, but don’t mention it, that the US Constitution didn’t go into effect until 7 years later, or were you going to only tell half the story? I’m perhaps not as versed on 17th and 18th Century American history as you are, but I do have a degree in the subject, that was my area of concentration, and because of family reasons (the V’s are Mayflower descendants) I have some personal interest, both in NE and the mid-Atlantic states. While we’re on the subject and as one historian to another, those established churches didn’t last, did they? Last one was Mass. in 1833, and you had to tithe to pay for social welfare services and the like. So skip the snide remarks, OK? I’ve got enough problems with Adams, so I can at least like the sentiment of that quote. He also had some problems with sedition, that wouldn’t go down well in a modern analysis, would it? Of course I could go Howard Zinn (would be timely since he kicked this week, hmm?) and start talking about the founders like Jefferson and how they owned slaves, etc. But I won’t. Just be aware you’re not dealing with some gunnie who gets bogus quotes off the internet and can’t tell the difference, Clayton. I can probably out sarcasm you with the stories from my family history alone. There are some doozies.
From that same Massachusetts Constitution:
CHAPTER VI.
Oaths and Subscriptions; Incompatibility of and Exclusion from Offices; Pecuniary Qualifications; Commissions; Writs; Confirmation of Laws; Habeas Corpus; The Enacting Style; Continuance of Officers; Provision for a Future Revisal of the Constitution, etc.
Article I. Any person chosen governor, lieutenant-governor, councillor, senator, or representative, and accepting the trust, shall, before he proceed to execute the duties of his place or office, make and subscribe the following declaration, viz:
“I, A.B., do declare that I believe the Christian religion, and have a firm persuasion of its truth; and that I am seized and possessed, in my own right, of the property required by the constitution, as one qualification for the office or place to which I am elected.”
So then, should we understand that no one who is not a Christian and makes such an affirmation should ever be permitted to be an office holder of the United States, Article VII, Paragraph 3 of the U.S. Constitution notwithstanding?
Or should we just assume a slippery slope of intent on your part to ensure a return to such?
Likewise from said Constitution:
Part The First
Art. X. Every individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to expense of this protection; to give his personal service, or an equivalent, when necessary; but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. . . .
Likewise then shall we take it that you fully endorse such sentiment, and believe as John Adams did (and Joe Biden does) that paying taxes is in fact “patriotic”, and that public service, or equivalent, must be rendered when required by the state?
I must expect you do, as you are so willing to assert a requirement to support a church, despite your personal belief, and attend public servinces, in direct opposition to the expressed sentiments of Article II of that same Constitution. (Hypocrisy, thy name is Massachusetts constitutional law? Or should I say: Plus ca change, plus c’est la meme chose?)
Do you also support the property requirements for holding and voting in that Constitution?
And the restriction of voting rights only to men?
Yes, the Founders did in fact recognize many things that we have since changed. One might almost be shocked, shocked I say!, to discover they provided for such evolution.
Or perhaps not.
Except that no one is saying that. The point is that there is a process for changing laws, and for changing the Constitution. It isn’t by pretending that it means something other than it does.
And how did we change it? By amending the Constitution.
Wrong again, the buggery law prohibited all non-vaginal sexual intercourse, and all sexual intercourse with animals. It did apply to men and women. There is nothing that precludes legislatures from repealing such laws, and many did so.
I was not arguing that this was a good thing–merely demonstrating that RKV’s enthusiasm for John Adams as libertarian was greatly misplaced.
So why quote Adams and Jefferson on the importance of liberty and limited government?
I was responding specifically to your attempt to convert Adams and Jefferson into proto-libertarians.
Yes, by legislative enactment and constitutional amendment. Not by asserting that what was a felony in 1868 when the 14th Amendment was adopted, is now a constitutional right.
So we need a constitutional amendment to make any and every specific thing a right?
Oh wait, we already have one, the 9th Amendment.
We need specific laws to change was a felony in 1868 may be legal now?
Oh wait, we have such laws. Or rather the repeal of earlier laws making such things a felony in a majority of states.
The laws applied to all?
Perhaps in 1780, but the particular law in Lawrence v. Texas applied only to sex with someone of the same gender. It was also limited to oral and anal sex, or penetration with an object. Should we derive from that implicit endorsement of homosexual kissing and reciprocal manual pleasuring?
As for the difference between intent and function in regards to the 14th Amendment, it guaranteed due process and equal protection. Yet that was somehow construed to permit Jim Crow laws and “separate but equal”.
So sometimes it does in fact take a century, give or take a decade or two, for the courts and the laws to catch up to the intent of a Constitutional amendment.
A further shock I know, but such is the progress of jurisprudence.
Quoting various Founders on an issue only gives some insight into various positions held on things. They are in no way definitive of some law or Right, or even of the Constitution. They are sometimes useful guides, but that is all.
The fact is, much wrangling went into the forming of our Constitution. Washington had to lock them in a room and threaten to kick their asses. Washington was very charismatic, a huge man (6’6″), and was strong enough to lift a horse. He meant it when he said he wouldn’t let them out of that room until they forged a Constitution.
So, they prayed… and put aside their ideology. They then forged a document geared solely towards Liberty, whatever their beliefs. So, Admas may have written extensively, but in that sealed room, others may have had far greater influence. There is ideology, then there is what works on a practical level.
Thus, we must interpret the Bill of Rights and the Constitution literally, with an eye for preserving Liberty above all things. The Declaration of Independence is the best guide, being our government’s purpose statement. Other writings are merely the loudest voices of the time, not necessarily the most influential in that sealed room, with Washington threatening to kick your ass if you don’t shut up and sit down.
As an aside, perhaps we need a President capable of kicking everyone’s asses in D.C. He could lock Congress in a room, and straighten out a few problems, sans ideology. Hey, A guy can dream, can’t he?
Sam:”We need specific laws to change was a felony in 1868 may be legal now?”
Yes. That is how lawmaking in a democratic government works.
If the people want to change the law, they elect legislators who pass bills that change the law.
“…the intent of a Constitutional amendment.”
It is arguable that striking down laws against buggery is an implication of the 14th Amendment, but certainly not that doing so was intended by the Amendment’s authors, or any Federal or state legislator who voted to pass it or ratify it, or anyone who voted for any of them.
Marc Malone: Washington was 6′ 2″, not 6′ 6″. He was a big man, but not a giant. Jefferson was 6′ 2 1/2″, Monroe was 6′.
What do you mean when you say, “any and every specific thing a right”? Do you really mean that there is a right to own nuclear weapons, hire 8 year olds in coal mines, discriminate against black people in public accommodations? No, I don’t think that is what you mean. I think you would vigorously object to any of those considered a right–and I would agree. I think you mean, “liberal judges get to pick and choose without any obligation to conform to any supermajority definition of rights.”
So do I understand that you arguing that it was okay for the Court to ignore original intent, allowing Jim Crow, grandfather clause voting rules, tolerating lynching, etc., because eventually, people that you agree with got in control of the Court?
Would you be so patient if judges ended up there who concluded that the 14th Amendment guaranteed a right of the unborn to be born, and ordered all laws allowing abortion to be struck down?
What have you been drinking Clayton? What are P&Is? Some of them are listed in Dred Scott, or are you just having a bad day? Quoting CJ Taney, there are at least 4 P&Is, by his lights.
a) freedom of speech
b) freedom to travel
c) right to keep and bear arms
c) freedom of association
Abortion ain’t there is it, Clayton?
Re the 1780 provision in Mass.’s Constitution. It helps to keep in mind religious disputes within Christendom that the FFs were trying to solve. The FFs thought they could solve it by supporting “religion in general,” and in some instances a generic form of “Protestant Christianity.” The problem is they couldn’t decide, just as we can’t decide, what is true “religion” or “Christianity.” And they certainly didn’t want government deciding for us.
The Deism thing of the FFs is way overblown. Scholars need to pay more attention to the unitarian heresies and whether “unitarian Christianity” is an authentic form of Protestant Christianity. That issue drove both Madison’s Memorial and Remonstrance in 1780s VA AND Mass.’s disestablishment in 1833. It’s why I send so much time with it.
The key Founders (J. Adams, Jefferson, Franklin, probably Madison, Washington) were not “Deists” but unitarian heretics who presented their creed as “rational Christianity.”
Nor is homosexual sex, or collecting welfare without a residence requirement, or dozens of other rights that the Court has found hiding under the Due Process Clause. But that doesn’t stop the Court from finding them when it suits the preferences of particular justices.
More precisely, they didn’t want the federal government making that decision for us. (The authors of the 14th Amendment are another matter.) Whatever feelings the FFs had at the state level (and many were supportive of disestablishment), it is by no means certain or even likely that they supported the extreme position the ACLU has taken on the meaning of the establishment clause.
Lawrence v. Texas was wrongly decided, for the very simple reasons that sodomy was not generally accepted as a civil right back in 1868 (when the Fourteenth Amendment was adopted) nor was gender discrimination held to the same level of scrutiny as racial discrimination. (Minor v. Happersett, Rostker v. Goldberg, Michael M. v. Superior Court).