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View Full Version : Everything you ever wanted to know about "Incorporation" - period.


1JimMarch
05-27-2009, 11:43 PM
"Incorporation" is the idea (or process) that applies the Bill Of Rights to the states. According to the courts in recent years, the BoR doesn't automatically apply to the states; pieces get "incorporated" one at a time through the 14th Amendment "due process" clause or as many justices and scholars have urged, "all at once" via the 14th Amendment "privileges and immunities" clause.

The BEST way to understand incorporation is one of two books: Stephen Halbrook (yeah, same as is involved in the Chicago case) titled "Let Every Man Be Armed" 1984 and "The Bill Of Rights" written in 1998 by wildly Liberal Yale law professor Akhil Reed Amar.

Both cover the same material - historical speeches and quotes from the people who wrote the 14th Amendment, esp. Ohio Republican John Bingham, primary author of the 14th and the leader of an entire civil rights movement broader in attempted scope than anything tried by MLKJr about 100 years later.

Halbrook loved what he found. Amar is visibly distressed by it, but honest enough to report it.

What they found:

In 1833 the US Supreme Court said that the Bill Of Rights did NOT apply as controls against the states (or local governments) in Barron v. Baltimore. Mr. Barron's boat dock was trashed by the city of Baltimore and there was nothing Mr. Barron could do about it (legally at least). This led to all sorts of abuses...as one example, by 1858 South Carolina had passed a law calling for the death penalty for any preacher who spoke against slavery from the pulpit, thoroughly pissing all over the BoR.

But the main legal case limiting post-civil-war civil rights reform wasn't Barron v. Baltimore. It was Dred Scott v. Stanford (1856).

Dred Scott was a moral atrocity, but sadly legally correct for it's time. The primary holding was that the US had always been a racist nation from it's founding and before, that major "Founding Fathers" had supported racist laws, and the court cited some of these in detail that would gag a maggot.

It wasn't a pro-slavery decision. It was a pro-racism decision.

Dred Scott said that blacks didn't have the "privileges and immunities of US citizenship", and went on to define those in great detail while using the term "privileges and immunities" over 30 times. For example:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, [B]and to keep and carry arms wherever they went. [emphasis added]

Now look at the opening paragraph of the 14th:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

Bingham (who wrote those words) was VERY public about what he was up to: overturn Dred Scott by turning the language of that decision (the phrase "privileges and immunities") on it's head. He was dead clear that this would affect every civil right of blacks short of "political rights" (voting, militia duty, jury service) which wasn't at all unusual: *women* were citizens lacking political rights but still having civil rights, a status shared to this day with green card holders (legal alien residents).

So what happened?

Well first, in 1870 the first 14th Amendment case went pretty well. Mr. Ward, a white merchant from New Jersey, refused to pay a special tax Maryland was assessing on merchants from out of state. The USSC said that the 14th Amendment limited the states abilities to discriminate in the handling of "privileges and immunities of US citizenship" possessed by visitors from out-of-state (Ward v. Maryland). That logic was revisited and upheld as recently as 1999 (Saenz v. Roe).

Then in 1872 it started heading into the toilet. In Slaugher-House (1872), the USSC decided that Ward v. Maryland was to be the ONLY implication for the 14th Amendment Privileges and Immunities clause. Again: they supported Ward's limits on cross-state discrimination, but allowed in-state discrimination even though they were pretty sure corruption was involved (read Slaughter-House).

The poop well and truly hit the rotary air movement device in Cruikshank (final decision, 1876). In that case, a group of 60 thugs, a mix of government agents and Klansmen, had chased blacks trying to vote under the new 15th Amendment from the courthouse (violating their 1st Amendment right to peaceful assembly and 15th Amendment right to vote), went around stripping them of arms (2nd Amendment violations) followed by three days of arson, riot, rape and murder now known as the Colfax Massacre (1873). Best death toll estimate: 103.

The US Supreme Court decided that NONE of these civil rights violations were punishable by the Feds. Which, if you can stomach it, led to this:

http://www.withoutsanctuary.org/main.html

WARNING: GRAPHIC PHOTOS OF PUBLIC LYNCHINGS ALERT.

(TO BE CONTINUED NEXT POST)

1JimMarch
05-27-2009, 11:44 PM
Other horrifying decisions by the USSC followed Cruikshank. Presser just re-hashes Cruikshank - if you see a court supporting Presser (or the similar Miller v. Texas) they're simply cowards not wanting to support Cruikshank, the case that launched at least 4,000+ lynchings that we know about. Obama's latest nominee is exactly that sort. Plessy vs. Fergusen is the best known post-civil-war racist decision ("separate but equal") but to my eye Williams v. State of Mississippi 1898 was possibly worse and Cruikshank by far the worst (and most lethal) of all.

Anyways. What happened post-14A is obvious: the USSC did NOT like being overturned in Dred Scott (and to a lesser degree Barron v. Baltimore) via the 14th Amendment, and decided to simply destroy every single element of the 14th other than the ban on interstate discrimination.

Some time in the early 20th Century, the USSC started to realize they'd gone too far, and that the state "justice" systems lacking any control from the Bill Of Rights had gone completely bonkers. I'd like to think it had something to do with the 1907 trial of Joseph Shipp, the only criminal trial held by the USSC ever:

http://www.law.umkc.edu/faculty/projects/FTrials/shipp/shipp.html

...but I could be wrong.

Anyhow, point is they decided to bring back the 14th Amendment from the grave. But rather than have the guts to admit a screwup, they decided to rebuild it differently. Piece at a time, as civil rights cases came before them, they decided that various civil rights were "fundamental to due process" and "selectively incorporated" these civil rights against the states via the "due process clause" of the 14th instead of the privileges and immunities clause. Many USSC judges have argued this was a mistake, including Clarence Thomas (see his dissent in Saenz v. Roe 1999) and the late Hugo Black in his famous dissent in Adamson.

So where do we stand now?

The USSC in Heller gave STRONG warnings that Cruikshank can't be relied on. The circuits are ignoring this so far, although Nordyke is apparently influenced by this. Heller's first warning is in the footnote saying that the Cruikshank holding that states can violate 1st Amendment rights is long since toast. The bigger one everybody misses is the favorable reference to the book "The Day Freedom Died" by Charles Lane, covering the Colfax Massacre and it's legal aftermath: "the day" in question is the day the final Cruikshank decision was issued by the USSC.

Right now a few pieces of the Bill Of Rights haven't been selectively incorporated yet: the 3rd Amendment (because "quartering of troops" is no longer a popular abuse), the 2nd Amendment (except here in the 9th of course per Nordyke!), the 5th Amendment right to indictment by grand jury in major crimes (which has weakened Cali's grand jury system to a point where they're not much barrier to corruption) and the right to a jury trial in civil court (which leads to abuses like Chicago calling traffic court "civil").

Doing full, proper incorporation via the P&I clause wouldn't cause that much societal turmoil at this point because most of the BoR has already been incorporated. BUT we can live with selective incorporation of the 2nd via Due Process if the USSC wants to perpetuate 132 years of total, obvious and murderous fraud by the USSC starting with Slaughter-House.

Oh yeah. One more thing. Kind of a pet peeve. Because Ward v. Maryland 1870 is still good law, and it really IS good because that's likely part of what the P&I clause should do, the moment the 2A became a Federally recognized civil right, states lost the ability to discriminate in the handling of that right against visitors from other states. This protection kicks in even without incorporation. For that reason, since California doesn't recognize my AZ CCW *and* will not let me (as a resident of Tucson AZ) apply for a Cali CCW, I am discriminated against by Cali any time I visit there.

Which is why, on my last brief visit, I was strapped.

I don't recommend others take that stance unless you know this stuff cold, and it's risky even then.

Postscipt:

For the sake of completeness, I'll list a third type of "incorporation": the argument that Barron v. Baltimore was wrong in 1833 and hence the 14A isn't even necessary. This would require re-writing a LOT of Constitutional law and history going all the way back to 1833. I know of one attorney who argues this way and he actually makes a good point. Take a look at a document most people don't know exists, the preamble to the Bill Of Rights:

http://www.billofrights.org/

In other words, since the "core constitution" is effective against the states, and the BoR is "to be valid to all intents and purposes as part of the constitution", Barron v. Baltimore was the blunder that really started it all.

Very few argue that way today, but...it's not an insane position.

Jim March

ilbob
05-28-2009, 6:48 AM
I know you think you are right, but as a practical matter until a court that has some jurisdiction says so, you aren't.

The incorporation argument is not as cut and dry as some would like to make it.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; That is a phrase which can be easily read as meaning that the rights we hold as citizens of the US cannot be infringed by the states, and that was long the view that held. Rights that are not granted by virtue of being a US citizen would not be covered. To get past the plain language of the amendment, you have to engage in some pretty sophisicated legal sophistry, which the courts have done to "incorporate" various rights against the states.

My main beef with the whole 14th amendment issue is this. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.It does not say the courts have the power to enforce it.

1JimMarch
05-28-2009, 8:13 AM
That is a phrase which can be easily read as meaning that the rights we hold as citizens of the US cannot be infringed by the states, and that was long the view that held. Rights that are not granted by virtue of being a US citizen would not be covered. To get past the plain language of the amendment, you have to engage in some pretty sophisicated legal sophistry, which the courts have done to "incorporate" various rights against the states.

Except that Bingham and his supporters were absolutely vocal about what they were up to. The phrase "privilege and immunity" was to be read as the US Supreme Court in Dred Scott defined it, in order to overturn the Dred Scott decision.

As soon as the Civil War ended, Northern legislators passed laws (such as the Freedmen's Bureau Act and others) which tried to bar the South from engaging in racist behavior including the systematic disarmament of blacks. In fact, barriers against arms was the single most common type of law aimed at the former slaves.

These Northern-driven Federal laws were crippled by Dred Scott's pro-racist-laws holdings. Hence the 14th Amendment.

What's missing from my summary and found in both of those books is the various quotes from Bingham and company on all this, including many in the Congressional Record.

It's not "sophisicated [sic] legal sophistry", it's direct statements from the guys that wrote this stuff.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Except that's always how it works. Congresses passes a law of any sort and the courts enforce it.

What actually happened, as it was supposed to, was that Congress passed various laws allowing enforcement of civil rights in Federal courts, both criminal (charges filed by Federal prosecutors) and civil (claims made by regular folks). The latter statute enabling such civil claims is now famous: 42USC1983, which is the statute cited by both the Gura/Kilmer team and Gorski in their CCW challenges. That Federal law allows suing *anyone* who violates civil rights; it's phrased broadly enough that it includes any human being or group of humans, all the way up to the Federal Government itself and all state and local governments.

Or anyone else who acts against civil rights in the US and in some situations, abroad.

Erik S. Klein
05-28-2009, 8:22 AM
For the sake of completeness, I'll list a third type of "incorporation": the argument that Barron v. Baltimore was wrong in 1833 and hence the 14A isn't even necessary. This would require re-writing a LOT of Constitutional law and history going all the way back to 1833. I know of one attorney who argues this way and he actually makes a good point. Take a look at a document most people don't know exists, the preamble to the Bill Of Rights:

http://www.billofrights.org/

In other words, since the "core constitution" is effective against the states, and the BoR is "to be valid to all intents and purposes as part of the constitution", Barron v. Baltimore was the blunder that really started it all.

Very few argue that way today, but...it's not an insane position.

No, it's not an insane position. It is, in fact, the only rational one.

The rest of the arguments about incorporation are, for lack of a better way of putting it: legal BS.

No offense but lawyers make this crap up to keep themselves in business.

A good lawyer can argue that 2+2 = Buick and win the case. That doesn't make the equation right. . . ;)

So, when the 2A says that the right of the people shall not be infringed the people are the same people that live in states and cities and those who cannot do the infringing are everyone. I can't infringe on my neighbor's right, and my government (at all levels) cannot infringe on either of ours.

Period.

Incorporation is bunk.

Gray Peterson
05-28-2009, 8:23 AM
From the transcripts of McDonald v. City of Chicago

Benna Solomon: There are a number of provisions of the Bill of Rights that have not survived for incorporation purposes. The Seventh Amendment civil trial, civil jury trial right has not been incorporated. The grand jury clause has not been incorporated. If the mere inclusion of rights in the Bill of Rights were sufficient as a basis to incorporate a provision of the bill of rights, the entire Bill of Rights would have been incorporated.

Judge Easterbrook: One potential consequence of the line you're taking is the Supreme Court will overrule Slaughterhouse and incorporate everything. And then all of Chicago's administrative tribunals for handling parking tickets will suddenly become unconstitutional under the Seventh Amendment.

Benna Solomon: The Supreme Court will no doubt consider that going down the privileges and immunities road would need either a limiting principle not evident in the brief, in the arguments on the other side, or it would need to overrule the cases indicating that the grand jury clause and the Seventh Amendment are not incorporated. And the court has reaffirmed those rather recently. In short it is our submission that the prior precedent by the Supreme Court, including the Heller decision, is binding on this court. And we respectfully urge the court to go no farther than that. If the court does reach the due process issue, we urge the court to find that there is no categorical right to handguns. State and local governments in 21st century America, can decide as a prophylactic measure, to ban the single weapon most associated with homicides, suicides and other armed violence. Whatever the benefits of handguns, whatever the benefits Americans think are inherent in handguns, they do not outweigh the increased risk to ordered liberty. We therefore ask that the judgment be affirmed.

PatriotnMore
05-28-2009, 8:35 AM
A good lawyer can argue that 2+2 = Buick and win the case. That doesn't make the equation right. . . ;)

This is what concerns me regarding the SCOTUS. These are the supposed experts of Constitutional law, and a plain language text/law at that, yet we have some extremely poor rulings coming from them.
I see them, (courts and SCOTUS) more of an arm of political policy of the day, than a group of scholars dedicated to the preservation of what our founding fathers gave us. I see corruption at every level of government, and when the courts become a participant in that corruption, it is time to re-direct, and take back the system.

I can say that the win in Heller was one of the few good ruling to come from the SCOTUS in a long time, and I for one, was surprised they ruled in favor.

Maestro Pistolero
05-28-2009, 8:36 AM
Judge Easterbrook: One potential consequence of the line you're taking is the Supreme Court will overrule Slaughterhouse and incorporate everything. And then all of Chicago's administrative tribunals for handling parking tickets will suddenly become unconstitutional under the Seventh Amendment.

One man's consequence is another's blessed relief. Easterbrooke's choice of terms here is telling, is it not?

Gray Peterson
05-28-2009, 8:39 AM
One man's consequence is another's blessed relief. Easterbrooke's choice of terms here is telling, is it not?

Easterbrook has a bit of a wry sense of humor.

Erik S. Klein
05-28-2009, 9:05 AM
I can say that the win in Heller was one of the few good ruling to come from the SCOTUS in a long time, and I for one, was surprised they ruled in favor.

And a detailed reading of that "win" exposes it as not much of a win at all.

The Heller ruling was tailored specifically to Justice Kennedy. The Conservative 4 knew that the liberal 4 were against them and had to craft a ruling that was just enough of a win to attract the "moderate" Kennedy while not alienating him.

That's why incorporation wasn't considered.

That's why a ton of issues (registration, licenses, gun free zones, AWBs and the like) were deliberately ignored.

A proper ruling would have been simple: The 2A says what it says and means what it clearly means.

The pages of rambling half-decisions were of benefit, but don't re-write reality all that much.

The only real win was the elimination of the "collective rights" argument and that may well prove temporary if Obama gets another SCOTUS nomination.

ilbob
05-28-2009, 9:10 AM
I think it is fair to argue about what the guys who wrote the 14th amendment may well have meant it to mean, but what they wrote is what they wrote. Legislative intent is a long trip down a dark road.

The amendment specifically makes it the responsibility of congress to decide what is protected and how. It does not say the courts can make it up as they go.

I would have less of a problem with the whole thing if the courts just up and said the whole BOR is incorporated. This selective incorporation nonsense is just legal sophistry.

We have the bizarre situation where an enumerated right is not protected, but the right to sodomy and abortion is.

Except that Bingham and his supporters were absolutely vocal about what they were up to. The phrase "privilege and immunity" was to be read as the US Supreme Court in Dred Scott defined it, in order to overturn the Dred Scott decision.

As soon as the Civil War ended, Northern legislators passed laws (such as the Freedmen's Bureau Act and others) which tried to bar the South from engaging in racist behavior including the systematic disarmament of blacks. In fact, barriers against arms was the single most common type of law aimed at the former slaves.

These Northern-driven Federal laws were crippled by Dred Scott's pro-racist-laws holdings. Hence the 14th Amendment.

What's missing from my summary and found in both of those books is the various quotes from Bingham and company on all this, including many in the Congressional Record.

It's not "sophisicated [sic] legal sophistry", it's direct statements from the guys that wrote this stuff.



Except that's always how it works. Congresses passes a law of any sort and the courts enforce it.

What actually happened, as it was supposed to, was that Congress passed various laws allowing enforcement of civil rights in Federal courts, both criminal (charges filed by Federal prosecutors) and civil (claims made by regular folks). The latter statute enabling such civil claims is now famous: 42USC1983, which is the statute cited by both the Gura/Kilmer team and Gorski in their CCW challenges. That Federal law allows suing *anyone* who violates civil rights; it's phrased broadly enough that it includes any human being or group of humans, all the way up to the Federal Government itself and all state and local governments.

Or anyone else who acts against civil rights in the US and in some situations, abroad.

1JimMarch
05-28-2009, 10:23 AM
And a detailed reading of that "win" exposes it as not much of a win at all.

The Heller ruling was tailored specifically to Justice Kennedy. The Conservative 4 knew that the liberal 4 were against them and had to craft a ruling that was just enough of a win to attract the "moderate" Kennedy while not alienating him.

That's why incorporation wasn't considered.

Correct, except that a couple of coded "slams" against Cruikshank were dropped into Heller to give lower courts a clue that incorporation (selective OR total) is inevitable.

Remember, Cruikshank and Slaughter-House are only separated by four years. It's basically the same judges and Slaughter-House was cited favorably in Cruikshank.

So if Cruikshank is toast, Slaughter-House is on shaky ground. For starters, the Slaughter-House decision text notes the strong possibility that local political corruption was involved; today, local political corruption is regularly stomped on by the FBI so as a practical matter we've abandoned the logic in Slaughter-House indirectly.

I think it is fair to argue about what the guys who wrote the 14th amendment may well have meant it to mean, but what they wrote is what they wrote. Legislative intent is a long trip down a dark road.

That may be. But when the USSC and various circuits pretend not to know what "privileges and immunities" are when the USSC *extensively* defined it in great detail, sorry, that's fraud.

And do note that in defining P&I, the Dred Scott court didn't limit themselves to the BoR - remember the "free travel without pass or passport" thing?

That suggests we have more rights than JUST the BoR and that the right to privacy central to both Roe v. Wade and Lawrence has some grounding.

Remember: in the debates surrounding the BoR, some voices called it a mistake in that future generations might think those were ALL of our rights instead of an enumerated sample!

Hence the 9th and 10th Amendments...

Finally, in the section of the Chicago transcript Gray Peterson cites, I hope it's blindingly clear they're talking about full incorporation under the P&I clause. That's what the destruction of Slaughter-House means. That would be more intellectually honest of the court than continuing the selective incorporation fraud.

The MOST intellectually honest position would be to overturn Barron and declare that the BoR has *always* been a limit on the states. Won't happen. The USSC would have to admit the largest continuous legal blunder *ever*, lasting more than 3/4ths of the entire existence of the United States.

Ain't no way.

Maestro Pistolero
05-28-2009, 10:37 AM
Ain't no way.

I wonder how attached the justices would be to what seems to be universally accepted as repugnantly bad law. Also bad law that they had no personal hand in creating.

Slavery itself had a dualistic existence in conflict with much of the bill of rights, until the course was corrected.

As bound as they are to respect and accommodate precedent, if it's truly antiquated, unconstitutional precedent, isn't it their duty to undo it, should the opportunity arise?

Fjold
05-28-2009, 10:40 AM
Thanks for the information Jim.

I learn a lot on CalGuns.

DDT
05-28-2009, 10:59 AM
That's what the destruction of Slaughter-House means. That would be more intellectually honest of the court than continuing the selective incorporation fraud.


This is, IMHO, what should come out of Nordyke et. al. as we go to SCOTUS. It's a huge stretch to go from the request for incorporation of one right to essentially opening the flood gates to returning rights to the citizens which they have been denied for centuries.


The MOST intellectually honest position would be to overturn Barron and declare that the BoR has *always* been a limit on the states. Won't happen. The USSC would have to admit the largest continuous legal blunder *ever*, lasting more than 3/4ths of the entire existence of the United States.

This is simply false. The BoR were not meant to be applied against the states. Madison proposed an amendment he wished included in the BoR that would have, in modern parlance, "incorporated" the entire BoR. This amendment was rejected. I find it unfathomable that today's court would go so directly against the intentions of the framers on such a critical issue.

1JimMarch
05-28-2009, 11:11 AM
Madison proposed an amendment he wished included in the BoR that would have, in modern parlance, "incorporated" the entire BoR. This amendment was rejected.

Citation? First I've heard of that...

DDT
05-28-2009, 11:33 AM
Citation? First I've heard of that...

From James Madison and the Struggle for the Bill of Rights. (pg. 259)

"Madison understood that when the Bill of Rights was introduced in the First Congress, it was intended to limit the powers of the new government and not secure the rights of citizens against their states. The states, it was assumed, already provided sufficient protection for individual liberty in their constitutions, and if citizens' rights were abused, the public officials at fault would be held accountable and removed from office at teh next election.

but Madison was not satisfied that hte states would faithfully guaranatee such rights. He wanted to provide explicit protetgion for certain essential rights against encroachment by state governments, as well as the new national government. "

You should be able to find it on Google book search. I really thought this was common knowledge. I just found this specific citation but I'm sure there are many others.

bsim
05-28-2009, 11:55 AM
Good stuff here.

1JimMarch
05-28-2009, 11:58 AM
Huh. I'll look it up later. But assuming you're right, you (like me on John Bingham's intent!) are arguing legislative intent...and the rules are, the text of the law (or constitution) trump intent.

In this case, the "core constitution" says amendments have all the force of the core constitution, AND the core constitution applies to the states. The Preamble to the BoR also says the BoR works just like the core constitution.

Seems pretty solid.

Mind you, I fully realize this is just a mental exercise: like I said, no way in hell the Nine Robes In DC will ever admit a blunder as fundamental as Barron.

We agree that of the other two methods of incorporation, complete via nuking Slaughter-House is the better route. We could however survive OK with selective (as Nordyke went with, although they *suggested* nuking Slaughter-House...).

Maestro Pistolero
05-28-2009, 12:06 PM
Mind you, I fully realize this is just a mental exercise: like I said, no way in hell the Nine Robes In DC will ever admit a blunder as fundamental as Barron.

Again, what makes you so sure of that? Were there other ripe opportunities to undo wrong-headed and unconstitutional law where the present court refused due to an unwillingness admit a fundamental blunder ?

Erik S. Klein
05-28-2009, 12:08 PM
This is simply false. The BoR were not meant to be applied against the states. Madison proposed an amendment he wished included in the BoR that would have, in modern parlance, "incorporated" the entire BoR. This amendment was rejected. I find it unfathomable that today's court would go so directly against the intentions of the framers on such a critical issue.

Nonsense. Madison aside the BOR recognizes natural rights. Nothing is granted and any restrictions on those rights by the government - at any level - is unconstitutional.

DDT
05-28-2009, 12:33 PM
Mind you, I fully realize this is just a mental exercise: like I said, no way in hell the Nine Robes In DC will ever admit a blunder as fundamental as Barron.

We agree that of the other two methods of incorporation, complete via nuking Slaughter-House is the better route. We could however survive OK with selective (as Nordyke went with, although they *suggested* nuking Slaughter-House...).

I disagree with your characterization of Barron as a blunder. My understanding (as a layperson, not a constitutional scholar) is that the BoR was never intended to be held against the states. I am fairly strongly in the "original intent" camp though and if one holds that ideal it is difficult to escape the conclusion that the BoR should not have been applied against the states until the 14th was ratified. However; a consistent approach to interpretation would require one to hold that the 14th was intended to provide all citizens with the same protections against state infringement that the BoR provided against federal infringement. And yes, I do firmly believe that P&I is the correct route for incorporation of all enumerated civil rights. Selective incorporation, IMO, should be only for rights not specifically enumerated but held to be protected.

DDT
05-28-2009, 12:34 PM
Nonsense. Madison aside the BOR recognizes natural rights. Nothing is granted and any restrictions on those rights by the government - at any level - is unconstitutional.

Where have you heard this? From a reputable scholar or contemporaneous notes/letters/newspapers?

Erik S. Klein
05-28-2009, 1:03 PM
Where have you heard this? From a reputable scholar or contemporaneous notes/letters/newspapers?

Both, plus the documents themselves from the Declaration of Independence forward including The Constitution, The Bill of Rights, the Federalist and Anti-Federalist papers and so on.

"We hold these truths to be self-evident. . . "

The BoR is internally consistent and consistent with The Constitution itself in the use of various terms including "the People" and the thrust of that portion of the documentation is clearly designed to enumerate some of the natural rights of the people (speech, assembly, religion, self defense, castle doctrine, fair trial etc.) which the government cannot infringe upon.

Hamilton wrote in the Federalist Papers that "the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS."

From Blackstone forward the founders were concerned most with individual rights and they created a government designed from the ground up to preserve these rights.

In fact, the major objections to the BoR at the time were that the listing of some rights might be construed to limit any unstated rights - hence the 9th Amendment.

There is no way they intended to simply pass the buck on restricting rights to the States.

They clearly recognized the rights of the people as exactly that and intended for those rights to be preserved and protected from all opposition.

7x57
05-28-2009, 1:13 PM
Nonsense. Madison aside the BOR recognizes natural rights.

You fail to distinguish between legal rights and natural rights. Unquestionably Madison and all the rest believed in natural rights--they had a stronger reason to emphasize it than people today know. The legal theory the government they knew was based on was Divine Right of kings, and still is today. And according to that theory the entire Revolution was categorically illegal and immoral regardless of provocation. They had to explain to the world that what they did was not rebellion against God as well as the king, but instead a *good* thing. Their argument was based on natural rights. So it wasn't simply good government at stake, but the legitimacy of any American government at all.

But legal rights are a different thing. This discussion is about which natural rights have legal force and can be defended in court, as opposed to which ones cannot be defended in court and must be defended in the legislature. Recall the saying about the four boxes to be used in the defense of liberty: soap, ballot, jury, and ammo? Some rights cannot be defended by the use of every box. It depends on precisely what the Constitution did with that right.

I will offer an example. I believe that freedom of speech implies freedom to copy information. By nature, I am free to make any device I know how to make, including one invented by others. Similarly, I am free to write anything I wish, including something that is not original with me. This, I believe, is a Natural Right connected to Freedom of Speech. However, it does have a problem--it encourages hoarding of information. So the social compact the framers bound us to involves surrendering some of this right to government control through the patent clause. The reason they gave is that if we allow a specific infringement of this right for a limited time, then after the protection expires *more* knowledge will be in the public domain than if the right were unfettered.

This is analogous to many other features of the law--we surrender part of our inherent monopoly on force to the government so that it may enforce the laws. Total freedom is totally unstable, because groups are inherently more effective than individuals. So the core idea of government is to accept this and create the best group we know how. We have government not because it is good in itself but because it is better than warlords, clans, and gangs. We even--dangerous thought!--allow the state the power of the sword, because if we don't it cannot take the place of the warlords, clans, and gangs who can never be deprived of that power.

However, how broad is the grant of federal power to infringe on freedom of information through patents, trademarks, copyrights, and the like? Be careful--the phraseology is very like the 2A, and the more implicit limitations you accept in the patent clause the more you're going to have to accept on the 2A. In any case I believe the grant is more or less complete, just as the reservation of right in the 2A is more or less complete.

The upshot is that while I have a natural right to Freedom of Information, if the government goes too far and infringes on it in a way that does *not* serve the public interest stated in the prefatory part, I do not believe I have recourse to the courts unless the infringement touches on some other right. I have a natural right with little legal protection. I am not helpless, but my recourse is to the ballot box and the soap box but not, in this case, to the jury box.

The upshot is that you argue for original incorporation based on the existence of inherent Natural Rights which the legal rights are designed to protect. You claim that this must a priori be true. But the one does not follow from the other--it depends on exactly how the natural right was intended to be protected. It is *not* fraud to claim that state court was originally your only recourse against state tyranny. It is a priori just as reasonable a position as yours, probably moreso given that the system was designed by people who trusted their state governments and greatly distrusted a federal one. A priori arguments only work if the answer is unambiguous, and since in this case it is not we have to do the hard work of digging into the text of the law and how it was read and understood by those who made the social compact.

7x57

PatriotnMore
05-28-2009, 1:19 PM
^ excellent post, as well as, all the others here. I am continually impressed with the quality of people that participate on this forum.

DDT
05-28-2009, 1:21 PM
Nonsense. Madison aside the BOR recognizes natural rights. Nothing is granted and any restrictions on those rights by the government - at any level - is unconstitutional.

Fundamental Rights: History of a Constitutional Doctrine
(also on Google books pg. 11)
When the frist Congress adopted the amendments to the Constitution, and the States ratified them, and they becamse the Bill of Rights, it was clearly understood that these amendments would be guarantees only against actions by Congress and the Federal Government. The Bill of Rights was not intended to be a limitation on actions by the States.

7x57
05-28-2009, 1:23 PM
I am fairly strongly in the "original intent" camp though and if one holds that ideal it is difficult to escape the conclusion that the BoR should not have been applied against the states until the 14th was ratified.


One problem with "original intent" is that we very often have no information about intent beyond the law itself, which makes it an incomplete hermeneutic. The other is that people at the time it was passed didn't read through the discussions and private papers, but rather read the law to know what was legal and what was not. Dragging in "intent" creates a hermeneutic as fuzzy and indistinct as the "living Constitution."

For those reasons, I think "Original Public Meaning" is better.


However; a consistent approach to interpretation would require one to hold that the 14th was intended to provide all citizens with the same protections against state infringement that the BoR provided against federal infringement. And yes, I do firmly believe that P&I is the correct route for incorporation of all enumerated civil rights. Selective incorporation, IMO, should be only for rights not specifically enumerated but held to be protected.

What seems beyond question is that selective incorporation is wrong, stupid, ahistorical, and exists only to permit *some* Jim Crow laws (such as "no negros with guns") to survive and be applied against the entire population. Basically, it allows *all* citizens to be treated as n****** during segregation (and I use that term precisely because it is offensive and for the specific reason that it implies precisely the attitude toward all citizens that the Jim Crow era governments took toward black citizens).

My bet is that the "original meaning" of the BoR is indeed only against the federal government, but this is purely academic because the situation after the ratification of the 14th is exactly the same as it would be if I am wrong and the BoR were incorporated originally. The only situation unacceptable in practical terms is the fraud of selective incorporation.

7x57

DDT
05-28-2009, 1:27 PM
Both, plus the documents themselves from the Declaration of Independence forward including The Constitution, The Bill of Rights, the Federalist and Anti-Federalist papers and so on.

"We hold these truths to be self-evident. . . "

The BoR is internally consistent and consistent with The Constitution itself in the use of various terms including "the People" and the thrust of that portion of the documentation is clearly designed to enumerate some of the natural rights of the people (speech, assembly, religion, self defense, castle doctrine, fair trial etc.) which the government cannot infringe upon.

Hamilton wrote in the Federalist Papers that "the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS."

From Blackstone forward the founders were concerned most with individual rights and they created a government designed from the ground up to preserve these rights.

In fact, the major objections to the BoR at the time were that the listing of some rights might be construed to limit any unstated rights - hence the 9th Amendment.

There is no way they intended to simply pass the buck on restricting rights to the States.

They clearly recognized the rights of the people as exactly that and intended for those rights to be preserved and protected from all opposition.


uh... so basically you have nothing? If you could please let me know of ANY document that relates to our actual history or the words of the founders that says the BoR was intended to apply against the several States it would go a lot further than just quoting snippets unrelated to the issue at hand.

DDT
05-28-2009, 1:39 PM
For those reasons, I think "Original Public Meaning" is better.

My bet is that the "original meaning" of the BoR is indeed only against the federal government, but this is purely academic because the situation after the ratification of the 14th is exactly the same as it would be if I am wrong and the BoR were incorporated originally. The only situation unacceptable in practical terms is the fraud of selective incorporation.


You are absolutely right about pre-14th amendment incorporation being an academic discussion, but then this is an academic discussion. :D

I think there is plenty of evidence that the BoR was not intended to bind the states. The most glaring logical argument (aside from the documented intent and reasoning already posted) is the fact that the BoR was promised and then written expressly to address concerns by many states that they were potentially creating a federal government that would usurp their powers. It would make no sense that the BoR would be written to quell these States' fears and simultaneously limit their powers. The reasons for the BoR were obviously part of the "original public meaning" and that alone should show that the BoR wasn't written with the intent of binding the States. The text of the BoR can be read either supporting a federal limitation only or, at best, as ambiguous. As Erik stated the BoR are part of the constitution and should be read as such. the operative limitation in the constitution is "congress shall make no law..." this is clearly a limit on the federal congress and not the several States.

I think that in hindsight it is very easy to underestimate the importance of "States Rights" in the mid-late 18th century. These States were all independent nations until the constitution was ratified.

GaryV
05-28-2009, 2:02 PM
Hamilton wrote in the Federalist Papers that "the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS."

The use of this Hamilton quote in this conversation is taking it out of context and misconstruing its meaning. This quote has nothing to do with the application of the Constitution or the BoR to the states. Hamilton was a Federalist. They were opposed to the inclusion of a BoR in the Constitution. One of their primary arguments, and what Hamilton is referring to in this quote, was the concept that the federal government was not to have any powers not explicitly granted to it in the Constitution (the only function of which was to describe the form and powers of the Federal government, and in no way apply to the states, except in how the powers of the federal government related to them), and therefore any right that anyone could dream up that the Constitution didn't explicitly give the federal government power over was automatically retained by the People or the various states (as it says in the 10th Amendment, which was, along with the 9th, an attempt to address the concerns of the Federalists).

Enumerating all those rights would take a whole library, and then still wouldn't be complete. That inevitable incompleteness would lead to the government making the argument that we didn't have any rights that were not enumerated.

What he was doing here was arguing against the need for a BoR at all, because the federal government was never meant to grow in power beyond what the Constitution already allowed.

Erik S. Klein
05-28-2009, 2:18 PM
The upshot is that you argue for original incorporation based on the existence of inherent Natural Rights which the legal rights are designed to protect.

Exactly.

You claim that this must a priori be true.

No, I claim that this is embodied within the documents cited – the Declaration of Independence, The Constitution, The Bill of Rights. The wording selected by our founding fathers was very precise. When they wrote something like “The Right of the People…Shall not be infringed” they meant it as absolutely as it sounds.

The text of the BoR, individually and as a whole, is unambiguous.

One problem with "original intent" is that we very often have no information about intent beyond the law itself, which makes it an incomplete hermeneutic.

[...]

What seems beyond question is that selective incorporation is wrong, stupid, ahistorical, and exists only to permit *some* Jim Crow laws (such as "no negros with guns") to survive and be applied against the entire population. Basically, it allows *all* citizens to be treated as n****** during segregation (and I use that term precisely because it is offensive and for the specific reason that it implies precisely the attitude toward all citizens that the Jim Crow era governments took toward black citizens).

I agree with all of this. . .

My bet is that the "original meaning" of the BoR is indeed only against the federal government, but this is purely academic because the situation after the ratification of the 14th is exactly the same as it would be if I am wrong and the BoR were incorporated originally. The only situation unacceptable in practical terms is the fraud of selective incorporation.

This too, except for the "bet." :D

Erik S. Klein
05-28-2009, 2:21 PM
Fundamental Rights: History of a Constitutional Doctrine
When the frist Congress adopted the amendments to the Constitution, and the States ratified them, and they becamse the Bill of Rights, it was clearly understood that these amendments would be guarantees only against actions by Congress and the Federal Government. The Bill of Rights was not intended to be a limitation on actions by the States.
(also on Google books pg. 11)

So the states could quarter troops, establish state religions, prohibit assembly and arrest without reason?

I don't think so.

uh... so basically you have nothing? If you could please let me know of ANY document that relates to our actual history or the words of the founders that says the BoR was intended to apply against the several States it would go a lot further than just quoting snippets unrelated to the issue at hand.

The single snippet was not unrelated. It demonstrated clearly that the entire Constitution was intended to preserve individual rights.

The documents states: Declaration, Constituion and BoR are very clear in this.

Erik S. Klein
05-28-2009, 2:26 PM
The use of this Hamilton quote in this conversation is taking it out of context and misconstruing its meaning.

No, as stated above the quote (and surrounding text) clearly shows that Hamilton believed that the government on the whole - as with its documents - ensured individual rights.

State or Federal limitations were both equally prohibited as the rights were retained by the people.

This quote has nothing to do with the application of the Constitution or the BoR to the states.

Not directly, no. It was used to indicate state of mind.

They were opposed to the inclusion of a BoR in the Constitution. One of their primary arguments, and what Hamilton is referring to in this quote, was the concept that the federal government was not to have any powers not explicitly granted to it in the Constitution (the only function of which was to describe the form and powers of the Federal government, and in no way apply to the states, except in how the powers of the federal government related to them), and therefore any right that anyone could dream up that the Constitution didn't explicitly give the federal government power over was automatically retained by the People or the various states (as it says in the 10th Amendment, which was, along with the 9th, an attempt to address the concerns of the Federalists).

Pretty much, but the point I highlighted was that he believed that the rights were inherently in the document(s) and didn't need to be enumerated.

Enumerating all those rights would take a whole library, and then still wouldn't be complete. That inevitable incompleteness would lead to the government making the argument that we didn't have any rights that were not enumerated.

As I said in a previous post.

What he was doing here was arguing against the need for a BoR at all, because the federal government was never meant to grow in power beyond what the Constitution already allowed.

And because the rights expressed were innate and inviolate and, as such, didn't require mention.

DDT
05-28-2009, 2:30 PM
So the states could quarter troops, establish state religions, prohibit assembly and arrest without reason?


Yes, they could. Strangely enough (and competely unrelated) you chose the only amendment in the BoR that has never been tested in the courts.


The single snippet was not unrelated. It demonstrated clearly that the entire Constitution was intended to preserve individual rights.

The documents states: Declaration, Constituion and BoR are very clear in this.

No they are not. This is one of those rare rhetorical instances where an appeal to authority is clearly appropriate. I have given a number, do you think you could provide ONE?

Erik S. Klein
05-28-2009, 2:38 PM
Yes, they could. Strangely enough (and competely unrelated) you chose the only amendment in the BoR that has never been tested in the courts.

I chose several amendments. Quartering troops was never tested but are you implying that, prior to the 14th, at least, New Jersey could decide that it was a Roman Catholic state and make that the State Religion, barring all others?

Are you suggesting that New York could bar any speeches to an audience of more than 5 people?

Could California ban all weapons of any kind, offensive and defensive?

Regardless of the 14th The Constitution makes it quite clear that they couldn't.

No they are not. This is one of those rare rhetorical instances where an appeal to authority is clearly appropriate. I have given a number, do you think you could provide ONE?

I have. If you'd like specific quotes from outside of those three documents you'll have to wait a bit since I don't have time to dig around in other primary sources at the moment.

But, as I've said, the use of "The People" and "Shall not be infringed" (as opposed to "shall not be infringed by the federal government" - never once mentioned in the BoR) is quite clear.

7x57
05-28-2009, 2:54 PM
Yes, they could. Strangely enough (and competely unrelated) you chose the only amendment in the BoR that has never been tested in the courts.


If you mean the third, it has been tested and is incorporated in the second circuit:
Engblom v. Carey (http://en.wikipedia.org/wiki/Engblom_v._Carey). Gene Hoffman threw that at me when I claimed the 3rd was not incorporated. :rolleyes:


No they are not. This is one of those rare rhetorical instances where an appeal to authority is clearly appropriate. I have given a number, do you think you could provide ONE?

The rhetorical situation is that he *is* providing an authority--with the additional assumption of a particular hermeneutic. You (and I) question that hermeneutic, and so are asking him to cite an authority *for his hermeneutic.*

In other words, you can't have a conversation unless you deal with your differing interpretive schema. His argument is "it's clear from the text without any further explanation necessary," yours is "your hermeneutic can't be correct because the following contemporaries didn't agree with it."

My personal position is that "it's clear" usually means someone reading the text in our context instead of the historical one, and if you do that you are a closet "Living Constitution" interpreter who simply has a different agenda but the same hermeneutic. Unless he addresses the historical understanding, it seems he is claiming greater understanding of late eighteenth century technical legal language than trained eighteenth century lawyers, which is unpersuasive.

"A text without a context is a pretext (for whatever you want it to mean)." As an example of why this is true, consider a law proposed by Thomas Jefferson (a Virginia state law, IIRC) denying the carrying of guns by those convicted of poaching. If we interpret this naively as Mr. Klein wishes to interpret the Constitution, it seems that Mr. Jefferson believed that the right to self-defense could be denied for offenses as trivial as poaching. That would cause us *enormous* legal problems. And yet what could be clearer? If you poach, you can't carry a gun. End of story.

Except it isn't the end of the story, if you understand the context. "Gun" in eighteenth century usage meant what we would now call "longarms." It specifically excluded handguns. So the proposed law did not deny a man armed self-defense--it merely limited it to arms poorly suited to taking game. Whatever we think of that, it does attempt to minimize the infringement of the human right to defense.

One thing we could think of it is that Mr. Jefferson still thought about the game a little bit in the way the English aristocracy did, but that's not germane to the real point--which is that without a context we cannot even understand words supposedly as simple as "gun." So Mr. Klein needs to demonstrate that his "clear" reading is clear in an eighteenth century context, which he so far has not addressed. I am willing to be persuaded, but only by a historically valid reading and not one that is "clear" in the usage of a very different time.

7x57

hoffmang
05-28-2009, 2:59 PM
States did establish religions. 9 of the 13 colonies established a state religion as late as the 1770s and not all of those establishments ended during the Articles of Confederation or even after the ratification of the Bill of Rights.

From wikipedia, but I've independently confirmed this to be accurate:
Connecticut continued to do so until it replaced its colonial Charter with the Connecticut Constitution of 1818; Massachusetts did not disestablish its official church until 1833, more than forty years after the ratification of the First Amendment; and local official establishments of religion persisted even later.http://en.wikipedia.org/wiki/State_religion#Disestablishment

-Gene

Erik S. Klein
05-28-2009, 3:17 PM
The rhetorical situation is that he *is* providing an authority--with the additional assumption of a particular hermeneutic. You (and I) question that hermeneutic, and so are asking him to cite an authority *for his hermeneutic.*

I guess.

But then I'm not a real big fan of redefining the meaning of "is."

I don't think the language of the documents in question is all that ambiguous.

Maybe it's just me.

In other words, you can't have a conversation unless you deal with your differing interpretive schema. His argument is "it's clear from the text without any further explanation necessary," yours is "your hermeneutic can't be correct because the following contemporaries didn't agree with it."

Kind-of.

My personal position is that "it's clear" usually means someone reading the text in our context instead of the historical one, and if you do that you are a closet "Living Constitution" interpreter who simply has a different agenda but the same hermeneutic. Unless he addresses the historical understanding, it seems he is claiming greater understanding of late eighteenth century technical legal language than trained eighteenth century lawyers, which is unpersuasive.

Nonsense.

Yes context would help, but there is no substantial difference between contemporary and modern context as far as this discussion is concerned.

"A text without a context is a pretext (for whatever you want it to mean)." As an example of why this is true, consider a law proposed by Thomas Jefferson (a Virginia state law, IIRC) denying the carrying of guns by those convicted of poaching. If we interpret this naively as Mr. Klein wishes to interpret the Constitution, it seems that Mr. Jefferson believed that the right to self-defense could be denied for offenses as trivial as poaching. That would cause us *enormous* legal problems. And yet what could be clearer? If you poach, you can't carry a gun. End of story.

Except it isn't the end of the story, if you understand the context. "Gun" in eighteenth century usage meant what we would now call "longarms." It specifically excluded handguns. So the proposed law did not deny a man armed self-defense--it merely limited it to arms poorly suited to taking game. Whatever we think of that, it does attempt to minimize the infringement of the human right to defense.

Interesting anecdote but not persuasive; ad hominem notwithstanding.

One thing we could think of it is that Mr. Jefferson still thought about the game a little bit in the way the English aristocracy did, but that's not germane to the real point--which is that without a context we cannot even understand words supposedly as simple as "gun." So Mr. Klein needs to demonstrate that his "clear" reading is clear in an eighteenth century context, which he so far has not addressed. I am willing to be persuaded, but only by a historically valid reading and not one that is "clear" in the usage of a very different time.

I understand where you are coming from but disagree that the context is missing. As I've stated the context is internal to the set of documents in question and their consistency speaks to the validity of my "interpretation" of said context.

Additional materials would help, of course, but it is my considered opinion that they aren't necessary.

GaryV
05-28-2009, 3:37 PM
So the states could quarter troops, establish state religions, prohibit assembly and arrest without reason?

I don't think so.


Then you'd be wrong, at least on the state religion question. Several states DID have official state religions.

Pretty much, but the point I highlighted was that he believed that the rights were inherently in the document(s) and didn't need to be enumerated.

Sort of, but not in a way that supports the view that it applies to the states. What he and the other Federalists believed was that all that was in the document were the limited powers of the federal government. But because the federal government would have no other powers than those explicitly given it in the Constitution, it (the federal government) would never be able to go beyond these limits. His comment about it being a BoR is that by defining powers they were implying that everything else was off limits to federal power.

They also very much understood that the federal constitution was just that: federal. The individual states already had their own individual state constitutions, defining the powers and limits of the state governments. Several states even modified their constitutions after the fact, sometimes to conform more to the federal BoR, implying that they felt that the changes were not redundant to the federal constitution. And as I noted above about official religions, states without enumerated rights in their own constitutions matching those in the federal BoR did in fact officially violate some of those rights.

7x57
05-28-2009, 3:37 PM
are you implying that, prior to the 14th, at least, New Jersey could decide that it was a Roman Catholic state and make that the State Religion, barring all others?


That is precisely what he is stating, not merely implying. Most of the states ("most" is a hedge so I don't have to look up whether it was "all") had established churches in 1789 and some continued to have them for about a generation, at least until Massachusetts in 1833. Consider therefore Wikipedia's entry on "National Church" (http://en.wikipedia.org/wiki/National_church):


The First Amendment to the US Constitution explicitly forbids the U.S. federal government from enacting any law respecting a religious establishment, and thus forbids either designating an official church for the United States, or interfering with State and local official churches — which were common when the First Amendment was enacted. It did not prevent state governments from establishing official churches. Connecticut continued to do so until it replaced its colonial Charter with the Connecticut Constitution of 1818; Massachusetts did not disestablish its official church until 1833, more than forty years after the ratification of the First Amendment; and local official establishments of religion persisted even later.


Note that the religion clauses are not so individualistic as modern Libertarians believe--they protected state churches from the Federal government as well. Many people liked their state church in 1789, and what they feared was other states using federal power to impose, say, a Congregational church on Presbyterians. You are reading modern concerns into a document not designed to address them.

In short, the religion clauses protected churches established by the states from being disestablished by any other entity except the state itself.


Regardless of the 14th The Constitution makes it quite clear that they couldn't.


Your position amounts to the claim that no one in the generation that wrote and ratified the Constitution followed it. What did they actually do within the framework as they understood it? Consider the following paper, which was trivial to find with Google:
http://www.allbusiness.com/legal/laws/954193-1.html
(http://www.allbusiness.com/legal/laws/954193-1.html).



Disestablishment did not come abruptly as a consequence of the Revolutionary War and the ensuing formation of constitutional states. Nor did disestablishment come about as a consequence of the 1787 Constitution or because of the ratification of the First Amendment in 1791. Nor was disestablishment spurred forward as a downstream consequence of the Establishment Clause of the First Amendment. Rather, disestablishment was a state-law affair that had already been percolating in some states when they first adopted constitutions in 1776 and which continued on until completed in 1833. Each state that once had an established church has a unique story to tell on its path to the adoption of religious voluntaryism.

Travelers to the early American republic were struck by how very "thin the overlay of [the new] national government . . . was" on the country, and how any initiative concerning matters as problematic as church-state relations unquestionably remained with the individual states. As to the First Amendment, it was well understood at the time of its ratification that the religion clauses (indeed the entire Bill of Rights) were adopted out of a felt need to restrain the new national government. Thus the Establishment Clause, by its terms and its design, was to preserve-as a matter of residual state sovereignty-full authority in the states concerning how the law was to deal in any frontal way with the thorny matter of religion. Indeed, it is not too strong to say that during the early republic, the First Amendment was of little use as a standard around which to rally the forces in support of disestablishment. Rather, disestablishment was a state-by-state affair, and hard work at that. It was a veritable slog with the path forward marked by local concerns and local personalities, as opposed to an issue that some continental-spanning crisis had elevated to a matter of national importance.


(emphasis mine)

It looks like that paper also answers the "some or all" question I raised earlier:



The account of state-by-state disestablishment that follows is roughly chronological. Disestablishment, more or less, began in the Middle Colonies, moved to the South, and arrived finally in New England. In the case of Delaware and New Jersey, their first constitutions, both adopted in 1776, codified a de facto disestablishment earlier brought about in each colony by voluntaryistic sentiments among Protestant sects. Pennsylvania243 and Rhode Island244 can be put to one side as never having had establishments.

If a religious establishment is measured by the legal authority to assess taxes for church support, then disestablishment occurred in the remaining states in the following order: North Carolina (1776), New York (1777), Virginia (1776-1779), Maryland (1785), South Carolina (1790), Georgia (1798), Vermont (1807), Connecticut (1818), New Hampshire (1819), Maine (1820), and Massachusetts (1832-1833).



Once again, the picture is consistent: the Constitution is not restricting the state's religious orders, it is preserving them free of interference by other states through the Federal government. In this period, the only entity restricted from establishing a church was the Federal government. I'd even go so far as to guess that the only reason the 14th amendment was possible to pass was that the states had voluntarily disestablished already. If a reasonable number of the Northern states still had established churches, I bet they would never have allowed the *feds* to disestablish them.


But, as I've said, the use of "The People" and "Shall not be infringed" (as opposed to "shall not be infringed by the federal government" - never once mentioned in the BoR) is quite clear.

Would you please quit saying "it is clear" without addressing the problem that you you mean "would be clear if written two hundred years later"? The actual evidence posted on this thread so far is that precisely the opposite of what you claim was clear to the contemporaries, and that means what you say is clear is in fact very much NOT clear to me.

I challenge both you and Jim March to find examples of "original establishment." Jim's sources in general are great (I particularly thank him for explaining the origin of the puzzling phrase "privileges and immunities" as being a direct frontal assault on Dred Scott), but this thread is increasing my confidence that he's wrong that this "original incorporation" argument is a really defensible position.

Once again, however, I am happy that the practical consequences are minimal as there should be no practical difference after the ratification of the 14A. Thus, we can have fun without it being too scary for our 2A efforts. As of 140 years ago the states are unquestionably liable in federal court for their infringements of the RKBA, and by God and Jefferson we mean to take them there.

7x57

7x57
05-28-2009, 3:42 PM
I guess.

But then I'm not a real big fan of redefining the meaning of "is."


Fair enough, but I claim that it is you who are "redefining is."


I understand where you are coming from but disagree that the context is missing. As I've stated the context is internal to the set of documents in question and their consistency speaks to the validity of my "interpretation" of said context.

Additional materials would help, of course, but it is my considered opinion that they aren't necessary.

But they are, and we've seen the evidence in this thread. "Privileges and immunities" is in fact an opaque phrase without the external historical context of overturning Dred Scott. And it is precisely that opacity that allowed the segregationist courts to pretend it didn't incorporate the BoR and other protections en bloc. What they did was to interpret that phrase without external context, and it led to much of the trouble we have with the non-protection of the Second Amendment for more than a century.

7x57

Erik S. Klein
05-28-2009, 3:53 PM
I've read up to this point and thank y'all for making me aware of the state religions issue (gonna have to get a refund on my History degree. Ick.)

I may have to rethink my "original incorporation" argument a bit. I still firmly believe that the framers of The Constitution meant that the rights they were enumerating (and even those they didn't) were inviolate, even by the states.

Based on my readings of The Federalist Papers, Blackstone and other contemporaneous sources I can't see that the founders would have accepted innate violations of those rights by the states or by anyone else.

Then again, they were slave owners who did not grant women suffrage, so. . .

7x57
05-28-2009, 4:14 PM
I've read up to this point and thank y'all for making me aware of the state religions issue (gonna have to get a refund on my History degree. Ick.)


If you can do that, I very much want a refund, and damages, for getting an education in Western civilization that was opposed to every Western value and institution. Set a precedent for it, will ya? I want to sue for being taught to disobey the Constitution and feel all righteous about it. :43:


I still firmly believe that the framers of The Constitution meant that the rights they were enumerating (and even those they didn't) were inviolate, even by the states.

Based on my readings of The Federalist Papers, Blackstone and other contemporaneous sources I can't see that the founders would have accepted innate violations of those rights by the states or by anyone else.


I actually agree that is true--what I don't agree with is that the federal government was the avenue to obtain redress. Don't confuse goal with means. I believe they expected us to obtain relief against the states in the state legislature, and if that failed in the state courts. They feared federal misconduct more than state misconduct.

Essentially it was segregation that motivated the Northern reconstructionists to create a new grant of power to the Feds, to impose the federal minimum standard on the States. It created basically a second means of redress.


Then again, they were slave owners who did not grant women suffrage, so. . .

And quite consistently so. Those things are only inconsistent when viewed in a modern context. Whether they are good ideas, or whether they sufficiently implemented the ethical and political theory into a political reality is another question, but there are vast numbers of bad policies that are never the less Constitutional. Prohibition was done appropriately and Constitutionally, through a fresh grant of power, but was a bad policy choice.

No legal mechanism can protect against foolishness.

7x57

ilbob
05-29-2009, 10:48 AM
Huh. I'll look it up later. But assuming you're right, you (like me on John Bingham's intent!) are arguing legislative intent...and the rules are, the text of the law (or constitution) trump intent.

In this case, the "core constitution" says amendments have all the force of the core constitution, AND the core constitution applies to the states. The Preamble to the BoR also says the BoR works just like the core constitution.

Seems pretty solid.
Now you are just reaching. Very little in the core constitution even refers to the states except prohibiting certain powers to them.

Erik S. Klein
05-29-2009, 11:14 AM
If you can do that, I very much want a refund, and damages, for getting an education in Western civilization that was opposed to every Western value and institution. Set a precedent for it, will ya? I want to sue for being taught to disobey the Constitution and feel all righteous about it. :43:

I'll see what I can do! ;)

I actually agree that is true--what I don't agree with is that the federal government was the avenue to obtain redress. Don't confuse goal with means. I believe they expected us to obtain relief against the states in the state legislature, and if that failed in the state courts. They feared federal misconduct more than state misconduct.

Understood. I realize that we are debating nuance when we both essentially believe the same thing - that piecemeal or selective incorporation is inappropriate.

At this juncture, with the 14th in place, it seems ludicrous to argue that the entire BoR isn't incorporated.

Essentially it was segregation that motivated the Northern reconstructionists to create a new grant of power to the Feds, to impose the federal minimum standard on the States. It created basically a second means of redress.

And it was the events surrounding this, the Civil War, that ultimately sowed the seeds of the destruction of America by replacing state power with Federal power.

And quite consistently so. Those things are only inconsistent when viewed in a modern context. Whether they are good ideas, or whether they sufficiently implemented the ethical and political theory into a political reality is another question, but there are vast numbers of bad policies that are never the less Constitutional. Prohibition was done appropriately and Constitutionally, through a fresh grant of power, but was a bad policy choice.

Agreed.

No legal mechanism can protect against foolishness.

In some ways that's very sad. It's also the most conspicuous thing that liberals are incapable of understanding.

Meanwhile I have to restructure my reading list again. . .

fatirishman
05-29-2009, 12:27 PM
In general, 7x57 has been pretty sound in his history, law and logic. However, now that this discussion has veered well into almost purely academic territory, it is less than clear that complete incorporation is appropriate. I tend to read the 14th in two parts:
1) The P&I clause protects substantive rights (which would include most, but not all, of the BoR)
2) The Due Process clause protects procedural rights, but provided the process is sufficiently due, no single mechanism is necessary.
Now, this would really only affect a couple of provisions of the BoR; specifically the right to a jury trial in civil cases seeking damages ("suits at common law" Amnd 7) and, more controversially, certain procedural protections afforded to criminal defendants (there are a few others that are increasing reaches). (Long story short - criminal procedure assumes the status of substance much more readily than civil procedure.)
This is an important distinction, because while I think this the best read of the language and context of the 14th Amendment (and, incidentally, protects the 2nd quite well), it makes much more sense of the amendment and context.

P.S. On the enforcement issue - I suppose one could claim that the federal judiciary has no role in enforcing Constitutional rights, except as explicitly granted by congress. However, once a statute (or common law decision, for that matter, or regulation, etc.) is deemed unconstitutional by the competent body, enforcement of it would run afoul of federal civil rights laws - both civil and criminal.

1JimMarch
09-30-2009, 1:39 PM
I'm bringing this back up in light of the USSC decision to hear incorporation.