Our Supreme Court, the rule of law and judicial tyranny

[johnwk]

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In 1803 Chief Justice Marshall wrote:


”The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?” ______ MARBURY v. MADISON, 5 U.S. 137 (1803)


Unfortunately, our Supreme Court has found a clever process to circumvent both the text, and legislative intent of our constitution as it was expressed during its framing and ratification debates … debates which give meaning and context to our Constitution’s text. During this process the very limits agreed to by the people in a written constitution are set aside and replaced by the arbitrary whims and fancies of the Court’s majority, which is then asserted to be the rule of law, but in effect is judicial tyranny. The mechanics of this subversive process is very interesting to study.

One of the Supreme Court‘s methods used to set aside the limits of our constitution are various tests the Court has invented which were unknown to our Founders. These “tests” began to appear and gain a foothold during the Warren Court. One such test [e.g., see Loving v. Virginia, 1967] was the rational based test under which a law being challenged had to withstand the Court’s judgment that the law in question was “rationally based” or “reasonable” to survive the Court‘s review. Of course, this allows the Court’s members to switch the subject from what is and what is not constitutional, to a subjective question having nothing to do with the constitutionality of the law.

Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.

For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race, and the Supreme Court upheld the denial of employment because the local government managed to present an “exceedingly persuasive justification” for not hiring black females. This is what these tests are about. The tests are not designed to establish the true intent and meaning of our Constitution and enforce it. They are designed to create an opportunity for a majority on the court to second guess the wisdom of our Constitution and/or duly passed legislation, and strike it down or uphold it depending on the majorities’ personal predilections, its sense of social justice, fairness, or reasonableness, and without regard to the true intent and meaning of our Constitution.



Keep in mind our wise Founders provided Article V, our Constitution’s amendment process, to change our constitution’s commands and upgrade it to accommodate changing times. And unlike a renegade majority cabal on our Supreme Court ignoring our Constitution’s text and legislative intent, and imposing its personal whims and fancies as the rule of law, our Constitution’s amendment process requires consent of the governed by the limits outlined in Article V, when and if a defect is alleged to be found in our Constitution and change is required.

By the early 1970’s the Court using a variety of invented “tests” [rationally based, compelling state interest, intermediate scrutiny, strict scrutiny, etc.], effectively began to hand down majority opinions which were not based on the text and the documented intentions and beliefs under which our Constitution was adopted. The Court, using this new “test” process to validate its opinions, began to impose its own subjective ideas of social justice, fairness and reasonableness as the rule of law and without regard to the true intent and meaning of our Constitution.

Some of the important cases which demonstrate the Court’s assumption of legislative power by second guessing the wisdom of legislation using these newly created tests are Reed vs. Reed 404 U.S. 71 (1971), Frontiero vs Richardson 411 U.S. 677 (1973), and Craig v. Boren 429 U.S. 190 (1976).

It is also important to note that the ACLU and Ruth Bader Ginsburg, who was a volunteer for the American Civil Liberties Union in the 1970’s, were both active in these cases and assisted the court in inventing clever words and phrases in conjunction with “tests” which were designed to replace our Constitution’s meaning, and in particular the 14th Amendment, with the personal feelings of what the Constitution should mean as believed by a majority of the Court’s members.

In each of these cases the limits of our Constitution were ignored and replaced with the personal and subjective views of Justices as being the rule of law, rather than enforcing the Constitution’s actual text and legislative intent as expressed during its framing and ratification debates.

The bottom line is, for our system to work and evolve as intended by our Founders, and when judges and Justices sincerely believe our Constitution, or a legislative Act, is an affront to their personal sense of fairness, reasonableness or justice, they should express these feelings in minute detail, but go on to explain their job is limited to establishing the true meaning and intent of our Constitution, while Article V is the proper method for change. For judges and Justices to ignore these limitations and impose their personal feelings as the rule of law, is to violate a Public Trust and engage in judicial tyranny.

JWK



"If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?" ___ Justice Story

[johnwk]

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Another method used by our judges and Justices to circumvent our Constitution and impose their personal feelings as the rule of law is a corrupted use of our Constitution’s guarantee to “due process”. Note that our Constitution guarantees due process by the Fifth and Fourteenth amendments.


Amendment V


“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness, against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”


Amendment XIV


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.”



So, what is due process of law within the meaning of our Constitution? If we move onto Amendment VI it indicates what “due process” involves.



”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”


In effect, due process of law refers to procedure and the administration of justice in accordance with specific rules intended to prevent the use of arbitrary power by government. Unfortunately the limited and intended guarantee to Due Process of law [rules governing procedure to prevent an abuse of government power] has been distorted and turned on its head to include an oxymoron called “Substantive Due Process”, a phrase not found in our federal Constitution.


Under “substantive due process” the Court ignores procedural rights and puts on trial legislative acts by second guessing the wisdom of law in accordance with the Court’s personal abstract opinions of fairness, reasonableness and justice ___ a subjective view having nothing to do with procedure rights intended to protect against the abuse of power by government.



To put this another way, the Court, using substantive Due Process, does not determine the constitutionality of a law. Instead, it assumes legislative authority and fashions existing laws in accordance with its own personal predictions and beliefs, even though there is no constitutional basis to strike a law down or uphold it.


Of course, the proper way to address laws which are constitutional but thought to be unfair, unreasonable or an injustice, is our Constitution’s Article V amendment process which involves consent of the governed and the reason and choice of the people.


What is most disturbing about the Supreme Court’s use of “substantive due process” ___ a term nowhere to be found in our Constitution ___ it is one of the vehicles used by the Supreme Court to morph itself into an omnipotent, unreviewable, legislative body, where judicial decisions are no longer restricted and bound by our written Constitution. In many instances, Supreme Court majority opinions are nothing more than a reflection of the majorities’ personal views of justice, fairness, and reasonableness, in addition to being political in nature ___ two relatively recent glaring examples being homosexual marriage and abortion, and in each case neither subject matter is within the Supreme Court’s jurisdiction.


JWK




"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" ___ Justice Clarence Thomas, Perry v. New Hampshire, 565 U.S. 228 (2012)

[Sonny Tufts]

homosexual marriage and abortion, and in each case neither subject matter is within the Supreme Court’s jurisdiction.

The determination whether a law violates the Equal Protection Clause of the 14th Amendment is definitely "within the Supreme Court's jurisdiction", and the Court determined that bans on same-sex marriage did so. One needn't rely on the Due Process Clause, although the Court held that both clauses were violated in the Obergefell case.

[johnwk]

The determination whether a law violates the Equal Protection Clause of the 14th Amendment is definitely "within the Supreme Court's jurisdiction", and the Court determined that bans on same-sex marriage did so. One needn't rely on the Due Process Clause, although SECTION ONE EXPLAINED

You will have to explain why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction. :rolleyes:


What is primarily in dispute, and rightfully so, is the unsubstantiated assertion the wording "Equal Protection" found in the Fourteenth Amendment is violated in state legislation banning the issuance of a marriage license to a same sex couple.

Now, just what does the 14th Amendment's text state in crystal clear language:


The 14th Amendment declares in crystal clear language:

”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.”


As we can see from the language of the 14th Amendment it:


1. Makes ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof” … citizens of the United States and of the State wherein they reside.”


The amendment then goes on to declare:


2. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This wording forbids every State from abridging a United States citizen’s “privileges or immunities” which a State has adopted under law. Note that the wording does not forbid a State to deny “privileges or immunities” to “persons” who may not be "citizens of the United States"! Nor does the wording declare what “privileges or immunities” a state may or may not adopt.


The amendment then continues with:


3. “… nor shall any State deprive any person of life, liberty, or property, without due process of law..”


This wording applies to “any person” as opposed to “citizens of the United States” and It expressly forbids every State to deprive any “person [within its jurisdiction] of life, liberty, or property without due process of” a State’s laws. Due process of law refers to procedure and the administration of justice in accordance with established rules and principles.


This section of the Amendment then concludes with:


4. ”…nor deny to any person within its jurisdiction the equal protection of the laws.”


This wording simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State, the State may not deny to any person within its jurisdiction the equal protection of those specific laws. The laws, by the text of this wording requires every law must be enforced equally upon every person.



So explain, Sonny Tufts, by what wording in the 14th Amendment does a law restricting marriage licenses to one male and one female is unconstitutional. You are free to use the wording of the Court alleging the amendment is violated by such a law.


JWK


"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)

[johnwk]

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Our courts are required by our federal Constitution to strike down laws which violate that Constitution. But there is a distinct difference in striking down a law which is not in harmony with the text of our Constitution and/or its legislative intent as expressed during its framing and ratification debates, and, our courts striking down legislation because the court feels the law in question is unfair, unreasonable, or unjust ___ each of which is a subjective opinion.

For example, in Lochner v. New York (1905) the question presented to the Supreme Court was:

Does a state law prohibiting a business owner to allow an employee to work more than 60 hours a week or 10 hours a day violate “liberty”, alleged to be protected by the Due Process Clause of the Fourteenth Amendment?

The Court struck the State law down asserting the statute interfered with the freedom to contract which in turn supposedly violated the Fourteenth Amendment's right to liberty afforded to employer and employee. The majority concluded the law had no rational basis and violated the due process wording of the Fourteenth Amendment.

But nowhere in the wording of Fourteenth Amendment is a state prohibited to enact legislation thought to promote the general welfare of its citizens. The restriction being, under the Fourteenth Amendment is, whatever laws a State enacts, those laws are to be enforced equally upon its citizens.

Yes! The New York law in question does, in my mind, violate an inalienable right to contract. But the Fourteenth Amendment was not intended, nor does it by its language, allow the federal government to second-guess the wisdom of a State’s Legislature enacting a law thought to promote the general welfare of its citizens. For the Court to meddle as it did in this case is to violate the Tenth Amendment and powers reserved by the States and people therein, and circumvent the very purpose of Federalism, our Constitution’s “big tent” plan.

Was the bake shop owner denied procedural rights guaranteed by the Fourteenth Amendment’s due process clause? I found absolutely nothing in the case to remotely suggest procedural rights were denied. What I did find is, the majority on the Court ignored the limitations of the Fourteenth Amendment and projected its personal views of a State law being ”… fair, reasonable, and [an] appropriate exercise of the police power of the state …” as being the rule of law, while it ignored the narrow limitations of the Fourteenth Amendment.

Do we really want our Supreme Court to morph itself into an omnipotent, unreviewable, legislative body, where judicial decisions are no longer restricted and bound by a written Constitution? If so, then we must abide by Article V, our Constitution’s amendment process, and grant this totalitarian power to the Supreme Court.

JWK

As to our Constitution being a "living document", that life is found only in Article V, a protection demanding the people's participation and consent when change is thought to be necessary.

[Sonny Tufts]

You will have to explain why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.

Your use of the word “jurisdiction” is misplaced. Article III, Section 2 of the Constitution makes is clear that federal courts have jurisdiction to hear cases arising under the Constitution and that the Supreme Court has appellate jurisdiction over such cases, subject to such exceptions as Congress might make.

By focusing on the subjects of abortion and same-sex marriage and arguing about jurisdiction you seem to be suggesting that under no circumstances could a law touching these subjects ever be unconstitutional, which is absurd. To take an extreme case, suppose a State were to enact a law that said that only white Christians could obtain marriage licenses. I would hope that you would understand that such a law raised serious constitutional issues that the Court had jurisdiction to determine and that it would easily invalidate the law on First Amendment and equal protection grounds.


So explain, Sonny Tufts, by what wording in the 14th Amendment does a law restricting marriage licenses to one male and one female is unconstitutional. You are free to use the wording of the Court alleging the amendment is violated by such a law.

So the issue isn’t one of jurisdiction; it’s whether laws that restrict marriage licenses to same-sex couples violates the Equal Protection Clause. Reasonable minds may differ, although you undoubtedly feel that the validity of such laws is as patently obvious as 2 + 2 = 4. And let’s not get into the issue of whether the government should be involved with marriage in the first place; the plain fact is that it is involved, and a lot of legal relationships result from a civil marriage. It is no answer to say that some of these relationships (e.g., inheritance, support, and marital property rights) can be established for same-sex couples through private contractual arrangements, because these relationships result automatically from marriage whereas a same-sex couple would have to go through the time and expense of having an attorney draw up the necessary paperwork for a lot more money that the cost of a marriage license. Moreover, some of these relationships can’t be achieved through private contracts – e.g., the right to file a joint income tax return or the spousal evidentiary privilege. This fact was recognized by Justice Kennedy in his Obergefell opinion:


… while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules…The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.

There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning…

...in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of coverture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. [citations omitted] Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution…

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. (emphasis added)


Keep in mind the wording [of the EP Clause] does not forbid a state to make distinctions in law, e.g., based upon sex or age

But not all distinctions based on sex are constitutional. Would you seriously claim that a statute (such as the Georgia statute cited in the Kennedy opinion, above) that enshrined the common-law rule of coverture (under which married women had few if any property rights) was constitutional? How about one that said that only men could obtain a license to practice law, accounting, engineering, or medicine?


the Fourteenth Amendment was not intended, nor does it by its language, allow the federal government to second-guess the wisdom of a State’s Legislature enacting a law thought to promote the general welfare of its citizens.

Really? If a State feels that the intermingling of the races is harmful to the general welfare, it is entitled to have racially segregated public schools and anti-miscegenation laws?

[johnwk]

Your use of the word “jurisdiction” is misplaced.

You gave a lengthy response but never explained why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.

:rolleyes:

JWK

[johnwk]

So the issue isn’t one of jurisdiction; it’s whether laws that restrict marriage licenses to same-sex couples violates the Equal Protection Clause. Reasonable minds may differ,

Again, you offered a very lengthy response, but never pointed to the wording in the 14th Amendment forbidding states to restrict marriage licenses to one male and one female.

JWK

[johnwk]

the Fourteenth Amendment was not intended, nor does it by its language, allow the federal government to second-guess the wisdom of a State’s Legislature enacting a law thought to promote the general welfare of its citizens.


Really? If a State feels that the intermingling of the races is harmful to the general welfare, it is entitled to have racially segregated public schools and anti-miscegenation laws?



Judging the wisdom of legislation as distinguished from what the 14th Amendment forbids [a distinction in law based upon race] are two entirely different matters. Do you not understand the meaning of words?


JWK

[Sonny Tufts]

You gave a lengthy response but never explained why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.

Because it raises an issue arising under the Constitution. You apparently don't understand III.2 of the Constitution.


Again, you offered a very lengthy response, but never pointed to the wording in the 14th Amendment forbidding states to restrict marriage licenses to one male and one female.

Don't be dense. Where is the wording forbidding states to have racially segregated schools or anti-miscegenation laws? It's called the Equal Protection Clause.

[johnwk]

. To take an extreme case, suppose a State were to enact a law that said that only white Christians could obtain marriage licenses. I would hope that you would understand that such a law raised serious constitutional issues that the Court had jurisdiction to determine and that it would easily invalidate the law on First Amendment and equal protection grounds.

In respect to your white Christian example, a law making a distinction based upon race, the Constitution forbids such distinctions in law and thus it would be a case arising under “this Constitution”. As to the First Amendment in your example, which is part of the first ten amendments added to our federal Constitution, those Amendments were specifically adopted as restrictions upon the Federal Government and were not intended to be enforceable upon the states by the federal government.

JWK

[johnwk]

You gave a lengthy response but never explained why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.


Because it raises an issue arising under the Constitution.


Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.


:rolleyes:


JWK

[johnwk]

Again, you offered a very lengthy response, but never pointed to the wording in the 14th Amendment forbidding states to restrict marriage licenses to one male and one female.



Don't be dense. Where is the wording forbidding states to have racially segregated schools or anti-miscegenation laws? It's called the Equal Protection Clause.


Try reading the following very slowly.

4. ”…nor deny to any person within its jurisdiction the equal protection of the laws.”


This wording simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State, the State may not deny to any person within its jurisdiction the equal protection of those specific laws. The laws, by the text of this wording requires every law must be enforced equally upon every person.

JWK

[Swordsmyth]

In respect to your white Christian example, a law making a distinction based upon race, the Constitution forbids such distinctions in law and thus it would be a case arising under “this Constitution”. As to the First Amendment in your example, which is part of the first ten amendments added to our federal Constitution, those Amendments were specifically adopted as restrictions upon the Federal Government and were not intended to be enforceable upon the states by the federal government.

JWK
Only the 1stA states that its effect is limited to Congress.

In everything else you are absolutely correct.

All people were allowed to marry a person of the opposite sex and therefore had equal protection under the law.

[Sonny Tufts]

As to the First Amendment in your example, which is part of the first ten amendments added to our federal Constitution, those Amendments were specifically adopted as restrictions upon the Federal Government and were not intended to be enforceable upon the states by the federal government.

That was indeed the original intent, according to the Supreme Court; see Barron v. Baltimore. But as you well know the 14th Amendment has been held to have incorporated the prohibitions of the First Amendment and made them applicable to the States. While this has been done via the 14th's Due Process Clause, any restriction of marriage licenses to Christians would clearly be an equal protection violation.


Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.

All state practices that violate the 14th are subject to federal control. Or does your copy of the Constitution fail to include Article 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."?

The Tenth Amendment is beside the point, and if anyone should read it, you should: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." So if a state law is prohibited by the 14th, it doesn't matter that it deals with marriage, abortion, or any other subject, and in such a case the 10th is inapplicable.


Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex

You have conceded that the EP Clause prohibits making distinctions on the basis of race, but since nothing in the wording of the Clause restricts it to racial discrimination it can presumably apply to other distinctions. You never answered my question whether a state law prohibiting women from getting certain professional licenses would be constitutional; I suspect your failure to do so is because you realize a negative answer would force you to acknowledge that, indeed, there are certain classifications other than racial ones that violate the 14th, and you're loath do to this because such an admission would undermine your arguments against the Obergefell decision.

[Sonny Tufts]

All people were allowed to marry only a person of the opposite sex and therefore had equal protection under the law.

Fixed it for you. Now consider a situation in which a black person was prohibited from marrying a white person and vice versa. Did they get equal protection? After all, all whites were allowed to marry whites (assuming they were of opposite sex and not too closely related), and all blacks were allowed to marry blacks (subject to the same restrictions).

[Swordsmyth]

Fixed it for you. And since in certain states all people had the right to marry only a member of the same race, they also had equal protection?
Yes they did, you can say that it was wrong and you might even say that it was unconstitutional for some other reason but you can't say they didn't have equal protection.

[Swordsmyth]

All state practices that violate the 14th are subject to federal control. Or does your copy of the Constitution fail to include Article 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."?
"this article" please read the article in question, the entire Constitution is not "this article".

[Sonny Tufts]

"this article" please read the article in question, the entire Constitution is not "this article".

I never claimed it was. I was rebutting any implication that Congress has no authority to legislate regarding the 14th Amendment in areas where it wouldn't otherwise have authority, such as public schools.


you can say that it was wrong and you might even say that it was unconstitutional for some other reason but you can't say they didn't have equal protection.

Not only can I say it's a violation of EP but so can (and did) SCOTUS in the Loving case, a unanimous decision.

[Swordsmyth]

I never claimed it was. I was rebutting any implication that Congress has no authority to legislate regarding the 14th Amendment in areas where it wouldn't otherwise have authority, such as public schools.
The 14thA isn't part of the article.




Not only can I say it's a violation of EP but so can (and did) SCOTUS in the Loving case, a unanimous decision.
You would be just as wrong as they were.

[Sonny Tufts]

The 14thA isn't part of the article.

The 14th is the article. The same phrase was used in the 13th, 15th, 19th, 24th, and 26th Amendments. The phrase says "this article", which can only refer to the amendment of which the phrase is a part.


You would be just as wrong as they were.

You obviously don't know what was involved in Loving. An interracial couple was married in the District of Columbia and moved to Virginia, where they were later arrested for violating a Virginia law that made it a crime for an interracial couple married in another State to cohabitate in Virginia. The offense was a felony punishable by imprisonment from 1 to 5 years. The State's initial argument in support of the law is similar to your own: "...the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race." But the Court didn't buy it:


...the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race...The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States...there can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate...

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

In a concurring opinion Justice Stewart cited what he had said in a previous case: "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

Suffice it to say, the Court got it right, and you and Virginia didn't.

[Swordsmyth]

The 14th is the article. The same phrase was used in the 13th, 15th, 19th, 24th, and 26th Amendments. The phrase says "this article", which can only refer to the amendment of which the phrase is a part.
You had cited Article 5, you are correct that the 14A contains that phrase as well.




You obviously don't know what was involved in Loving. An interracial couple was married in the District of Columbia and moved to Virginia, where they were later arrested for violating a Virginia law that made it a crime for an interracial couple married in another State to cohabitate in Virginia. The offense was a felony punishable by imprisonment from 1 to 5 years. The State's initial argument in support of the law is similar to your own: "...the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race." But the Court didn't buy it:



In a concurring opinion Justice Stewart cited what he had said in a previous case: "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

Suffice it to say, the Court got it right, and you and Virginia didn't.
How can I get it right when you didn't provide the relevant details?
It is one thing to outlaw mixed marriages in your state and an entirely different thing to ban the cohabitation of couples legally married in another state.
It is an entirely different thing yet to change the historical definition of marriage from something that is between members of the opposite sex and force a state to recognize the new definition.

[johnwk]

That was indeed the original intent, according to the Supreme Court; see Barron v. Baltimore. But as you well know the 14th Amendment has been held to have incorporated the prohibitions of the First Amendment and made them applicable to the States. .


I know what the Supreme Court has "held". And it engaged in judicial tyranny in doing so.

With regard to the “Bill of Rights” we find the founders expressed intentions in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789 ('http://avalon.law.yale.edu/18th_century/resolu02.asp')


THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added .


And Madison, speaking on the very issue regarding these amendments to the Constitution indicates they were to preserve and protect “federalism” our Constitution’s plan, which reserves to the States all powers not delegated to Congress. He says:


“It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism” ___See :Madison, June 8th, 1789, Amendments to the Constitution ('http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=226')

The bottom line is, the first ten amendments were adopted as a written protection to keep the freaken federal government’s nose out of the State's internal affairs.


And with regard to the 14th Amendment, as stated by one of its supporters:


“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shellabarger, Cong. Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)

JWK



The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

[johnwk]

Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.


All state practices that violate the 14th are subject to federal control. Or does your copy of the Constitution fail to include Article 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."?



You didn't satisfy the question: Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.


Aside from that Federalist Paper No. 45 tells us:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.


So, what wording in the federal Constitution delegates a power to our federal government to enter the states and regulate the issuances of marriage licenses?


JWK

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? ______ MARBURY v. MADISON, 5 U.S. 137 (1803)

[Sonny Tufts]

How can I get it right when you didn't provide the relevant details?

How can you get it right when you don't even read the case? Yet that didn't stop you from claiming that the Court got it wrong.


It is one thing to outlaw mixed marriages in your state and an entirely different thing to ban the cohabitation of couples legally married in another state.

But under your view of the meaning of the Equal Protection Clause, that wouldn't matter. After all, both blacks and whites were equally subject to the law, right?


You had cited Article 5

My bad -- I meant to refer to Section 5 of the Amendment.

[johnwk]

You have conceded that the EP Clause prohibits making distinctions on the basis of race,


Provide the quote.


JWK

[Swordsmyth]

How can you get it right when you don't even read the case? Yet that didn't stop you from claiming that the Court got it wrong.
I trusted your claim about what the case involved, clearly trusting you was a mistake.




But under your view of the meaning of the Equal Protection Clause, that wouldn't matter. After all, both blacks and whites were equally subject to the law, right?

It wouldn't violate equal protection, it would violate other rights.

[Sonny Tufts]

You didn't satisfy the question: Point to the wording under which marriage and abortion are subject matters delegated to the federal government

And you still don't understand the issue. It's not whether the federal government has the authority to regulate marriage in a general sense; it doesn't. The issue is whether a state's marriage law violates the 14th Amendment. If it does, it's unconstitutional, period, and Congress has the authority to legislate regarding it.

Paraphrasing Groucho Marx, it's so simple a six-year-old could understand it. Run out and get me a six-year-old; Johnwk can't make heads or tails of it.

[Sonny Tufts]

Provide the quote.

It's in the OP: "For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race"

[johnwk]

You obviously don't know what was involved in Loving. .


With respect to Loving v. Virginia, the legislative intent of the 14th Amendment was to prohibit distinctions in law based upon race, and this is the only reason for reversing the Lovings’ conviction. The Court's nonsense about a law not having a rational basis being grounds for the Court to strike down a law is a creation of our modern day courts to second guess and assume legislative powers, and therefor judicial tyranny!


Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.


For example, imagine today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race, and the Supreme Court upheld the denial of employment because the local government managed to present an “exceedingly persuasive justification” for not hiring black females. This is what these tests are about. The tests are not designed to establish the true intent and meaning of our Constitution and enforce it. They are designed to create an opportunity for a majority on the court to second guess the wisdom of our Constitution and/or duly passed legislation, and strike it down or uphold it depending on the majorities’ personal predilections, its sense of social justice, fairness, or reasonableness, and without regard to the true intent and meaning of our Constitution.


JWK



"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

[johnwk]

Provide the quote.



It's in the OP: "For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race"


So, you cannot quote me as stating "the EP Clause prohibits making distinctions on the basis of race".

The fact is, the "equal protection" wording in the 14th amendment simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State, the State may not deny to any person within its jurisdiction the equal protection of those specific laws. The laws, by the text of this wording requires every law must be enforced equally upon every person.


JWK

[johnwk]

You didn't satisfy the question: Point to the wording under which marriage and abortion are subject matters delegated to the federal government



And you still don't understand the issue. It's not whether the federal government has the authority to regulate marriage in a general sense; it doesn't. The issue is whether a state's marriage law violates the 14th Amendment. If it does, it's unconstitutional, period, and Congress has the authority to legislate regarding it.

Paraphrasing Groucho Marx, it's so simple a six-year-old could understand it. Run out and get me a six-year-old; Johnwk can't make heads or tails of it.


Well, I am happy to see you finally have been able to articulate the distinction between a power retained by the States and an amendment prohibiting the states to engage in a specified action. Is today your sixth birthday?


JWK




:rolleyes:

[Sonny Tufts]

I trusted your claim about what the case involved, clearly trusting you was a mistake.

Since Loving is a landmark case my mistake was assuming you knew what it was about, since you were so adamant that the Court got it wrong.


It wouldn't violate equal protection, it would violate other rights.

Your "equal enforcement" theory of EP was rejected in Loving, similar to the rejection of "separate but equal" in the Brown case. You don't seem to recognize that legal distinctions based on race are for the most part prohibited by the 14th Amendment (don't get me started on the courts' affirmative action jurisprudence -- it appears to me to be a mess, although I admit I haven't studied it extensively).

Yes, Loving was a criminal case, but the Court's rationale would apply equally if the case had involved an attempt by the couple to be married in Virginia.

[Sonny Tufts]

So, you cannot quote me as stating "the EP Clause prohibits making distinctions on the basis of race".

You have been complaining all along that the Court’s interpretation of the 14th Amendment doesn’t follow the intent behind the Amendment, and your initial post refers to “the 14th Amendment’s explicitly intended protection against distinctions in law based upon race”. You follow up in post #11 by saying, “a law making a distinction based upon race, the Constitution forbids such distinctions”. In post #23 you quote a supporter of the Amendment who said “whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race”. In post #30 you reiterate, “the legislative intent of the 14th Amendment was to prohibit distinctions in law based upon race”. And after all this you still claim that I “cannot quote me as stating "the EP Clause prohibits making distinctions on the basis of race"”. Are you so anal retentive that you demand the exact wording?

The fact that the EP Clause prohibits racial distinctions contradicts your erroneous view that the Clause requires only that “every law must be enforced equally upon every person.” This was the “equal enforcement” argument that Virginia made in Loving, and it failed.

You also seem to be assuming that the only legal distinctions barred by the EP Clause are racial ones, even though the wording of the Clause contains no such limitation. While there is early dictum to support your view (see The Slaughter-House Cases, 83 U.S. 36, 81 (1873)), the Clause was soon extended to non-racial matters (see Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396 (1886).


I am happy to see you finally have been able to articulate the distinction between a power retained by the States and an amendment prohibiting the states to engage in a specified action.

I am happy to see you have finally been able to understand what I’ve been saying all along, especially in post #15. That ESL class must’ve really helped.

[johnwk]

The fact that the EP Clause prohibits racial distinctions contradicts your erroneous view that the Clause requires only that “every law must be enforced equally upon every person.” This was the “equal enforcement” argument that Virginia made in Loving, and it failed.




Let us go over this one more time. Try reading very, very slowly.


SECTION ONE OF THE FOURTEEN AMENDMENT EXPLAINED


The 14th Amendment declares in crystal clear language:

”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.”


As we can see from the language of the 14th Amendment it:


1. Makes ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof … citizens of the United States and of the State wherein they reside.”


The amendment then goes on to declare:


2. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”


This wording forbids every State from abridging a United States citizen’s “privileges or immunities” which a State has adopted under law. Note that the wording does not forbid a State to deny “privileges or immunities” to “persons” who may not be "citizens of the United States"! Nor does the wording declare what “privileges or immunities” a state may or may not adopt.


The amendment then continues with:


3. “… nor shall any State deprive any person of life, liberty, or property, without due process of law..”


This wording applies to “any person” as opposed to “citizens of the United States” and it expressly forbids every State to deprive any “person [within its jurisdiction] of life, liberty, or property without due process of” a State’s laws. Due process of law refers to procedure and the administration of justice in accordance with established rules and principles.


Section one of the Amendment then concludes with:


4. ”…nor deny to any person within its jurisdiction the equal protection of the laws.”


This wording simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State with regard to sex or age, the State may not deny to any person, blacks and whites alike, within its jurisdiction the equal protection of those specific laws. The laws must be enforced equally upon all, e.g., if a distinction in law is made with respect to civil rights, (not political) that the wife may not testify, sue or contract, it must be enforced equally upon all regardless of race, color or previous condition of slavery.


One of the Supreme Court‘s “inventions” used to circumvent our Constitution are various tests the court has created. These “tests” began to appear and gain a foothold during the Warren Court of the l960’s. One such test was the "rationality" test under which a law being challenged had to withstand the court’s judgment that the law in question was “rationally based” or “reasonable” to survive the court‘s review. Of course, this allows activist members on the court to switch the subject from what is and what is not constitutional during litigation, to a subjective question having nothing to do with a law’s constitutionality.


Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.


Now, in the Loving case which you mention, this is exactly what the Court engaged in. It second guessed the wisdom of a law using invented tests created by the court unknown to our founders (e.g., rational basis). Instead of declaring the law unconstitutional because it did not guarantee the same protection to blacks as it did to whites, it babbled on and on about the law's rational basis, rational purpose, legitimate purposes, etc., all of which has nothing to do with a law if it violates the Constitution.


Why is this so difficult for you to understand?


JWK



The rule being, when the text of the Constitution is unclear or disputes arise as to its meaning, the answer is to be found by documenting the intent of the framers and those who ratified the constitution, during the Constitutions' framing and ratification debates. For example, what was the evil which the founders sought to prevent?

[johnwk]

You also seem to be assuming that the only legal distinctions barred by the EP Clause are racial ones, even though the wording of the Clause contains no such limitation. While there is early dictum to support your view (see The Slaughter-House Cases, 83 U.S. 36, 81 (1873)), the Clause was soon extended to non-racial matters (see Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396 (1886).





I see you still don’t get it, and insist in ignoring both the text and legislative intent of the equal protection wording in the 14th Amendment:


4. ”…nor deny to any person within its jurisdiction the equal protection of the laws.”


The equal protection text in the amendment is limited to “any person”. And, the legislative intent, as documented from the framing and ratification debates, was to end distinctions in law based upon race.


Simply because the Supreme Court ignored both the text and legislative intent of the 14th Amendment and indicates corporations are persons within the meaning of the 14th Amendment does not make it so.


In the case you cite, Santa Clara County v. Southern Pac. R.R., Chief Justice Waite wrote:


"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does. "


However, corporations are in fact creatures created by the State, with advantages not enjoyed by “persons”. The notion that corporations are persons within the meaning of the 14th Amendment is not supported by the text of the amendment, nor found in the debates which framed and ratified it.



So, tell me, under what wording of the 14th Amendment has our Supreme Court been authorized to extend its protection to a subject matter not contained it its text, or found in the framing and ratification debates?


The rule is, when the text of the Constitution is unclear or disputes arise as to its meaning, the answer is to be found by documenting the intent of the framers and those who ratified the constitution, during the Constitutions' framing and ratification debates. For example, what was the evil which the founders sought to prevent?


JWK




The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

[Swordsmyth]

2. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”


This wording forbids every State from abridging a United States citizen’s “privileges or immunities” which a State has adopted under law. Note that the wording does not forbid a State to deny “privileges or immunities” to “persons” who may not be "citizens of the United States"! Nor does the wording declare what “privileges or immunities” a state may or may not adopt.

It says nothing about the state having to adopt a privilege or an immunity, that means that the states may not violate the Bill of Rights because those are immunities that citizens of the United States hold.

[johnwk]

2. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”


This wording forbids every State from abridging a United States citizen’s “privileges or immunities” which a State has adopted under law. Note that the wording does not forbid a State to deny “privileges or immunities” to “persons” who may not be "citizens of the United States"! Nor does the wording declare what “privileges or immunities” a state may or may not adopt.



It says nothing about the state having to adopt a privilege or an immunity, that means that the states may not violate the Bill of Rights because those are immunities that citizens of the United States hold.

Swordsmyth,

I’ve read, and reread what you posted above, and still do not understand the message you are conveying.

With reference to the wording “Bill of Rights”, the various states each adopted what was called a bill of rights or declaration of rights, and in general, each was intended to restrict the actions of State government.

Likewise, the first ten amendments added to our federal Constitution were specifically intended to restrict the government created under the Constitution of the United States. See The true intent and purpose of the Constitution's first ten amendments (http://www.ronpaulforums.com/showthread.php?530800-Our-Supreme-Court-the-rule-of-law-and-judicial-tyranny&p=6745033&viewfull=1#post6745033)

So, when I indicate as a general rule the 14th Amendment does not declare what “privileges or immunities” a state may or may not adopt, I think we may be in agreement.

As to “privileges or immunities” a state may attempt to adopt involving race, color or previous condition of slavery, the 14th Amendment is a universal rule, and an exception, intended to forbid the States, and the United States Government, from making distinctions in law based upon the intended criterion (race, color or previous condition of slavery).

JWK




"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)

[Swordsmyth]

Swordsmyth,

I’ve read, and reread what you posted above, and still do not understand the message you are conveying.

With reference to the wording “Bill of Rights”, the various states each adopted what was called a bill of rights or declaration of rights, and in general, each was intended to restrict the actions of State government.

Likewise, the first ten amendments added to our federal Constitution were specifically intended to restrict the government created under the Constitution of the United States. See The true intent and purpose of the Constitution's first ten amendments (http://www.ronpaulforums.com/showthread.php?530800-Our-Supreme-Court-the-rule-of-law-and-judicial-tyranny&p=6745033&viewfull=1#post6745033)

So, when I indicate as a general rule the 14th Amendment does not declare what “privileges or immunities” a state may or may not adopt, I think we may be in agreement.

As to “privileges or immunities” a state may attempt to adopt involving race, color or previous condition of slavery, the 14th Amendment is a universal rule, and an exception, intended to forbid the States, and the United States Government, from making distinctions in law based upon the intended criterion (race, color or previous condition of slavery).

JWK




"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)
I will try to clarify:

Th 14thA doesn't give the states the option of not adopting any of the rights in the Bill of Rights, it requires them to not make or enforce any law that abridges the privileges and immunities of citizens of the united states, the Bill of Rights is a list of some (the 9thA makes it clear that it is not complete) of the immunities of citizens of the United States, therefore the states are prohibited from making or enforcing any law that abridges any of the rights in the Bill of Rights.

[johnwk]

I will try to clarify:

Th 14thA doesn't give the states the option of not adopting any of the rights in the Bill of Rights, it requires them to not make or enforce any law that abridges the privileges and immunities of citizens of the united states, the Bill of Rights is a list of some (the 9thA makes it clear that it is not complete) of the immunities of citizens of the United States, therefore the states are prohibited from making or enforcing any law that abridges any of the rights in the Bill of Rights.



How do you arrive at that conclusion? As I have demonstrated, the first ten amendments in our federal Constitution were specifically adopted as “restrictive clauses” against the new government created under the Constitution of the United States.


And with reference to the 14th Amendment, it was specifically intended to forbid distinctions in law based upon race, color or previous condition of slavery.

So, how do you arrive at the conclusion that the first ten amendments to our federal Constitution are enforceable upon the states by the federal government? What evidence do you have to support that conclusion?

Keep in mind, during the time period, [after eleven states had already ratified the Constitution and the Constitution was in effect] a group of Anti Federalists in New York and Virginia were not satisfied with the Constitution even though New York and Virginia had both ratified it, and they wanted to call another Convention under Article V to add a federal Bill of Rights to specifically restrict the new government in a similar manner as each of the State governments were restricted under their own constitutions. I have found no evidence after studying a wealth of historical documentation to conclude the first ten amendment to our federal Constitution are intended to be enforceable upon the states by the federal government.

JWK



Those who reject abiding by the text of our Constitution and the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

[Swordsmyth]

How do you arrive at that conclusion? As I have demonstrated, the first ten amendments in our federal Constitution were specifically adopted as “restrictive clauses” against the new government created under the Constitution of the United States.


And with reference to the 14th Amendment, it was specifically intended to forbid distinctions in law based upon race, color or previous condition of slavery.

So, how do you arrive at the conclusion that the first ten amendments to our federal Constitution are enforceable upon the states by the federal government? What evidence do you have to support that conclusion?

Keep in mind, during the time period, [after eleven states had already ratified the Constitution and the Constitution was in effect] a group of Anti Federalists in New York and Virginia were not satisfied with the Constitution even though New York and Virginia had both ratified it, and they wanted to call another Convention under Article V to add a federal Bill of Rights to specifically restrict the new government in a similar manner as each of the State governments were restricted under their own constitutions. I have found no evidence after studying a wealth of historical documentation to conclude the first ten amendment to our federal Constitution are intended to be enforceable upon the states by the federal government.

JWK



Those who reject abiding by the text of our Constitution and the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.
Whatever the case was with the original Bill of Rights the 14thA amended them and prohibited the states from violating them.

The rights in the Bill of rights are "privileges and immunities" belonging to citizens of the united states and the 14thA prohibits the states from making or enforcing any law that abridges them.

[Stratovarious]

Whatever the case was with the original Bill of Rights the 14thA amended them and prohibited the states from violating them.

The rights in the Bill of rights are "privileges and immunities" belonging to citizens of the united states and the 14thA prohibits the states from making or enforcing any law that abridges them.

You must spread some Reputation around before giving it to Swordsmyth again.

[Sonny Tufts]

I see you still don’t get it, and insist in ignoring both the text

The text says "any person". It doesn't say "any person formerly a slave", "any Negro person", or any other language limiting the types of persons to whom it applies. In fact, an early version of Section 1 of the Amendment read, "No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude." But this language was rejected before the final version was presented to Congress.


corporations are in fact creatures created by the State, with advantages not enjoyed by “persons”.

Aside from potentially perpetual existence, what advantages do corporations (as opposed to their shareholders) have over "persons"?


The rule is, when the text of the Constitution is unclear

Leaving aside the issue of corporations, what's unclear about "any person"? "Any" means just that -- ANY.

[johnwk]

How do you arrive at that conclusion? As I have demonstrated, the first ten amendments in our federal Constitution were specifically adopted as “restrictive clauses” against the new government created under the Constitution of the United States.


And with reference to the 14th Amendment, it was specifically intended to forbid distinctions in law based upon race, color or previous condition of slavery.

So, how do you arrive at the conclusion that the first ten amendments to our federal Constitution are enforceable upon the states by the federal government? What evidence do you have to support that conclusion?

Keep in mind, during the time period, [after eleven states had already ratified the Constitution and the Constitution was in effect] a group of Anti Federalists in New York and Virginia were not satisfied with the Constitution even though New York and Virginia had both ratified it, and they wanted to call another Convention under Article V to add a federal Bill of Rights to specifically restrict the new government in a similar manner as each of the State governments were restricted under their own constitutions. I have found no evidence after studying a wealth of historical documentation to conclude the first ten amendment to our federal Constitution are intended to be enforceable upon the states by the federal government.

JWK



Those who reject abiding by the text of our Constitution and the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.



Whatever the case was with the original Bill of Rights the 14thA amended them and prohibited the states from violating them.

The rights in the Bill of rights are "privileges and immunities" belonging to citizens of the united states and the 14thA prohibits the states from making or enforcing any law that abridges them.

Your conclusion, that the 14th Amendment is and was intended to make the first ten amendments to our federal Constitution enforceable upon the states by the federal government, if true, would nullify the very reason why our Founders adopted those amendments. The very reason for adopting those amendments, as I have demonstrated, was to protect and preserve federalism, our Constitution’s plan.


And just what is meant by federalism? Federalist Paper No. 45 summarizes federalism as follow*:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

I have scoured the debates of the 39th Congress which produced the 14th Amendment and have never found sufficient evidence to conclude the intention of the 14th Amendment was to make the first ten amendments of our federal constitution enforceable upon the states by the federal government. But I have found sufficient evidence to conclude what its legislative intent was, as that legislative intent was summarized as follows by one of its supporters:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)


I have noticed over the years there are special interest factions, of both political persuasions, whose objective is to make their pet projects, some I agree with and some I do not, enforceable in each of the various states. And they seem to be the most visible advocates who claim the 14th Amendment made the first ten amendments enforceable upon the states by the federal government, which opens the door to erecting an omnipotent federal government and destroying federalism, our Constitution’s big tent system.

JWK


"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

[johnwk]

The text says "any person". .

That's exactly what I stated.

:rolleyes:

[Swordsmyth]

Your conclusion, that the 14th Amendment is and was intended to make the first ten amendments to our federal Constitution enforceable upon the states by the federal government, if true, would nullify the very reason why our Founders adopted those amendments. The very reason for adopting those amendments, as I have demonstrated, was to protect and preserve federalism, our Constitution’s plan.


And just what is meant by federalism? Federalist Paper No. 45 summarizes federalism as follow*:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

I have scoured the debates of the 39th Congress which produced the 14th Amendment and have never found sufficient evidence to conclude the intention of the 14th Amendment was to make the first ten amendments of our federal constitution enforceable upon the states by the federal government. But I have found sufficient evidence to conclude what its legislative intent was, as that legislative intent was summarized as follows by one of its supporters:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)


I have noticed over the years there are special interest factions, of both political persuasions, whose objective is to make their pet projects, some I agree with and some I do not, enforceable in each of the various states. And they seem to be the most visible advocates who claim the 14th Amendment made the first ten amendments enforceable upon the states by the federal government, which opens the door to erecting an omnipotent federal government and destroying federalism, our Constitution’s big tent system.

JWK


"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

It doesn't destroy federalism to require the states to honor the basic rights of their citizens and the people who created the 14thA didn't care the least little bit about federalism.

[johnwk]

Your conclusion, that the 14th Amendment is and was intended to make the first ten amendments to our federal Constitution enforceable upon the states by the federal government, if true, would nullify the very reason why our Founders adopted those amendments. The very reason for adopting those amendments, as I have demonstrated, was to protect and preserve federalism, our Constitution’s plan.


And just what is meant by federalism? Federalist Paper No. 45 summarizes federalism as follow*:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

I have scoured the debates of the 39th Congress which produced the 14th Amendment and have never found sufficient evidence to conclude the intention of the 14th Amendment was to make the first ten amendments of our federal constitution enforceable upon the states by the federal government. But I have found sufficient evidence to conclude what its legislative intent was, as that legislative intent was summarized as follows by one of its supporters:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)


I have noticed over the years there are special interest factions, of both political persuasions, whose objective is to make their pet projects, some I agree with and some I do not, enforceable in each of the various states. And they seem to be the most visible advocates who claim the 14th Amendment made the first ten amendments enforceable upon the states by the federal government, which opens the door to erecting an omnipotent federal government and destroying federalism, our Constitution’s big tent system.

JWK


"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.




It doesn't destroy federalism to require the states to honor the basic rights of their citizens and the people who created the 14thA didn't care the least little bit about federalism.


Your unsubstantiated conclusion that the 14th Amendment made the first ten amendments enforceable upon the states by the federal government has given us such decisions as Roe vs Wade, and in so doing, has opened the door to allowing our supreme court to invent rights never intended by the first ten amendments to our Constitution and has thus allowed the destruction of federalism, our Constitution's plan.


Take some time and read Roe vs Wade (https://caselaw.findlaw.com/us-supreme-court/410/113.html) to learn how your notion has been used to destroyed federalism by applying some of the first ten amendments to our Constitution to the States.

JWK



"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)

[Swordsmyth]

Your unsubstantiated conclusion that the 14th Amendment made the first ten amendments enforceable upon the states by the federal government has given us such decisions as Roe vs Wade, and in so doing, has opened the door to allowing our supreme court to invent rights never intended by the first ten amendments to our Constitution and has thus allowed the destruction of federalism, our Constitution's plan.


Take some time and read Roe vs Wade (https://caselaw.findlaw.com/us-supreme-court/410/113.html) to learn how your notion has been used to destroyed federalism by applying some of the first ten amendments to our Constitution to the States.

JWK



"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)
Roe v. Wade invented "rights" that are not found in the Bill of Rights and the 14thA does require the states to honor the rights of their citizens.

In spite of the abuse of the 9thA by SCOTUS we are still better off with the states required to respect the BoR than if they were allowed to ignore it.

[Sonny Tufts]

"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)

Yet Thomas interprets the Privileges and Immunities Clause as requiring that the Bill of Rights apply to the States. See his concurring opinion in McDonald v. City of Chicago, 561 U.S. 472 (2010), in which he goes into the history of the Clause in some detail. He thinks the Court got it wrong in The Slaughter-House Cases when it essentially eviscerated the P&I Clause. He has a point.

[johnwk]

Your unsubstantiated conclusion that the 14th Amendment made the first ten amendments enforceable upon the states by the federal government has given us such decisions as Roe vs Wade, and in so doing, has opened the door to allowing our supreme court to invent rights never intended by the first ten amendments to our Constitution and has thus allowed the destruction of federalism, our Constitution's plan.


Take some time and read Roe vs Wade (https://caselaw.findlaw.com/us-supreme-court/410/113.html) to learn how your notion has been used to destroyed federalism by applying some of the first ten amendments to our Constitution to the States.

JWK



"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)



Roe v. Wade invented "rights" that are not found in the Bill of Rights and the 14thA does require the states to honor the rights of their citizens.

In spite of the abuse of the 9thA by SCOTUS we are still better off with the states required to respect the BoR than if they were allowed to ignore it.

From your response, it appears you did not study Roe v. Wade as I have done, and reviewed all the cases cited therein which documents how the notion that the 14th Amendment made the first ten amendments of our federal Constitution enforceable upon the states by the federal government, has opened the door to allowing the Supreme Court to “interpret” the amendments in a manner never intended by our founders, and in the process assume judicial power over various subject matters intended to be reserved under the Tenth Amendment to the States and people therein . . . abortion merely being one example, homosexual marriages being another.

The unsubstantiated opinion that the 14th Amendment was intended to allow the federal government to enforce the first ten amendments of our federal Constitution upon the states has all but destroyed federalism, our Constitution's design for a big tent system.

What is irrefutable in this discussion is, under our Founder’s plan, each state and the people therein are free to establish their own “bill of rights” or, Declaration of Rights.


Now, in regard to fundamental rights and protections of these rights within the various state borders, let us take a look at what the people, for example, of the State of Pennsylvania, agree upon before our federal government was even created, and did so in their State’s fundamental law otherwise known as Pennsylvania’s Declaration of Rights, adopted in 1776. (http://avalon.law.yale.edu/18th_century/pa08.asp)

Allowing the federal government to interpret the meaning of the first ten amendment to our federal Constitution, and then impose its “interpretation of these amendments” upon the states, and people therein, has all but destroyed the right of the People in each of the States to determine their own internal affairs and adopt a declaration of rights as they see fit.

Here is what the good people of Pennsylvania decided was fit and proper as a declaration of rights. Why do you deny them their constitutional guarantee to determine their own internal affairs as follows?



I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.

III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.

IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or soft of men, who are a part only of that community, And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.

VI. That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections.

VII. That all elections ought to be free; and that all free men having a sufficient evident common interest with, and attachment to the community, have a right to elect officers, or to be elected into office.

VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.

IX. That in all prosecutions for criminal offences, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers.

X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.

XI. That in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.

XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

XIV. That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free: The people ought therefore to pay particular attention to these points in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislatures and magistrates, in the making and executing such laws as are necessary for the good government of the state.

XV. That all men have a natural inherent right to emigrate from one state to another that will receive them, or to form a new state in vacant countries, or in such countries as they can purchase, whenever they think that thereby they may promote their own happiness.

XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.

JWK




"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___ Chancellor James Kent, in his Commentaries on American Law , 1858.

[Swordsmyth]

From your response, it appears you did not study Roe v. Wade as I have done, and reviewed all the cases cited therein which documents how the notion that the 14th Amendment made the first ten amendments of our federal Constitution enforceable upon the states by the federal government, has opened the door to allowing the Supreme Court to “interpret” the amendments in a manner never intended by our founders, and in the process assume judicial power over various subject matters intended to be reserved under the Tenth Amendment to the States and people therein . . . abortion merely being one example, homosexual marriages being another.

The unsubstantiated opinion that the 14th Amendment was intended to allow the federal government to enforce the first ten amendments of our federal Constitution upon the states has all but destroyed federalism, our Constitution's design for a big tent system.

What is irrefutable in this discussion is, under our Founder’s plan, each state and the people therein are free to establish their own “bill of rights” or, Declaration of Rights.


Now, in regard to fundamental rights and protections of these rights within the various state borders, let us take a look at what the people, for example, of the State of Pennsylvania, agree upon before our federal government was even created, and did so in their State’s fundamental law otherwise known as Pennsylvania’s Declaration of Rights, adopted in 1776. (http://avalon.law.yale.edu/18th_century/pa08.asp)

Allowing the federal government to interpret the meaning of the first ten amendment to our federal Constitution, and then impose its “interpretation of these amendments” upon the states, and people therein, has all but destroyed the right of the People in each of the States to determine their own internal affairs and adopt a declaration of rights as they see fit.

Here is what the good people of Pennsylvania decided was fit and proper as a declaration of rights. Why do you deny them their constitutional guarantee to determine their own internal affairs as follows?



I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.

III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.

IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or soft of men, who are a part only of that community, And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.

VI. That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections.

VII. That all elections ought to be free; and that all free men having a sufficient evident common interest with, and attachment to the community, have a right to elect officers, or to be elected into office.

VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.

IX. That in all prosecutions for criminal offences, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers.

X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.

XI. That in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.

XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

XIV. That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free: The people ought therefore to pay particular attention to these points in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislatures and magistrates, in the making and executing such laws as are necessary for the good government of the state.

XV. That all men have a natural inherent right to emigrate from one state to another that will receive them, or to form a new state in vacant countries, or in such countries as they can purchase, whenever they think that thereby they may promote their own happiness.

XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.

JWK




"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___ Chancellor James Kent, in his Commentaries on American Law , 1858.

The "right" to abortion was not derived from the BoR at all, it was pulled out of thin air.

A federalism that allows the states to violate the basic rights of their citizens is indefensible, if any state wants to violate the rights of its citizens it should be overruled, expelled or allowed to secede.

The founders didn't create the 14thA and it amends their creation to quite clearly require the states to honor the rights in the BoR.

[johnwk]

From your response, it appears you did not study Roe v. Wade as I have done, and reviewed all the cases cited therein which documents how the notion that the 14th Amendment made the first ten amendments of our federal Constitution enforceable upon the states by the federal government, has opened the door to allowing the Supreme Court to “interpret” the amendments in a manner never intended by our founders, and in the process assume judicial power over various subject matters intended to be reserved under the Tenth Amendment to the States and people therein . . . abortion merely being one example, homosexual marriages being another.

The unsubstantiated opinion that the 14th Amendment was intended to allow the federal government to enforce the first ten amendments of our federal Constitution upon the states has all but destroyed federalism, our Constitution's design for a big tent system.

What is irrefutable in this discussion is, under our Founder’s plan, each state and the people therein are free to establish their own “bill of rights” or, Declaration of Rights.


Now, in regard to fundamental rights and protections of these rights within the various state borders, let us take a look at what the people, for example, of the State of Pennsylvania, agree upon before our federal government was even created, and did so in their State’s fundamental law otherwise known as Pennsylvania’s Declaration of Rights, adopted in 1776. (http://avalon.law.yale.edu/18th_century/pa08.asp)

Allowing the federal government to interpret the meaning of the first ten amendment to our federal Constitution, and then impose its “interpretation of these amendments” upon the states, and people therein, has all but destroyed the right of the People in each of the States to determine their own internal affairs and adopt a declaration of rights as they see fit.

Here is what the good people of Pennsylvania decided was fit and proper as a declaration of rights. Why do you deny them their constitutional guarantee to determine their own internal affairs as follows?



I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.

III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.

IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or soft of men, who are a part only of that community, And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.

VI. That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections.

VII. That all elections ought to be free; and that all free men having a sufficient evident common interest with, and attachment to the community, have a right to elect officers, or to be elected into office.

VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.

IX. That in all prosecutions for criminal offences, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers.

X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.

XI. That in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.

XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

XIV. That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free: The people ought therefore to pay particular attention to these points in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislatures and magistrates, in the making and executing such laws as are necessary for the good government of the state.

XV. That all men have a natural inherent right to emigrate from one state to another that will receive them, or to form a new state in vacant countries, or in such countries as they can purchase, whenever they think that thereby they may promote their own happiness.

XVI. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.

JWK




"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___ Chancellor James Kent, in his Commentaries on American Law , 1858.





The "right" to abortion was not derived from the BoR at all, it was pulled out of thin air.

A federalism that allows the states to violate the basic rights of their citizens is indefensible, if any state wants to violate the rights of its citizens it should be overruled, expelled or allowed to secede.

The founders didn't create the 14thA and it amends their creation to quite clearly require the states to honor the rights in the BoR.


Your deflections do not add to a productive discussion, nor substantiate your opinion about the first ten amendments to our federal Constitution being made enforceable upon the states by the 14th Amendment.

The simple truth is, the 14th Amendment’s legislative intent was never to undermine federalism and the Tenth Amendment which has always been a road block to progressives who want to establish a centralized federal government without defined and limited powers. And those who pretend the 14th Amendment made our Constitution’s first ten Amendments enforceable upon the States by the federal government are attempting to undermine and destroy the reserved powers of the States and people therein. Keep in mind that power corrupts and absolute power corrupts absolutely. Obamacare being a recent example, and Roe vs Wade being a very old example. In each case our federal government violates our Ten Amendment’s legislative intent and dictates the rules for each of our various united States in these areas, and does so without the consent of the governed as outlined under Article V!


It should further be noted that if the 14th Amendment’s intent was to make the federal BOR enforceable upon the States by Congress and Supreme Court Justices, the sitting Congress after the 14th Amendment was adopted was unaware of such intentions because there was no mention of this incorporation crap in the enforcement Acts Congress passed just after the 14th Amendment was adopted!

Likewise, the Supreme Court was also ignorant of the alleged incorporation of the BOR by the 14th Amendment. Several months after the 14th Amendment was adopted the S.C. decided Twitchell v. Pennsylvania (1869). Twitchell was convicted of murder which his lawyer appealed to the S. C. claiming the conviction relied upon violations of the Fifth and Sixth Amendments. The Court rejected the appeal by emphasizing the federal BOR only applied to the federal government and not the States!

And finally, why would Congress debate and try to pass a constitutional amendment, The Blaine Amendment (http://www.conservapedia.com/Blaine_Amendment) in 1876, specifically making the First Amendment’s religious prohibition enforceable upon the States by the federal government if the 14th Amendment already made the First Amendment enforceable upon the States?

The fact is, when one takes the time to review the entire historical record, as I have done, especially the debates of the 39th Congress, there are but a few references which suggest an objective to have the federal government enforce the federal BOR within the various States. However, no debate ever took place to do so! Instead, the consensus was to first make Blacks Citizens of the united states and of the State wherein they resided, and then to forbid every State to make or enforce any law which abridged a State’s recognized privileges or immunities based upon race or color, or deprive any “Citizen” or any person of life, liberty, or property, without due process under a state’s laws; nor allow any State to deny to any person within its jurisdiction the equal protection of its State’s laws, which includes a State‘s Bill of Rights. In fact, whatever a state’s Bill of Rights, or its Declaration of Rights was, the 14th Amendment was intended to make those rights [not the federal bill of rights] equally applicable to Blacks as they were to Whites! This was the narrow objective of the 14th Amendment aside from making Blacks citizens of the united States.

I hope this finally ends the myth that the 14th Amendment was intended to make the federal BOR enforceable upon the States by the federal government and in the process effectively repeal the Tenth Amendment and federalism, our Constitution‘s plan.

JWK

[Swordsmyth]

Your deflections do not add to a productive discussion, nor substantiate your opinion about the first ten amendments to our federal Constitution being made enforceable upon the states by the 14th Amendment.

The simple truth is, the 14th Amendment’s legislative intent was never to undermine federalism and the Tenth Amendment which has always been a road block to progressives who want to establish a centralized federal government without defined and limited powers. And those who pretend the 14th Amendment made our Constitution’s first ten Amendments enforceable upon the States by the federal government are attempting to undermine and destroy the reserved powers of the States and people therein. Keep in mind that power corrupts and absolute power corrupts absolutely. Obamacare being a recent example, and Roe vs Wade being a very old example. In each case our federal government violates our Ten Amendment’s legislative intent and dictates the rules for each of our various united States in these areas, and does so without the consent of the governed as outlined under Article V!


It should further be noted that if the 14th Amendment’s intent was to make the federal BOR enforceable upon the States by Congress and Supreme Court Justices, the sitting Congress after the 14th Amendment was adopted was unaware of such intentions because there was no mention of this incorporation crap in the enforcement Acts Congress passed just after the 14th Amendment was adopted!

Likewise, the Supreme Court was also ignorant of the alleged incorporation of the BOR by the 14th Amendment. Several months after the 14th Amendment was adopted the S.C. decided Twitchell v. Pennsylvania (1869). Twitchell was convicted of murder which his lawyer appealed to the S. C. claiming the conviction relied upon violations of the Fifth and Sixth Amendments. The Court rejected the appeal by emphasizing the federal BOR only applied to the federal government and not the States!

And finally, why would Congress debate and try to pass a constitutional amendment, The Blaine Amendment (http://www.conservapedia.com/Blaine_Amendment) in 1876, specifically making the First Amendment’s religious prohibition enforceable upon the States by the federal government if the 14th Amendment already made the First Amendment enforceable upon the States?

The fact is, when one takes the time to review the entire historical record, as I have done, especially the debates of the 39th Congress, there are but a few references which suggest an objective to have the federal government enforce the federal BOR within the various States. However, no debate ever took place to do so! Instead, the consensus was to first make Blacks Citizens of the united states and of the State wherein they resided, and then to forbid every State to make or enforce any law which abridged a State’s recognized privileges or immunities based upon race or color, or deprive any “Citizen” or any person of life, liberty, or property, without due process under a state’s laws; nor allow any State to deny to any person within its jurisdiction the equal protection of its State’s laws, which includes a State‘s Bill of Rights. In fact, whatever a state’s Bill of Rights, or its Declaration of Rights was, the 14th Amendment was intended to make those rights [not the federal bill of rights] equally applicable to Blacks as they were to Whites! This was the narrow objective of the 14th Amendment aside from making Blacks citizens of the united States.

I hope this finally ends the myth that the 14th Amendment was intended to make the federal BOR enforceable upon the States by the federal government and in the process effectively repeal the Tenth Amendment and federalism, our Constitution‘s plan.

JWK

Neither abortion nor O'Bummercare have any relation to the BoR and requiring the states to honor the GOD given rights of their citizens does nothing to undermine the states' authority in areas where they have legitimate authority and the federal government does not.

Twitchell was a bad ruling based on the Justices' previous understanding of the Constitution that did not take into account the clear intent of the 14thA.
The 1stA specifies that it only applies to Congress and therefore it is understandable that some people might have thought that a further amendment was necessary in order to apply it to the states, the fact that they only thought that necessary for the 1stA shows that the rest of the BoR had already been applied to the states.

The 14thA is very specific:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

It does not say: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of that State.”

As a matter of Natural Law no government may violate the rights of its citizens, anything that any level of government may violate is by definition not a right.
Whatever the consensus was at any point in the past doesn't matter, My rights come from GOD and no human government may violate them, any state that desires to violate my rights should be overruled, expelled or allowed to secede because this nation was founded on the principle of respecting the GOD given rights of the people.

Why are you so intent on allowing any level of government to violate any of our GOD given rights? we should be expanding liberty not contracting it.

[Sonny Tufts]

It should further be noted that if the 14th Amendment’s intent was to make the federal BOR enforceable upon the States by Congress and Supreme Court Justices, the sitting Congress after the 14th Amendment was adopted was unaware of such intentions because there was no mention of this incorporation crap in the enforcement Acts Congress passed just after the 14th Amendment was adopted!

There was mention of incorporation, as Justice Thomas pointed out in his concurring opinion referred to above:


Interpretations of the Fourteenth Amendment in the period immediately following its ratification help to establish the public understanding of the text at the time of its adoption. Some of these interpretations come from Members of Congress. During an 1871 debate on a bill to enforce the Fourteenth Amendment, Representative Henry Dawes listed the Constitution’s first eight Amendments, including “the right to keep and bear arms,” before explaining that after the Civil War, the country “gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens” who formerly were slaves. Cong.
Globe, 42d Cong., 1st Sess., 475–476 (1871). “It is all these,” Dawes explained, “which are comprehended in the words ‘American citizen.’” Ibid.; see also id., at 334 (remarks of Rep. Hoar) (stating that the Privileges or Immunities Clause referred to those rights “declared to belong to the citizen by the Constitution itself”). Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities Clause protected constitutionally enumerated individual rights. See 2 Cong. Rec. 384–385 (1874) (remarks of Rep. Mills) (opposing enforcement law, but acknowledging, in referring to the Bill of Rights, that “[t]hese first amendments and some provisions of the Constitution of like import embrace the ‘privileges and immunities’ of citizenship as set forth in article 4, section 2 of the Constitution and in the fourteenth amendment” (emphasis added)); see see Curtis 166–170 (collecting examples).

Legislation passed in furtherance of the Fourteenth Amendment demonstrates even more clearly this understanding. For example, Congress enacted the Civil Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States,” and which is codified in the still-existing 42 U. S. C. §1983. That statute prohibits state officials from depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Rev. Stat. 1979, 42 U. S. C. §1983 (emphasis added). Although the Judiciary ignored this provision for decades after its enactment, this Court has come
to interpret the statute, unremarkably in light of its text, as protecting constitutionally enumerated rights. Monroe v. Pape, 365 U. S. 167, 171 (1961).

A Federal Court of Appeals decision written by a future Justice of this Court adopted the same understanding of the Privileges or Immunities Clause. See, e.g., United States v. Hall, 26 F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) (“We think, therefore, that the . . . rights enumerated in the first eight articles of amendment to the
constitution of the United States, are the privileges and immunities of citizens of the United States”). In addition, two of the era’s major constitutional treatises reflected the
understanding that §1 would protect constitutionally enumerated rights from state abridgment. A third such treatise unambiguously indicates that the Privileges or Immunities Clause accomplished this task. G. Paschal, The Constitution of the United States 290 (1868) (explaining that the rights listed in §1 had “already been guarantied” by Article IV and the Bill of Rights, but that “[t]he new feature declared” by §1 was that these rights, “which had been construed to apply only to the national government, are thus imposed upon the States”).

Another example of public understanding comes from United States Attorney Daniel Corbin’s statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and
declared: “[T]he fourteenth amendment changes all that theory, and lays the same restriction upon the States that before lay upon the Congress of the United States—that,
as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. The right to keep and bear arms is included in the fourteenth amendment, under ‘privileges and immunities.’” Proceedings in the Ku Klux Trials at Columbia, S. C., in the United States Circuit Court, November Term, 1871, p. 147 (1872).


Likewise, the Supreme Court was also ignorant of the alleged incorporation of the BOR by the 14th Amendment. Several months after the 14th Amendment was adopted the S.C. decided Twitchell v. Pennsylvania (1869). Twitchell was convicted of murder which his lawyer appealed to the S. C. claiming the conviction relied upon violations of the Fifth and Sixth Amendments. The Court rejected the appeal by emphasizing the federal BOR only applied to the federal government and not the States!

That's because Twitchell didn't argue that the 14th Amendment required the federal BOR be applied to the states. There's no mention of the 14th in the opinion.

Look, there are scholars on both sides of this issue, and the historical record isn't as one-sided as you claim it to be. I suggest you read Justice Thomas's opinion and the views of Professor Randy Barnett (a noted libertarian) regarding the P&I Clause.

[Swordsmyth]

That's because Twitchell didn't argue that the 14th Amendment required the federal BOR be applied to the states. There's no mention of the 14th in the opinion.
This brings up an important point, the courts should know the law at least well enough to apply the Constitution even if the parties involved fail to appeal to it.

[johnwk]

Your deflections do not add to a productive discussion, nor substantiate your opinion about the first ten amendments to our federal Constitution being made enforceable upon the states by the 14th Amendment.

The simple truth is, the 14th Amendment’s legislative intent was never to undermine federalism and the Tenth Amendment which has always been a road block to progressives who want to establish a centralized federal government without defined and limited powers. And those who pretend the 14th Amendment made our Constitution’s first ten Amendments enforceable upon the States by the federal government are attempting to undermine and destroy the reserved powers of the States and people therein. Keep in mind that power corrupts and absolute power corrupts absolutely. Obamacare being a recent example, and Roe vs Wade being a very old example. In each case our federal government violates our Ten Amendment’s legislative intent and dictates the rules for each of our various united States in these areas, and does so without the consent of the governed as outlined under Article V!


It should further be noted that if the 14th Amendment’s intent was to make the federal BOR enforceable upon the States by Congress and Supreme Court Justices, the sitting Congress after the 14th Amendment was adopted was unaware of such intentions because there was no mention of this incorporation crap in the enforcement Acts Congress passed just after the 14th Amendment was adopted!

Likewise, the Supreme Court was also ignorant of the alleged incorporation of the BOR by the 14th Amendment. Several months after the 14th Amendment was adopted the S.C. decided Twitchell v. Pennsylvania (1869). Twitchell was convicted of murder which his lawyer appealed to the S. C. claiming the conviction relied upon violations of the Fifth and Sixth Amendments. The Court rejected the appeal by emphasizing the federal BOR only applied to the federal government and not the States!

And finally, why would Congress debate and try to pass a constitutional amendment, The Blaine Amendment (http://www.conservapedia.com/Blaine_Amendment) in 1876, specifically making the First Amendment’s religious prohibition enforceable upon the States by the federal government if the 14th Amendment already made the First Amendment enforceable upon the States?

The fact is, when one takes the time to review the entire historical record, as I have done, especially the debates of the 39th Congress, there are but a few references which suggest an objective to have the federal government enforce the federal BOR within the various States. However, no debate ever took place to do so! Instead, the consensus was to first make Blacks Citizens of the united states and of the State wherein they resided, and then to forbid every State to make or enforce any law which abridged a State’s recognized privileges or immunities based upon race or color, or deprive any “Citizen” or any person of life, liberty, or property, without due process under a state’s laws; nor allow any State to deny to any person within its jurisdiction the equal protection of its State’s laws, which includes a State‘s Bill of Rights. In fact, whatever a state’s Bill of Rights, or its Declaration of Rights was, the 14th Amendment was intended to make those rights [not the federal bill of rights] equally applicable to Blacks as they were to Whites! This was the narrow objective of the 14th Amendment aside from making Blacks citizens of the united States.

I hope this finally ends the myth that the 14th Amendment was intended to make the federal BOR enforceable upon the States by the federal government and in the process effectively repeal the Tenth Amendment and federalism, our Constitution‘s plan.

JWK



Neither abortion nor O'Bummercare have any relation to the BoR and requiring the states to honor the GOD given rights of their citizens does nothing to undermine the states' authority in areas where they have legitimate authority and the federal government does not.

Twitchell was a bad ruling based on the Justices' previous understanding of the Constitution that did not take into account the clear intent of the 14thA.




Well, I see you have once again deflected, posted your personal opinion, and have failed to provide the documentation from the 39th Congressional Debates that the 14th Amendment was intended by those who framed it, to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.



As I have stated before, I have scoured the debates of the 39th Congress which produced the 14th Amendment and have never found sufficient evidence to conclude the intention of the 14th Amendment was to make the first ten amendments of our federal constitution enforceable upon the states by the federal government. But I have found sufficient evidence to conclude what its legislative intent was, as that legislative intent was summarized as follows by one of its supporters:


“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.”
___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)


I will patiently await you to provide the evidence from the debates of the 39th Congress that its intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government i.e, confirm the incorporation myth.


JWK

[johnwk]

Yet Thomas interprets the Privileges and Immunities Clause as requiring that the Bill of Rights apply to the States. See his concurring opinion in McDonald v. City of Chicago, 561 U.S. 472 (2010), in which he goes into the history of the Clause in some detail. He thinks the Court got it wrong in The Slaughter-House Cases when it essentially eviscerated the P&I Clause. He has a point.


You apparently never read Justice Thomas' opinion. In his written opinion we find:


The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 ( Stevens, J., dissenting); see post , at 6–8 ( Breyer, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.


To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post , at 7 ( Breyer, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of . . . constitutional promises”); post , at 22 (Stevens, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.


I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

[Swordsmyth]

You apparently never read Justice Thomas' opinion. In his written opinion we find:


The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 ( Stevens, J., dissenting); see post , at 6–8 ( Breyer, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.


To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post , at 7 ( Breyer, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of . . . constitutional promises”); post , at 22 (Stevens, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.


I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.






Justice Thomas, concurring in part and concurring in the judgment.
I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history. Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145 (https://supreme.justia.com/cases/federal/us/391/145/index.html), 149 (1968)), and “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante, at 19(quoting Washington v. Glucksberg, 521 U. S. 702 (https://supreme.justia.com/cases/federal/us/521/702/index.html), 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.


More at: https://supreme.justia.com/cases/federal/us/561/742/

[Swordsmyth]

Two questions still remain, both provoked by the textual similarity between §1’s Privileges or Immunities Clause and Article IV, §2. The first involves the nature of the rights at stake: Are the privileges or immunities of “citizens of the United States” recognized by §1 the same as the privileges and immunities of “citizens in the several States” to which Article IV, §2 refers? The second involves the restriction imposed on the States: Does §1, like Article IV, §2, prohibit only discrimination with respect to certain rights if the State chooses to recognize them, or does it require States to recognize those rights? I address each question in turn.
B
I start with the nature of the rights that §1’s Privileges or Immunities Clause protects. Section 1 overruled Dred Scott’s holding that blacks were not citizens of either the United States or their own State and, thus, did not enjoy “the privileges and immunities of citizens” embodied in the Constitution. 19 How., at 417. The Court in Dred Scott did not distinguish between privileges and immunities of citizens of the United States and citizens in the several States, instead referring to the rights of citizens generally. It did, however, give examples of what the rights of citizens were—the constitutionally enumerated rights of “the full liberty of speech” and the right “to keep and carry arms.” Ibid.
Section 1 protects the rights of citizens “of the United States” specifically. The evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution, including the right to keep and bear arms.
1
Nineteenth-century treaties through which the United States acquired territory from other sovereigns routinely promised inhabitants of the newly acquired territories that they would enjoy all of the “rights,” “privileges,” and “immunities” of United States citizens. See, e.g., Treaty of Amity, Settlement, and Limits, Art. 6, Feb. 22, 1819, 8 Stat. 256–258, T. S. No. 327 (entered into force Feb. 19, 1821) (cession of Florida) (“The inhabitants of the territories which his Catholic Majesty cedes to the United States, by this Treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States” (emphasis added)).[Footnote 7 (https://supreme.justia.com/cases/federal/us/561/742/#F7)] Commentators of the time explained that the rights and immunities of “citizens of the United States” recognized in these treaties “undoubtedly mean[t] those privileges that are common to all citizens of this republic.” Marcus, An Examination of the Expediency and Constitutionality of Prohibiting Slavery in the State of Missouri 17 (1819). It is therefore altogether unsurprising that several of these treaties identify liberties enumerated in the Constitution as privileges and immunities common to all United States citizens.
For example, the Louisiana Cession Act of 1803, which codified a treaty between the United States and France culminating in the Louisiana Purchase, provided that
“The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyments of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess.” Treaty Between the United States of America and the French Republic, Art. III, Apr. 30, 1803, 8 Stat. 202, T. S. No. 86 (emphasis added).[Footnote 8 (https://supreme.justia.com/cases/federal/us/561/742/#F8)]
The Louisiana Cession Act reveals even more about the privileges and immunities of United States citizenship because it provoked an extensive public debate on the meaning of that term. In 1820, when the Missouri Territory (which the United States acquired through the Cession Act) sought to enter the Union as a new State, a debate ensued over whether to prohibit slavery within Missouri as a condition of its admission. Some congressmen argued that prohibiting slavery in Missouri would deprive its inhabitants of the “privileges and immunities” they had been promised by the Cession Act. See, e.g., 35 Annals of Cong. 1083 (1855) (remarks of Kentucky Rep. Hardin). But those who opposed slavery in Missouri argued that the right to hold slaves was merely a matter of state property law, not one of the privileges and immunities of United States citizenship guaranteed by the Act.[Footnote 9 (https://supreme.justia.com/cases/federal/us/561/742/#F9)] Daniel Webster was among the leading proponents of the antislavery position. In his “Memorial to Congress,” Webster argued that “[t]he rights, advantages and immunities here spoken of must . . . be such as are recognized or communicated by the Constitution of the United States,” not the “rights, advantages and immunities, derived exclusively from the State governments . . . .” D. Webster, A Memorial to the Congress of the United States on the Subject of Restraining the Increase of Slavery in New States to be Admitted into the Union 15 (Dec. 15, 1819) (emphasis added). “The obvious meaning” of the Act, in Webster’s view, was that “the rights derived under the federal Constitution shall be enjoyed by the inhabitants of [the territory].” Id., at 15–16 (emphasis added). In other words, Webster articulated a distinction between the rights of United States citizenship and the rights of state citizenship, and argued that the former included those rights “recognized or communicated by the Constitution.” Since the right to hold slaves was not mentioned in the Constitution, it was not a right of federal citizenship.
Webster and his allies ultimately lost the debate over slavery in Missouri and the territory was admitted as a slave State as part of the now-famous Missouri Compromise. Missouri Enabling Act of March 6, 1820, ch. 22, §8, 3 Stat. 548. But their arguments continued to inform public understanding of the privileges and immunities of United States citizenship. In 1854, Webster’s Memorial was republished in a pamphlet discussing the Nation’s next major debate on slavery—the proposed repeal of the Missouri Compromise through the Kansas-Nebraska Act, see The Nebraska Question: Comprising Speeches in the United States Senate: Together with the History of the Missouri Compromise 9–12 (1854). It was published again in 1857 in a collection of famous American speeches. See The Political Text-Book, or Encyclopedia: Containing Everything Necessary for the Reference of the Politicians and Statesmen of the United States 601–604 (M. Cluskey ed. 1857); see also Lash, 98 Geo. L. J., at 1294–1296 (describing Webster’s arguments and their influence).

2
Evidence from the political branches in the years leading to the Fourteenth Amendment’s adoption demonstrates broad public understanding that the privileges and immunities of United States citizenship included rights set forth in the Constitution, just as Webster and his allies had argued. In 1868, President Andrew Johnson issued a proclamation granting amnesty to former Confederates, guaranteeing “to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason . . . with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.” 15 Stat. 712.
Records from the 39th Congress further support this understanding.
a
After the Civil War, Congress established the Joint Committee on Reconstruction to investigate circumstances in the Southern States and to determine whether, and on what conditions, those States should be readmitted to the Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30 (1865) (hereinafter 39th Cong. Globe); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 57 (1986) (hereinafter Curtis). That Committee would ultimately recommend the adoption of the Fourteenth Amendment, justifying its recommendation by submitting a report to Congress that extensively catalogued the abuses of civil rights in the former slave States and argued that “adequate security for future peace and safety . . . can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic.” See Report of the Joint Committee on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess., p. 15 (1866); H. R. Rep. No. 30, 39th Cong., 1st Sess., p. XXI (1866).
As the Court notes, the Committee’s Report “was widely reprinted in the press and distributed by members of the 39th Congress to their constituents.” Ante, at 24; B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 264–265 (1914) (noting that 150,000 copies of the Report were printed and that it was widely distributed as a campaign document in the election of 1866). In addition, newspaper coverage suggests that the wider public was aware of the Committee’s work even before the Report was issued. For example, the Fort Wayne Daily Democrat (which appears to have been unsupportive of the Committee’s work) paraphrased a motion instructing the Committee to
“enquire into [the] expediency of amending the Constitution of the United States so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument.” The ****** Congress!, Fort Wayne Daily Democrat, Feb. 1, 1866, p. 4 (emphasis added).
b
Statements made by Members of Congress leading up to, and during, the debates on the Fourteenth Amendment point in the same direction. The record of these debates has been combed before. See Adamson v. California, 332 U. S. 46 (https://supreme.justia.com/cases/federal/us/332/46/index.html), 92–110 (1947) (Appendix to dissenting opinion of Black, J.) (concluding that the debates support the conclusion that §1 was understood to incorporate the Bill of Rights against the States); ante, at 14, n. 9, 26–27, n. 23, (opinion of the Court) (counting the debates among other evidence that §1 applies the Second Amendment against the States). Before considering that record here, it is important to clarify its relevance. When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean.
(1)
Three speeches stand out as particularly significant. Representative John Bingham, the principal draftsman of §1, delivered a speech on the floor of the House in February 1866 introducing his first draft of the provision. Bingham began by discussing Barron and its holding that the Bill of Rights did not apply to the States. He then argued that a constitutional amendment was necessary to provide “an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person.” 39th Cong. Globe 1089–1090 (1866). Bingham emphasized that §1 was designed “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It ‘hath that extent—no more.’ ” Id., at 1088.
Bingham’s speech was printed in pamphlet form and broadly distributed in 1866 under the title, “One Country, One Constitution, and One People,” and the subtitle, “In Support of the Proposed Amendment to Enforce the Bill of Rights.”[Footnote 10 (https://supreme.justia.com/cases/federal/us/561/742/#F10)] Newspapersalsoreported his proposal, with the New York Times providing particularly extensive coverage, including a full reproduction of Bingham’s first draft of §1 and his remarks that a constitutional amendment to “enforc[e]” the “immortal bill of rights” was “absolutely essential to American nationality.” N. Y. Times, Feb. 27, 1866, p. 8. Bingham’s first draft of §1 was different from the version ultimately adopted. Of particular importance, the first draft grantedCongress the “power to make all laws … necessary and proper to secure” the “citizens of each State all privileges and immunities of citizens in the several States,” rather than restricting state power to “abridge” the privileges or immunities of citizens of the United States.[Footnote 11 (https://supreme.justia.com/cases/federal/us/561/742/#F11)] 39th Cong. Globe 1088.
That draft was met with objections, which the Timescovered extensively. A front-page article hailed the “Clear and Forcible Speech” by Representative Robert Hale against the draft, explaining—and endorsing—Hale’s view that Bingham’s proposal would “confer upon Congress all the rights and power of legislation now reserved to the States” and would “in effect utterly obliterate State rights and State authority over their own internal affairs.”[Footnote 12 (https://supreme.justia.com/cases/federal/us/561/742/#F12)] N. Y. Times, Feb. 28, 1866, p. 1.
Critically, Hale did not object to the draft insofar as it purported to protect constitutional liberties against state interference. Indeed, Hale stated that he believed (incorrectly in light of Barron) that individual rights enumerated in the Constitution were already enforceable against the States. See 39th Cong. Globe 1064 (“I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected”); see N. Y. Times, Feb. 28, 1866, at 1. Hale’s misperception was not uncommon among members of the Reconstruction generation. See infra, at 38–40. But that is secondary to the point that the Times’coverage of this debate over §1’s meaning suggests public awareness of its main contours—i.e., that §1 would, at a minimum, enforce constitutionally enumerated rights of United States citizens against the States.
Bingham’s draft was tabled for several months. In the interim, he delivered a second well-publicized speech, again arguing that a constitutional amendment was required to give Congress the power to enforce the Bill of Rights against the States. That speech was printed in pamphlet form, see Speech of Hon. John A. Bingham, of Ohio, on the Civil Rights Bill, Mar. 9, 1866 (Cong. Globe); see 39th Cong. Globe 1837 (remarks of Rep. Lawrence) (noting that the speech was “extensively published”), and the New York Times covered the speech on its front page. Thirty-Ninth Congress, N. Y. Times, Mar. 10, 1866, p. 1.
By the time the debates on the Fourteenth Amendment resumed, Bingham had amended his draft of §1 to include the text of the Privileges or Immunities Clause that was ultimately adopted. Senator Jacob Howard introduced the new draft on the floor of the Senate in the third speech relevant here. Howard explained that the Constitution recognized “a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, . . . some by the first eight amendments of the Constitution,” and that “there is no power given in the Constitution to enforce and to carry out any of these guarantees” against the States. 39th Cong. Globe 2765. Howard then stated that “the great object” of §1 was to “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” Id., at 2766. Section 1, he indicated, imposed “a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States.” Id., at 2765.
In describing these rights, Howard explained that they included “the privileges and immunities spoken of” in Article IV, §2. Id., at 2765. Although he did not catalogue the precise “nature” or “extent” of those rights, he thought “Corfield v. Coryell” provided a useful description. Howard then submitted that

“[t]o these privileges and immunities, whatever they may be— . . . should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, [and] . . . the right to keep and to bear arms.” Ibid. (emphasis added).
News of Howard’s speech was carried in major newspapers across the country, including the New York Herald, see N. Y. Herald, May 24, 1866, p. 1, which was the best-selling paper in the Nation at that time, see A. Amar, The Bill of Rights: Creation and Reconstruction 187 (1998) (hereinafter Amar).[Footnote 13 (https://supreme.justia.com/cases/federal/us/561/742/#F13)] The New York Times carried the speech as well, reprinting a lengthy excerpt of Howard’s remarks, including the statements quoted above. N. Y. Times, May 24, 1866, p. 1. The following day’s Timeseditorialized on Howard’s speech, predicting that “[t]o this, the first section of the amendment, the Union party throughout the country will yield a ready acquiescence, and the South could offer no justifiable resistance,” suggesting that Bingham’s narrower second draft had not been met with the same objections that Hale had raised against the first. N. Y. Times, May 25, 1866, p. 4. As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.

(2)
When read against this backdrop, the civil rights legislation adopted by the 39th Congress in 1866 further supports this view. Between passing the Thirteenth Amendment—which outlawed slavery alone—and the Fourteenth Amendment, Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, . . . shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ch. 31, §1, 14 Stat. 27. Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “depriving persons of African descent of privileges which are essential to freemen,” including “prohibit any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id., at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia, “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”).
Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning personal liberty” and “personal security.” Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid.

(3)
There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition. That said, the record of the debates—like most legislative history—is less than crystal clear. In particular, much ambiguity derives from the fact that at least several Members described §1 as protecting the privileges and immunities of citizens “in the several States,” harkening back to Article IV, §2. See supra, at 28–29 (describing Sen. Howard’s speech).These statements can be read to support the view that the Privileges or Immunities Clause protects some or all the fundamental rights of “citizens” described in Corfield. They can also be read to support the view that the Privileges or Immunities Clause, like Article IV, §2, prohibits only state discrimination with respect to those rights it covers, but does not deprive States of the power to deny those rights to all citizens equally.
I examine the rest of the historical record with this understanding. But for purposes of discerning what the public most likely thought the Privileges or Immunities Clause to mean, it is significant that the most widely publicized statements by the legislators who voted on §1—Bingham, Howard, and even Hale—point unambiguously toward the conclusion that the Privileges or Immunities Clause enforces at least those fundamental rights enumerated in the Constitution against the States, including the Second Amendment right to keep and bear arms.
3
Interpretations of the Fourteenth Amendment in the period immediately following its ratification help to establish the public understanding of the text at the time of its adoption.
Some of these interpretations come from Members of Congress. During an 1871 debate on a bill to enforce the Fourteenth Amendment, Representative Henry Dawes listed the Constitution’s first eight Amendments, including “the right to keep and bear arms,” before explaining that after the Civil War, the country “gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens” who formerly were slaves. Cong. Globe, 42d Cong., 1st Sess., 475–476 (1871). “It is all these,” Dawes explained, “which are comprehended in the words ‘American citizen.’ ” Ibid.; see also id.,at 334 (remarks of Rep. Hoar) (stating that the Privileges or Immunities Clause referred to those rights “declared to belong to the citizen by the Constitution itself”). Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities Clause protected constitutionally enumerated individual rights. See 2 Cong. Rec. 384–385 (1874) (remarks of Rep. Mills) (opposing enforcement law, but acknowledging, in referring to the Bill of Rights, that “[t]hese first amendments and some provisions of the Constitution of like import embrace the ‘privileges and immunities’ of citizenship as set forth in article 4, section 2 of the Constitution and in the fourteenth amendment” (emphasis added)); see Curtis 166–170 (collecting examples). Legislation passed in furtherance of the Fourteenth Amendment demonstrates even more clearly this understanding. For example, Congress enacted the Civil Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States,” and which is codified in the still-existing 42 U. S. C. §1983. That statute prohibits state officials from depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Rev. Stat. 1979, 42 U. S. C. §1983 (emphasis added). Although the Judiciary ignored this provision for decades after its enactment, this Court has come to interpret the statute, unremarkably in light of its text, as protecting constitutionally enumerated rights. Monroe v. Pape, 365 U. S. 167 (https://supreme.justia.com/cases/federal/us/365/167/index.html), 171 (1961).
A Federal Court of Appeals decision written by a future Justice of this Court adopted the same understanding of the Privileges or Immunities Clause. See, e.g., United States v. Hall, 26 F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) (“We think, therefore, that the . . . rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States”). In addition, two of the era’s major constitutional treatises reflected the understanding that §1 would protect constitutionally enumerated rights from state abridgment.[Footnote 14 (https://supreme.justia.com/cases/federal/us/561/742/#F14)] A third such treatise unambiguously indicates that the Privileges or Immunities Clause accomplished this task. G. Paschal, The Constitution of the United States 290 (1868) (explaining that the rights listed in §1 had “already been guarantied” by Article IV and the Bill of Rights, but that “[t]he new feature declared” by §1 was that these rights, “which had been construed to apply only to the national government, are thus imposed upon the States”).
Another example of public understanding comes from United States Attorney Daniel Corbin’s statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and declared:

“[T]he fourteenth amendment changes all that theory, and lays the same restriction upon the States that before lay upon the Congress of the United States—that, as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. The right to keep and bear arms is included in the fourteenth amendment, under ‘privileges and immunities.’ ” Proceedings in the Ku Klux Trials at Columbia, S. C., in the United States Circuit Court, November Term, 1871, p. 147 (1872).
*  *  *
This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that §1 was understood to enforce the Second Amendment against the States. See ante, at 22–33. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.
C
The next question is whether the Privileges or Immunities Clause merely prohibits States from discriminating among citizens if they recognize the Second Amendment’s right to keep and bear arms, or whether the Clause requires States to recognize the right. The municipal respondents, Chicago and Oak Park, argue for the former interpretation. They contend that the Second Amendment, as applied to the States through the Fourteenth, authorizes a State to impose an outright ban on handgun possession such as the ones at issue here so long as a State applies it to all citizens equally.[Footnote 15 (https://supreme.justia.com/cases/federal/us/561/742/#F15)] The Court explains why this antidiscrimination-only reading of §1 as a whole is “implausible.” Ante, at 31 (citing Brief for Municipal Respondents 64). I agree, but because I think it is the Privileges or Immunities Clause that applies this right to the States, I must explain why this Clause in particular protects against more than just state discrimination, and in fact establishes a minimum baseline of rights for all American citizens.
1
I begin, again, with the text. The Privileges or Immunities Clause opens with the command that “[I]No State shall” abridge the privileges or immunities of citizens of the United States. Amdt. 14, §1 (emphasis added). The very same phrase opens Article I, §10 of the Constitution, which prohibits the States from “pass any Bill of Attainder” or “ex post facto Law,” among other things. Article I, §10 is one of the few constitutional provisions that limits state authority. In Barron, when Chief Justice Marshall interpreted the Bill of Rights as lacking “plain and intelligible language” restricting state power to infringe upon individual liberties, he pointed to Article I, §10 as an example of text that would have accomplished that task. 7 Pet., at 250. Indeed, Chief Justice Marshall would later describe Article I, §10 as “a bill of rights for the people of each state.” [I]Fletcher v. Peck, 6 Cranch 87, 138 (1810). Thus, the fact that the Privileges or Immunities Clause uses the command “[n]o State shall”—which Article IV, §2 does not—strongly suggests that the former imposes a greater restriction on state power than the latter. This interpretation is strengthened when one considers that the Privileges or Immunities Clause uses the verb “abridge,” rather than “discriminate,” to describe the limit it imposes on state authority. The Webster’s dictionary in use at the time of Reconstruction defines the word “abridge” to mean “[t]o deprive; to cut off; . . . as, to abridge one of his rights.” Webster, An American Dictionary of the English Language, at 6. The Clause is thus best understood to impose a limitation on state power to infringe upon pre-existing substantive rights. It raises no indication that the Framers of the Clause used the word “abridge” to prohibit only discrimination.

This most natural textual reading is underscored by a well-publicized revision to the Fourteenth Amendment that the Reconstruction Congress rejected. After several Southern States refused to ratify the Amendment, President Johnson met with their Governors to draft a compromise. N. Y. Times, Feb. 5, 1867, p. 5. Their proposal eliminated Congress’ power to enforce the Amendment (granted in §5), and replaced the Privileges or Immunities Clause in §1 with the following:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States in which they reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” Draft reprinted in 1 Documentary History of Reconstruction 240 (W. Fleming ed. 1950) (hereinafter Fleming).
Significantly, this proposal removed the “[n]o State shall” directive and the verb “abridge” from §1, andalso changed the class of rights to be protected from those belonging to “citizens of the United States” to those of the “citizens in the several States.” This phrasing is materially indistinguishable from Article IV, §2, which generally was understood as an antidiscrimination provision alone. See supra, at 15–18. The proposal thus strongly indicates that at least the President of the United States and several southern Governors thought that the Privileges or Immunities Clause, which they unsuccessfully tried to revise, prohibited more than just state-sponsored discrimination.
2
The argument that the Privileges or Immunities Clause prohibits no more than discrimination often is followed by a claim that public discussion of the Clause, and of §1 generally, was not extensive. Because of this, the argument goes, §1 must not have been understood to accomplish such a significant task as subjecting States to federal enforcement of a minimum baseline of rights. That argument overlooks critical aspects of the Nation’s history that underscored the need for, and wide agreement upon, federal enforcement of constitutionally enumerated rights against the States, including the right to keep and bear arms.
a
I turn first to public debate at the time of ratification. It is true that the congressional debates over §1 were relatively brief. It is also true that there is little evidence of extensive debate in the States. Many state legislatures did not keep records of their debates, and the few records that do exist reveal only modest discussion. See Curtis 145. These facts are not surprising.
First, however consequential we consider the question today, the nationalization of constitutional rights was not the most controversial aspect of the Fourteenth Amendment at the time of its ratification. The Nation had just endured a tumultuous civil war, and §§2, 3, and 4—which reduced the representation of States that denied voting rights to blacks, deprived most former Confederate officers of the power to hold elective office, and required States to disavow Confederate war debts—were far more polarizing and consumed far more political attention. See Wildenthal 1600; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866–1868, 30 Whittier L. Rev. 695, 699 (2009). Second, the congressional debates on the Fourteenth Amendment reveal that many representatives, and probably many citizens, believed that the Thirteenth Amendment, the 1866 Civil Rights legislation, or some combination of the two, had already enforced constitutional rights against the States. Justice Black’s dissent in Adamson chronicles this point in detail. 332 U. S., at 107–108 (Appendix to dissenting opinion). Regardless of whether that understanding was accurate as a matter of constitutional law, it helps to explain why Congressmen had little to say during the debates about §1. See ibid.
Third, while Barron made plain that the Bill of Rights was not legally enforceable against the States, see supra, at 2, the significance of that holding should not be overstated. Like the Framers, see supra, at 14–15, many 19th-century Americans understood the Bill of Rights to declare inalienable rights that pre-existed all government. Thus, even though the Bill of Rights technically applied only to the Federal Government, many believed that it declared rights that no legitimate government could abridge.
Chief Justice Henry Lumpkin’s decision for the Georgia Supreme Court in Nunn v. State, 1 Ga. 243 (1846), illustrates this view. In assessing state power to regulate firearm possession, Lumpkin wrote that he was “aware that it has been decided, that [the Second Amendment], like other amendments adopted at the same time, is a restriction upon the government of the United States, and does not extend to the individual States.” Id., at 250. But he still considered the right to keep and bear arms as “an unalienable right, which lies at the bottom of every free government,” and thus found the States bound to honor it. Ibid. Other state courts adopted similar positions with respect to the right to keep and bear arms and other enumerated rights.[Footnote 16 (https://supreme.justia.com/cases/federal/us/561/742/#F16)] Some courts even suggested that the protections in the Bill of Rights were legally enforceable against the States, Barron notwithstanding.[Footnote 17 (https://supreme.justia.com/cases/federal/us/561/742/#F17)] A prominent treatise of the era took the same position. W. Rawle, A View of the Constitution of the United States of America 124–125 (2d ed. 1829) (reprint 2009) (arguing that certain of the first eight Amendments “appl[y] to the state legislatures” because those Amendments “form parts of the declared rights of the people, of which neither the state powers nor those of the Union can ever deprive them”); id., at 125–126 (describing the Second Amendment “right of the people to keep and bear arms” as “a restraint on both” Congress and the States); see also Heller, 554 U. S., at __ (slip op., at 34) (describing Rawle’s treatise as “influential”). Certain abolitionist leaders adhered to this view as well. Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the “natural right of all men ‘to keep and bear arms’ for their personal defence,” which he believed the Constitution “prohibit[ed] both Congress and the State governments from infringing.” L. Spooner, The Unconstitutionality of Slavery 98 (1860).
In sum, some appear to have believed that the Bill of Rights did apply to the States, even though this Court had squarely rejected that theory. See, e.g., supra,at 27–28 (recounting Rep. Hale’s argument to this effect). Many others believed that the liberties codified in the Bill of Rights were ones that no State should abridge, even though they understood that the Bill technically did not apply to States. These beliefs, combined with the fact that most state constitutions recognized many, if not all, of the individual rights enumerated in the Bill of Rights, made the need for federal enforcement of constitutional liberties against the States an afterthought......

...
After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, the snobs, and the male waiting-maids in Congress, were in hysterics.” K. Stampp, The Era of Reconstruction, 1865–1877, p. 104 (1965) (hereinafter Era of Reconstruction).
As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. See ante, at 23. Some States formally prohibited blacks from possessing firearms. Ante, at 23–24 (quoting 1865 Miss. Laws p. 165, §1, reprinted in 1 Fleming 289). Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. See, e.g., La. Statute of 1865, reprinted in [I]id., at 280. Additionally, “[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.” Ante, at 24. As the Court makes crystal clear, if the Fourteenth Amendment “had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African-Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers.” Ante, at 32. In the years following the Civil War, a law banning firearm possession outright “would have been nondiscriminatory only in the formal sense,” for it would have “left firearms in the hands of the militia and local peace officers.” Ibid.
Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified. The publicly circulated Report of the Joint Committee on Reconstruction extensively detailed these abuses, see ante, at 23–24 (collecting examples), and statements by citizens indicate that they looked to the Committee to provide a federal solution to this problem, see, e.g., 39th Cong. Globe 337 (remarks of Rep. Sumner) (introducing “a memorial from the colored citizens of the State of South Carolina” asking for, inter alia, “constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press”).
One way in which the Federal Government responded was to issue military orders countermanding Southern arms legislation. See, e.g.,Jan. 17, 1866, order from Major General D. E. Sickles, reprinted in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 37 (1871) (“The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed”). The significance of these steps was not lost on those they were designed to protect. After one such order was issued, The Christian Recorder, published by the African Methodist Episcopal Church, published the following editorial:

“ ‘We have several times alluded to the fact that the Constitution of the United States, guaranties to every citizen the right to keep and bear arms. . . . All men, without the distinction of color, have the right to keep arms to defend their homes, families, or themselves.’ “We are glad to learn that [the] Commissioner for this State . . . has given freedmen to understand that they have as good a right to keep fire arms as any other citizens. The Constitution of the United States is the supreme law of the land, and we will be governed by that at present.” Right to Bear Arms, Christian Recorder (Phila.), Feb. 24, 1866, pp. 29–30.

The same month, The Loyal Georgian carried a letter to the editor asking “Have colored persons a right to own and carry fire arms?—A Colored Citizen.” The editors responded as follows:
“Almost every day, we are asked questions similar to the above. We answer certainly you have the same right to own and carry fire arms that other citizens have. You are not only free but citizens of the United States and, as such, entitled to the same privileges granted to other citizens by the Constitution of the United States.
.     .     .     .     . “. . . Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms and states that this right shall not be infringed. . . . All men, without distinction of color, have the right to keep arms to defend their homes, families or themselves.” Letter to the Editor, Loyal Georgian (Augusta), Feb. 3, 1866, p. 3.

These statements are consistent with the arguments of abolitionists during the antebellum era that slavery, and the slave States’ efforts to retain it, violated the constitutional rights of individuals—rights the abolitionists described as among the privileges and immunities of citizenship. See, e.g.,J. Tiffany, Treatise on the Unconstitutionality of American Slavery 56 (1849) (reprint 1969) (“pledg . . . to see that all the rights, privileges, and immunities, granted by the constitution of the United States, are extended to all”); id., at 99 (describing the “right to keep and bear arms” as one of those rights secured by “the constitution of the United States”). The problem abolitionists sought to remedy was that, under Dred Scott, blacks were not entitled to the privileges and immunities of citizens under the Federal Constitution and that, in many States, whatever inalienable rights state law recognized did not apply to blacks. See, e.g., [I]Cooper v. Savannah, 4 Ga. 68, 72 (1848) (deciding, just two years after Chief Justice Lumpkin’s opinion in Nunn recognizing the right to keep and bear arms, see supra, at 39, that “[f]ree persons of color have never been recognized here as citizens; they are not entitled to bear arms”). Section 1 guaranteed the rights of citizenship in the United States and in the several States without regard to race. But it was understood that liberty would be assured little protection if §1 left each State to decide which privileges or immunities of United States citizenship it would protect. As Frederick Douglass explained before §1’s adoption, “the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together.” In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79, 83–84 (J. Blassingame & J. McKivigan eds., 1991) (footnote omitted). “Notwithstanding the provision in the Constitution of the United States, that the right to keep and bear arms shall not be abridged,” Douglass explained that “the black man has never had the right either to keep or bear arms.” Id., at 84. Absent a constitutional amendment to enforce that right against the States, he insisted that “the work of the Abolitionists [wa]s not finished.” Ibid.
This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that “[n]o State shall … abridge” the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.[Footnote 19 (https://supreme.justia.com/cases/federal/us/561/742/#F19)] ...

[Swordsmyth]

...There was noreason to interpret the Privileges or Immunities Clause as putting the Court to the extreme choice of interpreting the “privileges and immunities” of federal citizenship to mean either all thoserights listed in Corfield, or almost no rights at all. 16 Wall., at 76. The record is scant that the public understood the Clause to make the Federal Government “a perpetual censor upon all legislation of the States” as the Slaughter-House majority feared. Id., at 78. For one thing, Corfield listed the “elective franchise” as one of the privileges and immunities of “citizens of the several states,” 6 F. Cas., at 552, yet Congress and the States still found it necessary to adopt the Fifteenth Amendment—which protects “[t]he right of citizens of the United States to vote”—two years after the Fourteenth Amendment’s passage. If the Privileges or Immunities Clause were understood to protect every conceivable civil right from state abridgment, the Fifteenth Amendment would have been redundant.

The better view, in light of the States and Federal Government’s shared history of recognizing certain inalienable rights in their citizens, is that the privileges and immunities of state and federal citizenship overlap. This is not to say that the privileges and immunities of state and federal citizenship are the same. At the time of the Fourteenth Amendment’s ratification, States performed many more functions than the Federal Government, and it is unlikely that, simply by referring to “privileges or immunities,” the Framers of §1 meant to transfer every right mentioned in Corfield to congressional oversight. As discussed, “privileges” and “immunities” were understood only as synonyms for “rights.” See supra, at 9–11. It was their attachment to a particular group that gave them content, and the text and history recounted here indicate that the rights of United States citizens were not perfectly identical to the rights of citizens “in the several States.” Justice Swayne, one of the dissenters in Slaughter-House, made the point clear:


“The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection.” 16 Wall., at 126 (emphasis added).

Because the privileges and immunities of American citizenship include rights enumerated in the Constitution, they overlap to at least some extent with the privileges and immunities traditionally recognized in citizens in the several States.
A separate question is whether the privileges and immunities of American citizenship include any rights besides those enumerated in the Constitution. The four dissenting Justices in Slaughter-House would have held that the Privileges or Immunities Clause protected the unenumerated right that the butchers in that case asserted. See id., at 83 (Field, J., dissenting); id., at 111 (Bradley, J., dissenting); id., at 124 (Swayne, J., dissenting). Because this case does not involve an unenumerated right, it is not necessary to resolve the question whether the Clause protects such rights, or whether the Court’s judgment in Slaughter-House was correct.

Still, it is argued that the mere possibility that the Privileges or Immunities Clause may enforce unenumerated rights against the States creates “ ‘special hazards’ ” that should prevent this Court from returning to the original meaning of the Clause.[Footnote 21 (https://supreme.justia.com/cases/federal/us/561/742/#F21)] Post, at 3 (Stevens, J., dissenting). Ironically, the same objection applies to the Court’s substantive due process jurisprudence, which illustrates the risks of granting judges broad discretion to recognize individual constitutional rights in the absence of textual or historical guideposts. But I see no reason to assume that such hazards apply to the Privileges or Immunities Clause. The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application. The Constitution contains many provisions that require an examination of more than just constitutional text to determine whether a particular act is within Congress’ power or is otherwise prohibited. See, e.g., Art. I, §8, cl. 18 (Necessary and Proper Clause); Amdt. 8 (Cruel and Unusual Punishments Clause). When the inquiry focuses on what the ratifying era understood the Privileges or Immunities Clause to mean, interpreting it should be no more “hazardous” than interpreting these other constitutional provisions by using the same approach. To be sure, interpreting the Privileges or Immunities Clause may produce hard questions. But they will have the advantage of being questions the Constitution asks us to answer. I believe those questions are more worthy of this Court’s attention—and far more likely to yield discernable answers—than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support.

Finding these impediments to returning to the original meaning overstated, I reject Slaughter-House insofar as it precludes any overlap between the privileges and immunities of state and federal citizenship...

...
In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank’s contrary holding that warrants its retention.


*  *  *
I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

[johnwk]

Justice Thomas, concurring in part and concurring in the judgment.
I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history.

Your latest trick [flooding] to avoid a dialogue is noted.

I am still patiently awaiting for you to provide the evidence from the debates of the 39th Congress that its intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government i.e, confirm the incorporation myth.

JWK

[Sonny Tufts]

You apparently never read Justice Thomas' opinion.

I've read it enough to know that he thinks the Due Process Clause has been wrongly used by the Court to embody substantive rights. On the other hand, he views the Privileges and Immunities Clause as embodying the Bill of Rights. The fact that you didn't address that issue indicates you didn't read all of his opinion or chose to ignore the parts that were too inconvenient for you.

[johnwk]

Swordsmyth,

I believe we (you and I) must separate two distinct suppositions in order to find agreement. The first supposition is a commonly stated myth that the Fourteenth Amendment was intended to make the first ten amendments to our federal Constitution [the federal “Bill of Rights”] enforceable upon the states by the federal government. The second supposition is, the Fourteenth Amendment was intended to protect certain fundamental rights.

As to the former, and considering you have not substantiated the commonly held belief with sufficient evidence, I believe your resistance to acknowledge the myth would be an admission that the Fourteenth Amendment was not intended to protect certain fundamental rights. But acknowledging the myth does not, in any way, suggest the Fourteenth amendment was not intended to protect certain fundamental rights! And this is why the two suppositions must be separated. To pretend the Fourteenth Amendment was intended to make the “Bill of Rights” enforceable upon the states has allowed the Court to invent, as painfully pointed out by Justice Thomas:

“that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g. , Lochner v. New York , 198 U. S. 45 (1905) ; Roe v. Wade , 410 U. S. 113 (1973) ; Lawrence , supra .

Justice Thomas goes on to write:

”All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 ( Stevens, J., dissenting); see post , at 6–8 ( Breyer, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.”


So, if you carefully study Justice Thomas’ written opinion, you will find there is no reason, while attempting to protect “fundamental rights”, to pretend the Fourteenth Amendment was intended to make the “Bill of Rights” enforceable upon the states by the federal government, which is a very dangerous idea if it were true!

The 14th Amendment extended the protection of all “privileges and immunities” as adopted under each particular state’s laws including their Constitutions , but also preserved federalism [each state’s reserved power to establish its own privileges and immunities] while putting an end to state legislation based upon race, color or previous condition of slavery. This was the narrow objective of both the first Civil Rights act and the 14th Amendment which is confirmed from a preponderance of evidence taken from the debates of the 39th Congress!

Justice Bradley pointed out the above mentioned objective to be accomplished in the Civil Rights Cases, 109 U.S. 3, 22 1883. The Civil Rights Act was intended to protect “those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue . . . to inherit, purchase …property as is enjoyed by white citizens …Congress did not assume … to adjust what may be called the social rights of men … but only to declare and vindicate these fundamental rights.”

Even in a dissenting opinion in IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872), Justice Field establishes the connection between the first Civil Rights Act and the 14th Amendment’s intent to incorporate the first Civil Rights Act’s objectives into the Constitution, not the federal bill of rights!


“What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right 'to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.' That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment“

Even Bingham, who is repeatedly mentioned by those who advance the federal “Bill of Rights” incorporation myth emphasized “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” See Cong. Globe page 1292 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=333)

Bingham goes on to say:

“I have always believed that the protection in time of peace within the States of all the rights of person and citizen was of the powers reserved to the States. And so I still believe.

Now, what does this bill propose? To reform the whole civil and criminal code of every State`s government by declaring that there shall be no discrimination between Citizens on account of race or color in civil rights or in the penalties prescribed by their laws.” See Cong. Globe page 1293


Finally, these comments made by Bingham during the 39th Congressional debates are also in harmony with what Representative Shellabarger stated, and which I documented above.

So, in closing, can we at the very least agree the Fourteenth Amendment was not intended to allow the federal government to enforce our “Bill of Rights” upon the states?

JWK

[Swordsmyth]

Your latest trick [flooding] to avoid a dialogue is noted.

I am still patiently awaiting for you to provide the evidence from the debates of the 39th Congress that its intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government i.e, confirm the incorporation myth.

JWK
If you had read what I posted you would see that Thomas provided plenty of evidence.

[Swordsmyth]

Swordsmyth,

I believe we (you and I) must separate two distinct suppositions in order to find agreement. The first supposition is a commonly stated myth that the Fourteenth Amendment was intended to make the first ten amendments to our federal Constitution [the federal “Bill of Rights”] enforceable upon the states by the federal government. The second supposition is, the Fourteenth Amendment was intended to protect certain fundamental rights.

As to the former, and considering you have not substantiated the commonly held belief with sufficient evidence, I believe your resistance to acknowledge the myth would be an admission that the Fourteenth Amendment was not intended to protect certain fundamental rights. But acknowledging the myth does not, in any way, suggest the Fourteenth amendment was not intended to protect certain fundamental rights! And this is why the two suppositions must be separated. To pretend the Fourteenth Amendment was intended to make the “Bill of Rights” enforceable upon the states has allowed the Court to invent, as painfully pointed out by Justice Thomas:

“that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g. , Lochner v. New York , 198 U. S. 45 (1905) ; Roe v. Wade , 410 U. S. 113 (1973) ; Lawrence , supra .

Justice Thomas goes on to write:

”All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 ( Stevens, J., dissenting); see post , at 6–8 ( Breyer, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.”


So, if you carefully study Justice Thomas’ written opinion, you will find there is no reason, while attempting to protect “fundamental rights”, to pretend the Fourteenth Amendment was intended to make the “Bill of Rights” enforceable upon the states by the federal government, which is a very dangerous idea if it were true!

The 14th Amendment extended the protection of all “privileges and immunities” as adopted under each particular state’s laws including their Constitutions , but also preserved federalism [each state’s reserved power to establish its own privileges and immunities] while putting an end to state legislation based upon race, color or previous condition of slavery. This was the narrow objective of both the first Civil Rights act and the 14th Amendment which is confirmed from a preponderance of evidence taken from the debates of the 39th Congress!

Justice Bradley pointed out the above mentioned objective to be accomplished in the Civil Rights Cases, 109 U.S. 3, 22 1883. The Civil Rights Act was intended to protect “those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue . . . to inherit, purchase …property as is enjoyed by white citizens …Congress did not assume … to adjust what may be called the social rights of men … but only to declare and vindicate these fundamental rights.”

Even in a dissenting opinion in IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872), Justice Field establishes the connection between the first Civil Rights Act and the 14th Amendment’s intent to incorporate the first Civil Rights Act’s objectives into the Constitution, not the federal bill of rights!


“What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right 'to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.' That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment“

Even Bingham, who is repeatedly mentioned by those who advance the federal “Bill of Rights” incorporation myth emphasized “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” See Cong. Globe page 1292 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=333)

Bingham goes on to say:

“I have always believed that the protection in time of peace within the States of all the rights of person and citizen was of the powers reserved to the States. And so I still believe.

Now, what does this bill propose? To reform the whole civil and criminal code of every State`s government by declaring that there shall be no discrimination between Citizens on account of race or color in civil rights or in the penalties prescribed by their laws.” See Cong. Globe page 1293


Finally, these comments made by Bingham during the 39th Congressional debates are also in harmony with what Representative Shellabarger stated, and which I documented above.

So, in closing, can we at the very least agree the Fourteenth Amendment was not intended to allow the federal government to enforce our “Bill of Rights” upon the states?

JWK
Read the parts of Thomas' opinion that I posted, (better yet follow the link and read the entire thing) he makes it quite clear that the "privileges and immunities" clause was intended to apply the BoR to the states and that it does so.

[johnwk]

Your latest trick [flooding] to avoid a dialogue is noted.

I am still patiently awaiting for you to provide the evidence from the debates of the 39th Congress that its intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government i.e, confirm the incorporation myth.

JWK




If you had read what I posted you would see that Thomas provided plenty of evidence.


If you explain to me in your own words what you gather from Thomas' opinion, and provide specific quotations as you move along, then, and only then can we move forward. Posting countless paragraphs or the entire written opinion and then making claims as you do is not a sincere way to dialogue.


Once again, let me assure you I am still patiently awaiting for you to provide the evidence from the debates of the 39th Congress that its intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government i.e, confirm the incorporation myth.


I have not found sufficient evidence in those debates, and I have actually read the entire debates, to confirm the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.


JWK

[Swordsmyth]

If you explain to me in your own words what you gather from Thomas' opinion, and provide specific quotations as you move along, then, and only then can we move forward. Posting countless paragraphs or the entire written opinion and then making claims as you do is not a sincere way to dialogue.


Once again, let me assure you I am still patiently awaiting for you to provide the evidence from the debates of the 39th Congress that its intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government i.e, confirm the incorporation myth.


I have not found sufficient evidence in those debates, and I have actually read the entire debates, to confirm the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.


JWK
I'm not going to spoon feed you.

You asked for evidence and I posted it, anyone who reads Thomas' opinion can see clearly that the intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government.
Thomas expressly states that to be the fact from beginning to end and provides copious evidence.
He puts it far better than I ever could.
Unless you address his opinion or at least the parts I posted then we have nothing more to discuss.

[Sonny Tufts]

The 14th Amendment extended the protection of all “privileges and immunities” as adopted under each particular state’s laws including their Constitutions

There was no need to extend this protection, because it was already mandated by Article IV, Section 2, Clause 1: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." But Section 1 of the 14th Amendment referred to the p&i of citizens of the United States, not to the p&i of state citizens. So one of the issues facing Congress in the debates over the 14th was identifying to what the p&i of U.S. citizens referred.


Justice Bradley pointed out the above mentioned objective to be accomplished in the Civil Rights Cases, 109 U.S. 3, 22 1883.

Yet in his dissent in The Slaughter-House Cases, Bradley made it clear that he felt the protections of the Bill of Rights were included in the p&i of U.S. citizens:


But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property without due process of law. These and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.

[johnwk]

If you explain to me in your own words what you gather from Thomas' opinion, and provide specific quotations as you move along, then, and only then can we move forward. Posting countless paragraphs or the entire written opinion and then making claims as you do is not a sincere way to dialogue.


Once again, let me assure you I am still patiently awaiting for you to provide the evidence from the debates of the 39th Congress that its intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government i.e, confirm the incorporation myth.


I have not found sufficient evidence in those debates, and I have actually read the entire debates, to confirm the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.


JWK




I'm not going to spoon feed you.

You asked for evidence and I posted it, anyone who reads Thomas' opinion can see clearly that the intent was to make the first ten Amendments to our federal Constitution enforceable upon the states by our federal government.
Thomas expressly states that to be the fact from beginning to end and provides copious evidence.
He puts it far better than I ever could.
Unless you address his opinion or at least the parts I posted then we have nothing more to discuss.

I have not found sufficient evidence, in what you have posted, to confirm the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.


Since you won't provide specific quotes, and merely tell me the evidence is in what you posted, I think its safe to assume you cannot substantiate the claim that the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government, and you are too proud or embarrassed to admit your error.


JWK

[Swordsmyth]

I have not found sufficient evidence, in what you have posted, to confirm the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.


Since you won't provide specific quotes, and merely tell me the evidence is in what you posted, I think its safe to assume you cannot substantiate the claim that the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government, and you are too proud or embarrassed to admit your error.


JWK
I think it is you who are too proud or embarrassed to admit your error.

If you are having trouble reading what I posted then I will try to cut it down to the most important parts:



Evidence from the political branches in the years leading to the Fourteenth Amendment’s adoption demonstrates broad public understanding that the privileges and immunities of United States citizenship included rights set forth in the Constitution, just as Webster and his allies had argued. In 1868, President Andrew Johnson issued a proclamation granting amnesty to former Confederates, guaranteeing “to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason . . . with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.” 15 Stat. 712.


Records from the 39th Congress further support this understanding.

a


After the Civil War, Congress established the Joint Committee on Reconstruction to investigate circumstances in the Southern States and to determine whether, and on what conditions, those States should be readmitted to the Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30 (1865) (hereinafter 39th Cong. Globe); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 57 (1986) (hereinafter Curtis). That Committee would ultimately recommend the adoption of the Fourteenth Amendment, justifying its recommendation by submitting a report to Congress that extensively catalogued the abuses of civil rights in the former slave States and argued that “adequate security for future peace and safety . . . can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic.” See Report of the Joint Committee on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess., p. 15 (1866); H. R. Rep. No. 30, 39th Cong., 1st Sess., p. XXI (1866).


As the Court notes, the Committee’s Report “was widely reprinted in the press and distributed by members of the 39th Congress to their constituents.” Ante, at 24; B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 264–265 (1914) (noting that 150,000 copies of the Report were printed and that it was widely distributed as a campaign document in the election of 1866). In addition, newspaper coverage suggests that the wider public was aware of the Committee’s work even before the Report was issued. For example, the Fort Wayne Daily Democrat (which appears to have been unsupportive of the Committee’s work) paraphrased a motion instructing the Committee to


“enquire into [the] expediency of amending the Constitution of the United States so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument.” The ****** Congress!, Fort Wayne Daily Democrat, Feb. 1, 1866, p. 4 (emphasis added).

b


Statements made by Members of Congress leading up to, and during, the debates on the Fourteenth Amendment point in the same direction. The record of these debates has been combed before. See Adamson v. California, 332 U. S. 46 (https://supreme.justia.com/cases/federal/us/332/46/index.html), 92–110 (1947) (Appendix to dissenting opinion of Black, J.) (concluding that the debates support the conclusion that §1 was understood to incorporate the Bill of Rights against the States); ante, at 14, n. 9, 26–27, n. 23, (opinion of the Court) (counting the debates among other evidence that §1 applies the Second Amendment against the States). Before considering that record here, it is important to clarify its relevance. When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean.


(1)

Three speeches stand out as particularly significant. Representative John Bingham, the principal draftsman of §1, delivered a speech on the floor of the House in February 1866 introducing his first draft of the provision. Bingham began by discussing Barron and its holding that the Bill of Rights did not apply to the States. He then argued that a constitutional amendment was necessary to provide “an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person.” 39th Cong. Globe 1089–1090 (1866). Bingham emphasized that §1 was designed “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It ‘hath that extent—no more.’ ” Id., at 1088.


Bingham’s speech was printed in pamphlet form and broadly distributed in 1866 under the title, “One Country, One Constitution, and One People,” and the subtitle, “In Support of the Proposed Amendment to Enforce the Bill of Rights.”[Footnote 10 (https://supreme.justia.com/cases/federal/us/561/742/#F10)] Newspapersalsoreported his proposal, with the New York Times providing particularly extensive coverage, including a full reproduction of Bingham’s first draft of §1 and his remarks that a constitutional amendment to “enforc[e]” the “immortal bill of rights” was “absolutely essential to American nationality.” N. Y. Times, Feb. 27, 1866, p. 8.

Bingham’s first draft of §1 was different from the version ultimately adopted. Of particular importance, the first draft grantedCongress the “power to make all laws … necessary and proper to secure” the “citizens of each State all privileges and immunities of citizens in the several States,” rather than restricting state power to “abridge” the privileges or immunities of citizens of the United States.[Footnote 11 (https://supreme.justia.com/cases/federal/us/561/742/#F11)] 39th Cong. Globe 1088.
That draft was met with objections, which the Timescovered extensively. A front-page article hailed the “Clear and Forcible Speech” by Representative Robert Hale against the draft, explaining—and endorsing—Hale’s view that Bingham’s proposal would “confer upon Congress all the rights and power of legislation now reserved to the States” and would “in effect utterly obliterate State rights and State authority over their own internal affairs.”[Footnote 12 (https://supreme.justia.com/cases/federal/us/561/742/#F12)] N. Y. Times, Feb. 28, 1866, p. 1.
Critically, Hale did not object to the draft insofar as it purported to protect constitutional liberties against state interference. Indeed, Hale stated that he believed (incorrectly in light of Barron) that individual rights enumerated in the Constitution were already enforceable against the States. See 39th Cong. Globe 1064 (“I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected”); see N. Y. Times, Feb. 28, 1866, at 1. Hale’s misperception was not uncommon among members of the Reconstruction generation. See infra, at 38–40. But that is secondary to the point that the Times’coverage of this debate over §1’s meaning suggests public awareness of its main contours—i.e., that §1 would, at a minimum, enforce constitutionally enumerated rights of United States citizens against the States.
Bingham’s draft was tabled for several months. In the interim, he delivered a second well-publicized speech, again arguing that a constitutional amendment was required to give Congress the power to enforce the Bill of Rights against the States. That speech was printed in pamphlet form, see Speech of Hon. John A. Bingham, of Ohio, on the Civil Rights Bill, Mar. 9, 1866 (Cong. Globe); see 39th Cong. Globe 1837 (remarks of Rep. Lawrence) (noting that the speech was “extensively published”), and the New York Times covered the speech on its front page. Thirty-Ninth Congress, N. Y. Times, Mar. 10, 1866, p. 1.
By the time the debates on the Fourteenth Amendment resumed, Bingham had amended his draft of §1 to include the text of the Privileges or Immunities Clause that was ultimately adopted. Senator Jacob Howard introduced the new draft on the floor of the Senate in the third speech relevant here. Howard explained that the Constitution recognized “a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, . . . some by the first eight amendments of the Constitution,” and that “there is no power given in the Constitution to enforce and to carry out any of these guarantees” against the States. 39th Cong. Globe 2765. Howard then stated that “the great object” of §1 was to “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” Id., at 2766. Section 1, he indicated, imposed “a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States.” Id., at 2765.
In describing these rights, Howard explained that they included “the privileges and immunities spoken of” in Article IV, §2. Id., at 2765. Although he did not catalogue the precise “nature” or “extent” of those rights, he thought “Corfield v. Coryell” provided a useful description. Howard then submitted that

“[t]o these privileges and immunities, whatever they may be— . . . should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, [and] . . . the right to keep and to bear arms.” Ibid. (emphasis added).


News of Howard’s speech was carried in major newspapers across the country, including the New York Herald, see N. Y. Herald, May 24, 1866, p. 1, which was the best-selling paper in the Nation at that time, see A. Amar, The Bill of Rights: Creation and Reconstruction 187 (1998) (hereinafter Amar).[Footnote 13 (https://supreme.justia.com/cases/federal/us/561/742/#F13)] The New York Times carried the speech as well, reprinting a lengthy excerpt of Howard’s remarks, including the statements quoted above. N. Y. Times, May 24, 1866, p. 1. The following day’s Timeseditorialized on Howard’s speech, predicting that “[t]o this, the first section of the amendment, the Union party throughout the country will yield a ready acquiescence, and the South could offer no justifiable resistance,” suggesting that Bingham’s narrower second draft had not been met with the same objections that Hale had raised against the first. N. Y. Times, May 25, 1866, p. 4.

As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.




When read against this backdrop, the civil rights legislation adopted by the 39th Congress in 1866 further supports this view. Between passing the Thirteenth Amendment—which outlawed slavery alone—and the Fourteenth Amendment, Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, . . . shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ch. 31, §1, 14 Stat. 27.

Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “depriving persons of African descent of privileges which are essential to freemen,” including “prohibit any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id., at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia, “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”).
Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning personal liberty” and “personal security.” Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid.

(3)

[I] There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition.





Interpretations of the Fourteenth Amendment in the period immediately following its ratification help to establish the public understanding of the text at the time of its adoption.


Some of these interpretations come from Members of Congress. During an 1871 debate on a bill to enforce the Fourteenth Amendment, Representative Henry Dawes listed the Constitution’s first eight Amendments, including “the right to keep and bear arms,” before explaining that after the Civil War, the country “gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens” who formerly were slaves. Cong. Globe, 42d Cong., 1st Sess., 475–476 (1871). “It is all these,” Dawes explained, “which are comprehended in the words ‘American citizen.’ ” Ibid.; see also id.,at 334 (remarks of Rep. Hoar) (stating that the Privileges or Immunities Clause referred to those rights “declared to belong to the citizen by the Constitution itself”). Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities Clause protected constitutionally enumerated individual rights. See 2 Cong. Rec. 384–385 (1874) (remarks of Rep. Mills) (opposing enforcement law, but acknowledging, in referring to the Bill of Rights, that “[t]hese first amendments and some provisions of the Constitution of like import embrace the ‘privileges and immunities’ of citizenship as set forth in article 4, section 2 of the Constitution and in the fourteenth amendment” (emphasis added)); see Curtis 166–170 (collecting examples).

Legislation passed in furtherance of the Fourteenth Amendment demonstrates even more clearly this understanding. For example, Congress enacted the Civil Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States,” and which is codified in the still-existing 42 U. S. C. §1983. That statute prohibits state officials from depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Rev. Stat. 1979, 42 U. S. C. §1983 (emphasis added). Although the Judiciary ignored this provision for decades after its enactment, this Court has come to interpret the statute, unremarkably in light of its text, as protecting constitutionally enumerated rights. Monroe v. Pape, 365 U. S. 167 (https://supreme.justia.com/cases/federal/us/365/167/index.html), 171 (1961).
A Federal Court of Appeals decision written by a future Justice of this Court adopted the same understanding of the Privileges or Immunities Clause. See, e.g., United States v. Hall, 26 F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) (“We think, therefore, that the . . . rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States”). In addition, two of the era’s major constitutional treatises reflected the understanding that §1 would protect constitutionally enumerated rights from state abridgment.[Footnote 14 (https://supreme.justia.com/cases/federal/us/561/742/#F14)] A third such treatise unambiguously indicates that the Privileges or Immunities Clause accomplished this task. G. Paschal, The Constitution of the United States 290 (1868) (explaining that the rights listed in §1 had “already been guarantied” by Article IV and the Bill of Rights, but that “[t]he new feature declared” by §1 was that these rights, “which had been construed to apply only to the national government, are thus imposed upon the States”).
Another example of public understanding comes from United States Attorney Daniel Corbin’s statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and declared:

“[T]he fourteenth amendment changes all that theory, and lays the same restriction upon the States that before lay upon the Congress of the United States—that, as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. The right to keep and bear arms is included in the fourteenth amendment, under ‘privileges and immunities.’ ” Proceedings in the Ku Klux Trials at Columbia, S. C., in the United States Circuit Court, November Term, 1871, p. 147 (1872).


*  *  *

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that §1 was understood to enforce the Second Amendment against the States. See ante, at 22–33. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.





This most natural textual reading is underscored by a well-publicized revision to the Fourteenth Amendment that the Reconstruction Congress rejected. After several Southern States refused to ratify the Amendment, President Johnson met with their Governors to draft a compromise. N. Y. Times, Feb. 5, 1867, p. 5. Their proposal eliminated Congress’ power to enforce the Amendment (granted in §5), and replaced the Privileges or Immunities Clause in §1 with the following:


“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States in which they reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” Draft reprinted in 1 Documentary History of Reconstruction 240 (W. Fleming ed. 1950) (hereinafter Fleming).


Significantly, this proposal removed the “[n]o State shall” directive and the verb “abridge” from §1, andalso changed the class of rights to be protected from those belonging to “citizens of the United States” to those of the “citizens in the several States.” This phrasing is materially indistinguishable from Article IV, §2, which generally was understood as an antidiscrimination provision alone. See supra, at 15–18. The proposal thus strongly indicates that at least the President of the United States and several southern Governors thought that the Privileges or Immunities Clause, which they unsuccessfully tried to revise, prohibited more than just state-sponsored discrimination.



Please read the entire opinion slowly and carefully at the link in my previous post.

The burden is on you to disprove Thomas' case.

[johnwk]

I think it is you who are too proud or embarrassed to admit your error.

If you are having trouble reading what I posted then I will try to cut it down to the most important parts:


Please read the entire opinion slowly and carefully at the link in my previous post.

The burden is on you to disprove Thomas' case.

I read the opinion several times when it was first issued.

You are the one alleging things about Thomas' opinion.


You are the one who is also alleging that the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.

Did you miss the following in Justice Thomas’ opinion?

“There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition. That said, the record of the debates—like most legislative history—is less than crystal clear. In particular, much ambiguity derives from the fact that at least several Members described §1 as protecting the privileges and immunities of citizens “in the several States,” harkening back to Article IV, §2. See supra”

Rather than the first ten amendments being made enforceable upon the states by the federal government, it appears from Thomas’ opinion, and the historical documentation contained therein, that it can reasonably be concluded that the objectives of the first civil rights act and the Freedmen’s Bureau Act were more likely intended to be enforceable upon the states by section one of the Fourteenth Amendment ___ acts which identify certain fundamental rights or “privileges and immunities”.


But keep in mind, Justice Thomas' opinion is narrowly focused on a particular fundamental right, and demonstrates the 14th Amendment's legislative intent, was to protect that fundamental right ___ the right to keep and bear arms.


It is disappoint for me to see you, of all posters, avoiding a dialogue and resorting to clever tricks to avoid a dialogue.

JWK

[Sonny Tufts]

It's doubtful that the historical record of the congressional debates will ever conclusively show whether there was a consensus among Congress to have Section 1 of the 14th Amendment incorporate some or all of the Bill of Rights. Obviously some members did (e.g., Bingham, who apparently thought that IV.2.1 already did and that Baron v. Baltimore had been wrongly decided), while others doubtlessly wanted it to have a very narrow scope. One could even ask what the members of the state legislatures that ratified the amendment had in mind, and it's reasonable to suspect there probably was as much difference of opinion among the state legislators as there was among the members of Congress.

Scholars are all over the place on this issue, and I would hope Johnwk has read the various discussions, including the famous catfight between Professors Fairman and Crosskey in the early 1950's. For those who are interested:

Fairman's original article: [I]Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949)

Crosskey's first salvo: Crosskey, Politics and the Constitution in the History of the United States (1953)

Fairman's rebuttal: Fairman, The Supreme Court and the Constitutional Limitations on State Governmental
Authority, 21 Univ. Chi. L. Rev. 40 (1953)

Crosskey's "I'm not but you are" response: Charles Fairman, "Legislative History and the Constitutional Limitations on State Governmental
Authority", 22 U. Chi. L. Rev. 1 (1954)
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2868&context=uclrev

Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992)
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=7423&context=ylj

Kaczorowski, Searching for the Intent of the Framers of Fourteenth Amendment (1972)
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1224&context=faculty_scholarship

Finkelman, Original Intent and the Fourteenth Amendment: Into the Black Hole of Constitutional Law, 89 Chicago-Kent L. Rev. 1019 (2014)
https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4048&context=cklawreview

Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385 (1992)
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7428&context=ylj

Hamburger, Privileges or Immunities, 105 Northwestern L. Rev. 61 (2011)
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1181&context=nulr

There are many others articles to be found on the internet. The point is that while historians will continue to argue about this matter, the portions of the Bill of Rights that have been incorporated by the 14th Amendment aren't going to be "unincorporated" anytime soon. The debate shouldn't be about historical intent, but about whether the principle of federalism is more important than the protection of individual rights spelled out in the first eight amendments.

[Swordsmyth]

I read the opinion several times when it was first issued.

You are the one alleging things about Thomas' opinion.


You are the one who is also alleging that the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.

Did you miss the following in Justice Thomas’ opinion?

“There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition. That said, the record of the debates—like most legislative history—is less than crystal clear. In particular, much ambiguity derives from the fact that at least several Members described §1 as protecting the privileges and immunities of citizens “in the several States,” harkening back to Article IV, §2. See supra”

Rather than the first ten amendments being made enforceable upon the states by the federal government, it appears from Thomas’ opinion, and the historical documentation contained therein, that it can reasonably be concluded that the objectives of the first civil rights act and the Freedmen’s Bureau Act were more likely intended to be enforceable upon the states by section one of the Fourteenth Amendment ___ acts which identify certain fundamental rights or “privileges and immunities”.


But keep in mind, Justice Thomas' opinion is narrowly focused on a particular fundamental right, and demonstrates the 14th Amendment's legislative intent, was to protect that fundamental right ___ the right to keep and bear arms.


It is disappoint for me to see you, of all posters, avoiding a dialogue and resorting to clever tricks to avoid a dialogue.

JWK
Thomas clearly states throughout his opinion that while some may have thought that the 14thA did not apply the BoR to the states most did and the text clearly did.

You asked for evidence that the original intent was to apply the BoR to the states and Thomas provides that evidence in copious quantities, instead of addressing the evidence you cherry pick the places where he brings up counter arguments in order to disprove them and ignore the evidence he uses to disprove them.

It is a disappointment to me to see you ignore Thomas' stated conclusion and all of the evidence he provides for it.

On top of everything else Thomas points out that many people at the time of the founders and at the time of the 14thA argued as I have that the BoR in recognizing basic GOD granted human rights automatically applied to the states because NO level of government has a right to violate fundamental GOD given rights.

Why you would argue that ANY level of government should be allowed to violate fundamental GOD given rights I have absolutely no idea.

[johnwk]

I read the opinion several times when it was first issued.

You are the one alleging things about Thomas' opinion.


You are the one who is also alleging that the 39th Congress debated and intentionally intended to make the first ten amendments to our federal constitution enforceable upon the states by the federal government.

Did you miss the following in Justice Thomas’ opinion?

“There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition. That said, the record of the debates—like most legislative history—is less than crystal clear. In particular, much ambiguity derives from the fact that at least several Members described §1 as protecting the privileges and immunities of citizens “in the several States,” harkening back to Article IV, §2. See supra”

Rather than the first ten amendments being made enforceable upon the states by the federal government, it appears from Thomas’ opinion, and the historical documentation contained therein, that it can reasonably be concluded that the objectives of the first civil rights act and the Freedmen’s Bureau Act were more likely intended to be enforceable upon the states by section one of the Fourteenth Amendment ___ acts which identify certain fundamental rights or “privileges and immunities”.


But keep in mind, Justice Thomas' opinion is narrowly focused on a particular fundamental right, and demonstrates the 14th Amendment's legislative intent, was to protect that fundamental right ___ the right to keep and bear arms.


It is disappoint for me to see you, of all posters, avoiding a dialogue and resorting to clever tricks to avoid a dialogue.

JWK



Thomas clearly states throughout his opinion that while some may have thought that the 14thA did not apply the BoR to the states most did and the text clearly did.

You asked for evidence that the original intent was to apply the BoR to the states and Thomas provides that evidence in copious quantities, instead of addressing the evidence you cherry pick the places where he brings up counter arguments in order to disprove them and ignore the evidence he uses to disprove them.

It is a disappointment to me to see you ignore Thomas' stated conclusion and all of the evidence he provides for it.

On top of everything else Thomas points out that many people at the time of the founders and at the time of the 14thA argued as I have that the BoR in recognizing basic GOD granted human rights automatically applied to the states because NO level of government has a right to violate fundamental GOD given rights.

Why you would argue that ANY level of government should be allowed to violate fundamental GOD given rights I have absolutely no idea.
So now, by innuendo, you suggest I argue that government should be allowed to violate fundamental GOD given rights. That is a new low for you.
Additionally, instead of addressing what I wrote to you and start a dialog, you continue with another unsubstantiated insult.

JWK

[Swordsmyth]

So now, by innuendo, you suggest I argue that government should be allowed to violate fundamental GOD given rights. That is a new low for you.
Additionally, instead of addressing what I wrote to you and start a dialog, you continue with another unsubstantiated insult.

JWK
Are you saying that you believe that the courts should require the states to honor the rights laid out in the BoR?
If you are then our disagreement is trivial and although I believe I am right it doesn't make any difference.
If you are not then you are saying that state governments should be allowed to violate fundamental GOD given rights and our disagreement is important.

Let's put aside the technicalities and just deal with the important issues, if a case comes before a federal court where a state is violating one of the rights in the BoR would you rule for the state or the citizen if you were a judge?

I would rule for the citizen.

[johnwk]

It's doubtful that the historical record of the congressional debates will ever conclusively show whether there was a consensus among Congress to have Section 1 of the 14th Amendment incorporate some or all of the Bill of Rights. Obviously some members did (e.g., Bingham, who apparently thought that IV.2.1 already did and that Baron v. Baltimore had been wrongly decided), while others doubtlessly wanted it to have a very narrow scope. One could even ask what the members of the state legislatures that ratified the amendment had in mind, and it's reasonable to suspect there probably was as much difference of opinion among the state legislators as there was among the members of Congress.



What is often left out of the discussion are the debates which ended in the first civil rights Act and the Freedmen’s Bureau Act, both thought to be unconstitutional by members of Congress, as I recall, and who thought the goals of these acts could be accomplished by passing the 14th Amendment.

The two above mentioned Acts shed considerable light on the evils many members of Congress were attempting to end.



JWK

[johnwk]

Are you saying that you believe that the courts should require the states to honor the rights laid out in the BoR?
.

In Post number 63 (http://www.ronpaulforums.com/showthread.php?530800-Our-Supreme-Court-the-rule-of-law-and-judicial-tyranny&p=6747734&viewfull=1#post6747734) I wrote:

”As to the former, and considering you have not substantiated the commonly held belief with sufficient evidence, I believe your resistance to acknowledge the myth would be an admission that the Fourteenth Amendment was not intended to protect certain fundamental rights. But acknowledging the myth does not, in any way, suggest the Fourteenth amendment was not intended to protect certain fundamental rights! And this is why the two suppositions must be separated. To pretend the Fourteenth Amendment was intended to make the “Bill of Rights” enforceable upon the states has allowed the Court to invent, as painfully pointed out by Justice Thomas: etc...…..

I have, long before this case was decided, came to the conclusion that the 14th amendment was intended to protect certain fundamental rights, but the notion it made the first ten amendments enforceable upon the states was a myth. There was simply not enough evidence to establish that intention.

But, when studying the first civil rights Act and the Freedmen’s Bureau Act, it became pretty clear in my mind there was overwhelming support to establish and protect certain fundamental rights as were discussed during the creation of these Acts. But the Acts were thought by some members of the 39th Congress to have been passed without constitutional authority. But after the ratification of the 14th Amendment, these fundamental rights, it seems pretty clear in my mind, became protected as "privileges and immunities" one of which was the right to keep and bear arms as noted by Justice Thomas.


In my mind, and as a general statement, the 14th Amendment did not "incorporate our federal "Bill of Rights" making them enforceable upon the states by the federal government. It incorporated and made the objectives of the first civil rights Act and the Freedmen’s Bureau Act enforceable by the federal government.

JWK


[b]"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

[Swordsmyth]

In Post number 63 (http://www.ronpaulforums.com/showthread.php?530800-Our-Supreme-Court-the-rule-of-law-and-judicial-tyranny&p=6747734&viewfull=1#post6747734) I wrote:

”As to the former, and considering you have not substantiated the commonly held belief with sufficient evidence, I believe your resistance to acknowledge the myth would be an admission that the Fourteenth Amendment was not intended to protect certain fundamental rights. But acknowledging the myth does not, in any way, suggest the Fourteenth amendment was not intended to protect certain fundamental rights! And this is why the two suppositions must be separated. To pretend the Fourteenth Amendment was intended to make the “Bill of Rights” enforceable upon the states has allowed the Court to invent, as painfully pointed out by Justice Thomas: etc...…..

I have, long before this case was decided, came to the conclusion that the 14th amendment was intended to protect certain fundamental rights, but the notion it made the first ten amendments enforceable upon the states was a myth. There was simply not enough evidence to establish that intention.

But, when studying the first civil rights Act and the Freedmen’s Bureau Act, it became pretty clear in my mind there was overwhelming support to establish and protect certain fundamental rights as were discussed during the creation of these Acts. But the Acts were thought by some members of the 39th Congress to have been passed without constitutional authority. But after the ratification of the 14th Amendment, these fundamental rights, it seems pretty clear in my mind, became protected as "privileges and immunities" one of which was the right to keep and bear arms as noted by Justice Thomas.


In my mind, and as a general statement, the 14th Amendment did not "incorporate our federal "Bill of Rights" making them enforceable upon the states by the federal government. It incorporated and made the objectives of the first civil rights Act and the Freedmen’s Bureau Act enforceable by the federal government.

JWK


[B]"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

Forget the 14thA and answer the question.

Should the courts enforce the rights that happen to be listed in the BoR against the states because they are GOD given basic human rights?
Yes or No?

If a case comes before a federal court where a state is violating one of the rights in the BoR would you rule for the state or the citizen if you were a judge?
Yes or No?

[johnwk]

Swordsmyth,

I can’t answer your hypothetical question. You give no specific circumstances. Additionally, I do not like to refer to the federal Bill of Rights as having delegated any power to the federal government to enforce them upon the states when the irrefutable fact is, they were intentionally and specifically adopted as further restrictions upon the new government our forefathers just created. To do so [refer to the federal Bill of Rights as having delegated power to the federal government to enforce them upon the states] is to give credibility to the "incorporation myth".


Having stated the above, I agree with Justice Thomas that there are fundamental rights to be protected by the Fourteenth Amendment. And from where I stand, identifying those rights requires a careful research into the debates which created the first civil rights Act and the Freedmen’s Bureau Act, the enforcement of which appears to be part of the objective of the Fourteenth Amendment’s “privileges and immunities” wording. Justice Thomas uses this "path" to arrive at his conclusion in the case.




"As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.


When read against this backdrop, the civil rights legislation adopted by the 39th Congress in 1866 further supports this view. Between passing the Thirteenth Amendment —which outlawed slavery alone—and the Fourteenth Amendment , Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, . . . shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ch. 31, §1, 14 Stat. 27.

Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “depriving persons of African descent of privileges which are essential to freemen,” including “prohibit any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id. , at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia , “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”).

Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning personal liberty” and “personal security.” Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid.


So, to answer your question the best way I can, I agree with Justice Thomas!


JWK


[I]
"If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"___ Justice Story

[Swordsmyth]

Swordsmyth,

I can’t answer your hypothetical question. You give no specific circumstances. Additionally, I do not like to refer to the federal Bill of Rights as having delegated any power to the federal government to enforce them upon the states when the irrefutable fact is, they were intentionally and specifically adopted as further restrictions upon the new government our forefathers just created. To do so [refer to the federal Bill of Rights as having delegated power to the federal government to enforce them upon the states] is to give credibility to the "incorporation myth".


Having stated the above, I agree with Justice Thomas that there are fundamental rights to be protected by the Fourteenth Amendment. And from where I stand, identifying those rights requires a careful research into the debates which created the first civil rights Act and the Freedmen’s Bureau Act, the enforcement of which appears to be part of the objective of the Fourteenth Amendment’s “privileges and immunities” wording. Justice Thomas uses this "path" to arrive at his conclusion in the case.




"As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.


When read against this backdrop, the civil rights legislation adopted by the 39th Congress in 1866 further supports this view. Between passing the Thirteenth Amendment —which outlawed slavery alone—and the Fourteenth Amendment , Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, . . . shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ch. 31, §1, 14 Stat. 27.

Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “depriving persons of African descent of privileges which are essential to freemen,” including “prohibit any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id. , at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia , “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”).

Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning personal liberty” and “personal security.” Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid.


So, to answer your question the best way I can, I agree with Justice Thomas!


JWK


[I]
"If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"___ Justice Story

All courts at all levels of government hav a duty to recognize and enforce the GOD given human rights of the citizens, the BoR need not be "incorporated" because we have those rights without it and all levels of government are bound to enforce them without it.

And you do NOT agree with Thomas:

Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.


More at: https://supreme.justia.com/cases/federal/us/561/742/

He spends the entire opinion proving that the 14thA incorporates the BoR.

You have latched on to an idea that allows the states to violate the GOD given fundamental rights of the citizens and you ignore all evidence to the contrary.

Stop defending tyranny at the state level, states that violate the fundamental GOD given rights of their citizens should be overruled, expelled or allowed to secede.

[Swordsmyth]

johnwk

In addition to Justice Thomas arguments in favor of incorporation there is the following:

A6:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The BoR is part of the Constitution and with the possible exception of the 1stA or maybe just the first part of it there is nothing stating that it applies only to the feds so the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[johnwk]

johnwk

In addition to Justice Thomas arguments in favor of incorporation there is the following:

A6:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The BoR is part of the Constitution and with the possible exception of the 1stA or maybe just the first part of it there is nothing stating that it applies only to the feds so the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

You are wrong. The first ten amendments to the Constitution were specifically adopted as prohibitions against the federal government. I provided the documentation.

JWK