Originalism, Incorporated Rights & 1868

[Royce Not Working]

Thank you for your response, Professor Rosenthal, but I think perhaps my statement regarding 42 USC 1981 was given more weight than the context demanded.

42 USC 1981 has undergone various revisions over the years but that isn't my point. It was derived originally from the Ku Klux Klan Act, or the Civil Rights Act of 1871 as it is properly known (or so my feeble memory claims). That would seem to be after the enactment of the Fourteenth Amendment by my reckoning and derived from the enforcement powers granted by said amendment.

But, that really wasn't my point. What I was getting at was a potential reason for the usage of the terms "privileges and immunities" which I thought was the point of your short dialog. The point I wondered about was as to whether or not those terms were used because of the idea that no non-Posterity member actually had any federal rights protected by the Constitution of 1787. This rationale is what we see in cases like Dred Scot and other pre-war federal cases.

If so, then it would be a logical extension that the lack of coverage for the freedman, and consequently others such as is found in Yick Wo, related to "rights" would then have to come from some statutory device--there being no constitutional device for giving away what belonged to the People and their Posterity, not to Congress. These then would be "privileges" since they would not be technically rights which the founders believed were unalienable to all men, derived from God, and protected to the Posterity. 

They would be "rights" in that all men have unalienable rights, but within the context of the Constitution, which purpose was explained by the Preamble, those rights would have had to be statutorilly created, and hence privileges and immunities.

It is not a major point for me. I'm, like you, attempting to understand the purpose behind the wording within the context of the bigger picture and subsequent rulings that held that the Fourteenth Amendment granted no new rights to the white man. 

Respectfully,

Royce Mitchell
NWCU-Law
  ----- Original Message ----- 
  From: Rosenthal, Lawrence 
  To: Royce 
  Sent: Wednesday, June 13, 2007 11:30 AM
  Subject: RE: Originalism, Incorporated Rights & 1868


  Professor Mitchell:
   
  If I understand your question, I think I disagree with the premise.  Section 1981 was enacted prior to the ratification of the Fourteenth Amendment and was based on congressional power under the Thirteenth Amendment.  And if the purpose of the Fourteenth Amendment's Privileges and Immunities Clause were to grant Congress authority to enact civil rights legislation, then the privileges and immunities of citizenship could be defined by federal statute and not with reference to the Bill of Rights.  
   
  Larry Rosenthal
  Chapman University School of Law

  ________________________________

  From: conlawprof-bounces at lists.ucla.edu on behalf of Royce
  Sent: Wed 6/13/2007 8:54 AM
  To: conlawprof at lists.ucla.edu
  Subject: Re: Originalism, Incorporated Rights & 1868


  I enjoyed reading your analysis of this, Prof. Rosenthal, but I am wondering if perhaps the reason the wording chosen was because there was no authority granted to Congress in the specific powers found in the Constitution of 1787 to grant the rights safeguarded to the Posterity, as indicated by the Preamble, to those not of the Posterity, as was held in Dred Scot. Therefore, the rights imposed upon the states would be privileges and immunities of the "persons" who were the intended focus of the War Amendments, not rights as we have come to understand them, and that such might explain the reason for the wording. 
   
  In other words, the "granting" of "equal" rights would not be the same thing as granting of the "same" rights enjoyed by the Posterity, said rights being "unalienable," which itself would make sense given the attitude toward the freedman exhibited in both the north and south circa 1868. Therefore, these would not be technically rights but privileges granted by statute, such as the one infra.
   
  This would also explain the need for 42 USC 1981 which still exists on the books today.
   
  Respectfully,
   
  Royce Mitchell
  NWCU-Law
   
  "This will be the best security for maintaining our liberties. A nation of well-informed men, who have been taught to know and prize the rights which God has given them, cannot be enslaved." - Benjamin Franklin
   
   

  ----- Original Message ----- 
  From: Rosenthal, Lawrence <mailto:rosentha at chapman.edu>  
  To: Malla Pollack <mailto:mpollack at ajsl.us>  ; John Fee <mailto:Feej at lawgate.byu.edu>  ; conlawprof at lists.ucla.edu 
  Sent: Wednesday, June 13, 2007 10:31 AM
  Subject: RE: Originalism, Incorporated Rights & 1868

  The text used in the Fourteenth Amendment, of course, was "privileges and immunities" and "due process," and neither of those terms had ever been authoritatively been construed to include the Bill of Rights -- indeed we know that the original Privileges and Immunities Clause did NOT include the Bill of Rights, at least under Corfield v. Coryell and the other leading judicial explications of the concept as of 1868.  Surely the use of this phrase was a strange way to incorporate the Bill of Rights. To be sure, Bingham and a handful of others thought that the Fourteenth Amendment included the Bill of Rights, and made that point during the debates, although the actual text that they selected had no generally understood relationship to incorporation.  Indeed, even after ratification of the Fourteenth Amendment, incorporation somehow escaped the notice of the leading treatise writer of the day (Cooley) and every member of the United States Supreme Court in Cruikshank (1875).  Sinc!
  e almost no one outside of Bingham's little circle seems to have noticed that the Bill of Rights suddenly became applicable to the States in 1868, incorporation seems quite difficult to support on any version of "original public meaning."  Some form of selective incorporation probably is defensible as a way of giving content to the Privileges and Immunities Clause (and maybe even the Due Process Clause, which was understood to offer some sort of vaguely defined substantive protection as of 1868), but it is serious fiction to pretend that incorporation or anything like it can be achieved merely by reference to the original public meaning of the Fourteenth Amendment.  Incorporation, whether total or partial, and linked to 1791 or 1868, requires common law elaboration of an ambiguous text.

  Larry Rosenthal
  Chapman University School of Law
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