Originalism, Incorporated Rights & 1868
michael curtis
curtism at bellsouth.net
Thu Jun 14 15:29:55 PDT 2007
I agree. Though note that Bradley (and Swayne who joins him I think)
endorse treating the guarantees of the Bill of Rights as limiting the states
in their Slaughter-house dissent. Also note that Bradley endorsed
application of the bill of rights to the states in his letter to Judge
(later Justice Woods) who basically used Bradley's words in US v. Hall.
Justice Field later also endorsed application of the Bill of Rights to the
states. Justice Moody in Twining says that the matter is closed so their is
no need to address the "weighty" arguments for a contrary result. So its is
a somewhat mixed picture--but I think S-H was treated as settling it and
people fell into line. It is a bit hard to see why the SH majority would
emphasize privileges such as the right to the newly free slaves and others
to be protected on the high seas and once they got to Paris instead of the
much more impressive litany of the rights in the Bill of Rights--none of
which were clearly mentioned and the right to assemble and petition was
later restricted (in Cruickshank) to petitioning the national govt. Why
come up with such a silly list?
Michael Curtis
----- Original Message -----
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
To: "Zietlow, Rebecca E." <RZietlo at UTNet.UToledo.Edu>; "michael curtis"
<curtism at bellsouth.net>; <CONLAWPROF at lists.ucla.edu>
Sent: Thursday, June 14, 2007 10:08 AM
Subject: RE: Originalism, Incorporated Rights & 1868
It is true that incorporation was not rejected in terms in Slaughterhouse,
although it takes an approach to Privileges and Immunities that is quite
inconsistent with incorporation. Incorporation was rejected in terms,
however, in Cruikshank. Unanimously.
Larry Rosenthal
Chapman University School of Law
-----------------------
________________________________
From: Zietlow, Rebecca E. [mailto:RZietlo at UTNet.UToledo.Edu]
Sent: Thu 6/14/2007 6:38 AM
To: Rosenthal, Lawrence; michael curtis; CONLAWPROF at lists.ucla.edu
Subject: RE: Originalism, Incorporated Rights & 1868
It's not at all clear that the Court rejected the concept of
incorporation in Slaughterhouse. The "right" claimed by plaintiffs and
rejected by the Court, the right to practice one's occupation, is not in
the Bill of Rights. Justice Miller said the rights of federal
citizenship includes the rights "which owe their existence to the
Federal government, its national character, its Constitution, or its
laws." This does not exclude the Bill of Rights, since they are in the
Constitution. It's only in subsequent decisions that the Court cites
Slaughterhouse to support the anti-incorporation view.
Bryan Wildenthal has written some great stuff about this, including a
two part article in Ohio State Law Journal.
Rebecca E. Zietlow
Charles W. Fornoff Professor of Law and Values
University of Toledo College of Law
(419) 530-2872
http://www.nyupress.org/books/Enforcing_Equality-products_id-4830.html
http://ssrn.com/author=291341
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal,
Lawrence
Sent: Wednesday, June 13, 2007 4:15 PM
To: michael curtis; CONLAWPROF at lists.ucla.edu
Subject: RE: Originalism, Incorporated Rights & 1868
Interestingly, the account of "rights, privileges, and immunities" in
Dred Scott is entirely consistent with the account offered in
Slaughterhouse. Dred Scott uses the phrase to refer to the rights,
privileges and immunties that inhere in relations between citizens and
the federal government under the antebellum Constitution.
Slaughterhouse then says that the Fourteenth Amendment prohibits states
only from preventing citizens exercising their rights, privileges and
immunities with respect to the federal government -- the same antebellum
package of rights, privileges and immunities to which Dred Scott
referred.
My point is certainly not that Professor Curtis's botton line on
incorporation is wrong. Indeed, I basically am persuaded by his bottom
line. But I do not think you can get there merely by consulting
original public meaning or any other form of originalism. What was
clear to Bingham and Howard was entirely unclear to Cooley and the
entire Supreme Court in Cruikshank. Incorporation of some sort is
supportable only as a judicial elaboration on an ambiguous text.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of michael curtis
Sent: Wed 6/13/2007 11:01 AM
To: Royce Not Working; CONLAWPROF at lists.ucla.edu
Subject: Re: Originalism, Incorporated Rights & 1868
Dred Scott refers to all constitutional rights collectively as "rights,
privileges, and immunities" and at one point says one of which rights is
the privilege of suing in federal court. It held blacks no part of the
people and therefore deprived of each and every one of these rights,
privileges, and immunities. It also referred to bill of rights
liberties as provisions for the security of persons and of property.
Note the 1866 Act made blacks citizens and gave them full and equal
benefit of all laws for the security of person and property as enjoyed
by white citizens. The 14th Amendment makes blacks citizens and
provides no state shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the US. Describing bill of
rights liberties with the words privileges or immunities appeared in
court cases, in congressional discussion, in public discussions, etc.
Article IV says the citizens of each state shall be entitled to all
privileges and!
immunities of citizens in the several states. This is interpreted to
mean they get limited equality with the rights a state provides to its
own citizens--they get all [the state's] privileges or immunities. The
14th refers to privileges and immunities of citizens of the US. If
privilege equals rights then no state could abridge the rights of
citizens of the US--one natural place to look for those rights would be
in the Constitution--esp. but not exclusively in the Bill of Rights.
Dred Scott held blacks could be state citizens and entitled to state
privileges and immunities but not to any of the rights, privileges, and
immunities of citizens of the US. US Constitutional rights (rights,
privileges, and immunities) were a special set of rights that belonged
only to citizens of the US.
Michael Curtis
----- Original Message -----
From: Royce Not Working <mailto:roycemit at flash.net>
To: CONLAWPROF at lists.ucla.edu
Sent: Wednesday, June 13, 2007 2:32 PM
Subject: Re: Originalism, Incorporated Rights & 1868
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 <mailto:rosentha at chapman.edu>
To: Royce <mailto:roycemit at flash.net>
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). Si!
nc!
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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