Constitutional Law

Another take on the Balkanization 14th Amendment article

Clayton Cramer has agrees as to P or I incorporation of enumerated rights, but not nonenumerated ones.

Having spent a fair amount of time studying the legislative history, there are two complicating factors.

(1) When the framers of the 14th referred to the Bill of Rights, they sometimes referred to the first eight, and sometimes to the first ten, amendments.

(2) They also referred to the privileges or immunities clause as meant to include three classes of rights.

(A) Those listed as "privileges and immunities" in case law interpreting that term as used in Article IV, §2 of the original Constitution. There was a circuit opinion by Bushrod Washington that talked of these in very broad and mostly economic terms -- the right to practice a lawful profession, to own and dispose of property, etc.. This was relevant because some Black Codes forbade blacks to engage in certain businesses or to own real estate inside city limits. These were, in the Bill of Right sense, nonenumerated rights.

(B) Rights protected against Federal interference by the original Constitution, e.g., the right to petition for habeas corpus, the prohibition against ex post facto laws.

(C) Liberties protected against Federal interference by the US Bill of Rights. Some Framers insisted that these were meant to bind the States under Article IV, §2, but that provision had no allowance for Congressional enforcement, so it remained a nonbinding moral duty only. (The view in modern case law is that Article IV, §2 only prohibits discriminatory State action against citizens of other States, in relation to "privileges and immunities" of State citizens, but in 1866 there was a very respectable body of opinion otherwise. This had been a staple of antislavery thought before the Civil War, arguing that the Article IV duty to turn over escaped slaves was unenforceable by Congress, and that the fugitive slave acts were unconstitutional).

Update: a respectable argument can be made (and was in fact made by the early commentator William Rawles) that the 2A applies to the States. But the Supreme Court went the other way in Barron v. City of Baltimore, and in many following cases. During the Congressional debates on the 14th, an opponent argued that it wasn't needed because the Bill of Rights already applied to the States (he was a former NY judge, BTW). Sponsor John Bingham had to hunt up a copy of Barron and read it into the record.

Full post as published by Of Arms and the Law on December 28, 2008 (boomark / email).