Constitutional Law

14th Amendment incorporation and contradiction

A comment to my posting on the Chicago brief opposing cert. brought to mind something that had popped in my head in the past: a party arguing against 14th Amendment incorporation of a right can hardly avoid contradiction between its privileges or immunities and its due process positions.

Privileges or immunities: under the Slaughterhouse and Cruikshank rulings, a right is only a priv. or immun. of US citizenship it the right was CREATED by the Constitution. A pre-existing or natural rights merely GUARANTEED by the US Constitution is not a priv. or immunity of US citizenship. Examples: right to travel interstate, right to petition Congress and only Congress, because it didn't exist until created. [I disagree strongly, but those are the rulings]. So an opponent of incorporation must here argue that the right in question stems from long tradition, is a natural right, is inherent in free government (Cruikshank uses a slight modification of those words), etc.

Due Process incorporation: here the Court has ruled that certain rights (actually, almost all the ones enumerated in the Bill of Rights, and some that are not) are sufficiently important that deprivation of them is deprivation of "due process of law" (no matter how much process the person is given). The tests here include the antiquity of the right, its importance, etc., etc. So here the opponent of incorporation must argue that the right in question is of minor value, is of recent origin, certainly could not be seen as a natural right, and is nowhere near inherent in every free government.

Full post as published by Of Arms and the Law on August 07, 2009 (boomark / email).