Replies

"Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?"

By means of ordinary statute: no.

But the route of amendment is available and it is by that route that the balance of federal Powers are addressed (both to grant new abilities or even take away old ones).

To clearly highlight this fact I will turn to the writings of Justice Field in his dissent in Slaughterhouse.

Of course, you will properly say: "Wait, you're pointing to a dissent rather than the majority opinion!" but please bear with me.

I turn to Field's dissent because in it he was FORCED to make what can only be a statement against interest and that is what I'm highlighting.

By this I mean that even though he wanted to find for the butchers of New Orleans, and even though he was in fact laboring to misconstruct the 14th Amendment as well as confound the fundamental difference in Laws between "Privileges and Immunities" (as per A4:S2:C1) and "privileges or immunities" (as per the 14th Amendment) as to how these are founded: he had to make THIS admission:

"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 reenacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment."

This is actually the clearest statement made of the intent and function of the language in the "privileges or immunities" clause of the 14th Amendment.

This clause exist to grant to Congress delegated Power to respect in statutory law civil rights that the several States could not disparage and this is what the majority upheld in Justice Miller's opinion for the majority.

The reason this was a statement against interest is found in the preceding text where Justice Field writes:

"The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

"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.'"

This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded.

The former, "Privileges or Immunities", are sourced in our rightful common laws and are the very same unalienable rights mentioned by Justice Washington in Corfield v Coryell which both the majority opinion and dissents mention explicitly in Slaughterhouse. Under the federal Constitution the several States are responsible to respect these "P&I" under A4:S2:C1 while the federal are responsible to respect them under the 9th Amendment (for there is indeed no other body of rights — common law or statutory — retained by the people at the time the amendment was authored).

The latter, "privileges or immunities", are only sourced in statutory laws passed by a legislature — in this case Congress. As such they can be extended or even later revoked.

It is important to realize exactly what was happening in the process that led up to the language of the 14th including a delegation of Power to Congress just as Justice Field wrote.

Several of the several States were laboring to make the lot of freedmen as much a Hell on Earth as they could get away with.

In the process of doing so they were factually disparaging A4:S2:C1 "Privileges and Immunities" that they had no right or lawful power to disparage — being forbidden to by the Constitution.

The only legal recourse at the time was to be found in the courts. That meant that freedmen would have to wait on the whims of Case law and jurisprudence to see justice done.

Meanwhile, the Congress was unwilling to wait on the courts and so they passed the very first federal Civil Rights Act which did not enumerate any new rights but merely reiterated common law "P&I" that free men should possess anyway — every right which Field highlighted in the above quote is also a "P&I".

The problem was that this was not a remedy legally available to Congress. So rather than wait for the courts they acted to properly delegate a Power to give them the very power to make their civil rights act legal.

It was, if you will, ANOTHER enforcement method to hold the State's feet to the fire to respect the fundamental and unalienable "P&I" they should have been respecting all along.

This is why we find Justice Field echoing the words of those who debated the clause and the 14th Amendment. The CRA 1866 literally DOES NOT respect any new "Privileges and Immunities" but it does create a separate and similar set of "privileges or immunities" established in statutory laws and not under common law.

This is how Justice Field set about to confuse the distinction between "Privileges and Immunities" and "privileges or immunities". In the process he clearly STATES that if all the amendment accomplished was just what its authors meant it to accomplish (and remember that he is forced to admit that this was the actual intent) then it: "was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage."

I'll not be so cynical to opine here that the whole reason that Justice Field took this course of action was because this was a new Power for the Congress that offered nothing similar to the Court (as indeed Field's dissent would do): that sort of charge of misbehavior I'll leave to lay at latter day courts whose willful lawlessness is often astonishing.

Rather, I'll simply lay at Field's feet the charge that he had ceased to be a jurist but had instead unethically become an advocate for the butchers of New Orleans. It is obvious that the lawyers representing these butchers had misconstrued the 14th Amendment when they essentially demanded that it guaranteed what we would in these days call a "right to work". No such statutory "poi" was enumerated by Congress at the time (nor has one been so enumerated at this time).

There is, without a doubt, a reasonable claim for the right of Free Labor (our "right to work") under our rightful common laws. Given that both the majority opinion and dissents made reference to our A4:S2:C1 "P&I" there can be little doubt that had the butchers' lawyers simply argued on the basis of A4:S2:C1 they would have won their case — possibly in a unanimous decision.

But the buthers' lawyers were inept twits so Justice Field, rather than base his judgment on the arguments actually offered, attempted to argue their case for them. If in the process he had to misconstruct the article he was sworn to uphold it would seem to have not been such a big deal (to him).

I would also point out that the modern courts essentially take their cue from Justice Field. Acting as if privileges or immunities established by judicial fiat are in fact somehow the unalienable rights of the people even though there may be nothing resembling such 'poi' under our rightful common laws (as is the case, for example, with abortion). Conversely, they will also occasionally disparage a genuine "P&I" in favor of one of their inventions of judicial fiat.

I hope I've been able to adequately describe the situation surrounding the 14th Amendment's "privileges or immunities" clause and also provide adequate cause to trust my interpretation.

What this means for your question I hope should be plain too (I really DO try to work on matters of presentation so I'm not indecipherable, but as you wisely pointed out sometimes I'm in need of clarification); however, just to be complete....

Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?

If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?

This tyranny of the States was not some mere emergency derived from external powers threatening our nation but it was like a 5th column within the nation striking a blow at our fundamental Laws and at our unalienable rights. So if this situation is not worthy of 'a little lawlessness by comparison' (Congress enacting the CRA 1866) then nothing is or truly ever will be.

Or such are my thoughts on the matter.

Again, I (unlike the current President and ... just about every Democrat in Congress) always welcome criticism.

Thanks Rurudyne. 10th Amendment topic.

I have read both of your detailed and thoughtful responses to my question, and I must say that I will need to spend some time and attention digesting these treatises.

I greatly fear that a majority of our “public servants” have decided for themselves to replace “servant” with “commander” or “custodian” or more plainly, “prison guard”.

Lindsey Graham provided the single Republican vote needed to pass the Sotamayor nomination out of committee. That vote was a LOT MORE of a betrayal that just an inexplicable bad decision. I read recently that without at least one minority vote, the nomination would have to go without a recommendation for approval. That minority vote was originally going to come from the usual turncoat, Senator Specter, but when he changes sides they needed a substitute and Senator Grahamnesty stepped right up.

Lamar Alexander voted FOR the “porkulous” bill - one of three Repubs. He claimed that it provided essential benefits for Tennessee that made his vote necessary. I told him that NOTHING justified trying to buy my vote with my own money.

Not long after, he voted FOR CLOTURE on the nomination of Harold Koh to State Dept legal counsel, and then cast a MEANINGLESS vote against the actual nomination, which passed easily. But since that vote, his office flunkies are insisting that he voted AGAINST the nomination. When I verified my original accusation, I called back to call them - and the Senator - the liars they certainly are.

I intend to visit every public appearance of every congresscritter I can afford to during this recess - with a broom and a “poop scooper” with signs attached to let them know what they face if they continue their arrogance. I hope others will do the same.

Again, I (unlike the current President and ... just about every Democrat in Congress) always welcome criticism.

Ok, the begged question was “Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?” but I don’t see that the “people and/or the States … retained right and/or reserved power to require” part is clearly addressed. It seems to be just sort of assumed away with no more than mention of non specific objections and doubts. What did I overlook?

-------------------------------------------------

Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?

I can’t think of one.

That matter was addressed in the Declaration of Independence with the words: “…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”

So, there is a “Right of the People to alter or to abolish” stated in the Declaration of Independence, which right would, I think, be one of the “…others retained by the people” as stated in the Ninth Amendment.

And according to the First Amendment, the people have a right “…to petition the Government for a redress of grievances”.

Accordingly, they could submit to Congress some form of petition for a redress of grievances said grievances being violation of unalienable rights by particular State governments and said redress, in accordance with the right of the people “to alter” being “requiring the several States to respect unalienable rights that they should have honored anyway.” (Stealing some of that from your post)

In Congress, the House of Representatives (on behalf of the people) and the Senate (on behalf of the States at one time but not now) would determine the merits of the petition and the disposition regarding redress.

That still leaves open the question of “a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it”.

If the right exists, the disposition of the redress by Congress acting on behalf of the people and the States, could be to take action to alter State government by “requiring the several States to respect unalienable rights that they should have honored anyway.” If the right does not exist, Congress could take no such action legitimately and the disposition of the redress would have to be something else.

If the right does not exist and Congress could not act on the noted requirement, the people submitting the petition for redress of grievances would either have to submit to a government “destructive of these ends” or try to exercise their right to alter or abolish it. That could be defined as insurrection which might put Congress in the interesting position of providing for calling out the Militia to suppress an insurrection the aim of which was to alter or abolish a government that had become destructive of the ends it was supposed to secure and which Congress, as a branch of a government which is also established to secure those ends, is supposed to help secure.

-------------------------------------------------------------------

If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?

The question implies Congress acting on its own initiative in regard to the pressing need. What might be sufficient is a requirement levied by the people if they have a retained right and/or reserved power to levy such a requirement.

-------------------------------------------------------------------

This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded.

The former, "Privileges or Immunities",…

I assume you meant "Privileges and Immunities".