Posted on 08/04/2014 11:32:56 AM PDT by Ken H
He seems to be defending Washington’s opinion in Corfield v. Coryell, an opinion that Judge Robert Bork called “a singularly confused opinion in 1823 by a single Justice of the Supreme Court setting out his ideas of what the original privileges and immunities clause of article IV of the Constitution meant” (Bork, The Tempting of America, pg 181).
Bork summarizing the issue of the fourteenth amendment, says that according to Justice Miller in the Slaughterhouse Cases, the “fourteenth amendment thus has little reach beyond the protection of those who had been slaves” (id, pg37). “In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks” (id., pg38).
I agree with the understanding of the Tenth Amendment, that there are all kinds of rights and liberties not mentioned in the Constitution because they don’t have to be mentioned. The so-called “Bill of Rights” mentioned some of them because the anti-federalists threatened to block ratification of the Constitution without listing some of them. But it is simply a sampling of pre-existing rights among many that are not mentioned. Again, the persuasive authority of the Constitution is the assertion in the Declaration of Independence that individuals are born “with certain unalienable rights, that among them are Life, Liberty, and the pursuit of Happiness.” The default of right is with the states and the people, not with the feds.
So, I deny the feds have no true constitutional power to enforce the first ten amendments which includes no federal power to regulate individuals’ ownership of firearms unless the ownership threatens some other Constitutional provision (ex. violating the exclusive right of the feds to raise an army and declare war by raising a personal or state army and declaring war).
This should encourage you. The greatest threat to gun ownership isn't the states by a long shot. It's the feds. And as with so many other things, the feds are meddling in things they have no right nor power to meddle in.
What Robert Bork thinks of Corfield does not matter in interpreting the original meaning of the 14th Amendment. What matters is what the framers of the 14th thought of Corfield. As Thomas points out in Saenz v Roe =>
Justice Washington’s opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion.
Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
…these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people…(Slaughterhouse Cases, 83 U.S. 67, 69).
If, like CA something like this is an Infraction and not a Crime, then merely being stopped and arrested/detained for it in the first place is enough to make the subsequent search fruit of the poison tree...
The 14th Amendment says that states may not violate the privileges or immunities of citizens, among which is the RKBA.
Privledges and immunities can be revoked. Unalienable rights are always...
Not when understood in their original meaning =>
The colonists’ repeated assertions that they maintained the rights, privileges and immunities of persons “born within the realm of England” and “natural born” persons suggests that, at the time of the founding, the terms “privileges” and “immunities” (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens, and more broadly, by all persons.
Justice Thomas, Saenz v Roe
What is the basis for saying that the framers of the 14th Amendment intended it to apply only to former slaves? I saw nothing in the Senate debates nor in the text of the Amendment itself to draw that conclusion.
J. Thomas is correct. Corfield reflected the understanding of privileges and immunities in common to all citizens since Colonial times. Douglass v Stephens, 1821, is another case that demonstrates this point =>
The right of enjoying and defending life, without the privilege of protecting it by all the means which the law as well as nature, in extreme cases, furnishes, would be illusory to the last degree. Therefore, this privilege belongs to us, and, by the Constitution of the United States, to every other citizen of the United States in common with us.
http://press-pubs.uchicago.edu/founders/documents/a4_2_1s17.html
Such test cases are always chosen to probe just how far the envelope of propriety can be pushed by those wishing to implement greater lawlessness and less accountability for one's choices.
- The historical context of the post-civil war reconstruction period to instate the former slaves as full U.S. citizens with full rights as others.
- The legal context of this being the middle of the three reconstruction amendments.
- The lack of clear text that proves specific provision of unparalleled and massive expansion of federal power which would have been completely out of place from the purpose of these post-civil war reconstruction amendments and would have produced much evidence, of which there is none, of debate and discussion about such a radical departure from American governance, as noted below.
- The weight of the probative value of accuracy and precedent in a SCOTUS case decided four years after the amendment was ratified versus 131 years later.
- The intent of the ratifiers, not the drafters. Thomas’ argument rests on the drafters’ intent to apply Corfield v. Coryell rights. But as noted below, there is scant evidence this was intended by the ratifiers and it is the intent of the ratifiers, not the drafters, that counts.
Judge Robert Bork, the generally recognized leading scholar on Constitutional Law of his time and most notably focused on original understanding and intent in construction, said this about the fourteenth amendment:
"The fourteenth amendment was adopted shortly after the Civil War, and all commentators are agreed that its primary purpose was the protection of the recently freed slaves. As we have seen, of the amendment's three clauses, two have been pressed into service of judicial imperialism - the due process and equal protection clauses - while the third, the privileges and immunities clause, has remained a cadaver that it was left by the Slaughter-House Cases. It is this corpse that [former dean of the Stanford law school] Ely [and apparently now Justice Thomas] proposes to resurrect.
"The due process clause will not do as a warrant for the creation of new constitutional rights because, as Ely notes, it is simply a requirement that government not do certain things to people without fair procedures, not a statement of what things may not be done. The fifth amendment's due process clause, which applied only against the federal government, was later copied in the fourteenth amendment, which applied to the states. 'There is general agreement that the earlier clause had been understood at the time of its inclusion to refer to lawful procedures. What recorded comment there was at the time of replication in the fourteenth amendment is devoid of any reference that gives the provision more than a procedural connotation' (J. Ely, Democracy and Distrust (1980) at 105-16). That is true, and it is more than enough to condemn the hundreds of cases, stretching from Dred Scott to today, in which the courts have given the due process clause substantive content in order to read their own notions of policy into the Constitution.
"Ely's attempt [and apparently Thomas' proposed attempt] to make the privileges and immunities clause do the work that has been improperly assigned to the due process clause is, however, unsuccessful. He points out that 'there is not a bit of legislative history that supports the view that the Privileges or Immunities Clause was intended to be meaningless' (Id. at 103). That is hardly surprising. One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.
"Bingham and Howard meant these additional rights [taken from Corfield v. Coryell]. That the ratifiers did is far less clear. Certainly there is no evidence that the ratifying convention intended such power in judges, and it is their intent, not the drafters’, that counts. Nor is it easy to imagine the northern states, victorious in a Civil War that lead to the fourteenth amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves. The only significant exercise of judicial review in the past century had been Dred Scott, a decision hated in the North and one hardly likely to encourage the notion that courts should be given carte blanche to set aside legislative acts.
"Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion.
"We know there is no evidence that the ratifiers imagined they were handing ultimate governance to the courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit” (R. Bork, The Tempting of America (1990), excerpted at 180-83).
And, therefore, in reference to Justice Miller’s opinion in the Slaughter-House Cases, Bork says, “ Miller was following sound judicial instinct: to reject a construction of a new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members. [ ] In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race” (id. at 37-38).
He seemed to be saying the clause didn't apply to anyone - black or white: 'Clause is inscrutable and should be treated as if it had been obliterated by an ink blot.' (see footnote in J.Thomas's dissent in Saenz v Roe).
I would like to know how he defines Privileges and Immunities in this context.
The meaning becomes clear and simple if Privileges and Immunities are understood to mean fundamental rights common to all citizens, as Thomas argues. It means that states may not infringe the fundamental rights of any citizen, and such laws are in conflict with the Constitution. Anything more or less is not in keeping with the original intent.
Under Bork's interpretation, a state could disarm its citizens and it would be entirely constitutional. He presumably would have joined the liberals on the Court in the Heller and McDonald cases, thus voting against Thomas, Scalia, et al.
Upon re-reading Heller - Bork probably would have voted with Thomas and Scalia since it involved fedgov, rather than states. My bad.
Side bar
I find nothing suspicious if two people in a car in nc say they are going to ky and the other wv. Depending on your location it would be normal to drive thru part of wv to get to some parts of ky
Absolutely, further, who’s effin business is it where I’m coming from or going to?
Everything about the stop and questioning was wrong.
Totally, erh, totalitarian. ...
Yes, but you miss some important issues.
1) States are local governance, governed by the people of the state through the ballot by representation and directly by initiative and propositions. The majority of people of a given state are in control of what that state does as long as the feds don't interfere.
2) History shows it is the FEDS who impose noxious and unconstitutional requirements on the states. History also shows that the states, left alone, generally are in harmony with the rights and freedoms of individuals. Easiest example is abortion. Before 1973, the states generally prohibited abortion. It was SCOTUS and their application of the 14A against the states that outlawed state anti-abortion laws, allowing the infanticide of some 70 million unborn. Another easy example is currently, the greatest pressure against gun ownership isn't the states, it's the feds.
3) The freedom of states to run their own show, generally, is much more in line with the constitutional design of federalism. And, again, history tells us that the chances of a state disarming its citizens is much less likely than the feds forcing disarmament using the 14A as their club.
Yes, Bork says that the intent of the P&I clause in the 14A is not understood which is basically what Justice Miller said. So both are on solid constitutional ground. You're concerned about the consequences, but consequences are not the driving force of construction, whereas original understanding and intent are. Consequences are more of a sanity check in the light of original intent and understanding.
Here, the consequences are sublime in that the states represent smaller and more local and responsive governance keeping the federal government at bay and presumably within its constitutional limits where it belongs. Again, our greatest threat by far in this country is not the states, it is the $4 trillion bloated unconstitutional federal government that threatens out free way of life.
However, none of that changes the original intent of either the Commerce Clause or 14A.
Which brings me back my point about what the terms Privileges and Immunities of US citizens meant at the time of the 14th's ratification. It is the key to understanding the 'P or I' Clause, and has still not been addressed. What does Bork say about the meaning of Privileges and Immunities of US citizens, as the terms were understood in the late 1860s?
If you are asking what the P&I Clause was intended to mean in the 14A, as quoted on what I posted to you, Bork says this about the P&I Clause: "One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.
So his point is judges should not insert their own personal moral viewpoints of what THEY think a clause should mean where they have no guidance from original understanding of the text. He therefore approved Justice Miller's judicial restraint and "sound judicial instinct" in doing just that.
For example, Justice Thomas goes into detail with extensive references to define those terms in the 2 cases I linked. The Heritage Foundation gives a definition that is consistent with J. Thomas =>
"Privileges and immunities" constituted a summary of ancient rights of Englishmen that the colonists fought to maintain during the struggle against the mother country.
http://www.heritage.org/constitution#!/articles/4/essays/122/privileges-and-immunities-clause
Does Judge Bork provide a definition, and if so, what does he say?
I agree with Bork and Miller and believe simply that the ratifiers were trying to put former slaves on equal footing with all U.S. citizens. Just guessing (something Bork, admirably, was loathe to do which is why he might have been one of our greatest Justices if he had been given the chance), my sense is the ratifiers were simply wanting to confirm that states could not discriminate against black out-of staters. In that sense, P&I in the 14A doesn't add anything, only confirms the full citizenship status of former slaves. But that's my opinion only, not a constitutional basis for construction. I sense it's probably Bork's also, but he was disciplined and discrete enough to keep his personal opinions separate from valid constitutional construction.
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