I’m going to start off by saying that I am not a lawyer and that the main purpose of this article is to facilitate a discussion, which I hope will be thought-provoking.
In Tom Woods’ Episode 2154 on July 2, “Roe Overturned: Historians Discuss the Decision”, he discusses the recent Dobbs v. Jackson Women’s Health Organization decision with historians Kevin Gutzman and Brion McClanahan. The topics covered expanded to include a brief description of the incorporation doctrine, how it has been applied (or not) to recent Supreme Court opinions, and whether or not it is valid.
First, the Dobbs decision. Unsurprisingly, Woods, Gutzman and McClanahan were all in agreement that Roe v. Wade and Planned Parenthood v. Casey were improperly decided. They bemoaned the tendency of the court, starting in the 20th century, to issue rulings that are closer to policy decisions than an exercise in Constitutional law. Symptomatic of this was William Brennan’s infamous (alleged?) comment to some law clerks that he operated according to the rule of five; with five votes he could do anything.
They noted that the written Dobbs decision addressed this explicitly: that Roe, with its detailed listing of the conditions under which abortions could and could not be performed, was more like a piece of legislation than a court decision based on the Constitution. Furthermore, they disagreed with progressives’ claims that Dobbs was legislating from the bench, since the Supreme Court did not impose blanket restrictions on abortion, but left that decision to the states. None of this is new or revelatory to a Glibertarian, of course.
They next contrasted Dobbs with New York State Rifle & Pistol Association v. Bruen, the recent decision which ruled that New York’s law requiring applicants requesting a concealed carry permit had to state a “proper cause” or special need distinguishable from the general public. Under Bruen states are not free to impose such restrictions on potential gun owners, but under Dobbs, states are allowed to place certain restrictions on abortion.
The standard argument for this distinction is that abortion is not specifically mentioned in the amendments to the Constitution, whereas obviously gun ownership is. However, Gutzman and McClanahan argue that this misses the point. The key principle is whether the various amendments apply to the states, and not just the federal government – the so-called incorporation doctrine.
After all, the First Amendment starts “Congress shall pass no law …” (italics mine), and doesn’t on its face restrict the states from doing so. (Of course, the other amendments do not use this construction.) For example, in 1833, in the case Barron v. Baltimore, the Supreme Court ruled (via a 9-0 decision) that the Fifth Amendment prohibition on unjust takings of private property for public use applied only to the federal government.
This attitude changed with the passage of the Fourteenth Amendment in 1868, the first article of which is
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fourteenth Amendment was used to claim that the restrictions on government in the Bill of Rights applied to not just the Federal Government, but to the states as well.
But Gutzman argued that historically of the Bill of Rights was intended to limit the powers of Congress and the federal government, and the idea of incorporation was not in the language of the Fourteenth Amendment or the Bill of Rights; due process and equal protection do not speak to incorporation. Therefore using the Fourteenth Amendment as the basis for incorporation is “nonsensical.”
McClanahan added that Madison proposed an incorporation amendment, but it was explicitly not included in the Bill of Rights. Therefore he claims that the Supreme Court needs to consistently argue against incorporation. Gutzman mentioned that Clarence Thomas’s concurring opinion – which has been excoriated in progressive circles – was in reality a call to do just this, and not necessarily a call to impose conservative values. Logically, we can’t undo one (Roe) without undoing the others (Bruen et al.).
McClanahan commented that the constitution would not have been ratified without the understanding of originalism, which did not include, he claimed, the idea of incorporation. Gutzman and McClanahan make the case that states should be able to pass laws restricting their citizens’ rights that the federal government is not allowed to. New York should be able to pass restrictive gun laws, Mississippi restrictive abortion laws, and so on. People who disagree with a state’s law can appeal in state court, but not in federal court.
For me (and again, IANAL), since the Fourteenth Amendment came after the constitution and the Bill of Rights, an appeal to originalism in the Constitution and the Bill of Rights (the first ten amendments) does not necessarily apply to an interpretation of the Fourteenth Amendment. So, does the prohibition on states making laws which abridge the privilege and immunities of U.S. citizens also apply to making laws abridging their rights as outlined in the Constitution and the various amendments? If so, why not specify “rights” explicitly?
On the other hand, Congressman John Bingham of Ohio, one of the original drafters of the Privileges and Immunities Clause of the Fourteenth Amendment, said in 1871 that the P&I Clause was deemed necessary for the enforcement of the corresponding Privileges or Immunities Clause in Article IV of the Constitution as an express limitation upon the powers of the States.
What are your thoughts on this? Are there any lawyers or constitutional scholars out there who can add any clarification? Have at it.
I am of a textual mind. The first can be seen as restricting only congress, but not the second, as it explicitly recognizes a right of the people, rather than listing an enumerated prohibition on some individual arm of the government. No arm of the government has the authority to impose a restriction upon arms, as it has been removed from their purview, explicitly, from the word go.
My idea of constitutional review is as follows:
Government must point to constitutional clause which explicitly gives them authority to enact such law.
Challenger must not be able to point to a clause which forbids them from enacting such law.
When in doubt, err against the government.
I think that the 13th, 14th and 15th need to be examined in their passage, and that they were the reconstruction amendments. So would would read the debate about their passing and the powers to perhaps show scope.
They were designed to constrain the southern states from infringing on the rights of the newly freed slaves. It didn’t work, hence Plessy v Ferguson, but they did have to “hide” it.. by having poll taxes, tests, etc.. things that brought on the disparate effect rulings. Firearms that cost too much. “of good character” Landowners, etc.
I would have to go back to read the 1st incorporation case… Hurtado v California. What was argued was the incorporation was both from the bill of rights, but also from common law and the magna charta.. and as reference the 14th made them natural rights… as is also implied in the 10th amendment.
I am neither a lawyer or scholar. So …
The clause in the 14th Amendment:
Article 4 Section 2 Clause 1
They use the same language “privileges and immunities”. In Article 4 it is intended to prevent states from treating citizens of other states like aliens. People can travel, own property, and conduct business just like citizens of the state.
The wording is slightly different in the 14th Amendment. Instead of “Privileges and Immunities of Citizens in the several states” it is “privileges and immunities of citizens of the United States”. I read that as the rights as US citizens not as state citizens thus incorporating federal rights to states.
I lean that way, too, and Congressman Bingham apparently thought so at the time.
In a nutshell, if you have the right vis a vie the fed government.. then you have it against the state. That is a complete incorporation of all previous amendments and the constitution.
I read that as the rights as US citizens not as state citizens thus incorporating federal rights to states.
Agreed. The states incorporated the common standard among the states by ratification of the common government among the states.
Had any states try to restrict the citizens’ ownership of guns/weapons prior to the passage of the 14th Amendment?
Taney’s Dred Scott decision argued that if blacks were citizens, owning guns was clearly one of their rights. That would seem to imply some kind of restrictions existed.
Plenty of laws banned blacks, including free, from owning fire arms. I am looking for laws that limited ownership for whites.
This is my layman’s interpretation as well.
Privileges and immunities is a term that traces back to the Articles of Confederation. It allowed for the states to be different but supposed an undefined collection of limitations on them. The phrase would be carried forward into the Constitution (absent the Bill of Rights) and then effectively garner it’s own Amendment within the BoR, only to be repeated once again in the 14th. When put to the challenge in the Slaughterhouse Cases, the Supreme Court excised all meaning from the phrase. And as I recall the Slaughterhouse justification was for the common good.
and Brion McClanahan.
That neo-confederate, revisionist history bigot?! //jk
He does interesting, nuanced work.
Gutzman and McClanahan make the case that states should be able to pass laws restricting their citizens’ rights that the federal government is not allowed to. New York should be able to pass restrictive gun laws, Mississippi restrictive abortion laws, and so on.
I think the wording of 2A betrays this.
“We have redefined ‘shall’, ‘infringed’, ‘not’, ‘keep’, ‘bear’, and ‘militia’. You have no right to that weapon, serf.”
Enumerated rights get extra protection from state and federal government. They are rights that have been identified as needing the extra protection.
I think NY is used by example because they are one of the few states that do not have expressive declaration on the right to self defense and/or arms ownership in their constitution and is instead codified in civil law. There is an argument to be made that the state or cities could effect laws against firearms if (and we know it is) the 9th and 10th Amendments are ignored and we view the right of self-defense as a positive right and not a negative one.
I dont know what the constitution says but I feel it is wrong
That’s the bit you don’t say out loud.
Why not? The progressive cognisceti do.
OT
TO
OTTO
TOOT
TOTO
indeed
Not?
Good song.
I think I kind of preferred this version
https://www.youtube.com/watch?v=MH9FyLsfDzw
Relevant.
Yes?
“Get me another beer.”
Dear Beer.
No thanks, I’m watching my figure
Missed.
Five ballistic missiles fired by the Chinese military fell into Japan’s exclusive economic zone on Thursday, the Japanese government said, with Foreign Minister Yoshimasa Hayashi demanding that China “immediately stop” the live-fire military drill near Taiwan. …
According to the Defense Ministry, of the nine ballistic missiles launched by China on Thursday afternoon, five fell within the Japanese EEZ. The closest one came to Japanese territory was about 80 kilometers north-northwest of Yonaguni.
The nine missiles flew somewhere between 350 km to 700 km after being launched from inland China and the coastal provinces of Fujian and Zhejiang, including four that likely crossed over Taiwan, the ministry said.
North Korean guidance systems?
Deliberate provocation. Japan has openly spoken out in favor of Taiwanese independence.
OT on the gun front what is the official glibertarian view on GWACS Armory Sues KE Arms Over KP-15 Lower? It came on the forgotten weapons channel
I find Karl less trustworthy than Ian. So I don’t have enough information to confidently conclude that it’s patent trolling. But since Brownells went along with full production, I strongly suspect it’s patent trolling (only without a patent).
Sounds like it’s not classical patent trolling; one of the major investors of GWACS actually appears to want to shut down all production for political (anti-gun) reasons, and this might be his way of doing it.
Dunno. I’m generally inclined against patent-related lawsuits, regardless of the merits. But on the other hand, Karl is kind of an asshole. But on the other other hand, Ian is an old college buddy of mine and generally good dude. On the fourth hand, I have half a dozen of the old Cavalry Arms polymer AR lowers the the KP-15 is based on, and they’re kinda ‘meh.’
I guess what I’m trying to say is, ‘meh.’
I have no deep intellectual insight to the Constitution – other than the original document was fine, but the forefathers certainly did not put enough protections in for the long term health of the nation. But no one has such foresight.
Foresight is 20/5?
Daily Quordle 192
4️⃣6️⃣
8️⃣5️⃣
weak
correct
Daily Quordle 192
6️⃣3️⃣
5️⃣7️⃣
Damn, would’ve had a 5364 with my other pair of seed words.
where is everybody tonight?
I’m at work, in a project infrastructure meeting.
Im slow walking items from one office to the next as I sunset my time in the managerial position.
at 9 PM? Hard worker this UCS fellow
It’s not even 2:30
It’s only 1030 in the One True Time Zone.
Your clock is several hours slow, since it is 2:30
You misspelled 1:30.
zulu?
Shaka?
when the walls fell?
Lol.
Getting pulled into more support meetings, while dealing with a ticket where the person can apparently only communicate with screenshots.
I have a particular love for screenshots especially in a situation where there is a really long and complicated string I cannot copy paste
The person is reporting problems creating a report. The screenshots they’ve sent back was trying to access the Data Sources section of the reporting software (which they won’t have access to), and two screenshots of e-mails from the reporting software sending a scheduled report. Neither provided any information pertaining to the reported issue.
Walking the dogs… then pricing 60 or so records I just got in.
records are for nerds
wealthy nerds 🙂
It’s an easy way to make some money though.
I will probably stay home.
I’m planning on a bit of cardio after work, then I have to work a side job.
Eating a late lunch ahead of a meeting that will feature complicated financial information in a PowerPoint presentation. ***SIGH!!!*** 😞
Just got out of the week’s most annoying meeting (“what are you working on?” type) and avoiding work now.
Working, as Rufus bids.
At work. Shop is supposed to pick me up and give me my fixed car.
I’ve seen some of these arguments.
I also noted the difference in construction between the 1st amendment and other amendments. The 1st explicitly only applies to Congress, the others don’t say. I think if Madison intended them all to apply only to Congress/the Federal government, he should have worded them all the way the 1st is worded.
As I recall Madison wanted a provision for the federal govt to be able to overrule state law directly and that failed to carry.
Many states had state religions or state support of religions. Those states wouldn’t led the Feds overrule the applicable state laws, so such a provision would die. Also, see slavery.
I still think if he wanted the subsequent amendments to the Bill of Rights to only apply to the Feds, he should have worded them all like the 1st.
I believe he opined about it in Federalist 10/51 and was aimed at factious majorities and that the Supreme Court would backdown against public will versus adherence to constitutional authority.
JI: Yes, I mentioned that. That does seem to speak to the BoR only applying to states, at least before the 14th amendment.
Hamilton wrote a great opinion [forgetting the number] on why the BoR was un-necessary, all predicated on the very limited power granted to the federal govt under the proposed Constitution. Of course he rapidly demonstrated the necessity for a BoR when he proceeded to manufacture the authority to charter the first Bank of the U.S. out of whole cloth found in Article I. I’m still of the opinion that Burr, a dangerous man in his own right, did the nation a service in killing Hamilton.
I believe even Madison held a similar opinion. Hamilton did hit it on the head with this though “the constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS”
This is one I’ve never really resolved in my own head; and one where I might be inclined to go all consequentionalist (spit).
All in all, I think the incorporation of the federal bill of rights ‘against’ the States results in more liberty. And since the 14th explicitly, in my mind, does restrict the power of state governments to impose restrictions on the people that violate their federal ‘constitutional’ rights, I can justify it on non-consequential grounds.
Of course, if one ‘properly’ view the federal constitution as enumerated limited grant of power to the federal government, the whole thing gets even more confusing. Does incorporation then effectively propagate the limitations on power to the states? It seems hard to have it both ways; the bill of rights was not and was not intended to be an enumeration of ‘granted rights’. In fact, IIRC, the arguments against the BoR was sometimes along the lines of “why do we need to explicitly recognize rights? The federal government has no authority to do anything there!” So I think the conflation of the the constitution as both a grant of limited power AND a grantor/recognizer of explicit rights gets confusing very quickly.
As it all stews in my head, I find that I sort of default to the consequentionalist POV while I continue to think about it. Does it further individual liberty? If yes, then do it. Which is not much different than those that say we can twist everything to get our preferred policy outcome. Other than the outcome being better, but I’m not sure I can justify that from a purely organizational POV; and continue “thinking about it” probably means trying to figure out a way to justify my preferred policy outcomes – in a broad sense of increasing individual liberty – on issues that might lead to decreasing individual liberty if principles were applied consistently.
The states amended the constitution according to the process.. so they agreed to their own restriction. (or 2/3 did… let’s not quibble about the southern states that were in reconstruction).
We saw quickly that if they weren’t enumerated that they aren’t worth anything… that is our fault.. that we don’t reprimand people that go beyond their declared duties. I would be happy if the Executive and the Legislature and Judiciary were continuously smacking each other down. But the 2 party team politics are just “its ok, they are on our team, we are getting what we want even though we are loosing power”
I am all for each sovereign entity telling the other, no you don’t get to do that to the citizens. The FBI should be continuously doing stings against state and local LEO for violating rights. Trying to bribe politicians, looking for payola etc.
Nah, the FBI has enough on its hands chasing white supremacists and staging “insurrections” and “assassinations”.
Well damn, they may have this one right.
Even if they should have been convicted in their state trial, which they should have, I have never liked the “Hey, we’ll just charge them in federal court then” tactic. To me, it’s clearly double jeopardy.
To me, it’s clearly double jeopardy.
I feel the same way.
For some reason, I can’t get as worked up about double jeopardy when it is state officials being subjected to it.
But it doesn’t only happen to state officials
You’re right, but I don’t care. Government employees are not citizens and don’t deserve such considerations.
The whole ‘respect their rights so they’ll respect yours’ thing has long since been proven a fantasy.
Does incorporation then effectively propagate the limitations on power to the states?
The incorporation is only the “privileges or immunities of citizens of the United States”. The delegation of powers to the federal government is separate.
Right, but that leaves open “what are the privileges and immunities”? Only rights explicitly spelled out in the BofR? Emnations and penumbras (or essentially everything)? If the former, doesn’t that effectively negate the idea of the federal constitution as a grant of limited and enumerated powers and imply that it *is* a grant of rights to people? Or is it only a grant of rights in the face of the power of the States? If the later, that effectively limits the state power to that of the federal government. I guess I get wound up in conflating individuals rights and governments power since they are so intimately tied to one another.
Why do I feel like Judge Nap?
what are the privileges and immunities
The founder knew they couldn’t provide a complete list. Enumerated rights are extra protection for those they identified. The list can be amended. Unenumurated rights are extensions of English common law the US inherited.
If the later, that effectively limits the state power to that of the federal government.
Incorporation only limits state power as it pertains to the rights of the people. The enumeration of powers is separate. Popular sovereignty was delegated to the states. The states delegated powers to the federal government. The US constitution enumerates the powers of the federal government. State constitutions enumerate the powers of state governments. State constitutions must comply with limitations imposed by the US constitution (individual rights, republican form of government, …).
I’m not making myself clear, largely because it’s not clear in my head….
If the ‘privileges and immunities’ extend to enumerated rights (BofR), and unenumerated, and privileges and immunities are incorporated against the states, it seems that it would effectively limit the states power to roughly that of the federal government, at least insofar as it relates to laws and regulations restricting individual citizens.
Incorporation limits state power that conflicts with individual rights, but the enumerated powers of the state and federal government are different. States have broader authority than the federal government. How much depends on the state constitution.
Bwahahahaha
The guy sounds like a nut.
I wonder what goes on in people’s heads when they accept an interview for a job at a place where they’re not willing to actually go.
some people like to go to interviews for the practice and to see what is out there even if not interested
Don’t waste my time as an interviewer.
When my sister graduated college in 1986, she interviewed for a position in Maryland for practice.
All her other interviews were in KY. 36 years later, she is still teaching in Maryland, although she changed counties.
Those people are weird.
Even worse? My employer interviewing internal candidates they have no intention of promoting because they don’t want to be accused of leaving anyone out.
I have not committed that particular sin.
With HR involved, sometimes you can’t avoid it.
+1 Rooney Rule
The girlfriend had three people no call/no show for job interviews this week.
The intern candidates have done that. Our consultant candidates have not. I’m guessing it’s amount of professionalism.
Some people try to get offers they can use as leverage in negotiatons with their present employers. Over the past year I have had two candidates back out after “accepting” an offer, when their current employers offered them more money or promotions to stay. We had another guy who backed out right before the interview was set up–at least he didn’t waste our time and money paying for his travel expenses, but he let it go far too long, and then told us his family situation wouldn’t let him move. Well, maybe you should have discussed it with your family before committing to several phone interviews and letting us go as far as scheduling an in-person one too.
Brilliant.
The Man with One Red Shoe?
You mean the tall blond man with one black shoe, of course.
I feel like I’m in a hall of parallel mirrors.