RoR: Forum

Jason Lewis preceded this quote by writing:

... the Bill of Rights was itself insisted upon by those fearful of federal power. Yet, according to judicial activists, the Fourteenth Amendment incorporates federal power against the state. This is circular reasoning, turning constitutional history on its head.

Ed

Related:
The 14th Amendment (at Wikipedia)

Post 1

Saturday, August 20, 2011 - 10:10pm

Ed,

I'm not sure what the quote in post 0 means. My understanding is that the 14th amendment was intended to "turn constitutional history on its head". Before that, the Bill of Rights only prevented the federal government from violating rights. During the Reconstruction era, it became clear that states were becoming a threat to individual rights. The 14th amendment was intended to remedy that by allowing the federal government to stop states from abusing rights.

It isn't intended to incorporate federal power against the states. It is intended to incorporate rights. Conservatives ignore the distinction, seeing it as an expansion of federal power like any other expansion of government power. They're the same people who think the 9th amendment is an "ink stain".

Saying any of this is circular reasoning also doesn't make sense. The 14th amendment was written long after the Bill of Rights. Even if it completely invalidated the Bill of Rights, it wouldn't be circular. It would be a reversal. But it doesn't do that. It doesn't even invalidate the 10th amendment. It doesn't allow the federal government to take on the powers that were originally left to the states. It only prevents the states from exercising powers that violate certain rights.

I read a book on federalism a short while ago. It sounded good for a bit, but then it goes on and equates preventing states from violating rights with expansion of government power. As it continued, you start to see that the whole point of the book is to reject this notion that there are rights that the states shouldn't be allowed to violate. It's not government power that is the problem. It is unwanted limitations on power that is the real issue. And of course, the embodiment of pure evil is supposed to be Roe vs. Wade. The book could be rewritten with the title: "Federalism: Why natural rights must be discarded so that we can enforce our own morals, but only at the state level!"

Post 2

Sunday, August 21, 2011 - 1:57am

The author of that quote was a United States Senator from Lousiana and a strong supporter of slavery. During the civil war he became Jefferson Davis' Secretary of State.

The 14th Amendment (1868)was called one of the Reconstruction amendments. The Citizenship Clause overturned the awful Dred Scott v Sanford decision of 1857 that declared that slaves and their descendants were not protected by the constitution and could never be U.S. citizens and were chattel and couldn't be taken from the owners without due process.

The Due Process Clause, to me, makes explict one of the requirements of objective law: That laws must exist so as to be known in advance and then be applied in any judicial process that might result in the taking of life, liberty or property. This makes the government subservient to the law and grants the individual recourse for any rights violation that arose where the law was not followed. The Fifth Amendment only applies due process to actions of the federal government. The Fourteenth applies to the states.

As the name implies, it is about the process and not the content. If life, liberty or property are taken using a bad state law - that will have to be dealt with elsewhere, not with the 14th amendment. The 14th doesn't give Justices the right to implement their morality in place of a state law.

States rights have been usurped by rulings that take the due process clause and use it as a vehicle for judicial activism. Opponents of 'substantive due process' are not saying that a right doesn't need protection, but they don't want it done by a misreading of the constitution and instead to apply federal legistation, state law or state constitutional changes, or an amendment to the US constitution.

"States rights" is a rather poor descriptor, because a state has the procedural authority to make any law that isn't prohibited by the Federal constitution - and that is a different thing than protection or violation of an individual right. It isn't really about a "right" so much as about the division of power - the dividing of enforcement so as to keep the federal government from becoming too strong. The final 'right' to make that law (we're talking legal rights, not moral) will depend upon what is in the state's constitution.

The Equal Protection Clause of the 14th is another key element of objective law: All laws must apply equally to all people within the geographical jurisdiction.

The 14h should, as Joe says, be used to incorporate basic rights at the state level - rights that should be protected from the federal level and apply to all states.

But that Senator was right that the 14th has been abused in judicial rulings to diminish states rights in areas where it shouldn't have - either because it gave the federal government a power that no government should have, or because a ruling set a precendent for mis-interpreting what is actually written, or because the right involved exists, but should be protected in a more appropriate fashion (state law, federal legislation, etc.)

Post 3

Sunday, August 21, 2011 - 3:17am

Steve,

Ed quoted two people. The main quote was the Senator as you mentioned. But that quote doesn't even mentioned the 14th. The second quote is from Jason Lewis, which brings up the 14th.

The history of the 14th Amendment is ugly. The "privileges and immunities" clause was supposed to be the clause that prevented states from violating rights. Slaughter-House Cases gutted that clause claiming it was essentially redundant. The due process clause then got expanded to try to bring back this key Constitutional change. Thus, "substantive due process". Nonetheless, the Amendment was always intended to "incorporate rights", preventing the states from violating the rights. This includes the 9th amendment rights, which is an expansive view of rights. Conservatives not only disregard the 9th amendment, but they despise the 14th because they believe that state governments should be free to violate the rights of their citizens (usually when it promotes their view of morality).

But that Senator was right that the 14th has been abused in judicial rulings to diminish states rights in areas where it shouldn't have...

I think you mean Jason Lewis. But I'd like to know more about why you agree with him. What standard does one use to say "where it shouldn't have"? If the amendment was intended to protect rights from the state governments, any cases where they do should count as "should have". That was the intent.

Conservatives don't like the effects, especially on the issue of abortion, but that's their problem. They wish the amendment was never passed. Then they wish it was interpreted to ignore the original intent/meaning. And finally they wish the particular "rights" that are protected would be highly limited so it doesn't interfere with their desires for government enforced morality. Clearly they can and do argue that the 14th amendment diminishes state rights in areas where it shouldn't have. But what about you?

1.) Do you think it's improper for the federal government to limit state power by preventing violations of rights?
2.) Do you think those limitations are okay in theory, but the list of rights should be extremely limited?
3.) Do you think that the list of rights that are protected should be as expansive as the 9th amendment, but that judges are claiming "rights" that are not actual individual rights?
4.) Is there something else you're arguing for?

Are you sure you really agree with the quote, since it is arguing against incorporating rights in the first place?

I wouldn't be surprised if the 14th amendment was used inappropriately as you claim it has, but I'd be interested in real examples. Those might also clarify what you think is an abuse of the 14th.

One major problem I have here is that the conservative view of state's rights is a pre-14th Amendment view where the states can do whatever they want as far as the federal government is concerned. They talk as if that is the ideal, and violating that ideal is a problem. Your own discussion uses the same language, which makes it hard to tell whether you're promoting the conservative ideal or just not being clear. Coupled with claiming to agree with a quote that is arguing against this aspect of the 14th amendment only makes it worse.

States rights have been usurped by rulings that take the due process clause and use it as a vehicle for judicial activism.

Take this quote as an example. Have the "state rights" been usurped? Is it judicial activism? If the 14th amendment no longer allows states to violate the "privileges or immunities" of the people, how can anyone still claim the states have that right? Is it judicial activism to enforce this new requirement? If so, then what's so bad about judicial activism? The conservative view is exactly what you wrote. That the state rights are being usurped by judicial activism. But they're rejecting the legitimacy of the 14th amendment. Sure, they can argue that the due process clause is not the right clause, but that's only a technicality.

"States rights" is a rather poor descriptor, because a state has the procedural authority to make any law that isn't prohibited by the Federal constitution

The issue, of course, is whether the prohibitions include the 14th amendment or not. Pre-14th amendment, "state rights" was defined by the 10th amendment. Post-14th amendment, "state rights" are restricted. Conservatives don't see it that way. They see the 14th as a violation of "state rights", and consequently any use of the 14th is an abuse. They argue an ideal where states can do whatever they want, and federal judges can't limit the will of the people.

Even the terminology reinforces their views. "State rights" implies the states should be left alone to do whatever they want. It is their right. If we talked about "state functions" or maybe "state responsibilities", the 14th amendment wouldn't usurp anything. It would only limited how they perform those functions or responsibilities (by not allowing violations of rights). But by talking about "state rights", this perfectly reasonable requirement suddenly becomes an massive and unwarranted intrusion.

Post 4

Sunday, August 21, 2011 - 4:50am

I am so grateful for Joe's clear, enlightening responses.

I'm not crazy to assume the convoluted conclusion gathered from Ron Paul (and his swell of supporters is):

There are no individual liberties worthy of Federal protection.

Post 5

Sunday, August 21, 2011 - 4:40pm

Joe,

As an Objectivist I often disagree with both Conservatives and with Liberals.

I side with those conservatives who want small government and who see the power of states as a check on the power of the federal government - as was intended by the founders.

(The founders were much more closely aligned with their own states - they really were STATES - i.e., nations - to them, at that period after winning the war, and before the constitution was implimented. They were protecting the sovereign power or their nation from being diminished too much by this union with the other former colonies (nations). They saw some benefits, but not enough to justify giving up too much soveriegnty.)

But I side with those liberals in all of those issues where the conservatives want to impose their moral values or religious beliefs on others. If the conservatives could, they would do so from the federal government, but they think they will be more likely to succeed in forcing anti-abortion, anti-gay, anti-whatever-offends-their-sensibilities laws on people at the state level.

The liberals are favoring the rights of individuals in these areas, but they are also for big government and would like to do away with powerful states in order to get rid of a strong opponent to big federal government.

So there are two interwined issues: The size of government and states as a check on big government, and the issue of protecting individual rights at one level of government versus another - and whether a state government can have the 'right' to violate a right.

I suspect that you know me well enough to know that I'm consistent in that the only purpose of government is to protect individual rights, and that my view of what are individual rights is very close to that of Rands, and that I'm in favor of small government as a simple corallary of my view of the purpose of government.

The remaining area to discuss includes technical reasons for implimenting the enforcement of this or that right at this or that level of government, and the issue in challenging or supporting certain court decisions based upon the legal reasoning (the right way, the wrong way, the benefits, the dangers, etc.)

Let me start by answering the questions you proposed:
1.) Do you think it's improper for the federal government to limit state power by preventing violations of rights?
2.) Do you think those limitations are okay in theory, but the list of rights should be extremely limited?
3.) Do you think that the list of rights that are protected should be as expansive as the 9th amendment, but that judges are claiming "rights" that are not actual individual rights?
4.) Is there something else you're arguing for?

1.) No, it is not improper. But we are discussing the apportioning of power between the federal government and the state governments. The constitution was intended to grant only specific powers to the federal government with all other powers belonging to the states and individuals. That is an excellent concept for starting to limit federal government. It is like hiring a security guard and telling him he can not do anything on your property but for those specific things on a list he is given - he carries a gun and he needs to be kept under explicit control.

So, there are two things here:
A) The federal government starts off with limited powers. They are stated in the constitution. Therefore, preventing violations of individual rights by limiting states power must be spelled out in the constitution (and there are such instances) - otherwise we aren't following the constitution and that puts us at risk of loosing the concept of "the protection of law".
B) It is in our interest to ensure that individual rights are protected, and to do so in a constitutional fashion. Which level of government gets the job done is of less importance than to see it does get done and in a constitutional fashion. I believe it is important to NOT let it all be done at the federal level because that will force the federal government to be very powerful relative to the states. The states are a powerful tool the individuals can use effectively to stop the growth of federal government.

2) The most basic of rights should be at the federal level. The founders had been denied the rights of free speech, press and assembly - and they understood the practical consequences of this - the greater ease in supporting tyranny if you can censor people and frustrate their simple ability to get together and organize.

Sometimes this is about the level of generalization (abstraction). I fully support the explicit description of what is required to make a law objective and that should be at the Federal level. (Due process, habeous corpus, probable clause, applies equally to all, etc.) Whenever a principle of individual rights can be stated in clear, objective terms at the broadest level of abstraction, the better. For example, there should be a restatement of the commerce clause, and there should be clause that demands separation of economy from state that is written to apply to states as well as the federal level. That would massively shrink both governments.

I don't like a laundry list of specific or lower level rights. They argued against the Bill of Rights by saying in the future people will look at this and say these are the only rights and the government can act else where. They were right, that is the approach that has been taken and the view that most of the population has. On the other hand, if we didn't have the Bill of Rights would things be even worse? I don't know.

3.) Do you think that the list of rights that are protected should be as expansive as the 9th amendment, but that judges are claiming "rights" that are not actual individual rights?

"The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people"

I love that amendment. When we evolve a little more past where we are now in our national political education I believe that will be THE amendment, more than any other, that will we used to flush away most of the bad law on the books.

James Madison introduced it in this fashion: "It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

But the power of the nineth is such that activist liberal jurists were forced to adopt a circuitous path to expanding power. They had to use weasle words and faulty logic to 'find' constitutionally granted powers where none existed. The logic being, "See, we already have this power right here in the commerce clause, or in the genearl welfare clause, or...., so we aren't violating the nineth."

I don't fully understand your question. "Do I think that the list of rights that are protected should be as expansive as the 9th amendment?" Yes to that in spirit, except that the wording of the 9th does not call for protection or give a list. It should stop the federal government from powers over the individuals unless the proposed power is already explicitly granted in the constitution. It once limited power grabs, now it's limiting the lies used to grab powers.

You went on to ask, "...but that judges are claiming 'rights' that are not actual individual rights?" I'm not sure what you mean by this. I know that judges are claiming 'rights' that are not actual individual rights - like entitlements - but they were not rights retained by the people prior to the bill of rights. Both the left and the right have done this. Not sure how to answer that part.

4) "Is there something else you are arguing for?" I don't think so. I want a structure that protects and encourages individual rights. I'm not an anarchist so I want it done with a minarchy. I want the specifics of the protective structure to have many built-in safeguards against abuse - and the best constitution possible is one protection, checks and balances of executive, legislative and judicial branches is a good help, a representative government with easier recall provisions then we have now would be good, and to balance the enforcement power over the few laws we should have between the federal and state governments would be good.

I harbor no secret desire to prohibit gays from doing anything or to take away a woman's rights to her own body, if that's what you mean - nothing like that.
---------------

There is a trade off between putting all the enforcement and protection of rights in the federal government - it could in theory be done, and maybe even faster (when our culture has acquired sufficient education to force through what is needed). The alternative, which might take longer, is poking at individual states to get them to clean up their constitutions to curb the powers to the state such that individual rights are protected and not exposed at the state level (those not protected at the federal level.)

I see getting to minarchy as a long process, and the competition between states, when they start to compete on rights in a more explicit fashion, will be helpful and a good thing for our culture. Right now we see a tiny bit of that in the economic comparison of Texas with its more business friendly laws, and with Wisconson and other states that are getting the unions out of state government and the competion between right to work states and the others. This is the beginnings of competition of the states where the goal is to become the freest and it will empower the trend towards states nullifications of bad federal law.

If someone imagines this process of getting from here to where we have a minarchy as something that will take a relatively short period of time to accomplish, whenever that happens, or that it will kick off in the not too distant future, then all this dithering about with states rights would make no sense. And maybe things are about to bust loose, and maybe it will be like an avalanche once started - politics is home to weird and improbable things. But I think it will be a long process and we are still a long way from it taking off. So, I see that states rights as good tactic that will make thing go faster and lend more certainty they will keep going the right way.

There are a great many other topics you touched on and asked questions about. But I don't want to write a longer post than this already monstrously long one. If you've read this far, and still have questions, I'll be happy to try to answer them.

Steve

Post 6

Sunday, August 21, 2011 - 5:39pm

Teresa and Steve.

Thanks Teresa. Glad you found the comments useful. I don't know enough about Ron Paul's position here. I wouldn't be surprised, as he is against abortion, and that forces people to despise the idea of a federal government declaring the existence of rights that states can't violate.

Steve,

I suspect that you know me well enough to know that I'm consistent in that the only purpose of government is to protect individual rights, and that my view of what are individual rights is very close to that of Rands, and that I'm in favor of small government as a simple corallary of my view of the purpose of government.

I accept all of that. I'm not suggesting otherwise.

I'm just trying to understand your position. You claim to agree with a conservative, and utilize similar arguments, language, and premises. I'm trying to understand what you actually agree with and why.

1.) No, it is not improper. But we are discussing the apportioning of power between the federal government and the state governments.

This is part of the problem. This isn't actually what's being discussed. Telling the states that they can't enacts policies that violate the rights of their citizens is not the same thing as taking over their responsibilities reapportioning power. It doesn't grant the federal government the right to take over the police functions within the state, or to control zoning, or to regulate intrastate commerce or anything else. It doesn't create new powers for the federal government. It simply limits the states powers.

Similarly, you say:

There is a trade off between putting all the enforcement and protection of rights in the federal government ...

Again, the 14th doesn't shift these powers or responsibilities to the federal government. It limits the state governments' ability to enact policies that violate rights. It doesn't mean that the federal government will take over the jobs that the state used to do, like police functions. It isn't an invitation for the federal government to "protect rights" by becoming a government of the people instead of a government of the states. It won't protect you against your neighbor. It only prevents your state from violating your rights.

There is an equivocation here that the conservatives use and that you seem to be accepting. They equate federal expansion of power, meaning the federal government starts passing laws that exceed their authority, with restrictions on state power. The two aren't the same. They appear to be the same if you talk about state rights, and see any interference as a violation of their rights. The equivocation is between initiating force and preventing an initiation of force. The 14th does the latter, not the former. Conservatives who believe states should be able to do anything, including violate the rights of their citizens, can lump these two kinds of "interference" together and claim they are equivalent. We shouldn't accept that.

Which level of government gets the job done is of less importance than to see it does get done and in a constitutional fashion. I believe it is important to NOT let it all be done at the federal level because that will force the federal government to be very powerful relative to the states. The states are a powerful tool the individuals can use effectively to stop the growth of federal government.

Again, you make the argument that no all rights protection should be done at the federal level. But again, that isn't what the 14th amendment does. The equivocation allows this kind of straw-man, where if you support the 14th, you must reject federalism. But the 14th amendment's requirement that states not violate rights is not a rejection of federalism. It is a modification. The powers and responsibilities are still split the same way, but now the state governments are restricted from using their powers in an illegitimate way.

A) The federal government starts off with limited powers. They are stated in the constitution. Therefore, preventing violations of individual rights by limiting states power must be spelled out in the constitution (and there are such instances) - otherwise we aren't following the constitution and that puts us at risk of loosing the concept of "the protection of law".

Perhaps you are disagreeing that the 14th amendment actually was intended to prevent the states from violating rights? Sure, the way it's been interpreted is just awful, as I mentioned earlier. But the end result is not far off from the original intent and meaning (in many ways, it doesn't go far enough, incorporating only some of the explicit rights). It was intended to limit state power. It was spelled out. Conservatives don't like it, but it is the law of the land. This isn't a power grab by the federal government. It was a constitutional amendment that changed the relationship between the federal and state governments in an important way (while leaving other aspects of that relationship the same as before).

So while we don't have to like the case history, the question should be what the law actually is, based on some kind of originalist interpretation. And the law seems to be that the states can no longer violate the rights of individuals, including all of the rights in the bill of rights including the 9th.

I don't fully understand your question. "Do I think that the list of rights that are protected should be as expansive as the 9th amendment?"

I'm saying that the 14th demands that states can't violate rights. You seem to not accept that. But my question was if you do, how expansive should the list be. The actual interpretations at this point have incorporated most of the explicit rights declared in the Bill of Rights. The 9th, however, is ignored. Conservatives who accept the legal validity of the 14th still try to diminish it by limiting the rights it protects against the states. Just as they diminish the value of the 9th.

I'm trying to figure out if you think federal government should limit state's ability to violate rights, or don't think the 14th actually does that, or think that it does but is extremely limited in scope so effectively does little, or think that it does and the scope is expansive like the 9th. It looks like you don't think the 14th actually does it (except through faulty interpretation), and you seem to be arguing that it shouldn't do it at all to preserve the older style of federalism. Is that right?

Post 7

Sunday, August 21, 2011 - 11:24pm

Joe,

During the Reconstruction era, it became clear that states were becoming a threat to individual rights. The 14th amendment was intended to remedy that by allowing the federal government to stop states from abusing rights.

It isn't intended to incorporate federal power against the states. It is intended to incorporate rights.

I agree with you that the original intent of the 14th Amendment was to incorporate many rights, most specifically for blacks or newly freed slaves. My impression is that the scope of the original intent was limited to "negative rights" (i.e., it was never intended to include "positive rights" -- such as the so-called "right" to taxpayer-funded health care).

Conservatives ignore the distinction, seeing it as an expansion of federal power like any other expansion of government power. They're the same people who think the 9th amendment is an "ink stain".

Saying any of this is circular reasoning also doesn't make sense.

Side Note:
To be clear, I don't personally think that the 9th Amendment is an ink stain, and I don't think Jason Lewis thinks it is, either. Also, I am not personally a conservative, and I don't think Jason Lewis is, either (see "p 62" quote below). For what it's worth, Jason has referred to himself as an Objectivist.

I just finished reading Jason Lewis' book (where he made the quote). Jason was referring not to the original intent of the 14th Amendment, but to how "judicial activists" have misused it afterwards -- i.e., for the purpose of incorporating federal power against the states. Jason gives examples of this kind of behavior, some of which are directly related -- by judicial activists -- to the 14th Amendment:

p 20

In 1985 a federal district judge took partial control over the troubled Kansas City, Missouri, School District (KCMSD) on the grounds that it was an unconstitutionally segregated district with dilapidated facilities, and students who performed poorly. ... the judge ordered the state and district to spend nearly two billion dollars over the next twelve years to build new schools, integrate classrooms, and bring student test scores up to national norms.

p 29

Proponents of the [Terri] Schiavo intervention would exploit the same vehicle that big-government liberals used to override state law: the "due process" clause of the Fourteenth Amendment ...

p 44

Succinctly, the federal government was to prohibit state-sponsored discrimination via the Fourteenth Amendment, and the states were left to regulate the affairs between private individuals. But in Heart of Atlanta Motel [v. United States; 1964], the Supreme Court upheld federal anti-discrimination laws pertaining to "public accomodations" as an extension of Congress' power to regulate interstate commerce, however "local," due to its "effect upon that commerce."

p 49

In Plyler v. Doe [1982], for example, a five-four majority distorted the meaning of "any person within its jurisdiction" in the Fourteenth Amendment to arrive at the conclusion that the state of Texas must provide a free public education to illegal immigrants.

[quoting Lino Graglia] Not even a military school, the Court held in an opinion by Justice Ruth Bader Ginsberg, may operate as an all-male institution consistently with the Fourteenth Amendment.

p 51

In January 2010, a federal appeals court in Washington overturned a state law denying imprisoned felons the right to vote on the basis of its "disparate impact" on minorities disproportionately represented in correctional institutions.

p 62-3

A few social conservatives now assert that the "due process" clause of the Fourteenth Amendment can be used to force states to rewrite their criminal codes to ban abortion throughout the states.["Ashcroft's Statement on Abortion," Human Events, 29 May 1998, 7]

p 63-4

The judicial alchemy seems to have caught up with the Court, as it now routinely gives what appears to be conflicting views on the issue of privacy and local law. In 2005 the justices gave the federal government the power to regulate medicinal marijuana; a year later it ruled to let the states decide on physician-assisted suicide.

p 67-8

Slaughter-House has been much maligned by well-intentioned critics, such as Epstein, et al. They cite dissenting Justice Stephen Field, who said in a subsequent case, "No one has ever pretended ... that the Fourteenth Amendment interferes in any respect with the police power of the state," nevertheless the state should "not be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to guard against abridgement." The Court still seems to be discovering those "just" rights. ...

The core problem for those who seek such an expansive view of federally enforced "rights" is that they've yet to offer an adequate mechanism--other than increasingly unreliable courts--for the resolution of competing interests when these "just rights" collide.

Post 8

Monday, August 22, 2011 - 1:48am

Ed,

My impression is that the scope of the original intent was limited to "negative rights" (i.e., it was never intended to include "positive rights" -- such as the so-called "right" to taxpayer-funded health care).

I agree.

Jason was referring not to the original intent of the 14th Amendment, but to how "judicial activists" have misused it afterwards

Are you saying that he supports the 14th Amendment and it's limitations on state power? And that he just thinks that power has been misused? Or does he just not talk about the original intent and only complain about how it is used? Your first quote of him looks like he's against the whole idea of the federal government limiting state authority.

This quote from Lewis:

The core problem for those who seek such an expansive view of federally enforced "rights" is that they've yet to offer an adequate mechanism--other than increasingly unreliable courts--for the resolution of competing interests when these "just rights" collide.

Sounds like he's against the whole idea. Hard to take this kind of thing too seriously, as the same argument could be applied to those favoring a written Constitution, or for federalism, or for any other political mechanism that hasn't worked out so well. Why pick on this one particular issue?

And another:

The Court still seems to be discovering those "just" rights. ...

Isn't this what we'd expect from a court that took an expansive view of rights consistent with the 9th amendment. Whenever the federal or state governments came up with some new gimmick to coerce citizens, the courts would find a "new" right. That's because there are an infinite number of rights. If his problem is that they are calling things rights that aren't rights, why phrase it this way?

Regardless of what he calls himself, this is the same conservative argument that screams about the Supreme Court finding a "right to privacy" in Roe vs. Wade. Where did they find this right? I didn't see it written anywhere!

Maybe under the ink stain.

Post 9

Monday, August 22, 2011 - 10:26am

Joe,

Are you saying that he supports the 14th Amendment and it's limitations on state power? And that he just thinks that power has been misused

Yes, but I'm not sure that that completely joins the issues. The issue at hand seems to be the scope of intent of the 14th Amendment. Jason cites sources which take the scope to be narrow, yet you seem to -- and please correct me if I'm wrong -- you seem to be saying that the scope of the 14th Amendment is really very large, though not so large as to include the "positive rights" of the welfare statists (which we both agree on and for obvious reasons). For instance, one example Jason gives regarding the scope of intent of the 14th Amendment is the example of the need for a 15th Amendment.

If the scope of intent of the 14th Amendment was really very large (perhaps even unlimited), then it would appear that a 15th Amendment would have been redundant -- because the "voting rights" of the 15th Amendment would have already been covered by the large scope of rights in the 14th Amendment. So, there seems to be 2 issues at hand:

1) large (and potentially unlimited) scope vs. narrow scope
2) scope that only includes negative rights vs. scope that includes welfare-statists' "positive rights"

Ed

(Edited by Ed Thompson on 8/22, 10:27am)

Post 10

Monday, August 22, 2011 - 3:11pm

Ed,

I agree with your approach. There are several areas where scope is an issue.

For example, one problem that I have with the 14th amendment is in the phrase "privileges or immunities".

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

Do "privileges or immunities" include things that existed before we had a constitution? Or, are they restricted to things created or defined in law? The 9th amendment would take care of those preexisting rights that the state should not violate. And the "privileges or immunities" are restricted to citizens of the United States. And the language "privileges or immunities" is very different from "rights" which was the more frequent term.

It appears that the "privileges or immunities" mentioned were things defined in some federal statutes passed just before the 14th. The historical context and writings of the participants at the time say that the intended "privileges or immunities" were civil and political rights that related to black Americans. It was written to ensure the Civil Rights Act of 1866 was not overturned in the courts. And in response to laws being passed in the south called the "Black Codes" that restricted the rights of blacks. A Joint Committee on Reconstruction stated that only an amendment would protect blacks in the South. It was also intended as a back-up to the 13th amendment. [Wikipedia]

I wish they had found language the was specific in stating what those civil law privileges were so as to leave the ambiguity out.
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Moving on from restricting states from violating "privileges or immunities" we come to the Due Process Clause. Here is Wikipedia's summary of how it has expanded: "Beginning with Allgeyer v. Louisiana (1897), the Court interpreted the Due Process Clause of the Fourteenth Amendment as providing substantive protection to private contracts and thus prohibiting a variety of social and economic regulation, under what was referred to as "freedom of contract". Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905) and struck down a minimum wage law in Adkins v. Children's Hospital (1923). However, the Court did uphold some economic regulation such as state prohibition laws (Mugler v. Kansas), laws declaring maximum hours for mine workers (Holden v. Hardy, 1898), laws declaring maximum hours for female workers (Muller v. Oregon, 1908), President Wilson's intervention in a railroad strike (Wilson v. New, 1917), as well as federal laws regulating narcotics (United States v. Doremus, 1919). The Court repudiated the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937)."

"By the 1960s, the Court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights. The Court has also significantly expanded the reach of procedural due process, requiring some sort of hearing before the government may terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits.

"The Court has ruled that, in certain circumstances, the Due Process Clause requires a judge to recuse himself on account of concern of there being a conflict of interest. For example, in Caperton v. A.T. Massey Coal Co. (2009) the Court ruled that a justice of the Supreme Court of Appeals of West Virginia had to recuse himself from a case that involved a major contributor to his campaign for election to that court."

"The Due Process Clause has been used to apply most of the Bill of Rights to the states."
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If we look at those cases, we can pick out some things and say that is the protection of an individual right. Other things we look at and see that it was the violation of an individual right.

Which decisions were a strict interpretation of what is written and not an unwarranted extrapolation or improperly stretched meaning? Could the language have been more specific so as to discourage loose interpretations that satisfied a Justice's moral or political leanings?
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From Wikipedia: "Oliver Wendell Holmes, Jr., a realist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:"

Justice Oliver Wendell Holmes said, "I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass."
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Attempting to protect rights that are not adequately protected by the constitution should not be done by interpretation since opening that door lets those who would use it walk through to violate rights. It introduces judicial legislation and subjectivity. The proper approach is to amend the constitution as required. It gives no guarantees that we don't get bad amendments (like prohibition, for example) but it does preserve objective law and honesty to a far greater degree. It is a two step process: 1) Respect the literal interpretation of the existing law, 2) Change the law wherever doing so will enhance the protection of individual rights.

Post 11

Monday, August 22, 2011 - 4:43pm

Ed, I don't know how you can read his quote as being in favor of the 14th amendment's limitation on state power. He says the opposite.

As for scope, I think you're not being precise when talking about an expansive view of rights. Take the 9th amendment as an example. Why didn't the founders just list all of the rights? Because it was impossible. One quote from back then talked about how impossible it would be. Is there a right to wear a hat? The issue is that there is not a limited set of rights. You can do anything you want, assuming you don't violate the rights of others. When we talk about a right to free speech or a right to hold religious views, we are only focusing on these kinds of freedoms. We're not suggesting that there is a finite number.

So any amendment that said people have a general right to live their lives peacefully, in any way they want, is large. Infinite in size, since there is no finite number of rights. But that's not quite the same as saying it is "unlimited". Rights are limited. You don't have the right to coerce others.

Contrasts this with the view that an amendment should have a narrow scope. In the context of this debate, that usually means that it should be limited to explicitly defined rights, such as the first 8 amendments. But the 9th amendment says "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Claiming that the first 8 amendments protect special rights would certainly deny or disparage those retained by other people!

Post 12

Monday, August 22, 2011 - 5:04pm

Steve, you said:

It appears that the "privileges or immunities" mentioned were things defined in some federal statutes passed just before the 14th.

I don't think that's right. Note from wiki:

The primary author of the Privileges or Immunities Clause was Congressman John Bingham of Ohio. Bingham's main inspiration was the Privileges and Immunities Clause in Article Four of the original unamended Constitution

"Privileges" and "Immunities" has a long history. Randy Barnett quotes Kent Curtis as saying:

Blackstone's Commentaries on the Laws of England, published in the colonies on the eve of the Revolution, had divided the right and liberties of Englishmen into the "immunities" that were the residuum of natural liberties and those "privileges" that society had provided in lieu of natural rights.

By the way, if you haven't read Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty, you should. It's a brilliant book. This topic is discussed in detail in the book.

CATO Institute also sees the importance of of this clause. They seem to argue that many of the problems stem from the fact that this clause was ignored, and the due process clause was used instead. That clause has no comparable historic meaning, and really is unlimited and ill defined when it comes to "substantive due process".

http://www.cato.org/pubs/pas/pa-326es.html

As for your more general concern that loosely worded documents can be misinterpreted, that's also covered well in Randy Barnett's book. The reality is that the Constitution needs to be somewhat vague. It is supposed to provide a framework, but leave the details of implementation for others. And when it comes to rights, trying to provide a specific list will necessarily deny or disparage other rights.

Constitutional interpretation is necessary. There's no way to avoid it. The question is how it should be interpreted. Even saying we should take a literal interpretation is a kind of interpretation. And not necessarily the best. The originalists used to argue that original intent was important, because it provided necessary context. There's a bunch of problems with that view, including the fact that these were passed by multiple people with multiple intents. So they have shifted to original meaning. Interpret the Constitution by what the words originally meant.

That would go a long way to solving the privileges and immunities problem, since the words appear vague if you simply take their literal meaning instead of the historically contextual meaning.

And there's a lot more to Constitutional interpretation that this. Again, Barnett's book is a must read on this topic.

Post 13

Monday, August 22, 2011 - 6:38pm

Agree - and sanctioned........

Post 14

Monday, August 22, 2011 - 7:14pm

Joe,

I've put the book recommendation on my to-buy list. It sounds good. But at this point I'm still convinced that the general approach has to be crafting the constitution, step by step, to eliminate as much as possible the abusive interpretations. I agree that it is not possible to specify all specific rights. I'll see if I change my ideas after reading the book.
------

Let me set up a timeline:
Jan. 1, 1863: Lincoln issues Emanciation Proclamation, but done under war powers it was not good for long term.
Jan. 1865: The thirteenth Amendment sent to states
Jun., 1865: Confederacy has Dissolved and surrender is complete
Dec. 6, 1865: The thirteenth Amendment was ratified.

But congress was still very worried about both the supreme court and/or southern states continuing attempts to pass laws that would reverse equality for blacks. There were worries that the court might not stand strong the 13th. And, you can imagine the intensity of the feelings just after something as horrendus as the civil war.

Lincoln had been assasinated and Johnson was the President. The former Confederate states were in limbo. The Confederacy had dissolved, Lincoln and Union had never recognized their secession, yet the Union had not yet allowed or affirmed the former states back into the union. Lots of legal issues that weren't really solvable. Are any laws passed before the southern states representatives came back legal?

It was in the midst of all this craziness, they passed the Civil Rights Act of 1866.

Take a look at this Wikipedia article on the Civil Rights Act of 1866.

From Wikipedia: "After the Civil Rights Act of 1866 had been enacted into law over President Andrew Johnson's veto, some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866, or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act. Thus, the Citizenship Clause in the Fourteenth Amendment parallels citizenship language in the Civil Rights Act of 1866, and likewise the Equal Protection Clause parallels nondiscrimination language in the 1866 Act; the extent to which other clauses in the Fourteenth Amendment may have incorporated elements of the Civil Rights Act of 1866 is a matter of continuing debate."

In the Wikipedia article on the Fourteenth Amendment it says, "Section 1 formally defines citizenship and protects a person's civil and political rights from being abridged or denied by any state. This represented the overruling of the Dred Scott decision's ruling that black people were not, and could not become, citizens of the United States or enjoy any of the privileges and immunities of citizenship." [Emphasis mine]
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Recap: The terms "privileges" and "immunities" do go back to a much earlier time and can be seen in Article IV, Section 2 - a "due process clause." But clearly they were being used in the 14th to reflect the civil rights issues and was the same language as in the Civil Rights Act of 1866. But apart from looking at the turmoil of the times the business of the words used aren't that important and don't have too much too do with the issues of Federalism and constitutional interpretation and seeing what, if any, Objectivist twist on these might be.

Post 15

Monday, August 22, 2011 - 10:00pm

Joe,

I'll check out that book you recommend.

Ed

Post 16

Wednesday, August 24, 2011 - 2:02pm

Joe,

Ed, I don't know how you can read his quote as being in favor of the 14th amendment's limitation on state power. He says the opposite.

When I answered you, I wasn't just going off of a two-line quote. I didn't just read his quote, I read his whole book. You had asked me if Jason Lewis supported the 14th Amendment and, because he said so in his book, I was able to answer you. His quote doesn't quite say the opposite, but is instead qualified to be a quote about the historical actions of judicial activists.

As for scope, I think you're not being precise when talking about an expansive view of rights. ...

Good point.

Contrasts this with the view that an amendment should have a narrow scope. In the context of this debate, that usually means that it should be limited to explicitly defined rights, such as the first 8 amendments.

I tried to say this before, but failed:
With regard to amendments, there are at least 2 possible things which can have a measurable scope (either large or narrow) -- the substance of law and the process of implementing law. Jason argues that the 14th Amendment was originally intended to end the legal discrimination in America by focusing on the process of law. What judicial activists have done -- see examples above -- is to use the 14th Amendment to implement their own political policy preferences.

In a subsequent post, I will elaborate -- using the examples from Jason's book above -- on this process in detail.

Ed

(Edited by Ed Thompson on 8/24, 2:03pm)

Post 17

Wednesday, August 24, 2011 - 3:40pm

and some rights were never enumerated because they were taken for granted - the right of self defense, for example.......

Post 18

Wednesday, August 24, 2011 - 6:28pm

Below, I have argumentatively "grounded" the following federal actions via reference to the 14th Amendment. Some of these may be similar to actual, written argumentative groundings that actually took place in history, some not. Some of these may be legitimate groundings of the actions taken, some not. Some of these sound just plain stupid, and are of only borderline relevance to the issue at hand. These historical actions usually involve the very substance of the law in that they often appeal to "positive" rights ("there ought to be a law"), though they may involve the process of implementing law as well.

1)

In 1985 a federal district judge took partial control over the troubled Kansas City, Missouri, School District (KCMSD) on the grounds that it was an unconstitutionally segregated district with dilapidated facilities, and students who performed poorly. ... the judge ordered the state and district to spend nearly two billion dollars over the next twelve years to build new schools, integrate classrooms, and bring student test scores up to national norms.

This federal action can be related to the 14th Amendment thusly:

Since kids have a right to multi-culturalism, and since kids have a right to a public-funded education (of a certain quality or caliber), and since the 14th Amendment says that states can't abuse or violate rights, it follows that Missouri should be forced by the federal government to spend time and money on schools, teachers, and multi-culturalism.

2)

Proponents of the [Terri] Schiavo intervention would exploit the same vehicle that big-government liberals used to override state law: the "due process" clause of the Fourteenth Amendment ...

Since folks have the right to life, and since "legal guardians" don't fully substitute for a written will (for those who have gone comatose), and since the 14th Amendment says that states can't abuse or violate rights, it follows that Florida should be forced by the federal government to maintain Terri Schiavo on life-support until she dies of natural causes.

3)

Succinctly, the federal government was to prohibit state-sponsored discrimination via the Fourteenth Amendment, and the states were left to regulate the affairs between private individuals. But in Heart of Atlanta Motel [v. United States; 1964], the Supreme Court upheld federal anti-discrimination laws pertaining to "public accomodations" as an extension of Congress' power to regulate interstate commerce, however "local," due to its "effect upon that commerce."

Since folks have the right to not be discriminated against -- even by private individuals -- and since the 14th Amendment says that states can't abuse or violate rights, and since Georgia wasn't stopping this private discrimination, it follows that the federal government should get involved in this intra-state matter and force this hotel (in Atlanta, Georgia) to stop discriminating.

4)

In Plyler v. Doe [1982], for example, a five-four majority distorted the meaning of "any person within its jurisdiction" in the Fourteenth Amendment to arrive at the conclusion that the state of Texas must provide a free public education to illegal immigrants.

Since people have the right to public-funded education, and since illegal immigrants are people, and since the 14th Amendment says that states can't abuse or violate rights, it follows that Texas should be forced by the federal government to pay for the education of illegal immigrants.

5)

In January 2010, a federal appeals court in Washington overturned a state law denying imprisoned felons the right to vote on the basis of its "disparate impact" on minorities disproportionately represented in correctional institutions.

Since people have the right to vote, and since felons are people, and since the 14th Amendment says that states can't abuse or violate rights, it follows that the State of Washington should be forced by the federal government to allow felons to vote, even while in prison (serving out their sentences).

6)

A few social conservatives now assert that the "due process" clause of the Fourteenth Amendment can be used to force states to rewrite their criminal codes to ban abortion throughout the states.

Since actual people have the right to life, and since an undifferentiated mass of budding cells is an actual person, and since the 14th Amendment says that states can't abuse or violate rights, it follows that all states should be forced by the federal government to ban abortion.

7)

The judicial alchemy seems to have caught up with the Court, as it now routinely gives what appears to be conflicting views on the issue of privacy and local law. In 2005 the justices gave the federal government the power to regulate medicinal marijuana; a year later it ruled to let the states decide on physician-assisted suicide.

Since folks have a right to not have any doctor-prescribed medicinal marijuana around, but they do have a right to physician-assisted suicide, it follows that the federal government (and not the states) should regulate medicinal marijuana, but that the states can regulate physician-assisted suicide if they wish to. This one's kind of convoluted. Maybe it's better to skip this one.

:-)

Ed

(Edited by Ed Thompson on 8/24, 8:47pm)

Post 19

Saturday, September 17, 2011 - 10:36am