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July 16, 2009

Comments

The incorporation doctrine is a mess with no logic behind it because incorporation was supposed to happen under the Privileges & Immunities Clause (under which the 2nd amendment would make great sense to incorporate) because that was the clause that dealt with the rights more general rights of citizens, but P&I was eviscerated early by a court that didn't want to deal with its positive implications for black people.

All that makes sense if one doesn't see the 2nd Amendment as an individual right (and I'm sympathetic with your view on this).

But once Heller is law, how can you not incorporate the 2nd Amendment?

(Incidentally, from a practical perspective, I don't understand the attraction of federalism on social issues. Wasn't such an attitude the foundation of Jim Crow? I'd love to see you defend you view on this at greater length!)

But once Heller is law, how can you not incorporate the 2nd Amendment?

Because it's not a "of the very essence of a scheme of ordered liberty" and not "fundamental to the American scheme of justice"? It doesn't seem very hard to exclude the 2nd A. under either of those phrases.

On the P&I Clause: Can someone more versed in the law than me explain to me why the Court has never revisited Slaughterhouse? There seems to be a very broad consensus, among both liberals and conservatives, that it was wrongly decided.

it is certainly true that "some of the Bill of Rights weren't really about individual rights, but were about protecting state rights against the powers of federal government".

and that's not just a "theory", much less one owned by Akil Amar: it's just spelled out verbatim in a9 and a10.

you know all that, but maybe some other readers will not.

"Because it's not a "of the very essence of a scheme of ordered liberty" and not "fundamental to the American scheme of justice"? It doesn't seem very hard to exclude the 2nd A. under either of those phrases."

But it is clearly one of the privileges and immunities of citizenship. The 2nd amendment is one of the major reasons why the South was happy to see P&I eviscerated.

Ben - I think it does turn on Heller. Now that Heller is decided, I think incorporation logically follows.

In a way, the debate about incorporating the 2nd essentially collapses into the Heller debate on individual v. collective.

So i guess when I'm saying it doesn't make sense, I'm ultimately saying that I don't think Heller makes sense.

When talking about protecting states from the power of the federal government, one has, it seems to me, to distinguish between pre-1868 and post-1868. The principles of pre-1868 federalism fell on the killing fields of Antietam, Gettysburg, Cold Harbor.

It would be nice, I suppose, if the P&I clause had been used, and I suppose it was racism that caused the Court to formulate a work-around. I don't know what all happens, though, as you try to unscramble that egg, and don't think that some kind of platonic analytical perfection is worth overturning the current applecarts. What's wrong with the status quo as far as incorporation? Nothing material, I don't think.

There are a slug of people who think Roe/Casey (for example) not just wrongly decided, but impossibly decided. Loving as well. Not only am I not in this camp, I think very little of being told that I can't possibly believe about the meaning of "liberty" what I do believe about it.

Congress already had an affirmative duty to arm the militias:

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

It seems redundant to need the 2nd amendment if it is about ensuring a State Militia.

Even Taney in Dred Scott saw the 2nd amendment as an individual right for citizens in dicta (and used the fear of armed black men as part of his reasoning that the Constitution did not provide them citizenship).

Sebastian - ah, but incorporation didn't happen under the P&I clause, so whether it's one of the priviliges and immunities is irrelevant.

Under current doctrine, a right is incorporated against the states if it is "fundamental to a scheme of ordered liberty."

That said, the (not written into the Constitution) right to control the education of your children is a fundamental right, infringements of which are subject to strict scrutiny under the fourteenth amendment. So is the right to travel between the states. There is no really articulable standard for what is "essential to the concept of ordered liberty".

But if you look at the other things which have been incorporated, to exclude the second amendment becomes very hard; is the individual right to bear arms less essential to the concept of ordered liberty than the individual right to free exercise of religion?

The 9th Circuit, I think, got this right: once the second amendment protects an individual right, it is ideologically inconsistent with the rest of due process law for that right not to be subsumed within "liberty" and incorporated against the states.

the Establishment Clause (which is analytically distinct from the Free Exercise Clause) is arguably intended to prevent Congress from imposing an established church on states. That is, it's a protection of states, not individuals. Indeed, some states maintained established churches even after the Constitution was ratified.

So while I'm not arguing that states should establish churches as a policy matter, I am saying incorporating that particular right against states doesn't make much sense. It was intended to protect the states, not apply to them.

I don't get this argument. An establishment of religion by a government must mean that non-adherents to the established religion are somehow disadvantaged. This could be in the form of having tax money go to the established church, or of being required, as a practical matter, to participate in services or prayers of the official church, or other things.

Thus, the inability of the federal government to establish a church is, or at least includes, an individual right not to be disadvantaged by the establishment of a national church. It seems to me that the 14th then incorporates this right against the states.

"Sebastian - ah, but incorporation didn't happen under the P&I clause, so whether it's one of the priviliges and immunities is irrelevant."

Didn't? So what? It is pretty clearly correct that incorporation should happen through the P&I clause. What is to stop the Supreme Court from doing so? Especially if you are asking, as publius is, whether or not certain clauses ought to be incorporated in the future.

Just because everything legal issue seems to be crammed into a rant against originalism is no reason not see that at least every now and then it sometimes has a point.

P&I was clearly the intended method for incorporation. It was historically ignored for largely racist reasons--including regarding keeping arms out of the hands of black people in the south. Even a constitutional progressive should be ok with bringing it back instead of trying to use the really convoluted and completely self-cotradictory current incorporation doctrine. Although I guess there is no reason to for a constitutional progressive. You can get apparently get everything you could possibly want out of empathy.

ohh and aphrael I drifted from your comment to publius's post without denoting it, apologizes.

CharleyCarp,

Obviously there are lots of cases that a lot of people think were wrongly decided. And there are people on the other side of most of these arguments.

But does anyone today think that the Slaughterhouse cases were correctly decided?

publius --- I'm not sure why the Second Amendment's status, as a federalism rule or an individual-right rule, matters to the Fourteenth Amendment. As I understand it (informed on this point by Akhil Reed Amar's book), the framers of the Fourteenth Amendment were much more unambiguously concerned with protecting an individual right to bear arms than the framers of the Second were.

If the framers of the Fourteenth Amendment thought the right to bear arms was a privilege or immunity of American citizenship, than why would it matter what the framers of the Second Amendment had thought?

In other words, does it make sense to imagine a court saying, "The Framers of the Fourteenth Amendment thought this right was a privilege or immunity, but our sophisticated scholarship teaches us they were wrong"? If we care at all about what the Fourteenth Amendment's framers meant, we care about the rights they meant to protect, not those rights' metaphysical source.

In understanding the establishment clause, you can't ignore the fact that the 1st amendment was ratified by more than one state which had an established church, and continued afterwards to have one. It was pretty clearly understood, at the time, to bar federal legislation on the subject of ("with respect to") establishment, either positive OR negative, leaving whether or not to have an established church entirely a state matter. Which is not to say that it doesn't make sense to incorporate the rest of the First amendment, which surely does have to do with individual rights.

Publius, we're not going to agree about the phrase, "right of the people", changing it's meaning radically from one amendment to the next, (The collective rights interpretation is historical revisionism, invented during the 20th century.) but I must salute you for at least being willing to admit the 2nd must be incorporated, given the Heller decision.

Oh, and I think it's worth noting that the Bill of Rights WERE initially incorporated by the lower courts per the P&I clause, after it's ratification, until the Supreme court over-ruled them on that. That it was supposed to result in incorporation of 1-8 was scarcely some kind of secret, finally discovered nearly 100 years later, it was rather the common understanding at the time.

The notion that the Slaughterhouse cases were wrongly decided, or racist, is almost conventional wisdom, but it has very little to do with the actual ruling in those cases (which did not directly involve race at all). The holding of the case is that the Privileges and Immunities Clause did not bar state licensing and regulation of slaughterhouses, which seesm at least to me to be an eminently sensible result.

Link to Slaughtterhouse Cases:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=83&invol=36

If had been decided the other way, the effect would have been essentially to federalize all economic regulation--which is why it surprises me to hear today's conservatives (true conservatives like Sebastian, not the authoritarians) claim that it was wrongly decided.

The law in question was not a neutral regulation of commerce, it singled out a specific group of people who were to be allowed to engage in the business in question, with everybody else prohibited from engaging in that line of business, or any of the acts incidental to it. I realize that the idea strikes modern 'liberals' as discordant, but being able to engage in commerce is a "P&I", and naming specific people who can engage in a specific form of commerce, is a violation of equal treatment under the law.

Further, the Court went out of it's way to entirely gut the 14th amendment, in the process of upholding this law, rather than ruling narrowly.

Slaughterhouse read a major clause of our most important single Amendment out of the Constitution. The privileges or immunities clause was meant to, and expected to, make the bill of rights applicable to the states. Instead, it has ended up doing almost nothing.

rea writes that the alternative would have been to federalize all economic regulation. That's certainly the choice the Slaughterhouse Court claims it faced. But the Court could have acknowledged that the Fourteenth Amendment *changed* the content of Americans' federally-protected rights, and added to the set of "privileges or immunities of citizens of the United States" by making the Bill of Rights enforceable against the states. This shouldn't be controversial. The Court eventually did it anyway, but had to rely on the far more awkward "substantive" due process doctrine.

It's not really clear what the relationship between the Fourteenth Amendment and Article IV privileges and immunities should be (because, I would argue, the Fourteenth Amendment was very badly drafted). But this problem wasn't a good reason to deprive the clause of the effect is was clearly meant to have.

Way back when I was in law school (shorty after the 14th amendment had been ratified, if memory serves -- and at my age, it usually doesn't), I thought there was a significant "wrong clause" problem. Cases asserting federal constitutional rights against the states should have been based on the P&I clause rather than the Due Process Clause.
I still think that's right, but I no longer think it would have made a difference. I doubt any case would have come out differently using P&I analysis (make shit up about the privileges and immunities of citizens) or Due Process analysis (make shit up about what's fundamental to a scheme of ordered liberty). Either way, incorporation theory would be a mess. Full-bore incorporation of the whole Bill of Rights -- which is, at least, a clean, neat theory -- would have been a non-starter because, whatever people thought in 1789, we no longer thought it important if a state uses presentments rather than grand jury indictments, and we're not going to require states to convene juries for $50 civil cases, no matter how neat and clean the theory that requires it. Selective incorporation, either of rights contained in the Bill of Rights or free-wheeling guesswork about ordered liberty, is an incoherent mess. About the only thing switching to a P&I theory would accomplish -- and this may be no small thing -- would be to inter the silly-sounding concept of "substantive due process" while we do the same thing under a different title.
Or am I too cynical?

Granted that the Slaughterhause Cases were wrongly decided.

But they were wrongly decided one hundred and thirty years ago, which means that overturning them (and abandoning the substantive due process line of cases) would unsettle a large amount of law which everyone thinks is settled. It would be, in essence, a revolution.

So I guess the question is: to what degree is it ok for the courts to correct mistakes they made four generations ago, and how much should they take into account the resulting legal uncertainty when doing so? In this case, I think the legal uncertainty cost is really high, while the benefit - making the law more theoretically sound while having a very small practical effect (because it's replacing the SDP system which has mostly gotten to the same result).

[And as a political matter I don't really trust the current court to get it right; moreover, knowing that my conservative friends don't trust a more liberal court to do it right, perhaps it's better left to the amendment process to do it. :) Although, it's not clear that such an amendment could get passed.]

rea, I think the modern objection to the Slaughterhouse Cases derives from the following explanation of the meaning of the P+I clause:

Nor did it profess to control the power of the State governments over the rights of its own citizens.

Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

The court goes on to ask:
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?

It answers those questions in the negative, while I think the modern understanding is that the answer should have been in the affirmative.

The only problem with that narative is that full bore incorporation of the whole bill of rights is, (1 through 8, anyway.) expressly, what Congress was attempting to accomplish, http://www.yale.edu/lawweb/jbalkin/conlaw/senatorhowardspeechonthefourteenthamendment.pdf>based on Congressional debate recorded in the Congressional Record.

"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to
be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury
of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments."

Which makes it kind of difficult to argue that it was a non-starter.

It seems redundant to need the 2nd amendment if it is about ensuring a State Militia.

First, there is nothing in the clause you cite preventing Congress from disbanding state militias.
Second, there is no bar against a certain amount of redundancy, partcularly when referring to two different aspects of a thing (ie first part pertaining to duties, second part pertaining to rights).
Third, that's particularly true when you consider the nature of the Bill of Rights- add after the fact as a series of protections, rather than an organic part of the original document.

That it was supposed to result in incorporation of 1-8 was scarcely some kind of secret, finally discovered nearly 100 years later, it was rather the common understanding at the time.

One lower court case, later overturned, does not make "the common understanding at the time." You are fond of taking such examples- however isolated- and making them canonical.

In understanding the establishment clause, you can't ignore the fact that the 1st amendment was ratified by more than one state which had an established church, and continued afterwards to have one.

These are also the generation that passed the Alien and Sedition Acts. Either 1)those acts are Constitutional or 2)not everything done during that period is necessarily Constitutional.
Furthermore, having an established church and voting on a 10-part bill of rights that would disband that church makes sense under several scenarios: perhaps the entirety of the bill was an acceptable compromise, or perhaps the people who established the church were not the same people voting on the amendments, or perhaps this was a covert way to disband the church without the unpopular step of doing so directly, etc.

"But they were wrongly decided one hundred and thirty years ago, which means that overturning them (and abandoning the substantive due process line of cases) would unsettle a large amount of law which everyone thinks is settled. It would be, in essence, a revolution."

In some cases for old precedent that would be true, but in this case it really isn't. It would be a mistake to call the illogical and nearly random maze of substantive due process jurisprudence anything like useful settled law.

It was pretty clearly understood, at the time, to bar federal legislation on the subject of ("with respect to") establishment, either positive OR negative, leaving whether or not to have an established church entirely a state matter.

Whence are you quoting the words "with respect to," here? That phrase does not appear in the First Amendment.

As illogical and bizarre as SDP is, we have a handle on some things which are clearly covered by it and some things which are not.

Once P&I is revived, we have no clue whatsoever what is covered by it and what is not, and we have no clue whether or not any SDP case remains good law.

Ok, "respecting", rather than "with respect to". Big dif.

Brett:
There's certainly a respectable argument -- at least I respect it -- that a large number of framers thought they thought they were incorporating all of the guarantees of the first 8 amendments in the bill of rights, quite possibly in addition to much else besides. Nobody then seems to have worked out the details carefully, though -- note that the laundry list quoted says nothing about Establishment of religion, let alone the not very important, but explicitly guaranteed, rights to grand jury indictment and jury trials in civil trials involving more than $20. Confronted with the prospect of requiring such things of the states, I suspect there would have been some backing and filling in the total incorporation (or total incorporation plus) theory. I could come up with something myself to make it work, perhaps not very convincing, if I needed it, but the current muddle does the job about as well, or as badly, as any other theory, and I doubt that a better theory would change results much.

"As illogical and bizarre as SDP is, we have a handle on some things which are clearly covered by it and some things which are not.

Once P&I is revived, we have no clue whatsoever what is covered by it and what is not, and we have no clue whether or not any SDP case remains good law."

I don't really buy it. P&I appears more inclusive than the completely scattershot substantive due process interpretations. It is difficult to think of anything that is protected by SDP that wouldn't fit easily into P&I. Now there may be rights protected under P&I that wouldn't or weren't before, but that isn't clearly a bad thing. But in any case it wouldn't be a 'revolution' in the law, as you suggested before.

Heller IS the revolution that's feared: The current selective incorporation allows this explicit right that 'liberals' typically do not approve of to be left unincorporated, while P&I incorporation pretty much makes that a non-starter.

It's all about retaining the arbitrary power to not incorporate a particular right guaranteed by the Bill of Rights.

There might be some secondary resistance by legal wonks who don't want states to have to comply with the jury requirements, but that's a second order phenomenon. It's about the guns.

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