Chicago Gun Case Incorporation Lawsuit

[Bartholomew Roberts]

The legislative history that I remember reading shows that the term began as "civil rights and immunties" and was changed to "privileges and immunities" to ensure that it was not construed so as to include political rights.

The Civil Rights Bill was introduced on January 5, 1866 and was drafted by a different committee than the one proposing the 14th Amendment. This original version contained the phrase "civil rights and immunities" and went on to list the right to make contracts, serve on juries, etc.

The first draft of the 14th Amendment was actually January 12th. It read:

"The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property."

On January 27, Bingham, Boutwell, and Rogers adopted this language:
"Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges."

Senator Johnson (who was also counsel for the slaveholder in Dred Scott) made a motion to strike the privileges and immunities clause and lost. Now it seems strange to me that if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act?

If there was a need to make the USBOR binding upon the States, then why didn't the 1866 Civil Rights Act do that?

Because a bill cannot change the Constitution of the United States. Only an amendment to the Constitution can do that. Given the Constitutional interpretations in Barron v. Baltimore and Dred Scott, what exactly could be done with the 1866 Civil Rights Act standing alone?

For that matter, let's look at the remarks of Sen. Howard as he introduced the 14th Amendment in the Senate on behalf of the Joint Committee:

"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 great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees" Source.

So your interpretation is that the Senator introducing the bill on behalf of the Joint House-Senate Committee was a radical minority and his statement that the object of the bill was to guarantee the personal rights secured by the first eight amendments against the states was not the prevailing view of the people who voted for it and ratified it (or of the Joint Committee that he represented?)

 

[Tom Servo]

Hugh, your arguments I've seen elsewhere seem to hinge on the idea that the 14th Amendment sounded the death knell for States' Rights. This isn't really true.

The Bill of Rights can be considered a written confirmation of the compact that exists between man and government. Those rights cannot be denied by any just government, whether Federal, State or local. The 14th was a confirmation of this.

States still have the autonomy to pursue their own diverse policies and practices; they simply are not entitled the power to infringe upon the rights of their citizens.

I simply cannot fathom your implication that the 14th was never properly ratified when ratification was unanimous by the time of Georgia's readmission to the Union.

You've done a good job of playing devil's advocate, and you've pointed me to some interesting reading, but the bulk of analysis does not agree with your conclusions.

 

[jimpeel]

I wish that people would not use the term "State's rights" as States only have powers. Only persons have rights.

The word "right" only appears once in the body of the Constitution and that reference is to persons -- authors and inventors -- not entities.

The sixteen times that the words "power" or "powers" is used is in exclusive reference to entities -- The States, Judiciary, Executive, or Congress.

Call me picky.

 

[Hugh Damright]

civil rights and immunities ... privileges and immunities

I tend to think that the primary reason for Bingham choosing the term "privileges or immunities" was because he borrowed it from Article IV. Bingham had a notion that the declaration that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States" made the USBOR binding upon the States, but failed to delegate a federal power to enforce the provision. And he was out to "fix" that.

"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution; and its use here, in connection with the remaining clause, can only be intended to enlare its signification without being sufficiently explicit to make its meaning undisputed." - Nicholson April 7, 1866 (39th Congress)

I somehow have it in my mind that the term "civil rights and immunities" was changed to "privileges and immunities" with an intent of narrowing the scope, specifically to exclude political rights. To be blunt about it, the yankee congress didn't want to force black suffrage upon their own States. That is how I'm remembering it. Regardless, my comment about the P&I was in response to an assertion that it was well understood that "privileges" means "political rights" while "immunities" means "natural rights". Who in the 39th Congress understood it that way, and on what date did they declare so? I seem to be at a loss.

What I'm thinking is that Bingham chose the term "privileges or immunites" because of Article IV, and because congress as a whole had gone with the term rather than the term "civil rights and immunities" which covered too much ground.

This other idea, where the term "privileges or immunities" was chosen with the purpose of incorporating Taney's dicta in Dred Scott about the P&I including the RKBA, seems so results oriented that it leaves me feeling uncomfortable. Did anyone in the 39th Congress say that they understood the term "privileges or immunities" to be used so that it would embrace Taney's dicta about the RKBA being part of the P&I?

Here's a question ... why was it that when the Freedmen's Bureau Bill was amended to specifically include the RKBA, it was not added to the enumeration of civil rights and immunities, but rather it was added to the equal protection clause?

if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act?

I'm not sure ... but it appears to me that Senator Johnson was opposed to the Civil Rights Act as being unconstitutional, and he did not engage in debate with the intent of rewording the amendment, but rather he simply objected to the whole thing. And then when an amendment came up, that was different, and he engaged in debate over its wording. I don't think we can say that Johnson approved of the way that the Civil Rights Act was worded just because he didn't try to get it worded differently ... I suspect that he didn't bother with how it was worded because he felt there was no way to word it properly because he thought it was unconstitutional.

[The 1866 Civil Rights Act didn't make the USBOR binding against the States] Because a bill cannot change the Constitution of the United States. Only an amendment to the Constitution can do that.

I don't seem to recall any discussion about how there was a need to make the USBOR binding upon the States but a bill cannot do such a thing. The way I understand it, the Civil Rights Act and the 14th Amendment were two approaches to the same problem ... Bingham thought that the act was unconstitutional and that was the origin of the 14th. It seems to me that the 1866 Civil Rights Act did not make the USBOR binding against the States because there was no such need or desire (except by a few radicals).

Given the Constitutional interpretations in Barron v. Baltimore and Dred Scott, what exactly could be done with the 1866 Civil Rights Act standing alone?

I'm not sure that I understand the question. The act said "That all persons born in the United States ... are hereby declared to be citizens of the United States; and such citizens ... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, [etc.]". It seems clear enough what the act did. If you're asking how the Act could have stood up to constitutional challenges, I think it could not have, and I think that was one of the reasons why the 14th was intended to make the civil rights act part of the US Constitution, to settle the question of its constitutionality.

So your interpretation is that the Senator introducing the bill on behalf of the Joint House-Senate Committee was a radical minority and his statement that the object of the bill was to guarantee the personal rights secured by the first eight amendments against the states was not the prevailing view of the people who voted for it and ratified it (or of the Joint Committee that he represented?)

Yes, that is my impression. Howard was not the Chairman who was supposed to represent the committe, but rather the Chairman was ill and Howard stepped in for him. I have read that most of the committee were conservatives (relatively speaking) and that Howard was a radical. I have read that the committee did not discuss making the USBOR binding upon the States. And after Howard gave his introduction, in which he said that the P&I should include the USBOR, person after person stood and said that the scope of the 14th was the same as that of the civil rights act.

I simply cannot fathom your implication that the 14th was never properly ratified when ratification was unanimous

I've read that the 14th was presented to Virginia for our consideration, and it got zero votes in our house, and zero votes in our senate ... the US then put Virginia under military rule and said we could have our rights back when we voted for the 14th. Virginia became "US Military District Number One". The whole South was put under military rule and divided into military districts. Let's be clear about this now ... the war was over, the States were back in the Union, the 14th was presented to us for our vote, and when the South began voting against it the whole region was put under military rule until we voted for it. There were other problems too, such as the Southern States being denied representation in the Congress.

It was given that the 14th would fail. Because it was given that the South would repeal the civil rights act, and the intent was for the 14th to make the Civil Rights Act part of the Constitution so the South couldn't repeal it. It was only a question of whether they would ratify the 14th without the Southern States or whether they would force the Southern States to ratify it against our will. They seemed to like to pretend to appear legitimate, so they went with the later method. We should not be fooled.

 

[Bartholomew Roberts]

And after Howard gave his introduction, in which he said that the P&I should include the USBOR, person after person stood and said that the scope of the 14th was the same as that of the civil rights act.

The purpose of the Civil Rights Act, as you just stated, was to make blacks citizens of the United States. Now having read the Dred Scott opinion that turned on that very issue, what would that mean for blacks? It would mean they would have the same rights... or as Justice Taney remarked in Dred Scott - "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public, and in private upon all subjects upon which its own citizens might speak; to hole public meetings upon political affairs, and to keep and carry arms where they went."

Now what types of rights does Justice Taney appear to be enumerating there?

If the scope of the Civil Rights Act was to grant these rights to blacks and the scope of the 14th is to make sure that Congress can prevent the states from infringing those rights, where is the substantial difference between incorporating the BoR against the States and whatever it is you think happened?

 

[maestro pistolero]

Bingham had a notion that the declaration that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States" made the USBOR binding upon the States, but failed to delegate a federal power to enforce the provision.

Why wouldn't the courts via the justice department enforce the provision, as they would any other provision of the BOR?

 

[Tom Servo]

I have read that the committee did not discuss making the USBOR binding upon the States. And after Howard gave his introduction, in which he said that the P&I should include the USBOR, person after person stood and said that the scope of the 14th was the same as that of the civil rights act.

Again, can you tell me who wrote this and where?

There wasn't much discussion because there wasn't much to discuss:

In fact, as Michael Kent Curtis found, no contemporary source explicitly denied the contention of Bingham and his allies that the Fourteenth Amendment would enforce the Bill of Rights against the states. Immediately after Senator Howard's speech in the Senate stating that the Bill of Rights constituted a major portion of Fourteenth Amendment privileges and immunities, the Chicago Tribune reported that the caucus of Union Republican Senators agreed to limit debate on the Fourteenth Amendment. This action was taken because the Amendment had "already [been] thoroughly discussed and understood." Likewise, Governor Reuben E. Fenton of New York urged speedy ratification of the Amendment insisting that its provisions "are understood, appreciated and approved." --Richard Aynes, On Misreading John Bingham and the Fourteenth Amendment

Regarding the perceived overlap between the 14th and the Civil Rights Act, Bingham worried that the Civil Rights Act was repealable and lacked enforcement authority. That was the point of the 14th (Timothy Farrar, Manual of the Constitution of the United States of America)

What I'm thinking is that Bingham chose the term "privileges or immunites" because of Article IV, and because congress as a whole had gone with the term rather than the term "civil rights and immunities" which covered too much ground.

They mean the same thing. Attorney General Bates, in an 1862 opinion, found:

For the Constitution speaks of citizens only, without any reference to their rank, grade, class, or to the number or magnitude of their rights, privileges and immunities--citizens simply, without and adjective to qualify, enlarge, or diminish their rights and capacities.

 

[Hugh Damright]

The Civil Rights Bill was introduced on January 5, 1866 and was drafted by a different committee than the one proposing the 14th Amendment. This original version contained the phrase "civil rights and immunities" and went on to list the right to make contracts, serve on juries, etc.

The first draft of the 14th Amendment was actually January 12th. It read:

"The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property."

On January 27, Bingham, Boutwell, and Rogers adopted this language:
"Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges."

This seems misleading to me.

On March 13th, S. No. 61 "An Act to Protect all Persons in the United States in their Civil Rights and Furnish the Means of their Vindication" was amended to remove the term "civil rights and immunities" over concern that it was too broad.

And it was later, on April 30th, that the final draft of the 14th, the one that used the term "privileges or immunities" and passed, was introduced.

Congress rejected the term "civil rights and immunities" over concern that it might be construed to include the political right of suffrage, and then they accepted the 14th's term "privileges and immunities".

 

[Hugh Damright]

what types of rights does Justice Taney appear to be enumerating?

Honestly? It appears to me that Taney was enumerating rights that were perceived as dangerous for negroes to have. It appears to have been a rant. Does it hold up to scrutiny ... is there a federally protected right for citizens of one State to form armed companies and enter another State, or was it just a rant about negroes doing something like that? And when Taney said that citizens had a right to carry arms where they went, how do we square that with the fact that the Second Amendment did not bind the States?

If the scope of the Civil Rights Act was to grant these rights to blacks and the scope of the 14th is to make sure that Congress can prevent the states from infringing those rights, where is the substantial difference between incorporating the BoR against the States and whatever you think happened?

I don't think that a Chicago handgun ban would violate the 1866 Civil Rights Act. As long as the law was not discriminatory, nor enforced in a discriminatory manner, there would be no federal jurisdiction. In contrast, incorporation is intended to increase the federal jurisdiction to an incredible degree. I think incorporation increases federal jurisdiction to such a degree that it alters the fundamental state/federal relationship and subverts our frame of government.

Why wouldn't the courts via the justice department enforce the provision, as they would any other provision of the BOR?

I think Bingham was mistaken about what the provision meant. He thought the intent was for the States to respect certain rights of their citizens, but instead the intent was for States to respect certain rights of citizens from other States ... in other words, the intent was not to define the "privileges and immunities" of Virginians, but rather the intent was to say that whatever the "privileges and immunities" are in Virginia, we must respect that citizens from other States who come to Virginia are entitled to them as well.

I will point out that Article III, Section Two of the US Constitution defines the US judicial power such that it does not extend to matters between a citizen and his State. So there was no intent to create a US judicial power where we could take our State to US court for violating our rights.

Again, can you tell me who wrote this and where?

I said that I've read that the Joint Committee that drafted the 14th didn't discuss making the USBOR binding upon the States ... I see that on page 179 of Berger's Government by Judiciary. So when Howard said that the 14th's P&I should include the USBOR, I think he was expressing a personal opinion and not speaking for the committee.

And I said that after Howard said that the 14th's P&I should include the USBOR then others said that the 14th's scope was the same as the civil rights act. Actually, now that I look, most of what I remember came before Howard's speech ... let's see ... first there was Stevens introducing debate on the 14th on May 8th:

House, May 8th - Stevens introducing debate on the 14th: "Some [say] that your Civil Rights Bill does the same thing. That is partly true, but ... it will be repealed ... this amendment once adopted cannot be annulled without two thirds of congress."

House, May 8th - Rep Garfield on the 14th: "Every gentleman knows [the civil rights bill] will cease to be a part of the law whenever the sad moment arrives when [the South regains its representation in Congress]. It is precisely for that reason that we propose [the 14th]."

House, May 8th - Rep Boyer on the 14th: "The first section embodies the principles of the civil rights bill ... it is objectionable also in its phraseology, being open to ambiguity and admitting of conflicting constructions."

House, May 8th - Rep Broomhall on the 14th: "The fact that all who will vote for [the 14th] ... voted for this proposition in another shape, in the civil rights bill ... shows that it will [pass] ... "It may be asked, why should we put a provision in the Constitution which is already contained [in the civil rights act]? [Mr. Bingham] says the act is unconstitutional ... I wish to make assurrance doubly sure ... and to prevent a mere majority from repealing the law"

Then Howard introduced the 14th on May 29th, saying that the 14th's P&I should include the USBOR, and:

House, May 29th - Rep Latham on the 14th: "the civil rights bill covers exactly the same ground as this amendment"

There wasn't much discussion because there wasn't much to discuss:

It seems to me that making the USBOR binding against the States would have been an extremely radical action, and to say that the reason it was never discussed is because there was nothing to discuss seems untenable to me. How about the impact on Northern States, might that have been something to discuss? I think it was not discussed because it was not intended. A couple of radicals said that they thought the P&I should include the USBOR. That's about all there was to it. I don't seem to be aware of any debate in the joint committe, the house, or the senate about the impact of making the USBOR binding against the States.

"Civil rights and Immunities" and "Privileges and Immunities" mean the same thing.

Maybe ... but then why did the Congress reject the phrase "civil rights and immunities" and accept the phrase "privileges and immunities".

 

[gc70]

I simply cannot fathom your implication that the 14th was never properly ratified

I have to agree with Hugh on this issue. Examination of the record of the 14th Amendment's ratification makes it difficult to conclude that ratification was in any way normal.

Tennessee was the only former Confederate state to freely ratify the 14th Amendment (July 19, 1866). Six former Confederate states (GA, LA, NC, SC, TX, VA) and two Union states (DE, KY) specifically rejected the 14th Amendment prior to March 2, 1867. With 28 of 37 states required to ratify the amendment, eight states had already rejected it, and four former Confederate states had yet to vote; the 14th Amendment was essentially dead in the normal course of the constitutional amendment process.

The Reconstruction Act, passed on March 2, 1867, placed ten "rebel states" (AL, AR, FL, GA, LA, MS, NC, SC, TX, VA) under martial law and denied them representation in Congress until the 14th Amendment was ratified.

and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when such article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress

Simply put, the Reconstruction Act forced the "rebel states" to ratify the 14th Amendment. In other circumstances under U.S. law, actions taken under duress are null and void, but not in this case.

To further pollute the ratification process, two Union states (NJ, OH) rescinded their ratification of the 14th Amendment, which Congress simply ignored.

when ratification was unanimous by the time of Georgia's readmission to the Union

Ratification of the 14th Amendment by the 37 states existing in 1866 is still not unanimous. New Jersey never re-ratified its rescinded vote and Ohio only did so in 2003. Kentucky did not originally ratify the 14th Amendment until 1976.

 

[Bartholomew Roberts]

Congress rejected the term "civil rights and immunities" over concern that it might be construed to include the political right of suffrage

Have you read the debates on Page 2767 of the 39th Congress? Howard states that suffrage should be extended to every single person who is bound by the laws, regardless of color, in the debate on the 14th Amendment. He doesn't backtrack from that point at all until Senator Johnson asks him if that means women too.. and then he starts to waffle. So if suffrage was the reason behind the language change, it seems to me that these comments would be pretty inflammatory... but in contrast, even Johnson does not challenge this and several Senators proceed to speak out in support of extending suffrage to blacks.

It seems to me that making the USBOR binding against the States would have been an extremely radical action, and to say that the reason it was never discussed is because there was nothing to discuss seems untenable to me. How about the impact on Northern States, might that have been something to discuss? I think it was not discussed because it was not intended. A couple of radicals said that they thought the P&I should include the USBOR. That's about all there was to it.

So Hugh, you are saying that making the USBOR is such a radical concept that nobody but a few radicals intended it, yet when the bill is introduced to the Senate with exactly that intent, everybody ignores that part?

Johnson, who was definitely opposed to the 14th and the Civil Rights Act, is one of the first Senators to speak after Howard. And what is the first thing he does? He brings up the suffrage issue. No discussion at all about the "eight amendments" comment. Then come comments by Senators Wade, Wilson, Clark, Fessenden, etc. You claim this is a radical view and yet when the 14th Amendment is presented with this introduction (which you also claim is a deviation from the intent of the Joint Committee), nobody comments on it?

Let me try putting this another way...

What were the state laws that infringed on a white man's rights under the first eight amendments of the Constitution at the time these debates were held? Were there any?

Stevens introduction on May 8:

"They are all asserted in some form or other, in our Declaration or organic law; but the Constitution limits only the actions of Congress and is not a limitation on the states. This amendment supplies that defect and allows Congress to correct the unjust legislation of the States, so far that the law that operates upon one man, shall operate equally upon all."

Your assertion is that the Amendment was only designed to the specific issue that Stevens addressed, that whatever law would apply to a white man would apply to a colored man as well. However, my point is that at the time, there were basically no state laws infringing on rights protected by the first eight amendments except as they related to slavery and color issues. Also, Stevens is addressing the House and attempting to secure passage of the amendment. He has slightly different political concerns than Stevens who can afford to be more candid in the Senate (and was). As such, it is understandable that many in Congress would see no significant difference between incorporating the Bill of Rights against the States and applying the Civil Rights Act against the States.

We have the explicit statement of several members of Congress that the bill is meant to incorporate the first eight amendments against the States. Yet we do not have a single comment from any member of Congress explicitly refuting or asking for clarification on this point you consider radical? That doesn't strike you as odd? They spend half a page discussing what the word "Abridged" means; but glossed right over the whole business about this will apply the first eight amendments?

 

[Tom Servo]

We have the explicit statement of several members of Congress that the bill is meant to incorporate the first eight amendments against the States. Yet we do not have a single comment from any member of Congress explicitly refuting or asking for clarification on this point you consider radical? That doesn't strike you as odd? They spend half a page discussing what the word "Abridged" means; but glossed right over the whole business about this will apply the first eight amendments?

Exactly. When I said, "there wasn't much discussion because there wasn't much to discuss," I meant that there wasn't much discussion because everyone knew the purpose and intent of the Amendment and didn't see a need to belabor the point.

Fairman's claim that Bingham was somehow pulling a fast one in regards to incorporation is a bit disengenuous considering that the drafting and ratification were regular front-page news in the New York Herald, New York Times and Philadelphia Inquirer at the time.

The legislature and general public were well aware of what was being drafted.

Congress rejected the term "civil rights and immunities" over concern that it might be construed to include the political right of suffrage

The qualifier "civil" was removed because Bingham wanted to imply the protection of pre-existing, natural political rights rather than "civil" rights, which are "granted."

Really, Berger had an axe to grind with the Warren Court, and he had an agenda before he even laid pen to paper. Broaden your source reading a bit.

 

[publius42]

I was just reading the law professors' brief, they call for overturning Slaughterhouse and its descendants and giving meaning to the privileges and immunities clause in incorporation law.

Will the court do that?

 

[Hugh Damright]

Howard states that suffrage should be extended to every single person

Some few wanted female suffrage, and a larger number wanted black suffrage. The majority wanted neither. They wanted black suffrage but only in the South. In fact, the 40th congress was elected on the "Chicago Platform" which meant this very thing. Here, I will quote the Chairman Wilson explaining that the term "civil rights and immunities" was removed to avoid any chance of it including suffrage:

March 13, 1866 (pages 1366/1377 in the Globe)

re: Amendment to S. No. 61 "An Act to Protect all Persons in the United States in their Civil RIghts and Furnish the Means of their Vindication"

Mr. Wilson reported back from the Committee with amendments, the first of which struck out the text about "civil rights or immunities" ... Wilson said that some gentlemen were apprehensive that the words might give warrant for a latitudinarian construction not intended ... Mr. Hill asked what became of the promised amendment saying that nothing in the bill should be construed to interfere with the right of suffrage in the States ... Mr. Wilson said that it was unnecessary, and explained:

"Some members of the House thought, in the general words of the first section relation to civil rights, it might be held by the courts that the right of suffrage was included in those rights. To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section. Therefore the amendment referred to by the gentleman is unnecessary."

What is the point of quoting this or that radical saying they wanted to address suffrage with the 14th when clearly the 14th did not address suffrage?

We have the explicit statement of several members of Congress that the bill is meant to incorporate the first eight amendments against the States. Yet we do not have a single comment from any member of Congress explicitly refuting

By "several members" do you mean Bingham and Howard? And Wilson? If you want the exercise, you can make a list of which members of the 39th Congress said that the P&I should include the USBOR, and I can make a list of which members said that the intent was to cover the same ground as the Civil Rights Act, and we can which list is bigger. But I think we know the answer.

So Hugh, you are saying that making the USBOR is such a radical concept that nobody but a few radicals intended it, yet when the bill is introduced to the Senate with exactly that intent, everybody ignores that part?

Yes, I think Howard's comment was ignored. I think it was understood that the intent of the bill was not to make the USBOR binding against the states.

Frankly, I am not following this reasoning ... to question if there were any laws which violated the first eight amendments except as they relate to discrimination, and to conclude that there was a need to make the USBOR binding against the States ... and to question if there was discussion over making the USBOR binding against the States, and construe that to be evidence that such was the intent. The idea seems to be that if it wasn't needed and wasn't discussed, then that proves it was intended. From what little I know about Michael Kent Curtis, this sounds like his results oriented activist "reasoning".

 

[Tom Servo]

Yes, I think Howard's comment was ignored. I think it was understood that the intent of the bill was not to make the USBOR binding against the states.

"I think, I think, I think..." Did you read, or even skim, Hardy's paper? It's in post #72. Howard's comment wasn't "casually tucked away" as Berger claimed; it was front-page news across the country.

You really need to read something other than Fairman and Berger. It's like approaching the gun-control debate citing only VPC press releases for data.

 

[Hugh Damright]

Howard's comment wasn't "casually tucked away" as Berger claimed; it was front-page news across the country.

I think the idea here is that since we can't show that Congress intended to make the USBOR binding against the States, let's try to show that it was the popular idea outside of Congress, as if newspaper headlines prove the popular sentiment, and as if the popular sentiment has any bearing on the matter.

You really need to read something other than Fairman and Berger

How many times must I say that I base my views upon the congressional debates over the reconstruction amendments? I have not even read Fairman, I have only read a little bit of Berger, I tend to use his book as an index to help me figure out what days different things were discussed in Congress, so that I might then turn to the congressional record.

I have this notion on my mind, please correct me where I'm wrong, that it was Michael Kent Curtis who saw that Johnson made some objection to the phrase "privileges and immunities" in the 14th, he then went looking for some way to construe this to his purpose, and when he found that Johnson did not object to the phrase "civil rights or immunities" in the Civil Rights Act, he concluded that Johnson must have thought that the phrase "civil rights and immunities" was acceptable and the phrase "privileges and immunities" was unacceptable ... the conclusion being that the term "privileges and immunities" was broader than "civil rights and immunities". And he said that Berger was biased for leaving out this great truth. Is that where y'all get this stuff from? The "latest activist icon" Michael Kent Curtis? I can't believe anything so obviously false and shoddy would be treated as respectable, and I kind of hope I am completely confused on this.

It seemed easy enough for me me to find how Curtis may be the biased one. It seems reasonable that Johnson didn't object to the wording of the Civil Rights Act because he was in objection to the entire act as being unconstitutional. Now really, isn't it a biased shortcut through the facts to say that if Johnson didn't object to the phrase "civil rights and immunities" in the civil rights bill, then he accepted the term? It seems like a mirage, like seeing water in the desert ... something somebody sees because they wish so hard that it was there. In other words, it's nothing but desire/bias.

Let's not be sidetracked by untenable radical activist misconstructions. The 39th Congress objected to the term "civil rights and immunities". I have shown the chairman of the committee introducing the amendment striking the term, and explaining that one purpose was to exclude suffrage. Someone asked about a promised amendment to exclude suffrage, and the response was that eliminating the term "civil rights and immunities" accomplished that same goal. Congress passed this amendment striking the term "civil rights and immunities" in the Civil Rights Act, and then they accepted the term "privileges and immunities" in the 14th. Honestly, if there is any implication to be made, I think it is that they understood the term "privileges and immunities" to have been more narrow in scope than the term "civil rights and immunities", or that they thought the term "civil rights and immunities" was vague and open to misconstructions whereas the term "privileges and immunities" had a known meaning.

What I remember is that the intent was not just to leave suffrage out of it but to leave political rights out of it. I suppose I need to support that better, but it takes time to locate all of these debates. But let me say again, this began because someone asserted that "privileges" means "political rights", and I said that the term "civil rights" was changed to "privileges" to exclude political rights. I think I have supported my assertion much better than the other person supported his. Where is the evidence that the intent was for "privileges" to mean "political rights"?

 

[Tom Servo]

I think I have supported my assertion much better than the other person supported his. Where is the evidence that the intent was for "privileges" to mean "political rights"?

The dictionary would be a good start:

Right: "In an abstract sense, justice, ethical correctness, or harmony with the rules of law or the principles of morals. In a concrete legal sense, a power, privilege, demand, or claim possessed by a particular person by virtue of law."

Right (Entitlement), noun: authority, authorization, due, fair claim, heritage, inalienable interest, ius, iusta, just claim, justification, legal claim, legal power, legal title, power, prerogative, privilege.

adj. or civ·il-rights (sĭv'əl-rīts')
Of or relating to such rights or privileges: civil rights legislation.

 

[Hugh Damright]

Something isn't adding up here ... do y'all mean to say that the 14th regards some political rights but not suffrage, or do you mean to say that it regards political rights including suffrage? I think it is clear beyond doubt that suffrage was excluded i.e. that laws saying blacks could not vote did not violate the 14th.

 

[Hugh Damright]

The dictionary would be a good start:

This seems odd ... why is it that, when questioning the meaning of the word "privileges", we would refer to the definition of the word "rights", rather than to the definition of the word in question? I notice that, if we use the dictionary link provided and refer to the definition of "privilege", it says "it is not a right".

 

[Tom Servo]

Merriam Webster in the house y'all:

priv·i·lege
Pronunciation: \ˈpriv-lij, ˈpri-və-\
Function: noun
Etymology: Middle English, from Anglo-French, from Latin privilegium law for or against a private person, from privus private + leg-, lex law

Date: 12th century: a right or immunity granted as a peculiar benefit, advantage, or favor ; especially : such a right or immunity attached specifically to a position or an office [in this case, the position of American citizenship]

I mean, it's not rocket science. I know--I've got friends who are rocket scientists. That stuff's hard. This stuff? Pretty self-explanatory.

Heck, I was a Humanities guy, and I get it.