XIV Amendment and incorporation

[JohnTaylor]

Originally Posted by ole

Gentlemen:
I'm enjoying this discussion immensely. On occasion, I can even figure out what you're talking about. But that is aside from the fact that I can tell there is some truly good information going on in here and, with the help of providence and a great deal of study, one day I will figure it out. Meanwhile, keep it up. I'm convinced it is valuable. Thank you.
Ole

Ole, thanks for the kind words.
The Constitution says that "Congress shall make no law ... abridging the freedom of speech" etc.
State Constitutions of the time contained similar provisions, but the Ist Amendment applied only to the Federal Government.
The question at hand here is whether the XIV Amendment was intended to prohibit the States from doing such things as well as the Federal Government, or whether it was merely intended to protect certain rights of the newly-freed black people of the South, such as the right to sue, the right to testify in court, the right to engage in contracts, etc.
It is an important debate about the nature of our system of government.

[JohnTaylor]

Originally Posted by samgrant

Looks like you folks are way over my head, but it seems to be that the phrases in that amendment referring to "insurrection or rebellion" and "any claim for the loss or emancipation of any slave" may be of the heart of this discussion. ???

Enlighten me! (in layman's terms?)

Sam, that is probably not at the heart of the discussion.
The Bill of Rights restricts what the Federal Government can do. For example, it states that "Congress shall make no law regarding an establishment of religion." At the time of adoption of the Constitution, Christianity was the established church of Massachusetts. The people of Massachusetts wanted it that way, and the Ist Amendment did not change that. The Bill of Rights were not intended to restrict the State Governments. You should go to the State Constitutions to see how the people of that State wanted to restrict their State Government. (There are some restrictions on the State Governments in the body of the US Constitution as well, States cannot coin money or pass an ex post facto law. But that is not important for the XIV Amendment)
Basically, the question at hand is whether the XIV Amendment was intended apply the restrictions of the Bill of Rights against the States. Could Massachusetts, for example, still establish Christianity as her official state religion, after the XIV Amendment (assuming the current Massachusetts Constitution allowed it)?
This questions addresses the very federal nature of our government.

[elektratig]

This is a quickie, but let me try to tie two ideas together. First, Why on Earth did the Republicans think in 1866 that the Bill of Rights already applied to the States? Second, JT's insightful observation that maybe Mr. Barron should have gone to Maryland state court rather than to federal court.

During the pre-War period, there was a strong strain of "natural law" and "natural rights" thinking, of the sort expressed by Justice Washington in Corfield v. Coryell. Many lawyers were unaware of Barron v. Baltimore (which, again, held that the Bill of Rights did not constrain the States). If a lawyer had a few books, he was more likely to have a treatise on English common law like Blackstone than a set of United States Supreme Court decisions. And of those lawyers who were aware of Barron , many thought that rights reflected in the Bill of Rights were declarations of natural and inalienable rights that should be binding on all governments, including State governments, no matter what the Supreme Court had said.

Lawyers who took this "declaratory" view of the Bill of Rights included the lawyers who sat as judges on some State courts. The most interesting for present purposes is Georgia. In a series of rulings in the late 1840's and early 1850's, the Georgia Supreme Court held that several amendments in the Bill of Rights, including the First, Second and Fifth Amendments, were applicable to the State. Even though the Court recognized that Barron held to the contrary, and even though the Georgia Constitution did not contain corresponding provisions, the Court held that the amendments reflected and declared underlying rights that were so fundamental that it was inconceivable that citizens did not have them.

For example, in Campbell v. Georgia (1852), Chief Justice Joseph Henry Lumpkin of the Georgia Supreme Court acknowledged the existence of Barron but then turned to review various ancient landmarks, dating back to the Magna Carta, to demonstrate and illustrate the long lineage of natural rights that had been discovered and declared over the ages. The Bill of Rights, he said, was simply another step in this ongoing process. The Bill's purpose "was to declare to the world the fixed and unalterable determination of our people, that these invaluable rights . . . should never be disturbed by any government." The Bill was "our American Magna Charta."

In short, one did not have to be a nut, in the pre-War period, to believe that the provisions of the Bill of Rights already applied to the States, no matter what the Supreme Court said.

[ole]

Thanks to both of you gentlemen for the encapsulated recap. I will now set about rereading the discussion with a better understanding.

Preciate it.
Ole

[elektratig]

JT,

I can't find Judge Lumpkin's Campbell decision online, but I've located another one of his cases, Nunn v. State (1846), in which the Court applied the Second Amendment to dismiss an indictment based on a state statute that made it a crime to carry a weapon. I think you'll find it utterly shocking. Among other things, note:

- the citation of English precedents going back centuries to the "Magna Charta", and the reference to the Bill of Rights as "our own Magna Charta";

- that the judge viewed the terms "right" and "privilege" as synonymous, and the references to "citizens" as those entitled to rights and privileges ("When, I would ask, did any legislative body in the Union have the right to deny to its citizens the privilege of keeping and bearing arms in defence of themselves and their country?")

- the explicit references to rights under the First, Fourth, Fifth and Sixth Amendments as being similarly inviolable by State governments.

- the suggestion that these rights are reserved to the People rather than to the States ("Is this a right reserved to the States or to [the People] themselves?")


http://www.guncite.com/court/state/1ga243.html

[JohnTaylor]

elektratig,
Good post. Let me address the Georgia judiciary issue. A State Court declared that it considered restriction of free speech to be unconstitution, citing natural rights, and the US Constitution as supporting evidence. This is a far cry from an outside agency (the Federal Congress) declaring such to be the case. I can't speak for the thinking of the Georgia bench, but they were patently incorrect insofar as they believed that the Federal Constituition's prohibitions against restricting free speech applied to Georgia State Government laws.
The issue of what the Bill of Rights means and where they come from is as old as the Republic. If one reads the proceedings of the State Conventions of 1787-1790, it becomes clear (and I have read the proceedings of Penn., Mass., SC, Va., NY, NC, and RI). Opponents of ratification said that the lack of a Bill of Rights meant that the Federal Government could restrict free speech and do away with jury trials. Not so, countered the Federalists. The Federal government can only enact laws in pursuance of the explicitly enumerated powers delegated by the Constitution to the Federal gvoernment. Since the Federal Constitution delegated no power over free speech, a Federal law abridging it would be unthinkable, and a Bill of Rights would be unnecessary.
Of note, no one, and I mean no one, in any of the State Conventions suggested that the people of the States needed the Federal Constitution to restrict their State governments. Such an idea was completely foreign to the thinking in the State Conventions. You don't have to be a nut to believe that the people wanted the Federal Bill of Rights to restrict the powers of their State Governments, but believing such would be wrong and not supported by the evidence from the ratification debates.

[Quill]

Originally Posted by JohnTaylor

I would suggest that the proper place for Mr. Barron to bring his suit was in a Maryland State Court, under Maryland law, and the Maryland Constitution. Apparently the Federal bench agreed with that assessment. At least, the Federal bench decided that a Federal court was not the place to bring this suit.ment, as well as opponents of the amendment.

Barron won his initial suit in Baltimore County court, then lost in the Maryland Court of Appeals, before appealing to the USSC. I'd like to read the Maryland courts' decisions.

R,
Tom Q.

[elektratig]

Quill,

My hat's off to you!

[JohnTaylor]

Originally Posted by Quill

Barron won his initial suit in Baltimore County court, then lost in the Maryland Court of Appeals, before appealing to the USSC. I'd like to read the Maryland courts' decisions.

R,
Tom Q.

Tom, welcome to the board.
Good post. Then it would appear that Mr. Barron followed the correct route (the Maryland State judicial system), and appealed to the USSC in desperation.
Regardless, the Federal Bill of Rights was not intended to restrict the State governments. I feel for Mr. Barron, but once the highest Maryland court had ruled against him, going to the Federal bench was inappropiate, and probably an act of desperation. Thank God he lost there.

[JohnTaylor]

elektratig,
Interesting case. It is refreshing to see a judge citing natural law to throw out a bad (i.e. unnecessarily intrusive) law, but I would never suggest embracing some conjured-up Federal dragon to scare off a State menace to liberty. I would prefer fighting the State fights for liberty in the State systems, and fighting the Federal fights in the Federal systems. There may well be some overlap between these two jurisdictions (i.e. the privileges and immunities of Article IV), but I would construe those as narrowly as possible so as not to derange our Federal system.
Now, that is a personal opinion, and not citing anything from the record.