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Tuesday, March 18, 2008

Message to Originalists and their Foes: Think 1868, not 1791

Is anyone besides myself bothered by the tendency of both originalists and anti-originalists to confuse dates when discussing the original understanding of “incorporated” rights?

It happens all the time.  In discussing whether states must maintain a wall between church and state, everyone brings up Madison’s views on Virginia’s assessments for the Anglican Church or Jefferson’s letter to the Danbury Baptists or some other event close to 1791.  In discussing whether states must not outlaw firearms, we are treated to reams of discussion concerning the historical understanding of militias in the 18th century.  And now I read Gene Volokh's query about Rothgery, in which he asks whether anyone considers the “the common law practice in the 16th and 17th centuries” when figuring out states’ duties to provide counsel to the accused. 

But all of these cases deal with state powers under the 14th Amendment, not federal powers under the Bill of Rights.  True, the latter is used as a crude sort of gloss on the former, which is said to “incorporate” the rights through the due process or privileges and immunities clause.  But it seems odd to say that a constitutional text enacted in 1868 to protect the freedmen from race riots and Black Codes incorporates not only the bare text of the Bill of Rights but also the obscure legislative history or social understandings associated with the 1791 amendments.  Why in the world would anyone think that Bingham, Howards, and the rest of the 39th Congress cared about the fine details of trial practice or militia regulation in the American colonial or Federalist period? 

The problem with such glib elision of the 14th Amendment and the Bill of Rights is that we lose our focus on the spirit and letter of the relevant history.  As Akhil Amar noted long ago, the Fourteenth Amendment is geared to address the states’ signature failing – namely, majoritarian passion, paradigmatically against the freedmen.  The Bill of Rights, by contrast, is largely geared to solving the problem of minoritarian control by “Court elites” – bureaucrats, military officers, judges, sycophants of monarchs, etc.  This difference in focus suggests that “populist” rights – the right to juries, the right to bear arms, perhaps the right against Established Churches – ought to apply in a fundamentally different way against the feds than against the states.  And figuring out what rights against the states mean by looking at 18th century Country Party rhetoric about militias, judges, counsel, and so forth is a crazy enterprise. 

Posted by Rick Hills on March 18, 2008 at 09:49 AM in Constitutional thoughts | Permalink

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Comments

"Originalism, ironically, is a modern philosophy, not one any credible legal theorist publicly espoused a century ago."

South Carolina v. United States, 199 U.S. 437, 448 (1905): "The Constitution is a written instrument. As such its meaning does not
alter. That which it meant when adopted, it means now."

Posted by: Chris | Mar 18, 2008 9:56:22 PM

Yes, and you can make the same case about immigration, as I mentioned. Those who considered it a state's right were correct from a standpoint of rational argumentation. But today that doesn't matter, does it? Ditto for claims that the 14th Amdt doesn't incorporate legislative intent into interpretations of the Bill of Rights.

Originalism, ironically, is a modern philosophy, not one any credible legal theorist publicly espoused a century ago. But those who believe it today, including those with lifetime appointments on the high court, will continue to apply that johnny-come-lately ideology to judicial decisions for quite a while to come.

I tend to agree with your rejection of originalism, but that and $2 will get you a coffee at that Starbucks and little else if you're trying to convince Justices Scalia or Thomas of your position. The political reality of today's court makes those arguments relevant, whether or not one thinks they "should" be. best,

Posted by: Gritsforbreakfast | Mar 18, 2008 8:05:23 PM

The last commentator writes:

"One presumes that in 1868, as now, courts relied upon past rulings dating back to the founding of the Republic to interpret the Constitution, and the drafters of the 14th Amendment were aware of that body of law that when 'incorporating' an extension of the Bill of Rights to the activities of the states."

Two quick points:

(1) What "body of law"? There was precious little case law interpreting the Bill of Rights before the Civil War. the reason is that the Federalists were right: The national government did not have enough powers to interfere with very many important rights. Murray's Lessee v Hoboken Land Co, 59 US 272 (1856)is the primary antebellum case interpreting the Due Process clause -- but the rest of the clauses got precious little play, because the feds simply did not legislate much. The central case enforcing the Fifth Amendment against Congress was, of course, Dred Scott -- and the Republicans had no desire to incorporate THAT particular decision into the 14th Amendment.

(2) The comment also misses my point, which is about the relevance of the legislative history of the Bill of Rights, not the relevance of the (mostly non-existent) case law. Why would anyone believe that, by incorporating language from the 1791 Bill, the 39th Congress meant to incorporate those provisions' legislative history? One might read the earlier and later provisions in pari materia, using (again, non-existent) precedents interpreting the earlier ones to construe the later text. But why in the world would one use legislative history of the 1791 amendments to construe the 1868 provision? That truly is crazy: There is not a smidgen of evidence that the sponsors of the 14th Amendment -- Bingham, Howard, etc -- knew anything whatsoever about the '91 debates.

So enough already about what the framers of the Second Amendment thought a "free state" meant in the Second Amendment: when dealing with state and local legislation, that bit of originalism is profoundly irrelevant.

Posted by: Rick Hills | Mar 18, 2008 4:45:04 PM

Rick, you write that "it seems odd to say that a constitutional text enacted in 1868 to protect the freedmen from race riots and Black Codes incorporates not only the bare text of the Bill of Rights but also the obscure legislative history or social understandings associated with the 1791 amendments."

I'm not a lawyer, but I don't understand why that seems "odd" to you. One presumes that in 1868, as now, courts relied upon past rulings dating back to the founding of the Republic to interpret the Constitution, and the drafters of the 14th Amendment were aware of that body of law that when "incorporating" an extension of the Bill of Rights to the activities of the states.

If you simply disagree that the 14th Amendment on its face does indeed "incorporate" the Bill of Rights into state responsibilities, I'm afraid history has nullified that view, whatever the merits of the legal argument.

Witness the case of immigration, which was solely a state's right until the 1870s. Even the original Reconstruction-era constitutions in the former Confederate states assigned them immigration duties. (In Texas, e.g., we had a chief immigration officer as a constitutionally designated position nearly till the turn of the 20th century.) However, you can argue till you're blue in the face that immigration is a usurped state's right (and certainly seizing that power from states had nothing to do with "protecting freedmen"), but it's just not possible to turn the clock back on that extra-constitutional alteration now - immigration will forever more be a federal prerogative, whatever "originalists" have to say about it.

Similarly, the Bill of Rights, whether as interpreted by originalists or those who believe in a "living constitution," has now and forever IMO irrevocably been applied to the states, however one reads the case law to apply it. best

Posted by: Gritsforbreakfast | Mar 18, 2008 4:31:46 PM

I was busy blathering on about the Privileges or Immunities Clause, but see here and here for a discussion of the original sense of the Equal Protection Clause--it's about the "protection of the laws," I argue, not discrimination in general.

Posted by: Chris | Mar 18, 2008 11:35:14 AM

I agree that we need more focus on the text of the Privileges or Immunities Clause, and that the Court needs to heed the Thomas-Rehnquist-Ackerman call to overrule Slaughterhouse. But I don't think we need to be so focused on either the Congressional discussions in 1866 or at the time of either the Northern-denominator enactment in 1867 or the Southern-acquiescence enactment in 1868--or, of course, on exactly what the Bill of Rights meant in 1791--though all of these are relevant considerations. I think "the privileges or immunities of citizens of the United States" refers to the privileges or immunities that (a) have, in general, traditionally been given to all citizens, or that (b) are given in general to all citizens today. Abridgement of those rights means either imposing second-class citizenship or acting significantly out of line with the American tradition of civil liberty, a la Glucksberg. See here, note 162. So I think that the Bill of Rights is generally incorporated against states, but only because it generally sets out rights that have been traditionally given to citizens. White's basic approach in Duncan is about right, I think, though not his textual tie to the due process clause.

We need to distinguish different reasons to be concerned about the resolution of particular issues in the past. One would be the Raoul Berger WWFD interpretive theory that all we need to do is answer what the Framers would do on a particular issue. I reject that theory in favor of an emphasis on historic textually-expressed sense. But I do think that history is relevant in the way I just explained--as a way to fill in what the "privileges or immunities of citizens of the United States" are. For different provisions that don't point to history, it's not relevant in the same way.

Posted by: Chris | Mar 18, 2008 11:31:08 AM

Equal protection only seems relevant if you are arguing that the size and function of the jury is an equal protection right, I would think. It might demonstrate overall intent or frame of mind, but intent != meaning.

The meaning of the privileges and immunities clause is more apt (or at least, it should be what is guiding the inquiry). The key question would be: what did people think "the privileges and immunities of citizens of the United States" were? Why they wished to protect such freedoms vis a vis state intrusion (perhaps in order to secure greater national equality) and what, specifically, they were protecting, are analytically distinct (if related) questions.

Posted by: marghlar | Mar 18, 2008 11:24:51 AM

"A meaning originalist would need some hook into the language of Am. XIV, which doesn't seem to be there."

How about: "No state shall... deny to any person within its jurisdiction the equal protection of the laws"? Or how about the phrase "Privileges or immunities of citizens of the United States" -- a phrase redolent with the Abolitionist notion of "Freedom National." Equality enforced nationally -- isn't that what the Fourteenth Amendment -- but most definitely NOT the Bill of Rights -- was all about?

Posted by: Rick Hills | Mar 18, 2008 11:16:14 AM

Rick, I think that line of argument will only be persuasive to an original intent originalist. A meaning originalist would need some hook into the language of Am. XIV, which doesn't seem to be there. The fact that they may have intended to constrain state-level majorities doesn't change the meaning of the words they wrote down.

I think a better argument would look to jury practice in the 1860s, and ask if the people in 1868 conceived of the jury right in a different way than did the original populace.

Posted by: marghlar | Mar 18, 2008 11:06:33 AM

Consider how the right to jury trial in Duncan v Louisiana was an antidote to majoritarianism. The odds of getting a black judge in Plaquemines County in the 1960s -- a county run by the notorious segregationist, Leander Perez -- was nil. The chances of getting a black juror were considerably greater.

But the right to jury trial can only perform this anti-majoritarian function if (a) the jury is large enough to represent a fair cross-section of the population and (b) minority representatives on the jury can veto guilty verdicts. That is, the jury can perform its Fourteenth Amendment function best if it contains 12 people and is unanimous. Of course, the Court has refused to require that state juries reach unanimous verdicts and contain 12 people. But Justice Powell tended to argue that the feds ought to be held to this higher standard. If I am correct about the anti-majoritarian function of the Fourteenth Amendment, Justice Powell had the analysis exactly backwards. The feds ought to be permitted to reject unanimity and 12-person juries: It is the states (with elected judges and prosecutors) that need such safeguards. Indeed, without them, "incorporating" jury rights against the states is pointless.

Posted by: Rick Hills | Mar 18, 2008 10:56:26 AM

Fascinating. Thanks.

Posted by: shg | Mar 18, 2008 10:46:42 AM

I think it depends on what, precisely, the original understanding was in 1867. It might have been to incorporate certain rights, stated in the Bill of Rights, as they understood them in 1867. Or it might have been to guarantee that U.S. citizens would have the same rights against the States as they had against the Federal Government. If the latter, than it is the original meaning in 1891 that would be relevant, I think.

Of course, it is possible (indeed, I think it is likely) that our existing evidence regarding the original understanding of the 14th Am. is insufficient to answer this question...in which case, there is a strong argument for the relevance of the applicable understanding in both periods. I doubt they will conflict as often as you seem to assume (at least if we are talking about meaning, rather than expectations as to application).

Posted by: marghlar | Mar 18, 2008 10:38:11 AM

I think that's exactly right - it's a necessary result of buying into originalism, but perhaps people shy away from concluding such because they're uncomfortable with the realization that this means that the states and the federal government may well be bound by different standards. I don't see that as problematic myself, but Bolling's mentality casts a long shadow.

Posted by: Simon Dodd | Mar 18, 2008 10:05:03 AM

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