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Tuesday, July 02, 2019

Bill of Rights Equivalency

In Knick v. Township of Scott, the Supreme Court overturned one if its precedents about the manner in which property owners may bring a claim under the Taking Clause. Without addressing the merits of that decision, I want to talk about one aspect of the Court's rhetoric on the Bill of Rights.

At one point, Chief Justice Roberts criticizes the Court's prior decisions as relegating "the Takings Clause 'to the status of a poor relation' among the Bill of Rights." Later he says that the Takings Clause is being restored "to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights." At another point he says that the rule the Court adopts in his opinion "is as true for takings claims as for any other claim grounded in the Bill of Rights." And so on.

All of this assumes that the provisions of the Bill of Rights stand on an equal footing. Why is this assumption valid? As I explain in my book on the Bill of Rights, there was no such assumption when they were ratified. While Bingham did assert an equivalency for the first eight amendments with respect to incorporation, that point does not carry you too complete equivalency. It is fair to say, though, that we do tend to think of the Bill of Rights as a set with the implication that they should be treated equally. They are still not all treated equally, of course, but departures from that principle are getting harder to justify. (The incorporation of the Execessive Fines Clause this past term is another example.) That fact has important implications for Second Amendment jurisprudence, as we may see next Term.

Posted by Gerard Magliocca on July 2, 2019 at 08:59 AM | Permalink


Nice post! As per the justification, the equivalent bill of right is the right opinion.

Posted by: Linksys Error 211 | Jul 11, 2019 1:11:15 AM

Is it possible to treat people equally under the 14th amendment without also treating their rights, liberties, and privileges equally through the first ten amendments?

Wouldn't the only reason to treat an amendment unequally is so you could treat one of your fellow citizens unequally?

For instance, you'd only ignore the takings clause if you wanted to treat land-owners unequally (violating the 14th amendment's equality clause).

Posted by: Open Book, Open Life | Jul 2, 2019 12:35:11 PM

Interesting and pretty complicated here are things. But the respectable author of the post, has raised the issue of " equal footing " of rights, and why such assumption is valid. So, that case may serve as good example or illustration. why indeed:

For the dissenting opinion of Justice Kagan clearly demonstrates it:

In her view, the taking clause violation, is consolidated only when those two terms occur : The taking itself of property, and finally without just compensation. Here I quote her:

But the Takings Clause is different because it does not prohibit takings; to the contrary, it permits them provided the government gives just compensation. So
when the government “takes and pays,” it is not violating the Constitution at all.Put another way, a Takings Clause violation has two necessary elements.

End of quotation:

But this is wrong as assumption. This is because we don't deal with violations in binary terms. The government can't take any private property. This is the rule. The exemption is to take it, not only with just compensation, but with justified constitutional reason. Only then the government may take it. If it is not justified at first place. It can't take it at first place ( that is why by the way, preliminary injunction, must be available, and not only compensation after the fact).

So, the Justices ( including Kagan) bring the fourth amendment indeed as an analogy. But the fourth amendment do precisely this : dictating rule, and exemption to the rule ( means, justification ) here I quote relevant part:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...

End of quotation:

So, first the rule ( to be secure ) then the exemption ( warrants upon probable cause ). The same goes for the fifth, and every constitutional right typically. For,every constitution by nature, dictates contradicting rules or principles. So, what it is, is to draw or strike balance, in light of a given case. Every case typically, bears contradiction of constitutional principles ( public safety, right for possessing private property Vs. freedom of persons, or public needs).

So, equality is little relevant even. But rather, balance, between competing fundamental principles and values.

One by the way, may reach the ruling here:



Posted by: El roam | Jul 2, 2019 11:51:14 AM

In what sense did people not take them to be equal at ratification. I’d guess that’s it’s something like equal in importance.

I presume that the argument Roberts would use is that this is about treating them equally as constitutional provisions. I think there is a very attractive argument (especially to a textualist) that courts should offer the same procedural guarantees regarding any violation of the constitution. One might decide that substantively the right doesn’t sweep as broadly or that it doesn’t weigh as heavily against other considerations and be less inclined to deem legislation is unconstitutional or offer different remedies on those grounds. However, it’s at least prima facia attractive to think the court should at least give claimed violations of different parts of the bill of rights the same procedural status even if how inclined they are to declare something a violation or offer remedies differs.

In other words the idea would be that all the amendments in the bill of rights get equal treatment insofar as none of them are textually presented as subordinate to others but that one interprets the amendments themselves as implicitly demanding different levels of concern/scope.

Hmm, I think I’ve explained this very badly because it doesn’t make complete sense when I read it but I do think there is something worth considering about what kind of equal treatment one means.

Posted by: Peter Gerdes | Jul 2, 2019 11:43:28 AM

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