9 Incorporation

The U.S. Constitution: Incorporation or Usurpation?  Part 9: A Critique of Gary North’s Anti-Constitutionalism

By Vern Crisler

Copyright, 2007, 2012

Rough Draft

1.  The ancien Constitution 

2.  Before the Fourteenth Amendment

3.  After the Fourteenth Amendment

4.  Slaughter-House Cases

5.  Maxwell v. Dow

6.  Gitlow v. New York

7.  Everson v. Board of Education

8.  Conclusion

1.  The ancien Constitution

On a national news program, a commentator was criticizing a certain American bank for offering credit cards to illegal aliens, and he highlighted the power of “We the People” in the U.S. Constitution.  It was the people who could bring pressure to bear on the bank to cease its placing of greed over the rule of law.  In passing, because of this reliance on the power of the people, the commentator remarked that in his opinion the Constitution was “divinely inspired.”

We do not need to go quite that far in our praise of the Constitution, but some historians have not hesitated to use the term “miracle” in describing its creation.  On the other hand, there are those who blame the Constitution for all sorts of ills: slavery, racism, degradation of women, even the growth of secularism or atheism, and so on.  Gary North not only rejects the “divine inspiration” of the Constitution, or the “miracle” at Philadelphia, he also rejects the idea that the Constitution was a “Christian” document, or was influenced by Christianity.  He goes even further and ascribes the Constitution to a freemason conspiracy, citing the reverse of the Great Seal as proof.  (Conspiracy, p. 139.)  Actually, the reverse of the Great Seal is not a Masonic symbol, as even Masons admit.  For North, however, the Constitution can do no right.  If the Declaration of Independence broke covenant with the trinitarian God, and substituted Newton’s god, the Constitution broke covenant with Newton’s god and replaced him with a new deity, the People.  (Ibid., p. 258.)  North believes the fundamental flaw of the Constitution is that it had no trinitarian oath and no affirmation of the truth of the Bible  (Ibid., p. 310.)  The purpose of James Madison and the other “conspirators” was to attack the trinitarian religions of the several states.  Why?  Because as North says, “In order to break down this trinitarian monopoly the Framers had to undermine the States’ oaths.”  (Ibid., p. 111.)

In our view, James Madison’s reason for wanting toleration was about the same as Cromwell’s, whom North praises.  (Ibid., p. 195.)  Denominational diversity in Cromwell’s army, or denominational diversity in the United States, made religious intolerance nearly impossible.  Cromwell’s army was primarily made up of independents, baptists, and other dissenters, and the Protector could not in good conscience deny religious liberty to those who had sacrificed so much in the Parliamentary cause.  More than a hundred years later James Madison had seen the results of religious intolerance—baptists, who appeared thoroughly orthodox in their theology, had been imprisoned because of their differences with the majority denomination—but even so, for Madison it was not Christianity that was to be opposed, but rather the “legal establishment” of Christianity.

Madison was not satisfied with the First Amendment restriction of the power of Congress with respect to religion.  He also wanted to place into the U.S. Constitution an amendment that would have allowed selective incorporation of the Bill of Rights to the level of the States.  North is right that Madison had his eye on the States.  However, Madison did not want to apply all of the Bill of Rights to the States, just its most essential rights.  His proposed an amendment, which after some modification, read:

“No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.”  (Article the Fourteenth.)

The Constitution had already restricted the power of the States to pass certain laws (treaties with foreign governments, coining money, etc.) but Madison wanted to go further in restricting the powers of the States with respect to religion (i.e., “the rights of conscience”).  During the debates, a Mr. Tucker thought it was better to “leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much.  I therefore move, Sir, to strike out these words.”  (The Debates and Proceedings in the Congress of the United States [Annals of Congress], Joseph Gales, 1834 [1789], Vol. 1, pp. 749-56; quoted in Jim Allison, “Fourteenth Amendment: Selective Incorporation,” available on the Internet.)

Madison replied that he thought it was the most valuable amendment of the whole list of amendments, and that if there was good reason for restraining the federal government with respect to these fundamental rights, there was just as good reasons for restraining the States.  Tucker’s move was defeated, but the final amendment (ironically enough titled “the fourteenth”) was never adopted by the Congress or ratified by the States.  Though many of the founding fathers might have informally agreed with the sentiments expressed in Madison’s amendment, the concept of selective incorporation of the Bill of Rights was not formally accepted by the founding fathers.  It was in fact rejected from the start.

We would point out, however, that even if the U.S. Bill of Rights were applied to the States, this would not require the State governments to be hostile to Christianity or to public morals based on Christianity.  After all, the federal government itself was not hostile to Christianity (at least originally), and even passed legislation requiring instruction in religion, morality, and knowledge.  Moreover, as we’ve noted in earlier chapters, the U.S. Constitution did not replace the legal codes of the States, or interfere with public morality.  Thus, incorporation of the Bill of Rights to the level of the States would not in and of itself require the States to be hostile to Christianity, or to make it against the law for the States to support instruction in religion, morality, and knowledge.

Still, much of the secularization of modern society has been formally abetted by the U.S. Supreme Court, which has used the incorporation doctrine to interfere with State legal codes, and with State provisions regarding religion.  Let us therefore review the putative legitimacy of the doctrine of incorporation.

2.  Before the Fourteenth Amendment

That the Bill of Rights was never wholly or selectively incorporated at the State level was acknowledged by the U.S. Supreme Court both before and after the passage of the Reconstruction Amendments (Thirteenth through the Fifteenth).  In the case of Barron v. City of Baltimore, the court refused to accept jurisdiction of the case on the basis of a Fifth Amendment claim.  It held that the Fifth Amendment did not apply to the States, but was only a restriction on the federal government.  The decision was written by John Marshall, of judicial review fame, who said in relevant part:

“[T]he fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.  In their several constitutions, they have imposed such restrictions on their respective [State] governments, as their own wisdom suggested; such as they deemed most proper for themselves.”  (Barron v. City of Baltimore, 1833, available at FindLaw.com.)

The plaintiff had lost the value of his wharf due to certain actions of the city and had not been compensated for the loss of that value, as the Fifth Amendment seemingly required.  Marshall was responding to the plaintiff’s “incorporation” argument, where the plaintiff appealed to the Fifth Amendment as a restraint not only upon the federal government but also upon the State government.  Marshall gave the premiss for his rejection of selective incorporation:

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states….The powers they conferred on this [federal] government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the [federal] government created by the instrument.”  (Barron v. City of Baltimore, 1833.)

Thus, unless the Constitution directly or specifically addresses the power of the States, its general terms are to be construed as applying only to the national government.  (Cf., for further discussion, Tim B. Lewis, “The 14th Amendment and ‘Selective Incorporation.’”  Available on the Internet.)

Marshall also referred to the history of the Constitution, pointing out that there was a great deal of fear regarding whether the new instrument “would be exercised in a manner dangerous to liberty.”  This is why so many States offered recommendations for amending the Constitution.  “These amendments,” says Marshall, “demanded security against the apprehended encroachments of the general government—not against those of the local governments….These amendments contain no expression indicating an intention to apply them to the state governments.  This court cannot so apply them.”  (Barron v. City of Baltimore.)

3.  After the Fourteenth Amendment

Much has been written about the Reconstruction Congress, and whether they intended for the Fourteenth Amendment to apply the federal bill of rights to the States, or whether they intended to outlaw all discrimination against Africans, or whether in fact their goals were more limited in nature.  Our own view is the latter, but the discussion seems endless among legal scholars, and we can only summarize it here.

Judicial activists often fail to understand, or at least acknowledge, that the Reconstruction Congress was under some of the same constraints that the original Constitutional Convention was under.  The original framers believed that slavery was evil, but knew that very little could be done about it since the Union would not be workable without the southern States.  Also, without the southern States, the Constitution would not be ratified by the required number of States.  (The first few articles in the Federalist Papers are about the need for one Union of all States as opposed to the setting up of separate, sectional confederations.)  The Reconstruction Congress faced a similar situation in that most white Americans had a deeply-ingrained prejudice against “Negroes,” and were in no mood to give them equal social or political rights.  While the Thirteenth Amendment, which ended slavery, was nearly inevitable given the victory of the North over the South during the Civil War, the same was not true of the Fourteenth or Fifteenth Amendments.

The framers and supporters of the Fourteenth Amendment therefore had to reassure their fellow Republicans, as well as their constituents, that the goals of the Amendment were limited.  Despite some loose rhetoric from John Bingham, one of the drafters of the Fourteenth Amendment, the Amendment was passed by Congress and ratified by the States in order to constitutionalize the Civil Rights Bill of 1866, and nothing beyond that.  The “nothing-beyonders” were the ones who voted for and ratified the Fourteenth Amendment, and as Madison said, the primary interpretation of the Constitution rests with those who ratify it:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.  In that sense alone it is the legitimate Constitution.  And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”  (Letters and Other Writings of James Madison, 1865; emphasis added)

The proper interpretation of the meaning of the Constitution starts with the ratifiers, for they alone give power to what is merely a piece of paper prior to their acceptance.  In terms of Madison’s argument, the next logical choice for authorized interpretation would be with those who voted for the Constitution before sending it out for ratification.  Thus, after the views of the state ratification conventions, the views of the Congress are next in importance.  The last in importance for determining the meaning of the Constitution would be the framers of the Constitution and its Amendments.  Unfortunately, judicial activists begin with the last level of interpretation when it comes to authoritative explanations of the Reconstruction Amendments..

Justice Black, the primary source for the theory that the Bill of Rights were applied en bloc to the States by the Fourteenth Amendment, cited some of the muddled language of Bingham as his basis for the incorporation theory.  It is true that Bingham and some of his supporters claimed that the Fourteenth Amendment applied the federal Bill of Rights to the States, but neither the Congress nor the State ratification conventions understood the Amendment in this way.  If Bingham had wanted to formally apply the Bill of Rights to the States, he would have and should have placed such language in the Amendment, which he did not do.  Such a radical change in the relation of the federal government to the State governments cannot be implied, but must be stated explicitly.

Some of Bingham’s defenders, not content with characterizing Bingham’s “incorporation” language as just loose or sloppy rhetoric, argue that Bingham had a well-thought out view of the Constitution.  From this they conclude that the Fourteenth Amendment applied the federal Bill of Rights to the States.  But what are the costs to Bingham’s credibility by such an argument, not to mention the historical record of what the Congress and States thought was included in the Amendment?  Richard L. Aynes, a modern defender of Bingham, argued that Bingham had a real theory of privileges and immunities, and was not simply muddled.  In Aynes’ opinion, Bingham had a four part view consisting of a “national citizenship theory,” a “Bill of Rights” theory, a “compact” theory, and an “enforcement” theory.  It does not occur to Aynes that four different theories might suggest confusion, but let us look briefly at each.

The “national citizenship” theory is the view that Article 4, Section 2 of the Constitution protects “national” rather than “State” citizenship.  It is difficult to find such a view in the Article, since its purpose was to prevent each State from discriminating against each other’s citizens.  In other words, when these citizens traveled to other States for either temporary or permanent residence, they had to be treated the same as resident citizens, (with respect to fundamental rights).  But let us move on.  The “Bill of Rights” theory holds that the privileges and immunities of Article 4 contain the first eight amendments to the Constitution.  Bingham’s third theory is the “compact” idea, that Article 4, Section 2 applied the Bill of Rights as a compact binding on the States.  Lastly, Bingham’s “enforcement” theory therefore claims that the purpose of the Fourteenth Amendment was to enforce the Bill of Rights to the States.

The consequences of giving Bingham such a complex theory, rather than allowing for imprecise, lofty rhetoric, is that Bingham ends up appearing as a complete nincompoop with respect to Constitutional interpretation.  Aynes admits this in a roundabout way, but he buries it in a footnote.  Charles Fairman had pointed out the problem with Bingham’s notion that the Article 4 “privileges and immunities” incorporated the Bill of Rights:

“Fairman himself believed that Article IV, Section 2’s protection of privileges and immunities could not encompass the first eight amendments.  He argued that Article IV could not have included the provisions of the Bill of Rights since the Bill of Rights was adopted after the adoption of Article IV….” (Richard Aynes, “On Misreading John Bingham,” Yale Law Journal, 1993, ftn. 62.  Available on the Internet.)

Aynes makes it seem as if it were just a matter of Fairman’s opinion, when in fact it is a matter of logic.  Article 4 of the U.S. Constitution was written a couple of years before the Bill of Rights, so how could it have incorporated the Bill of Rights before the latter was even written or ratified?  Such an incorporation immediately confronts one with a metaphysical problem.  Nevertheless, Aynes attempts to salvage this viewpoint by arguing that the relevant question is the framers’ intentions,

“not whether their intent was based on a historically correct view of the Constitution.”  (Idem.)

Of course, the view was not only historically incorrect, but also logically impossible.  In order to rescue what little is left of the argument, Aynes then appeals to what “some scholars believe,” namely that the Bill of Rights affirms “preexisting rights” and that the protections in the Bill of Rights,

“could have been privileges and immunities notwithstanding the later adoption of the Bill of Rights.”  (Idem.)

Apparently, we are to believe that by way of undeclared, preexisting rights, the federal Bill of Rights was in existence before Article 4.  This is certainly having one’s activist cake and eating it too.  Finally, Aynes argues that the Bill of Rights,

“arguably expanded the content of federal privileges and immunities.”  (Idem.)

This latter point merely denies the original claim, for if the Bill of Rights “expanded” the content of the privileges and immunities clause of Article 4, it could not have been an original part of it.

Aside from Bingham, what were the views of the ratifiers of the Fourteenth Amendment?  In his review of speeches regarding the Amendment, Horace Flack pointed out:

“[T]he general opinion held in the North…was that the Amendment embodied the Civil Rights Act…There does not seem to have been any statement at all as to whether the first eight amendments were to be made applicable to the States or not, whether the privileges guaranteed by those amendments were to be considered as privileges secured by the amendment.”  (The Adoption of the Fourteenth Amendment, 1908, p. 153.)

And the reason is clear: the Fourteenth Amendment was not about changing the nature of government in some radical or transformative way, despite Bingham’s rhetoric.  It was about securing for “Negroes” the rights enumerated in the Civil Rights Act of 1866, and “nothing beyond.”  If we may be permitted, for purposes of argument, to replace the words “citizen” or “person” with the term “African,”  we will have a clearer idea as to what the Amendment was meant to accomplish.  The language does not exclude whites, but since whites already had the rights in question, it applied particularly to Africans:

“All [Africans] born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of [Africans in] the United States; nor shall any State deprive any [African] of life, liberty or property, without due process of law; nor deny to any [African] within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment, slightly glossed.)

It is more than a little obvious that the purpose of the Fourteenth Amendment was to extend rights to blacks by way of granting them citizenship in both the United States and in their respective States of residence.  The Civil Rights Act of 1866 reads:

“That there shall be no discrimination in civil rights or immunities…on account of race…but the inhabitants of every race [i.e., Africans]…shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment…and no other.”

The Civil Rights Act has enumerated rights in view, so it is reasonable to assume the Fourteenth Amendment also had in view enumerated rights.  What are these rights, these “privileges or immunities”?  In short, they are the most basic rights an individual can have.  They are limited in number only because they are so fundamental.  Such “privileges and immunities” fall under three categories, namely, life, liberty, and property.  According to Blackstone:

“[T]hese may be reduced to three principal or primary articles…I. The right of personal security [consisting] in a person’s legal and uninterrupted enjoyment of his life, his limbs…II….the personal liberty of individuals…[consisting] in the power of locomotion, or changing situations or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment, or restraint, unless y due course of law…III. The third absolute right, inherent in every Englishman…of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”  (Commentaries on the Laws of England, 1765.)

Or to put it another way, a man could not be hanged, or thrown in jail, or have his property confiscated in an arbitrary manner.  Such deprivations could only occur as part of a proper administration of justice.  These “Blackstone” rights did not encompass freedom of religion, or speech, or of the press since such rights were not the most fundamental rights.  To put it another way, God has endowed man with unalienable rights, and the most fundamental of these are life, personal liberty, and property.  As Locke would say, they are the rights that exist as part of the state of nature.  They are not, strictly speaking, political rights since they are prior to the formation of the polis.  Since the rights of nature, or natural rights, are a necessary condition for any other rights, whether political or social, a denial of natural rights is in effect a denial of all other rights.

Of course, the Constitutional protections for these natural rights only had reference to the federal government and did not extend to all rights.  Up until the 1830’s an individual sojourning in another State often had to pay taxes to support the ministers of that State’s established denomination (e.g., Congregationalism, Presbyterianism, etc.).  The protection for religion was a restriction on Congress, not on the States.  Other rights that are not fundamental would include rights to fish or hunt, or to conduct certain types of business, or to pay in-state tuition prior to meeting a residency requirement.   Neither political or social rights would be the privileges or immunities protected by Article Four, or by the Fourteenth Amendment, because they are not the fundamental rights.

The problem situation giving rise to the Civil Rights Bill and to the Fourteenth Amendment was that many States had passed Black Codes which prohibited Africans from entering into the States, or prohibited them from becoming preachers, or from teaching slaves.  State laws often failed to protect Africans from violence, and had the effect of reducing Africans very nearly to their former condition of slavery.  The Fourteenth Amendment privileges and immunities clause, as well as the due process and equal protection clauses, had as their goal, to see that Africans were treated the same as white men with respect to fundamental rights.

We must remember that the Reconstruction Congress was not made up of Martin Luther King Jr.’s, nor LBJ’s, nor 1960’s liberals.  The Congress was made up of men ahead of their times, to be sure, but also men of their own times, and this necessarily limited the goals of the Fourteenth Amendment.  Failing to see the forest for the trees, or failing to grasp the big picture, judicial activists ignore the implications of history.  For instance, their theory of incorporation cannot account for the need for the Fifteenth Amendment, as well as why the Reconstruction Congress approved of segregated schools even after the passage of the Fourteenth Amendment.  They fail to see that the aims of the Fourteenth Amendment were limited.  It was not a “vertical” or radical change in the Constitution, nor of the relation between the national and state governments, but was a “horizontal” change.  And this is really all that could be expected at the time.

It might be somewhat painful to discover that even horizontal change was limited, and would require later Amendments to undo such limits, e.g., granting the right to vote to African men, and later granting the right to vote to women and much later to eighteen year olds.  This failure to acknowledge the limited objectives of the Fourteenth Amendment, despite plenty of evidence supporting such limitations, allows the judicial activists to substitute government by judicial decree in place of government by the people through their elected representatives

Note: For an extended and exhaustive treatment of these issues, see Raoul Berger’s tour de force against judicial activism, Government by Judiciary: The Transformation of the Fourteenth Amendment., revised 2nd ed. 1997, [1977].  Available in full on the Internet.  The discussion above is based in large part on Berger’s arguments and citations of Reconstruction congressmen.)

4.  Slaughter-House Cases

Judicial activists, under the impression that the Fourteenth Amendment had expansive objectives, or made revolutionary changes in government, are surprised¾perhaps even shocked¾by the judicial decisions that followed the Fourteenth Amendment.  Nevertheless, if one acknowledges the historical record that the goals of the Fourteenth Amendment were limited, there is nothing surprising at all in the subsequent U.S. Supreme Court decisions.  The first one we should  consider is the famous decision in the Slaughter-House Cases, which attracts the ire of both liberals and libertarians alike.

These cases involved a State’s grant of a privilege to a livestock-landing and slaughter-house company.  Concerned about the pollution to the city of New Orleans by unregulated butchers and slaughterhouses, the State of Louisiana required all butchers to land their livestock, and do their butchery work, at one location.  They were required to pay rents and fees for the use of the slaughterhouse and landing services, the rates set by the legislature.  No one could be refused a place at the slaughterhouse on pain of a heavy fine to the central company.

It is easy to see why libertarian purists would have trouble with the decision.  Most libertarians dislike state interference with an economy, and the decision in the Slaughter-House Cases upheld the right of the States to regulate business, especially with respect to environmental or health concerns.  Chancellor Kent was quoted to the effect that:

“Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of [gun] powder, the application of steam power to propel cars [trains], the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors: and that private interests must be made subservient to the general interests of the community.”  (Slaughter-House Cases, 1872.  Available at Findlaw.com.)

Such regulation of business is known as the “police power” and every State has this administrative power to regulate business for ameliorative purposes within its own boundaries.  The decision cited Gibbons v. Ogden, wherein famous Chief Justice John Marshall upheld inspection laws passed by the States¾based upon the right of States to enforce quarantine laws, health laws, internal commerce laws, and so on.  Libertarians, of course, hate all such state interference, so are motivated to disparage Justice Miller’s decision in the Slaughter-House Cases.

After deciding that the State of Louisiana had the right to pass environmental regulation without constraint by Congress, Justice Miller took up the question of the Fourteenth Amendment.  He first of all establishes the historical matrix in which the Reconstruction Amendments were passed.  Very clearly, their main purpose was the protection of the rights of former African slaves.  The Civil War had provided emancipation to the slaves, and the Thirteenth Amendment enlarged the scope, and constitutionalized, this emancipation.  Unfortunately, however, various black codes passed by the States were virtually undermining this emancipation.  As Miller said:

“Among the first acts of legislation adopted by several of the States…were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value….They were in some States forbidden to appear in the towns in any other character than menial servants.  They were required to reside on and cultivate the soil without the right to purchase or own it.  They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party.”  (Slaughter-House Cases.) 

Given this background, Congress felt something more was necessary than emancipation.  So the Fourteenth Amendment was passed, and Congress would not allow any of the insurrectionary States to regain representation until their legislatures ratified the new Amendment.  The Fifteenth Amendment was also passed, giving the right to vote without respect to race or color or whether one had previously been a slave or servant.  According to Miller, the “one pervading purpose” found in all three Amendments, was the freedom, security, and protection of the former slaves.  (To be sure, all men were included within the protection of these Amendments, but the immediate beneficiaries were the newly freed slaves.)

The Dred Scott case had said that Africans, whether slave or free, were not citizens of either a State or of the United States.  Thus, Africans, short of a constitutional amendment, were forever barred (seemingly) from enjoying the rights of citizens.  The first clause of the Fourteenth Amendment was meant to remedy this result:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The phrase “all persons born” etc., is meant to include Africans.  Africans would now share the same dual citizenship enjoyed by whites—they were citizens of their respective States, and also of the United States.  Everyone is a citizen of the United States if they are born here—excluding the children of foreign diplomats, etc.—but citizenship in a State normally involves a residency requirement.  Still, the conferring of dual citizenship on blacks is what overturned Dred Scott, and granted fundamental rights to the former slaves.  The next clause says:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

What are “privileges or immunities”?  These were taken from the old Articles of Confederation and incorporated into the new Constitution.  The recognition by States of such privileges or immunities was meant to secure and perpetuate mutual friendship among the peoples of the different States.  The States were not to discriminate against each other’s citizens in respect of basic rights, such as freedom to travel to and from each State, freedom of trade and commerce, and equality in terms of taxation, or other impositions.  Miller cites Corfield v. Coryell (1823) as providing a definition of these privileges and immunities.  Justice Washington in that case spoke ala Blackstone of “confining” them to fundamental rights, which are:

“[P]rotection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety….”  (Corfield v. Coryell.)

Justice Miller then points out that the purpose of Article 4, Section 2 of the Constitution was to “declare to the several States, that whatever those rights, as you grant…to your own citizens…the same…shall be the measure of the rights of citizens of other States within your jurisdiction.”  (Slaughter-House Cases.)  The Article was therefore something of an interstate rule of comity.  The federal government did not create these fundament rights, nor was given the role of protecting these rights, unless specifically required to by the Constitution.  The clause of Article 4, Section 2, says:

“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

This did not mean that one State’s laws followed the traveler to a different State, as if the destination State had to protect just any right a citizen enjoyed in his home State.  As an example, if someone settled in a destination State that required taxes to support the Congregationalist clergy, he could not appeal to his home State’s laws giving such taxes to the Presbyterian ministry.  The Article would not have allowed this as a way of exempting the new citizen from paying tax for the support of the church of the destination State.  (Recall that the wall of separation only applied to the national government, not to State governments.)  The rights that were protected, and that were common to all the different states, were only the fundamental or basic rights, not a more expansive list of rights.  Travelers were entitled to protection only with respect to these bedrock rights, not with respect to other rights that the States might have granted (e.g., freedom of speech, freedom to fish in the rivers and lakes of the destination State, etc.)

Justice Miller seems to regard the meaning of Article 4 as an equal protection rule, as if it were up to the States to decide for themselves whether they would protect privileges and immunities, and once those rights were decided upon, apply those rights equally to citizen and sojourner alike.  With respect to Article 4, Miller says,

“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.”  (Slaughter-House Cases; emphasis added.)

While we agree that the States are certainly required to enforce privileges and immunities equally between citizen and sojourner, we do not agree that the Constitution leaves it up to the States to decide for themselves whether to protect those fundamental rights.  These rights, after all, transcend any State’s positive laws or bills of rights or constitutions.  This is why they are common to all the several States, precisely because they are human rights, the most elemental rights one can have.  As Locke would say, these are rights that men have even in the state of nature:

“Man being born…with a title to perfect freedom, and an uncontrolled enjoyment of all the rights and privileges of the law of nature, equally with any other man…has by nature a power, not only to preserve his property, that is, his life, liberty, and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others…even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it.”  (Two Treatises of Government, II:87.)

So fundamental are they that Locke does not hesitate in applying these rights to foreigners.  (Ibid., II: 122.)  These natural rights were enshrined in the Declaration of Independence.  Moreover, these rights are so essential that men may lawfully take up arms in their defense in the state of nature.  Men only enter the state of society in order to better secure these fundamental rights, not to give them away.  Justice Miller is correct that these rights do not depend on the federal government for their existence, but we would add that they likewise do not depend upon the several States for their existence.  Their existence is a natural right, a right given by God, and the States must protect these basic and common rights whether they want to or not.  If they do not, they face revolution¾a return to the state of nature¾where citizens may judge of, and punish, the breaches of those rights.

Of course, Justice Miller may not have meant to give Article 4 such a restricted interpretation, that it only involved equal protection, leaving it up to the States to decide whether or not they would protect the fundamental rights of their own citizens.  A more natural reading of Article 4 is that the protection of privileges and immunities by a destination State already presupposes that such privileges and immunities are protected by the home State.  The reference to “all privileges and immunities of citizens in the several States” would lack meaning if the “several” States differed over these fundamental rights, or refused to grant them, or to protect them.  Miller did cite Paul v. Virginia, which stated that the privileges and immunities under Article 4 are those privileges and immunities that were “common to the citizens of the latter States” [i.e., the several States].  If the States could decide for themselves what constituted these privileges and immunities, how could they be “common” to the several States?  It is our opinion, despite loose language, that Miller was not trying to undermine Article 4 privileges and immunities by leaving it up to the States to decide whether to enact them or not.  His “sole purpose” language would therefore not refer to the presupposed fundamental rights, embedded in every State as a condition of their own existence, but rather to the anti-discrimination focus of the Amendment (i.e., equal protection).

Nevertheless, most critics of Justice Miller strike at a different note in his decision.  He took the distinction between State citizens and U.S. citizens in the Fourteenth Amendment as restricting the content of the privileges and immunities only to U.S. citizens, thus leaving Africans to the mercies of the States.  Some claim that this gutted the privilege and immunities clause of the Amendment.

Is this a fair interpretation of Miller’s view?  First of all, Miller’s basic argument denies that the Bill of Rights was incorporated at the State level.  Rather, it was, in effect, Africans who were incorporated into the country and States as bona fide citizens.  When the Fourteenth Amendment was ratified, its practical effect was to reclassify the former African slaves as citizens of the United States, and also of their own respective States.  State residency now meant that Article 4 privileges and immunities applied to Africans.  In addition, U.S. citizenship now meant that Africans could be protected on the high seas, or in foreign countries, or could enjoy the navigable waters of the United States, and so on.  In other words, blacks were given all the basic rights that had hitherto only been applied to whites, both at the national and State level.  Thus, the Fourteenth Amendment, in a fourfold iteration, conferred citizenship on blacks, barred any State from taking away their federal privileges and immunities, denied the right of any State to take away any privileges or immunities (life, liberty, and property) without due process of law, and blocked any arbitrary legal standards with respect to blacks residing in a particular State.

In Miller’s view of the Fourteenth Amendment, there is no diminution of the rights thus conferred to blacks under the Amendment.  They were granted all the fundamental rights that whites already enjoyed.  Did the Amendment, however, mean to distinguish the content of privileges and immunities into two separate jurisdictions?  Raoul Berger, a critic of judicial activism, believes that Miller’s distinction does not accord with the intent of the framers of the Fourteenth Amendment.  For instance, did the Reconstruction Congress really mean to protect blacks born in the backwoods of Georgia from depredations on the high seas?  It appears more likely that the Congress, by means of the citizenship clause, was reinforcing the already existing State guarantee of fundamental rights with a federal guarantee as well.  Again, it must be stressed that Miller was not reducing the content of privileges and immunities, but was merely dividing the locus of enforcement between the federal and State jurisdictions.  Despite disagreement on this issue, Berger holds in the main with Miller’s decision that the Fourteenth Amendment had no incorporationist intent.  Only one provision within the first Eight Amendments could be said to be incorporated by the Fourteenth Amendment—i.e., the Fifth Amendment “due process” clause.  This is restricted incorporation, not selective incorporation or en bloc incorporation.  And the reason for restricted incorporation is that the Reconstruction Congress was made up mainly of “nothing-beyonders.”  The phrase “nothing beyond” comes from Reconstruction Senator Luke P. Poland, who stated that Section 1 of the Fourteenth Amendment “secures nothing beyond what was intended by” Article 4’s privileges and immunities clause.  (Cf., Berger, Government by Judiciary, 1:3, p. 39; emphases added.) In other words, the transformative and revolutionary “beyonders” (judicial activists) did not appear on the scene until the twentieth century.

In any case, Justice Miller concluded that the State’s restraint upon the exercise of the trade of butchers in New Orleans was not a violation of the Fourteenth Amendment.  Interestingly, historians are now seeing the decision in the Slaughter-House Cases in a more favorable light.  For instance, the complaint by the butchers that the State’s law granted a monopoly to one company was hypocritical in that New Orleans’ butchers had their own informal monopoly that excluded Africans.  In addition, the pollution caused by unregulated business activity in New Orleans has been extensively documented and shows that the State law was not a matter of mere favoritism or political calculation.  (Cf., Ronald M. Labbe & Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment, and Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era, 2003.)  For a review, see:

http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/Labbe-Lurie104.htm

5.  Maxwell v. Dow

In 1900, the U.S. Supreme Court in the case of Maxwell v. Dow, denied the claim of Charles Maxwell that he was protected under the Fifth and Fourteenth Amendments from his sentencing by a State court to eighteen years for the crime of robbery.  He had argued that the jury at his trial was composed of only eight jurors rather twelve jurors as supposedly required under the Sixth Amendment.  In its decision, the Court echoed Marshall and Miller’s views on the limitations of the first ten Amendments to the federal government:

“In order to limit the powers which it was feared might be claimed or exercised by the Federal government, under the provisions of the Constitution as it was then adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states….They were intended as restrains and limitations upon the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states.”  (Maxwell v. Dow, 1900, available from FindLaw.com.)

Maxwell had argued that the State court violated his privileges and immunities as a citizen of the United States, under both the Fifth and Fourteenth Amendments, which was essentially the claim that the Fourteenth Amendment incorporated the Bill of Rights to the State level.  Such an incorporation “provided an additional security to the individual against oppression by the states themselves….”  In addition,

“It is claimed…that since the adoption of the Fourteenth Amendment the effect of the former amendments has been thereby changed and greatly enlarged.  It is now urged in substance that all the provisions contained in the first ten amendments…are by virtue of this amendment to be regarded as privileges or immunities of a citizen of the United States, and therefore the states cannot provide for any procedure in state courts which could not be allowed in a Federal court because of the limitations contained in those amendments.”  (Maxwell v. Dow, 1900.)

The Court then went through a discussion of all the cases having a bearing on the concept of “privileges and immunities”—e.g., the Slaughter-House Cases, etc.  Justice Miller’s distinction between federal and State privileges and immunities was accepted, as well as the concern to show the limited nature of the rights conferred under the Fourteenth Amendment.  The Maxwell court cited several post-Fourteenth Amendment cases, such as Walker v. Sauvinet, which held that “due process of law” does not require a jury trial at the State level.  It cited other post-Fourteenth Amendment cases that denied that the Second, Fifth, or Eighth Amendments applied to the States.  According to the Court:

“We have cited these cases for the purpose of showing that the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal government.  They were decided subsequently to the adoption of the Fourteenth Amendment….”  (Maxwell v. Dow, 1900.)

Justice Harlan dissented in this case.  He provides an early example of a justice who selectively incorporates by judicial decree certain parts of the Bill of Rights: “I should have thought it indisputable,” he says, “that when by the Fourteenth Amendment it was declared that no state should make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, the People of the United States put upon the states the same restrictions that had been imposed upon the national government in respect as well of the privileges, and immunities of citizens of the United States, as of the protection of the fundamental rights of life, liberty, and property.”  (Maxwell v. Dow, 1900.)

Harlan may be right in his interpretation of the double guarantee, but his mistake was in seeing “privileges and immunities” as not restricted to fundamental rights.  That is to say, he uses the word but doesn’t understand its meaning, that the term “fundamental” refers to basic rights, not to social or political rights.  He expands the list to include freedom of religion, for instance.  Nevertheless, while freedom of religion is an unalienable right, it is not one of the fundamental rights, those usually described as Blackstone rights.  He applies an emotional test, or what might be called a “horrible examples” argument to prove his case.  What if a State were to make Mormonism its official religion?  What if a State proposed burning at the stake, or putting out the eyes of the accused, as a proper punishment for some crimes?  In Harlan’s view, if the U.S. Bill of Rights was not incorporated by the Fourteenth Amendment, this would mean that a State could prohibit the free exercise of religion, or abridge press freedom, or suppress speech, or prevent peaceful assemblies for redressing grievances, and so on.

Historically, however, the States already had constitutions and bills of rights, and it was at their insistence that the federal Bill of Rights was placed in the U.S. Constitution.  It would therefore have made very little sense for a federal Bill of Rights to apply to the several States.  As one should never tire of pointing out, the U.S. Bill of Rights was meant to restrict the new federal government, not the States.  During the Constitutional period, the States could have set up their own religions, or could have imposed very severe penalties for crime.  In actuality, when the U.S. Constitution was ratified, many of the States already had state religions.  The States also had their own judicial systems, their own legal codes, their own punishment for crimes.  The adoption of the federal Bill of Rights did not change any of this.  Undoubtedly, hanging was the normal mode of execution for capital crimes within the States, but there is nothing in the U.S. Constitution that prevents States from adopting harsher measures if needed.  Unless the U.S. Constitution specifically refers to, or restricts State action, the Constitution and Bill of Rights applies only to the federal government.

6.  Gitlow v. New York

There is no doubt that in Gitlow v. People of the State of New York (1925), the justices of the U.S. Supreme Court approved of the view that the Fourteenth Amendment incorporated the U.S. Bill of Rights to the States.  A man named Benjamin Gitlow was tried and imprisoned for publishing Communist literature, which was deemed by the penal code of the State of New York as incitement to overthrow the government.  The question was not really free speech per se, but rather whether there had been an abuse of free speech.  Even though there was no direct or immediate incitement by the Communist literature, the Court ruled that the State did not have to wait for an immediate danger, since that could be too late.  “It was sufficient,” said the Court, “if such acts were advocated in general terms; and it was not essential that their immediate execution should have been advocated.”  (Gitlow, 1925.)

Justices Holmes and Brandeis dissented, arguing that there was no clear and present danger in this case: “If the publication of this document had been laid as an attempt to induce an uprising against government at once and not at some indefinite time in the future it would have presented a different question.”  (Gitlow,1925.)  In other words, for the dissenting justices, clear and present danger only occurred when the incitements were definite and specific.

Nevertheless, despite disagreement over what constituted clear and present danger, both sides claimed that First Amendment protection of freedom of speech and press were part of the liberties protected under the Fourteenth Amendment.  “[W]e may and do assume,” said the majority, “that freedom of speech and the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”  The minority agreed, “The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment….”  (Gitlow,1925.)

These conclusions (which were not really pertinent to the decision) were untrue both to history and law.  They failed to acknowledge the limited goals of the Reconstruction Congress, and ignored the preceding U.S. Supreme Court determinations that the Bill of Rights was not incorporated at the State level.  They also fail to understand that “fundamental” rights were different from political or social rights.

7.  Everson v. Board of Education

In 1947, Justice Hugo Black ruled in favor of allowing school boards to reimburse transportation expenses for private schools, which included Catholic schools.  While this might have seemed favorable to religion at the time, in the course of the ruling, Black used the incorporation theory of the Fourteenth Amendment to make the startling claim:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church….In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”  (Everson v. Board of Education, 1947.)

Again, at the risk of sounding like a broken record, the First Amendment applied only to the national government, and the Fourteenth Amendment did not change that.  According to the original Constitution, Congress could not make any laws favoring or discriminating against any particular denomination of Christianity, i.e., there could be favor to Christianity in general, including its moral teachings (as was the case in the Northwest Ordinance passed after the Bill of Rights), but there could be no national church (as there was in England).  Congress could provide aid to churches, or religious based organizations, as long as it did not discriminate between them.  Aid to churches, however, did not authorize exclusive aid to any one church, or create a national church by default.

Nevertheless, the States had their own established churches until the early 1830s, and were not subject to the same restrictions as the federal government.  Judicial activists believe the Fourteenth Amendment changed all of this.  In one sense, however, the issue was academic by the time of the Fourteenth Amendment, since all the States had already disestablished their churches a generation or more earlier.  Nevertheless, there is no indication that the Reconstruction Congress incorporated the First Amendment to the States, religion clause and all, and there is plenty of evidence against such a construal (such as the Blaine amendment).

Black’s claim is an example of what M. E. Bradford spoke of as “organized ignorance.”  A whole class of scholars has decided to ignore history and to replace it with their own results-oriented view of how society should work.  This has led to Supreme Court judges more interested in indulging in statesmanship than in the limited role of deciding cases based on a correct judicial philosophy.  It is indeed government by judiciary, which under any other name, is still usurpation.

8.  Conclusion

North accuses the framers of the Constitution with a coup, but if there has been any “coup” in American history, it is that which was effected by the Supreme Court in its twentieth century rulings.  Instead of chasing freemasons down the back alleys of history (Wilder’s phrase), it would be more profitable if North pursued the judicial activists down the main streets of American history.  For they have accomplished their usurpations in full view of the public.  Should Americans take up arms against an antinomian court?  Should they storm the Bastille, so to speak?  No, for such revolutionary violence would bypass the Amendment process, which is the real Revolutionary process.  As long as the Amendment process is still available to Americans as a way to change things that they do not like, they cannot appeal in Lockean fashion to heaven (i.e., violence) as a way of settling issues.

The Court, itself, however, could return to its proper role.  In order to prevent social chaos, the Court would need to send out an informal signal to the States that it will overturn its previous decisions on civil rights, etc., if and only if the States will add these protections to their constitutions (if they haven’t already).  A self-correcting Court would be better,. in our view, than a Court corrected by the people through the Amendment process, but the latter may be the only alternative if the Court continues down its misdirected path.

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