June 14, 2004

ONE NATION, UNDER NINE . . .

We are posting something a little bit different tonight: the entirety of Justice Thomas' concurrence in Elk Grove Unified School District v. Newdow, No. 02—1624 (June 14, 2004), the Pledge of Allegiance case. Thomas' concurrence is well-written and clear. He ignores the standing issue while focussing on issues of original intent, the mess the Court has made of its First Amendment jurisprudence (Mr. Newdow, a notorious nut, understands First Amendment law perfectly) and the problem of which federal rights are incorporated in the Fourteenth Amendment so as to limit the power of the state.

Incorporation, which was unknown until the 20th century, has become the fundamental constitutional doctrine, having grown till it has swamped the limited federal system designed by the Framers of the Constitution. The Framers saw the federal government as a government of limited power. It could do only those things it was given the express authority to do. The Bill of Rights, added because the public was nervous about even so carefully constrained a national government, is mostly a limitation on the power of the federal government. In particular, the Establishment Clause ("Congress shall make no law respecting an establishment of religion") made clear that the federal government could not interfere with the state's choice as to which religion, if any, was to be its official religion.

After the Civil War, the Fourteenth Amendment was passed to ensure: the equal protection of law to all American citizens; that every citizen would receive the "privileges and immunities" of citizenship; and that, when dealing with state governments, all citizens would receive the legal process due them. In a series of decision from 1921 on, the Supreme Court has held that under the Due Process clause, many of the protections of the Bill of Rights apply to the states as well as the federal government. In particular, the Court has held on a number of occasions that the Establishment Clause, originally intended to protect the state's right to have a tax-supported church, was incorporated in the Fourteenth Amendment to forbid the state from acting in any way to favor any one religion over others, or to favor religion over the lack thereof. In this way, and on a number of fronts, the Court has remade the constitutional system to establish a national government in which the Court, itself, is the only actor from which there is no appeal.

In Newdow, Justice Thomas suggests that the Establishment Clause should not be enforced against the states, as to do so would turn it on its head. He further suggests that the state has the right to favor the notion of our being "one nation under God", and that the choice to sit silent, though admittedly difficult, is a real choice that may be imposed constitutionally. Were the Court to share Justice Thomas' view, we would see the biggest change in our constitutional scheme since the Court first imposed the incorporation doctrine upon us.

No. 02-1624

ELK GROVE UNIFIED SCHOOL DISTRICT and DAVID W. GORDON, SUPERINTENDENT, PETITIONERSv.MICHAEL A. NEWDOW et. al.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

Justice Thomas, concurring in the judgment.

We granted certiorari in this case to decide whether the Elk Grove Unified School District’s Pledge policy violates the Constitution. The answer to that question is: “no.” But in a testament to the condition of our Establishment Clause jurisprudence, the Court of Appeals reached the opposite conclusion based on a persuasive reading of our precedent, especially Lee v. Weisman, 505 U.S. 577 (1992). In my view, Lee adopted an expansive definition of “coercion” that cannot be defended however one decides the “difficult question” of “[w]hether and how th[e Establishment] Clause should constrain state action under the Fourteenth Amendment.” Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring). The difficulties with our Establishment Clause cases, however, run far deeper than Lee.1

Because I agree with The Chief Justice that respondent Newdow has standing, I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause.

In Lee, the Court held that invocations and benedictions could not, consistent with the Establishment Clause, be given at public secondary school graduations. The Court emphasized “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” 505 U.S., at 592. It brushed aside both the fact that the students were not required to attend the graduation, see id., at 586 (asserting that student “attendance and participation in” the graduation ceremony “are in a fair and real sense obligatory”), and the fact that they were not compelled, in any meaningful sense, to participate in the religious component of the graduation ceremony, see id., at 593 (“What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it”). The Court surmised that the prayer violated the Establishment Clause because a high school student could–in light of the “peer pressure” to attend graduation and “to stand as a group or, at least, maintain respectful silence during the invocation and benediction,” ibid.–have “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow,” ibid.

Adherence to Lee would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day.

Moreover, this case is more troubling than Lee with respect to both kinds of “coercion.” First, although students may feel “peer pressure” to attend their graduations, the pressure here is far less subtle: Students are actually compelled (that is, by law, and not merely “in a fair and real sense,” id., at 586) to attend school. See also School Dist. of Abington Township v. Schempp, 374 U.S. 203, 223 (1963).

Analysis of the second form of “coercion” identified in Lee is somewhat more complicated. It is true that since this Court decided West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), States cannot compel (in the traditional sense) students to pledge their allegiance. Formally, then, dissenters can refuse to pledge, and this refusal would be clear to onlookers.2 That is,students have a theoretical means of opting out of the exercise. But as Lee indicated: “Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity … .” 505 U.S., at 593—594 (citations omitted). On Lee’s reasoning, Barnette’s protection is illusory, for government officials can allow children to recite the Pledge and let peer pressure take its natural and predictable course. Further, even if we assume that sitting in respectful silence could be mistaken for assent to or participation in a graduation prayer, dissenting students graduating from high school are not “coerced” to pray. At most, they are “coerced” into possibly appearing to assent to the prayer. The “coercion” here, however, results in unwilling children actually pledging their allegiance.3

The Chief Justice would distinguish Lee by asserting “that the phrase ‘under God’ in the Pledge [does not] conver[t] its recital into a ‘religious exercise’ of the sort described in Lee.” Ante, at 14 (opinion concurring in judgment). In Barnette, the Court addressed a state law that compelled students to salute and pledge allegiance to the flag. The Court described this as “compulsion of students to declare a belief.” 319 U.S., at 631. The Pledge “require[d] affirmation of a belief and an attitude of mind.” Id., at 633. In its current form, reciting the Pledge entails pledging allegiance to “the Flag of the United States of America, and to the Republic for which it stands, one Nation under God.” 4 U.S.C. § 4. Under Barnette, pledging allegiance is “to declare a belief ” that now includes that this is “one Nation under God.” It is difficult to see how this does not entail an affirmation that God exists. Whether or not we classify affirming the existence of God as a “formal religious exercise” akin to prayer, it must present the same or similar constitutional problems

To be sure, such an affirmation is not a prayer, and I admit that this might be a significant distinction. But the Court has squarely held that the government cannot require a person to “declare his belief in God.” Torcaso v. Watkins, 367 U.S. 488, 489 (1961); id., at 495 (“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion’ ”); see also Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990) (“The government may not compel affirmation of religious belief”); Widmar v. Vincent, 454 U.S. 263, 269—270, n. 6 (1981) (rejecting attempt to distinguish worship from other forms of religious speech). And the Court has said, in my view questionably, that the Establishment Clause “prohibits government from appearing to take a position on questions of religious belief.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 594 (1989). See also Good News Club v. Milford Central School, 533 U.S. 98, 126—127 (2001) (Scalia, J., concurring).

I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided. Lee depended on a notion of “coercion” that, as I discuss below, has no basis in law or reason. The kind of coercion implicated by the Religion Clauses is that accomplished “by force of law and threat of penalty.” 505 U.S., at 640 (Scalia, J., dissenting); see id., at 640—645. Peer pressure, unpleasant as it may be, is not coercion. But rejection of Lee-style “coercion” does not suffice to settle this case. Although children are not coerced to pledge their allegiance, they are legally coerced to attend school. Cf., e.g., Schempp, supra; Engel v. Vitale, 370 U.S. 421 (1962). Because what is at issue is a state action, the question becomes whether the Pledge policy implicates a religious liberty right protected by the Fourteenth Amendment

II

I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. See Zelman, 536 U.S., at 679, and n. 4 (Thomas, J., concurring). But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause. In any case, I do not believe that the Pledge policy infringes any religious liberty right that would arise from incorporation of the Clause. Because the Pledge policy also does not infringe any free-exercise rights, I conclude that it is constitutional

A

The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” Amdt. 1. As a textual matter, this Clause probably prohibits Congress from establishing a national religion. But see P. Hamburger, Separation of Church and State 106, n. 40 (2002) (citing sources). Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause. See A. Amar, The Bill of Rights 36—39 (1998).

Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from “abridging [particular] freedom[s].” (Emphasis added.) This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. See, e.g., 2 J. Story, Commentaries on the Constitution of the United States §1873 (5th ed. 1891); see also Amar, The Bill of Rights, at 32—42; id., at 246—257. History also supports this understanding: At the founding, at least six States had established religions, see McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1990). Nor has this federalism point escaped the notice of Members of this Court. See, e.g., Zelman, supra, at 677—680 (Thomas, J., concurring); Lee, supra, at 641 (Scalia, J., dissenting).

Quite simply, the Establishment Clause is best understood as a federalism provision–it protects state establishments from federal interference but does not protect any individual right. These two features independently make incorporation of the Clause difficult to understand. The best argument in favor of incorporation would be that, by disabling Congress from establishing a national religion, the Clause protected an individual right, enforceable against the Federal Government, to be free from coercive federal establishments. Incorporation of this individual right, the argument goes, makes sense. I have alluded to this possibility before. See Zelman, supra, at 679 (Thomas, J., concurring) (“States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual liberty interest” (emphasis added)).

But even assuming that the Establishment Clause precludes the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any individual right. For the reasons discussed above, it is more likely that States and only States were the direct beneficiaries. See also Lee, supra, at 641 (Scalia, J., dissenting). Moreover, incorporation of this putative individual right leads to a peculiar outcome: It would prohibit precisely what the Establishment Clause was intended to protect–state establishments of religion. See Schempp, 374 U.S., at 310 (Stewart, J., dissenting) (noting that “the Fourteenth Amendment has somehow absorbed the Establishment Clause, although it is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy”). Nevertheless, the potential right against federal establishments is the only candidate for incorporation.

I would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the States. One observation suffices for now: As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected–state practices that pertain to “an establishment of religion.” At the very least, the burden of persuasion rests with anyone who claims that the term took on a different meaning upon incorporation. We must therefore determine whether the Pledge policy pertains to an “establishment of religion.”

B

The traditional “establishments of religion” to which the Establishment Clause is addressed necessarily involve actual legal coercion:

“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus, for example, in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches. Id., at 3—4.” Lee, 505 U.S., at 640—641 (Scalia, J., dissenting).

Even if “establishment” had a broader definition, one that included support for religion generally through taxation, the element of legal coercion (by the State) would still be present. See id., at 641.

It is also conceivable that a government could “establish” a religion by imbuing it with governmental authority, see, e.g., Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), or by “delegat[ing] its civic authority to a group chosen according to a religious criterion,” Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 698 (1994); County of Allegheny, 492 U.S., at 590—591. A religious organization that carries some measure of the authority of the State begins to look like a traditional “religious establishment,” at least when that authority can be used coercively. See also Zorach v. Clauson, 343 U.S. 306, 319 (1952) (Black, J., dissenting) (explaining that the Establishment Clause “insure[s] that no one powerful sect or combination of sects could use political or governmental power to punish dissenters whom they could not convert to their faith” (emphasis added)).

It is difficult to see how government practices that have nothing to do with creating or maintaining the sort of coercive state establishment described above implicate the possible liberty interest of being free from coercive state establishments. In addressing the constitutionality of voluntary school prayer, Justice Stewart made essentially this point, emphasizing that “we deal here not with the establishment of a state church, … but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so.” Engel, 370 U.S., at 445 (dissenting opinion).4

To be sure, I find much to commend the view that the Establishment Clause “bar[s] governmental preferences for particular religious faiths.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 856 (1995) (Thomas, J., concurring). But the position I suggest today is consistent with this. Legal compulsion is an inherent component of “preferences” in this context. James Madison’s Memorial and Remonstrance Against Religious Assessments (reprinted in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 63—72 (1947) (appendix to dissent of Rutledge, J.)), which extolled the no-preference argument, concerned coercive taxation to support an established religion, much as its title implies.5 And, although “more extreme notions of the separation of church and state [might] be attribut[able] to Madison, many of them clearly stem from ‘arguments reflecting the concepts of natural law, natural rights, and the social contract between government and a civil society,’ [R. Cord, Separation of Church and State: Historical Fact and Current Fiction 22 (1982)], rather than the principle of nonestablishment in the Constitution.” Rosenberger, supra, at 856 (Thomas, J., concurring). See also Hamburger, Separation of Church and State, at 105 (noting that Madison’s proposed language for what became the Establishment Clause did not reflect his more extreme views).

C

Through the Pledge policy, the State has not created or maintained any religious establishment, and neither has it granted government authority to an existing religion. The Pledge policy does not expose anyone to the legal coercion associated with an established religion. Further, no other free-exercise rights are at issue. It follows that religious liberty rights are not in question and that the Pledge policy fully comports with the Constitution.

Notes
1.  This is by no means a novel observation. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring) (noting that “our Establishment Clause jurisprudence is in hopeless disarray”); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398—401 (1993) (Scalia, J., concurring in judgment). We have selectively invoked particular tests, such as the “Lemon test,” Lemon v. Kurtzman, 403 U.S. 602 (1971), with predictable outcomes. See, e.g., Lamb’s Chapel, supra, at 398—401 (Scalia, J., concurring in judgment). Our jurisprudential confusion has led to results that can only be described as silly. In County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989), for example, the Court distinguished between a crèche on the one hand and an 18-foot Chanukah menorah placed near a 45-foot Christmas tree on the other. The Court held that the first display violated the Establishment Clause but that the second did not.

2.  Of course, as Lee and subsequent cases make clear, “ ‘[l]aw reaches past formalism.’ ” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 311 (2000) (quoting Lee v. Weisman, 505 U.S. 577, 595(1992)).

3.  Surely the “coercion” to pledge (where failure to do so is immediately obvious to one’s peers) is far greater than the “coercion” resulting from a student-initiated and student-led prayer at a high school football game. See Santa Fe Independent School Dist., supra.

4.  It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause, further calling into doubt the utility of incorporating the Establishment Clause. See, e.g., A. Amar, The Bill of Rights 253—254 (1998). Lee v. Weisman, 505 U.S. 577 (1992), could be thought of this way to the extent that anyone might have been “coerced” into a religious exercise. Cf. Zorach v. Clauson, 343 U.S. 306, 311 (1952) (rejecting as “obtuse reasoning” a free-exercise claim where “[n]o one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools”); ibid. (rejecting coercion-based Establishment Clause claim absent evidence that “teachers were using their office to persuade or force students to take religious instruction” (emphasis added)).

5.  Again, coercive government preferences might also implicate the Free Exercise Clause and are perhaps better analyzed in that framework.


Posted by David Cohen at June 14, 2004 9:57 PM
Comments

Incorporation was championed by Hugo Black who hoped to use it to replace substantive due process, which earlier courts had used to void economic regulation. Black wanted to protect the New Deal from the Court.

Incorporation was used by Black and his colleauges on the Warren court in the 1950's and 1960's to rewrite state criminal procedure laws and to advance the cause of civil rights.

But substantive due process was not dead it was only sleeping. It returned with Roe v Wade and has gained strength since then.

We now have the worst of both worlds. Incorporation unconstrained by any hint of a theory or link to the text of the Constitution and substantive due process completely unhinged.

Time to prorogue them, hang a few pour l'encourage les autres, and reconstruct the judicial institutions from scratch. Also some liberal law profs should do Danny Deaver to simplify the work.

Posted by: Robert Schwartz at June 15, 2004 12:55 AM

Black also championed Incorporation in order to limit the Court. The Fourteenth Amendment is a problem: it means something, but no one agrees on what. I think it should mean what it says, but that makes it entirely trivial in modern day America. Others think it is meant to allow unconstrained federal, and particularly judicial, reshaping of the states. Black hoped that Incorporation would restrict the Court's power under the Fourteenth to, at most, enforcing the rights set forth in the Bill of Rights.

Posted by: David Cohen at June 15, 2004 7:40 AM

David - I don't think that what the 14th Amendment says is trivial. It says that Congress may make laws protecting the "privileges or immunities" of citizens against the states. Justice Thomas rightly points out that the Establishment creates an immunity of states, not an immunity of citizens, and therefore it is irrelevant to the 14th Amendment; but the free exercise clause does create an immunity of citizens, and the 14th Amendment does give power to Congress to enforce that. Likewise the right to keep and bear arms, and other privileges or immunities of citizens. That's not a trivial power.

Posted by: pj at June 15, 2004 9:45 AM

PJ: Two quick responses.

One thing I meant by "trivial" is "accomplished." Equal protection and due process (properly understood) are now so much a part of our system that there is nothing left to do. One of the hardest things for government is, once its aim has been accomplished, to stop.

But, second, I disagree with that interpretation of the "privileges and immunities" clause. As your comment makes clear, the word for the rights protected by the Bill of Rights is "rights". Why would they use "privileges and immunities" to mean what everyone calls rights if rights is what they meant?

There is also an unavoidable bootstrapping quality to this argument. Before the 14th Amendment was passed, no citizen had a federal constitutional right to the free exercise of religion. Our freedom of religion was protected by the states, and the states were free (under the federal constitution) to take that right away. To say that an amendment ensuring each of us the "privileges and immunities" of federal citizenship thereby created a federal substantive right to the free exercise of religion is hocus-pokery.

Posted by: David Cohen at June 15, 2004 1:03 PM

It's unfortunate that they did, given the eagerness of modern laws to drive a truck through any verbal mouse hole, but that was common usage in the legal community in both the 18th and 19th century. In the 19th century, "privileges and immunities" was used more frequently than "rights and freedoms." And the clearly-stated intention of the authors of the 14th Amendment was simply to make Constitutional the Civil Rights Act of 1868, which made it a crime for states to violate rights and freedoms. In the debate over the 14th Amendment, they clearly identified privileges with rights and immunities with freedoms.

Your final point, contesting the jump from the text of the First Amendment (which makes citizens immune from regulation by the federal government of their exercise of religion) to a free-standing immunity from regulation of their exercise of religion by any level, is logically valid and might be the most reasonable interpretation if all one knew was the text of the Constitution. However, it runs up against several contrary indicators:
- There was a generalized understanding that rights and freedoms (or privileges and immunities) were granted by God or had their origin in natural law. As a result, the 1st Amendment was seen as recognizing the existence of a natural immunity, not as granting it. Thus, state laws violating free exercise were seen as violating immunities of citizens of the United States.
- Section 5 of the 14th gives Congress the power to make laws enforcing the prohibition of state infringements of privileges or immunities. I will agree with you if you say that, in the absence of Congressional lawmaking, there can be no incorporation by the judiciary. But I do believe that Congress has the power to pass laws which prescribe penalties (or remedies) for state violations of free exercise, and that the Courts have an obligation to enforce such laws. On this view, the 14th gives Congress the power to incorporate a freedom or right against the states. And the circumstances surrounding the 1868 Civil Rights Act and the 14th Amendment clearly indicate that its purpose was to give Congress such powers.

Posted by: pj at June 15, 2004 3:20 PM

All we know is the text of the constitution.

I am unabashedly with Scalia when it comes to legislative history. It is dangerous and useless and the only tool for determining what the text means is what it says.

This is even more true when it comes to the Constitution, which is enacted by the people, not by Congress. What the framers of the 14th Amendment thought it means (other than as expressed through the language used in the text of the amendment) is no more authoritative than what I think it means.

Posted by: David Cohen at June 15, 2004 4:31 PM

I don't think the Constitutional text is unambiguous by itself. Most scholars seem to think "original meaning originalism" is the most tenable originalist position -- i.e., how the people of the time, who ratified the Amendment, would have understood the text, is how we should understand it. I doubt they would have understood it differently from the Congressional authors.

"what I think it means" as a standard of Constitutional interpretation might leave the nine judges a lot of room for personalizing the Constitution.

Posted by: pj at June 15, 2004 5:51 PM

PJ -- One of the problems with legislative intent, even with ordinary statutes, is that legislaters speaking about the meaning of a statute are not trustworthy narrators. They make their floor statements for all sorts of reasons, including to give courts a leg up in expanding the meaning beyond the plain language.

This problem is present in spades when it comes to amendments.

I don't think that the 14th Amendment in unambiguous. That's what I meant to convey when I said "The Fourteenth Amendment is a problem: it means something, but no one agrees on what." But I simply can't believe that what it means by "privileges and immunities" is certain unspecified rights set forth in the Bill of Rights, but not others, including the creation of rights that have not heretofor existed.

Posted by: David Cohen at June 15, 2004 6:02 PM

pj:

I really do not believe your argument. I admit that my MA in American History and My Juris Doctor are getting rusty, as is my memory, but if I had to guess, I would guess that the word rights was used 50 times (Bill of Rights of 1688, Rights of an Englishman, Natural Right) for every time privileges or immunities was used.

Further. I just searched through Blackstone's Commentaries on the Laws of England, which was the basic legal text book of that era, and I just did not see any support for that claim.

My bottom line is that the purpose of the 14th Amendment was fairly simple -- it was to ensure that the former slaves were for all legal purposes treated as full citizens the same as white folks of the same age and sex. It was not intended to enact Herbert Spencer's Social Statics, Betty Friedain's Feminine Mystique, or the EU Constitution.

The First Amendment, by its terms, limits only Congress' powers. Thomas' argument proves too much. Even if incorporation is a respectable doctrine (a point which I do not conceed) it should apply only to the procedural provisions of the Bill of Rights (Amendments 4,5,6 and 8).

Posted by: Robert Schwartz at June 15, 2004 6:41 PM

Robert - Blackstone used "privileges" and "immunities" to describe various entitlements in the Magna Charta, the Petition of Right, the Habeas Corpus Act, the English Bill of Rights of 1689, and the Act of Settlement of 1701. See Commentaries 1: 127-45 and 164-5, where e.g. "privilege of speech" and "freedom of speech" are used interchangably. Hamilton refers to rights as privileges in Federalist 84. The usage was particularly frequent around the time of the Civil War. Treaties with the Sioux and other Indian tribes at the time guarantee them "all the privileges and immunities of United States citizens"; the Maryland Constitution of 1867 and the Texas Constitution of 1866 refer to "liberty of the press" as a "privilege". There are more citations in Michael Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).

Posted by: pj at June 15, 2004 11:15 PM

One other example: the Dred Scott decision declared the rights in the Bill of Rights to be "privileges of the citizen", and held that since Dred Scott was not a citizen of the United States, he was not entitled to any of the "rights, and privileges, and immunities, guarantied" in the Bill of Rights.

Getting to legislative intent, Senator Bingham, the principal author of the 14th Amendment, said:
The privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.

Senator Jacob Howard said, after quoting from the decision of Corfield v Coryell to the effect that privileges and immunities include trial by jury, life and liberty, and other traditional English common law rights:
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 amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition for the Government for a redress of grievances ...; the right to keep and bear arms; the right to be exempted from the quartering of soldiers in the house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation agaisnt him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments....

These guarantees ... stand simply as a bill of rights in the Constitution ... and States are not restrained from violating the principles embraced in them.... 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."

Now, I agree with David that any given legislator's intent is not conclusive evidence for the meaning of the text. But surely testimonies like these count for something in showing us how the amendment was understood.

Posted by: pj at June 15, 2004 11:31 PM

PJ: I do not buy it. You and Mr. Curtis have hung your hats on a two legged hat stand. I appologize if the system ate the URL for the Blackstone I consulted. So here it is in plain text:

http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm

I find your argument unpersuasive in the extreme for several reasons.

First and foremost. In the forty years that I have spent studying law, history and politcal theory I have never seen any document or text that would have given me the slightest inkling that English writers of previous eras would have used the terms right, prilege, freedom or immunity in a way that is unfamiliar to us or that would support your contention. I could not square PJ's citations to Blackstone with the online edition I consulted, but I did go through more uses of the word privledge. I did not see any that would lead me to think that Blackstone used the word in a sense unfamiliar to us.

I looked at Federalist 84 which uses privlege 4 times and right 27.

I like the reference to the Souix treaty. The P&I language is much like the language of frendship and commerce treaties among commercial nations.

Second. Incorporation is an invention of the 20th century. Two generations after the addoption of the 14th Amendment it pops up like Athena springing forth from the brow of Zeus. If it were so instinct in the text, shouldn't it have been argued from the very first?

Third. If the authors of the 14th had intended to incorporate, why didn't they just say so. The 14th is a longish amendment. One more sentence wouldn't have hurt.

Forth. Legislative history is less apposite in Constitutional Amendments than in the interpretation of ordinary legislation (where we all know it is know the hiding place of lobbyists and fraudsters). The opinion of any one legislator is only one opinion of many and that only of one of the many legislatures that must approve the amendment. The only words that have consent of all, are the words of the Amendment.

Fifth, there must be some all time irony prize for citing the Dread Scott case in an argument about the interpretation of the 14th amendment. I shall dub the prize the Robert the "Wizard" Byrd prize after the Democrat's supposed Constitutional Guru and form it in the shape of a white conical hood.

Posted by: Robert Schwartz at June 16, 2004 1:06 AM

Robert - Pagination may be off, but I searched that site for "privilege" and got 63 chapters hit, and for "immunit" and got 18 chapters hit, with most chapters containing many instances. Blackstone's discussion of the Rights of Persons begins, referring to members of parliament and the House of Lords, "Some however of the more notorious privileges of the members of either houfe are, privilege of fpeech ..."

Dred Scott may be an ironic citation for legal principles, but not for the common usage of words, which was why I cited it. Especially as the 14th Amendment was responsive to the Supreme Court and intended to overturn Dred among others, it should be no surprise that its authors used the language of the Supreme Court in refuting their rulings.

As for the law, I'll just note that Clarence Thomas agrees with me.

Posted by: pj at June 16, 2004 7:43 AM

PJ --

Usually an argument ad thomosiana would be conclusive, but this is an exception. The Supreme Court has rejected the argument that Incorporation can be founded on the Privileges and Immunities clause. They find it in the Due Process clause, which no one believes. Thomas accepts it, at least for Free Exercise, but that has to be (a) out of respect for precedent and (b) there are some windmills that even Justice Thomas won't tilt at.

Posted by: David Cohen at June 16, 2004 8:55 AM

David - The Supreme Court didn't find it in the privileges or immunities clause because of their anti-textualism. Let the textualist camel's nose under the tent and there's no keeping out an inquiry as to why our profoundly conservative Constitution -- which names many economic, religious, and gun-related liberties -- should continue to be ignored. For they can't deny that those liberties are privileges or immunities as those terms were historically understood.

Thomas is trying to resurrect textualism by locating incorporation in the privileges or immunities clause. As that was the intention of the framers of the 14th, he has a real chance of succeeding in the long run. He is only beginning a chain of dissents on this issue that will culminate, 30 years from now, in his triumph.

Posted by: pj at June 16, 2004 12:50 PM

PJ: Except its not textual.

Also, the anti-Incorporation court, from the Civil War till 1921, was also the court most interested in protecting economic rights.

Posted by: David Cohen at June 16, 2004 1:25 PM

The court between 1865 and 1921 was very inconsistent in protecting economic rights. The economic rights of blacks got quashed. The Slaughterhouse Cases let the State of Louisiana put every butcher in the southern part of the state out of business in order to give a monopoly to a group that had bribed the legislature. True, there was a period of support for economic rights epitomized by Lochner, but the votes were always close, and I would be surprised if the judges who supported economic rights were also the anti-Incorporationalists. But I must confess my ignorance on that question.

Posted by: pj at June 16, 2004 3:22 PM

PJ: I found the same references you did and I was not impressed. I think that the words have different meanings and different contexts and the angles could have a barn dance in there.


I give up. If you can get incorporation out of the text of the privledges and immunities clause, you can get the right of privacy, which mostly includes things that happen in publicly financed hospitals in front of complete strangers, out of the penumbras and emanations.

If you want to be a textualist, be a textualist. But you will have to grapple with the text. The text says that the First Amendment is a series of limitations on the powers of Congress. There is nothing in the text about it limiting the powers of the states mutasis mutandis and the P&I clause. will not get you there.

Posted by: Robert Schwartz at June 16, 2004 8:55 PM
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