This is an area in which there has been a great deal of confusion, largely because few constitutional writers are familiar with how 18th-century lawyers and judges construed documents.

We can begin clearing the confusion by defining the terms. The phrase original intent usually means the subjective opinion of those who wrote the Constitution as to what a particular provision was supposed to communicate. Original intent also is called the intent of the Framers. Researchers try to deduce the original intent by examining both direct evidence (what the 55 drafters said during the Constitutional Convention), and indirect or circumstantial evidence. Examples of the latter include, among other things, what people said about the instrument during the ratification debates, the meaning of key words in common discourse and in contemporaneous dictionaries, and their meaning in legal and literary sources.

The original understanding of a constitutional provision usually refers to the subjective opinion of the 1648 state convention delegates who ratified the Constitution. Principal sources are the records of the ratifying debates. For example, if Delegate X explained a provision in the document in a particular way and no one contradicted him, then (particularly if Delegate X was a proponent) you can infer that other delegates understood the provision the same way. Indirect and circumstantial evidence for original understanding include what Framers and commentators said about the provision, as well as the meaning of the words in common discourse and in contemporaneous dictionaries and legal sources.

The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth.

Obviously, the evidence used in prove each of the three concepts overlaps. In practice, moreover, the original intent of a provision is usually the same as the original understanding or original meaning.

But differences do occur. For example, during the 1787 drafting convention, John Dickinson stated, without contradiction, that ex post facto laws were always retroactive criminal laws, and did not include retroactive civil laws. (Examples of the latter are retroactive taxes and statutes to cure defective legal proceedings.) That, apparently, formed the Framers’ original intent. But during the ratification debates, it became clear that many, perhaps most, people thought that an ex post facto law might be civil as well as criminal (original meaning). So the ratifiers worked out a deal by which the term was understood include only criminal laws. This was the original understanding.

In the event of a conflict between intent, understanding and meaning, which should control?

The key to answering that question is to answer another: “When the Constitution was adopted, what was its legal force? In other words, how would the courts of the time have interpreted it?

The Constitution is, of course, a legal document, so you can find the correct response to this question by investigating how judges, and other lawyers and public officials interpreted legal documents of the same general kind during the Founding Era. In 2005, I spent much of a sabbatical at Oxford University researching this question. I learned the following:

*    Most legal documents, including state constitutions, were interpreted according to the “intent of the makers” of the document.

*    Just as a statute was interpreted by the intent of the legislators who gave it force rather than by the intent of the legislative staffers who wrote it, the Constitution was to be interpreted by the understanding of the ratifiers who gave it force rather than the intent of the Framers who wrote it.

*    When judges and other lawyers referred to the “intent of the makers” they meant the genuine subjective intent. The subjective intent of the ratifiers is the same as original understanding.

*    Where the original understanding was not recoverable, either because the evidence was lacking or hopeless contradictory, Founding-Era courts and lawyers applied the meaning a reasonable person would have given a term—that is, original meaning.

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Thus, the original legal force of the Constitution—as it would have been applied by Founding-Era judges, lawyers, and officials—is based on the original understanding; if this is not recoverable, then you apply the original meaning. Original intent is useful only insofar as it tends to prove understanding or meaning.

More discussion on this topic appears in my book, The Original Constitution: What It Actually Said and Meant. Those who wish detailed citations and full scholarly discussion can read the article that emerged from my Oxford research: The Founders’ Hermeneutic: The Real Original Understanding of Original Intent.

The New York Times has published a widely re-printed report about the extent to which federally guaranteed and subsidized college loan programs have driven up the cost of tuition and leaving an entire generation “hobbled” by debt.

Federal promotion of student loans began as a benefit for veterans—part of the compensation authorized by the Constitution’s grant to Congress of power to “raise and support Armies” (Article I, Section 8, Clauses 12) and “provide and maintain a Navy” (I-8-13).  In the 1960s, however, Congress expanded eligibility to nearly all students. There was no real constitutional justification for such a move, although the pretextual basis is a spending power said to be found somewhere in I-8-1—a provision that, construed correctly, grants only enough spending authority to run the tax system. A fuller explanation appears in my book The Original Constitution: What It Actually Said and Meant.

The results of unrestrained federal subsidies were predictable. As federal health care involvement has done, federal college subsidies have bloated the nation’s academic establishment and, by increasing cost, have harmed those people the subsidies allegedly were designed to help. These programs also probably have hurt the economy.

To give you an idea what has happened to cost, consider Cornell Law School, where I received my law degree. When I began law study there in 1970, tuition was $3000 per year—or just under $18,000 in today’s inflated currency. (Maintaining a stable currency is another thing the federal government can’t seem to do.) Today, tuition at Cornell is over $55,000 per year. Fees and other expenses jack up the tab to nearly $75,000.

The ways some academics justify federal subsidies are intellectually shameless. For example, they point to studies showing that college-educated Americans earn more over their lives than other Americans. But they neglect to mention that college-educated Americans are initially smarter than those unable to succeed in college. Take away college and they would still outperform.

Also, it doesn’t always follow that more is better. Spending 1% of GDP on road building is better for the economy than spending nothing at all, but that doesn’t mean that it would help the economy to confiscate half of what the American people earn and blow it all on blacktop.

Government higher-ed spending is one area in which we are likely on the downside of the benefit curve. Partly this is because the federal government is encouraging some to attend college who would be better off not doing so. Partly it is because of the accompanying deterioration of academic integrity (political correctness). Partly it is because of the debt problem the feds have created.

Empirical support for the view that we are on the downside of the benefit curve comes from economist Richard Vedder in his book, Going Broke By Degree. Vedder’s statistical comparisons show that states spending less on their public universities actually enjoy better economic growth than states spending more. Now, that doesn’t mean state governments should spend nothing at all on higher ed. But it does suggest that current levels of subsidy (federal + state) are too high.

So if federal higher-education subsidies are hurting the economy and the students who were supposed to benefit, then whom are they really benefiting?

One clear answer is: “Left wing politicians and the academics who support them.”

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Non-veteran higher-education subsidies are largely pay-offs to the  academic establishment. By greatly expanding the number of workers in the famously left-of-center academic industry, left-of-center politicians expand their vote and contribution base. Academics also support leftwing politicians in indirect ways—by promoting the leftist agenda on campus, by creating “academic” programs by which students provide politicians with support, and by providing public recognition to selected politicos through honorary degrees, graduation speaking opportunities, and the like.

The American Founders would have called this “corruption,” and they were keenly aware of the potential. They had experienced it under the British constitution. They understood that corruption occurs in all governments, but they installed in the U.S. Constitution several devices to curb it. Two of these were the “general Welfare” limitation on spending and the restriction of federal power to enumerated subjects.

The current student loan mess—like the health care mess—became possible because the Supreme Court stopped enforcing those restraints.

There are “officers” of the House of Representatives and the Senate. There are “civil officers,“Officers of the United States,””officers under the United States,” and officers “under the Authority of the United States.”

Some have suggested that the terms “office” and “officer” have the same meanings throughout the document, but that view makes no sense.

For one thing, we always presume when reading a legal document—in the absence of evidence to the contrary—that variations in words communicate variations in meaning.  That suggests that these different phrases have different meanings.

Proceeding on the very reasonable theory that the Founders knew what they were doing when they wrote the document, constitutional scholar Seth Barrett Tillman has spent considerable effort reconstructing the meanings of different office/officer phrases. In addition to close reading of the text, he relies on a great deal of contemporaneous evidence. Here’s what he has learned:

* The bare term “officer” includes congressional, executive, and judicial officers, including the President, Vice President, Speaker of the House, etc. A “civil officer” is, as you might suspect, one who does not serve in the military.

* The other categories are narrower.

* “Officers of the United States” are appointed executive and judicial officers. Thus, the following are NOT “officers of”: The President, Vice President, and legislative officers like the Speaker and the Clerk of the House . One way we know this is that the President commissions “Officers of the United States,” but from the very beginning, the President has never been expected to commission himself, the Vice President, or legislative officers. Those individuals are all “officers,” but they are not  “officers of the United States.”

* The phrase “Officers under the United States” is narrower than “officers” but broader than “officers of.”  It includes “officers of,” plus appointed legislative officers, such as the secretary of the Senate. The phrase does not include those who hold elected positions.  There are several bits of Founding-Era evidence backing up this definition, including a list by Alexander Hamilton of executive and legislative “officers under.”

* “Officers of trust or profit under the United States” encompasses the same group as “officers under.”

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* The phrase “Officers under the Authority of the United States” encompasses “officers under” plus people outside of the regular federal government establishment, but under still under authority — such as the federalized militia, holders of letters of marque and reprisal, and officers of federal trusts/corporations.

(For these distinctions, see Part III of this article.)

The Constitution also refers to offices of trust, honor, and profit. In the English system, an office of trust was one with real duties; an office of profit was mostly a sinecure. Professor Tillman believes, though, that the Framers may have inserted the term “honor, trust or profit” to ensure that officers did not become free of certain rules merely because they elected to serve without compensation.

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Natelson explains What habeas corpus is – and why it is important. He gives us an overview of the Founders’ view of habeas corpus, and specifically, the Constitutional power to suspend habeas corpus. Also discussed are Sections 1021 and 1022 of the National Defense Authorization Act of 2012 – and why this should be of great concern to those who support liberty – and the writ of habeas corpus.

Rob also discusses in more detail what he wrote in his book, The Original Constitution – “American state habeas statutes in force during the founding era sometimes protected only “citizens” However, the federal constitutional right was defined by English common law, and therefore extended to some non-citizens” – and the important 2008 Supreme Court case, Boumediene v. Bush.

Finally, Natelson gives us his opinion of St. George Tucker’s view in 1803 that “Habeas corpus cannot be suspended, unless in cases of actual rebellion or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ.”

The clear answer is “yes.” During the colonial era, each colony was governed by its charter, which was a kind of constitution for the colony. Colonial laws in violation of the charter were understood to be void. So also were laws that violated fundamental documents in the British Constitution, such as Magna Carta.

During the ratification debates, both Federalists and Anti-Federalists assumed that the courts would have power to void unconstitutional laws. Probably the most famous example is Federalist No. 78, in which Alexander Hamilton wrote:

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

During the Virginia ratifying convention, Federalist George Nicholas responded to fears that the federal government might exceed its powers by saying,

But, says he [Anti-Federalist Patrick Henry], who is to determine the extent of such powers? I say, the same power which, in all well-regulated communities, determines the extent of legislative powers. If they exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void.

Anti-Federalist George Mason, discussing ex post facto laws, argued at the same convention, “Will it not be the duty of the federal court to say that such laws are prohibited?” And at the same gathering Federalist John Marshall argued that Congress could not exceed its enumerated powers:

If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under [congressional] jurisdiction. They would declare it void.

In the years before the first case in which the Supreme Court struck down a federal law (Marbury v. Madison, 1803), there were over thirty episodes in which American courts voided state or federal laws for unconstitutionality. See William Michael Treanor, Judicial Review Before Marbury, 58 Stanford L. Rev. 455 (2005).

The occasional claim that the Framers rejected judicial review at the Philadelphia convention seems arise from misunderstanding the Framers’ decision to reject a council of revision. A council of revision was a system that then existed in some states as a substitute for the executive veto. It was a panel of executive and judicial officers who reviewed a bill before it became law. Like an executive when he considers whether to sign or veto a bill, the council could consider issues of policy and drafting as well as constitutionality.

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Elbridge Gerry argued against a council of revision, and his argument shows how well accepted judicial review was. According to James Madison’s notes,

Mr. Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of [the] office to make them judges of the policy of public measures.

The convention followed Gerry’s advice and adopted the presidential veto instead of a council of revision.

A little knowledge is a dangerous thing; and no one illustrates this Principle better than Forbes’ writer Rick Unger in his article, “Congress Passes Socialized Medicine and Mandates Health Insurance – In 1798”,  Washington Post writer Greg Sargent and Georgetown University history professor Adam Rothman.

In 1798, Congress passed An Act for the relief of sick and disabled Seamen which required the master of every American ship arriving from foreign ports to any port of the United States, and American ships engaged in the coastal trade using those ports, to pay a small fee to the federal government for every seaman employed on his ship. The funds so raised were used to care for sick and disabled seamen in the marine hospitals established in the ports of the United States.

So!  Unger cited this 1798 Act and chortled with glee that our Framers supported “socialized medicine”; and so the “political right-wing” should stop “pretending” that our Founding Fathers would oppose obamacare.

Greg Sargent chimed in to the same effect, and quoted history professor Adam Rothman for the idiotic propositions that

“…the post-revolutionary generation clearly thought that the national government had a role in subsidizing health care … that in itself is pretty remarkable and a strong refutation of the basic principles that some Tea Party types offer … This defies a lot of stereotypes about limited government in the early republic.”

But Unger’s, Sargent’s and Rothman’s statements are so transparently ignorant they can be disposed of in a few paragraphs:

Congress’ Three Categories of Legislative Powers

One:  Congress has only limited legislative powers over the Country at large. These legislative powers are restricted to war, international commerce & relations; and domestically, the creation of an uniform commercial system:  weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. Various Amendments granted to Congress certain powers over civil rights. These enumerated powers are the only areas wherein the national government has lawful (constitutional) authority over The States and The People in The States.  In all other matters [except those listed at Art. I, Sec. 10] the States and The People retained supremacy, independence, and sovereignty.

Two:  Article I, Sec. 8, clause 17, U.S. Constitution, says:

“The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislatures of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”  [boldface mine]

“Exclusive Legislation in all Cases whatsoever” over “dock-Yards”. Do you see?  It is this clause which grants to Congress authority to establish marine hospitals on dock-Yards belonging to the United States.  Congress has a general legislative authority over the federal enclaves, such as dock-Yards. That legislative authority is limited only by the Bill of Rights.

In Federalist Paper No. 43 at 2., James Madison explains in three short paragraphs [read them!] why the federal government must have “complete authority” over the federal enclaves listed at Art. I, Sec. 8, cl.17.

Alexander Hamilton in Federalist No. 32 (2^nd para), comments also on the grant of “EXCLUSIVE LEGISLATION” over the federal enclaves [capitals are Hamilton’s] in “The last clause but one in the eighth section of the first article…”

Do you see?  That grant of “exclusive legislation” is restricted to the federal enclaves.

Three:  Article IV, Sec. 3, cl. 2,  grants to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”  Madison shows in Federalist No. 43 at 5. that “the Territory” referred primarily to the Western Territory before it was formed into States.

That’s it, Folks!

So!  While Rick Unger crowed in his article,

“While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.”

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It’s not difficult at all!  All one has to do is read Art. I, Sec. 8, cl. 17, which permits Congress to make such a law for American ships using the dock-Yards belonging to the United States. That’s what “exclusive Legislation in all Cases whatsoever” means.  Do you see?

Congress has no such legislative authority for the Country at large. There, it is limited and  enumerated.

Originally published at http://publiushuldah.wordpress.com/

NOTE: Joshua Lyons will be a featured speaker at Nullify Now! Philadelphia. Get tickets here – http://www.nullifynow.com/philadelphia/ – or by calling 888-71-TICKETS

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What government does U.S. Bill Of Rights limit?

We must start on our quest by determining who ratified the U.S. Constitution; was it ratified by individuals or the States?

The first answer can be found in Article VII of the U.S. Constitution itself:

“The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” [Emphasis added.]

The second answer can be found in the journal of the convention, which records only the votes of the States. Once more, it was the States (not individual delegates) that cast the votes in the convention. Additionally, each State specified what portion of its delegation needed to be present to act and cast the States’ vote.

If you’re asking yourself what this has to do with the applicability of the U.S. Bill of Rights, just stay with me…we’re getting there.

It is also critically important to understand the structure and construction of the U.S. Constitution before attempting to read and interpret it. So what was the purpose of drafting and ratifying the U.S. Constitution?  Very simply, the purpose was to define and limit the authority of the Federal government; and as Madison specified in Federalist 45:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [Emphasis added.]

Further, Article VI Section 2 of the U.S. Constitution specifies that the authority delegated to the Federal government is supreme:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” [Emphasis added]

But while the U.S. Constitution and laws made in pursuance thereof are the supreme law of the land, this is entirely different than the Federal government being supreme in everything it does.

To be sure that the federal government’s authority was limited to the powers enumerated within the U.S. Constitution, many states ratification was contingent upon amendments being passed including what became the 10^th Amendment (which Jefferson considered the “foundation” of the Constitution):

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people“[Emphasis added.]

The ultimate check on Federal power by a State can be uncovered with a quick read of the State ratifying resolutions (e.g. Virginia, New York, Rhode Island). These resolutions illustrate the fundamental right of rescission (i.e.  Powers delegated to the Federal government can be reassumed). Take the New York ratification resolution for example:

“That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same…” [Emphasis added.]

Let’s review:

The U.S. Constitution is a compact between the States.

The limited authority delegated to the Federal government is enumerated in the U.S. Constitution.

The States created the Federal government to be an agent of the States to carry out limited powers.

The States have the legal authority to reassume powers delegated to the Federal government.

After reflecting on all of these rather clear-cut facts, one must question why would the States create an agent (i.e. the Federal government) to limit the States power?

An objective person must come to the obvious conclusion that the States did no such a thing; especially after that same person reads the beginning of the almost-forgotten Preamble to the Bill of Rights:

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.” [Emphasis added.]

Regardless if one thinks that it is a good measure to have the Federal government policing the States for any signs of them infringing on the states citizens’ inalienable rights (federalism anyone?), the fact remains that the Bill of Rights was drafted to further clarify limitations on the Federal government, not the States.

Wait…did I just hear someone ask about the “Incorporation Doctrine?”

Joshua Lyons is the co-host of The Forgotten Men radio show Saturdays at 12noon ET, on AM930 WFMD. The Forgotten Men focus on the current political and economic challenges through the lens of the Constitution and Federalism.

While the States were considering ratifying the Constitution, James Madison describes a prophetic ‘gathering storm’, doomsday scenario for the United States. However, his description was hypothetical and purportedly unlikely. Madison paints a picture of what the union would look like under healthy conditions and then contrasts that with terminal conditions that would destroy the union. His portrayal is fascinating and worth applying today.

In Federalist Paper 46, Madison discusses the happy and healthy situation where the Federal and State governments respect their constitutional boundaries. Madison says, “[the federal government will] be disinclined to invade the rights of the individual States, or the prerogatives of their governments”. Congress would be the “guardians of a common interest” and would not make “improper sacrifices…of local considerations, to the aggrandizement of the federal government”.

Madison continues, “the motives on the part of the States governments, to augment their prerogatives…will be overruled by no reciprocal predispositions in the members [of Congress].” In other words, the States will not want to intrude into federal authority because the Federal government will not intrude in State territory. In this “constitutional ideal”, Madison sees everyone respecting the authority of the other.

Madison then shifts his discussion to the hypothetical “what if”. He says, “[w]ere it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the [States] would still have the advantage in the means of defeating such encroachments” (emphasis added). Such means of defeating the federal government’s encroachments included actions like, “opposition”, “refusal to cooperate”, “frowns of the [State] executive”, “obstructions”, “signals of general alarm”, and “plans of resistance”.

Keep in mind, Madison’s description of “resistance” was made in context of a healthy, working union where the constitution remained and the amiable bonds of union were intact. The result of such conflicts within Federalism would ultimately be resolved through diplomacy where the people’s weight determined the outcome.

Madison furthers his “what if” hypothetical by describing a federal government that pursued “ambitious encroachments”.  Madison predicts such usurpations would result in the same response “as was produced by the dread of a foreign, yoke”—namely, independence from the usurping government. However, Madison cannot fathom such an event taking place; he says, “[b]ut what degree of madness could ever drive the federal government to such an extremity.” Madison feels such actions would be advanced by madmen, not fellow patriots.

Still, Madison answers his own question (for the sake of appeasing his audience) when he describes the (implausible) circumstances ripe for this tyranny. Madison says, the “only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition…[I]t [is not] necessary now to disprove the reality of this danger” (emphasis added).

Madison finds it unimaginable that the federal government could and would accumulate a military force capable and for the purpose of subduing the people and States. Madison bases his conclusion on these presumptions:

“(1) the people and the States [will not] elect…men ready to betray both; (2) [there will be no] traitors…[to] uniformly and systematically pursue some fixed plan for the extension of the military establishment; (3) the governments and the people of the States [will not] silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads…(4) [and further] the State governments, with the people on their side, would be able to repel the danger [through militias]” (emphasis and numbers added).

So here we are in 2011. Our world is not James Madison’s world. Are Madison’s presumptions correct today? Is the U.S. military incapable of subduing the States? Do the people elect only patriots, and not traitors? Do the States have the capability of successfully protecting themselves against opposing military? Are the people capable of forecasting a gathering storm?

Reasonable persons would conclude, the U.S. military is more than capable of subduing the States; the people do elect traitors to office; and the States have no adequate means of defending themselves against opposing military force—from whatever source. (If someone has evidence to the contrary, let us see it.)

Now that the National Defense Authorization Act is law (see my previous articles on NDAA, here and here), Madison’s “gathering storm” scenario is more real than ever. So, how are the States to protect themselves from enemies domestic and foreign (as they have a constitutional duty to do—see, Art. 1, Sec. 3)? Is this an inappropriate question? If so, let us see the reason.

It is a proven maxim that States have the duty and right to protect and sustain themselves. It is also a maxim that every government owes to its citizens protection (e.g. 49-1-201, Mont. Code Ann., “Every person while within the jurisdiction of this state is entitled to its protection”; Art. 1, Sec. 10, USC). In spite of the Second Amendment’s prescription that the States maintain a well-regulated militia to secure a “Free State” and the State constitutions and laws requiring State militias to protect the State’s homeland, there is not one State that is capable of protecting the citizens from domestic or foreign invasion.

Will the “gathering storm” result in an actual storm? God knows, and time will tell; but unless the people have the discretion and discernment to “behold the gathering storm”, it is unlikely the people will do anything about it until the storm of hail is smashing people’s heads in.

Tim Baldwin is a published author, public speaker, and a candidate for Montana’s State House of Representatives (website here). Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and Political Discussions for People of States–all of which are available for purchase through Liberty Defense League and Romans13Truth.

This article was originally published July 1955 in The Freeman.

An MP3 audio file of this article, read by Floy Lilley, is available for download.

The ideal of self-government, first proclaimed for the three million Americans of 1776, scattered along the Atlantic fringe of the country, still works for 160 million Americans who have filled up a vast country. The debt which Americans today owe to the men who framed the institutions of the young Republic, to Washington and Jefferson, Hamilton and Madison, Adams and Jay, is beyond estimation.

These men sometimes differed among themselves; but when they differed, it was usually because they emphasized two aspects of a single political truth. The product of their collective wisdom, the United States Constitution, is a mechanism of extraordinarily delicate balance. So far as human wisdom could foresee dangers and provide safeguards, the individual is secured against oppression by the central government, the states are left in possession of all the functions which are not clearly the proper concern of the federal government, and the powers and limitations of the three branches of the federal government are so defined that no one of these branches can dominate the others and become all-powerful.

The Founding Fathers’ Forethought

No form of government devised in history was so careful to avoid the dangers of concentrated power and so favorable to letting the citizen go as far and as fast as his individual capacity would carry him, without state coddling, state regulation and state domination, which always go hand in hand. The Founding Fathers were mindful of the admonition voiced by one of the strongest and clearest political thinkers of the Revolution, John Adams:

The institutions now made in America will not wholly wear out for thousands of years. It is of the last importance, then, that they should begin right. If they set out wrong, they will never be able to return, unless it be by accident, to the right path.

Adams and Jefferson, Madison and Hamilton, and many of their colleagues were men of exceptional learning. They were steeped in the Greek and Latin classics, in the history of medieval and modern Europe, in British and French constitutional theory and practice. At the same time they were not cloistered scholars, but men of action, who played leading roles in overturning an old form of government and setting up a new one. As a result of this double capacity, they possessed a panoramic view of the rise and fall of states in the past combined with a clear, intimate knowledge of the special conditions of America.

A coherent body of ideas figures prominently in the philosophy of the founders of the American Republic and may be studied to advantage in the Federalist Papers. These ideas, incidentally, are not only of tremendous historical importance, but are of the utmost reality and vitality in our own time. For the noble ideal of liberty, the word most often used in the literature of the American Revolution, has been horribly perverted by fanatics and cynically misused by tyrants.

It was not only in Jacobin France that many crimes, as Madame Roland cried on the scaffold, were committed in the name of liberty. As Professor J. L. Talmon brings out in his erudite and stimulating book, The Rise of Totalitarian Democracy (Beacon Press), the ideological origins of Soviet communism are not entirely in the writings of Marx and Engels.

Robespierre and the French Jacobins, nourished on Rousseau and some of the less known collectivist thinkers of the eighteenth century, worked out a conception of a virtuous elite that was morally entitled to persuade the people — with the aid of the guillotine, and for the people’s own good, of course — to hold and express unanimous opinions which would coincide with those of the virtuous elite. This was the Model T version of modern communism, and fascism borrowed something in theory and a good deal in practice from communism.

Against all utopian conceptions, such as Rousseau’s “general will,” which would lead to an absolute concentration of governmental power, the Founding Fathers set their faces like flint. From study and personal experience they knew what liberty was and what it was not. They knew that a mob or political party operating without opposition could be just as cruel, just as destructive of freedom, as an absolute monarch or a military dictator. One of the clearest and profoundest statements of this deep distrust of concentrated state power is that of Madison in Number 47 of The Federalist:

The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly he pronounced the very definition of tyranny.

Safeguards against Big Government

Far from deifying the state, the Founding Fathers regarded government as a necessary but dangerous instrument, which required many safeguards against abuse. Although they were accustomed, especially in New England, to the grassroots local democracy of the town meeting, they drew a careful distinction between the terms democracy and republic. Madison states the distinction in Number 14 of The Federalist:

In a democracy the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.

It is evident from the tone of The Federalist and other political writings of the time that the Founding Fathers were not devotees of unlimited majority rule or of over-strong government. They recognized that minorities and individuals have rights, such as life, liberty and property, which no majority may lawfully take away. It is significant that the Constitution devotes at least as much attention to telling the government what it may not do as to telling it what it may do, and its prohibitions are expressed in plain, unambiguous, uncompromising language:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.

It is worthwhile to contrast these simple flat assurances with the long-winded resolutions of the United Nations on these subjects, full of escape clauses, weasel words, and loopholes for evasion. The Declaration of Independence takes its stand on “the laws of Nature and of Nature’s God”; and belief in natural law and inalienable rights which men possess independently of government and which no government may lawfully deny, withhold, or abridge is one of the cornerstones of American liberty.

In the literature of the American Revolution there is no demagogic attempt to set human rights against property rights. In the Federalist Papers and in other publications it is recognized that the right to acquire and own property is a basic and very important human right. As John Adams wrote:

The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.

Here, then, are the foundations of the free society of the American Republic: belief in natural law and inherent, inalienable human rights, intense distrust of any concentration of power in government, a suspicious attitude toward tyranny, whether of monarch or mob, including tyranny of the majority. Insofar as these foundations have been respected, America has prospered and grown great. It is where they have been most eroded and whittled away that some of the clearest danger signals in our national life are flying.

The Young French Visitor

Some of these danger signals were clear as early as the 1830s to the most profound and clear-sighted observer of the young American Republic, Alexis de Tocqueville. His work, Democracy in America, is a double masterpiece. It is a most penetrating study of the United States, its political institutions, its psychological traits, at the time of Andrew Jackson’s presidency, and it contains some strikingly accurate predictions of the American future. It is also a most searching study of the positive and negative sides of the leveling democracy which was beginning to prevail in the Western world. And it is written in a style that is always lucid and readable and often strikingly brilliant. For understanding the main political and psychological currents in the American history, de Tocqueville’s work is a worthy companion of the cogent, close-knit reasoning of the Federalist Papers.

As an observer of American life, de Tocqueville steers a middle course between sentimental gush and the squeamish repulsion which some cultivated Europeans like Mrs. Trollope felt for the free-and-easy frontier manners, with the copious expectorations of tobacco juice and the habit of calling all and sundry colonel or captain. He notes the self-reliant individualism of the American character:

The citizen of the United States is taught from his earliest infancy to rely upon his own exertions in order to resist the evils and the difficulties of life; he looks upon social authority with an eye of mistrust and anxiety, and he only claims its assistance when he is quite unable to shift without it.

Praised Local Initiative

As an authentic nineteenth-century liberal, de Tocqueville approves this tendency; he notes that the sum of private undertakings far exceeds all that the government could have done. He notes that there is no such thing as an American peasant and that although education is spread thinly, there are no pools of total illiteracy and stagnation. Again and again he praises the vitality of local initiative which builds excellent schools and churches and keeps the roads in good repair without any meddling interference from a centralized bureaucracy. And he pays to America of that time two compliments which are more impressive because he does not spare criticism on other points:

The European generally submits to a public officer because he represents a superior force, but to an American he represents a right. In America it may be said that no one renders obedience to man, but to justice and to law…

All commodities and ideas circulate throughout the Union as freely as in a country inhabited by one people. Nothing checks the spirit of enterprise…. The Union is as happy and free as a small people, and as glorious and strong as a great nation.

De Tocqueville is not blind to the fact that Americans possess the defects of their virtues. He notes a considerable downgrading of intelligence in high places since the formative years of the Republic. There is a memorable picture of the restless materialism which causes Americans to pursue illusions to the end of their days:

A native of the United States clings to this world’s goods as if he were certain never to die; and he is so hasty in grasping at all within his reach that one would suppose he was constantly afraid of not living long enough to enjoy them. He clutches everything, he holds nothing fast, but soon loosens his grasp to pursue fresh gratifications…. Death at length overtakes him, but it is before he is weary of his bootless chase of that complete felicity which is forever on the wing.

A source of fascination in de Tocqueville is his rare gift of accurate prediction. Some of his observations fit America, and the world, in the middle of the twentieth century even better than the conditions of his own time. There was no income tax in the America which de Tocqueville visited; but he foresaw the shape of things to come:

Universal suffrage invests the poor with the government of society…. Wherever the poor direct public affairs and dispose of the natural resources it appears certain that, as they profit by the expenditure of the State, they are apt to augment that expenditure…. I have no hesitation in predicting that, if the people of the United States is ever involved in serious difficulties, its taxation will speedily be increased to the rate of that which prevails in the greater part of the aristocracies and monarchies of Europe.

There is the famous and remarkable forecast of the era of the American-Russian Cold War:

There are, at the present time, two great nations in the world which seem to tend toward the same end, although they started from different points: I allude to the Russians and the Americans…. All other nations seem to have nearly reached their natural limits…but these are still in the act of growth…. The Anglo-American relies upon personal interest to accomplish his ends, and gives free scope to the unguided exertions and common sense of the citizens; the Russian centers all the authority of society in the single arm; the principal instrument o£ the former is freedom; of the latter servitude. Their starting point is different and their courses are not the same; yet each of them seems marked out by the will of heaven to sway the destinies of half the globe.

De Tocqueville was alarmed not by “excessive liberty” in the United States, but by inadequate securities against tyranny. For, like other nineteenth-century libertarians who were democrats only with reservations — like Burckhardt, Acton, Mill — he realized that there was danger in the tyranny of the majority and sensed that the dykes which the framers of the Constitution had erected against this kind of tyranny were being weakened by the upsurge of democracy in the raw.

He realized that the day of the absolute hereditary monarch and of the privileged aristocrat was gone; but he saw new perils to liberty on the horizon of the future. With remarkable perspicacity he foresaw two developments which became realities in the twentieth century: the totalitarian society of communism and fascism and the paternalistic Welfare State. Regarding the former, he noted the likelihood that

those hideous eras of Roman oppression, when the manners of the people were corrupted, their traditions obliterated, their habits destroyed, their opinions shaken and freedom, expelled from the laws, could find no refuge in the land

might recur. Certainly the crimes of a Stalin, a Hitler, a Mao Tse-tung, far exceed anything that could be laid to the charge of a legitimate ruler in the era of royal absolutism.

Still more vivid and eloquent is de Tocqueville’s imaginary sketch of a paternalistic state which would not practice the bloody oppression of dictators, but would reduce each nation “to nothing better than a flock of timid and industrious animals, of which the government is the shepherd,” that would undertake “to spare its subjects all the care of thinking and all the trouble of living.” The American Republic was, in the winged phrase of Lincoln, conceived in liberty.

But liberty is one of the most complex, as it is one of the most precious, of human conceptions. It flourishes best in the kind of equilibrium between government and citizen, individual and society, majority and minority which the Founding Fathers wrote into the Constitution. The dangers to true liberty vary from generation to generation; but it can never be maintained without constant struggle. There is no surer guide to the principles of political liberty than the Federalist Papers; no more penetrating and imaginative study of the forces that may wreck or sap liberty than de Tocqueville’s great classic.

Did the Congress that passed the Fourteenth Amendment (June 13, 1866) or the states that ratified it (July 9, 1868) intend that the Amendment incorporate, in whole or in part, the Bill of Rights? It is a telling indictment of the incorporation doctrine that nowhere in the Fourteenth Amendment does it say anything about incorporating any part of the Bill of Rights. The wisdom exercised by Chief Justice Marshall in Barron v. The Mayor and City Council of Baltimore (1833) should be followed here. In writing about the applicability of the Bill of Rights to the states, Marshall clearly explains why such was not the case:

Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

It is inconceivable that if such a thing took place that such a significant doctrine as incorporation would be so veiled that it would take years before some Supreme Court judge discovered that there was such a thing.

The Blaine Amendment

We know from the opening line of the First Amendment (“Congress shall make no law”) that the Amendment applied only to the federal government. It is a fact of history that James Madison’s proposal in 1789 to extend to the states the freedom of speech and of the press was rejected by the Congress that gave us the Bill of Rights. When the Constitution refers to the states it clearly says so. For example, it says in Article I, sec. 9 of the Constitution that “no Bill of Attainder or ex post facto Law shall be passed.” That this only applies to the federal government is evident because in the next section it prohibits states from passing “any Bill of Attainder” or “ex post facto law.”

This view of the Constitution prevailed even after the addition of the Fourteenth Amendment to the Constitution. In 1875, which was several years after the adoption of the Fourteenth Amendment, an amendment to the Constitution was proposed in the House of Representatives by James G. Blaine (1830—1893), the speaker of the House from 1869 to 1875. Known as the Blaine Amendment, it reads:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The Blaine Amendment passed in the House but not in the Senate so it was never sent to the states for ratification. The purpose of the amendment — to keep Catholic schools from receiving state funds — is irrelevant. What is relevant is the opening phrase, which should be compared with the opening phrase of the First Amendment:

No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof;

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

The wording of Blaine Amendment shows that the Congress at the time did not consider the First Amendment to be incorporated into the Fourteenth Amendment. And if that bulwark of the Bill of Rights — the First Amendment — was not incorporated into Fourteenth Amendment, then neither was the Fifth Amendment or any of the others in the Bill of Rights. And such was the case until late into the nineteenth century.

Due Process

If the Fourteenth Amendment “incorporates” the Fifth Amendment, then why did the framers of the Amendment find it necessary to repeat verbatim the “due process” clause of the Fifth Amendment? Notice the italicized portions of the Fifth and Fourteenth Amendments that appear below:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The “due process” clause in the Fourteenth Amendment must have the same basic meaning as it does in the Fifth Amendment. The meaning of the clause in the Fifth Amendment controls the meaning in the Fourteenth, and not the other way around.  The “due process” clause is separate and conceptually distinct from the “takings” clause in the Fifth Amendment.

This is exactly what Justice Frankfurter emphasized in his concurring opinion in Adamson v. People of State of California (1947):

The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government. It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth.

But, it is sometimes argued, the “due process” clause incorporates the Bill of Rights; it is merely a shorthand expression for the rights enumerated in the Bill of Rights. But given what Frankfurter says above, and given that each of the amendments that make up the Bill of Rights was adopted separately and independently, the “due process” clause in the Fifth Amendment must exclude the rights (really the protections and prohibitions) enumerated in the rest of the Bill of Rights. Therefore, there is no way that the “due process” clause in the Fourteenth Amendment could be said to incorporate the Bill of Rights and apply those amendments to the states.

Writing the opinion for the Court in the case of Bartkus v. Illinois (1959), Justice Frankfurter summarized the case against incorporating the “due process” clause:

We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.

In Adamson v. California, decided just a few months after the Bartkus case, Justice Frankfurter described the negative consequences of the incorporation doctrine:

To consider “due process of law” as merely a shorthand statement of other specific clauses in the same amendment is to attribute to the authors and proponents of this Amendment ignorance of, or indifference to, a historic conception which was one of the great instruments in the arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen. A construction which gives to due process no independent function but turns it into a summary of the specific provisions of the Bill of Rights would, as has been noted, tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom. It would assume that no other abuses would reveal themselves in the course of time than those which had become manifest in 1791. Such a view not only disregards the historic meaning of “due process.” It leads inevitably to a warped construction of specific provisions of the Bill of Rights to bring within their scope conduct clearly condemned by due process but not easily fitting into the pigeon-holes of the specific provisions. It seems pretty late in the day to suggest that a phrase so laden with historic meaning should be given an improvised content consisting of some but not all of the provisions of the first eight Amendments, selected on an undefined basis, with improvisation of content for the provisions so selected.

He also gave the Court a history lesson:

Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court — a period of 70 years — the scope of that Amendment was passed upon by 43 judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States. Among these judges were not only those who would have to be included among the greatest in the history of the Court, but — it is especially relevant to note — they included those whose services in the cause of human rights and the spirit of freedom are the most conspicuous in our history. It is not invidious to single out Miller, Davis, Bradley, Waite, Matthews, Gray, Fuller, Holmes, Brandeis, Stone and Cardozo (to speak only of the dead) as judges who were alert in safeguarding and promoting the interests of liberty and human dignity through law. But they were also judges mindful of the relation of our federal system to a progressively democratic society and therefore duly regardful of the scope of authority that was left to the States even after the Civil War. . . .

The notion that the Fourteenth Amendment was a covert way of imposing upon the States all the rules which it seemed important to Eighteenth Century statesmen to write into the Federal Amendments, was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution.

Justice Frankfurter concluded:

Those reading the English language with the meaning which it ordinarily conveys, those conversant with the political and legal history of the concept of due process, those sensitive to the relations of the States to the central government as well as the relation of some of the provisions of the Bill of Rights to the process of justice, would hardly recognize the Fourteenth Amendment as a cover for the various explicit provisions of the first eight Amendments.

Alexander Hamilton a long time ago summarized the meaning of “due process” with the dictum that the words “have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of legislature.” This has been confirmed numerous times by the Supreme Court. The meaning of “due process” in its historical context was discussed in Davidson v. City of New Orleans (1877) by Justice Miller:

The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race. It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the fourteenth amendment, in the year 1866. The equivalent of the phrase “due process of law,” according to Lord Coke, is found in the words “law of the land,” in the Great Charter, in connection with the writ of habeas corpus, the trial by jury, and other guarantees of the rights of the subject against the oppression of the crown. In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the government, which were dictated by the jealousy of the States as further limitations upon the power of the Federal government, it is found in the fifth, in connection with other guarantees of personal rights of the same character. Among these are protection against prosecutions for crimes, unless sanctioned by a grand jury; against being twice tried for the same offence; against the accused being compelled, in a criminal case, to testify against himself; and against taking private property for public use without just compensation.

The conclusion reached in this case by the Court is extremely relevant to the Kelo decision:

It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.

It is unfortunate that Davidson v. City of New Orleans was not cited by the Supreme Court in its Kelo decision.

In Hurtado v. People of the State of California (1884), the meaning of “due process” was taken up again in yet another “takings” case:

Due process of law in the latter [the Fifth Amendment] refers to that law of the land which derives its authority from the legislative powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the fourteenth amendment, by parity of reason, it refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

Could the members of Congress who passed the Fourteenth Amendment or the legislators in the states who ratified it have ever imagined that the Supreme Court would use the “due process” clause of the Fourteenth Amendment to declare a state’s law against sodomy unconstitutional (Lawrence v. Texas [2003])?

Privileges or Immunities

The Fourteenth Amendment cannot be separated from its place in history. Consider the time in which the Fourteenth Amendment was adopted. The Thirteenth Amendment abolished slavery (Lincoln’s Emancipation Proclamationdid no such thing); the Fourteenth Amendment made the freed slaves citizens on an equal basis with existing citizens. In the infamous case, Dred Scott v. Sandford (1857), Chief Justice Taney related how Negroes

are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

So, as Justice Miller, who wrote the opinion in the Slaughter-House Cases (1873), [three cases involving Louisiana butchers who challenged a state law granting a 25-year local monopoly to one New Orleans livestock slaughterhouse] explains, the Fourteenth Amendment was designed for “the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him” because “something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much.”

Notice the italicized words in the first sentence of the Fourteenth Amendment that are referenced in the second sentence:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment was intended to confer a narrow, limited set of privileges.

But, it is sometimes argued, it is the “privileges or immunities” clause that incorporates the Bill of Rights; it is it, and not the “due process” clause that is merely a shorthand expression for the rights enumerated in the Bill of Rights. But as no reference is made to the Bill of Rights in the Fourteenth Amendment, and no mention of rights occurs in the text of the same, this is just as speculative as the similar claim for the “due process” clause.

When the phrase “privileges or immunities” was mentioned in the Fourteenth Amendment, it was not intended to be an isolated phrase the meaning of which to be decided by future Supreme Court justices. It is found in the Constitution, which, it should be noted, did not have any amendments when it was adopted but only contained a preamble and seven articles. The opening paragraph of the second section of Article IV of the Constitution reads as follows: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This clause was itself taken from Article IV of the Articles of Confederation:

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

Here we have the general followed by the specific, thus limiting the “privileges and immunities.” And according to the principle set down by James Madison in the Federalist No. 41:

Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.

In the Slaughter-House Cases, the Supreme Court, in comparing Article Four of the Articles of Confederation and the Constitution, came to the conclusion that

there can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.

The “privileges or immunities” of the Fourteenth Amendment couldn’t possibly be a reference to the rights enumerated in the Bill of Rights for the simple reason that it had a history of contrary usage before the Fourteenth Amendment was ever thought of; the privileges and immunities preceded the Bill of Rights.

“What, then,” asked Justice Field in his dissenting opinion in the Slaughter-House Cases,  “are the privileges and immunities which are secured against abridgment by State legislation?”

In Campbell v. Morris (1797), Justice Chase, writing for a Maryland court, said:

The court are of the opinion it means that the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the State, in the same manner as the property of the citizens of the State is protected.

In Corfield v. Coryell (1823), Justice Washington, writing for a federal circuit court, explains further:

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expression of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate the mutual friendship and intercourse among the people of the different states of the Union.”

This was partially quoted by both sides in the Slaughter-House Cases. But Justice Washington also said in the same place:

But we cannot accede to the proposition which was insisted on by the counsel, that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed by those citizens.

The import of the Fourteenth Amendment is clear, as Justice Field explained: “The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.”

Lyman Trumbull (1813—1896), the onetime justice of the Supreme Court of Illinois and chairman of the Senate Judiciary Committee at the time of the adoption of the Fourteenth Amendment, maintained that the “privileges or immunities” clause is

a repletion of a provision as it before existed. . . . The protection which the Government affords to American citizens under the Constitution as it was originally formed is precisely the protection it affords to American citizens under the Constitution as it now exists. The fourteenth amendment has not extended the rights and privileges of citizens one iota.

If the Fourteenth Amendment incorporates anything it incorporates the Civil Rights Act of 1866, which was passed over the veto of President Johnson. This was the view of virtually every Republican and Democrat in Congress who spoke in the debates on the Fourteenth Amendment or spoke on the matter to their constituents. Senator Trumbull, the draftsman of the bill, stated that the first section of the Fourteenth Amendment was “a reiteration of the rights as set forth in the Civil Rights Bill.” Those rights he elsewhere stated were “the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property.”

In the dissenting opinion in the Slaughter-House Cases, Justice Field confirmed this in his two references to the Civil Rights Act:

This legislation [the Civil Rights Act] was supported upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom.

In the first section of the Civil Rights Act Congress has given its interpretation to these terms [privileges and immunities], or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the 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.” That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.

The Fourteenth Amendment, which was intended to confer a narrow, limited set of privileges, has been expanded by the judiciary way beyond the intentions of even the most radical Republican during Reconstruction. The results of this are two-fold: the erosion of federalism and an increase in the power of the central government.

Selective Incorporation

If the Fifth Amendment has been incorporated then why do many states not have grand juries? The opening clause of the Fifth Amendment reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

The Supreme Court ruled back in 1884, in the case of Hurtado v. California, that the grand jury requirement doesn’t pertain to the states. To this day, states can use grand juries if they choose, but they don’t have to — without violating the Constitution. The doctrine of “selective incorporation,” which some will then argue, was hatched in the mind of Supreme Court judges — like the “right” to have an abortion (Roe v. Wade [1973]) or the “right” to receive welfare benefits (Goldberg v. Kelly [1970]).

But what about the other provisions of the Fifth Amendment?

In Palko v. State of Connecticut (1937), the Supreme Court ruled that the “double jeopardy” clause (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”) of the Fifth Amendment did not apply to prosecutions in state courts. But in Benton v. Maryland (1969), the Court overruled the Palko decision and maintained that “the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment.”

In Malloy v. Hogan (1964), the Supreme Court held that “the Fourteenth Amendment prohibits state infringement of the privilege against self-incrimination just as the Fifth Amendment prevents the Federal Government from denying the privilege.” This overruled the 1947 case of Adamson v. California where the Court affirmed that “protection against self-incrimination is not a privilege or immunity of national citizenship.”

This means that not only have certain amendments from the Bill of Rights been selectively incorporated by the Supreme Court, but certain parts of amendments have likewise been incorporated. This results in three problems. One, how does anyone know what the law will be from one day to the next? Which part of which amendment will be the next to be incorporated? Two, this is not the rule of law; this is government on a whim. The Constitution means what five members of the Supreme Court say it means — the Congress, the state legislatures, and the people be damned. And three, the Supreme Court that has the power to incorporate has the same power to unincorporate.

The incorporation doctrine is a creation of the U.S. Supreme Court, not the Congress that drafted the Fourteenth Amendment. The Court underwent a gradual change of opinion on the matter, as can be seen by comparing two cases that relate to the First Amendment and two cases that relate to the Fifth Amendment.

The First Amendment Cases

In the case of Prudential Insurance Co. of America v. Cheek (1922), Justice Pitney stated: “The Constitution of the United States imposes upon the states no obligation to confer upon those within their jurisdiction either the right of free speech or the right of silence. . . . But, as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or ‘freedom of silence.’” But in the case of Gitlow v. People of the State of New York (1925), the Court ruled that a New York law violated the free speech clause of the first amendment because that part of the first amendment was incorporated into the fourteenth amendment:

For present purposes we may and do assume that freedom of speech and of 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 Gitlow case even expressly overruled the Prudential Insurance case: “We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.”

The Fifth Amendment Cases

In the case of Fallbrook Irrigation Dist. v. Bradley (1896), Justice Peckham stated: “The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided.” But in the case of Chicago, Burlington and Quincy Railroad Co. v. City of Chicago (1897), the Court considered its jurisdiction to

re-examine the final judgment of the supreme court of Illinois, and to certain rulings of the state court, which, it is alleged, were in disregard of that part of the fourteenth amendment declaring that no state shall deprive any person of his property without due process of law, or deny the equal protection of the laws to any person within its jurisdiction.

The opinion of the Court, written by Justice Harland, concluded that

a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.

The result of this opinion is that: “compensation for private property taken for public use is an essential element of due process of law as ordained by the fourteenth amendment.”

This is the case that started the Supreme Court down the slippery slope of incorporation, as explained by Justice Brennan in his opinion in the Malloy v. Hogan (1964) decision:

The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases in this Court since the Amendment’s adoption in 1868. Although many Justices have deemed the Amendment to incorporate all eight of the Amendments, the view which has thus far prevailed dates from the decision in 1897 in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, which held that the Due Process Clause requires the States to pay just compensation for private property taken for public use.

Although the wholesale incorporation of the Fifth Amendment was clearly not the intention of the justices in the Chicago, B. & Q. Railroad case, it is now cited as such by the Supreme Court in “takings” cases.

Writing for the majority in Lucas v. South Carolina Costal Council (1992), Justice Scalia remarks that “the practices of the States prior to incorporation of the Takings and Just Compensation Clauses, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) which, as JUSTICE BLACKMUN acknowledges, occasionally included outright physical appropriation of land without compensation.”

And more recently, in the Kelo case, where the Court held that “the city’s proposed disposition of petitioners’ property qualifies as a ‘public use’ within the meaning of the Takings Clause,” this statement appears at the beginning of the case: “The question presented is whether the city’s proposed disposition of this property qualifies as a ‘public use’ within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.” Then there is a footnote given that reads: “‘[N]or shall private property be taken for public use, without just compensation.’ U. S. Const., Amdt. 5. That Clause is made applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897).”

To lay the groundwork for the Supreme Court’s misapplication to the states of the Fifth Amendment’s privilege against self-incrimination in the Malloy v. Hogan case, Justice Brennan quoted an incidental remark in Twining v. State of New Jersey (1908) [a case that the Malloy case overthrew, along with the aforementioned Adamson v. California]:

It was on the authority of that decision [Chicago, B. & Q. Railroad] that the Court said in 1908 in Twining v. New Jersey, supra, that “it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”

However, in his dissenting opinion, Justice Harlan quotes the same remark from the Twining case but this time also gives the next sentence that follows immediately after: “If this is so, it is not because those rights are enumerated in the first eight Amendment, but because they are of such a nature that they are included in the conception of due process of law.”

Justice Harland recognized the true intent of the majority in the Malloy case:

I can only read the Court’s opinion as accepting in fact what it rejects in theory: the application to the States, via the Fourteenth Amendment, of the forms of federal criminal procedure embodied within the first eight Amendments to the Constitution. While it is true that the Court deals today with only one aspect of state criminal procedure, and rejects the wholesale “incorporation” of such federal constitutional requirements, the logical gap between the Court’s premises and its novel constitutional conclusion can, I submit, be bridged only by the additional premise that the Due Process Clause of the Fourteenth Amendment is a shorthand directive to this Court to pick and choose among the provisions of the first eight Amendments and apply those chosen, freighted with their entire accompanying body of federal doctrine, to law enforcement in the States.

Harland believed that “the reasoning behind the Court’s decision carries extremely mischievous, if not dangerous, consequences for our federal system in the realm of criminal law enforcement.” He accepted the proposition of the majority that “continuing re-examination of the constitutional conception of Fourteenth Amendment ‘due process’ of law is required, and that development of the community’s sense of justice may in time lead to expansion of the protection which due process affords,” but he did not understand

how this process of re-examination, which must refer always to the guiding standard of due process of law, including, of course, reference to the particular guarantees of the Bill of Rights, can be short-circuited by the simple device of incorporating into due process, without critical examination, the whole body of law which surrounds a specific prohibition directed against the Federal Government. The consequence of such an approach to due process as it pertains to the States is inevitably disregard of all relevant differences which may exist between state and federal criminal law and its enforcement. The ultimate result is compelled uniformity, which is inconsistent with the purpose of our federal system and which is achieved either by encroachment on the States’ sovereign powers or by dilution in federal law enforcement of the specific protections found in the Bill of Rights.

The breakdown of federalism that has resulted from all the litigation associated with the Fourteenth Amendment was anticipated by an opponent of that amendment in the Pennsylvania State House that debated its ratification: “The regulation of the civil relations of each State is placed under the control of the Federal Government, the States to be used simply as instruments to execute its will, and nearly their entire civil and criminal jurisprudence placed under the control of Congress.”

So, just as the anti-federalists were right, so were the opponents of the Fourteenth Amendment.

The Kelo Decision

If the reasoning of the Supreme Court’s in the Kelo case was flawed, but the correct decision was reached nevertheless, then what should have been the proper course of action for the Court to take? Back in the days before the Fourteenth Amendment, when the Constitution was followed by the Supreme Court much more closely than it is today, a Fifth Amendment “takings” case was brought before the Court. In Barron v. Baltimore, the unanimous Court ruled, without even hearing the arguments from the City of Baltimore:

We are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause; and it is dismissed.

The same thing should have happened in the Kelo case.

The Constitution

Our Constitution has been reduced to a series of abused clauses: the “general welfare” clause, the “commerce clause,” the “necessary and proper” clause, the “due process” clause, and the “privileges or immunities” clause.

In vain does one look to the federal government to check its own power or protect its citizens’ rights. The federal government is ever seeking to increase its power and is the greatest violator of its citizens’ rights. If the federal government can’t be counted on to follow its own, admittedly imperfect, Constitution, there is no stopping its hegemony.

Federalism and decentralization are two effective weapons in the war against the federal leviathan. Any Supreme Court decision that increases either one is a welcome sight.

Excerpted from an article originally published at LewRockwell.com

Laurence M. Vance [send him mail] writes from central Florida. He is the author of Christianity and War and Other Essays Against the Warfare State, The Revolution that Wasn’t, and Rethinking the Good War. His latest book is The Quatercentenary of the King James Bible. Visit his website.

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