Was that allowing the states to deny voting rights to Native Americans or was that a nod to the reservation system? It’s seems like the intent is to allow states to ignore the reservations if the inhabitants don’t pay taxes, which is a simple way to deal with the quasi sovereign-nation status of the reservations.
Section One of the Fourteenth Amendment was drafted in response to a very specific trigger–the Black Codes which Southern states enacted to regulate the conduct of newly freed African Americans in the winter of 1865-66.
The Codes varied somewhat from state to state, but in general they banned black people from owning or renting property, criminalized unemployment, vagrancy, and breach of contract, allowed children of “vagrants” to be bound out as “apprentices” (slaves), banned black ownership of firearms, limited black testimony in court, and enacted discriminatory penalties such as whipping for black people and fines or imprisonment for whites.
The Codes landed like a stink bomb in the North, not because Northerners were overly concerned about African American welfare (some were, but most weren’t), but because they looked so close to slavery that we would likely have to fight another Civil War in 20 years.
Section One allows Congress to override such laws:
This explicitly incorporates (applies to the states) one clause from the Bill of Rights (Due Process), and clearly gives Congress the power to deal with the Black Codes.
What about the rest of the Bill of Rights? For the most part, Congress didn’t care, because the Southern states weren’t violating them. As bad as the Black Codes were, they generally did not establish a state church or infringe freedom of speech or religion.
Debate on those issues was therefore perfunctory. Jacob Howard, one of the authors of the Amendment, made an oft-quoted somewhat rambling comment that P&I incorporated all of the first eight Amendments:
Many members simply asserted that P&I would protect “inborn rights”, “natural rights”, or “life, liberty, and property” against state encroachment. Others did not address the question at all.
So as regards Original Intent, I would say that the one sponsor who explicitly expressed an opinion did argue in favor of incorporation, but most of those who enacted the Amendment did not deeply consider the issue and did not express an opinion.
I had never heard about the Black Codes before; I just read the wiki article on them. Thanks Freddy. I should really read a book some day on the Reconstruction.
Correct. However, if the modern interpretation of the 14th amendment is consistent with the understanding of the original meaning, it means that the drafters deliberately made Sec. 1 in direct conflict with Sec. 2.
If a state did not allow women or blacks to vote, then did it not clearly deny them equal protection of the laws, or the privileges and immunities of citizenship? Or substantive due process?
A modern interpretation would certainly strike down any such law regardless of the 15th or 19th amendments which suggests that the modern interpretation does not comport with the original intent of the drafters or the public at the time.
Yes, Sec. 2 only discusses states discriminating against blacks or women based upon voting rights, but the implication is that there is no problem at all with making racial or sex based distinctions in law. It is not as if the drafters put and asterisk beside “equal protection” in section 1 and discussed the exception in section 2. It discussed very matter of factly, almost assumed, that a state could clearly discriminate in this fashion.
It seems fairly clear that the “equal protection” standard was only meant to outlaw the Black Codes discussed above and not to outlaw distinctions based upon race or sex. No fair reading would say that the drafters believed without comment that a state could forbid the vote to women, but not otherwise discriminate against them in the slightest way. That would be an absurd reading.
Abortion and SSM were applied to the states through the “substantive” component of the due process clause in Sec. 1 of the 14th amendment. Again, how does one reconcile the text and see that a woman could be denied the right to vote simply because she is a woman, but not the right to attend VMI because she is a woman, or marry another woman because she is a woman?
It simply does not follow that such a seemingly major component of “equal protection” is ignored, but far less and debatable transgressions are held to be such a vital part of it?
Unless some unknown writings come to light, there’s no way to know what they were thinking.
Which is why original intent is such a pile of steaming bullshit.
No one knows what the original intent was. Not for certain. It’s just deciding that what the writers were thinking was in line with what you’re thinking.
I’ll say they never imagined corporations being persons entitled to free speech.
I looked through the whole thing and there’s no mention of corporations.
That’s correct – diving what their intent was is fraught with peril.
But reading their text, that we can do. This is the distinction between a textualist and an originalist. A textualist says that the law means what it says.
Would “contextualist” be the name for those who say interpretations must be in accordance with the world as it has changed?
(i.e., Freedom of the Press has been extended beyond mere printing of newspapers on paper with ink, and our Security of our houses, papers, and effects now extends to our smart phones. This clearly changes the “exact text” of what was written…but could anyone other than the most pointy-headed pedant use “textualism” to deny these extensions?)
I’d argue that it doesn’t change the text. We refer to television and radio reporters as “the press,” to this day. And our phones are certainly our “effects.”
The problem is that I have no idea what it means to say that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. The text is opaque to me.
That’s a little shady; does that mean that I can call my car “the press” and suddenly there are no licensing requirements? Absolutely strict literalist textualism would not be able to call a blog “the press,” although we treat blogs as falling into that category of protected speech.
The courts have to do this. Take various gun control interpretations where fully-automatic weapons are defined in a different category than pistols, rifles, and shotguns. (Did the word “arms,” in 1787, mean cannons and rockets?)
You’d think it was obvious that our phones were “our effects” but it took a Supreme Court decision for that to be formalized. Up to then, they were getting searched without warrants. That’s my point: the courts have to do some level of interpretation of meaning.
My question, and a serious one, is: is this called “contextualism” to contrast with “textualism?” Or does it have another name?
(Actively defending my Third Amendment rights!)
Sorta. It was found in a prenumbra–basically an implied right. The main one cited was based on the due process clause of the 14th Amendment, but they also referenced a previous case which found it in a lot of others, like including the 5th and the 9th.
I’m personally surprised they didn’t use what comes right before that in the 14th: the privileges and immunities clause. Seems like you could imply that your right not to be illegally searched (violating your privacy) was an immunity. But I’m sure there’s a legal definition making this not true.
But the point is those states DID abridge the rights for black men over 21 to vote until 1965 with literacy tests, poll taxes, etc. and that the House could have lowered their number of representatives had they wanted.
Not true!
First, let’s accept that that words can have various meanings. “Bay,” can be a body of water or a horse or a leaf or what the dogs did to the possum.
In divining the meaning of law, words have their ordinary contextual meaning. You cannot arbitrarily define you car as “press,” – that’s simply not the meaning of the word. Nor does the constitutional guarantee affect the state’s power to regulate coffee-making devices, even though they are literally called “presses.”
No. And I agree that the proper judicial role is to interpret how the existing words apply to a new situation. But the way to do that is by applying the words as written: I don’t have to be concerned about the proper social policy to reach a decision; I only have to ask myself, “Is infrared viewing of a house a ‘search?’”
Well… not exactly how it happened.
The Fourth Amendment has never offered a blanket prohibition against searches without a warrant… just “unreasonable” searches without a warrant. (“…the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”)
So I agree that this is a ripe field for the courts, because they certainly have to interpret what is “unreasonable” in a given situation. But no decision I’m aware of has changed what “effects,” meant.
Here’s how the cell phone thing played out:
It had been long established that when the police arrested you, they could search your person, even without a warrant. Remember that the Fourth Amendment protects your person from searches! But the courts have long held that it would be unreasonable to make the police get a warrant before they searched an arrested person: they would want to ensure that the person had no weapons, and ensure that evidence on his person was not destroyed. And the courts balanced this intrusion against the privacy impact. A person isn’t likely to be carrying a dozen years of correspondence with loved ones, hundreds of family pictures, job applications, and family vacation videos in his pocket. So the courts ruled that such searches were reasonable, and thus allowed by the Fourth Amendment.
The police applied this rule when cell phones came along. They searched the cell phones under same rationale as searching pockets and purses.
But especially as cell phones began to become “smart phones,” this rationale wore a bit thin. Now a person COULD be carrying a dozen years of correspondence with loved ones, hundreds of family pictures, job applications, and family vacation videos in his pocket. So the Supreme Court explored the issue and decided, unanimously, that searching cell phones without a warrant was unreasonable.
And even this doesn’t end the issue!
Remember the other part of the Fourth Amendment: “…and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” There is a developing body of case law concerning the “particularity” requirement of the Fourth Amendment as it applies to warrants to search cell phones.
In physical searches, the particularity rule meant that if you were searching for a stolen car pursuant to a warrant, you could open up garage doors and barn doors, but not bedroom doors or kitchen drawers. In other words, the scope of your search was limited to the specific thing for which you were searching. Of course, if you opened the barn door in legitimate search for a stolen car and you discovered a pile of cocaine and mounds of child porn, you were not required to ignore them.
But when searching a cell phone, all the “drawers” are the same size. Does a reasonable search of a cell phone for, say, the names and addresses of other persons who might have shared your terrorism plans also allow the police to look through pictures and videos?
These are questions not fully answered by case law - yet.
But they are all analyzed without need to depart from the text of the Fourth Amendment.
It’s a great coinage – I had not heard it before, and it describes your idea quite well.
Sez Trinopus: “You troops are just going to have to sleep on the patio!”
Do you think that they thought that two guys should be able to marry each other, to the exclusion of any state law to the contrary? Do you need transcripts of Congressional debate and contemporary newspaper articles to help you decide?
As long as we’re on this hijack, does the Third Amendment protect a right, or does it forbid the government from performing a certain action? While certainly the 3rd could be considered to uphold the privacy of one’s home, I was under the impression it was mainly an addition to the list of dirty tricks the government was forbidden to use (in this case, bypassing legislative funding by requiring people to feed and house troops for free as an unauthorized tax in kind).
That’s exactly what they intended. It’s right there in Article 3 Section 1
Nothing there about electing justices.
Section 2, Clause 2.2
Again, nothing about electing Justices to the Supreme Court.
Obviously, it was intended to have unelected Justices on the Supreme Court.
Since you evoked that wheeze about unelected judges, you obviously only believe in original intent when it suits your side.
It probably never crossed their minds.
And since you evoked that wheeze complaining about unelected judges, you have no respect for original intent.
In a way, that’s the definition of a right: a limitation on the government’s power to act.
The Third opens, “No soldier shall…” i.e., the military (i.e. the government) may not do this. It’s pretty much phrased as a limit on the government’s ability to act.
It does invoke the right of the owner to waive this prohibition: if you want to host a bunch of soldiers, you get to. (And many kind citizens do, in fact, take in members of the armed forces for Thanksgiving dinner: it’s a lovely tradition!)
Of course it never crossed their minds because at the time, the idea was so absurd that nobody gave it thought. If it had been presented to them, they would have unanimously laughed that such a thing could be considered, let alone be considered as a part of the amendment they just ratified.
I understand that judges are not elected, and I am not complaining about that. I am complaining when these judges take it upon themselves to decide matters that should be left to the people who are elected.
As an individual, there are many areas of life which I believe that there either should be a law against this or that there should not be a law for or against that. If I become a judge, these opinions should not matter in the slightest. If I become a legislator, then the people have entrusted me to try to make those opinions into positive law. Judges should not be in that role.
I am an attorney and have seen “Robes Disease” first hand. It is a danger to representative democracy for attorneys who believe that they are above the proles to dictate commands to the idiot people. Just because one particular decree may be favorable to mine or your particular belief on this day means that it is taken out of our hands the next. That is very dangerous to a government of, by, and for the people.
The founders were smart guys, but they didn’t have 200 years worth of debate to read before they drafted the Bill of Rights. With the benefit of hindsight, the Third Amendment could have been part of the Fourth Amendment against unreasonable seizures or the Fifth Amendment with regard to taking property, or with regard to due process of law.
But, nevertheless, the fact that Americans are not subject to quartering soldiers in their homes against their will, even if the Third Amendment played no part in it, shows that the amendment has worked as intended in practice. It addressed a contemporary concern that has been eliminated and is very likely not needed anymore. That doesn’t mean that it is silly or should be read out of the Constitution.
To directly answer your question, I am not sure of the difference. Protecting a right and forbidding a government action are both sides of the same coin in most instances. The right to say that I oppose the candidacy of Hillary Clinton for President both protects my right to say it and forbids government from punishing me for saying it. I don’t see how the Third is any different.
This touches upon a subject I’ve mentioned a few times previously in other threads, a Supreme Court decision, Robertson v. Baldwin that if taken at face value would have astounding implications; but afaik no one has ever tried to cite it as a precedent.
To summarize the case in question: some commercial sailors sued the government for forcibly returning them to their ships after they had jumped ship while in port. Among other things they complained that doing so violated the Thirteenth Amendment. But the court ruled against them on the grounds of ancient and long-standing tradition. Some quotes:
So it could be argued that among other things, Robertson v. Baldwin establishes that ancient and accepted usages under common law have standing against “novel” interpretations of the Constitution. Under such a doctrine, the claim that “marriage” includes same-sex marriage could have been summarily tossed out.