Bush administration ends ABA review of judicial candidates

[madmusic]

At the risk of sounding like a broken record, I'll say it anyway: the real battle is in the courts. The far Right long ago decided they must take control of the courts, and they almost have. Though this is old news, for those who don't know:

Indicating it no longer wants to continue what it called a “preferential arrangement,” the Bush administration last month ended the half century-long practice of allowing the American Bar Association to evaluate federal judicial candidates prior to their nomination.

In a letter to ABA President Martha Barnett, White House Counsel Alberto Gonzales said, “The question is whether the ABA should play a unique, quasi-official role and then have its voice heard before and above all others. We do not think that kind of preferential arrangement is either appropriate or fair.”

The ABA’s role in evaluating potential candidates has long irritated conservative lawmakers, who find the legal group’s views too liberal. They were particularly embittered by the 1987 Senate rejection of Robert H. Bork’s nomination to the Supreme Court. In recent years, Con-gressional Republicans have pushed for candidates to the federal bench who will not take an “activist” role.

http://www.calbar.ca.gov/calbar/2cbj/01apr/page10-1.htm

And the Federalist Society keeps close tabs on what the ABA is doing:

http://www.fed-soc.org/Publications/barwatchbulletin/barwatchbulletin.htm

They are always ready to counterattack. The Federalist Society has a long head start in this war because Democrats didn't realize there was a war for the courts going on, though, in hindsight, they should have. The American Constitution Society was at last formed as a battle front, but it has some catching up to do.

http://www.acslaw.org/

This battle is probably more important than elections because it is so enduring. Please keep abreast of it.

[spindrifter]

1. Excellent post!

[madmusic]

2. Thanks! Here's more:

S P E C I A L R E P O R T

H I J A C K I N G J U S T I C E

The Federalist Society, a Right-wing network of lawyers, judges and supporters,
is undoing civil rights and other gains made through the courts

By George E. Curry & Trevor W. Coleman
Emerge, October 1999



WHEN BROWN VS. BOARD OF EDUCATION WAS BEING ARGUED, a clerk to U.S. Supreme Court Justice Robert Jackson suggested that the court should rule against the plaintiffs in the landmark school desegregation case. While making the case for maintaining segregated schools, the clerk sent a memo to his boss saying, "It is about time the Court faced the fact that white people in the South don't like the colored people." That clerk was William Rehnquist, now chief justice of the United States Supreme Court. Seeking to put his own ultraconservatives on the Supreme Court with Rehnquist, President Ronald Reagan -- who had appointed more than half of the sitting federal judges by the time he left office -- considered nominating Lino A. Graglia, a controversial University of Texas law professor, as a federal appeals court judge for the 5th Circuit. But the nomination, which had been backed by Attorney General Edwin Meese III, was jettisoned after Graglia acknowledged that he had referred to African-Americans as "pickaninnies." The American Bar Association found the law professor "not qualified" to serve on the federal bench.

Reagan did nominate Robert H. Bork, a former Yale law professor, who was on the U.S. Court of Appeals in Washington, D.C. Bork had opposed the 1964 Civil Rights Act, calling it "an unwanted intrusion on the right of individuals to choose with whom to associate." After bitter debate, the Senate rejected his nomination in 1987 by a vote of 58 to 42.

Far from fading into the background, Bork, Meese, and to a lesser extent, Graglia, are key players in the Federalist Society, a powerful Right-wing network intent on restricting the power of courts, often at the expense of African-Americans and other people of color, the poor, women and the disadvantaged.

The organization actively seeks to limit "judicial activism" and reverse Supreme Court landmark rulings since the New Deal, especially those issued in the 1960s and '70s. Special targets include the 1966 Miranda decision that provides certain rights for suspected criminals, the 1973 Roe vs. Wade ruling legalizing abortion and recent civil rights legislation.

more, and a "must read": http://www.ratical.org/ratville/CAH/hijakjustice.html

[young_at_heart]

3. Drip by drip by drip

We're slowly becoming "Rome".

[merh]

4. Apparently it really ticked off the administration that the ABA

gave GWB's 5th Circuit nominee an "unqualified" rating, the first such rating since 1982.

ABA rating of Wallace riles right
By Jonathan Allen

As they work to try to salvage his nomination, defenders of 5th U.S. Circuit Court of Appeals nominee Michael Wallace say a poor professional rating from the American Bar Association may have been driven by politics.

The American Bar Association (ABA) recently rated Wallace, a Mississippi lawyer and former aide to Sen. Trent Lott (R-Miss.), “not qualified,” spawning a new round of questions from Republican stalwarts about the political independence of the influential organization and its leaders. The Wallace rating followed on the heels of a downgrading of D.C. Circuit Court of Appeals nominee Brett Kavanaugh from “well qualified” to “qualified.”

(snip)

But Wallace’s rating, the first “not qualified” for an appellate court nominee since 1982, was unanimous, and the 15-member panel includes at least three Bush donors. The chairman, who has a limited official role in the ratings process, does not vote unless there is a tie among the other members, according to ABA spokeswoman Nancy Slonim.

http://www.hillnews.com/thehill/export/TheHill/News/Frontpage/052306/news3.html

They just can't stand the truth :rofl:

[madmusic]

5. The ABA was already out of the equation (APRIL 2001)

That's the date of the original quote above.

The ABA issued the rating anyway. Though BushCo ignores it, it still makes news.

[madmusic]

6. Civil rights hiring shifted in Bush era

Conservative leanings stressed

By Charlie Savage, Globe Staff | July 23, 2006

WASHINGTON -- The Bush administration is quietly remaking the Justice Department's Civil Rights Division, filling the permanent ranks with lawyers who have strong conservative credentials but little experience in civil rights, according to job application materials obtained by the Globe.

...

Hires with traditional civil rights backgrounds -- either civil rights litigators or members of civil rights groups -- have plunged. Only 19 of the 45 lawyers hired since 2003 in those three sections were experienced in civil rights law, and of those, nine gained their experience either by defending employers against discrimination lawsuits or by fighting against race-conscious policies.

Meanwhile, conservative credentials have risen sharply. Since 2003 the three sections have hired 11 lawyers who said they were members of the conservative Federalist Society. Seven hires in the three sections are listed as members of the Republican National Lawyers Association, including two who volunteered for Bush-Cheney campaigns.

Several new hires worked for prominent conservatives, including former Whitewater prosecutor Kenneth Starr, former attorney general Edwin Meese, Mississippi Senator Trent Lott, and Judge Charles Pickering. And six listed Christian organizations that promote socially conservative views.

more: http://www.boston.com/news/nation/articles/2006/07/23/civil_rights_hiring_shifted_in_bush_era/

[madmusic]

7. The Conservative Cabal That's Transforming American Law

The Federalist Society


By Jerry Landay

One afternoon in November 1999, only a few weeks after leaving the Office of the Independent Counsel, Kenneth Starr relaxes happily in the lobby of Washington¹s Mayflower Hotel. The hotel is hopping. Eight hundred lawyers have converged from all over the country for a convention--three days of celebrity gazing, brisk intellectual discourse, and hard-headed networking. It is the annual lawyers¹ meeting of the Federalist Society--a conservative legal fellowship to which Starr belongs--and he is in his element. The former special prosecutor is surrounded by a small group of gray-suited young "Feddies," who introduce themselves, conduct short interviews, whisper words of homage, or simply stare in awe. Starr beams--clearly enjoying this moment of adulation.

On friendly turf now, Starr may also be projecting feelings of gratitude. For as Joe Conason and Gene Lyons demonstrate in The Hunting of the President (see excerpts on pages 17-18), Starr and the OIC benefited enormously from the efforts of a network of well-placed lawyers who, like Starr and other Republican luminaries, are members of, or linked to, the Federalist Society. Most of the self-styled "elves" who helped Linda Tripp¹s tapes find their way into Kenneth Starr¹s hands had links to the Society. And without the elves¹ handiwork plus the leaks, coaching, and sheer brainpower contributed by the extended Federalist network, Starr¹s investigation might never have gotten out of the blocks.

Tonight at the Mayflower you get a sense of just how powerful and far-reaching the Society is. There are stars from every corner of the Republican establishment in the room. From snippets of conversation, one concludes that they are joined not only at the ideological hip but by a collective hatred for President Clinton--perhaps more for standing in the way of their Revolution than for any moral or legal lapses. Members of Starr¹s old team like constitutional law advisor Ronald Rotunda (who counseled Starr that he could indict a sitting president) rub shoulders with old-timers from the Reagan administration--former Attorney General Edwin Meese, Solicitor General Charles Fried, and Civil Rights commissioner Linda Chavez--and with former Bush White House Counsel C. Boyden Gray. The room bulges with partners from among the most powerful law firms in the land: New York¹s venerable Sullivan & Cromwell; Chicago¹s Kirkland & Ellis (Starr¹s outfit); Washington¹s own Wilmer, Cutler & Pickering (Gray¹s firm); and Los Angeles powerhouse Gibson, Dunn & Crutcher (its Washington office is home to Theodore Olson--whose contributions to Starr¹s efforts are colorfully documented in the Conason and Lyons excerpts referred to above).

And then there are the judges. No fewer than eight federal judges, most of whom are still active on the bench, will sit on panels or speak from the podium during this three day affair. Their discussions range from the technical to the deeply ideological. Former federal judge Robert Bork comments on the "inertia" and "weariness" he has observed in American liberalism--themes drawn from his recent book, "Slouching Toward Gomorrah." And Supreme Court Justice Clarence Thomas attacks the American Bar Association for being too socially conscious--advancing a slate of liberal positions "that go beyond representing the interests of lawyers as a profession."

more: http://www.washingtonmonthly.com/features/2000/0003.landay.html

[madmusic]

8. Federalist Society: From Obscurity To Power

Federalist Society: From Obscurity To Power

2003 UPDATE
When President George W. Bush took office, many pundits predicted that his narrow margin of victory, his loss of the popular vote, and his moderate-sounding campaign would lead him to govern from the political center. Yet Bush began almost immediately to confound this prediction with a series of actions—especially in the areas of family planning, the environment, and nominations—that seemed to have been taken directly from the playbook of his party’s right wing. Within just a few months after the new president took office, pundits and political observers were eating their earlier words, now noting that Bush was building the “most conservative administration in modern times.” Right-wing groups voiced great pleasure at President Bush’s efforts to assemble a team that one ultra-conservative leader described as “more Reaganite than the Reagan administration.”

Early predictions of moderation proved wrong largely because observers failed to take into account a very important factor: President Bush’s reliance for policy and staffing decisions on members of key right-wing organizations, notably the Federalist Society for Law and Public Policy Studies. When President Bush broke his campaign promise to regulate carbon dioxide emissions, that decision was based on a controversial report requested by one of the Society’s founding members. When right-wing leaders attacked the potential nomination of conservative Montana Governor Marc Racicot to be attorney general, it was a leading Federalist Society activist who wrote the memorandum that proved critical in torpedoing Racicot’s hopes. In the end, the post went instead to former Senator John Ashcroft, an extreme conservative and Society member. Today, many Society members are working in the White House counsel’s office, at the top levels of the Department of Justice and in other high administration posts.

http://www.pfaw.org/pfaw/general/default.aspx?oid=7754

Appendix A
The Right Wing Dream Team at the Department of Justice: Some of the Players

Many high-level political positions within the Justice Department, addition to John Ashcroft himself, have been filled with ideological warriors from the far right, including many members of the Federalist Society, a legal group with a mission to "transform" American law by rolling back decades of Supreme Court precedents. Some of the members of the team:
Solicitor General -- Theodore Olson
Deputy Attorney General -- Larry Thompson
Assistant Attorney General for Legal Policy -- Viet Dinh
Assistant Attorney General for Environment and Natural Resources -- Thomas L. Sansonetti
Principal Deputy Solicitor General -- Paul Clement
Deputy Assistant Attorney General for Civil Rights -- J. Michael Wiggins
Counsel to the Assistant Attorney General in the Civil Division -- William H. Jordan
Counsel to Assistant Attorney General in the Criminal Division -- David E. Nahmias
Deputy Assistant Attorney General in the Criminal Division -- John G. Malcolm
Administrator, Office of Juvenile Justice and Delinquency Prevention -- J. Robert Flores
Staff Attorney, DOJ Voting Rights Section -- Hans A. von Spakovsky

http://www.pfaw.org/pfaw/general/default.aspx?oid=1167

Read the full report in PDF format.

[Vidar]

9. It just keeps getting worse & worse.

[madmusic]

12. It sure does. What's at stake?

ACS Conference
Friday, August 1st, 2003
Session D:
http://www.acslaw.org/files/2003%20convention_Court's%20composition_panel%20transcript.pdf">The Court’s Composition: What’s At Stake (PDF)

What is at stake? There have been at least three transformative Chief
Justices. John Marshall, Earl Warren, and William H. Rehnquist. The story
of the last transformation shows that ideas matter. The Rosetta Stone for
understanding the Rehnquist court is an opinion that was written before the
Rehnquist court was even the Rehnquist court. It was a lone dissent authored
by the court’s most junior justice, enjoined by no other member, in a case of
little apparent significance, upholding the application of the Federal Pay Act
to state employees of Ohio. Only Associate Justice Rehnquist dissented, and
in 10 brisk pages, in 1975, he set out a set of ideas that were to become, a
quarter of a century later, a major legacy of the court that bears his name.
He took on a proposition that had been established in an opinion for a
unanimous court – what one would have thought a self-evident proposition,
that the sovereign power of the states is necessarily diminished to the extent
of the grants of power to the federal government. He disagreed with that,
showing that he was willing to take on settled doctrines. He noted expressly
that important decisions of constitutional law are not subject to the same
command of stare decisis as decisions in statutory questions. As my
colleagues Jefferson Powell noted in a very prescient 1982 article, on the
early Associate Justice Rehnquist, “Pride showed him to be neither a strict
constructionist nor a practitioner of judicial restraint. His rejection of federal
supremacy, was not based, he expressly conceded, on either the 10th Amendment by its
terms or the 11th Amendment by its term, on no explicit constitutional source,
but rather in rights inherent in the state’s capacity as a state.”
This was, in essence, the evolution of an idea of a sort of natural law of
federalism. And indeed one that involved the reification, if I may wander
into an academic term, the reification or anthropomorphicization of the state
as a right bearing entity itself. These thoughts were dismissed at the time as
interesting – the musings of a lonely intellectual, of useful classroom fodder,
but not to be taken seriously against a tide of American Constitutionalism.

Little did we know, a quarter of a century later, the ideas put forth with
power and provocation by a lone associate Justice have become the
established law of the land. It’s a jurisprudence that invokes vague terms –
constitutional design, the system of federalism, the plan of the convention.
Justice Breyer recently noted of these phrases that they suffer from several
defects – their language is highly abstract, they invite differing
interpretations, they’re at least as broad as the phrases “due process of law”
and “liberty.” But Justice Breyer drolly noted, as compared with these later
phrases like “due process of law,” the language of constitutional design etc,
suffered the additional disadvantage that they do not actually appear in the
Constitution.

Laughter

[madmusic]

10. Oversight of Federal Asset Forfeiture: Its Role in Fighting Crime

...

The Procedure of the Matter

To illustrate more fully how this law works in practice, however, it may be useful to distinguish three procedures--administrative, civil, and criminal--through which the government moves to complete a forfeiture after seizing a person's property.8 Administrative forfeiture is essentially a default proceeding: if no one files a claim to the seized property, it forfeits by default to the government. The Justice Department's principal spokesman for forfeiture has claimed that 80 percent of forfeitures "are uncontested because in most cases the evidence is so overwhelming that contesting the forfeiture would be pointless."9 <--- That may be true in many cases. But there are also many other cases that involve amounts too small to make it worth the owner's contesting the forfeiture, especially in light of the legal fees and the extraordinary burden of proving one's innocence.

But if an owner does contest the seizure, he has to file a claim and post a "cost bond" amounting to ten percent of the value of the property or $5,000, whichever is less. That does not release the property to the owner, however; incredibly, it is designed to defray the government's litigation and storage costs. Once the owner files a claim and posts a cost bond, the government has to file a complaint in federal district court. But it can wait up to five years--the statute of limitations--before doing so, whereas the owner has a mere ten days to answer the complaint, failing which the property forfeits to the government. Except in a criminal proceeding, there is no right of counsel, which means, again, that many small seizures end by default to the government.

9. Stefan D. Cassella, "Forfeiture Is Reasonable, and It Works," Criminal Law and Procedure News (The Federalist Society), vol. 1, no. 2 (Spring 1997), at 8.

[Blackhatjack]

11. First it was Science, Now it is Law, what will Bush eliminate next??

The concept of peer review among members of a profession is abhorrent to Bush, since he decided he is the "decider." He don't need no stinking scientists reviewing each others' work on global warming, he will find his own scientist to tell him he is right all by himself. Same now for lawyers. After all he wants to hear from non-lawyers to tell him who should occupy a federal judgeship for life. It does not matter what other lawyers who practiced with and before him know.

[madmusic]

14. The Bill of Rights

Except for, maybe, the 2nd Amendment, so Beady Eye Cheney can shoot people.

[madmusic]

13. The Right and the Law

Courts V. Citizens: Jamin B. Raksin says our increasingly right-wing judiciary has taken aim at the basic underpinnings of democracy.

....

By now, even many liberals have fallen for the contrivance that corporations -- those artificial entities created by the states merely to accomplish certain economic purposes -- enjoy political rights under our Constitution. Ironically, the best hope for taming the monster of corporate political power may lie with Chief Justice William Rehnquist himself, who once wrote that he could not see why "liberties of political expression" are "necessary to effectuate the purposes for which States permit commercial corporations to exist." But that is certainly not the direction in which Rehnquist and his block have been moving.

The genius of a system of divided powers is that when one branch is closed to the desires of the populace or the demands of justice, another may open up. Yet a single minority political faction now controls the House of Representatives, the Senate, the White House and the Supreme Court, and it appears to be immune to all such influences. Perhaps liberals should start talking seriously about constitutional reform. In the meantime, as President Bush puts forward his judicial nominees, it is worth remembering that it is not just civil liberties we are defending. It is democracy itself.

http://www.prospect.org/print/V14/3/raskin-j.html

More:

Posted: 03/10/03

This special report was prepared in cooperation with The Century Foundation.

Articles from The American Prospect's Special Issue

* First They Came for the Muslims: Anthony Lewis looks at the Justice Department's war on immigrants.

* Circuit Breaker: If you're worried about conservative control of the federal judiciary, watch the District of Columbia. Chris Mooney reports.

* Affirmative Reaction: Randall Kennedy on the courts, the right and the race question.

* A Hostile Takeover: Martin Garbus on how the Federalist Society is capturing the federal

* In the Bedroom: Come July, the United States might finally make homosexuality legal. E.J. Graff reports.

* Courts V. Citizens: Jamin B. Raksin says our increasingly right-wing judiciary has taken aim at the basic underpinnings of democracy.

* A Fickle Federalism: Richard Briffault on how the Rehnquist Court hobbles Congress -- and the states, too. =

* No Death-Penalty Doubts: DNA testing and racial bias raise questions of fairness -- but not with Ashcroft. Joseph Rosenbloom reports.

http://www.prospect.org/web/page.ww?section=root&name=Courts_Liberties

Good night.

[Trillo]

15. * says "We gave them peanuts

and they complained. So I took their peanuts away."

/the above is solely satire.

[w4rma]

16. In other words the Federalist Society will write the reviews, instead.

Of course this just makes official what the Republican leadership have already been doing.

[The Backlash Cometh]

17. It's a battle some of us have already lost.

Can't expect to find an objective judge on a local level, and maybe not even on a state level for some issues. For example, did you know that on Florida's Supreme Court, even though it's composed of Democrats, that at least one of the judges is part of a law firm that is strongly involved with property rights and development? Someone should look into the destructive marriage between Liberal judges who like to give governments the power to develop land, and Republican city commissioners who love to abuse that power. It's the reason why growth management will never be obtained.

[madmusic]

18. Anthrax Coulter on the FS

It turns out what the Democrats mean by "selected primarily for their ideology" means the nominee went to top law schools, had prestigious federal clerkships, went on to distinguished legal careers -- but are believed to be Republicans. Evidence of "extreme views" consists of association with the Federalist Society, a group of intellectuals that holds racy legal debates on the privileges and immunities clause, and issues publications with edgy titles like "Reciprocal Compensation Decision Resolves Little."

As legal scholar Sen. Chris Dodd, D-Conn., explained: "We don't want this to be a judiciary jammed and packed with people who've come out of the Federalist Society with extreme views."

Consequently, Bush had already purged his list of judicial nominees likely to incite a Democratic witch hunt. He withdrew the names of two Harvard Law School graduates -- one a Supreme Court clerk, one a U.S. congressman -- after Democrats discovered with alarm that the two had suspicious associations with the Federalist Society. To get a fair shake from the Democrats, the Federalist Society should change its name to "Communist Party U.S.A."

[grizmaster]

19. I guess the ABA findings on signing statements was the final straw

For those who didn't get to read it yet, the ABA's report on the signing statements is an eye opener

http://www.abanet.org/op/signingstatements/aba_final_signing_statements_recommendation-report_7-24-06.pdf

[librechik]

21. Bingo--ABA is useful for covering Roberts and Alito, but they blew it

by noticing the administration breaks the law.

[civildisoBDence]

20. DUHbya might as well put his fingers in his ears and scream,

"I can't hear you! Na na na na na na na!"

The man can't seem to believe that anyone would dare to disagree with him and his Bush-hogs.

News and commentary, left to right

[HootieMcBoob]

22. I thought this happened a long time ago

Didn't the end ABA review at the beginning of Bush's first term? They replaced the ABA with The Federalist Society.

[madmusic]

24. Yes, old news, same war.

Many don't know about it at all, and some, like me, didn't know how pervasive it is. A good tin hat can't be thick enough for this stuff.

[warrens]

23. A high priority once we take back our country

It would be nice to have qualified judges, not nazi thugs, again. And the judgment of peers is the only way to evaluate these guys, other than sub rosa "I'm a real wingnut" assurances.

[Straight Shooter]

25. "First let's kill all the lawyers."

Or render them moot.

[madmusic]

26. My God is better than your God!

That is what "originalsim" in relation to the Constitution means. We all know those who understand the Bible best are closer to God, and those who don't understand it correctly are Godless. Did you think Anthrax picked that out of thin air? We also know of the wars and killing that resulted from "I'm right, you're wrong" interpretations: The witch hunts, the Inquisition, the Crusades, even the current "war on terror."

The Right claims to know what the REAL interpretation of the Constitution should be. Maybe God told them, maybe not, but they know while, of course, the "living Constitution" is blasphemy.

You can get a good rundown from the horses mouth:

http://video.google.com/videoplay?docid=-729353131738424026 (video)

Originalsim implies a impartial and accurate interpretation of the Constitution that never changes, that isn't subject to the political winds, and yet, notice what cases he pulls out of his hat: modern political cases. So even if they could know better than anyone else what the real interpretation of the Constitution should be as construed by the Founders, they cannot separate those interpretations from the events of the modern world, which confirms a "living Constitution."

Not all Federalist Society members are always wrong, and this guy doesn't believe in the death penalty. Some of their ideas may even better than liberal ideas in some rare cases - eminent domain is something almost everyone can agree on - but that is not the point. Even the eminent domain case was decided on the rule of law, based on some cases decided shortly after the signing of the Constitution. Why wasn't it decided based on originalsim? See, Federalism, or States Rights, as they like to call it, only applies when it suits them.

It is very possible, though hard to prove so far, that the real goal is reactionary to a time like when http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0274_0200_ZS.html">Buck v. Bell passed muster in the Supreme Court in 1927. (Please read that case, as it was the closest the Right got to eliminating the 14th Amendment since its passage.) Carrie Buck was a feebleminded girl (false) sterilized for getting pregnant (she was actually raped by someone related to her foster parents) and she was defended in the Supreme Court by someone who wanted her sterilized. The deck was so stacked against her, she never had a chance. A similar quest from the Right would be far more convert and sophisticated today. That's not to say every Federalist Society member would know of this, or even most of them. The solider rarely knows the full battle plan or of the policies behind them.

The real irony is that the Federalist Society is founded on the Federalist Papers - maybe by Alexander Hamilton, James Madison, and John Jay, there is some debate still. But here's the catch. Alexander Hamilton wrote:

Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.

And a note to that found:

III (John C.) Hamilton, History of the Republic of the United States, p. 34 (1859), quoting Alexander Hamilton. James Madison expressed similar sentiments:

Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favour of personal security and private rights. . . . The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and with indignation that sudden changes and legislative interferences in cases affecting personal rights become jobs in the hands of enterprising and influential speculators and snares to the more industrious and less informed part of the community.

The Federalist, No. 44, p. 351 (Hamilton ed. 1880).

Quoted in http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0437_ZO.html#381_US_437n18">State v. Brown.

See, the real war is over the 14th Amendment (explanation coming up).

Please, stay informed. Follow this war, fight it, and win!

EDIT: eminent domain

[madmusic]

27. After the Civil War: The 14th Amendment

Cases that seem to have nothing to do with ordinary Americans can have far reaching consequences. The 13th, 14th and 15th Amendments were passed after the Civil War, and their passage was dependent upon the South having vote and power on Congress. It is the 14th over which the war still rages. After its passage, the Supreme Court did not interpret the 14th until four years later, when it ruled on a seemingly innocuous case. The Slaughterhouse Cases were about state control and monopoly over Slaughter Houses. That's right. Places were animals (or poultry) are slaughtered.

The Oxford Companion to the Supreme Court states:

"In 1865-1866, southern states and localities enacted Black Codes to regulate the status and conduct of the newly freed slaves. The codes deprived blacks of many basic rights accorded to whites, including full rights to own property, to testify in court in cases in which whites were parties, to make contracts, to travel, to preach, to assemble, to speak, and to bear arms....

The Fourteenth Amendment was proposed by Congress in 1866 and ratified by the states in 1868....

The first major interpretation of the Fourteenth Amendment's effect came in the Slaughterhouse Cases (1873), in which the Court held that the basic civil rights and liberties of citizens remained under control of state law. The Court limited the privileges and immunities of citizens of the United States referred to in the amendment to relatively narrow rights such as protection on the high seas and the right to travel to and from the Nations capital. The Slaughterhouse Cases drastically curtailed the protection afforded by the amendment against states violations of fundamental guarantees of liberty....

Contrary to the expectations of some of the amendment's framers, the Supreme Court held that it did not overrule Barron v. Baltimore (1833) to requires states and local governments to respect the guarantees of the Bill of Rights.

See, it was about "activist judges," but that good kind, the kind that didn't want the states to have to enforce the Bill of Rights, the kind that are Right Wing now. To demonstrate again how far reaching a seemlingly trivil case can reach:

Barron v. Baltimore, (1833), A wharf owner sued the city of Baltimore for economic loss occasioned by the city's diversion of streams, which lowered the water level around his wharves. He claimed the city took his property without just compensation in violation of the Fifth Amendment. This presented the question whether the Fifth Amendment restrained the states. After surveying the history of the Bill of Rights, Chief Justice John Marshall concluded that the first ten amendments restrained only the federal government, thus requiring Americans to look to state constitutions for protection of the civil and political liberties.

And this is what the Right today means by State's Rights. Since the states are not required by the 14th Amendment to enforce the Bill of Rights, they shouldn't have to. So, as they could in the past, they could conceivably pass laws barring the right to trial by jury, or the right to representation, or ban abortion or gay marriage. This is why they think the fight is in the States and they don't want the Feds to have any power to intervene, 14th Amendment or not.

In Plessy v. Ferguson (1869) The Court held that state-mandated racial segregation of railway cars did not violate the amendment's Equal Protection Clause. In 1908 it upheld a state statute requiring segregation of private colleges (Berea College v. Kentucky). Justice John Marshall Harlan registered eloquent buy lonely dissents to the Court's decision sanctioning stat-imposed segregation. The Court also held, in Bradwell V. Illinois (1873) and Minor v. Happersett (1875), respectively, that the amendment did not protect the right of women to practice law or to vote.

So as you read Justice Hugo Blacks Appendix below, the following may help:

Brown v. Board of Education (1954) the Court found that segregated education denied minority schoolchildren the equal protection of the laws. (Now related to the school voucher issue.)

In Reynold v. Sims (1964) the Court found that malapportioned state legislative districts also violated the Equal Protection Clause. (The Tom Delay malaportionment scene was party ruled a violation due to racial deinal of voting rights.)

In Shelley v. Kraemer (1948) the Court outlawed judicial enforcement of racially restrictive covenants of housing.


In Twinning v. New Jersey, (1908), the Court suggested that some Bill of Rights guarantees might limit the states through the Due Process Clause. (But only SOME.)

In Gitlow v. New York, (1925), the Court began to apply guarantees of speech, press, assembly, religion, and counsel to the states. (Wow, isn't that nice of them?)

The guarantees applied to the states were those the Court considered essential to ordered liberty (Palko v. Connecticut, (1937). (Does this imply the Framers thought some were not essential?)

Griswold v. Connecticut, 1965, the right to privacy for married couples to sue birth-control devices (now under the due process clause as well).

Roe v. Wade, 1973, abortion.

Bowers v. Hardwick, 1986, the Court held the right to privacy did not protect consenting adults from prosecution for homosexual conduct under state sodomy laws. (Since overturned by Lawrence.)

Some early judical opinions such as that of Justice Samuel Chase in Calder v. Bull (1798) held out the possibility that courts enforce "principles of natural justice" independently of particular constitutional provisions, but this idea was channeled into the Fourteenth Amendment's Due Process Clause after the Civil War. In the early nineteenth century, both sides in the debate over slavery invoked natural law.

By 1968 the Warren Court's decision, particularly in areas of criminal procedure, provoked political criticism. President Richard Nixon's appointees to the Court, followed by those of President Ronald Reagan and George Bush have espoused a narrower view of guarantees of liberty, particularly as they affect the rights of the accused. So the Fourteenth Amendment remains, as it has been though most of its history, a center of controversy, and it continues both to mirror and to shape changes in American society.

A lawyer, say from the ACLU, could explain all this a lot better, but it will hopefully be enough to help make the following apendix makes sense. Here is the case that includes the apendix.

ADAMSON V. CALIFORNIA , 332 U.S. 46 (1947), aruged 15-16 Jan. 1947, decided 23 June 1947 by a vote of 5 to 4; Reed for the Court, Frankfuter concurring, Black, Douglas, Murphy and Rutledge in dissent. Adamson reflected the intense debate over wheter the Fourteenth Amendment's Due Process Clause incoporate specific provisions of the Bill of Rights, tush making them appiclable to state criminal proceeedings. The question was whether the prosecutions calling the jury's attention to the defendant's refusal to testify violated the Fifth Amendment's ban on self-incrimination. The majority treinterated the holding of Palko v. Connectiut (1937) that the Fourteenth Amendment "does not draw all the rights of the Bill of Rights under its protection," but incorporates only those that are so fundanmental that they are "implicit in the concept of ordered liberty." It uplheld the conviction because the prosecutor's comments did not result in an "unfair trial."

Justice Hugo Black argued in dissent that the due process clause should be read to guarantee that "no state could deprive its citizens of the privleges and protections of the Bill of Rights" and therfore argued that the Fourteenth Amendment incporporates "the full protection of the Fifth Amendment's provison against compelling evidence from and accused to convict him of a crime." The Court has never adopted Blacks "total incorpoartion" approach. It has, however, incporporated nearly all the individual componetns of the Bill of Rights under a doctrine called "selective incorporation." Thus, in Griffin v. California (1965) the Court held that the Fourteenth Amendment does not permit state prosectuor to call the jury's attention to a defendant's failure to testify.

So that's the case, and Justice Black included this:

APPENDIX.

I. The legislative origin of the first section of the Fourteenth Amendment seems to have been in the Joint Committee on Reconstruction. That Committee had been appointed by a concurrent resolution of the House and Senate with authority to report 'by bill or otherwise' whether the former Confederate States 'are entitled to be represented in either House of Congress.' Cong. Globe, 39th Cong., 1st Sess. (1865) 6, 30. The broad mission of that Committee was revealed by its very first action of sending a delegation to President Johnson requesting him to 'defer all further executive action in regard to reconstruction until this committee shall have taken action on that subject.' Journal of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (1866), reprinted as Sen.Doc. No. 711, 63d Cong., 3d Sess. (1915) 6. It immediately set about the business of drafting constitutional amendments which would outline the plan of reconstruction which it would recommend to Congress. Some of those proposed amendments related to suffrage and representation in the South. Journal, 7. On January 12, 1866, a subcommittee, consisting of Senators Fessenden (Chairman of the Reconstruction Com- <332 U.S. 46 , 93> mittee) and Howard, and Congressmen Stevens, Bingham and Conkling, was appointed to consider those suffrage proposals. Journal, 9. There was at the same time referred to this Committee a 'proposed amendment to the Constitution' submitted by Mr. Bingham that:

'The Congress shall have power to make all laws necessary and proper to secure to all persons in every State within this Union equal protection in their rights of life, liberty, and property.' Journal, 9. Another proposed amendment that 'All laws, State or national, shall operate impartially and equally on all persons without regard to race or color,'1 was also referred to the Committee. Journal, 9. On January 24, 1866, the subcommittee reported back a combnation of these two proposals which was not accepted by the full Committee. Journal, 13, 14. Thereupon the proposals were referred to a 'select committee of three,' Bingham, Boutwell and Rogers. Journal, 14. On January 27, 1866, Mr. Bingham on behalf of the select committee, presented this recommended amendment to the full committee:

'Congress shall have power to make all laws which shall be necessary and proper to secure all persons in every State full protection in the enjoyment of life, liberty and property; and to all citizens of the United States, in any State, the same immunities and also equal political rights and privileges.' Journal, 14. This was not accepted. But on February 3, 1866, Mr. Bingham submitted an amended version: 'The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States (art. 4, sec. 2); and to all persons in the several States equal protection <332 U.S. 46 , 94> in the rights of life, liberty, and property (5th amendment).' This won committee approval, Journal, 17, and was presented by Mr. Bingham to the House on behalf of the Committee on February 13, 1866. Cong. Globe, supra, 813.

II. When, on February 26, the proposed amendment came up for debate, Mr. Bingham stated that 'by order * * * of the committee * * * I propose adoption of this amendment.' In support of it he said:

'* * * The amendment proposed stands in the very words of the Constitution of the United States as it came to us from the hands of its illustrious framers. Every word of the proposed amendment is to-day in the Constitution of our country, save the words conferring the express grant of power upon the Congress of the United States. The residue of the resolution, as the House will see by a reference to the Constitution, is the language of the second section of the fourth article, and of a portion of the fifth amendment adopted by the First Congress in 1789, and made part of the Constitution of the country. * * *

'Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. Nothing can be plainer to thoughtful men than that if the grant of power had been originally conferred upon the Congress of the nation and legislation had been upon your statute-books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility. * * *

'And, sir, it is equally clear by every construction of the Constitution, its contemporaneous construction, its con- <332 U.S. 46 , 95> tinued construction, legislative, executive, and judicial, that these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States. * * *' Cong.Globe, supra, 1033, 1034.

Opposition speakers emphasized that the Amendment would destroy state's rights and empower Congress to legislate on matters of purely local concern. Cong.Globe, supra, 1054, 1057, 1063-1065, 1083, 1085-1087. See also id. at 1082. Some took the position that the Amendment was unnecessary because the Bill of Rights were already secured against state violation. Id. at 1059, 1066, 1088. Mr. Bingham joined issue on this contention:

'The gentleman seemed to think that all persons could have remedies for all violations of their rights of 'life, liberty, and property' in the Federal courts.

'I ventured to ask him yesterday when any action of that sort was ever maintained in any of the Federal courts of the United States to redress the great wrong which has ben practice d, and which is being practiced now in more States than one of the Union under the authority of State laws, denying to citizens therein equal protection or any protection in the rights of life, liberty, and property.

'* * * A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.

'Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Pet., at page 247, in the case of Barron v. The Mayor and City <332 U.S. 46 , 96> Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

"The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.

"If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.'

'I read one further decision on this subject-the case of the Lessee of Livingston v. Moore and others, 7 Pet., 469, at page 551. The court, in delivering its opinion, says:

"As to the Amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.'

'The question is simply whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of oaths enjoined upon them by their Constitution? * * * Is the Bill of Rights to stand in <332 U.S. 46 , 97> our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.

'Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be.

'What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? * * *

'As slaves were not protected by the Constitution, there might be some color of excuse for the slave States in their disregard for the requirement of the bill of rights as to slaves in refusing them protection in life or property. * * *

'But, sir, there never was even colorable excuse, much less apology, for any man North or South claiming that any State Legislature or State court, or State Executive, has any right to deny protection to any free citizen of the United States within their limits in the rights of life, liberty, and property. Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights. Gentlemen who oppose this amendment simply delare to th ese rebel States, 'Go on with your confiscation statutes, your statutes of banishment, your statutes of unjust imprisonment, your statutes of murder and death against men because of their loyalty to the Constitution and Government of the United States." Id. at 1089-1091.

'* * * Where is the power in Congress, unless this or some similar amendment be adopted, to prevent the reen- <332 U.S. 46 , 98> actment of those infernal statutes * * *? Let some man answer. Why, sir, the gentleman from New York (Mr. Hale) * * * yesterday gave up the argument on this point. He said that the citizens must rely upon the State for their protection. I admit that such is the rule under the Constitution as it now stands.' Id. at 1093.

As one important writer on the adoption of the Fourteenth Amendment has observed, 'Mr. Bingham's speech in defense and advocacy of his amendment comprehends practically everything that was said in the press or on the floor of the House in favor of the resolution. * * *' Kendrick, Journal of the Joint Committee on Reconstruction (1914) 217. A reading of the debates indicates that no member except Mr. Hale had contradicted Mr. Bingham's argument that without this Amendment the states had power to deprive persons of the rights guaranteed by the first eight amendments. Mr. Hale had conceded that he did not 'know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of the liberties of the citizen.' Cong.Globe, supra, at 1064. But he was apparently unaware of the decision of this Court in Barron v. Baltimore, supra. For he thought that the protections of the Bill of Rights had already been 'thrown over us in some way, whether with or without the sanction of a judicial decision * * *' And in any event, he insisted, '* * * the American people have not yet found that their State governments are insufficient to protect the rights and liberties of the citizen.' He further objected, as had most of the other opponents to the proposal, that the Amendment authorized the Congress to 'arrogate' to itself vast powers over all kinds of affairs which should properly be left to the States. Cong.Globe, supra, 1064, 1065.

When Mr. Hotchkiss suggested that the amendment should be couched in terms of a prohibition against the States in addition to authorizing Congress to legislate <332 U.S. 46 , 99> against state deprivations of privileges and immunities, debate on the amendment was postponed until April 2, 1866. Cong.Globe, supra, 1095.

III. Important events which apparently affected the evolution of the Fourteenth Amendment transpired during the period during which discussion of it was postponed. The Freedman's Bureau Bill which made deprivation of certain civil rights of negroes an offense punishable by military tribunals had been passed. It applied, not to the entire country, but only to the South. On February 19, 1866, President Johnson had vetoed the bill principally on the ground that it was unconstitutional. Cong.Globe, supra, 915. Forthwith, a companion proposal known as the Civil Rights Bill empowering federal courts to punish those who deprived any person anywhere in the country of certain defined civil rights was pressed to passage. Senator Trumbull, Chairman of the Senate Judiciary Committee, who offered the bill in the Senate on behalf of that Committee, had stated that 'the late slaveholding States' had enacted laws '* * * depriving persons of African descent of privileges which are essential to freemen. * * * (S)tatutes of Mississippi * * * provide that if any person of African descent residing in that State travels from one county to another without having a pass or a certificate of his freedom, he is liable to be committed to jail and to be dealt with as a person who is in the State without authority. Other provisions of the statute prohibit any negro or mulatto from having fire-arms; and one provision of the statute declares that for 'exercising the functions of a minister of the Gospel free negroes * * * on onviction, may be punished by * * * lashes. * * *' Other provisions * * * prohibit a free negro * * * from keeping a house of entertainment, and subject him to trial before two justices of the peace and five slaveholders for <332 U.S. 46 , 100> violating * * * this law. The statutes of South Carolina make it a highly penal offense for any person, white or colored, to teach slaves; and similar provisions are to be found running through all the statutes of the late slaveholding States. * * * The purpose of the bill * * * is to destroy all these discriminations. * * *' Cong.Globe, supra, 474.

In the House, after Mr. Bingham's original proposal for a constitutional amendment had been rejected, the suggestion was also advanced that the bill secured for all 'the right to speech, * * * transit , * * * domicil, * * * the right to sue, the writ of habeas corpus, and the right of petition.' Cong.Globe., supra, 1263. And an opponent of the measure, Mr. Raymond, conceded that it would guarantee to the negro 'the right of free passage * * *. He has a defined status * * * a right to defend himself * * * to bear arms * * * to testify in the Federal courts * * *.' Cong.Globe, supra, 1266, 1267. But opponents took the position that without a constitutional amendment such as that proposed by Mr. Bingham, the Civil Rights Bill would be unconstitutional. Cong.Globe, supra, 1154, 1155, 1263.

Mr. Bingham himself vigorously opposed and voted against the Bill. His objection was two fold: First, insofar as it extended the protections of the Bill of Rights as against state invasion, he believed the measure to be unconstitutional because of the Supreme Court's holding in Barron v. Baltimore, supra. While favoring the extension of the Bill of Rights guarantees as against state invasion, he thought this could be done only by passage of his amendment. His second objection to the Bill was that in his view it would go beyond his objective of making the states observe the Bill of Rights and would actually strip the states of power to govern, centralizing all power in the Federal Government. To this he was opposed. His views are in part reflected by his own remarks and the answers to him by Mr. Wilson. Mr. Bingham said, in part: <332 U.S. 46 , 101> '* * * I do not oppose any legislation which is authorized by the Constitution of my country to enforce in its letter and its spirit the bill of rights as embodied in that Constitution. I know that the enforcement of the bill of rights is the want of the Republic. I know if it had been enforced in good faith in every State of the Union the calamities and conflicts and crimes and sacrifices of the past five years would have been impossible.

'But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the Bill of Rights, touching the life, liberty, and property of every citizen of the Republic within every organized State of the Union, is of the reserve powers of the States to be enforced by State tribunals. * * *

'* * * I am with him in an earnest desire to have the bill of rights in your Constitution enforced everywhere. But I ask that it be enforced in accordance with the Constitution of my country.

'* * * I submit that the term 'civil rights' includes every right that pertains to the citizen under the Constitution, laws, the Government of this country. * * *

'* * * The law in every State should be just; it should be no respecter of persons. It is otherwise now, and it has been otherwise for many years in many of the States of the Union. I should remedy that not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future. * * *'

'If the bill of rights, as has been solemnly ruled by the Supreme Court of the United States, does not limit the powers of the States and prohibit such gross njustice b y <332 U.S. 46 , 102> States, it does limit the power of Congress to prohibit any such legislation by Congress.

'* * * (T)he care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country. I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution. * * *' Cong. Globe, supra, 1291, 1292.

Mr. Wilson, House sponsor of the Civil Rights Bill, answered Mr. Bingham's objections to it with these remarks:

'The gentleman from Ohio tells the House that civil rights involve all the rights that citizens have under the Government; that in the terms are embraced those rights which belong to the citizen of the United States as such, and those which belong to a citizen of a State as such; and that this bill is not intended merely to enforce equality of rights, so far as they relate to citizens of the United States but invades the States to enforce equality of rights in respect to those things which properly and rightfully depend on State regulations and laws. * * *

'* * * I find in the bill of rights which the gentleman desires to have enforced by an amendment to the Constitution that 'no person shall be deprived of life, liberty, or property without due process of law.' I understand that these constitute the civil rights belonging to the citizens in connection with those which are necessary for the protection and maintenance and perfect enjoyment of the rights thus specifically named, and these are the rights to <332 U.S. 46 , 103> which this bill relates, having nothing to do with subjects submitted to the control of the several States.' Cong. Globe, supra at 1294.

In vetoing the Civil Rights Bill, President Johnson said among other things that the bill was unconstitutional for many of the same reasons advanced by Mr. Bingham:

'Hitherto every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States. * * * As respects the Territories, they come within the power of Congress, for as to them, the lawmaking power is the federal power; but as to the States no similar provisions exist, vesting in Congress the power 'to make rules and regulations' for them.' Cong. Globe, supra, 1679, 1680.

The bill, however, was passed over President Johnson's veto and in spite of the constitutional objections of Bingham and others. Cong. Globe, supra, 1809, 1861.

IV. Thereafter the scene changed back to the Committee on Reconstruction. There Mr. Stevens had proposed an amendment, 1 of which provided 'No discrimination shall be made by any State, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.' Journal 28. Mr. Bingham proposed an additional section providing that '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.' Journal 30. After the Committee had twice declined to recommend Mr. Bingham's proposal, on April 28 it was accepted by the Committee, substantially in the form he had proposed it, as 1 of the recommended Amendment. Journal 44. <332 U.S. 46 , 104> V. In introducing the proposed Amendment to the House on May 8, 1866, Mr. Stevens speaking for the Committee said:

'The first section (of the proposed amendment) prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of l ife, liberty, or property, or of denying to any person within their jurisdiction the 'equal' protection of the laws.

'I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.' Cong. Globe, 2459.2

On May 23, 1866, Senator Howard introduced the proposed amendment to the Senate in the absence of Senator Fessenden who was sick. Senator Howard prefaced his remarks by stating:

'I * * * present to the Senate * * * the views and the motives (of the Reconstruction Committee). * * * One result of their investigation has been the joint resolution for the amendment of the Constitution of the United States now under consideration. * * *

'The first section of the amendment * * * submitted for the consideration of the two Houses, relates to the privileges and immunities of citizens of the several States, <332 U.S. 46 , 105> and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. * * *

'It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is its first clause, and I regard it as very important. It also prohibits each one of the States from depriving any person of life, liberty, or property without due process of law, or denying to any person within the jurisdiction of the State the equal protection of its laws.

'It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. * * * I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. * * * But we may gather some intimation of what probably will be the opinion of the judiciary by referring to * * * Corfield v. Coryell ( Fed.Cas. No. 3230) 4 Washington Circuit Court Reports, page 380. (Here Senator Howard quoted at length from that opinion.)

'Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; <332 U.S. 46 , 106> the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

'Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution, or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or a prohibition upon state legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

'Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, <332 U.S. 46 , 107> which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees.' Cong.Globe, supra, 2764.

Mr. Bingham had closed the debate in the House on the proposal prior to its consideration by the Senate. He said in part:

'* * * (M)any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.

'It was an approbrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment.' Cong. Globe, supra, 2542, 2543.

Both proponents and opponents of 1 of the amendment spoke of its relation to the Civil Rights Bill which had been previously passed over the President's veto. Some considered that the amendment settled any doubts there might be as to the constitutionality of the Civil Rights Bill. Cong. Globe, 2511, 2896. Others maintained that the Civil Rights Bill would be unconstitutional <332 U.S. 46 , 108> unless and until the amendment was adopted. Cong. Globe, 2461, 2502, 2506, 2513, 2961, 2513. Some thought that amendment was nothing but the Civil Rights 'in another shape.' Cong. Globe, 2459, 2462, 2465, 2467, 2498, 2502. One attitude of the opponents was epitomized by a statement by Mr. Shanklin that the amendment strikes 'down the reserved rights of the States, * * * declared by the framers of the Constitution to belong to the States exclusively and necessary for the protection of the property and liberty of the people. The first section of this proposed amendment * * * is to strike down those State rights and invest all power in General Government.' Cong. Globe, supra, 2500. See also Cong. Globe, supra, 2530, 2538.

Except for the addition of the first sentence of 1 which defined citizenship, Cong. Globe, supra 2869, the amendment weathered the Senate debate without substantial change. It is significant that several references were made in the Senate debate to Mr. Bingham's great responsibility for 1 of the amendment as passed by the House. See e.g. Cong. Globe, supra, 2896.

VI. Also just prior to the final votes in both Houses passing the resolution of adoption, the Report of the Joint Committee on Reconstruction, H.R.Rep.No.30, 39th Cong., 1st Sess. (1866); Sen.Rep.No. 112, 39th Cong., 1st Sess. (1866), was submitted. Cong.Globe, supra, 3038, 3051. This report was apparently not distributed in time to influence the debates in Congress. But a student of the period reports that 150,000 copies of the Report and the testimony which it contained were printed in order that senators and representatives might distribute them among their constituents. Apparently the Report was widely reprinted in the press and used as a campaign document <332 U.S. 46 , 109> in the election of 1866. Kendrick, Journal of the Joint Committee on Reconstruction (1914) 265. According to Kendrick the Report was 'eagerly * * * perused' for information concerning 'conditions in the South.' Kendrick, supra, 265.

The Report of the Committee had said with reference to the necessity of amending the Constitution:

'

* * * (T)he so-called Confederate States are not, at present, entitled to representation in the Congress of the United States; that, before allowing such representation, adequate security for future peace and safety should be required; that this can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic. * * *' Report, supra, XXI.

Among the examples recited by the testimony were discrimination against negro churches and preachers by local officials and criminal punishment of those who attended objectionable church services. Report, Part II, 52. Testimony also cited recently enacted Louisiana laws which made it 'a highly penal offense for anyone to do anything that might be construed into encouraging the blacks to leave the persons with whom they had made contracts for labor * * *.' Report, Part III, p. 25.3

Flack, supra at 142, who canvassed newspaper coverage and speeches concerning the popular discussion of the adoption of the Fourteenth Amendment, indicates that <332 U.S. 46 , 110> Senator Howard's speech stating that one of the purposes of the first section was to give Congress power to enforce the Bill of Rights as well as extracts and digests of other speeches were published widely in the press. Flack summarizes his observation that

'The declarations and statements of newspapers, writers and speakers , * * * show very clearly, * * * the general opinion held in the North. That opinion, briefly stated, was that the Amendment embodied the Civil Rights Bill and gave Congress the power to define and secure the privileges of citizens of the United States. There does not seem to have been any statement at all as to whether the first eight Amendments were to be made applicable to the States or not, whether the privileges guaranteed by those Amendments were to be considered as privileges secured by the Amendment, but it may be inferred that this was recognized to be the logical result by those who thought that the freedom of speech and of the press as well as due process of law, including a jury trial, were secured by it.' Flack, supra, 153, 154.

VII. Formal statements subsequent to adoption of the Amendment by the congressional leaders who particiated in the drafting and enactment of it are significant. In 1871 a bill was before the House which contemplated enforcement of the Fourteenth Amendment. Mr. Garfield, who had participated in the debates on the Fourteenth Amendment in 1866 said:

'I come now to consider * * * for it is the basis of the pending bill, the fourteenth amendment. I ask the attention of the House to the first section of that amendment, as to its scope and meaning. I hope gentlemen will bear in mind that this debate, in which so many have taken part, will become historical, as the earliest legislative construction given to this clause of the amendment. Not only the words which we put into the law, but what shall be said here in the way of defining and interpreting the meaning of the clause, may go far to settle its interpretation and its value to the country hereafter.' Cong. Globe, 42d Cong., 1st Sess. (App. 1871) 150.

'The next clause of the section under debate declares: 'Nor shall any state deprive any person of life, liberty, or property, without due process of law.'

'This is copied from the fifth article of amendments, with this difference: as it stood in the fifth article it operated only as a restraint upon Congress, while here it is a direct restraint upon the governments of the States. The addition is very valuable. It realizes the full force and effect of the clause in Magna Charta, from which it was borrowed; and there is now no power in either the State or the national Government to deprive any person of those great fundamental rights on which all true freedom rests, the rights of life, liberty, and property, except by due process of law; that is, by an impartial trial according to the laws of the land. * * *' Cong. Globe, supra, at 152, 153.

A few days earlier, in a debate on this same bill to enforce the Fourteenth Amendment, Mr. Bingham, still a member of Congress, had stated at length his understanding of the purpose of the Fourteenth Amendment as he had originally conceived it:

'Mr. Speaker, the Honorable Gentleman from Illinois (Mr. Farnsworth) did me unwittingly, great service, when he ventured to ask me why I changed the form of the first section of the fourteenth article of amendment from the form in which I reported it to the House in February, 1866, from the Committee on Reconstruction. I will answer the gentleman, sir, and answer him truthfully. I had the honor to frame the amendment as reported in February, 1866, and the first section, as it now stands, letter for letter, and syllable for syllable, in the fourteenth article of the amendments to the Constitution of the United States, save the introductory clause defining citizens. The clause defining citizens never came from the joint Committee on Reconstruction, but the residue of the first section of the fourteenth amendment did come from the committee precisely as I wrote it and offered it in the Committee on Reconstruction, and precisely as it now stands in the Constitution. * * *

'That is the grant of power. It is full and complete. The gentleman says that amendment differs from the amendment reported by me in February; differs from the provision introduced and written by me, now in the fourteenth article of amendments. It differs in this: that it is now, as it now stands in the Constitution, more comprehensive than as it was first proposed and reported in February, 1866. It embraces all and more than did the February proposition.

'The gentleman ventured upon saying that this amendment does not embrace all of the amendment prepared and reported by me with the consent of the committee in February, 1866. The amendment reported in February, to which the gentleman refers, is as follows: 'The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.'

'That is the amendment, and the whole of it, as reported in February, 1866. That amendment never was rejected by the House or Senate. A motion was made to lay it on the table, which was a test vote on the merits of it, and the motion failed. * * * I consented to and voted for the motion to postpone it. * * * Afterward in the joint Committee on Reconstruction, I introduced this amendment, in the precise form, as I have stated, in which it was reported, and as it now stands in the Constitution of my country. * * *

'I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendments, as they stand, and I trust will forever stand, in the Constitution of my country. I had read-and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States-the great decision of Marshall in Barron v. The Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was: 'The amendments (to the Constitution) contained no expression indicating an intention to apply them to the State governments. This court cannot so apply them.'-7 Pet. page 250.

'In this case the city had taken private property for public use, without compensation as alleged, and there was no redress for the wrong in the Supreme Court of the United States; and only for this reason, the first eight amendments were not limitations on the power of the States.

'And so afterward, in the case of the Lessee of Livingstone v. Moore * * * the court ruled, 'It is now settled that the amendments (to the Constitution) do not extend to the States.' They were but limitations upon Congress. Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights. Those amendments secured the citizens against any deprivation of any essential rights of person by any act of Congress, and among other things thereby they were secured in their persons, houses, papers, and effects against unreasonable searches and seizures, in the inviolability of their homes in times of peace, by declaring that no soldier shall in time of peace be quartered in any house without the consent of the owner. They secured trial by jury; they secured the right to be informed of the nature and cause of accusation which might in any case be made against them; they secured compulsory process for witnesses and to be heard in defense by counsel. They secured, in short, all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments defining and protecting the rights of men and citizens were only limitations on the power of Congress, not on the power of the States.

'In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866 to which the gentleman has alluded, I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: 'Had the framers of these amendments intended them to be limitations on the power of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Barron v. The Mayor, &c., 7 Pet. 250.

'Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said 'No state shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;' imitating their example and imitating it to the letter, I prepared the provision of the first section of the Fourteenth Amendment as it stands in the Constitution, as follows: 'No State shall make or enforce any law which shall abridge the privileges or immunities of the 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.'

'I hope the gentleman now knows why I changed the form of the amendment of February, 1866.

'Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: ( Here Mr. Bingham recited verbatim the first eight articles.)

'These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make.

'Mr. Speaker, that decision in the fourth of Washington's Circuit Court Reports, to which my learned colleague * * * has referred is only a construction of the second section, fourth article of the original Constitution, to wit, 'The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' In that case the court only held that in civil rights the State could not refuse to extend to citizens of other States the same general rights secured to its own.

'In the case of the United States v. Primrose, Mr. Webster said that- 'For the purposes of trade, it is evidently not in the power of any State to impose any hindrance or embarrassment, etc., upon citizens of other States, or to place them, on coming there, upon a different footing from her own citizens.' 6 Webster's Works, 112.

'The learned Justice Story declared that-'The intention of the clause ( 'The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States') was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances.' Story on The Constitution, Vol. 2, page 605.

'Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provisions of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?

'Sir, before the ratification of the fourteenth amendment, the State could deny to any citizen the right of trial by jury, and it was done. Before that the State could abridge the freedom of the press, and it was so done in half the States of the Union. Before that a State, as in the case of the State of Illinois, could make it a crime punishable by fine and imprisonment for any citizen within her limits, in obedience to the injunction of our divine Master, to help a slave who was ready to perish; to give him shelter, or break with him his crust of bread. The validity of that State restriction upon the rights of conscience and the duty of life was affirmed, to the shame and disgrace of America, in the Supreme Court of the United States; but nevertheless affirmed in obedience to the requirements of the Constitution. * * *

'Under the Constitution as it is, not as it was, and by force of the fourteenth amendment, no State hereafter can imitate the bad example of Illinois, to which I have referred, nor can any State ever repeat the example of Georia and send men to the penitentiary, as did that State, for teaching the Indian to read the lesson of the New Testament, to know that new evangel, 'The pure in heart shall see God.'

'* * * You say it is centralized power to restrain by law unlawful combinations in States against the Constitution and citizens of the United States, to enforce the Constitution and the rights of United States citizen (sic.) by national law, and to disperse by force, if need be, combinations too powerful to be overcome by judicial process, engaged in trampling underfoot the life and liberty, or destroying the property of the citizen.

'The States never had the right, though they had the power, to inflict wrongs upon free citizens by denial of the full protection of the laws; because all State officials are by the Constitution required to be bound by oath or affirmation to support the Constitution. As I have already said, the States, did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. They denied trial by jury, and he had no remedy. They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. They bought and sold men who had no remedy. Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in States and by States, or combinations of persons?

'Mr. Speaker, I respectfully submit to the House and country that, by virtue of these amendments, it is competent for Congress today to provide by law that no man shall be held to answer in the tribunals of any State in this Union for any act made criminal by the laws of that state without a fair and impartial trial by jury. Congress never before has had the power to do it. It is also competent for Congress to provide that no citizen in any State shall be deprived of its property by State law or the judgment of a State court without just compensation therefor. Congress never before had the power so to declare. It is competent for the Congress of the United States to-day to declare that no State shall make or enforce any law which shall abridge the freedom of speech, the freedom of the press, or the right of the people peaceably to assemble together and petition for redress of grievances. For these are of the rights of citizens of the United States defined in the Constitution and guarantied by the fourteenth amendment, and to enforce which Congress is thereby expressly empowered. * * *' Cong.Globe, App. 1st Sess., 42d Cong., pp. 81, 83-85.

And the day after Mr. Garfield's address, Mr. Dawes, also a member of the 39th Congress, stated his understanding of the meaning of the Fourteenth Amendment:

'Sir, in the progress of constitutional liberty, when, in addition to those privileges and immunities (secured by the original Constitution), there were added from time to time, by amendments, others, and these were augmented, amplified, and secured and fortified in the buttresses of the Constitution itself, he hardly comprehended the full scope and measure of the phrase which appears in this bill. Let me read, one by one, these <332 U.S. 46 , 119> amendments, and ask the House to tell me when and where and by what chosen phrase has man been able to bring before the Congress of the country a broader sweep of legislation than my friend has in the bill here. In addition to the original rights secured to him in the first article of amendments, he had secured the free exercise of his religious belief, and freedom of speech and the press. Then he had secured to him the right to keep and bear arms in his defense. Then, after that, his home was secured in time of peace from the presence of a soldier; and, still further, sir, his house, his papers, and his effects were protected against unreasonable seizure. * * *

'Then, again, as if that were not enough, by another amendment he was secured against trial for any alleged offense except it be on the presentation of a grand jury, and he was protected against ever giving testimony against himself. (Italics supplied.) Then, sir, he was guarantied a speedy trial, and the right to confront every witness against him. Then in every controversy which should arise he had the right to have it decided by a jury of his peers. Then, sir, by another amendment, he was never to be required to give excessive bail, or be punished by cruel and unusual punishment. And still later, sir, after the bloody sacrifice of our four years' war, we gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens who sprang into being, as it were, by the wave of a magic wand. Still further, every person born on the soil was made a citizen and clothed with them all.

'It is all these, Mr. Speaker, which are compresended in the words 'American citizen,' and it is to protect and to secure him in these rights, privileges, and immunities this bill is before the House. And the question to be settled is, whether by the Constitution, in which these provisions are inserted, there is also power to guard, protect, and enforce these rights of the citizens; whether they are more, indeed, than a mere declaration of rights, carrying with it no power of enforcement. * * *' Cong.Globe, 42d Cong., 1st Sess. Part I (1871) 475, 476.

VIII. Hereafter appear statements in opinions of this Court rendered after adoption of the Fourteenth Amendment and prior to the Twining case which indicate a belief that the Fourteenth Amendment, and particularly its privileges and immunities clause, was plain application of the Bill of Rights to the states. See 332 U.S. 75 , note 6, supra.

In the Slaughter-House Cases, 16 Wall. 36, 83, the dissenting opinion of Mr. Justice Field emphasized that the Fourteenth Amendment made a 'citizen of a State * * * a citizen of the United States residing in that State.' 16 Wall. at page 95. But he enunciated a relatively limited number of privileges and immunities which he considered protected by national power from state interference by the Fourteenth Amendment. Apparently dissatisfied with the limited interpretation of Mr. Justice Field, Mr. Justice Bradley, although agreeing with all that Mr. Justice Field had said, wrote an additional dissent. 16 Wall. at page 111. In it he said:

'But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal Government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privilegesand immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.' 16 Wall. at pages 118, 119; see also 16 Wall. at pages 120-122.

Mr. Justice Swayne joined in this opinion but added his own not inconsistent views. 16 Wall. at page 124.

But in Walker v. Sauvinet, 92 U.S. 90, 92 , when a majority of the Court held that 'A trial by jury in suits at common law pending in the State courts is not * * * a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge,' Mr. Justice Field and Mr. Justice Clifford dissented from 'the opinion and judgment of the Court.' 92 U.S. at page 93.

In Spies v. Illinois, 123 U.S. 131 , counsel for the petitioners, Mr. J. Randolph Tucker, after enumerating the protections of the Bill of Rights, took this position:

'* * * Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights-common law rights-of the man, they make them privileges and immunities of the man as citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words, while the ten Amendments, as limitations on power, only apply to the Federal government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power, as the ten Amendments had limited Federal power.

'* * * the rights declared in the first ten amendments are to be regarded as privileges and immunities of citizens of the United States, which, as I insist, are protected as such by the Fourteenth Amendment.' 123 U.S. at pages 151, 152.

The constitutional issues raised by this argument were not reached by the Court which disposed of the case on jurisdictional grounds.

However, Mr. Justice Field in his dissenting opinion in O'Neil v. Vermont, 144 U.S. 323, 337 , 361, 698, 707, stated that 'after much reflection' he had become persuaded that the definition of privileges and immunities given by Mr. Tucker in Spies v. Illinois, supra, 'is correct.' And Mr. Justice Field went on to say that 'While, therefore, the ten amendments as limitations on power, and, so far as they accomplish their purpose and find their fruition in such limitations, are applicable only to the federal government and not to the states, yet, so far as they declare or recognize the rights of persons they are rights belonging to them as citizens of the United States under the constitution; and the fourteenth amendment, as to all such rights, places a limit upon state power by ordaining that no state shall make or enforce any law which shall abridge them. If I am right in this view, then every citizen of the United States is protected from punishments which are cruel and unusual. It is an immunity which belongs to him, against both state and federal action. The state cannot apply to him, any more than the United States, the torture, the rack, or thumb-screw, or any cruel and unusual punishment, or any more than it can deny to him security in his house, papers, and effects against unreasonable searches and seizures, or compel him to be a witness against himself in a criminal prosecution. These rights, as those of citizens of the United States, find their recognition and guaranty against federal action in the constitution of the United States, and against state action in the fourteenth amendment. The inhibition by that amendment is not the less valuable and effective because of the prior and existing inhibition against such action in the constitutions of the several states. * * *' 144 U.S. at page 363, 12 S.Ct. at page 708.

Again, you may read the entire case, including convenient footnotes: ADAMSON V. CALIFORNIA

Now, when the Right cries about activist judges, you know exactly what to tell them, who, what, where, when, and why.