The Fourteenth Amendment and the Privileges and Immunities of American Citizenship

Abstract

the fourteenth amendment and the privileges and immunities of american citizenship This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of "the privileges and immunities of citizens of the United States" from the early years of the Constitution to the critical national election of 1866. For the first ninety-two years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power. Kurt T. Lash holds the Guy Raymond Jones Chair in Law at the University of Illinois College of Law where he directs the Program on Constitutional Theory, History, and Law. A graduate of Yale Law School, Lash has served as the Chair of the Association of American Law Schools' Section on Constitutional Law, and his work has been cited by state and federal courts of all levels, including the United States Supreme Court. He has authored numerous articles and books on constitutional history and law, and his work has been published by the Stanford

The Fourth Amendment

“…According to him, "the substance of state-level common law rights were matters rightfully left to state control under the Tenth Amendment." 123 Thus, like many of his colleagues, Bingham opposed federalizing these common-law rights; he just did not read his proposal as doing so. 124 Because Bingham believed that the rights already contained in the Constitution, such as the Bill of Rights, were appropriate for federal protection, he answered the charge that his first draft would lead to consolidation of power by repeating his claim that the Bill of Rights already bound the States.…”

“…130 Less than two weeks earlier, he had witnessed the spectacle of eight Senators who had voted for the Second Freedmen's Bureau Bill switch sides to block an override of Johnson's veto. 131 An earlier version of section 2 of the Fourteenth Amendment relating to Black suffrage had also failed in the Senate for much the same reason. 132 These two experiences showed Bingham that "only those civil rights measures that received virtually unanimous support from mainstream Republicans could be adopted."…”

“…122 In one case there, a Black man was accosted by militiamen who threw him down and kicked and stomped on him, breaking his breastbone. 123 In Amite County, Mississippi, one com-pany of militiamen were responsible for severely flogging three Black women, possibly killing one of them, in one night. 124 Violence and other mistreatment by militias, organized patrols, and government officials was especially pernicious because, as one observer put it, "[t]hey give the color of law to their violent, unjust, and sometimes inhuman proceedings."…”

“…The Assistant Commissioner of the Bureau in South Carolina could point to only a single case in which a white man was convicted of murdering a formerly enslaved person, while the rest had "escaped punishment either by the failure of the grand jury to [indict] them, or, if tried, they were acquitted." 131 And if a white man was somehow convicted for a crime against a Black person, the sentence imposed was sure to be ridiculously lenient: fines of five cents, a dollar, five dollars for serious assaults, one minute of imprisonment for a murder. 132 Prospects for justice for loyalists were little better; federal Judge John C. Underwood testified that in Virginia "a Union man could [not] expect to obtain justice in the courts .…”

The Lost Due Process Doctrines

“…The bartender asks him for his "poison" and his opinion as to the legitimacy of substantive due process. After asking for the "usual," the patron answers that there is no persuasive justification for the self-assumed "void-for-vagueness doctrine"); Horne, 135 S. Ct. at 2427-28 (holding that raisins are "property"); Kerry, 135 S. Ct. at 2138 (holding that denial of a person's visa application does not violate the "liberty" interests of his spouse); Kaley v. United States, 134 S. Ct. 1090, 1105(2014 (holding that pretrial forfeiture of funds associated with a crime that could be used for criminal defense attorney's fees does not violate due process); Burrage v. United States, 134 S. Ct. 881, 892 (2014) (adverting to the due process void-for-vagueness doctrine); Daimler AG v. Bauman, 134 S. Ct. 746, 753-58 (2014) (applying the personal jurisdiction doctrine).…”