Bill of Rights: Creation and Reconstruction

The Bill of Rights: Creation and Reconstruction


Are the deep insights of Hugo Black, William Brennan, and Felix Frankfurter that have defined our cherished Bill of Rights fatally flawed? With meticulous historical scholarship and elegant legal interpretation a leading scholar of Constitutional law boldly answers yes as he explodes conventional wisdom about the first ten amendments to the U.S. Constitution in this incisive new account of our most basic charter of liberty. Akhil Reed Amar brilliantly illuminates in rich detail not simply the…

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Another clause in the constitution protects same-sex marriage?(r/PoliticalDiscussion)

OK. Funny as hell story about this.

To get the full picture you need to crack a book: “The Bill Of Rights” (2000) by Yale law professor Akhil Reed Amar:…

The short form:

The guy that wrote the opening paragraph of the 14th Amendment (Ohio Republican John Bingham) was trying to overturn a prior US Supreme Court decision – the infamous Dred Scott case of 1856 that had helped trigger the Civil War. That case said that not only slavery was OK, so were racist laws. You really need to read it because sadly it made a very good case that the US up to that time had been a racist nation our whole history.

The most important part of Dred Scott was a listing of what civil rights blacks (FREE or slave) didn’t have:

> For if they [read: blacks] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

Note the bit in bold (emphasis added by me). This was the part of the decision, specifically, that Bingham was trying to get us to overturn the Dred Scott decision which despite the civil war was good case law as of 1868. The passage of the 14th Amendment of 1868 took the language of Dred Scott, the exact phrase you’re looking at, and tried to turn it on it’s head.

Ain’t clear yet? OK. Right before the bit of the 14th Amendment you quoted, the 14th Amendment declares all blacks freed in the US to be US citizens, unless by some miracle any were still alive who had been born in Africa (highly unlikely by 1868!).

The 14th Amendment passage you cite was supposed to give everybody in the US, black or white or whatever, protection from any state violating the “privileges or immunities of US citizenship” as defined by the Dred Scott decision in the paragraph I quoted.

Now, most of that paragraph covers aspects of the Bill of Rights. But not all of it. Note the “free travel without pass or passport” clause. What this means is, the “privileges or immunities” are “the Bill of Rights and then some”…or it is sometimes phrased as “the traditional rights of free Englishmen”. Or somedamnthing.

So what the fuck happened?

Well I’ll tell you…the Supreme Court happened. In a series of decisions that plain sucked they pretended (and STILL pretend!) not to know what the 14th Amendment means. Even though Amar is the #2 Constitutional scholar in the US and his research (and direct quotes to what John Bingham said at the time) have been endorsed by Lawrence Tribe, who is the #1 US Constitutional scholar.

The first decision regarding the new 14th Amendment at all was Ward v. Maryland 1870, which was interesting and I would say the court got that one right. Ward was a merchant from New Jersey who was selling stuff in Maryland and was subject to extra taxes MD was putting on out-of-state merchants. Ward complained and the Supremes said that the “privileges and immunities clause” of the 14th acted as a barrier to states discriminating against residents of another state.

The first decision screwing things up was the “Slaughterhouse Cases”. Go read up on it but the short form is, they agreed with the logic in Ward but then said that that was ALL the PorI clause did – act as a barrier to inter-state abuses by one state against the citizens of another. States were free to fuck with the civil rights of their own state residents without federal interference (by enforcement of the 14th Amendment).

The wheels totally fell off with the final decision in the US v. Cruikshank case, which is listed as an 1875 case but the final decision wasn’t until 1876…in which case they said that the federal government could not prosecute civil rights violations by local and state government actors and freed the motherfuckers who did this:

This is the decision that took the federal government out of the civil rights protection biz for 75 years, and caused at least 4,000 lynchings.

Now, the Supremes know now that they done fucked up. How do we know? In a 2008 case (Heller v. DC) they cited with positive regard the 2008 book “The Day Freedom Died” by Charles Lane, in which “the day” is the day the final decision in Cruikshank came down.

Ok, this is getting long, prolly have to continue…

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The Bill of Rights: Creation and Reconstruction

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