Review: No state shall abridge the fourteenth amendment and the bill of rights by Michael Kent Curtis

The Fourteenth Amendment, the longest and most complete, is without doubt the most significant. It was an attempt by the 39th Congress to constitutionalize the Civil Rights Act of 1865 that President Andrew Johnson had vetoed, the first veto of a major piece of legislation to be overridden by Congress. The first section included four significant clauses: the Citizenship Clause, the Equal Protection Clause, the Due Process Clause, and the Privileges or Immunities Clause (note "or" not the "and" of Article IV.) Each of the clauses has had enough of an impact to be worthy of being considered a new Constitution, the third if you count the Articles of Confederation as the first.

Barron v Baltimore(1833) had applied the Bill of Rights to federal jurisdiction only. Recent scholarship, epitomized by Curtis in this book is arguing that jurisprudence since the 1870's has ignored the history of the 39th Congress discussions that, he says, clearly intended to apply to Billof Rights to the states. Certainly the text would seem to so indicate. Section 1, following the first sentence that made freed slaves citizens (thus overturning Dred Scott, begins "No state shall..." On the face of it, that would seem to be as clear an indication as of intent as possible.

Nevertheless, the Supreme Court decisions, beginning with the infamous Slaughterhouse Cases, and the Cruikshank case refused to accept this and argued the due process clause still applied only to federal jurisdiction. Thus was the 14th amendment completely defanged leaving many of the Black Codes and segregation laws in place and making the Civil Rights Act of 1875 just a piece of paper. Justices Hugo Black (ironically former KKK member) and Frankfurter (former darling of the left who became a staunch advocate of judicial restraint) battled over the historical basis for the 14th. Black's dissents in cases made it clear that he believed the 14th was intended to apply the Bill of Rights to the states. Frankfurter and Charles Fairman belittled any opposition to their view that this position was nonsense. Frankfurter believed the Due Process Clause just gave the Supreme Court too much power, and I'm sure he is spinning in his grave at what was accomplished by the Warren Court that used the Due Process Clause to selectively apply much of the Bill of Rights to the states. Brown v. Board of Education, overturning the infamous Plessy decision of "separate but equal" notoriety would never have been possible without it.

Professor Curtis and others like William Crosskey challenged Frankfurter and Fairman and their view seems to have won, even though antagonism to application of the Bill of Rights under the 14th was rampant even in the eighties. Justice Clarence Thomas has taken an even more interesting approach arguing that the Due Process Clause has been used inconsistently to apply the Bill of Rights to the states and he maintains, referring to historical evidence, that the clear intent of the 39th Congress, under Bingham, Stevens, and Trumbell, and the Republican majority, was to use the Privileges or Immunities Clause to make the application. His concurrence in MacDonald lays it out very nicely.

Curtis has written an excellent summary of the history of the controversy including a thorough rebuttal to Supreme Court's jurisprudence in this regard in the late 19th and early 20th centuries. Curtis points out that Slave Power suppression of free speech rights, the "gag rule" for example, and the suppression of due process through the Fugitive Slave Acts, before the Civil War radicalized the Republican Party, which, thanks to secession, gave them complete control of the Senate and the House. The attempts to push slavery into the territories of Kansas and Nebraska, the elimination of the Missouri Compromise, and their justifiable fear that Justice Taney might declare in the Lemmon v New York case then moving its way through the courts, that slavery could not be declared illegal in the states, all contributed to this radicalization. Clearly, their intent was to force the Bill of Rights on the states and overturn Barron (Bingham had even brought a copy of the decision to read on the floor of the House, many members not being familiar with it.

Good companion books to read with this one:

1. Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863-1869 (New York: Norton, 1974)

2. Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post Civil War America (New York: Henry Holt, 2013), Kindle

3. Gerard N Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment ([Place of publication not identified]: New York University Press, 2016), Kindle

4. Epps, Garrett, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (New York: MacMillan, 2013) Kindle

I rarely watch TV, in fact it hasn't even been on in weeks except for one Netflix movie. This morning I was reminded why. We were staying at a hotel while visiting the kids, and I thought rather than fire up the laptop I could quickly tune in to the weather. Wrong. All I found on the morning shows -- all of them -- was incessant self-promotional babel and giggle time about the each person's silly little peccadilloes. The weather, what there was of it, scrolled across the bottom of the screen providing only the barest hint that the ice might be a problem. The narcissistic clamor was interrupted only by a multitude of commercials. Wasteland doesn't begin to describe it. And these folks make millions?

Review: The Hunter's Prayer by Kevin Wignall

I am really beginning to enjoy the books of Kevin Wignall. They are intelligent thrillers, each a standalone, that have an above average vocabulary. Where else could one discover the word "shambolic." Good word.

The protagonist is an interesting character. Lucas, an ex-assassin (although it's never made quite clear), he has been hired to protect, Ella, on vacation in Italy, the daughter of a wealthy man who made his money in rather heinous ways. At the start of the book, Ella's father, mother, and brother have all been assassinated. As the book moves from perspective to perspective, we follow Lucas, doing his best to protect his charge. (One nice touch: Lucas is an inveterate reader, never going anywhere without a book. When was the last time you saw a movie hero carrying a book around with him on missions.) Fascinating as Ella begins to go off the rails with a most satisfactory ending.

The movie is vastly different with a different premise. One thing that has always bothered me about these kinds of stories both in print and film. The protagonists never, ever, have money problems. Needs a flight to athens, no problem, first class ticket, no problem. Yet there never seem to have a job or source of income. Nor do they ever have to pee or get their periods, or have diarrhea from eating strange food. Got to be a lucky group of people.

Review: Poison Artist by Jonathan Moore

Yikes!. How to review this book and avoid spoilers, and while I generally have no problem with spoilers, in this case letting you know that the light at the end of the tunnel is indeed a train might ruin the splat.

Caleb's girlfriend, Bridget, has left him after throwing an ashtray at his head. We are not sure precisely what the infraction might have been (nor do we ever find out for certain although the hints are there,) but while drowning his sorrows in the bar he sees a stunning woman, an instant infatuation. Caleb is doing research on the physical manifestations of pain, e.g. hormones released, etc. Chemicals. "Guy gets hurt, his endocrine system responds. Adrenaline, endorphins. Damaged cells dump out different histamines. There’s paracrine signaling going on—that’s cell-to-cell communication—with compounds like prostaglandin and thromboxane. Bunch of other stuff. Pain leaves markers, and I’m following them. To quantify it."

He's also an expert in bizarre toxins. “Batrachotoxin." ...."The median lethal dose is ninety micrograms—a couple grains of salt,” Caleb said. “And all you’d have to do is touch it.” People start turning up loaded with this toxin.

I shall say no more other than to recommend this book if you have an interest in the bizarre mechanisms of the mind. Whether the events here represent anything approaching reality is a bit frightening.

Bingham, the Johnson Veto, and Privileges and Immunities (cont.)

The Civil Rights Act of 1866 was vetoed by President Andrew Johnson. Part of his rationale for the veto was that the Congress lacked the authority to confer national citizenship. He also used the words “privileges and immunities” in a new context. In 1866, Johnson had already vetoed the expansion of the Freedman Act that had come out of the Senate, sponsored by Charles Sumner’s Select Committee on Slavery and Lyman Trumbull (a veto that was over-ridden). Johnson’s rationale was that it expanded the power of the federal government at the expense of the states, and he was anxious to return the southern states back into the union as expeditiously as possible and with as little inconvenience to their former status.

The 38th and 39th Congress had other ideas, arguing that the southern states had rebelled, taken themselves out of the Union and therefore would have to reapply under conditions set by the Republican Congress. Ironically, Johnson, by suggesting that a constitutional amendment would be needed to do what the Congress wanted in the Freedman Act and Civil Rights Act, may have forced them to do just that in the 14th Amendment.

The south had always assumed that should their rebellion fail, it wouldn’t matter that much because, as Garrett Epps pointed out in his book Democracy Reborn, a prominent southern paper had written “Universal assent appears to be given to the proposition that if the States lately rebellious be restored to rights of representation according to the federal basis, or to the basis of numbers enlarged by the enumeration of all the blacks in the next census, the political power of the country will pass into the hands of the South, aided, as it will be, by Northern alliances. The South claims that this will be the fact, and the North does not dispute it.” So fears of a southern reversal of everything that had been gained by the war were not unfounded.

Johnson’s sustained attempt to defeat the Amendment both deepened and helped shape public understanding of the proposed text and its impact on the autonomy of the States. It was President Johnson, for example, who first declared that congressional efforts to protect the “privileges and immunities of citizens of the United States” required a constitutional amendment. When Congress submitted a proposed amendment that adopted the President’s own phrases Johnson responded by challenging the very legitimacy of the Republican Congress and making opposition to the Amendment the focus of the Democratic platform in the fall elections. The Democrats were soundly defeated gave the 39th Congress a complete Republican majority. That gave them the authority they needed to propose the Amendment and nationalize the Bill of Rights.

Johnson’s suggestion that Congress lacked constitutional authority to confer the status of national citizenship would ultimately lead to the addition of the citizenship clause of the Amendment. But even more importantly, Johnson introduced the language of the rights of national citizenship to the legislative and public debate. Johnson announced in one of his speeches of 1866, that Congress had sought to confer the “privileges and immunities of citizens of the United States,” a category of rights altogether different from the state conferred rights protected under the Comity Clause. (Article IV of the Constitution that had been interpreted to mean only that states had to honor the privileges conferred on state citizens across state lines.) Johnson’s reference regarding the rights of national citizenship would soon become a part of the Fourteenth Amendment.

Bingham himself mocked the opposition for claiming they were "not opposed to the bill of rights," but only opposed to their federal enforcement. If states had no authority to violate the Bill of Rights, "how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?” Such enforcement was essential, argued Bingham, in light of Chief Justice Marshall's Supreme Court's ruling in Baron v. Baltimore which had decided that the Bill of Rights applied only to the federal government and authority and not the states. Actions in the south that clearly were intended to remove protections from freedmen necessitated federal enforcement and application to the states, especially of due process and the privileges and immunities of citizenship.




Sources: Lash, Kurt T. "The Constitutional Referendum of 1866: Andrew Johnson and the Original Meaning of the Privileges or Immunities Clause." SSRN Electronic Journal, 2012. doi:10.2139/ssrn.2125363.

Epps, Garrett. Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post Civil War America. New York: Henry Holt, 2013. Kindle.