Wednesday, April 22, 2009

It's Time to Work Out a Coherent Basis for Incorporation

David Gans, the Director of the Human & Civil Rights Program at the Constitutional Accountability Center, argued earlier this week that Monday's Ninth Circuit Second Amendment case gets us closer to working out a coherent basis for incorporation of the Bill of Rights via the Fourteenth Amendment Privileges or Immunities Clause (and not the Due Process Clause).  Gans:

The Nordyke opinion moves our country a big step closer to a historic opportunity for the Supreme Court to finally recognize that Slaughter-House was wrong when written, and restore the Privileges or Immunities Clause to its rightful place.

Gans and CAC founder and President Douglas Kendall published an important report late last year tracing the history of the P or I Clause and arguing that it, not the Due Process Clause, was originally (and still is) the proper basis for incorporation.  They also filed an amicus brief making this argument in the Seventh Circuit Second Amendment case.

Gans's post is an excellent analysis of this component--incorporation via P or I--of the Ninth Circuit decision.  But I'll add to Gans's post this:  The Ninth Circuit's narrow, almost too clever rejection of P or I as a basis of incorporation is itself a clear illustration of the disarray in incorporation jurisprudence and a strong argument for clarifying incorporation doctrine by using the much simpler, more obvious, and historically correct vehicle of the P or I Clause.

This is what I mean.  The Ninth Circuit rejected the P or I Clause as the basis for incorporation by turning to its own prior ruling on the issue in Fresno Rifle.  The Ninth Circuit in that case rejected Second Amendment incorporation, but it didn't specify the clause--P or I, or Due Process--upon which it rejected incorporation.  So the Nordyke panel looked more closely at Fresno Rifle and discovered that Fresno Rifle relied upon Cruikshank and Presser--two cases that "involved direct application and incorporation through the Privileges and Immunities Clause, but not incorporation through the Due Process Clause."  Thus, the Nordyke panel said, Fresno Rifle was really a rejection of incorporation via P or I.  The Nordyke panel made Fresno Rifle into the Ninth Circuit's Slaughterhouse, or at least its Cruikshank and Presser.

This is exactly the kind of analytical gymnastic--building bad case cleverly upon bad cases--that, at the Supreme Court, led to the "current disarray" of Fourteenth Amendment jurisprudence.  Saenz v. Roe (Thomas, J., dissenting).

This is more than just critique of the Ninth Circuit's approach.  It's also a prudential argument--to complement Gans and Kendall's originalism and textual arguments--to work out a coherent basis for incorporation now. 

If the Ninth Circuit needs to make this kind of clever maneuver to incorporate via Due Process--and to avoid incorporation via P or I--isn't it time for the Court to overturn Slaughterhouse and incorporate via the much cleaner P or I?


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Restoring privileges and immunities is not the answer. Realizing that there are two citizens under the Constitution of the United States since the adoption of the Fourteenth Amendment is.

In the Slaughterhouse Cases, the Supreme Court held that citizenship of a State was separate and distinct from citizenship of the United States; that a citizen of a State was separate and distinct from a citizen of the United States:

“Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respective are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause (Section 1, Clause 2 of the Fourteenth Amendment) under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873).

That there are two citizens; a citizen of the United States, and a citizen of a State who is not a citizen of the United States, is shown in the following case of the Supreme Court of the United States, Sun Printing & Publishing Association v. Edwards (194 U.S. 377):

"As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 - 383 (1904).

Posted by: Warren Hathaway | Sep 20, 2011 10:14:46 PM