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Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: The passing of CallliiProp. 63 is a violation of Section 1 of the 14th Amendment i Source: email URL Source: [None] Published: Nov 14, 2016 Author: email Post Date: 2016-11-14 20:11:21 by tpaine Keywords: None Views: 6612 Comments: 27 ll The passing of California bill 63 is a violation of Section 1 of the 14th Amendment. 14th Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [emphasis added]; 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. Note that the congressional record shows that John Bingham, the main author of Section 1, had included the 2nd Amendment in his official examples of amendments that 14A applied to the states. (See middle area of 2nd column of referenced page.) "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." — John Bingham, Appendix to the Congressional Globe Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 20. #6. To: tpaine, civilwarbuff (#0) Note that the congressional record shows that John Bingham, the main author of Section 1, had included the 2nd Amendment in his official examples of amendments that 14A applied to the states. (See middle area of 2nd column of referenced page.) "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." — John Bingham, Appendix to the Congressional Globe John Bingham and House Debate on the Fourteenth Amendment by nolu chan July 20, 2009 Congressional Globe, U.S. House of Representatives, February 28, 1866, page 1033 Rep. John Bingham speaking. The is the proposed Fourteenth Amendment as originally drafted and submitted to Congress by John Bingham. It would have given very broad powers to Congress. This died for lack of support. RIGHTS OF CITIZENS. Mr. BINGHAM, from the select joint committee on reconstruction, reported back a joint resolution (H. R. No. 63) proposing an amendment to the Constitution of the United States. The joint resolution was read, as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring.) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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, and to all persons in the several States equal protection in the rights of life, liberty, and property. Compare Bingham's original phrasing with what finally passed as part of Section 1: 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. The adopted phrasing says nothing about giving any new power to Congress. - - - Congressional Globe, U.S. House of Reprsentatives, February 28, 1866, p. 1088 Rep. John Bingham speaking: I have had occasion to say more than once, that the people of the United States have intrusted to the present Congress in some sense the care of the Republic, not only for the present, but for all the hereafter. Your committee, sir, would not have sent to this House for its consideration this proposition but for the conviction that its adoption by Congress and its ratification by the people of the United States is essential to the safety of all the people of every State. I repel the suggestion made here in the heat of debate, that the committee or any of its members who favor this proposition seek in any form to mar the Constitution of the country, or take away from any State any right that belongs to it, or from any citizen of any State any right that belongs to him under that Constitution. The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to­day. It hath that, extent — no more." It is in these words: Joint resolution proposing an amendment to the Constitution of the United States. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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, and to all persons in the several States equal protection in the rights of life, liberty, and property. - - - Congressional Globe, U.S. House of Reprentatives, February 28, 1866, p. 1089 Rep. John Bingham speaking: We have the extraordinary argument of the gentleman from Pennsylvania, [Mr. Randall,] that however just the amendment may be we ought not to pass it in the absence of the Representatives of the eleven States lately in insurrection against the country. When it came to pass that there was an inability to get three-fourths of the union states to ratify the proposed Fourteenth Amendment, the eleven states mentioned were required to ratify it as a condition of regaining representation in Congress. That is part of how this amendment was questionably ratified. - - - Congressional Globe, U.S. House of Representatives, February 28, 1866, p. 1093 Mr. Bingham speaking. I beg leave to read, in confirmation of the truth of what I say, an utterance made in the hearing of the whole people of this country in 1783, when the Constitution was on trial for its deliverance. I read from No. 45 of the Federalist, a paper written by James Madison : "The powers reserved to the Federal States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." I submit that this is the text of the Constitution, except as to the new amendment prohibiting slavery, and providing for legislation to prevent it except as punishment for crime. It stands as the ruling of the Supreme Court of the United States in the great case of McCullough vs. The State of Maryland, in 4 Wheaton. It stands as the ruling of the same tribunal in the ease of Ogden vs. Gibbons, in 9 Peters. It stands, in short, as the uniform ruling of the Supreme Court of the United States, concurring with the continued action of the other depart­ments of the Government from the year 1789 till this hour, there being no law anywhere upon our statute-books to punish penally any State officer for denying in any State to any citizen of the United States protection in the rights of life, liberty, and property. It stands as the very text of the Constitution itself, which de­clares that— "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people." The word "powers" controls the whole question. The Government of the United States has no legislative powers, save the express grants and the general grant to pass all laws which shall be necessary and proper to carry into execution all other powers vested by the Constitution in the Government of the United States, or in any department or any officer thereof, and the implied powers necessary to carry the express powers into effect. A grant of power, according to all construction, is a very different thing from a bill of rights. In attempting to sell his amendment, John Bingham admitted the limited powers of the Federal government. - - - Congressional Globe, U.S. House of Representatives, February 28, 1866, p. 1095 Mr. Hotchkiss and Mr. Bingham speaking. [Mr. Hotchkiss] ... I understand the amendment as now proposed by its terms to authorize Congress to establish uniform laws throughout the United States upon the subject named, the protection of life, liberty, and property. I am unwilling that Congress shall have any such power. Congress already has the power to establish a uniform rule of naturalization and uniform laws upon the subject of bankruptcy. That is as far as I am willing that Congress shall go. The object of a Constitution is not only to confer power upon the majority, but to restrict the power of the majority and to protect the rights of the minority. It is not indulging in imagination to any great stretch to suppose that we may have a Congress here who would establish such rules in my State as I should be unwilling to be governed by. Should the power of this Government, as the gentleman from Ohio fears, pass into the hands of the rebels, I do not want rebel laws to govern and be uniform throughout this Union. Mr. BINGHAM. The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizen of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution. Mr. HOTCHKISS. Constitutions should have their provisions so plain that it will be unnecessary for courts to give construction to them; they should be so plain that the common mind can understand them. - - - Note: Five years later. Cong. Globe, 42nd Cong., 1st Sess., pt. 2, Appendix, March 31, 1871 p. 84 Mr. Bingham speaking. These eight articles [Bingham recited the Bill of Rights] 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 or 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. The implied power, here summoned by Bingham in 1871, is the exact power he expressed in his original proposal which was rejected because of it. He removed the grant of any such power in order to obtain passage, and then he inferred it back in. - - - The U.S. Supreme Court swiftly inferred it back out. http://supreme.justia.com/us/83/36/case.html U.S. Supreme Court, Slaughterhouse Cases, 83 U.S. 36, 75-79 (1872) In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation, we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase. Fortunately, we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823. [Footnote 11] [76] "The inquiry," he says, "is what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole." This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland, [Footnote 12] while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure. In the case of Paul v. Virginia, [Footnote 13] the court, in expounding this clause of the Constitution, says that "the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens in the latter [77] States under the constitution and laws by virtue of their being citizens." The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection beyond the very few express limitations which the Federal Constitution imposed upon the States -- such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow if the proposition of the [78] plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt. We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges [79] and immunities of citizens of the United States which no State can abridge until some case involving those privileges may make it necessary to do so. - - - - - nolu chan  posted on  2016-11-15   1:24:18 ET  Reply   Untrace   Trace   Private Reply   #7. To: tpaine, civilwarbuff (#6) WHAT JOHN BINGHAM SAID IN 1868 John Bingham, co-author of the 14th Amendment, Congressional Globe, 40th Cong, 2nd Sess, Jan 14, 1868, pp 514-15: http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=079/llcg079.db&recNum=877 http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=079/llcg079.db&recNum=878 We say to those States: "Before you send Representatives to this Hall you must accept the decree which twenty-three States of this Union have already solemnly ratified, declaring that no State of this Union shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deny to any person the equal protection of the laws." [...] There is not an intelligent man in America but knows that this spirit and intent of the Constitution was most flagrantly violated long anterior to the rebellion, and that the Government was power­less to remedy it by law. That amendment proposes hereafter that this great wrong shall be remedied by putting a limitation expressly into the Constitution, coupled with a grant of power to enforce it by law, so that when either Ohio or South Carolina or any other State shall in its madness or its folly refuse to the gen­tleman or his children or to me or to mine any of the rights which pertain to American citizenship or to a common humanity, there will be redress for the wrong through the power and majesty of American law. nolu chan  posted on  2016-11-15   1:26:05 ET  Reply   Untrace   Trace   Private Reply   #10. To: nolu chan (#7) 2 excellent posts nolu chan, thanks for them.... civilwarbuff  posted on  2016-11-15   8:18:56 ET  Reply   Untrace   Trace   Private Reply   #11. To: civilwarbuff (#10) Do you have any comments about the issue, -- or are you just here as a sycophant? tpaine  posted on  2016-11-15   8:29:22 ET  Reply   Untrace   Trace   Private Reply   #13. To: tpaine (#11) I am impressed you could even spell syncophant......Did you even bother to read the articles? civilwarbuff  posted on  2016-11-15   14:44:13 ET  Reply   Untrace   Trace   Private Reply   #20. To: civilwarbuff (#13) I am impressed you could even spell syncophant......Did you even bother to read the articles? Some here specialize in imaginary law. For example, they maintain that amendments to the Constitution can be struck down as unconstitutional, and that U.S. Supreme Court opinions interpreting the Constitution only apply to the parties to the lawsuit and everyone else may ignore them. Welcome to the Outer Limits and the Twilight Zone. nolu chan  posted on  2016-11-16   20:34:30 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 20.         There are no replies to Comment # 20. End Trace Mode for Comment # 20. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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