an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One theme that emerges from an examination of John Bingham's understanding of the Fourteenth Amendment is that: (1) he wanted the Bill of Rights to apply to the States; and (2) he thought only citizens were entitled to the protections of everything in the first eight amendments. Non-citizens were entitled to due process and equal protection, but not to something like, say, the right to bear arms. The Supreme Court, though, has completely obliterated Section One's distinction between citizens and persons by incorporating most of the Bill of Rights through the Due Process Clause which, of course, applies to all persons.
Nevertheless, there now appears to be a movement to resurrect Bingham's distinction as between legal residents (citizens and aliens) and illegal residents. In other words, courts seems hesitant to say that illegal aliens have, for example, a right to bear arms or certain other protections in the Bill of Rights even though the right is recognized as fundamental under the Due Process Clause.
I'm not sure what to make of this trend. In some sense it captures the original understanding (and textual meaning) of Section One, but on the other hand it requires judges to distinguish rights that are fundamental and apply to all legal persons from those which are "super fundamental" and therefore must apply to all persons--legal or illegal. Moreover, neither Bingham not any other framers of the Fourteenth Amendment drew a distinction between legal and illegal residents, so that line in and of itself is not well grounded in history, text, or the case law. Posted
by Gerard N. Magliocca [link]
The judiciary should not have to distinguish between degrees of fundamental natural rights. Rather, the courts could (and probably should) distinguish between rights based upon whether the government is attempting to deprive the illegal immigrant of life, liberty or property.
If the government is seeking to impose such a sanction, the illegal immigrant enjoys all procedural rights.
Otherwise, an illegal immigrant does not enjoy substantive affirmative rights like that to speech and bearing arms.
It is rather absurd for an al Qaeda member illegally immigrating to this country to have the right to bear arms and disseminate propaganda
Most of the amendments are concerned with due process of law type protections.
So, what exactly does 'something like' the RKBA mean? We are a nation of immigrants. Did a legal resident on a homestead have no constitutional right as a person for self-defense? Wasn't alienage seen as a type of "race" issue, so equal protection would apply to aliens in such a case?
Could MN (according to him) make it illegal for newly arrived immigrants to practice their religion or peacefully have a rally? To speak or publish newspapers? Could solidiers quarter in their homes?
Well, he never spelled out which rights he thought aliens had beyond due process and equal protection. (It seems unlikely, though, that the right to bear arms was one of them, as Bingham showed little interest in the Second Amendment.)
Moreover, neither Bingham not any other framers of the Fourteenth Amendment drew a distinction between legal and illegal residents
There was hardly such a distinction at the time, was there? There were a few immigration regulations at the time, but they were mostly related to things like prostitution and some rules on being a public charge. How this cuts if you care about such things as "framer's intent" or "original public meaning" (I don't) I don't know, but it's no surprise that this wasn't considered, as the modern idea didn't really exist, and didn't get started for several more years with the Chinese Exclusion Act. (To my mind this sort of thing helps show the limits, or silliness, of originalism of any sort more than anything else.)
Well, there were slaves who were here illegally (as they were imported) and their children born here were made citizens by the Fourteenth Amendment. But you are correct that there was no other federal immigration law at the time.
The history of incorporation following the 14th Amendment has been a rocky road. As yet the Supreme Court has not incorporated all of the first eight Amendment in the 140+ years since the 14th Amendment was adopted. What does this suggest about the various theories of interpretation/construction theories, especially originalism and textualism? A strong case has been made since Everson that the establishment clause of the 1st Amendment did not involve a basic individual right that should have been incorporated by the 14th Amendment. Just ask Justice Thomas. Consider the impact if the Court were to disincorporate the establishment clause, including permitting a state to provide an established religion for that state.
As for incorporation of the 2nd Amendment only within the past few years via (Heller, then McDonald v. Chicago), on a 5-4 basis as an individual right beyond militia, we have not seen fully the implications and possible implementations of such incorporation as yet. "Law office history" continues to be challenged with the "discovery" of new history, merely a variation that might be called "new law office history."
Bingham was just one person, albeit an important person. All of his statements are not necessarily consistent on rights incorporated by the 14th Amendment. But there were other voices involved in the process of framing, enacting and ratifying the 14th Amendment. And there have been many voices thereafter to date trying to figure it all out. As for originalism on incorporation, I'm with Matt's closing parenthetical.
Where Bingham has made inconsistent statements, which ones are "persuasive"? Yes, Bingham's statements (whether consistent or not) may constitute "evidence" as may the Federalist Papers. But there is a great deal of additional "evidence" out there, some of which is being "discovered" more than a century later (and perhaps even as I comment). Saul Cornell makes frequent reference to the term "law office history" as the tool of the advocate, which may - does - differ from the approach of historians, which is not to persuade.
Does it behoove the advocate to address the inconsistencies of a legal source and then cherry-pick the favorable statements that make sense to the advocate? Does an advocate ever fall on his/her sword in such a process? Objectively making sense of inconsistencies can be quite difficult even for the best of advocates. That's when persuasive skills of the advocate are called for, which (for many reasons, including financial) may not be expected to be objective. Sure, we do the best we can with what we got, but even a favorable result can carry doubt with it. When the result binds the parties, that's one thing. But when it impacts others, e.g., non-parties, the public, etc, that doubt can have a high cost, especially with the interpretation/construction of the Constitution.
Bart above has a great point. Think about some angry loner from the Middle East somewhere in a pro-gun state like Texas. What stops from accumulating an arsenal enough to fight an army?:) farmland investment
Professor Brian Z. Tamanaha might have cited this in one of his writings, but whomever it was, I recall some legal scholar noting that all references to precedent has a certain artificial flavor to it. Certain things are picked and chosen to get to a certain "obvious" end.
Some humility and presence of alternative voices are helpful here. I thinks his statements are helpful, some level below "persuasive." The example provided suggests the limits of originalism by its lonesome.