jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
The Bill of Rights and Illegal Aliens
Monday, February 27, 2012
The Bill of Rights and Illegal Aliens
Gerard N. Magliocca
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.
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.
I think of Bingham's statements as persuasive, but not binding authority. Same as what I would say about The Federalist Papers.
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.
Well, but any legal source can be inconsistent. In that case, you just do the best you can to make sense of it.
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?:)
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.
The real voyage of discovery consists not in seeking new lands but seeing with new eyes.Post a Comment
Agen Judi Online Terpercaya
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
Syllabi and Exams