Click here for 20 min. MP3 Podcast: Kevin Gutzman: Freedom vs the Courts Kevin Gutzman, best-selling author and expert on American Constitutional history, discusses the 14th Amendment and the Incorporation Doctrine, how the doctrine has given us government by judiciary instead of government by representation, the Due Process clause, Substantive Protections vs. Due Procedure, the original intent of the 14th Amendment, how the courts changed that meaning over the ensuing five decades, the Bill of Rights as a limitation on the power of Congress, how the incorporation doctrine has turned the principles of federalism on its head, representative government vs. government by “experts,” Privileges or Immunities and The Slaughter-House Cases, rights of State citizenship, how James Madison warned that those in government would tend to use and expand power, some of the greatest violations of the Constitution under the doctrine of incorporation, why federalism and decentralization is a better system to secure liberty, and more.
Mentioned in this Show
KevinGutzman.com
The Politically Incorrect Guide to the Constitution
Who Killed the Constitution
Virginia’s American Revolution
Slaughter-House Cases
Lawrence v Texas
[Linked at the site]
Poster Comment:
Summary of Slaughter-House Cases:
As one resident put it, New Orleans in the mid-19th century was plagued by "intestines and portions of putrefied animal matter lodged [around the drinking pipes]" coming from local slaughterhouses whenever the tide from the Mississippi river was low.[1] A mile and a half upstream from the city, a thousand butchers gutted over 300,000 animals per year.[2] Animal entrails (known as offal), dung, blood, and urine were a part of New Orleans' drinking water. Offal bred cholera to the general population. Between 1832 and 1869, the city of New Orleans suffered eleven cholera outbreaks.[3] In response, a New Orleans grand jury recommended that the slaughterhouses be moved south, but since many of the slaughterhouses were outside city limits, the grand jury's recommendations carried no weight. The city then appealed to the state legislature. As a result, in 1869, the Louisiana legislature passed "An Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company," a law that allowed the city of New Orleans to create a corporation that centralized all slaughterhouse operations in the city.[4] At the time, New York, San Francisco, Boston, Milwaukee, and Philadelphia all had similar provisions to confine butchers to areas that kept offal from contaminating the water supply.[5]
The cholera-epidemics causing butchers claimed:
This statute is denounced [by the butchers] not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens -- the whole of the butchers of the city -- of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families, and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city.
Resolution by the Court:
In a five-four decision issued on April 14, 1873, by Justice Samuel Freeman Miller, the Court held to a narrow interpretation of the amendment and ruled that it did not restrict the police powers of the state [My note: to so move to protect its citizens from cholera]. The Court held that the Fourteenth Amendment's Privileges or Immunities clause affected only rights of United States citizenship and not state citizenship.
Furthermore:
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.”
In short, this was a Pro-States' Rights ruling in recognition of their power and their citizenry's right to enact protective measures for themselves against reckless and ruthless businesses. That has been whacked all out of proportion by "the doctrines of men" and women who seemingly have much invested in their inventive Incorporation Indoctrination marketings and campaigns to drive people to distraction with all of that like this article commenter:
"Honestly thou with regard to incorporation and the generally poorly written 14th amendment, we would probably be better off just removing the 14th amendment, as it does nothing beneficial anymore and has only been the source of of countless problems which we would be spending all of our time fixing probably hopelessly given all the abuses. outside of the 17th and 16th amendment the 14th is probably the most destructive amendment."
I disagree that it should be removed and see it as one of the more beneficial. There is more than one reason why it might be especially under vehement attack, as is the 2nd. However, this comment does call for careful consideration:
There is No "Fourteenth Amendment"! by David Lawrence
U.S. News & World Report, September 27, 1957
"A MISTAKEN BELIEF -- that there is a valid article in the Constitution known as the "Fourteenth Amendment" -- is responsible for the Supreme Court decision of 1954 and the ensuing controversy over desegregation in the public schools of America. No such amendment was ever legally ratified by three fourths of the States of the Union as required by the Constitution itself. The so-called "Fourteenth Amendment" was dubiously proclaimed by the Secretary of State on July 20, 1868. The President shared that doubt. There were 37 States in the Union at the time, so ratification by at least 28 was necessary to make the amendment an integral part of the Constitution. Actually, only 21 States legally ratified it. So it failed of ratification."
http://www.supremelaw.org/authors/lawrence/no14th.htm
Ref:
The 14th Amendment
14th Amendment Ratification History, or alleged lack thereof: This amendment was specifically rejected by Texas on Oct 27, 1866; by Georgia on Nov 6, 1866; by North Carolina on Dec 14, 1866; by South Carolina on Dec 20, 1866; by Kentucky on Jan 8, 1867; by Virginia on Jan 9, 1867; by Louisiana on Feb 6, 1867; by Delaware on Feb 8, 1867; and by Maryland on Mar 23, 1867. New Jersey's ratification was rescinded on Mar 24, 1868; Ohio rescinded its ratification on Jan 15, 1868 and ratified again on Mar 13, 2003.