Posted Online: Dec. 05, 2012, 11:40 am
What are privileges and immunities of U.S. citizens?
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By John Donald O'Shea
"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 to deny to any person within its jurisdiction the equal protection of the laws." -- 14th Amendment, U. S. Constitution
U.S. Supreme Court justices Felix Frankfurther and Hugo Black fought a running battle from 1947-1962 over the meaning of "the privileges or immunities of citizens of the United States" provision of the 14th Amendment.
The battle lines were first drawn in the 1947 case of Adamson v. California. Adamson had been convicted of murder, and sentenced to death. He did not testify at trial. The prosecutor, as permitted by California law, commented on his failure to testify.
On appeal to the U. S. Supreme Court, Adamson argued "that the provision of the Fifth Amendment that no person 'shall be compelled in any criminal case to be a witness against himself' is a (1) fundamental national privilege or immunity protected against state abridgment by the Fourteenth Amendment or (2) a privilege or immunity secured, through the Fourteenth Amendment, against deprivation by state action because it is a personal right, enumerated in the federal Bill of Rights."
California argued that that portion of the Fifth Amendment had no application to the states. The Supreme Court agreed.
Justice Black, in a strong dissent, argued that the 14th Amendment was intended to make the entire Bill of Rights applicable to the states. He believed they were the "privileges and immunities" in question.
"The first 10 amendments were ... adopted largely because of fear that (Federal) Government might unduly interfere with prized individual liberties.
"The people ... demanded a Bill of Rights written into their Constitution. The amendments embodying the Bill of Rights were intended to curb all branches of the Federal Government in the fields touched by the amendments-Legislative, Executive, and Judicial.
"The Fifth, Sixth, and Eighth Amendments were pointedly aimed at confining exercise of power by courts and judges. .... (Y)ears of arbitrary court action sprang largely from the past use of courts in the imposition of criminal punishments to suppress speech, press, and religion. Hence the constitutional limitations of courts' powers were, in the view of the Founders, essential supplements to the First Amendment, which was itself designed to protect the widest scope for all people to believe and to express the most divergent political, religious, and other views.
"But ...(i)n 1833, Barron v. Baltimore, ... this Court ... specifically held inapplicable to the states that provision of the Fifth Amendment which declares: 'nor shall private property be taken for public use, without just compensation.' ... (T)he Court there said that it could not hold that the first eight amendments applied to the states. This was the controlling constitutional rule when the Fourteenth Amendment was proposed in 1866.
"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects ... was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced."
In a concurring opinion, Justice Frankfurther, took dead aim at his views:
"(Since) the incorporation of the Fourteenth Amendment into the Constitution ... a period of 70 years, the scope of that Amendment was passed upon by 43 judges. ... (O)nly one ... (The first Justice Harlan, now considered one of the Court's greatest members) ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments ... as restrictions upon the powers of the States. Among these (the other 42) judges were not only those who would have to be included among the greatest in the history of the Court ... judges who were alert in safeguarding ... the interests of liberty and human dignity through law. But they were also ... mindful of ... of our federal system ... and therefore ... regardful of... the authority that was left to the States even after the Civil War. (T)hey did not find that the Fourteenth Amendment ... fastened upon the States procedural arrangements which, ... only those who are 'narrow or provincial' would deem essential to 'a fair and enlightened system of justice.' Palko v. Connecticut."
In subsequent cases, Justice Frankfurther took the approach that where state action "shocks the conscience, it violates due process," and no further provision of the Bill of Rights need be cited.
Frankfurther's test shocked Justice Black's conscience. Black argued that Frankfurther's test was "too vague," and substituted judicial whim for written constitution. Black also took dead aim at the danger to constitutional government inherent in Frankfurther's formula:
"Since Marbury v. Madison, was decided, the practice has been firmly established ... that courts can strike down legislative enactments which violate the Constitution. This process ... involves interpretation ... [I]nterpretation obviously may result in contraction or extension of the original purpose of a constitutional provision thereby affecting policy. But to pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights ... is one thing; to invalidate statutes because of application of 'natural law' ... undefined by the Constitution is another. 'In the one instance, courts proceeding within clearly marked constitutional boundaries; in the other they roam at will in the limitless area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people."
My next op-ed will deal with the collateral damage caused by Frankfurther's "selective incorporation" process.
John Donald O'Shea of Moline is a retired circuit court judge.