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Were they intended to find protections within the jurisdiction of STATE constitutions and Legislation in a manner best suited to the several States as those States perceived them? The national government guarantees rights under the first eight amendments, as well as those rights secured by COTUS itself.
A State may not limit those rights. As Bingham said, it was limited to the first eight and nothing more.
Bingham won. Consider licensing — may a state require licensing for certain professions?
May one State choose to do so while another does not? I submit that this was neither the intention NOR the effect of the 14th. Both groups of men believed these matters were best left to local legislation and discretion. If that feature of the Comity Clause is transferred to the PI Clause of the 14th Amendment, then the PI clause could only include rights that are already protected currently by federal law in federal jurisdictions like the District of Columbia, Puerto Rico, et cetera. After all, the Ninth Amendment does not do anything in the District of Columbia, because the federal government has plenary power there, and no rights are retained there by virtue of any enumeration of specific powers.
Professor Lash is correct in his analysis of the intentions of the framers of the 14th amendment: the privileges or immunities clause was intended to the substantive core of the amendment and the rights enumerated in the Bill of Rights were privileges or immunities of US citizens protected against abridgement by the States.
But Lash is also correct to point out that the 9th and 10th amendments are not, properly speaking, part of the Bill of Rights.
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Rather, they are instructions on how to interpret or construe the previous eight amendments. It is well known that James Madison, who took the leading role in passing the Bill of Rights, never waivered in his opinion that it was a bad idea—even a dangerous idea. He endeavored to propose a list of rights that was simple and uncontroversial, but he worried that no list could ever be complete. The necessary legal and constitutional construction, however, must be that whatever is not included is excluded. The future course of events, Madison argued, would undoubtedly reveal other rights that were needed to restrain the excesses of intrusive government.
The Unenumerated Rights of the Privileges or Immunities Clause
There are other unenumerated rights that are retained by the people, and these may be advanced when necessary to secure the principles and purposes for which the Constitution was founded. And the unenumerated rights have the same constitutional status as the enumerated rights. I differ with Professor Lash on his approval of the truncated reading of the privilege or immunities clause by the Slaughterhouse opinion. The majority opinion held that the Louisiana monopoly did not implicate any privilege or immunity of US citizenship.
But, of course, monopoly is an open assault on the right to property, certainly a privilege or immunity of US citizens. As a means necessary to the acquisition of property, the right to choose an occupation is an essential part of the right to property. The right to property is, of course, a natural right. The right to choose an occupation, may or may not rise to the level of a natural right, but as a means to the accomplishment of a natural right it is surely a civil right or a privilege or immunity of citizenship. It is one of the privileges or immunities that cannot be abridged by the state of Louisiana.
The Slaughterhouse majority was thoroughly mistaken on this issue.
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Erler, you say that the Ninth Amendment is an instruction on how to interpret or construe the previous eight amendments. Thus, it is not an instruction on how to interpret the enumeration of powers in the Constitution. Yes, you cannot construe the list of rights in the first eight amendments to be a complete list of rights. There are other rights reserved to the people. That is how you must interpret the Bill of Rights. Obviously the Takings Clause refers to property in the narrow sense, but as the example of monopoly suggests the right to property extends to the means by which property is acquired, i.
Whether freedom from such monopolies is a constitutional right is another question. They may well be beyond the federal power to regulate interstate commerce, and sometimes beyond even the federal power conferred by the Necessary and Proper Clause. If so, then I would agree that freedom from government-mandated monopolies is a Ninth Amendment right, except where Congress has plenary power such as in the District of Columbia. It cannot be a nationwide constitutional right if it is not a constitutional right in the District of Columbia, so I cannot consider it a privilege or immunity of citizens of the United States.
If decisions by Congress could render something a privilege or immunity of citizens of the United States under the 14th Amendment, then I think Congress would have just as much power as it would have had under the preliminary version of the 14th Amendment that Congress rejected. That is a novel construction. I mean no slight with my characterization. Rather, I would argue that there is some plausibility to it.
If wearing a hat for religious reasons, one MAY have 1st Amendment guarantees; if wearing one is because one is bald, can it be said that this is an unenumerated right protected by COTUS? Would Madison, etc contemplate the exercise of Central government powers to resolve this issue.
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I think not. It was to be left to the States. Here we observe the difference. The religious hat wearer would have a 1st amendment claim as freedom of religion is deemed a natural AND enumerated right. Not so for the bald man as there is neither a right to hair nor a right to hide that follicle deficiency. Yet, a State could either afford the bald man that privilege or deny him that privilege as it saw fit.
Bingham and Lash are correct. Gabe, I agree. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.
It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests. The right to wear a hat, or a cross necklace, or light a candle, or put up a decorated tree only means anything if it applies to all people—Christians, Jews, and Atheists alike. The only way it can apply to everyone is if people can do it for religious or non-religious reasons. If you can only wear a hat for religious reasons, than the right to wear a hat will never apply to atheists—which violates the equal protection clause that applies rights to all people regardless of religion.
Freedom of religion only means anything if you can still exercise rights even if you choose not to have a religion at all. See Employment Division v. One example of this is that the Amendment was widely understood to leave the dual school systems of various Northern and Southern states—and the District of Columbia—untouched. Yes, the 14th Amendment was meant to constitutionalize the Civil Rights Act of Where I scratch my head is I question whether the framers and ratifiers of the 14th intended federals COURTS to be able to do these things without a congressional statute like for instance the Civil Rights Act of The Supreme Court has agreed on several occasions, including Maxwell v.
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The Privileges or Immunities Clause and Unenumerated Rights
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