Dispatches from the Creation Wars

I am moving a comment thread up here to its own post because it’s sliding down the front page and because I think it’s becoming both interesting and amusing. The commenter is now using the name The Other David, due to some confusion between two Davids in the thread. The discussion was originally about the Catholic League’s reaction to Bill Maher’s satire about Falwell but has now moved on to a more general discussion of constitutional law, which is of course one of my favorite subjects. In particular, it is now focused on the meaning of the 1st and 14th amendments. David is now making two principal claims: that the 14th amendment did not incorporate the 1st amendment and that the free speech clause should protect only political speech. Here’s his statement on the first claim:

Sorry Ed, but if the Constitution said Congress then the Constitution said Congress. There really can be no argument here. In particular, the First Amendment does not bring in the states. Congress is not part of the governance of the states. The states created Congress. That is why we have state Constitutions. Yeh, I know, the SCOCUS (sic) interprets that the 14th Amendment supersedes all states rights. I don’t believe the states felt that way at the time when three out of four of them were ratifying it. Even with the carpetbaggers twisting the arms of the South making them ratify, the overwhelming consensus was that the 14th was only to rectify black rights. Perhaps it is time to rethink that one and repeal it?

It’s amazing how common this argument is given the utter lack of historical support for it and the overwhelming evidence in favor of Congress’ clear intent to apply the Bill of Rights to the states. All one has to do is read the Congressional debates on the matter and the history of the drafting of the 14th amendment and it becomes quite clear not only that those who wrote it did so precisely so that the Bill of Rights would be applicable to state actions, but that they advocated it publicly as doing exactly that. Let’s look at some of that evidence.

In early 1866, the push for the 14th amendment began. The battle was led in the house by Reps. Stevens of Pennsylvania, Bingham of Ohio and Deming of Connectictutt, and in the Senate by Brown of Missouri and Howard of Michigan. The first to go was Bingham, who introduced the amendment to his House colleagues with a rousing speech urging its adoption and explaining its provisions. Knowing that it would be important to get the word out to the public to gain support for this amendment in the states, Bingham had that speech published and distributed as a pamphlet. The title of that pamphlet says it all:

One Country, One Constitution, and One People: Speech of the Hon. John A. Bingham of Ohio, in the House of Representatives, February 28, 1866, In support of the proposed amendment to enforce the Bill of Rights.

In urging his colleagues to pass such an amendment, Brown said it should be adopted “so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument (the Constitution).” Rep. Donnelly said that Bingham’s proposed amendment “provides in effect that Congress shall have power to enforce by appropriate legislation all the guarantees of the Constitution.” Bingham himself said that the amendment would give the Federal government “the power to enforce this bill of rights as it stands in the Constitution today” and to “punish all violations by State Officers of the bill of rights.”

Now, anyone who takes an originalist perspective on constitutional law would have to agree, based on the historical record, that incorporation of the Bill of Rights is precisely the proper reading of the 14th amendment. Whether one looks at the original intent (stated above with quotes from those who wrote it – and one could literally go on al day with similar quotes) or the original public meaning (which is the same thing here because the meaning applied above is precisely how the amendment was described in the press and sold to the public), there is no doubt at all about the proper interpretation here.

David’s second argument to this effect is that the first amendment is not applied to the states because the purpose 14th amendment “was only to rectify black rights.” Like the argument above, this one is very popular and also very wrong. Laws may be prompted by all sorts of specific situations, but they are written in broader language on purpose. Thus, when the 14th amendment says that no state may violate the “equal protection” of the laws, it does not specify only equal protection of the races, but of all citizens.

David’s argument is like someone looking at the historical record and saying that since James Madison was motivated to write the religion clauses of the first amendment by seeing Baptist ministers in jail in Virginia, therefore the first amendment applies only to Baptists. But this is clearly absurd. Now remember one of the first rules of conservative jurisprudence: textualism. It’s the text that matters most, and the text of the 14th amendment applies to all citizens, not only to those whose rights were violated on the basis of race.

Another basic rule of textual interpretation is to look at alternative wordings that may have been considered and rejected. Obviously, it is absurd to suggest that those who wrote a law intended result X if they had an opportunity to make X explicit and voted it down. And that is the case here. When the Joint Committee was considering possible wordings for the 14th amendment, the second one they considered was proposed by Rep. Stevens. It read:

All laws, state or national, shall operate impartially and equally on all persons without regard to race or color.

That would have done what David claims, apply the 14th amendment only to the specific issue of racial discrimination. That wording was rejected in favor of the much broader wording of the final amendment. For purposes of statutory interpretation, this is highly conclusive evidence against his position. If they had intended it only to rectify racial inequalities, they could have done so; the fact that they specifically rejected that wording pretty much settles the question.

It should also be noted that David’s theory about the 14th amendment is unsupported even by the most conservative jurists and legal scholars. No one, not even Bork, Scalia, Thomas or Rehnquist, takes the position that the Bill of Rights was not applied to state actions by the 14th amendment. This issue was settled a long time ago and even the most conservative scholars today do not take that position. The only place that position is popular is among the neo-confederate crowd.

David’s second argument is that the first amendment, even if it was applied to the states, applies only to political speech. He made that claim in a previous comment, to which I replied:

You’re mistaken. There is no such limitation on the first amendment, no qualifier for what particular type of speech is protected. This is the same incredibly stupid argument that Robert Bork made, one of the many reasons why he was rejected by the court. Are you really going to suggest that the first amendment does not protect against a government ban on literary speech? Or scientific speech? Or satirical speech?

And David replied:

You know Ed, I thought I was going to have to research the Federalist papers to find the meaning of “speech” in terms of the 1st Amendment but you saved me the trouble. If Robert Bork says the intent was to limit only political speech in a political setting then it must be true. He is smarter than either of us.

That’s just plain funny – not only a naked appeal to authority (that’s a logical fallacy, David) but an appeal to a very lonely authority. Bork is absolutely alone in his position that the first amendment applies only to explicitly political speech. As above, even the most conservative legal scholars, including Scalia, think this position is laughably absurd. There is not a shred of evidence for this position.

Now David, if you want to search the Federalist Papers on the intent of the first amendment, feel free; you’ll be wasting your time. First of all, the Federalist Papers were all written before the first amendment was proposed, so they would have no bearing at all on the meaning of the first amendment. Second, you certainly will not find any support whatsoever in the writings of Madison, Hamilton or Jay to support the notion that the government has the authority to censor scientific speech, literary speech, satirical speech or any other type of non-political speech.

You will find lots and lots of statements to the contrary, especially from Madison, who staunchly advocated the natural rights principle that no government had the authority to violate the right of free expression except when that expression violated the rights of others (thus, laws against fraud or libel are fine, laws against publishing stories the government doesn’t like are not). Your position isn’t just incredibly stupid, it’s also very dangerous; imagine for a moment a nation in which the government can throw people in prison for writing satire, or religious criticism, or short stories, as long as they are not “political.” Welcome to Orwell’s worst nightmare.


  1. #1 Timothy Sandefur
    May 26, 2007

    Excellent post, Brayton. Let me just add two things. First, readers interested in these subjects should consult two outstanding books that entirely demolish the pretense that the Fourteenth Amendment was not intended to incorporate the Bill of Rights to the states: Michael Kent Curtis’s No State Shall Abridge and Akhil Reed Amar’s The Bill of Rights. As they point out, the Radical Republicans who proposed the Fourteenth Amendment were especially concerned with free speech rights in the states, given their antebellum experience with incidents like the Lovejoy case.

    Second, the concept of substantive due process has intellectual validity aside from any question of the intent of the Framers of the Fourteenth Amendment. As I explain in more detail in this post, the Due Process Clause prohibits any state from depriving us of liberty without “due process of law.” But, of course, not everything that government does is a law. Sometimes government uses its powers in ways that are not justified, because they exceed the government’s delegated authority, or because they violate natural rights, or for whatever other reason. And any such action by the government cannot be called a “law”: it is instead a mere use of force. And since it is not a law, its imposition on us violates our liberty without due process of law.

    It’s hard to give an example given that the federal government pretty much has complete power to do anything under the commerce clause, but let’s imagine that that wasn’t a problem, and imagine that the federal government passed a law requiring me to paint my house yellow. Of course, it has no such authority, because Article I section 8 of the Constitution, which lists the federal government’s powers, contains no grant of power allowing Congress to control the color of houses. Any Congressional command that I paint my house yellow is therefore not a law: it’s just an arbitrary command, or decree, or order. So if the policeman shows up and tries to enforce Congress’ order that I paint my house yellow, then I am being deprived of my liberty without due process of law. In short, when government acts ultra vires, it violates the Due Process Clause.

    That’s what the Supreme Court meant in Hurtado v. California, one of the great early cases on substantive due process, when it said,

    “[N]ot every act, legislative in form…is law. Law is something more than mere will exerted as an act of power…. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities….”

    What about a state law that violates free speech, assuming it’s equally applicable to all? Such a law is also ultra vires, although it’s not as easy to explain why. The reason is that states, although their powers are “numerous and indefinite” (Federalist 45), are still governments based on the consent of the governed. And there are moral limits to that consent. I am simply incapable of consenting to censor you–I don’t have that right any more than I have the right to give your house away to another person. So any attempt by states to censor people is just as much ultra vires as an attempt by Congress to regulate the color of my house. Such a law is therefore an unjustified act of force, which means it’s arbitrary, which means it’s not a law, which means it violates the due process of law clause.

    Of course, what all this means is that normative commitments cannot be escaped in legal analysis, no matter how much the alleged legal “scientists” try. And if one rejects the natural rights principles that are the foundation of the Constitution, and if one believes that law is whatever the lawmaker chooses to do, no matter how unprincipled, arbitrary, or unjust–and Robert Bork does believe these things–then none of this analysis will make any sense, just as mathematical calculations will make no sense if one insists on believing that 1 = 3.

  2. #2 Russell
    May 26, 2007

    Excellent post, Ed. There are conservative and learned jurists who, recognizing what the 14th amendment does, argue for its repeal. Lino Graglia is one such. One of his concerns, which could be applied to the 1st amendment also, is that personal liberty is protected with such broad phrasing it necessarily involves the courts in drawing the boundaries.

    My own view is that there is little else that would be so harmful to Constitutionally protected liberty as repealing the 14th. My own suspicion is that that is why conservatives rail so much against it.

  3. #3 Ed Darrell
    May 26, 2007

    Mr. Brayton, my commendation to you for being able to argue both ends of the 14th Amendment so ably — here you’re not just almost completely right, but absolutely right.

    The Other David’s argument goes off the rails when he argues that the states created the Constitution. Madison made certain that was not the case, that it was instead the people who created the Constitution, when he set up the procedure for ratification. The Constitution was not ratified by the states, which could have been done by their respective legislatures, but instead was ratified by the people of each state in convention, in a body that in Madison’s view was superior to the state government.

    The effect this has on TOD’s argument is this: The states didn’t create Congress and they have no power over it. The First Amendment’s ban on Congress’ consideration of laws vitiating the rights of freedom of thought means simply that the states, each prohibited from abridging citizens’ rights under their own Constitutions, under the federal charter are further estopped from such violations. The Constitution does not delegate the right of freedom of speech, or religion, or assembly, etc., etc., to any branch of government anywhere. Specifically in this case, the states don’t have the right delegated to them in Article IV. Their only hope to oppress people, then, would be to turn to Congress to create a new power and delegate it to the states, or to ask Congress to amend the Constitution. The former is clearly prevented by the First Amendment. Amending would require the consent of the people through a process of republican representation.

    Either way, the freedom resides with the citizen, and no one has the right to abridge it, without a difficult process of getting almost everyone governed to consent to such abridgement, including people of all other states.

    To my reading, Madison and Hamilton considered the possibility of people with views like Bork, and they created a structure that would frustrate such people from acting to take rights from others. As Madison noted, if people were angels, such protections wouldn’t be necessary.

  4. #4 David Thompson
    May 26, 2007

    Having had discussions like this one many times with members of the winger crowd, I recognize the other David’s dance a mile away. It goes like this:

    Step 1) Make unsupportable claim.

    (Partner asks for evidence)

    Step 2) Present facts not in evidence.

    (Partner points out that they are wrong)

    Step 3) Appeal to authority.

    (Partner points out obvious logical fallacy)

    Step 4) Attack messenger.

    (Partner retraces past argument step by step)

    Step 5) Run away. (Alternative ending is to stay but pretend you won by claiming your partner’s argument was flawed for the very same reasons yours were).

    Have fun, David!

    The other, other David.

  5. #5 Ahcuah
    May 26, 2007

    If I might add a bit of additional historical perspective. This based on “The Bill of Rights” by Irving Brant (Bobbs-Merrill, 1965).

    When we look at Bingham’s pamphlet,

    One Country, One Constitution, and One People: Speech of the Hon. John A. Bingham of Ohio, in the House of Representatives, February 28, 1866, In support of the proposed amendment to enforce the Bill of Rights.

    one thing looks a bit odd. Enforce? Why would he use the word “enforce” instead of “applying to the States”?

    It turns out that there was a common misconception at that time. The misconception was that the Bill of Rights actually originally did apply to the states, but that the Supreme Court had vitiated that in Barron v. Baltimore in 1833. Thus, the first attempts at the 14th Amendment were written in a way that the writers thought was necessary to overturn the Supreme Court decision, i.e., a grant of power. (Congressmen back there were no better on fact-finding then than they are now, I guess. 🙂 )

    It was only a bit later that this misconception was pointed out. Bingham went back and re-wrote the 14th, which gave us much of what we have today, i.e., a prohibition.

    In 1871 Bingham was asked about the amendment and he stated that its purpose was as follows:

    Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States . . . These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment.

    (Emphasis added.)

  6. #6 Timothy Sandefur
    May 26, 2007

    Oh, god, Irving Brant! One of the worst, most insidious pseudo-scholars in the history of Constitutional law! Let’s avoid his pathetic New Deal bootlicking at all costs.

    But it’s a good point, Ahcuah. Amar explains very thoroughly that the framers of the Fourteenth Amendment were by and large “Barron contrarians”–i.e., those who believed that Barron was wrongly decided, and that the Bill of Rights did apply to the states, but that the Supreme Court had screwed things up. I, who am a resolute incorporationist, have my doubts on that score–Barron seems to make a lot of sense to me–but the record is clear that, whether right or wrong in that view of Barron, they sought to overturn that decision and to incorporate the Bill of Rights to the States. As Sen. John Sherman explained, when asked what sort of rights were included in the “privileges or immunities” of citizenship, the Amendment requires states to respect the rights

    “such as are ingrafted in the great charters of England, some of them ingrafted in the Constitution of the United States, some of them in the constitutions of the different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered.”

    Cong. Globe, 42d Cong., 2d Sess. 844 (1872).

  7. #7 Ahcuah
    May 26, 2007

    (Ed, I hope you don’t take this as an attempt to hijack this thread, but as a layman . . . )

    Timothy Sandefur wrote:

    Oh, god, Irving Brant! One of the worst, most insidious pseudo-scholars in the history of Constitutional law! Let’s avoid his pathetic New Deal bootlicking at all costs.

    I’m curious as to what makes him a pseudo-scholar. My introduction to this book was from Marshal’s dissent ion Kelley v. Johnson, 425 U.S. 238 (1976). The book seems to be full of properly attributed quotes, so I guess I don’t see how he might get those wrong. The book also doesn’t seem to be particularly restrictive of rights (though as I look through it he does have one paragraph with the standard 2nd Amendment is only for a militia line, though that is not unsurprising for 1965).

    So, how am I, as a layman, to know that is it pseudo-scholarship, and how am I to know which parts to automatically discard?

  8. #8 Russell
    May 26, 2007

    There were no dissents to Barron. It seems pretty clear that the 1st amendment wasn’t intended to apply to the states, at the time of ratification, since several states then had an establishment of religion, and it was never understood as abolishing that. And if not the 1st, then by what argument the others? Was there significant objection to Barron at the time it was decided? Or did the contrarian view grow as the tensions leading to the Civil War increased?

  9. #9 Dan
    May 26, 2007

    The Barron contrarians, as they were known, certainly argued that Barron was wrongly decided. But I agree with Timothy that they were on the short end of this argument. Among other things, they were swimming against a rather strong historical current.

    When Madison first introduced his Articles of Amendment to Congress, he included an article that would have expressly guaranteed freedom of conscience and of the press as against the states. If memory serves, Madison called this proposal “the most valuable of all,” or words substantially to that effect. The House agreed and voted in favor of it. The Senate, originally conceived to protect the states as states, killed it. It was not until Reconstruction that the contrarians were able to get their way, via the “privileges and immunities” clause of the Fourteenth Amendment. Even then, of course, it wasn’t a slam dunk. Slaughterhouse “strangled the privileges and immunities clause in its crib,” said Amar, necessitating the eventual resort to the Fourteenth Amendment due process clause to do the heavy lifting. But that’s a whole different thread. All this, and much more, is in Amar’s terrific book and his related law review articles.

    Great post, Ed, and great comments as well.

  10. #10 Ed Brayton
    May 26, 2007

    Yeah, there are few legal scholars doing work on Amar’s level these days. I have a few quibbles with him here and there, but he is absolutely in the top tier of con law scholars with a couple handfuls of peers at the most.

  11. #11 doctorgoo
    May 26, 2007

    I’m familiar with some of Akhil Amar’s essays on Findlaw.

    If I had the time, I’d really love to study con law issues in depth like so many others around here do. But unfortunately, there’s only so many hobbies this married man is allowed to have. lol

    Oh well…

  12. #12 Jon Rowe
    May 27, 2007

    If Sandefur has no plans to do so, I might copy some of his comment and Ed’s original post and turn it into a PL post.

  13. #13 PhysioProf
    May 27, 2007

    Anybody know of a good biography of Bingham?

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