Radio Report

Last night's radio appearance with Herb Titus went pretty well, I thought. Jim Babka invited me on the show to discuss the 14th amendment and incorporation with Titus primarily because I had written critically of a brief he filed in the McCreary ten commandments case that is currently before the Supreme Court. In that case, the court will be deciding whether two displays of the ten commandments at courthouses, one in Kentucky and one in Texas, violate the establishment clause. The brief linked to above, written by Titus and William Olson on behalf of a variety of conservative religious groups, did not address that question specifically, arguing instead that the court should not even be considering that question because the establishment clause should not be binding on the states. I went into the conversation with Herb not knowing what his specific position was because the brief he filed is a bit ambiguous in that regard. But there were two or three possibilities that I envisioned for his position on incorporation of the establishment clause:

1. The 14th amendment does not incorporate any of the bill of rights against the states.

2. The 14th amendment does incorporate the bill of rights against the states, but not under the due process clause.

3. The 14th amendment does incorporate the bill of rights against the states, but not the establishment clause specifially because that clause does not establish a positive right.

I began the discussion trying to find out which of these positions he takes, and it took until almost the end of the discussion to get down to the real issue (not because he was being evasive, as he wasn't, but just because of the way the conversation went and the questions that the host wanted answered that did not deal directly with that issue). And I was really quite shocked to find out that he takes none of those positions. Instead, he takes the position that the privileges and immunities clause of the 14th amendment incorporates only the first 3 amendments and not amendments 4-8, because the first three apply specifically to "citizens" but the next five apply to "persons". This position, as far as I know, is unique to Herb Titus; no scholar I know of takes that position and I was really not prepared to dispute it. It baffled me when he said it and it baffles me even more now.

There is nothing at all in the first three amendments that indicates that they are applied to "citizens" rather than "persons". Indeed, the word "citizens" does not appear anywhere in the first three amendments (or in the entire bill of rights, for that matter) and the first two specifically address "the people", which would seem to be synonymous with "persons". But the 4th amendment also addresses "the right of the people", while the 5th deals with "any person". So I'm at a complete loss to understand why Titus makes such a distinction.

I was also baffled by his claim that we should look at the text only to determine the meaning of "privileges and immunities". The reasoning here is circular. The question we were trying to resolve was the question of what that phrase specifically refers to and it is not defined in the text. The most obvious place to turn for knowing what the phrase meant would be to the explanation given by those who framed the amendment because that would tell us what the phrase meant to those who voted for it. And there the record is crystal clear that the men who wrote the 14th amendment and took it through Congressional approval meant, at least, the first 8 amendments to the Constitution. Bingham, Howard, Stevens, Poland and others said dozens of times during Congressional debate that the privileges and immunities clause was designed to prevent the states from doing anything that violated the bill of rights. As Bingham said after it was passed:

[T]he 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. Those eight amendments are as follows. [Bingham then proceeded to read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.

It really can't get any clearer than that, but Titus rejected that entirely and said that you should not look at what the framers said, or what the people at the time believed they were voting for, but you should only look at the text itself. This is contrary to all sound principles of constitutional interpretation and it just makes no sense; the text itself does not define that phrase, only the founders did. And the reference to "privileges and immunities" in Article IV, Section 2 does not help us define it either. It seems to be a distinction made up out of whole cloth, as I can see no possible justification in the text for his position, nor any justification in the historical record.

To download the mp3 of the show, right click here and save it to your hard drive.