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Congress Hall Cafe

14th Amendment

http://theusconstitution.org/sites/default/files/briefs/Bingham_Speech_2-28-1866.pdf

Bingham, author of the 14th Amendment, in his speech to Congress on the ‘privilege and immunities clause of the 14th amendment stated that the Bill of Rights was the fruit of the Declaration of 1776 inalienable rights or God given rights that required certain rights to be enforce at the federal level. Bingham, being afraid the South would use law to restore a semblance of slavery, added the ‘privilege and immunities” of the 14th to give the general government (federal gov.) the power to enforce the God given inalienable rights of the Declaration of Independence over the states. Historically, it was understood that the Declaration gave Americans immutable God given rights and a moral rectitude of the Supreme Judge as expressed in the Ten Commandment (thus on the S. Crt. Building) while America’s constitutions enforced those rights or rules of the social compact. The Bill of Rights are amendments sent up by the States as a compromise with anti-federalist who wanted to limit the federal government in the 1st 2nd 3rd amendment and create a secure due process in 4th – 8th.

I would go further. I say the Declaration as America’s social compact defines rights and limitations throughout the federal system. Before the 14th, the question of advocating, teaching, or determining the standards of morality (according to the Ten Commandments) was not a federal policy but was reserved to the States as a local responsibility – the duty of ensuring the virtue of the people. However, with the 14th Amendment the principles of the Declaration and its enforcement became in Bingham a federal function with the privileges and immunities clause of the 14th. We could say far from encouraging a violations of Christian morality as codified in the Ten Commandments (source of Americans God given rights,) the federal government from Congress to the Supreme Court are required to uphold Christian morality according to Declaration’s ‘inalienable” and “rectitude” clause as incorporated in the 14th privilege and immunities clause.

Right of Search Warrant by a Judge (Dt19:18) Right to a public trial (Dt.17:5), Right to an appeal (Dt.17:8-9), Right to a impartial judge (Lev.19:15), Right to present evidence (Ex.22:13), Right to a fair trial (Ex.20:16), Right to require two witnesses for the death penalty (Dt.17:6), Right to put up a defense (Ex.32:9-14). Right to public trial (Dt. 21:19) A right to a thorough investigation (Dt:19:18)

Bingham (Author of the 14th Amendment) 39th Congress, 1st Session February 28th, 1866 – Congressional Globe (abridged)

Mr. BINGHAM. Mr. Speaker, I approach the discussion of this subject, aware that it will be utterly impossible for me, within the time allotted me by the rules of the House, to do justice to the proposition reported by the joint committee.

1.”Article —. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

[Bingham recites the proposed 14th amendment]

2. “Gentlemen who seem to be very desirous (although it has very recently come to them) to stand well with the President of the United States, if they will look, narrowly into the message which he addressed to this Congress at the opening of the session will find that the proposition pending is approved in that message. The President in the message tells this House and the country that “the American system rests on the assertion of the equal right of every man to life, liberty, and the pursuit of happiness.”

[ “life, liberty, and the pursuit of happiness” is clause from the Declaration of 1776]

3. “But, sir, that statement rests upon higher authority than that of the President of the United States. It rests upon the authority of the whole people of the United States, speaking through their Constitution as it has come to us from the hands of the men who framed it. The words of that great instrument are:“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

[The American System rest on the authority of the people. Their ‘life, liberty, and the pursuit of happiness” is embodied in the “privilege and immunities”  clause of the US Constitution – Article IV S.2]

4.“What do gentlemen say to these provisions? “Oh, we favor that; we agree with the President that the basis of the American system is the right of every man to life, liberty, and the pursuit of happiness; we agree that the Constitution declares the right of every citizen of the United States to the enjoyment of all privileges and immunities of citizens in the several States, and of all persons to be protected in life, liberty, and property.”

[The American system is the right of ‘life, liberty and the pursuit of happiness’ of the Declaration executed in the Constitution- Article IV; the privileges and immunities of the States and restated as protection of life, liberty and property.”

5.”I respectfully ask him to inform us whence he derives the authority for supposing, if he does so suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?

[Bingham says if States cannot deny citizens of other States their privileges and immunities, why not allow Congress to enforce these rights – this the 14th amendment would do.]

6.”As a further security for the enforcement of the Constitution, and especially of this sacred bill of rights, to all the citizens and all the people of the United States, it is further provided that the members of the several State Legislatures and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution. The oath, the most solemn compact which man can make with his Maker, was to bind the State Legislatures, executive officers, and judges to sacredly respect the Constitution and all the rights secured by it.”

[Bingham considered the bill of rights as the federal embodiment of the privilege and immunities of the citizens of the United States. And the oaths at the State level required officers of the  State to uphold the Constitution i.e. privilege and immunities]

Summery: Bingham (author of the 14th amendment) states: 1.The States by Article IV of the US Constitution are to uphold the privileges and immunities of citizen of other states (and their own) 3. A citizens privileges and immunities comes from the Declaration’s clause “life, liberty, and the pursuit of happiness.” 4. The federal Bill of Rights is a fulfillment of the privileges and immunities as granted by the Declaration of 1776.  5. If the States fail in enforcing the privileges and immunities clauses, the 14th Amendment would allow Congress to force the States to uphold them.

Corfield v. Coryell 1824

Justice Washington “The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign.”

  1. Privileges and immunities” are fundamental rights. Fundamental implies immutable and God given rights, and which no nation has a right to abridge or violate.

  2. American received these fundamental rights from the time of becoming “free, independent, and sovereign” this  is a direct reference to the Declaration of Independence which states that our fundamental rights are the “Inalienable right”  granted by the Creator and from a moral rectitude as defined by the Supreme Judge.

 

Supreme Court – Slaughter-House Cases (1872)

[1.] “The second clause (14th Amendment) protects from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the States.

These latter, as defined by Justice Washington in Corfield v. Coryell, and by this court in Ward v. Maryland, embrace generally those fundamental civil rights for the security and establishment of which organized society is instituted, and they remain, with certain exceptions mentioned in the Federal Constitution, under the care of the State governments, and of this class are those set up by plaintiffs.

[2.] The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its Constitution, or its laws and treaties made in pursuance thereof, and it is these which are placed under the protection of Congress by this clause of the Thirteenth amendment.

Notes: [1] The Court recognizes that the “privileges and immunities” of Article IV as fundamental rights of the social compact. America’s social compact is the Declaration. Fundamental rights are understood to be immutable rights because they are God given according to the Declaration. It is unfortunate that the Court did not express this legitimate tie of fundament rights and the Declaration, perhaps they though it too obvious.  

[2] In explaining the “privilege and immunities clause” for  the “citizen of the United States” of the 14th amendment, The Court fails to make the direct link to Declaration clause “life, liberty, and pursuit of Happiness” as the author of the 14th, Bingham, has intended. The Court has begun a process of making the intent of the 14th amendment, and specifically the privilege and immunities clause, invisible to future judicial opinions and causing an extinction in the common knowledge among the citizenry.  

The American System: The principles of the Declaration says all men are created equal, and that Americans receive their inalienable rights from a Creator, and their national rectitude is defined by a Supreme Judge, and as a nation, we are under the laws of nature and nature’s God. Theses principles are executed in the US Constitution’s privilege and immunities clause of Article IV S.2 and of the 14th amendment of the US Constitution. Additionally, the subscription clause of the US Constitution  reads “in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth” locks textually the American System in place by declaring Jesus as “our Lord,” and the words “Independence…the Twelfth,” forges an invincible bond to the Declaration of 1776.

Abraham Lincoln “The expression of that principle [Liberty to all], in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government and consequent prosperity. The assertion of that principle, at that time, was the word “fitly spoken” which has proven an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn and preserve it. The picture was made for the apple — not the apple for the picture.”

 

 Failure of Separation of Powers – Substantive Due Process

Equity follows the law”or “shocking to the universal sense of justice” of those facts that violate established law are judicial tools. It requires the sense of judicial judgment of justice to follow the written law of the majority or divine fiat. On the other hand, substantive due process, natural rights, ordered liberty, fundamental principles of liberty, fairness and justice, are strictly legislative tools for creating positive law according to the will of the people by majority consensus either directly or by representatives in an environment of checks and balances and accountability, under God. When the courts act upon their internal sense of justice outside of codified law they deny the necessity of the legislative formula, in fact, they are working dangerously toward an oligarchy of absolute despotism. The Court becomes an unaccountable legislature by declaring substantive rights based on personal opinions which are subject to passions and prejudices, the Court becomes a vicious faction within the human community often in opposition to the moral sensibilities of the majority. Judicial legislation, procedural or substantial, violates the Article I of the US Constitution where all legislative powers reside in Congress and Article IV the republic clause, and is a dangerous usurpation by exceeding the metes and bounds of the People’s instructions via Constitution.

Case Study: It appears that the Supreme Court in Powell v Alabama  1932 sensibly saw a lack of fairness, even injustice in a rush to judgement of those accused of a crime. The accused in Powell v Alabama, according to State law, did receive  counsel,  but is appears from the record that this right as part of due process of the State was short circuited by rush to judgment by the State courts. No prepared defense was given on behalf of the accused according the the Courts analysis. This, of course, would be a violation of State’s own due process based on State statute and  certainly a clear violation of the 14th Amendment’s due process clause requirement. However in the same decision, the Court sets for a rule that every  State  must provide counsel in capital cases. We can see the Court goes from “equity follows the law”  which is judicial to enacting a law based on natural rights, ordered liberty which is legislative. The desire to act upon actual and perceived injustice by the creation of  rules or laws is a large temptation before the Court which it  has failed to resist especially when State legislatures  are of a differ opinion or just complacent toward the Court’s notions of justice.

Rowan v. The State, “but these words (due process) do mean law in its regular course of administration, according to prescribed forms and in accordance with the general rules for the protection of individual rights (dictated by the state).”

Additional Note – Meaning of Due Process

Note: Early on the Court has wrestled with the meaning of “due process of law” as part of the 5th and later 14th amendment.  The Court in Davidson v New Orleans (1878) opined due process, as far as the taking of private property by state governments, as requiring a fair hearing or trial on the merits of the taking. If this is done then is due process. Justice Bradley in his dissent in the same case bolsters “due process” even more by adding additional substantial qualities by describing due process to require “suitable or admissible (merits)… it will be adjudged to be “due process of law,” but if found to be arbitrary, oppressive, and unjust, it may be declared to be not “due process of law.” The Courts emphasis of due process and something more than the legislature law of the people dangerously contrives a meaning of  “due process” as a limitation on legislative powers of the legislatures and obviously, the Court would have to oversee these limitations.  As well intention as the Court may have been, substantive due process has opened up a dangerous avenue of unrelenting judicial activism in the from of actual law and an oligarchical veto over fifty state legislatures which are the direct representative of the people.

Equal Protection Clause

Deuteronomy 17:19-20″…((king is) to keep all the words of this law and these statutes, to do them: that his heart not be lifted up above his brothers…”

Note:  Public officials are not use law to acquire a personal advantage above those they represent, that is, they shall not “…be lifted up above his brothers.” The king and his officers are under law just as every citizen. As a case law, government power should not favor one class of persons over another or a minority group versus a majority. All are to be equal under law. The US Constitution recognizes equal protection of the law.

Amendment Fourteen to US Constitution “… nor deny to any person within its jurisdiction the equal protection of the laws.”

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This entry was posted on December 1, 2013 by .
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