In a relatively incredible slip up, Chief Justice John Roberts administered the Presidential oath of office incorrectly during Tuesday’s inauguration of President Obama. While much of the media asked questions as to what the consequences of a mis-recited oath would be (with Fox News even questioning whether Obama was indeed the President while speculating that the issue may find its way to the courts), the general consensus has been that the oath is a mere formality or a meaningless recitation, as Obama had officially become President at noon in accordance with the 20th Amendment.
Of course Mr. Obama is in fact the President, but I question the dismissiveness with which many have treated this issue. The 20th Amendment states: “The terms of the President and Vice President shall end at noon on the 20th day of Janurary… and the terms of their successors shall then begin.” This provision clearly superseded portions of Article II relating to the point at which the President begins his new term- changing inauguration day from March 4th to January 20th. Yet there is no reason to think that Article II, section 1, paragraph 8 was affected by the Amendment. That provision reads: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: I do solemnly swear (or affirm) that I will faithfully execute the Office…etc.”
So whereas the twentieth Amendment specifically states that the newly elected President’s term begins at noon on the 20th day of January, Article II plainly states that a President shall recite the oath before he “enter in to the execution of his office.” Is there a difference between being able to execute the office and beginning your term? Its certainly a possibility. Perhaps, though he was officially president of the United States at noon, President Obama could not have legitimately exercised any of the authorities of that office until he correctly recited the oath. While this is a moot point now that the President has retaken the oath, and practically speaking this is not an issue that deserves much attention (especially not by the courts as some have suggested), it certainly is an odd set of events that is at least interesting enough to think about. I for one am not ready to dismiss the oath as a “mere formality.”
Posted by Todd Garvey
Thursday, January 22, 2009
Tuesday, December 30, 2008
Senate Appointment Showdown: Senatorial Powers to Exclude and Expel
In what may ignite a serious constitutional controversy, embattled governor Rod Blagojevich appointed Roland Burris to President Elect Obama’s vacant Senate seat today. The Governor, recently arrested and indicted on corruption charges for, among other things, allegedly attempting to sell Obama’s Senate seat, has ignored both calls to resign as well as warnings from the Senate not to appoint an Obama successor. The Democratic leadership in the Senate has specifically expressed its unwillingness to except Blagojevich’s appointment- saying that the appointment will “not stand”. What exactly will Congress do with the Burris appointment? What can congress do?
The answer it seems, regardless of the rhetorical blustering from Senate leaders, is that Congress will probably have to seat the governor’s appointment. The Supreme Court made clear in Powell v. McCormack that Congress has no power to “exclude” elected members who satisfy the constitutional qualifications for office. Though the two houses have the authority to “judge” the qualifications of their members, where a duly elected member meets the constitutional requirements- i.e. meets the age, residency, and citizenship requirements if Article I- then the member must be given his seat. In Powell, the Court held that the House of representatives could not exclude representative Powell, who at the time was under investigation for misappropriating congressional funds, when the voters of his district had chosen to return him to his seat. The House had no constitutional authority to exclude an elected member who was at least 25, was seven years a citizen of the U.S., and resided within the state he would represent. While Powell applied to a duly elected member of the House, one would assume that the same theory would apply to a duly appointed member of the Senate. Although many may argue that Burris was not duly appointed, regardless of the legal circumstances surrounding the Governor, until he is removed form office or resigns he still holds the powers of his office and therefore still holds the authority to appoint Obama’s Illinois Senate successor.
The only option for the Senate is to seat Mr. Burris, and then vote to expel him with a 2/3 vote. This potential move raises three interesting issues. First, from a practical standpoint, would Democrats in the senate be willing to expel a fellow Democrat (and likely a predictably solid democratic voter), even one appointed by Blagojevich, when every Democratic vote is essential to reaching that all important 60 vote majority? Second, Article 1 section 5 of the Constitution states: “Each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member.” It is unclear whether the disorderly behavior language modifies the expulsion power. Must a member first engage in some disorderly behavior before he/she is expelled from either the House or Senate? If that is the case, how can Burris be expelled when he has committed no disorderly act? Where he has committed no act at all? Third, is the Senate willing to set a precedent for expelling a member by vicariously applying to that individual the actions of another? Burris, has done nothing wrong (though accepting the governor’s appointment may not have been the best political move). Were the Senate to expel Burris, it would set a precedent for expelling a member who had committed no unlawful act. What would be next? Expelling a member for the actions of a family member? Expelling a member for belonging to the wrong party?
Before the Senate acts on this appointment, it should strongly, and thoroughly consider the effect an expulsion will have on the stability of the Senate as an institution. George Washington once said that the Senate acted as a saucer into which hot coffee is poured to cool. This is an issue that truly is in need of a cooling-off period.
Posted by Todd Garvey
The answer it seems, regardless of the rhetorical blustering from Senate leaders, is that Congress will probably have to seat the governor’s appointment. The Supreme Court made clear in Powell v. McCormack that Congress has no power to “exclude” elected members who satisfy the constitutional qualifications for office. Though the two houses have the authority to “judge” the qualifications of their members, where a duly elected member meets the constitutional requirements- i.e. meets the age, residency, and citizenship requirements if Article I- then the member must be given his seat. In Powell, the Court held that the House of representatives could not exclude representative Powell, who at the time was under investigation for misappropriating congressional funds, when the voters of his district had chosen to return him to his seat. The House had no constitutional authority to exclude an elected member who was at least 25, was seven years a citizen of the U.S., and resided within the state he would represent. While Powell applied to a duly elected member of the House, one would assume that the same theory would apply to a duly appointed member of the Senate. Although many may argue that Burris was not duly appointed, regardless of the legal circumstances surrounding the Governor, until he is removed form office or resigns he still holds the powers of his office and therefore still holds the authority to appoint Obama’s Illinois Senate successor.
The only option for the Senate is to seat Mr. Burris, and then vote to expel him with a 2/3 vote. This potential move raises three interesting issues. First, from a practical standpoint, would Democrats in the senate be willing to expel a fellow Democrat (and likely a predictably solid democratic voter), even one appointed by Blagojevich, when every Democratic vote is essential to reaching that all important 60 vote majority? Second, Article 1 section 5 of the Constitution states: “Each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member.” It is unclear whether the disorderly behavior language modifies the expulsion power. Must a member first engage in some disorderly behavior before he/she is expelled from either the House or Senate? If that is the case, how can Burris be expelled when he has committed no disorderly act? Where he has committed no act at all? Third, is the Senate willing to set a precedent for expelling a member by vicariously applying to that individual the actions of another? Burris, has done nothing wrong (though accepting the governor’s appointment may not have been the best political move). Were the Senate to expel Burris, it would set a precedent for expelling a member who had committed no unlawful act. What would be next? Expelling a member for the actions of a family member? Expelling a member for belonging to the wrong party?
Before the Senate acts on this appointment, it should strongly, and thoroughly consider the effect an expulsion will have on the stability of the Senate as an institution. George Washington once said that the Senate acted as a saucer into which hot coffee is poured to cool. This is an issue that truly is in need of a cooling-off period.
Posted by Todd Garvey
Tuesday, October 28, 2008
Judicial Authority to Order Release of Guantanamo Detainees
On October 7, 2008 Federal District Judge Ricardo M. Urbina, a Clinton appointee, ordered the transfer of 17 detainees held at the Guantanamo Bay detention center to the United States mainland for their immediate release. The decision marked the first time since 2001 that the judicial branch explicitly and aggressively challenged the President’s authority to detain individuals at Guantanamo bay by directly ordering the release of specific prisoners. The 17 men were Uighurs, a Chinese Muslim minority, captured in Afghanistan in 2001 following the US invasion. This assertion of judicial power was short lived however, as within 24 hours the D.C. Circuit Court instituted a temporary stay on Judge Urbina’s order. On October 20th the Circuit Court officially postponed the transfer of the detainees until at least November.
The U.S. government no longer classifies the 17 Uighurs as enemy combatants, nonetheless the DOJ still considers the detainees to be “dangerous” and argues the court lacks the authority to order the release of any detainees into the United States. This dispute gets to the heart of the next big issue the Supreme Court is going to have to face in the detention area. Up to this point, court precedent has focused solely on the federal court’s jurisdiction to hear habeas petitions brought by Guantanamo Bay detainees, and the protective procedures due to those detainees via the Combatant Status Review Tribunal and Military Commissions process. (See Rasul, Hamdi, Boumediene). The Uighurs case sets up a clash in which the court may have to weigh the President’s authority to hold terrorist suspects, including those not designated as enemy combatants, with the court’s authority to order an actual release.
Posted by Todd Garvey
The U.S. government no longer classifies the 17 Uighurs as enemy combatants, nonetheless the DOJ still considers the detainees to be “dangerous” and argues the court lacks the authority to order the release of any detainees into the United States. This dispute gets to the heart of the next big issue the Supreme Court is going to have to face in the detention area. Up to this point, court precedent has focused solely on the federal court’s jurisdiction to hear habeas petitions brought by Guantanamo Bay detainees, and the protective procedures due to those detainees via the Combatant Status Review Tribunal and Military Commissions process. (See Rasul, Hamdi, Boumediene). The Uighurs case sets up a clash in which the court may have to weigh the President’s authority to hold terrorist suspects, including those not designated as enemy combatants, with the court’s authority to order an actual release.
Posted by Todd Garvey
Tuesday, September 30, 2008
Crash Course 3: 2nd and 4th Amendments
This post submitted by an IBRL:SD member.
Last Wednesday we heard from Josh Steward about the Supreme Court’s recent interpretation of the Second Amendment and where gun rights stand today. Josh first explained the text of the Second Amendment:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Then Josh explained that in Heller the majority essentially severed the prefatory phrase regarding the militia, leaving question about what it meant to keep arms, bear arms, and the degree of infringement. Instead of situating the limit on the kinds of weapons people may keep and bear (and presumably shoot) in the text, or in the history of the Amendment, the Court said that firearms in common lawful use were protected.
We then discussed the Fourth Amendment’s protection against unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The result, if these rules are violated, is that the evidence obtained is not available in court. First, however, some definitions. A “search” is the invasion of a subjective expectation of privacy that society is willing to recognize as reasonable. For instance, you have a reasonable expectation of privacy in your house, but an unreasonable (if genuine) expectation of privacy in the smell of drugs emanating from the trunk of your car. A seizure, with regard to a person (which is usually the most important) is the creation of the reasonable belief in an average person that they are not free to leave. For example, tackling a suspect, and turning on the police siren-lights are both seizures of the suspect. Finally, an “unreasonable search[ or] seizure[]” is a search without a warrant. The case I meant to read from to support this proposition is Katz:
Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," (Agnello v. United States) for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." (Wong Sun v. United States). "Over and again this Court has emphasized that HN9the mandate of the [Fourth] Amendment requires adherence to judicial processes," (United States v. Jeffers) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. - Katz v. United States, 389 U.S. 347, 357 (U.S. 1967)
Naturally, we next discussed the “specifically established and well-delineated exceptions” to the warrant requirement. Before talking about the seven exceptions under discussion we talked about how Terry v. Ohio permitted certain citizen-police interaction based on reasonable, objectively articulable, suspicion, and how that case demonstrated the Court’s real concern for limiting the absolute discretion of the police to pursue wild hunches or target people for investigation without justification. There is very little to say about the difference between unreasonable suspicion, reasonable suspicion, and probable cause, except that the facts of cases are frequently very similar to others so rules can be applied, but we talked about two examples very close to the line.
Neither mere flight from the police (without more) nor apparently lawful conduct in a high crime area, at night, justify a stop by the police. But all three combined, do. That is one example of the line between a mere hunch, and reasonable suspicion. As for probable cause, the question is always whether the information the officer has would arguably be enough to justify skipping straight to the part where the suspect is put in handcuffs. For example -- would a spark plug feel enough like a crack pipe through the cloth of a pocket to justify an arrest?
The seven exceptions to the warrant requirement that we talked about were:
Search Incident to Lawful Arrest: Police may arrest a suspect on probable cause, and before putting the suspect in the back of their cruiser, may search them both to disarm and to find evidence. The way I have always understood this is that once a person has been arrested, the government has put its cards on the table and there is no problem of intangible escalalation of the imposition on the liberty of the arrestee. If the arrest was unlawful, the search will be too, so let him challenge the arrest.
The Automobile Exception: Unlike your house, you drive your car through public places, and (most) don’t have blinds on the windows (incidentally, there are laws against that sort of thing). Also, the drivers side window is the place of the most frequent interaction with the police. For these reasons, under federal law, the police can search a car once there is probable cause. Notice – there is no such exception for the person.
Inventory Searches: When cars are impounded they may be searched without a warrant so long as there are guidelines limiting the discretion of the police, and the search is conducted in a manner that indicates it was part of normal procedure. Again, it’s a matter of limiting police discretion, and state law has a lot to say about this.
Plain View: Not really an exception, but so long as the police were lawfully allowed to be in the vantage point that they were, we can’t expect them to turn a blind eye to obvious evidence of wrongdoing. Maybe it’s a carry-over from the abandoned trespass concept of a search (Olmstead), but that’s where it stands, and the rule is not going anywhere.
Consent: If you consent to a search, you waive your rights. The only remarkable thing about this exception is the frequency with which _very_ guilty people consent. Crime School 101: If you have drugs, and you tell the officer he can search, he IS going to search AND he is going to find them (they kind of know what they are doing).
(K-12) School: We expect certain things from our teachers, and holding them to the same standards as the police would (a) make their jobs impossible, and (b) sorely mistake what their job is.
Exigent Circumstances: In the ticking time bomb scenario we allow the police to act like normal human beings, and worry about the justifications later. Police don’t have to abandon a hot pursuit when the suspect enters private property and go get a warrant. Recently, this has become a hot topic in investigation of methamphetamine labs, which police and many courts have deemed equally dangerous as the ticking time bomb – they do in fact explode without warning and with some frequency.
Audio
Last Wednesday we heard from Josh Steward about the Supreme Court’s recent interpretation of the Second Amendment and where gun rights stand today. Josh first explained the text of the Second Amendment:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Then Josh explained that in Heller the majority essentially severed the prefatory phrase regarding the militia, leaving question about what it meant to keep arms, bear arms, and the degree of infringement. Instead of situating the limit on the kinds of weapons people may keep and bear (and presumably shoot) in the text, or in the history of the Amendment, the Court said that firearms in common lawful use were protected.
We then discussed the Fourth Amendment’s protection against unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The result, if these rules are violated, is that the evidence obtained is not available in court. First, however, some definitions. A “search” is the invasion of a subjective expectation of privacy that society is willing to recognize as reasonable. For instance, you have a reasonable expectation of privacy in your house, but an unreasonable (if genuine) expectation of privacy in the smell of drugs emanating from the trunk of your car. A seizure, with regard to a person (which is usually the most important) is the creation of the reasonable belief in an average person that they are not free to leave. For example, tackling a suspect, and turning on the police siren-lights are both seizures of the suspect. Finally, an “unreasonable search[ or] seizure[]” is a search without a warrant. The case I meant to read from to support this proposition is Katz:
Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," (Agnello v. United States) for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." (Wong Sun v. United States). "Over and again this Court has emphasized that HN9the mandate of the [Fourth] Amendment requires adherence to judicial processes," (United States v. Jeffers) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. - Katz v. United States, 389 U.S. 347, 357 (U.S. 1967)
Naturally, we next discussed the “specifically established and well-delineated exceptions” to the warrant requirement. Before talking about the seven exceptions under discussion we talked about how Terry v. Ohio permitted certain citizen-police interaction based on reasonable, objectively articulable, suspicion, and how that case demonstrated the Court’s real concern for limiting the absolute discretion of the police to pursue wild hunches or target people for investigation without justification. There is very little to say about the difference between unreasonable suspicion, reasonable suspicion, and probable cause, except that the facts of cases are frequently very similar to others so rules can be applied, but we talked about two examples very close to the line.
Neither mere flight from the police (without more) nor apparently lawful conduct in a high crime area, at night, justify a stop by the police. But all three combined, do. That is one example of the line between a mere hunch, and reasonable suspicion. As for probable cause, the question is always whether the information the officer has would arguably be enough to justify skipping straight to the part where the suspect is put in handcuffs. For example -- would a spark plug feel enough like a crack pipe through the cloth of a pocket to justify an arrest?
The seven exceptions to the warrant requirement that we talked about were:
Search Incident to Lawful Arrest: Police may arrest a suspect on probable cause, and before putting the suspect in the back of their cruiser, may search them both to disarm and to find evidence. The way I have always understood this is that once a person has been arrested, the government has put its cards on the table and there is no problem of intangible escalalation of the imposition on the liberty of the arrestee. If the arrest was unlawful, the search will be too, so let him challenge the arrest.
The Automobile Exception: Unlike your house, you drive your car through public places, and (most) don’t have blinds on the windows (incidentally, there are laws against that sort of thing). Also, the drivers side window is the place of the most frequent interaction with the police. For these reasons, under federal law, the police can search a car once there is probable cause. Notice – there is no such exception for the person.
Inventory Searches: When cars are impounded they may be searched without a warrant so long as there are guidelines limiting the discretion of the police, and the search is conducted in a manner that indicates it was part of normal procedure. Again, it’s a matter of limiting police discretion, and state law has a lot to say about this.
Plain View: Not really an exception, but so long as the police were lawfully allowed to be in the vantage point that they were, we can’t expect them to turn a blind eye to obvious evidence of wrongdoing. Maybe it’s a carry-over from the abandoned trespass concept of a search (Olmstead), but that’s where it stands, and the rule is not going anywhere.
Consent: If you consent to a search, you waive your rights. The only remarkable thing about this exception is the frequency with which _very_ guilty people consent. Crime School 101: If you have drugs, and you tell the officer he can search, he IS going to search AND he is going to find them (they kind of know what they are doing).
(K-12) School: We expect certain things from our teachers, and holding them to the same standards as the police would (a) make their jobs impossible, and (b) sorely mistake what their job is.
Exigent Circumstances: In the ticking time bomb scenario we allow the police to act like normal human beings, and worry about the justifications later. Police don’t have to abandon a hot pursuit when the suspect enters private property and go get a warrant. Recently, this has become a hot topic in investigation of methamphetamine labs, which police and many courts have deemed equally dangerous as the ticking time bomb – they do in fact explode without warning and with some frequency.
Audio
Feeding the Hungry
This post submitted by an IBRL member.
Two weeks ago we talked about the doctrine of incorporation. One snippet of the complex history leading up to the Fourteenth Amendment, which includes one of my most favorite quotes, is tangentially relevant to current events.
In 1854 full scale political war broke out over the admission of Kansas and Nebraska to the Union pursuant to the Kansas-Nebraska Act, which admitted the two states “with or without slavery as their constitutions may provide.” Opponents of the Act formed the new Republican Party, which would later go on to control Congress during reconstruction and pass, among other things, the Fourteenth Amendemnt, on the platform and the slogan of “Free Kansas.” The new party’s platform declared it “both the right and the duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery.” In a demonstration of a natural rights concept of “privileges and immunities,” the Republican party further resolved “that Kansas should be immediately admitted as a State of the Union with her present free constitution, as at once the most effectual way of securing to her citizens the enjoyment of the right and privileges to which they are entitled.”
Outright violence commenced. Massive contingents of pro and anti slavery forces immigrated to Kansas in an attempt to overwhelm the other side in the vote on the state’s constitutional disposition toward slavery. When the pro-slavery forces won the election, dispelled anti-slavery forces, and entrenched their position in the laws of the new state, the anti-slavery faction set up an opposition government led by “Free-Soil” forces, another radical political party dedicated to the slavery issue. The shots fired in this exchange were the first of what we now call the Civil War.
Among others, the new Kansas legislature passed laws restricting the freedoms of speech and the press, and which were “identical to [those] passed by a number of [other] states,” and which made it a felony “to assert that persons have not the right to hold slaves in said Territories” or to “circulate any writing containing any sentiments calculated to induce slaves to escape from the service of their masters.”
On March 7th, 1856, John Bingham, widely considered the most important figure in the formation of the Fourteenth Amendment, attacked the constitutionality of these laws. His speech was extraordinarly compelling, and by no means uncharacteristic for its time. Remember, John Bingham gave this speech TEN YEARS BEFORE the Fourteenth Amendment was proposed :
"[I]t is as plain as any fact in nature that this legislation is void by whomsoever enacted. And why? Simply because it contravenes the Constitution of the United States, and by which Constitution, by the express terms of the organic act, restricts the legislative power of the Legislative Assembly of Kansas to such rightful subjects of legislation as are consistent with the Constitution.
***
Any territorial enactment which makes it a felony for a citizen of the United States within the territory of the United States “to know, to argue, and to utter freely according to conscience,” is absolutely void, because it is not consistent with that provision which declares that Congress of the United States shall not pass any law abridging the freedom of speech or of the press. It has conferred the power of legislation on that Territory; but at the same time of conferring that power, it said, in terms plain and clear to the comprehension of any man, that such legislation should only extend to such rightful subjects of legislation as were consistent with the Constitution. Congress has the power to restrain and prevent any such legislation. By permitting it to stand, Congress approves it, and, in fact, enacts it. What Congress does by another, it does itself, in effect
***
[According to these laws from Kansas, it would be] a felony to shelter the houseless, to cloth the naked, to feed the hungry, and help him that is ready to perish; a felony to give to the famishing a cup of water in the name of our Master. Oh, sir, before you hold this enactment binding upon an American Congress, tear down that banner of freedom which floats above us, for stirring reminiscences linger in its folds, and the stars upon its field of azure have gleamed above the fields of “poised battle,” where the earthquake and the fire led the charge, and where American virtue and American valor maintained the unequal conflict against the mighty power of British tyranny and oppression. Before you hold this enactment to be law, burn our immortal Declaration and our free written Constitution, fetter our free press, and finally penetrate the human soul and put out the light of that understanding which the breath of the Almighty hath kindled.
***
This pretended legislation of Kansas violates the Constitution in this – that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press; and it expressly prescribes that “no person shall be deprived of life, liberty, or property without due process of law."
When I read this speech, I still get chills.
For more, I recommend Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986) and Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989)
Two weeks ago we talked about the doctrine of incorporation. One snippet of the complex history leading up to the Fourteenth Amendment, which includes one of my most favorite quotes, is tangentially relevant to current events.
In 1854 full scale political war broke out over the admission of Kansas and Nebraska to the Union pursuant to the Kansas-Nebraska Act, which admitted the two states “with or without slavery as their constitutions may provide.” Opponents of the Act formed the new Republican Party, which would later go on to control Congress during reconstruction and pass, among other things, the Fourteenth Amendemnt, on the platform and the slogan of “Free Kansas.” The new party’s platform declared it “both the right and the duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery.” In a demonstration of a natural rights concept of “privileges and immunities,” the Republican party further resolved “that Kansas should be immediately admitted as a State of the Union with her present free constitution, as at once the most effectual way of securing to her citizens the enjoyment of the right and privileges to which they are entitled.”
Outright violence commenced. Massive contingents of pro and anti slavery forces immigrated to Kansas in an attempt to overwhelm the other side in the vote on the state’s constitutional disposition toward slavery. When the pro-slavery forces won the election, dispelled anti-slavery forces, and entrenched their position in the laws of the new state, the anti-slavery faction set up an opposition government led by “Free-Soil” forces, another radical political party dedicated to the slavery issue. The shots fired in this exchange were the first of what we now call the Civil War.
Among others, the new Kansas legislature passed laws restricting the freedoms of speech and the press, and which were “identical to [those] passed by a number of [other] states,” and which made it a felony “to assert that persons have not the right to hold slaves in said Territories” or to “circulate any writing containing any sentiments calculated to induce slaves to escape from the service of their masters.”
On March 7th, 1856, John Bingham, widely considered the most important figure in the formation of the Fourteenth Amendment, attacked the constitutionality of these laws. His speech was extraordinarly compelling, and by no means uncharacteristic for its time. Remember, John Bingham gave this speech TEN YEARS BEFORE the Fourteenth Amendment was proposed :
"[I]t is as plain as any fact in nature that this legislation is void by whomsoever enacted. And why? Simply because it contravenes the Constitution of the United States, and by which Constitution, by the express terms of the organic act, restricts the legislative power of the Legislative Assembly of Kansas to such rightful subjects of legislation as are consistent with the Constitution.
***
Any territorial enactment which makes it a felony for a citizen of the United States within the territory of the United States “to know, to argue, and to utter freely according to conscience,” is absolutely void, because it is not consistent with that provision which declares that Congress of the United States shall not pass any law abridging the freedom of speech or of the press. It has conferred the power of legislation on that Territory; but at the same time of conferring that power, it said, in terms plain and clear to the comprehension of any man, that such legislation should only extend to such rightful subjects of legislation as were consistent with the Constitution. Congress has the power to restrain and prevent any such legislation. By permitting it to stand, Congress approves it, and, in fact, enacts it. What Congress does by another, it does itself, in effect
***
[According to these laws from Kansas, it would be] a felony to shelter the houseless, to cloth the naked, to feed the hungry, and help him that is ready to perish; a felony to give to the famishing a cup of water in the name of our Master. Oh, sir, before you hold this enactment binding upon an American Congress, tear down that banner of freedom which floats above us, for stirring reminiscences linger in its folds, and the stars upon its field of azure have gleamed above the fields of “poised battle,” where the earthquake and the fire led the charge, and where American virtue and American valor maintained the unequal conflict against the mighty power of British tyranny and oppression. Before you hold this enactment to be law, burn our immortal Declaration and our free written Constitution, fetter our free press, and finally penetrate the human soul and put out the light of that understanding which the breath of the Almighty hath kindled.
***
This pretended legislation of Kansas violates the Constitution in this – that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press; and it expressly prescribes that “no person shall be deprived of life, liberty, or property without due process of law."
When I read this speech, I still get chills.
For more, I recommend Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986) and Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989)
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