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[personal profile] doc_strange
Today, the US Supreme Court held, in an 8-1 decision, that the construction, wording, and passage of the 14th Amendment had nothing to do with protecting freed slaves from legal and extra-legal oppression by reactionary whites in the post bellum South. In particular, the eight majority Justices shrugged off any notion that the phrase, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" has, or was intended to have, any referent contained in the Bill of Rights.

The only Justice supporting the argument that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" was intended as a bullwark against states curtailing rights that even the federal government could not abridge, is the sole member of the Court descended from the very freed African-American slaves such a principle would have been intended to protect.

(no subject)

Date: 2010-06-28 04:16 pm (UTC)
From: [identity profile] marsgov.livejournal.com
This is fascinating... but I can't find it in the decision. For that matter, I don't understand how it could end up in the decision and still have the decision go the proper way (that is, the way it went).

(no subject)

Date: 2010-06-28 04:32 pm (UTC)
From: [identity profile] docstrange.livejournal.com
8 Justices rejected incorporation via the P&I clause. 4 of them rejected incorporation entirely. 4 accepted incorporation via Due Process, and one had a concurring opinion in the outcome, but held for incorporation via the P&I clause.

The "outcome" that this case holds the 2nd as incorporated is a simplistic view of the case, which flatly rejected the notion that there was ever any content to the P&I clause... again.

When a fundamental portion of constitutional text is examined / legislated in terms of an object or process that is only part of the experience or exercise of any rights thereunder, the net effect may or may not be to limit the object or process in question, but it is almost always has a net effect to diminish rights overall for all objects and manners of exercise. In short, rejection the notion that the P&I clause carries any content related to the Bill of Rights, rejects the notion that those rights are fundamental with respect to the states, and puts forth the notion that only due process violations of said "rights" are to be worried about. There are many ancillary problems that derive from a due process basis to fundamental rights.

(no subject)

Date: 2010-06-28 04:33 pm (UTC)
From: [identity profile] ilcylic.livejournal.com
So ... we won, but not in the way you wanted us to win?

<- more than slightly confused

(no subject)

Date: 2010-06-28 04:38 pm (UTC)
From: [identity profile] docstrange.livejournal.com
We won in a manner that permits systematic and intentional violations of the right until one can prove the violations are systematic and intentional.

Just like the rest of the "due process" incorporated rights. The Court stood on its head to avoid talking about the ridiculously-well-documented history of the 14th and ran with the - admittedly established - precedent that rights are incorporated against the states by way of one of the more tepid phrases in the Amendment.

(no subject)

Date: 2010-06-28 04:42 pm (UTC)
From: [identity profile] ilcylic.livejournal.com
Ahhhhh.

<- not a lawyer

I guess this means I shouldn't OC in Manhattan just yet?

(no subject)

Date: 2010-06-28 04:45 pm (UTC)
From: [identity profile] docstrange.livejournal.com
Yeah. I'd hold off a while longer.

(no subject)

Date: 2010-06-30 09:12 pm (UTC)
From: [identity profile] ratatosk.livejournal.com
Okay, I've read everything but the dissents at this point. (I am not sure I am up for another long piece by Stevens or Breyer making up yet another new test.)

I totally agree with you otherwise, but I think it's unfair to say Alito avoided talking about the history of the amendment. He just avoided talking about the history of the P&I clause -- there's lot of history in there.

Alito pretty much admitted that there was widespread agreement that substantive due process was the wrong way to go, but then just kind of dropped the subject and moved on. I read it as "if we can do it with substantive due process, let's just do that and get it over with, and hope no one ever sends us a straightforward P&I question (but we'll give someone status as an intervenor if they do)".

(no subject)

Date: 2010-07-01 12:02 am (UTC)
From: [identity profile] docstrange.livejournal.com
True, and a good clarification of my (admittedly terse for punch value) headliner.

(no subject)

Date: 2010-06-28 05:34 pm (UTC)
From: [identity profile] maradydd.livejournal.com
Oh for fuck's sake.

I should really read this and tear into it, but I'm already behind on reading and tearing into the anti-anonymity shit that the White House and DHS are pimping, and I really need to finish that first :(

(no subject)

Date: 2010-06-28 06:16 pm (UTC)
From: [identity profile] docstrange.livejournal.com
Indeed. The decision is a very nicely researched and written one... which continues the long-standing, perverse idea that only the guarantee of due process protects the other, more explicit rights in the Constitution. I really do think that, given "due process" as it stands today, that we'll only see a continued erosion of all rights as a result.

(no subject)

Date: 2010-06-28 06:22 pm (UTC)
From: [identity profile] maradydd.livejournal.com
And of course due process can be suspended whenever the hell the executive feels like it, if the courts don't want to object. Thanks for nothing, Lincoln.

(no subject)

Date: 2010-06-29 05:44 am (UTC)
From: [identity profile] jordan179.livejournal.com
... except that, if Lincoln hadn't done that, there might not be a United States of America today. Consider his context.

(no subject)

Date: 2010-06-28 05:53 pm (UTC)
From: [identity profile] faerieburst.livejournal.com
It's not the ideal way we'd want it, no. But given the Court's notorious reluctance to even remember the 2nd Amendment exists, let alone make rulings in its favour? I'll take it for now.

~Aramada

(no subject)

Date: 2010-06-28 06:17 pm (UTC)
From: [identity profile] docstrange.livejournal.com
As the sagacious [livejournal.com profile] docstrange said above after you posted your entirely solid point, "Indeed. The decision is a very nicely researched and written one... which continues the long-standing, perverse idea that only the guarantee of due process protects the other, more explicit rights in the Constitution. I really do think that, given "due process" as it stands today, that we'll only see a continued erosion of all rights as a result."

;-)
Edited Date: 2010-06-28 06:17 pm (UTC)

(no subject)

Date: 2010-06-29 01:55 am (UTC)
From: [identity profile] chorus.livejournal.com
Did you read Bloom County? If so, do you remember Oliver's reaction to learning about apartheid and the temporary blackifier (for want of a better word) he made because of it? I need someone to invent that for reals and travel to Washington with it. Oh, and Arizona, too, but they'll need a second setting for that one.

(no subject)

Date: 2010-06-30 05:51 am (UTC)
ivy: (polite raven)
From: [personal profile] ivy
Thanks for the post. I've read a lot of commentary on this one, plus a bunch of "YEEEEEEEEEAH!" from LiveJournal. I always enjoy your thoughtful perspective on these matters. (I know I'm not anywhere near enough of a subject matter expert to offer commentary, so I'll settle for brain fodder. [grin])

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