Supreme Court holds 8-1 that 14th Amendment had nothing to do with protecting freed slaves

[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.

Comments

[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.

[ilcylic.livejournal.com]

So ... we won, but not in the way you wanted us to win?

<- more than slightly confused

[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.

[ilcylic.livejournal.com]

Ahhhhh.

<- not a lawyer

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

[docstrange.livejournal.com]

Yeah. I'd hold off a while longer.

[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)".

[docstrange.livejournal.com]

True, and a good clarification of my (admittedly terse for punch value) headliner.