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The Slaughterhouse Cases: 136 Years of Unconstitutional Precedent
On this day in 1873, the U.S. Supreme Court issued its disastrous and far-reaching decision in The Slaughterhouse Cases, effectively gutting the 14th Amendment's Privileges or Immunities Clause, which reads: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The clause's purpose was to protect both natural rights (immunities) and civil rights (privileges) from abusive state governments. Slaughterhouse made a mockery of that.
At issue was a Louisiana law granting a 25-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company to build and operate a new central slaughterhouse to "promote the health of the City of New Orleans." Writing for the Court's 5-4 majority, Justice Samuel Miller held that not only was the monopoly constitutional, the Privileges or Immunities Clause actually protected only a modest set of national rights, thus leaving the states free to restrict liberty as they saw fit.
The case remains one of the Court's worst decisions, though recent developments suggest that the Slaughterhouse era may finally come to an end. Most significantly, after last year's District of Columbia v. Heller, which recognized that the 2nd Amendment protects an individual right to keep and bear arms, the Supreme Court will eventually face the question of whether the 2nd Amendment applies against state and local governments as well.
To that end, the Institute for Justice recently filed a friend of the court brief (PDF) in the Chicago gun case, providing detailed historical evidence that the Privileges or Immunities Clause "protects substantive rights from incursion by state and local governments, and [that] the right of citizens to keep and bear arms for self-defense is among the most important of those rights."
When the Supreme Court finally decides the issue of the 2nd Amendment and the states, Slaughterhouse will hopefully receive some long-overdue scrutiny as well.
MNG|4.14.09 @ 6:23PM|#
I might be wrong, but iirc Mr. Root, whose work is always
thought provoking and well done, was critical of a anti-gun control
brief from a liberal group based on the same clause of the
14th.
I'm very sympathetic to the goals of a broad reading of this
clause, or for that matter a broad reading of the Due Process
clause to reach similar conclusions, but I worry that one man's
"natural right" is just not another man's natural rights. How do we
decide what "natural rights" are covered and which are not? The
right to travel from state to state? Freedom of contract? Sodomy
and other sexual relations? I don't think it's going to be clear to
a lot of folks...
Best to defend gun rights, for example, on the 2nd Amendment which
seems to refer to it explicitly. I'd like it if the Constitution
had some way of letting us know that the right to abortion or
sodomy is covered, and I'm sure many libertarians here would like
to see freedom of contract and such to be covered, but as an
explicit matter, it simply wasn't. It strikes me our Founders were
not very good liberals, conservatives or libertarians for that
matter...
|4.14.09 @ 6:25PM|#
Curious to see if the Justices split this 5-4 based on their own biases, or if they go 9-0 since they should look at Heller as a precedent. I'm guessing 5-4 because they suck that much.
JP|4.14.09 @ 6:26PM|#
Yes, the Slaughterhouse Cases decision was really bad.
Among other things, it was a blatant example of "the Constitution
may seem to say X, sonny, but what it really means is
not-X."
However, the Court has been applying parts of the Bill of Rights to
action by the states for 50-plus years, without implicating
Slaughterhouse. They can do it with the Second Amendment
just as they did with most of the others.
|4.14.09 @ 6:33PM|#
MNG, let me refer you to the 9th Amendment.
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
Tell me again how they weren't libertarian.
MNG|4.14.09 @ 6:33PM|#
"shall have power to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the common defense and
general welfare of the United States"
"To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes;"
"To establish post offices and post roads;"
"nor shall private property be taken for public use, without just
compensation"
"nor shall any state deprive any person of life, liberty, or
property, without due process of law"
"No person held to service or labor in one state, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service or
labor may be due."
It's hard to buy that the folks that wrote all of the above were
libertarians, that's for sure...
"
|4.14.09 @ 6:36PM|#
MNG,
I suppose that's true if you define libertarians as anarchists, but
most of us favor strongly limited government, not no government.
I'd be mostly satisfied with a constitutional government.
MNG|4.14.09 @ 6:36PM|#
The 9th is such a problemattic provision, as far as applying
it.
"The fact that we listed some rights the people have that doesn't
warrant one to construe that listing to deny other rights the
people have."
They really left us hanging there. What were those other rights?
How can we know?
MNG|4.14.09 @ 6:40PM|#
uhh, so the government is given a broad grant to "regulate" my
trading with a businessperson of a foriegn nation.
It is given a grant to take property, life and liberty as long as
it follows due process.
It is given the right to take private property and convert it to
public use, as long as it pays for it.
It shall have the power to take property from others by force (how
libertarians often refer to taxation) and to spend it on things
like post offices.
That's hardly the Cato Insitute dudes.
Brett Stevens|4.14.09 @ 6:41PM|#
People are in denial of this obvious fact:
Being part of a civilization requires you to cooperate with others,
usually through some central authority or power.
|4.14.09 @ 6:42PM|#
MNG,
In fact, that's about precisely where Cato lives. You're reading
some of those items a lot more broadly than they're written,
too.
|4.14.09 @ 6:46PM|#
It shall have the power to take property from others by force (how libertarians often refer to taxation) and to spend it on things like post offices.
As long as it benefits everyone equally, then most libertarians
wouldn't have a problem with a small tax for these sorts of things.
I think you're misinterpreting some libertarian points. We're not
against taxes. We're against taking people's money simply to give
it to someone else for no other reason than to be 'fair'.
MNG|4.14.09 @ 6:53PM|#
Of course you could never, ever, "benefit everyone equally" from
government expenditures. Never. When they take money from A, who
works at home and B, who lives 50 miles from work, and use it to
build a road it doesn't "benefit everyone equally."
Pro L
Cato is cool with the government deciding they could find a better
use of someone's home for the "general good" and taking it even if
the homeowner adamantly protests?
And they are for the post office?
|4.14.09 @ 6:53PM|#
While I'm at it.
It is given a grant to take property, life and liberty as long as it follows due process.
Yep. If you can prove, through due process(court of law), that I
have broken a law, and wish then to incarcerate me, good on ya. Due
process will prove(or not) that a person has infringed upon the
rights of another, and compensation is made as restitution.
It is given the right to take private property and convert it to public use, as long as it pays for it.
Yep. If you want my property for other uses, pay me so I can obtain
and equivalent piece of property somewhere else. It's not like
eminent domain cases that we're seeing today. Now, people are not
being adequately compensated for their property. And if they refuse
to leave, then the games begin in order to force them out without
compensation.
MNG|4.14.09 @ 6:55PM|#
Big strong guys like me don't benefit from the protection police
provide as much weak lil' guys like SIV or TAO, but we all pay
taxes for it.
For example.
|4.14.09 @ 6:56PM|#
MNG, unless person A is COMPLETELY self sufficient and doesn't partake in ANY service/good that uses those roads, then you'd have a point. But I ask you to show me anyone that does that. And if you can, I'd be willing to bet they don't pay taxes anyway.
|4.14.09 @ 6:57PM|#
MNG,
Big strong guys like me don't benefit from the protection police
provide as much weak lil' guys like SIV or TAO, but we all pay
taxes for it.
Some is not the same as none.
MNG|4.14.09 @ 6:59PM|#
That's a very narrow way to read that (the Due Process clause). It seems to implicate much more than criminal fines, but all kinds of regulatory "deprivations" as long as a neutral and basically fair process is followed.
MNG|4.14.09 @ 7:00PM|#
As to the roads, it may benefit everyone some, but surely it benefits some (like the owner of a shipping company) a lot more than others...All government expenditures are like that.
|4.14.09 @ 7:02PM|#
It's typically understood that Due Process is meant as Due Process of Law. Not just any process.
MNG|4.14.09 @ 7:02PM|#
Don't get me wrong, the Founders were certainly not liberals in
the modern sense either!
Nor conservatives for that matter.
MNG|4.14.09 @ 7:03PM|#
Sure, but look at it this way: libertarian Founders would have
said something more protective about freedom and property rights
than "we can take both from ya as long as we follow laws
established ahead of time and in a fair process."
And I imagine they would have mentioned something about freedom to
contract as well...
James Madison|4.14.09 @ 7:08PM|#
I'd like it if the Constitution had some way of letting us
know that the right to abortion or sodomy is covered
Well your Mom didn't exercise her right to abortion but you are
exercising your right to sodomy enough to make up for it!
MNG|4.14.09 @ 7:09PM|#
Had they been liberals they would have made it much more clear that government was empowered to act in certain ways for "the common good." And were they conservatives they would have not put in the first or eighth amendment, that's for sure...
|4.14.09 @ 7:09PM|#
MNG,
Sure, but look at it this way: libertarian Founders would have said
something more protective about freedom and property rights than
"we can take both from ya as long as we follow laws established
ahead of time and in a fair process.
Why? That pretty much covers it. As long as they're following the
laws, there shouldn't be a problem. And as long as those laws are
Constitutional, there shouldn't really be an issue.
Why overcomplicate the issue?
MNG|4.14.09 @ 7:13PM|#
Because you can easily create some pretty unlibertarian
regulatory and administrative laws that would, in their
application, deprive folks of a great deal of property and liberty
and make sure that they are made ahead of time, offer up a fair
process (a hearing, a neutral decision-maker, etc), etc.
I'd say a very small part of Due Process claims involve the federal
criminal code...
|4.14.09 @ 7:17PM|#
Because you can easily create some pretty unlibertarian regulatory and administrative laws that would, in their application, deprive folks of a great deal of property and liberty and make sure that they are made ahead of time, offer up a fair process (a hearing, a neutral decision-maker, etc), etc.
You could, but if you elect the right kinds of people, which is
what the founders knew you had to do to protect the Republic(and
repeatedly warned us about), you won't have to worry about
it.
And very few people in the position to create laws today are the
right kinds of people.
MNG|4.14.09 @ 7:21PM|#
For example, under the explicitly given power to "regulate commerce" between the states the federal government could regulate how many hours can be in a shift for a traveling salesman, even require a lisence to engage in such work (and if denied prevent by force the person from engaging in it) prohibit him from possessing and using certain substances while traveling for work purposes, etc. I cannot imagine many libertarians proposing that if they were making up the rules from scratch...
MNG|4.14.09 @ 7:25PM|#
Well Silentz, it they elected the right kinds of people they
wouldn't need any Constitution at all. Those kinds of people would
do the right thing, being the kind of folks they are!
Most libertarians seem to think that a sensible and just government
must have restrictions in place on government intrusion into
important areas, for them things like property, freedom to
contract, etc., because the "wrong kind of people" will always have
a chance of getting elected.
But our Founder's left out a lot of that stuff. I submit it's
because they simply were not libertarians (not to say they were not
"more" libertarian than most of our contemporary politicians, which
I would say is obviously true).
MNG|4.14.09 @ 7:28PM|#
The case in point is a good example: if they (Founders) had written "freedom of contract and freedom to pursue an occupation uharmful to others shall not be infringed" then it would have been very difficult indeed for the courts to uphold the monopoly provision in question with anything passing for a straight face...
The Angry Optimist|4.14.09 @ 8:01PM|#
For example, under the explicitly given power to "regulate
commerce" between the states the federal government could regulate
how many hours can be in a shift for a traveling
salesman...
This actually isn't, as Clarence Thomas recognizes, the original
intent of the Commerce Clause. The expansive definition to which
you are referring basically came from Wickard v. Fillburn,
which anyone who is intellectually honest should hate,
regardless of your political orientation.
The original intent of the Commerce Clause was to make sure the
states didn't lay tariffs, duties or quotas on goods from other
states.
Granted, even the early 1800s recognized that Congress could
regulate interstate travel, but that was controlling the navigable
waterways (and now roadways), not the people on them to the level
you're postulating.
Anyway, I don't know what the uncalled for personal shot was all
about, but that's your bag.
The Angry Optimist |4.14.09 @ 8:05PM|#
I should add that I don't know who is informing Mr. Root about the evolution of P&I, but the doctrine of "substantive due process" (an oxymoron, if you think about it) has pretty much taken the place of what the P&I clause should have done. I mean, even if SCOTUS restores P&I, the analysis for economic regulations ("rational basis") is probably going to be the same.
robc|4.14.09 @ 8:31PM|#
I'd like it if the Constitution had some way of letting us
know that the right to abortion or sodomy is covered
The 9th amendment made it clear that all rights are covered. Now,
whether or not abortion or sodomy is a natural right is a different
matter entirely. :)
robc|4.14.09 @ 8:33PM|#
What were those other rights? How can we know?
Who the fuck cares? The constitution limits the government to only
those powers specifically limited, so we dont need to worry about
them trampling on our unnamed rights.
In one of his few decent moments, Hamilton got it right about the
Bill of Rights, unnecessary and will be misread.
robc|4.14.09 @ 8:37PM|#
MNG,
Big tent libertarian. Many of the founders fit in it. Many dont.
The constitution was a fucking compromise, not a work of one man. I
think some of them were liberals and conservatives too.
The Bearded Hobbit|4.14.09 @ 8:41PM|#
They really left us hanging there. What were those other
rights? How can we know?
and
Most libertarians seem to think that a sensible and just
government must have restrictions in place on government intrusion
into important areas, for them things like property, freedom to
contract, etc., because the "wrong kind of people" will always have
a chance of getting elected.
But our Founder's left out a lot of that stuff.
Hence, the Ninth Amendment. Dude, are you *really* that dense? If
the Constitution doesn't prevent it, you can do it. It's really not
that hard (although in practice it seems to be impossible).
.. Hobbit
Taktix®|4.14.09 @ 8:42PM|#
I was always under the impression that the Commerce Clause was
to mediate commerce disputes between state governments. Or, more
specifically, to fix the problem stemming from the Articles of
Confederation wherein states would refuse to accept each other's
currency and trade disputed would need a higher authority to
mediate.
As I understand, the Com. Clause was not for
individuals...
MNG|4.14.09 @ 8:43PM|#
"The original intent of the Commerce Clause was to make sure the
states didn't lay tariffs, duties or quotas on goods from other
states."
I don't buy that, because of this part of Art. I: "No tax or duty
shall be laid on articles exported from any state." Since they
addressed that clearly it would be strange to see the much less
clearly worded Commerce clause as doing the same thing.
Whether the Founders expected it to be applied here or there, they
seemed to think of it as a pretty broad power, hence the language.
And as Marshall pointed out this kind of broad language evidenced a
realization that such powers could be exercised along such broad
countours by a future Congress in specific ways that the Founders
may not have expected.
MNG|4.14.09 @ 8:44PM|#
"Hence, the Ninth Amendment. Dude, are you *really* that dense?
If the Constitution doesn't prevent it, you can do it."
Dude, how in the world do you figure the language of the Ninth
means that.
Taktix®|4.14.09 @ 8:45PM|#
Damn you TAO, I was running with my rare insightful torch, and
you snatched that shit away from me...
Bastard...
Taktix®|4.14.09 @ 8:48PM|#
Whether the Founders expected it to be applied here or
there, they seemed to think of it as a pretty broad power, hence
the language.
a) I find that language pretty narrow
b) English circa 1800 is muy different than English circa
2000
c) Very little in the Constitution is a "broad" power. It's a list
of "Government can't..." not "People are allowed to..."
The Bearded Hobbit|4.14.09 @ 9:01PM|#
"The rights listed here are only an example; you have every
right in the world that is not listed here."
.. that's my take on the Ninth.. what's yours??
.. Hobbit
MNG|4.14.09 @ 9:47PM|#
My bad, of course that part I listed is a restriction
Congress.
Anyway, I still say the language suggests a pretty broad power: "to
regulate commerce." That's pretty broad. You can argue that
commerce had a more restricted meaning for the Founders and rightly
point out the absurdly elastic concepts put forward at times (where
domestic violence laws fall under the clause because battered
spouses don't shop as much or something), but whatever it is the
grant of power is simply "to regulate" whatever it is. Not much
restrictions there I'm afraid.
Remember that even in Gibbons v. Ogden the side calling for the
more restricted view of the concept commerce said it applied to the
buying and selling of goods interstate, which is a pretty broad
range of behaviors, especially these days.
Of course I agree with later findings that regulating interestate
commerce can apply to the manufacture of the things to be commerced
in, that just sounds logical (hardly far-fetched to think that the
conditions under which the goods to be commerced are a pretty
fundamental part of the action of "commerce', heck every good
businessman thinks that way). But heck even I draw the line when
the object of activity to be regulated is very indirectly related
(violence against women means less women shopping and working,
which effects the market for goods and labor, which effects the
"commerce"....)
MNG|4.14.09 @ 10:04PM|#
"that's my take on the Ninth.. what's yours??'
My take is what it says. It says
The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the
people.
It literally says "this listing of certain rights here shall not be
used to deny that the people retain other rights."
All it says is that there are rights retained by the people other
than the ones listed. That hardly means you have a right to
anything not listed, or you have any right not listed.
And the messed up thing with it, is that it gives you little help
in figuring out which rights not listed are the ones retained by
the people.
The Angry Optimist |4.14.09 @ 10:09PM|#
Of course I agree with later findings that regulating
interestate commerce can apply to the manufacture of the things to
be commerced in
That doesn't sound like "regulating interstate commerce" to me;
that sounds like "regulating potential interstate
commerce."
That logic is the exact logic of Wickard v. Filburn, which
was used extensively in Gonzales v. Raich.
Commerce, historically, meant regulating "trade and exchange", not
"any gainful employment". That's ACTUAL "trade and exchange", not
POTENTIAL "trade and exchange".
The Angry Optimist |4.14.09 @ 10:14PM|#
But heck even I draw the line when the object of activity to
be regulated is very indirectly related (violence against women
means less women shopping and working, which effects the market for
goods and labor, which effects the "commerce"....)
MNG, just so you know, that's a very arbitrary line for you to
draw. If I were to employ your beliefs about the Commerce Clause,
you would say that Factory X can be regulated, because it makes
things that will affect the stream of interstate commerce. Which
means you can dictate the labor hours...which means you can dictate
the safety regulations...and frankly, I don't know why you think
all of those things are sufficiently connected and other things
(like guns in schools or abused women) are too attenuated.
I should mention that if you want to know my views on the Commerce
Clause, I think that analysis under what is now called the
"Dormant" Commerce Clause is much closer to what was intended than
the Partial-Birth Abortion Ban of 2005.
|4.15.09 @ 12:03AM|#
If unreasonable searches and seizures are prohibited for ALL
levels and branches of government, and if the right to refuse to
testify against oneself, or to get a jury trial applies in ALL
courts in the nation, then it would seem to me that the prohibition
against infringement of the people's right to keep and bear arms
applies to all governments that are inferior to the Constitution --
and that means ALL of them.
Why have reasonable people, including courts and legislatures,
thought otherwise, and what justification(s) have they cited; how
have they reconciled the obvious, inherent contradictions in such a
position? Why do we NEED to have a court rule on this point
now?
robc|4.15.09 @ 12:08AM|#
The commerce clause seems easy to me:
1. If I grow pot, that isnt interstate commerce, the feds cant
regulate it. My state can, obviously.
2. If I sell it to my neighbor, ditto.
3. If I create a website and ship it around the US, they can
regulate it.
4. If I load it in a truck and ship it to an out-of-state Walmart,
they can regulate it.
5. Once Walmart puts it on their shelves and is selling to walk in
customers, no regulation, its intrastate again now.
See, easy.
robc|4.15.09 @ 12:09AM|#
Oh, and #6:
If I give my pot away to friends in other states, no federal
regulation, as commerce isnt involved. Suck it.
The Bearded Hobbit|4.15.09 @ 12:15AM|#
And the messed up thing with it, is that it gives you little
help in figuring out which rights not listed are the ones retained
by the people.
.. all of 'em ..
.. piece o' cake ..
.. Hobbit
The Bearded Hobbit|4.15.09 @ 12:32AM|#
.. and let's not forget the Tenth (although Congress seems to
have):
.. "This is what the Federal Government can do. It cannot do
anything except what is explicitly stated here."
.. something which has been sadly neglected for the past 150 or so
years ..
.. Hobbit
Leonidas|4.15.09 @ 12:50AM|#
I find it hard to believe that any Libertarian would defend something on the basis of the 14th Ammendment. Few laws have curtailed the liberties of Americans as much as this document did. While I do support many of the elements within the 14th, and can support arguments for those points, I cannot ever hold the 14th Ammendment up as something worthy of praise as it was one of the primary weapons used to tear down States' Rights by incorporating, for the first time ever, the Bill of Rights as written for the Federal government and applying it to the States. Those rights may well be worthy and if so should be written by the States into their own Constitution, but they should not be forced upon States from outside by a Federal Government seeking to expand its power, no matter how benevolent the intent.
MNG|4.15.09 @ 7:49AM|#
"That doesn't sound like "regulating interstate commerce" to me;
that sounds like "regulating potential interstate commerce.""
That's just strange and goofy. If I am int he business of
manufacturing widgets to be marketed and traded across the globe,
then of course the first part of that process (the manufacturing of
them) is part of that process. I mean, what then would commerce be,
simply the point at which one article or service, being brought
from one state, has money or something traded for it? Is only the
handing of the money to complete the trade interstate commerce?
Certainly the marketing of the goods interstate does, I should
think the shipping of the goods does, but the manufacture of the
goods does not? Now THAT'S a pretty arbitrary line to draw.
Manufacture-shipping-marketing-trade: that all seems part of
commerce. Again, every good businessperson knows this as common
sense (they see it all as part of their "interstate
enterprise).
But what sane businessperson thinks the availability of guns in the
areas he operates in, or the availibility of certain remedies for
women that are victims of domestic violence, is part of their
operations, though of course they may have some very attenuated
"but for" effect on it?
So it's pretty easy for me to reject some of the nuttier extensions
of the clause while thinking it an easy, common sense question as
to whether to grant the commerce clause the power to regulate
manufacture that is intended or likely to go into the stream of
interstate commerce (note, if it could be shown that the
manufacture [or marketing, sales effort, actual exchange
operations, etc.] was most certainly intended or likely NOT to go
into that stream, but would, as with the wheat case, only have some
attenuated but for effect, then I would find against the clause
extending there)
MNG|4.15.09 @ 8:17AM|#
Let's say I own a company that makes widgets. I live in Ohio. I
buy ad time in West Virginia where I know many widget needing
operations exist. I sent salespersons into that area to solicit
orders. You, a business owner and Randian hero bravely producing
value for the parasitic masses need widgets and after seeing my ads
you call me and place an order for 1,000. I call the chief of the
factory and tell him to hire on some extra labor and manufacture
these widgets. When they are done I hire a crew to pack them and
put them on trucks and I pay the drivers to drive them from Ohio to
your place in West Virgnia.
Certainly every step of this was a fundamental part of this
instance of "interstate commerce" which Art. I gives the the
federal Congress the broad grant or power simply "to regulate."
Drawing lines here and saying the actions of the sales persons or
marketing buys, the manufacturing, the shipping, are not part of
the process is to draw strange distinctions with no pragmatic
basis.
robc|4.15.09 @ 10:35AM|#
MNG,
The manufacturing part is not part of IC. The rest is. I might even
argue the marketing isnt. The purpose of the IC was to deal with
shipping and contracts across state lines, due to varying court
systems. Both the manufacturing and the retail end (with
internet/catalog exceptions) arent interstate.
The reason things like manufacturing/retail/labor dont need to be a
part of interstate commerce is that both ends of the transaction
are in the same states and any disputes can be handled by state
courts.
If you think of the ICC being a tool to handle multijurisdiction
disputes, then a much restriced version makes much more sense.
"Regulation" in this sense is solely to grease the dispute process.
Both sides understand the common set of regulations that apply.
anon.|4.15.09 @ 10:39AM|#
@MNG
"Drawing lines here and saying the actions of the sales persons or
marketing buys, the manufacturing, the shipping, are not part of
the process is to draw strange distinctions with no pragmatic
basis."
Even if we accept your premise, which of the following is more
pragmatic:
Drawing a line that, while somewhat arbitrary, ensures that
government doesn't have unlimited power.
Throwing up our hands because we can't achieve metaphysical
perfection in our line-drawing, thereby allowing government to have
unlimited power.
If you call the latter pragmatism, I'd hate to see what your
idealism looks like.
|4.15.09 @ 10:48AM|#
Here we have a pristine example of why the kind of judicial
"activism" being applauded below to implement gay marriage is
subject to the Fifth Iron Law:
5. Any power used for you today will be used against you
tomorrow.
Ultra vires exercises of power by any government body are
just that: exercises of power by an arm of the state. Why anyone
would expect them to be, on net, a plus for liberty is beyond me.
The genius of our system of divided government is in limiting the
power of the respective branches, in recognition of the fact that
state power, regardless of who wields it is, at the end of the day,
hostile to liberty.
Being part of a civilization requires you to cooperate with
others, usually through some central authority or power.
You realize, of course, that "cooperation" is by definition
voluntary, and "central authority or power" is by definition
coercive, yes?
For example, under the explicitly given power to "regulate
commerce" between the states the federal government could regulate
how many hours can be in a shift for a traveling salesman, . .
.
That is almost certainly not what the Founders meant by "regulate
commerce." What they had in mind was more in the nature of
regulating the means of commerce, not the content of commerce. The
latter is a blank check to control the economic life of the nation,
as we have learned to our sorrow, which would have been anathema to
the Founders.
Gosplan|4.15.09 @ 2:19PM|#
"Yep. If you want my property for other uses, pay me so I can
obtain and equivalent piece of property somewhere else."
But what if there is no equivalent piece of property somewhere
else?
|4.15.09 @ 8:39PM|#
The notion that the Supreme Court grievously erred in allowing Louisiana to move slaughter-houses out of residential neighborhoods in New Orleans has been repeated by many, with varying plans for the privileges or immunities clause. Last month another blogger expressed his hope that the Chicago gun cases eventually result in capital punishment being held to be a violation of the privileges or immunities clause. http://eightarticles.blogspot.com/2009/03/reviving-privileges-or-immunities_14.html His blog and this one remind me of the wisdom of the Slaughter-House Court's reluctance "to constitute [itself] a perpetual censor upon all legislation of the States."
bubba|4.16.09 @ 10:07AM|#
I guess I'll have to read up on the slaughterhouse case because it sounds like a utility as described.
Dan Goodman|11.6.09 @ 9:00PM|#
To all,
I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:
“We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.
And:
“In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.
The last was later reaffirmed in Cole v. Cunningham:
“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).
__________________
FOOTNOTE:
The Effects of the Fourteenth Amendment
on the Constitution of the United States
http://www.australia.to/index......p;id=15882
Also;
A Look At Corfield (On Citizenship)
http://www.americanchronicle.c.....view/93081
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