Today in Supreme Court History: July 9, 1868

7/9/1868: The Fourteenth Amendment is ratified.

The Fourteenth Amendment

Comments

[Dan Schiavetta]

McGirt v. Oklahoma, 591 U.S. --- (decided July 9, 2020): Oklahoma had no jurisdiction to try Native American because alleged crime occurred on what was still technically a reservation despite long history of broken promises and disruption of borders; case can only be tried in federal court under the Major Crimes Act (the decision is a good example of Gorsuch’s casual writing style)

Trump v. Vance, 591 U.S. --- (decided July 9, 2020): rejecting Trump’s attempt to block grand jury subpoena on his accountants; Article II and Supremacy Clause not violated by state criminal process on a sitting President

Trump v. Mazars USA, 591 U.S. --- (decided July 9, 2020): Trump contested Congressional subpoenas into his financial affairs for purpose of determining money laundering and extent of foreign influence; no executive privilege asserted, but Congress had never subpoenaed Presidential records before and Court remanded for consideration of separation of powers concerns (Thomas in dissent holds that Congress can never subpoena private papers from anyone, let alone the President, except as part of an impeachment process) (with Trump no longer President, D.C. Circuit ruled that the subpoenas had to be responded to in part, 39 F.4th 774, 2022)

[Dr. Ed 2]

Amazing the extent his finances were investigated. What would happen if Biden faced similar review????

[Dan Schiavetta]

Biden, like every other candidate for the last 30 years, released his tax returns. Trump, uniquely, refused to do so, and lied about the reason. Also he controlled a worldwide hotel business and did not hide the fact that he was enriching himself (and his family) by his decisions in office. This was a man who was begging to be investigated. I don’t think we’ve investigated him nearly enough.

[Magister]

Gerald Ford was the last major party candidate before Trump not to release any tax returns, although some have released very few. So you could say the last 40 years.

[Jerry B.]

Relying on tax returns to give you a full and true idea of someone’s finances, especially when their family is also involved in many of the undertakings, is wishful thinking at best.

[Mr. Bumble]

When did releasing tax returns get added to the Constitutional requirements for office?

[Dan Schiavetta]

Imagine the fallout if Hillary and Bill had refused to release theirs!

This is another issue which shows that about 35% of the American people have become Trump cultists. They have jettisoned previous beliefs because they’re not followed by their Dear Leader.

Presidents should know how the federal government functions. Trump doesn’t know (“I will order a judge to sign a bill . . .”) Suddenly it doesn’t matter.

Presidents should be careful with classified information. Trump is breathtakingly careless (tweeting satellite photos, using an unsecured cell phone, planning a military operation in front of hotel guests, and then there's that bathroom reading at Mar-a-Lago). Suddenly that's perfectly fine.

Presidents should lead moral lives, and at the least not be serial, unapologetic adulterers. Trump is. Suddenly that stuff doesn’t matter.

Presidents should not obstruct justice. (I.e., the Nixon “smoking gun” tape where he agreed with an aide’s suggestion that the CIA lean on the FBI to drop the Watergate investigation.) Trump boasts about it (telling Lester Holt he fired Comey because of the Russia investigation). Suddenly that’s o.k.

Presidents should not play footsie with hostile regimes such as Russia. Trump does. Suddenly Russia isn’t so bad.

Presidents (or candidates for President) should release their tax returns. Trump doesn’t. Suddenly that’s not important.

[defaultdotxbe]

I've seen a few examples of the inverse on the other side as well, people jettisoning previously held beliefs *because* they are shared by Trump.

Trump wants protectionist trade policies? Suddenly American manufacturing workers aren't that important anymore.

Trump hates China? Suddenly China (and its sweatshops) aren't so bad anymore.

And remember Obama's response to Romney calling Russia our biggest geopolitical threat? Well, the 1980s apparently never got their foreign policy back because we still have it.

Pretty much all of politics has become cult-like these days.

[Kleppe]

"I don’t think we’ve investigated him nearly enough."

In a functioning society, crimes are investigated in order to discover the people responsible for committing them. In the Left's ideal world, people are investigated in order to find the crime.

[Yogis_dad]

And did Biden pay taxes on all the money he took in from China, Ukraine, and who knows what other foreign bribers - reliably reported to be multimillions? Those payments don't show up on his returns, but the Service routinely compares income to assets for other filers whose lifestyle is vastly bigger than their reported income.

[David Nieporent]

What would happen if Biden faced similar review????

You mean, what if the GOP did exactly what it's in fact been doing?

[hoppy025]

Literally the worst day in American history, and the one that will lead to its downfall.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You must love the Slaughterhouse decision then, where the Supreme Court stripped out everything useful, contrary to what both pro and con had agreed the 14th Amendment meant, in Congress, state legislatures, newspapers, everyone, while it was being debated and ratified.

[hoppy025]

The problem isn't the privileges or immunities clause. The problem is equal protection.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It was idiots like you who pretended the original Constitution didn't include equal protection which made it necessary to be explicit.

[bernard11]

It was idiots like you who pretended the original Constitution didn’t include equal protection which made it necessary to be explicit.

There is nothing in the original Constitution that says a state may not,

"deny to any person within its jurisdiction the equal protection of the laws."

And if you claim that the implication is there, explain how the requirement was completely ignored for so long.

[Dr. Ed 2]

I am amazed that this took 3 years.

[Magister]

It was only passed by the Senate in 1866, and largely in response to Southern states passing laws to disenfranchise former slaves (and amid concern that Congress did not have the authority to pass the Civil Rights Act of 1866). Given how long the 27th amendment took to be ratified, it's well below average and close to the median (the Bill of Rights took longer to ratify, and what other amendment could be considered as consequential?).

Given that some of its provisions were not enforced until nearly a century later, you should not be amazed at such a small delay, given the later success of bigots like you.

[SRG]

Interesting in Trump v Vance how readily Thomas goes against his alleged principles to achieve a result he likes - using a 190yo precedent that is unsupported by the text of the Constitution to justify why Vance's subpoena should not be enforced.

[Area Man]

Hard to believe that it’s been 155 years since same-sex marriage was legalized. Strange that polygamy wasn’t.

[Magister]

Polygamy presents far more issues than gay marriage. A majority in the US support gay marriage, and a majority oppose polygamy, so the ordinary political process is unlikely to legalize it.

Banning gay marriage results in people who can't get married (but can probably still find partners); legalizing polygamy (which is commonly one man with multiple wives) leaves a residue of men who will not be able to find wives, like the Mormon "Lost Boys" thrown out of fundamentalist Mormon communities that practice polygamy.

Divorce proceedings are generally not different if the people getting divorced are the same sex (even if it makes courts work a little harder than to rely on gender stereotypes for custody). Divorces in a group marriage seem likely to be significantly messier.

[SRG]

legalizing polygamy (which is commonly one man with multiple wives) leaves a residue of men who will not be able to find wives,

A reproductive biologist friend of mine told me that the original prohibition against polygamy in Europe was not a recognition of any rights of women, but instead a concession to otherwise single men.

[Area Man]

“ A majority in the US support gay marriage, and a majority oppose polygamy, so the ordinary political process is unlikely to legalize it.”

If you follow the reasoning of the gay-rights cases, this is exactly why the 14th Amendment should require polygamy. A politically unpopular minority who is being discriminated against because of the biases of society. Moreover, the dignity of the children of such unions must be taken into account. Blah, blah, blah.

I’m all for gay rights, but the 14th Amendment no more legalized gay marriage (or sodomy) than it did polygamy.

[Magister]

By the time gay marriage was generally legalized, it had gained popular support. (Republicans had used marriage referendums and amendments as a wedge issue to drive turnout, but abandoned that once they became losers. Now it's all trans issues.) Polygamy has a long way to go, even ignoring its societal disruptions.

[Area Man]

Again, that has nothing to do with the 14th Amendment or the reasoning of the gay-rights cases.

[Dan Schiavetta]

There should be no religious objection to polygamy. It is heterosexual sex; it is done in the service of procreation; and for millennia it was a (shall we say) deeply rooted tradition.

[Area Man]

I'm not a religious person. I don't care about the religious objections to same-sex marriage (which I support) or polygamy (which I don't).

But that's not the question when it comes to the 14th Amendment. The question is whether a state can ban such marriages, or whether the Amendment compels them to recognize and accommodate them. Re same-sex marriage, they could ban and refuse to recognize such marriages up until only a few years ago because it's an absurd notion that such marriages were legalized in 1868.

Following the reasoning of the gay-rights cases, there's no reason to not require recognition and accommodation of polygamy. But, as Magister keeps pointing out, polygamists (or polyamorists) aren't as politically popular as homosexuals. That's it. There's no legal reasoning involved whatsoever.

[Magister]

Religious beliefs requiring polygamy failed unanimously at the Supreme Court after the 14th amendment was ratified. The Supreme Court will follow politics but not polygamists until it has majority support or, as with Dobbs, pro-polygamy is a sufficient political force to get enough Justices appointed to promote that fringe view.

Following the reasoning of Dobbs, other cases not as controversial as Roe should fall. Clarence Thomas had a list (but conspicuously omitted the one that could outlaw his own marriage); few of the other conservatives are crazy or consistent enough to follow him there.

[Area Man]

People always think they have a real gotcha on Thomas re Loving, but they don't. He's always recognized (correctly) that the 14th Amendment bans race-based distinctions, including marriage. So, him not calling for Loving's overruling is not "conspicuous" in the slightest.

[The Margrave of Azilia]

The difference is that the governing classes think gay marriage is cool and polygamy isn't.

They may come around to the polygamist position soon enough - but they'll call it polyamory and insist that not only should there be husbands with multiple wives, but wives with multiple husbands. Or for that matter, any combination of sexes/genders in any number.

[Magister]

That may come to pass; but more because polyamory doesn't bring the same problems for society as traditional polygamy (which is almost entirely polygyny, with older men coercing young women into marriages while banishing their surplus of young men). If men and women (of any sexual orientation) have equal power, then polyamory is more likely to achieve that balance without any coercion by the "governing classes".

[Neugierige]

This isn't supreme court history, any more than every random act of Congress, since it might end up in court, is "supreme court history."

Now, if you're a judicial supremacist, you might think that, but Prof. Blackman knows better.

[Yogis_dad]

The whole notion that the "states in rebellion" could be extorted to ratify an amendment to the Constitution as a condition or "readmission" is outrageous on its face. Coupled with the spurious decisions that recissions made prior to reaching the threshold number of states were invalid, the whole tawdry history of the postwar amendments is a stain on American history.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

s/affirmative action/mandated discrimination/

Weasel words don’t change reality.

[Mr. Bumble]

Calling bullshit on both of you.
We have an agency which is supposed to find fraud or misrepresentation on tax returns.
How about a law that requires thr IRS to audit the tax returns of the President, Vice President, all Cabinet Secretaries, all members of Congress (House and Senate) and all SC Justices
annually?

[Dan Schiavetta]

We’re not talking about tax fraud.

You apparently don’t understand the phrase “follow the money”.

[Mr. Bumble]

"to find fraud or misrepresentation on tax returns."
What agency has the task to follow the money?

[Rev. Arthur L. Kirkland]

Weasel words don’t change reality.

Others are welcome to wallow in political correctness, and enable deplorable people to hide behind euphemisms -- conservative values, religious values, traditional values, color-blind, etc. -- but I call a bigot a bigot.

At the white, male, conservative Volokh Conspiracy, that means

Republican racists.

Old-timey misogynists.

Conservative immigrant-haters.

Superstitious gay-bashers.

Chanting right-wing antisemites.

Half-educated Islamophobes.

Bigots.

The Volokh Conspiracy: Official Legal Blog of America’s Vestigial Right-Wing Bigots

[Mr. Bumble]

The Queen of A. Perfecting the art of saying nothing.

[Dilan Esper]

I also don't buy the implicit constitutional argument that Congress can't impose any obligations on presidential eligibility above those in the Constitution? Where does that come from? Certainly not from constitutional text.

If Congress wants to say "to get on the ballot for President, you have to release your tax returns", why can't it? Now, I guess, a candidate could still run as a write-in if they wanted to, but I don't see the constitutional problem with saying "we demand you comply with disclosure requirements if you want to run for POTUS".

[bernard11]

You have to be pretty careful here.

Suppose in 2015 Congress had passed a law saying that no one could be President who had not served in Congress.

You can make these facially reasonable examples up without end, but the potential for abuse is huge.

[Magister]

I think that privacy rights should not be so quickly thrown aside, and would prefer to leave it to the voters and the Russian interference in our elections to determine whether failure to release tax returns is disqualifying.

[Dan Schiavetta]

Unfortunately we can’t protect our republic against the stupidity and gullibility of the voters.

[David Nieporent]

Well, for one thing, because Congress doesn't control ballots; states do. The ISL doctrine might not exclude governors and state courts from playing a role in the election, but it certainly excludes Congress.

For another, it pretty obviously follows from U.S. Term Limits v. Thornton.

[not guilty]

"I also don’t buy the implicit constitutional argument that Congress can’t impose any obligations on presidential eligibility above those in the Constitution? Where does that come from? Certainly not from constitutional text."

In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), SCOTUS ruled that states cannot impose qualifications to serve in Congress over and above those specified in Article I, § 2, cl. 2 and Article I, § 3, cl. 3 of the Constitution. The Court there relied heavily on Powell v. McCormack, 395 U.S. 486 (1969), which determined that the power granted to each House of Congress to judge the "Qualifications of its own Members," Art. I, § 5, cl. 1, does not include the power to alter or add to the qualifications set forth in the Constitution's text. Id., at 540.

If Congress cannot add to the qualifications specified in Article I for its own members, it follows that it cannot add to the qualifications specified in Article I for election as president.