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. 786 (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. 848 (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)

[SRG2]

Unsurprisingly, Thomas and Alito dissented in the Vance case. But evidently Thomas has changed his mind on presidential immunity.

This is from Thomas’s dissent:

the text of the Constitution,,,as understood by the ratifying public and incorporated into an early circuit opinion by Chief Justice Marshall, does not support the President’s claim of absolute immunity

The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity. Members of Congress are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same,” except for “Treason, Felony and Breach of the Peace.” Art. I, §6, cl. 1. The Constitution further specifies that, “for any Speech or Debate in either House, they shall not be questioned in any other Place.” Ibid. By contrast, the text of the Constitution contains no explicit grant of absolute immunity from legal process for the President. As a Federalist essayist noted during ratification, the President’s “person is not so much protected as that of a member of the House of Representatives” because he is subject to the issuance of judicial process “like any other man in the ordinary course of law.” An American Citizen I (Sept. 26, 1787), in 2 Documentary History of the Ratification of the Constitution 141 (M. Jansen ed. 1976) (emphasis deleted).

Prominent defenders of the Constitution confirmed the lack of absolute Presidential immunity. James Wilson, a signer of the Constitution and future Justice of this Court, explained to his fellow Pennsylvanians that “far from being above the laws, [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.” Debates on the Constitution 480 (J. Elliot ed. 1891) (emphasis in original). James Iredell, another future Justice, observed in the North Carolina ratifying convention that “[i]f [the President] commits any crime, he is punishable by the laws of his country.” id., at 109. A fellow North Carolinian similarly argued that, “[w]ere it possible to suppose that the President should give wrong instructions to his deputies, . . . citizens . . . would have redress in the ordinary courts of common law.” Id., at 47; see also Americanus No. 2, in 19 Documentary History of the Ratification of the Constitution 288–289 (J. Kaminski & G. Saladino eds. 2003); Americanus No. 4, in id., at 359.

The sole authority that the President cites from the drafting or ratification process is The Federalist No. 69, but it provides him no real support. Alexander Hamilton stated that “[t]he President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, p. 416 (C. Rossiter ed. 1961). Hamilton did not say that the President was temporarily immune from judicial process. Moreover, he made this comment to reassure readers that the President was “amenable to personal punishment and disgrace.” Id., at 422. For the President, this is at best ambiguous evidence that cannot overcome the clear evidence discussed above.

Note that Thomas here does not distinguish between core official acts and other acts

[ReaderY]

That’s well worth noting.

[Commenter_XY]

Nice find, SRG2.

[Krayt]

Trump contested Congressional subpoenas into his financial affairs for purpose of determining money laundering

In order to prevent the king from using the investigative power of government to git someone, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, unless the king wants ta git ‘im!

[Noscitur a sociis]

(the decision is a good example of Gorsuch’s casual affected, grating, and generally terrible writing style)

FIFY

[Dan Schiavetta]

Well I like it!

[SRG2]

Too many contractions. He's improved a little, tho',

[Sabedi1]

A mistake which will ultimately lead to America's downfall.

Equal protection of the law assumes all groups of people are of equal quality. That just isn't the case.

[Brett Bellmore]

No, it doesn't. It just means that you can't declare a group to be "outlaw", beyond the law's protection. That's what they were concerned about with the EPC, after all. Southern states withdrawing the protection of criminal law from blacks, so that they could be robbed or murdered without consequence.

[JoeFromtheBronx]

There is no need to assume each person is of “equal quality” in all respects. As Atticus Finch noted in To Kill A Mockingbird:

“We know all men are not created equal in the sense some people would have us believe—some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cake than others—some people are born gifted beyond the normal scope of men.”

Equal protection of the law guarantees each person equality under the law in respect to their rights. People are not “of equal quality” in all respects.

[JoeFromtheBronx]

The Fourteenth Amendment in the words of a dissenter in the Slaughterhouse Cases:

"Fairly construed, these amendments may be said to rise to the dignity of a new Magna Charta."

They have not been completely "fairly construed." We now underenforce chunks of it, including the second (no enforcement of voting rights penalty) and third (Trump v. Anderson).

The Privileges or Immunities Clause was early on limited. The fifth section is selectively enforced (it matters so much in Trump v. Anderson ... other times it has to be carefully limited following "congruent and proportionality" rules and so on).

The two Trump cases cited in today's case summary is another case of the Supreme Court slow-walking things, even after the House of Representatives asked them to speed things along.

[Michael Resanovic]

Funny how the text of Section 1 says nothing about incorporation.

Proponents said again and again that S1 would not cause states to lose any legislative power that they had - the limits on that power would remain the same. The difference is that there was now going to be federal enforcement of those limits.

[Brett Bellmore]

Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What did you imagine that means, commanding that states not abridge the privileges or immunities of citizenship, and so forth? It meant, and we have extensive on point testimony by the authors, that the states would henceforth be bound to respect all the rights only the federal government had formerly been bound by.

If that's not incorporation, what would be? You wanted them to use the exact word, or it doesn't count?

"Proponents said again and again that S1 would not cause states to lose any legislative power that they had – the limits on that power would remain the same. "

Yes, the states, which previously had only morally been bound to respect the rights of citizens, would now be legally bound to. They lost no power that they'd ever had a legitimate claim to.