Thursday, June 12, 2008

"People" and "Persons" in the US Constitution -by Ralph Haulk (A guest post, not authored by Jake Witmer)

You may be familiar with this, but I thought it a fascinating point.

Hugo Black invented the idea of "incorporating" the 1st amendment under the 14th amendment, but language from the Constitution itself shows this idea to be false.

There is a pattern of usage in the words "person" and "people" that cannot be used interchangeably to make or judicially enforce law.

Notice in the 1st amendment, "the right of the people" to peaceably assemble is mentioned. If we seek the definition of that term, we find it generally defined in the 2nd amendment:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed".

The next mention of "people" in the Bill of Rights mentions "The right of the people to be secure in their persons..."

The "right of the people" takes a subtle shift toward emphasis on "persons", and mentions "the persons or things to be seized".

While the "right(not rights, plural)of the people" is mentioned in the 1st and 2nd amendments, there is a shift toward criminal applications toward "persons", which is extended to the 5th amendment:

"No person shall be held to answer...", and, "nor shall any person be subject..."

This same process is carried into the 6th amendment, only now a "person" is "the accused". Rights pertaining to "persons" are now listed as rights of "accused".

We know from Barron vs The City of Baltimore that John Marshall famously ruled that the Bill of Rights applied as prohibitions on the Federal government, not on the states, due to the language in the Bill of Rights. Had the founders intended the Bill of Rights to apply to the states, said Marshall, their language would clearly indicate that to be the case.

Yale Law professor Akhil Reed Amar writes that John Bingham, the recognized author of the 14th amendment, used language of the Constitution itself in "Simon Says" fashion to guarantee its constitutionality.

"All persons born or naturalized..." Notice the word "persons" and not people. If he used "people", he would have been talking about a right collectively of the people of a state, which would have contradicted the phrase "no state shall..."

To read "people" in the fashion it was used in the Constitution, it would have actually implied, "no state shall make or enforce any law that abridges the priviledges or immunities of the state", since the founders, and John Marshall, had clearly defined "people' in conjunction with "state". That would have been redundant, to say the least.

Instead, the amendment defines a 'citizen" as a person, and therefore avoids the confusion of the word "people". All "people" born in the United States are citizens of the state in which they reside, since that is the clear implication of the Bill of Rights according John Marshall.

All "persons', however, are citizens of the United States and the state wherin they reside. Notice that this wording does not in any way intervene with the "right of the people". That right is still fully intact, so that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens(persons) of the United States".

The "people", whose right remains fully intact as a body called a state, cannot abridge the privileges or immunities of "persons"(citizens) of the United States.

Not one word has implied any power whatever to abridge the right of the people, and as we know, both James Wilson and Hamilton stated that where no power is enumerated, no such power exists. The 14th amendment has not in any way violated that maxim.

But look at the words "privileges and immunities". In "Simon Says" fashion, they are taken from Article 4, Section 2. "The citizens(persons) of each state shall be entitled to all privileges and immunities of citizens in the several states".

Since the 13th amendment eliminated slavery, the 14th amendment merely reiterated rights of citizen/persons in such a way as to include former slaves. But notice that in Article 4, section 2, it deals specifically with "persons" who are considered to be lawbreakers, which includes the "fugitive slave clause".

Clearly, from all evidence so far, the 14th amendment is dealing only with former slaves who are now citizens/persons, and the states/people cannot violate their privileges or immunities, which were named in Article 4, Section 2, as persons who escaped from legal obligation to service.

From the language of the Constitution itself, and the wording of the 14th amendment, slaves could no longer be taken back to states from which they escaped, since no state could violate their privileges and immunities, as plainly listed in the section including the fugitive slave clause.

You will also notice that congress' power to authorize appropriate laws in this regard comes from the same place, Article 4, Section 1. IOW, the power of congress to authorize appropriate legislation, by the wording of the amendment itself, was limited to "full faith and credit" among the states to honor the privileges and immunities of all citizens(persons) in the states.

All powers within the 14th amendment have been carefully defined by using language coming from specific sections of the Constitution. In no case has the "right of the people' in any way been mentioned, which leaves first and second amendment rights fully intact.

By defining all citizens as "persons", the 14th amendment maintained a distinction between the right of the people, and privileges and immunities of citizens, which are listed both in the Constitution and the Bill of Rights.

This is further reinforced by the "Due Process" and "Equal protection" clauses listed in the 14th amendment, with "due process" being taken from the 5th amendment dealing with "persons" under suspicion of a crime.

By the wording of the Constitution itself, the "appropriate legislation' of congress can in no way touch the "right of the people' mentioned in the 1st and 2nd amendments.

The "Simon Says" language of the 14th amendment specifically limits the power of congress to "appropriate" legislation, and names the sections of the Constitution to which the 14th amendment refers, so there can be no doubt.

Ralph Haulk

1 comment:

Anonymous said...

Brim over I to but I think the brief should acquire more info then it has.