The Constitutional Rights, Privileges, and Immunities of the American People: The Selective Incorporation of the Bill of Rights, the Refined Incorporation, the Second Amendment Right, and Much More …
The Constitutional Rights, Privileges, and Immunities of the American People explores the idea that the Supreme Court should radically revise its general theory of constitutional rights and discusses various aspects of some special theories of constitutional rights in order to ensure a sufficient universe of discourse.
As a former deputy district attorney for Los Angeles County, Guminski gained a wealth of experience in preparing arguments for appellate courts. Based on his experience and careful research, he proposes a persuasive theory that explains why some but not all rights secured against infringement by the United States are also secured against infringement by the states by both the privileges or immunities and the due process clauses of the fourteenth amendment, adopted in 1868. He examines whether national citizenship before the Civil War was paramount and superior, addresses the procedural and substantive aspects of the due process clause, and recites the reasons supporting his general theory.
In presenting the essentials of his theory about how the Constitution should be judicially construed, Guminski thereby encourages other citizens to express their own opinions about constitutional law with the hope that these views may one day have an impact on the way the Supreme Court interprets the Constitution.
Table of Contents
Preface: Why this Book was Written
Endnotes to Preface
PART I: THE PRIVILEGES OR IMMUNITIES CLAUSE AS A VEHICLE OF SELECTIVE INCORPORATION OF THE BILL OF RIGHTS
Introduction: Summary of the Court’s Current Doctrine on Selective Incorporation
Chapter A: Professor Amar’s Refined Incorporation Theory
Chapter B: A Critique of Amar’s Theory of the Privileges or Immunities Clause as a Vehicle of Selective Incorporation
Section 1. Amar’s neglect of the citizenship clause
Section 2. Amar and “No State shall”
Section 3. Amar and “make or enforce any law which shall abridge”
Section 4. Amar and “the privileges or immunities”
Section 5. Amar and “of citizens of the United States”
Section 6. Amar and “nor shall any State deprive any person of life, liberty, or property, without due process of law”
Section 7. An overview of the argument for selective incorporation by the privileges or immunities clause
Chapter C: Amar and the Alleged Doctrine of Dred Scott that All Constitutional Rights of American Citizens Are their Exclusive Rights
Chapter D: The Second Amendment Right and the States
PART II: THE PARAMOUNTCY AND SUPERIORITY OF NATIONAL CITIZENSHIP, AND THE IMPLIED CONSTITUTIONAL PRIVILEGES AND IMMUNITIES OF AMERICAN CITIZENS
Chapter A: The Antecedent Paramountcy of National Citizenship
Chapter B: The Superiority of National Citizenship and the Implied Privileges and Immunities of American Citizens
Section 1. The superiority of national citizenship
Section 2. The freedom of travel and migration throughout the United States
Section 3. The freedom from the badges and incidents of an inferior and degraded caste status based upon race or color
Section 4. The freedom from invidious gender and other similar kinds of discrimination as to civil rights based upon birth status
Section 5. The freedom from invidious discrimination as to civil rights based upon civil or political status otherwise incompatible with the nature of the Union and the equality of states
Section 6. Political freedom as entailed by our republican institutions and popular sovereignty
Section 7. Religious freedom as consisting of all those freedom-rights in matters of religion that are secured against abridgments by the First Amendment
Section 8. Freedom-from rights entailed by the establishment clause as collectively constituting a constitutional immunity of American citizens
Chapter D: A Federalist-Accomodationist Theory of the Establishment Clause
PART III: TOWARD A THEORY OF THE PROCEDURAL AND SUBSTANTIVE ASPECTS OF THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS
Chapter A. Some Considerations Applicable to the Substantive and Procedural Aspects of the Due Process Clauses
Chapter B. More on the Legitimacy of Imputing Substantive Aspects to the Due Process Clause
Chapter C: The Fundamental Rights, Privileges, and Immunities of Free Persons and the Establishment of Universal Civil Freedom with the Adoption of the Thirteenth Amendment
Chapter D: Some Fundamental Rights of Free Persons as Components of the Specific Right of the Due Process Clause
PART IV: WHY THE COURT SHOULD ADOPT THE THEORY OF THIS BOOK
Chapter A. The Textualist Probability of the Theory
Chapter B. The Nontextualist Probability of the Theory
Endnotes to Parts I-IV
Appendix: Relevant Provisions of the Constitution of the United States
Supreme Court Cases with Endnote Citations for Parts I-IV
Select Bibliography with Endnote Citations for Parts I-IV
My book chiefly addresses what should be the general theory of the constitutional rights of the American people. My book’s theses are as follows:
Both the privileges or immunities and the due process clauses of the Fourteenth Amendment incorporate some but not all the rights specified in the Bill of Rights. The only specific rights of the Bill of Rights incorporated by the privileges or immunities clause are the freedoms of the First Amendment.
The only rights specified in amendments II-VIII that the due process clause of the Fourteenth Amendment incorporates are those rights that are themselves components of the specific right of the due process clause of the Fifth Amendment. The due process clauses of the Fifth and Fourteenth Amendments are thus essentially equivalent in meaning.
National citizenship before the adoption of the Fourteenth Amendment (with its citizenship clause) was paramount, supreme and superior. Hence, the citizenship clause was declaratory of pre-existing law insofar as it entails that national citizenship is not derivative of state citizenship. It is supreme because, of course, allegiance to the United States trumps allegiance to any state. It is superior because, among other things, it is incompatible with any inferior and degraded caste status, such as one based on race or ethnicity, or place of origin. Before the adoption of the Fourteenth Amendment, native-born blacks were not and could not be American citizens because of their inferior and degraded status according to the Dred Scott Case. So the adoption of the citizenship clause should have been a boon for African Americans since they, now being American citizens, were ipso facto freed from an inferior and degraded status based upon a caste principle.
Also constitutive of, or entailed by, national citizenship are such constitutional privileges and immunities as: freedom of travel and migration throughout the United States; political freedom as entailed by the republican form of government and popular sovereignty; freedom from invidious discrimination based upon gender; freedom from discrimination based upon residence or former residence with respect to the rights denoted by the descriptive term of the comity clause (i.e., the privileges and immunities of citizens in the several states), whatever these may be.
The constitutional privileges of the American people, within the meaning of the privileges or immunities clause, are their constitutional freedoms already expressly or impliedly secured against abridgment by the United States. The constitutional immunities of the American people are those constitutional freedom-from rights already secured against abridgment by the United States. Hence there are some constitutional rights of the American people that are neither their constitutional privileges nor immunities in the requisite sense (i.e., the specific rights of Amendments III-VIII). The adoption of the privileges or immunities clause incorporates all the constitutional privileges and immunities (but not all the rights) of the American people; the adoption of the due process clause of the Fourteenth Amendment applies to the states the same protection to fundamental rights as are secured against the United States by the Fifth Amendment due process clause.
Neither the privileges or immunities clause nor the due process clause of the Fourteenth Amendment incorporates the specific right of the Second Amendment because this is a conditional liberty-right consistent with the government obliging citizens to own, maintain, and carry firearms of designated kinds for public and private purposes. I should emphasize that the descriptive term of the privileges or immunities clause are words of description only. Thus, a particular right (say, freedom of speech) may be predicable of some noncitizens (e.g., resident aliens or noncitizen nationals in the U.S. or incorporated territory).
The due process clause has substantive aspects. However, the adoption of the Thirteenth Amendment not only abolished slavery and involuntary servitude. The establishment of universal civil freedom informed the fundamental law of the land such that the fundamental rights, liberties, and immunities of free persons as such, in a well-ordered civil society presupposing the abolition of slavery, are duly protected by the due process clause. In my view, the specific right of the due process clauses includes a fundamental right of free persons as such pertaining to verbal communication—and quite independently of the First Amendment. So there is a conceivable overlap between the First Amendment freedom of speech and the press, and the fundamental liberty of verbal communication.
Religious freedom (i.e., freedom in matters of religion within necessary limits) are all those freedom rights that are components of the specific right of the free exercise as well as the other clauses of the First Amendment, and those freedom rights entailed by the establishment clause. There are freedom-from rights entailed by the establishment clause—but these do not, in my view, include some personal right that there be no expenditure of public funds drawn from general tax revenues in support of some form of religion or irreligion. Although I am an unbeliever (more precisely, a metaphysical naturalist). I hold to an accomodationist theory of the establishment clause; a theory understood to mean that certain historically sanctioned practices, such as are neither exploitive, coercive, nor proselytizing, do not necessarily constitute instances of an establishment of religion. Although I hold that American citizens have a constitutional immunity consisting of personal freedom-rights entailed by the establishment clause, the privileges or immunities clause does not incorporate any prohibition constitutive of the establishment clause other than those entailing freedom and freedom-from rights entailed by the establishment clause.
My book is especially timely since the Supreme Court, in the case of McDonald v. City of Chicago (No. 08-1521) has decided, on September 30, 2009, to review whether the Second Amendment right to keep and bear arms is incorporated (that is, made fully applicable) to the states by virtue of the Fourteenth Amendment. What is of great importance is that it appears that the Court is poised to consider whether it is the privileges or immunities clause of the Fourteenth Amendment, rather than its due process clause, that incorporates the Second Amendment right, and therefore the freedom of First Amendment. My book provides a persuasive rationale why it is the privileges or immunities clause that incorporates the First Amendment freedoms but not the Second Amendment right. But I reluctantly acknowledge that I would rather have the Court rule that the privileges or immunities clause incorporate the Second Amendment right (besides the First Amendment freedoms), rather than to preserve its historically and analytically unwarrant doctrine that the due process clause is the vehicle of incorporation of First Amendment freedoms.