For a neophyte woodworker, there's no finish easier than Tung Oil. Just wipe it on, let dry, sand . . . about five coats. Here, I'm just applying an initial coat to a cherry-veneered subwoofer. Makes quite a difference, huh?
Here's the "Tig" of Elektratig. She was a cranky old lady of 22 years when this picture was taken. By that point she was pretty stiff and not washing herself too well. She's in particular disarray here since she's just woken from a nap on the bed on our screened-in porch.
I adopted her and her sister, Elektra, from Bide-A-Wee when they were eight weeks old. Bide-A-Wee apparently made an exception to its policy by putting them up for adoption although they had ear mites. The rep said that they had just been rescued from a bad situation -- no details -- and the shelter wanted to get them placed as soon as possible despite the minor medical issue. It was love at first sight.
An examination of what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of good society. In order to form a 'more perfect union' with slaveholders, late eighteenth century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.
Abstract: Most of the literature on this country's Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.
Abstract: The clashes between President Abraham Lincoln and Chief Justice Roger B. Taney over slavery, secession, and the president's constitutional war powers went to the heart of Lincoln's presidency. James F. Simon, author of the acclaimed What Kind of Nation - an account of the battle between President Thomas Jefferson and Chief Justice John Marshall to define the new nation - brings to vivid life the passionate struggle during the worst crisis in the nation's history, the Civil War. The issues that underlaid that crisis - race, states' rights, and the president's wartime authority - resonate today in the nation's political debate. Lincoln and Taney's bitter disagreements began with Taney's Dred Scott opinion in 1857, when the chief justice declared that the Constitution did not grant the black man any rights that the white man was bound to honor. In the famous Lincoln-Douglas debates, Lincoln attacked the opinion as a warped judicial interpretation of the Framers' intent and accused Taney of being a member of a pro-slavery national conspiracy. In his first inaugural address, President Lincoln insisted that the South had no legal right to secede. Taney, who administered the oath of office to Lincoln, believed that the South's secession was legal and in the best interests of both sections of the country. Once the Civil War began, Lincoln broadly interpreted his constitutional powers as commander in chief to prosecute the war, suspending the writ of habeas corpus, censoring the mails, and authorizing military courts to try civilians for treason. Taney opposed every presidential wartime intiative and openly challenged Lincoln's suspension of the writ of habeas corpus. He accused the president of assuming dictatorial powers in violation of the Constitution. Lincoln ignored Taney's protest, convinced that his actions were both constitutional and necessary to preserve the union. Almost 150 years after Lincoln's and Taney's deaths, their words and actions reverberate in constitutional debate and political battle. Lincoln and Chief Justice Taney tells their dramatic story in fascinating detail.
Well, I’m going out of order, but hey, it’s my blog, so tough. Having told you about Corfield v. Coryell, I’m going to discuss the principal speech of Senator Jacob Howard (Republican – Michigan), who discussed the case. It also gives me an opportunity to give Raoul Berger a whack or two.
Senator Howard was a member of the Joint Committee on Reconstruction, which created the Fourteenth Amendment. He was considered at the time, and historians consider him now, a moderate. It’s worth bearing that in mind. If Senator Howard he was a “moderate,” does it make sense to think that “Radical Republicans” disagreed with what he said?
Senator Howard presented the Joint Resolution containing the proposed amendment to the Senate, sitting as a committee of the whole, on behalf of the Joint Committee in a speech on May 23, 1866. The speech appears in the Congressional Globe, Cong. Globe, 39th Cong., 1st sess., 2764, et seq. (May 23, 1866), and is available online. By all means read it yourself.
After some introductory remarks, Senator Howard quoted the draft of Section 1 as it then stood:
“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.”
The Senator then began his discussion as follows:
“It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is the first clause, and I regard it as very important. . . .
“The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”
Senator Howard then moved on to the meaning of the phrase “privileges or immunities” in the proposed amendment. He began by citing and quoting at length from Corfield v. Coryell to identify some of the privileges and immunities secured by Article IV, Section 2. His quotation from Corfield v. Coryell included the entire passage that I quoted in an earlier entry.
He then continued (emphasis added):
“Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him; and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
“Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guaranties. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause [another name for the Necessary and Proper Clause] of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guaranties.”
In short, Senator Howard specifically and clearly stated that the “privileges and immunities” protected by the amendment included “the personal rights guarantied and secured by the first eight amendments of the Constitution." He then specifically mentioned:
* “the freedom of speech and of the press” (the First Amendment);
* “the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people” (the First Amendment again);
* “the right to keep and to bear arms” (the Second Amendment);
* “the right to be exempted from the quartering of soldiers in a house without the consent of the owner” (the Third Amendment);
* “the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit” (the Fourth Amendment);
* "the restriction contained in the Constitution against the taking of private property for public use without just compensation" (the Fifth Amendment);
* “the right of an accused person to be informed of the nature of the accusation against him (the Sixth Amendment);
* “his right to be tried by an impartial jury of the vicinage” (the Sixth Amendment again);
* “the right to be secure against excessive bail and against cruel and unusual punishments (the Eighth Amendment).
It is, frankly, hard to imagine a statement that more clearly conveys the point that the “privileges or immunities” clause of the proposed amendment was intended to incorporate the Bill of Rights.
In his book Government by Judiciary, Raoul Berger attempted to minimize Senator Howard’s speech. He said that the sum and substance of Senator Howard’s contribution to the incorporation debate was simply noting, after the privileges and immunities listed in Corfield v. Coryell, that “to these privileges and immunities . . . should be added the personal rights guarantied and secured by the first eight amendments.” According to Berger, this “remark” by Senator Howard was “casually tucked away in a long speech.”
I have quoted at length from Senator Howard’s speech precisely because it makes crystal clear how dishonest Berger’s description is. Michael Kent Curtis has correctly described Berger’s characterization as “grossly inaccurate:”
“The characterization is grossly inaccurate. In his speech Howard listed rights included in the Bill of Rights, pointed out that the courts had held that they did not operate as a restraint or prohibition on state legislation, summarized the holding in Barron v. Baltimore, and said that ‘the great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guaranties.’ Howard’s statement on the Bill of Rights comprises about one-half of his entire discussion of the privileges or immunities clause of the Fourteenth Amendment and about one-ninth of his ‘long’ speech. In short, treatment of it as a ‘remark casually tucked away in a long speech’ is a serious misstatement.”
Senator Howard’s speech – including the portions in which he specifically referred to the Bill of Rights – was reported in detail in the press. Both the New York Times, on May 24, 1866, and the New York Herald (the latter then ranked as the nation’s best-selling newspaper) reprinted the passage on the Bill of Rights on their front pages. Curtis, No State Shall Abridge, p. 128; Akhil Amar, America’s Constitution: A Biography, p. 197.
In 1823 – just 34 years after the Constitution was ratified – Justice Bushrod Washington of the United States Supreme Court, sitting as Circuit Court Judge, wrote what amounted to a paean to the phrase “privileges and immunities.” The decision, Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230), became one of the best known in the first half of the nineteenth century. In it, Justice Washington reflected the growing idea that “privileges and immunities” included all those privileges and immunities implicit in the concepts of the rights to enjoy life and liberty, to acquire and possess property of every kind, and to pursue and obtain happiness and safety:
“The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’"
The breadth of the definition is remarkable. It encompasses – and is in fact broader than – the “life, liberty and pursuit of happiness” of the Declaration of Independence, for it also includes the rights “to acquire and possess property” and to “obtain” happiness. Privileges and immunities are so vast that it would be “tedious” to “enumerate” them.
We shall meet Corfield again in the debates over the Fourteenth Amendment.
A former Classics major, now lawyer by day, history buff and blogger by night. Early in this century I unexpectedly developed a passion for American history. More recently, I've returned to the Roman empire. Other interests include music (listening, not performing!), tube amps, photography and lousy golf.