Constitutional Changes of the Future—Part 4

State Action on privileges and immunities clause of 14th Amendment

The privileges and immunities clause of the Fourteenth Amendment has been interpreted by the Supreme Court since the Civil Rights Cases of 1883 as applying only to the states. It has not been applied to individual private citizens or private institutions. In other words, if a state law violates a person’s privileges and immunities under the Bill of Rights, then the federal courts will hear and judge the complaint. But…if a private person or institution violates these privileges and immunities, then, the federal government would not assume the authority to judge between the two competing parties. It is only after a state steps in to adjudicate a case of alleged violation of rights that a federal court can act.

In recent years, the U.S. Supreme Court has heard cases for adjudication between private organizations and other agencies without the intervention of state courts. This tendency has made the Fourteenth Amendment a party to a further takeover of judicial power by federal courts. The federal government has increasingly treated private institutions as the equivalent of the state, thereby extending public oversight in a way the framers of our Constitution never intended.

If this tendency continues, the policies of private institutions in the various states will have to pass the scrutiny and receive the imprimatur of federal judges.

The federal judiciary violates the privileges and immunities clause of the Fourteenth Amendment in other ways by invading common sense and precedent: For instance, the Civil Rights Act of 1964 (amended) clearly defines groups that deserve to be protected under the Fourteenth Amendment, e.g., racial and religious groups, etc. That Act does not list sexual orientation as a protected group. But…the Supreme Court in a decision regarding preferential housing for homosexuals in Boulder, Colorado in recent years, found in favor of homosexuals under the privileges and immunities clause of the Fourteenth Amendment, thus violating the rights of recognized people groups in Boulder. It mattered not to the Court that bills to recognize homosexuals as a special privileged group have been voted down in Congress every year for at least 15 years.

Well…we can see that the privileges and immunities clause of the Fourteenth Amendment is being misused by liberal groups to change the meaning and intent of the Constitution. More of this activity will be up-coming in the future if nothing is done to stop this judicial take-over.

Constitutional Changes of the Future—Part 3

Positive Rights

For people who believe that we need a new constitution, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of “negative liberties” into a charter of “affirmative government,” guaranteeing an array of “positive” rights. As President Obama has observed in a radio interview in criticism of the legacy of the Warren Court of the 1950s and 1960s, “[It] never ventured into the issues of redistribution of wealth and . . . more basic issues of political and economic justice in this society. . . . [T]he Warren Court . . . wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution. . . that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”

President Obama is correct. The original Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.

Proponents of constitutional change would like to change the document’s requirements into a document that requires many positive rights for the benefit of the people, rights such as those listed in the above paragraph, i.e., housing, education, etc. And, for today, that specifically refers to health care, which many people are claiming as a basic right that ought to be guaranteed under the Constitution or, at least, under statute law. For them, lack of universal health care abridges and limits the “privileges and immunities” of our citizens. Therefore, these changers of the Constitution like to use the “privileges and immunities” clause of the Fourteenth Amendment as their springboard into a new constitutional understanding.

As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new “rights,” and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors’ possessions; in which economic redistribution will become as ingrained a principle as federalism and the separation of powers. If this happens, a succession of new “rights” will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.

Much of this post was excerpted from Imprimis April 2010.