Among the issues most commonly discussed are individuality, the rights of the individual, the limits of legitimate government, morality, history, economics, government policy, science, business, education, health care, energy, and man-made global warming evaluations. My posts are aimed at thinking, intelligent individuals, whose comments are very welcome.

"No matter how vast your knowledge or how modest, it is your own mind that has to acquire it." Ayn Rand

17 March 2010

Timothy Sandefur - Revive "Privileges or Immunities"

Timothy Sandefur, a principal attorney at the Pacific Legal Foundation and author of The Right to Earn A Living to be published by the Cato Institute, wrote an article in the National Law Journal of 1 March 2010 with the title Revive "Privileges or Immunities."  First I will quote him on the history of this extremely fundamental and critical constitutional issue of our sovereign individual rights:

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the "privileges or immunities" of citizens, or taking anyone's life, liberty or property without "due process of law," or depriving people of the "equal protection of the laws." But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials.
That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere in New Orleans except a single, privately owned facility. The beef industry was big business in New Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued, arguing that the law violated their right to earn a living without unreasonable government interference. Judges had recognized that right as far back as 1602, when England's highest court declared government-created monopolies illegal under the Magna Carta. The right to earn an honest living came to be recognized as one of the fundamental rights — or "privileges and immunities" — in the common law.
Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new amendment's language, federal courts would not guarantee traditional rights against interference by states. With only minor exceptions, the Court declared, those rights were "left to the State governments for security and protection."
 Or, at least as likely as history has shown us, the state and local governments will choose to violate our traditional rights, despite the fact that human life requires us to earn a living and we should be able to expect that those governments which are legitimate would act to preserve and protect that right and all other rights we hold as sovereign individuals.  Sandefur continues:
The Court later backed away from the extreme states' rights position it took in Slaughterhouse. Relying on the 14th Amendment's due process and equal protection clauses instead, it built the "incorporation" doctrine that requires states to respect the Bill of Rights. But although these clauses bar states from violating some freedoms or discriminating against –citizens in certain ways, states remain free to intrude on the rights of entrepreneurs and property owners thanks to the "rational basis" doctrine that the Court devised in the 1930s. That doctrine holds that certain rights — like freedom of speech or religion — are accorded strong judicial protection, but other rights, including the right to earn a living, receive almost none. Thus bureaucrats have nearly free rein to impose restrictions at will on a person's economic freedom, even when those restrictions have no realistic connection to protecting public safety.
Sandefur hopes that the McDonald v. Chicago right to bear arms case will induce the Supreme Court to revive the privileges and immunities clause of the 14th Amendment.  The failure of the Supreme Court in the past to honor this provision of our Constitution has long awaited correction.  There is no doubt what the intent of this provision was when it was added to the Bill of Rights.  Neither the Supreme Court nor any other part of American government have the right to ignore our individual privileges and immunities as they have long done.  The revival of this constitutional provision would have huge import for insuring our right to work for a living, which is now heavily violated by all levels of government.  Let us hope that Obama's stupid attack upon the Supreme Court during his State of the Union address, will have only served to give the Supreme Court the backbone it needs to fix this terrible neglect of the People's individual rights.  There is some indication this may be the case!

No comments: