America's Unwritten Constitution: The Precedents and Principles We Live By (90 page)

21
  The four words—rights, freedoms, privileges, and immunities—are virtually interchangeable today and have been so for centuries. For example, the Sixth Amendment refers to a criminal defendant’s “right” to a jury trial, but Continental Congresses in 1774 and 1775 flayed the British for dishonoring the “inestimable privilege” of jury trial.
JCC
, 1:69 (Resolutions of the First Continental Congress, Oct. 14, 1774); ibid., 2:145 (Declaration of the Causes and Necessity of Taking Up Arms, July 6, 1775). Similarly, freedom of speech has long been described as a “right” and/or a “privilege”; and a criminal defendant’s “rights” to remain silent at trial and to prevent retrial after acquittal are often referred to as “immunities” from compulsory process and reprosecution.

22
  
CG
, 39-1:1088–1094 (Bingham, Feb. 28, 1866), 2765–2766 (Howard, May 23, 1866). For much more evidence and analysis, see Amar,
Bill of Rights
, 163–214.

23
  See Amar,
Bill of Rights
, 166–171 (citing, among other things,
Dred Scott v. Sanford
, 60 U.S. [19 How.] 393, 416–417, 449–450 [1857]); Matthew J. Hegreness, “Note, An Organic Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities,”
Yale LJ
120 (2011): 1820.

24
  For more evidence and analysis, see Amar,
Bill of Rights
, esp. 284–288. For Bingham’s speeches, see
CG
, 39-1:1088–1094 (Feb. 28, 1866), 1291–1293 (March 9, 1866).

25
  See Amar,
Bill of Rights
, 215–230.

26
  Ibid., 157–158, 167–169, 277–278; Hegreness, “Note.”

27
  
The Slaughter-House Cases
, 83 U.S. 36, 73–80 (1873). For more analysis, see Amar,
Bill of Rights
, 212–213.

28
  Compare
Barron v. Baltimore
, 32 U.S. (7 Pet.) 243 (1833), with
CG
, 39-1:1089–1090 (Bingham, Feb. 28, 1866), 39-2: 811 (Bingham, Jan. 28, 1867). For more, see Amar,
Bill of Rights
.

29
  See
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago
, 166 U.S. 266, 236–241 (1897). See also supra n. 17 and accompanying text.

30
  For the key cases, see supra n. 18 and accompanying text.

31
  
McDonald v. Chicago
, 130 S. Ct. 3020 (2010).

32
  According to the National Center for State Courts, the eighteen states requiring grand-jury indictments for all felonies are: Alabama, Alaska, Delaware, Georgia, Kentucky, Maine, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, South Carolina, Tennessee, Texas, Virginia, and West Virginia. For more discussion of the possible twists and turns of Seventh Amendment incorporation, see Amar,
Bill of Rights
, 88–93, 275–276, 391 n. 171. Note also that the Third Amendment has not been held applicable against states; but then, this amendment is almost never invoked by modern litigants against any government official, state or federal.

33
  
Blackstone’s Comm
., 4:151–152.

34
  
Annals
, 1:453–454 (June 8, 1789); ibid., 4:934 (Nov. 27, 1794);
Elliot’s Debates
, 4:569–577 (Madison’s Report on the Virginia Resolutions—discussed in more detail in Chapter 2, text accompanying nn. 5–6).

35
  Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840),
CG
, 26-1:411 (May 23, 1840).

36
  Amar,
Bill of Rights
, 235, 380 n. 10.

37
  See ibid., 32–42, 246–254.

38
  See Amar,
CCP
, esp. 89–144.

39
  
United States v. La Jeune Eugenie
, 26 F. Cas. 832, 843–844 (C.C.D. Mass. 1822) (No. 15, 551).

40
  Act of Jan. 24, 1862, ch. 11, 12 Stat. 333. For details and analysis see Amar,
CCP
, 79.

41
  On Wilkes and Camden, see
Wilkes v. Wood
, 19 Howell’s State Trials 1153 (C.P. 1763), 98 Eng. Rep. 489;
Entick v. Carrington
, 19 Howell’s State Trials 1029 (C.P 1765), 95 Eng. Rep. 807;
Wilkes v. Halifax
, 19 Howell’s State Trials 1406 (C.P. 1769). See also
Huckle v. Money
, 19 Howell’s State Trials 1404 (C.P. 1763), 95 Eng. Rep. 768;
Beardmore v. Carrington
, 19 Howell’s State Trials 1405 (C.P. 1764), 95 Eng. Rep. 790;
Money v. Leach
, 19 Howell’s State Trials 1001 (K.B. 1765), 97 Eng. Rep. 1075. For more on Wilkes and
Camden, see Akhil Reed Amar,
The Law of the Land: A Constitutional Travelogue
(forth-coming 2013), Chapters 2 and 7. Notable American venues named for these heroes include Wilkes-Barre, Pennsylvania; Wilkes County, Georgia; Wilkes County, North Carolina; Camden, New Jersey; Camden, South Carolina; Camden, Maine; and historic Camden Yards, home of the Baltimore Orioles.

42
  Exclusionary-rule advocates often claim that the rule in no way benefits a guilty defendant but simply restores the status quo that would have existed had no Fourth Amendment violation ever occurred. Wrong: See Chapter 3, n. 24.

43
  On what proper updating should look like, see Amar,
CCP
, 28, 31, 40–45.

44
  See
United States v. Janis
, 428 U.S. 433, 447 (1976) (“In the complex and turbulent history of the [exclusionary] rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state”).

45
  For a list of nearly twenty key cases, with specific page citations to their invocations of the Fifth Amendment alongside the Fourth, see Amar,
CCP
, 250 n. 28. The single major exclusionary-rule case that omitted mention of the Fifth Amendment self-incrimination rule was
Silverthorne Lumber Co. v. United States
, 251 U.S. 385 (1920). For analysis and criticism of
Silverthorne
, see paragraph 2 of the above-mentioned n. 28.

46
  See supra n. 41.

47
  See
Boyd v. United States
, 116 U.S. 616, 630, 634–635 (1886):

       
[A]ny forcible and compulsory extortion of a man’s own testimony, or of his private papers to be used as evidence to convict him of crime…is within the condemnation of [Lord Camden’s] judgment. In this regard the fourth and fifth amendments run almost into each other.…[A] compulsory production of the private books and papers of the owner…is compelling him to be a witness against himself, within the meaning of the fifth amendment to the constitution, and is the equivalent of a search and seizure—and an unreasonable search and seizure—within the meaning of the fourth amendment.

48
  See Amar,
CCP
, 46–88. See also Akhil Reed Amar, “Paper Chase,”
The New Republic
, Dec. 15, 1997.

49
  For details, see Amar,
CCP
, 22–23, 190 n. 115.

50
  
Schmerber v. California
, 384 U.S. 757 (1966). See also
United States v. Wade
, 388 U.S. 218 (1967) (obliging criminal suspect to stand in a line-up);
Gilbert v. California
, 388 U.S. 263 (1967) (obliging suspect to provide handwriting exemplar);
United States v. Dionisio
, 410 U.S. 1 (1973) (obliging suspect to provide voice-print).

51
  See, e.g.,
Fisher v. United States
, 425 U.S. 391, 407 (1976) (proclaiming that the Fourth-Fifth fusion idea underlying the 1886
Boyd
case [see supra n. 47]—the only truly principled basis for the exclusionary rule—had “not stood the test of time”);
Stone v. Powell
, 425 U.S. 465 (1976) (holding the exclusionary rule inapplicable in federal habeas corpus cases reviewing state court convictions);
United States v. Janis
, 428 U.S. 433, 447 (1976) (refusing to extend the exclusionary rule to civil cases);
United States v. Havens
, 446 U.S.
620 (1980) (creating an exception to the exclusionary rule in order to impeach a criminal defendant’s testimony);
United States v. Leon
, 468 U.S. 897, 905–906 (1984) (echoing
Fisher
verbatim and carving out an exception to the exclusionary rule for certain violations of the Fourth Amendment involving “good faith” behavior of police officers);
Hudson v. Michigan
, 547 U.S. 586 (2006) (applying the “inevitable discovery” exception to the exclusionary rule);
United States v. Herring
, 555 U.S. 135 (2009) (broadly reading the
Leon
good-faith exception doctrine).

52
  Three of the four
Schmerber
dissenters—Warren, Black, and Douglas—had been on the Court in
Mapp
and had been crucial to forming the
Mapp
majority of five votes for exclusion. (The other two votes came from Justices Tom C. Clark and Brennan.) In particular, Justice Black’s decisive fifth vote in
Mapp
was explicitly based on the precise Fourth-Fifth fusion idea squarely rejected by the Court in the later
Schmerber
decision.

53
  For a few specifics, see Amar,
ACAB
, 97–98.

54
  See Chapter 1, n. 38, and Chapter 2, n. 47 and accompanying text. See, generally, Amar,
Bill of Rights
, 160–161, 235–239, and sources cited therein; Amar,
ACAB
, 371–372, and sources cited therein.

55
  Recall that the privileges-or-immunities clause incorporated all the basic rights of the early amendments, among other things. Such rights surely encompassed the right to due process. Yet the amendment immediately proceeded to enumerate due process. As Bingham and other sponsors explained, the amendment did so to make clear that certain rights—rights to fair legal procedures—belonged to all persons whether citizens or not (contra
Dred Scott
). Thus, the amendment’s text and enactment history reflect exquisite sensitivity to the citizen/person distinction. See Chapter 3, n. 32 and accompanying text. See also Amar,
Bill of Rights
, 171–174. Note that I do not say that aliens cannot vote or assert that aliens have never voted; I say only that voting is hardly a paradigmatic right of aliens qua aliens. For an interesting historical survey, see Jamin B. Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage,”
U. of Pennsylvania LR
141 (1993): 1391.

56
  Compare
Dred Scott v. Sanford
, 60 U.S. (19 How.) 393, 403–427 (1857) (opinion of the Court, per Taney, C.J.) with ibid., 583 (Curtis, J., dissenting).

57
  
Opinions of the Attorney General
, 10:382 (1862); Act of April 9, 1866, 14 Stat. 27, quoted supra text accompanying n. 13.

58
  See
Report of the Joint Committee on Reconstruction
(1866), xiii, xviii, xxi; Amar,
Bill of Rights
, 216–218 & n.
^*
, and sources cited therein; Amar,
ACAB
, 391–392.

59
  Recall that section 1 of the Fourteenth Amendment clearly took aim against the Black Codes—laws that openly discriminated against blacks. Had section 1 been understood to encompass political rights, then all race-based suffrage laws would have been legally equivalent to Black Codes and thus unconstitutional. These suffrage laws were not so understood in 1866–1868 precisely because 1860s discourse sharply distinguished between laws affecting civil rights—Black Codes—and regulations of political rights, such as voting and jury service. Note also that if the equal-protection clause encompassed
voting rights for blacks, it would also seem to do so for women. Yet when suffragists brought suit in the 1870s claiming that they had been enfranchised by the Fourteenth Amendment, the justices in
Minor v. Happersett
unanimously laughed the claim out of Court, making many of the points summarized here. Plaintiffs in
Minor
had relied on the privileges-or-immunities clause; no one even thought to invoke the equal-protection clause as the font of voting rights. For more on woman suffrage, see Chapter 7. On what changed decisively between 1866–1868 and 1869–1870, enabling the Fifteenth Amendment to accomplish what the Fourteenth had not dared to propose, see Amar,
ACAB
, 395–399.

60
  See Chapter 10, n. 14 and accompanying text; see also Chapter 7.

61
  At the height of Reconstruction, Senator Charles Sumner famously likened the republican-government clause to “a sleeping giant in the Constitution, never until this recent war awakened, but now it comes forward with a giant’s power.”
CG
, 40-1:614 (July 12, 1867).

62
  Act of Aug. 6, 1965, sec. 10; 79 Stat. 437, 442; Amar,
ACAB
, 443, 623–624 n. 22.

63
  
Oregon v. Mitchell
, 400 U.S. 112 (1970). Of the seven Warren Court holdovers, four—Justices Douglas, Brennan, White, and Marshall—voted to sustain the 1970 statutory amendments to the Voting Rights Act in their entirety, and a fifth, Justice Black, voted to uphold broad congressional power to enfranchise young adults in federal elections but not state elections. Two Warren Court holdovers—Justices Harlan and Stewart—voted to strike down both the state-election provision that Black found troubling and also the federal-election provision. In this willingness to broadly set aside Congress’s handiwork, these two jurists were joined, for the most part, by the two recent post-Warren appointees, Chief Justice Warren Burger and Justice Harry Blackmun. With Black thus emerging as the swing justice in the case, the Court, by separate votes of 5–4, upheld Congress’s power to enfranchise young adults in federal elections and struck down Congress’s efforts to enfranchise these young adults in state elections.