"Privilges and Immunities": What are they good for?

In the coming days, we all will get a lesson on the meaning of the 14th Amendment, Section 1.  This will be entirely because of the Trump Administration's appeal to the Supreme Court regarding the injunctions put on his Executive Order on "Brithright Citizenship".

AMENDMENT XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 first sentence (in BOLD) is the sum of the clause in question in the Executive Order.  

What I am interested in with this short post is the 2nd sentence, clause 1 (highlighted in YELLOW)

What the heck are "privileges and immunities"?  I mean, what are they, EXACTLY?  If you do a Google search, you will find articles and academic papers on the subject, but no exhaustive list of them and lots of seemingly "fuzzy" examples and/or definitions.  Seems like a catch-all provision.  

In several things I have read, it is suggested that an excerpt from a Supreme Court case, Corfield vs Coryell in 1823, gives the best overall explanation. It appears to be the "gold standard" explanation used in many articles/reasearch papers:

""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 notions 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. . . .

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 guaranteed 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 or 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. . .

Is this concept important? I would say so. So important that the origin of the 3 words is a part of the US Constitution; (see HERE)  HOWEVER, it has a different overall meaning in its intent and execution.

""Chesterton Fence: Don’t Destroy What You Don’t Understand!"".

This seems appropriate given the "when you are a hammer, everything is a nail" mindset of The Dept of Govt Efficiency (DOGE).

Regardless of how one feels about what is going on with DOGE, this short video on the "Chesterton Fence" gives structure to one perspective of decision-making and the intended/unintended consequences of those decisions.

A good lesson for students as a cautionary tale of making hasty decisions, whether personal or those that affect a wider audience.  

Here is an excellent explanation of the "Chesterton Fence".  

US Economy by State vs the EU by Country: Fair Comparison?

The US economy is 33% larger than the EU economy.  The population of the US is approx 345 million. The EU's population is approximately 450 million----23% larger than the US. 

Calculate GDP per person for each geographic area

Calculate your US State GSP (Gross State Product) and Individual EU Country GDP, on a per-person basis

Make comparisons.

Questions: What do these calculations say about the distribution of that "product"?  Does it matter?

Link to US Economy. Link to EU Economy

"Birthright Citizenship"---7 words vs 6 words. Why this change in construction?

 Below are two clauses that contain words within a phrase that will be beaten to death in the coming months as the nation mulls the meaning of "Birthright Citizenship".  Highlights are mine. 

BOTH of these documents were proposed and discussed months apart in the SAME Congressional session by the SAME people in 1866.  The 14th Amendment was proposed and passed but not ratified until 2 years later.

Why use certain words to form a phrase in one document and not the other? Why not just "copy and paste" the first phrase, that was cussed and discussed, into the second one (the 14th Amendment)?

Why the change in the construction of the phrase? There has to be a reason, right?  Guessing we will hear lots of opinions in the coming days.  

Civil Rights Act of 1866

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;"

Fourteenth Amendment (passed congress in 1866 and adopted in 1868)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 

 

"Herein Granted": Two words in the US Constitution make all the difference in the Power of the Executive

Gotta admit I never really paid attention to the significance of the two words "herein granted" in Article 1 (Legislative Branch) but conspicuously absent in Articles 2 and 3 (Executive and Jusdicial Branches, respectively).

Source: Constitution Center

Turns out there were competing views on the extent of power the Constitution gives to a President.  Alexander Hamiltion and James Madison had dueling views on the matter of interpreting Sections 1 of Articles 1 and 2.

These excerpts are from HERE.  Up first Hamilton:

"""Hamilton and Madison.—Hamilton’s defense of President Washington’s issuance of a neutrality proclamation upon the outbreak ofwar between France and Great Britain contains not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II. Hamilton wrote: “The second article of the Constitution of the United States, section first, establishes this general proposition, that ‘the Executive Power shall be vested in a President of the United States of America.’ The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.” “The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used.

The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, ‘All legislative powers herein granted shall be vested in a Congress of the United States.’ In that which grants the executive power, the expressions are, ‘The executive power shall be vested in a President of the United States.’

The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”"""

Madison's response, which as I understand it, suggests that Hamilton's reading would bestow way more power on the Executive than intended:

"""Madison’s reply to Hamilton, in five closely reasoned articles, was almost exclusively directed to Hamilton’s development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison’s principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation’s neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. “Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”  The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III."""

An interesting court decision by Chief Justice Howard Taft put the distinctions in context and gave Hamilton's view a the benefit of the doubt.

The Myers Case.—However much the two arguments are still subject to dispute, Chief Justice Taft, himself a former President, appears in Myers v. United States 22 to have carried a majority of the Court with him in establishing the Hamiltonian conception as official doctrine. That case confirmed one reading of the “Decision of 1789” in holding the removal power to be constitutionally vested in the President.23 But its importance here lies in its interpretation of the first section of Article II. That language was read, with extensive quotation from Hamilton and from Madison on the removal power, as vesting all executive power in the President, the subsequent language** was read as merely particularizing some of this power, and consequently the powers vested in Congress were read as exceptions which must be strictly construed in favor of powers retained by the President. Myers remains the fountainhead of the latitudinarian constructionists of presidential power

 **By "subsequent language" it means the Sections in Article 2 that follow Section 1 enumerating some powers to be the province of the Executive Branch.

The above excerpts are from HERE.  I edited the excerpts in a variety of ways...

"Trump vs US" Supreme Court Case on Executive Immunity. Maybe a helpful visual?

Helps me to put a picture of what I see as the result of the Executive Immunity case recently decided by the Supreme Court (case decision HERE).

Here is the succinct summary of what the Supreme Court held:

Below are a couple of images I created to give students (or others interested in the issue) a nominal starting point to understand the result. I make no claims it is a perfect representation.  I think, for the most part, the logic of what is "held" written above is shown in the two images below.

The first one describes Executive authority BEFORE the case cited above.  Presidential authority is defined in Article 2 of the Constitution. The "fuzzy perimeters" of that power have been molded by historical events but have been expansionary in history and dictated by events (civil war, WW 1 and 2, 9/11, to name a few).

The second image below represents what I think happens with Executive Authority going forward.  It HAS to happen, right?

Executive power increases (White area).  The fuzzy "outer perimeter" (Roberts words) of what is acceptable within the Executive branch increases (Brownish area) and the level of criminality that an Executive can be held responsible for decreases (Red area).

It is this brownish area I think Chief Justice Roberts addresses with "And he is entitled to at least presumptive immunity from prosecution for all his official acts.".  Not defined before in any Supreme Court case and the contours of it remain "fuzzy" BUT no question is an enlargement of Executive Branch permissible acts or actions.

ACT Reading Test Stratgies. My nominal suggestions.

I do a little ACT tutoring.  I have watched just about every YouTube video on every ACT subject tested.  Everyone has their own take on how to approach each test, which leads to a wide variety of opinions.  

The Reading Test (and Science test), as opposed to the English and Math tests, seems to have fewer moving parts overall.  The English test has a million grammar and sentence structure rules and Math, well, you know...

Professional tutors (ain't me!) are split on how to approach the reading test.  Some say go to questions first, and some say read the passage first. Some say read and annotate in the margins first, some say that takes too much time.  What to do?

I honestly don't know of a specific "go-to" strategy.  Below I will post my suggestions. I think they are useful if one is not the greatest/fastest reader in the world.  I think these provide some structure on how to approach the reading passages.  

Use at your own risk!

Additional Tips:

Read the source information at the very beginning of the passage. Depending on the topic, there can be useful information about the passage overall. It is good to know where it is going to take you before you start skimming the questions.

Don't read in any detail the answer choices that are wordy overall.  A question that has just one or two-word answer choices is worth a skim just to get the overall feel for the question.

Yes, this prep work takes valuable time. I think the time you save in having the questions mapped out will be more than worth the upfront investment of time.  Plus, it may reduce some of the reading you have to do overall.  

ACT does not care about how you arrive at an answer, nor do they care if you liked the passage or not!

"The History of the Chevron Doctrine"--things you may not have known...

Two cases regarding the so-called "Chevron Doctrine", Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, were argued this week at the Supreme Court. 

This very short article helps explain the issues in the original case that established the doctrine.

In short, when a statute's (law) verbiage comes into question, a court uses a "2-step" process to decide the case:

The "two-step" refers to the two stages of the review process:

1. Determine whether Congress expressed clear intent on the specific issue at hand in the statute. If it did, the court simply applies that meaning. If it’s not clear, go on to Step 2.
2. If the statute is ambiguous, then the court defers to the agency's interpretation if it is "based on a permissible construction of the statute." This is the "Chevron deference" stage.

 Source: FindLaw

One side says the doctrine is necessary so government agencies, that employ professionals with expertise Congress does not have, can use existing statutory language to respond to challenges that are not explicit (but implied or through precedent) in the statute. 

The other side says it gives government agencies too much power to interpret statutes beyond what is in the text of those statutes. The meanings of statutes should be interpreted by the judicial branch, not "unelected bureaucrats" or the Executive branch.

14th Amendment Section 3: Does anyone know what it really means?

 I divided up Section 3 by each subject referred to and used clause #5, "who, having previously taken an oath", as the mid-point where the dependent clauses that follow refer back to the prior clauses. 

There is a high level of parallelism/symmetry with the clause(s) but not a perfect correlation.  For example, "elector of the President and Vice President" is explicit in the first half but not mentioned in the second. Perhaps because Electors used to come from the State Legislatures, therefore subject to #8? 

This amendment poses more questions than answers.  If someone tells you they know for sure what it means and how to interpret it, they are not being completely honest.  My opinion: I dunno.

Here are some questions I have seen asked about this clause that apparently have no definitive answers.

Is this clause “Self-Executing”? Does it require a finding by the Legislature/Congress (House and Senate)/Court (Supreme or other)?  Is the President entitled to “Due Process” under this Section?

          Are the President and VP subject to the terms of Section 3?

Is the President considered an “Officer” even though he occupies an “Office”? Here are a YES and a NO perspective on the issue. HERE is another view on the Legislative history.

Is including “electors of the President and VP” (for Electoral purposes) a check on the President and VP and naming them explicitly not necessary?

What were the debates around wording at the time of the writing of this section?  Why was the President and VP not mentioned EXPLICITLY?

The wording is different in each oath. WHY? Note word "support" is not in the Presidential Oath. Some say this is significant.

Many questions, few solid answers... 

  

 

 

What is a "Fact" in the context of the Declaration of Independence? Jefferson is a clever dude...

 I was just re-reading the article I have previously posted (The Stylistic Artistry of the Declaration of Independence). In this article, there are MANY nuggets of insight into the writing of the Declaration by Jefferson.  Words matter!

The analysis of the word "Fact" is one that made me think today.  This word is found in this line (underline/emphasis mine):

To prove this [the king's tyranny], let Facts be submitted to a candid world.

 

But "fact" had yet another connotation in the eighteenth century. The word derived from the Latin facere, to do. Its earliest meaning in English was "a thing done or performed"--an action or deed. In the sixteenth and seventeenth centuries it was used most frequently to denote an evil deed or a crime, a usage still in evidence at the time of the Revolution. In 1769, for example, Blackstone, in his Commentaries on the Laws of England, noted that "accessories after the fact" were "allowed the benefit of clergy in all cases." The Annual Register for 1772 wrote of a thief who was committed to prison for the "fact" of horse stealing. There is no way to know whether Jefferson and the Congress had this sense of "fact" in mind when they adopted the Declaration. Yet regardless of their intentions, for some eighteenth-century readers "facts" many have had a powerful double-edged meaning when applied to George III's actions toward America.19

 Shot fired, Thomas Jefferson!  So, King George III could have read the word "Fact" (emphasized by being capitalized?) to mean what we today would understand the word to mean OR he could have taken it to imply a crime of sorts---OR BOTH!

This is a nice reminder that when reading historical documents it is important to be mindful of every word and the context in which it is used.

 

 

My retirement hobby--Fantasy SCOTUS

Don't, err, "judge" me.  Since retiring in January 2021, I have been an active participant in Fantasy SCOTUS, an online forum for crowd-sourcing predictions of cases argued in the Supreme Court's current term/session.  My handle there is "geneh".

As they say, it is the journey, not the destination with this activity. Over the past year or so I have learned A LOT about how the Court operates through listening to the live arguments, reading the "writs of certiorari" (usually only the abstracts/syllabi---these things are LONG and Detailed!), responses to the writs, Google searches for objective analysis of the cases, and any opinion pieces I can find.   

Listening to the oral arguments is challenging.  The complexity/depth of the arguments from both sides of the case can be very hard to follow.  It is easy to mentally drift when the banter jumps to prior cases/precedents and terms are used that are definitely "inside baseball" between the judges and the advocates.

The best tool for me to understand the oral arguments is a combination of listening to the audio recording AND reading the transcript of the proceeding that is made available shortly after the live presentation.  Those two things would be very time-consuming to do separately, however, there is a YouTube channel that combines the two!

For me, it is helpful to hear and read the arguments at the same time. I can pause the video to Google terms/concepts used in the proceedings that I don't understand. Often that takes me down rabbit holes but the point for me is to keep my brain engaged and to model being a life-long learner.

Here is a video of a case argued this week regarding Social Media and how government officials use their pages for private and/or public purposes.  I highly recommend this YouTube channel for learning purposes.

The use of the word "Necessary" in the opening of the Dec of Independence was no accident...

And this is only the beginning!

This is a deep-ish dive into the historical AND literary meaning/structure of the Dec of Independence. Basically a word-by-word and phrase-by-phrase analysis. I cannot emphasize enough how informative this is on so many levels. Great for Social Studies AND for English Composition/Literature. Enjoy! It is not too long!

The Stylistic Artistry of the Declaration of Independence

Quotes by Oliver Cromwell (Source HERE) that support the notion the Declaration of Independence was written with subtle/not-so-subtle language. 

 “we declared our intentions to preserve monarchy, and they still are so, unless necessity enforce an alteration. It’s granted the king has broken his trust, yet you are fearful to declare you will make no further addresses. .....look on the people you represent, and break not your trust, and expose not the honest party of your kingdom, who have bled for you, and suffer not misery to fall upon them for want of courage and resolution in you, else the honest people may take such courses as nature dictates to them." Cromwell’s speech in the commons during the debate which preceeded the “vote of no addresses”, recorded in the diary of John Boys, MM for Kent. 

 “since providence and necessity has cast them upon it, he should pray god to bless their councels.” Cromwell on the trial of King Charles I. Dec. 1648. 

 “cruel necessity”. Cromwell on the execution of King Charles I. Jan 1649. Oxford dictionary of quotations. 

 “necessity hath no law.” Speech to parliament, Sept. 1654.

Redundancy Trap with the ACT

These can be sneaky. Beware of "redundancy"---using different words that mean the same to describe or explain one thing. Here is a good example:

Source HERE

Source: ACT Prep Academy

Private vs Pubic Goods