The Fourteenth Ammendment of the Constitution of These United States

[kgbsquirrel]

So, while reading the decision from McDonald, it got me wondering about the incorporation of the several "inalienable rights" under a few select clauses of the fourteenth, then it struck me; the fourteenth amendment isn't poorly written, it's incomplete. There has been much ado about whether this right, or that right, should be incorporated under one of the following:

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.

I occurs to me that an "inalienable right" does not properly fall under any of these clauses. Starting with the first, the privileges or immunities of a citizen. Privilege, by it's own definition something granted especially to a particular person, by a particular institution, and with the full ability to be revoked. Most definitely not an inalienable right. Then there is "immunities," which while could be stretched to apply, is incomplete in its definition and meaning with regards to the term "inalienable right."

The second clause, often abbreviated simply to "due process," this one is specific to the items rights that a citizen may be deprived of: Life, liberty or property. This clause makes no mention of inalienable rights does not cover all unalienable rights, but only three, and even the term "unalienable" does logically imply that a citizen may not be deprived of their rights under any circumstances, due process or not. Being a constitutional amendment however and not just a federal law does unfortunately allow for the abridgement but again only specific to these three.

Finally, equal protections of the law. Perhaps the most accurate in terms of protecting a citizen's right, more so than immunities, but still, as we have seen with today's hair splitting court decisions, vague as to exactly what it is specifying. I for one would not consider a constitutionally enumerated, inalienable right whose existence is owed solely to my corporeal being as a human to be labeled as merely a "law" as would, say, a tax exemption that would give me protection from the Commonwealth of Virginia during military service, or even to be left to the decision of the courts as to decide which laws and rights are applicable under this clause, as they have been doing.

This brings me to a proposed hypothetical fourth clause that I've been kicking around in my head...

Nor shall any State, or subdivision thereof, make any attempt or law, to deprive any citizen of the United States of the protection, application or employment of any of the many inalienable rights granted them by their Creator and as enumerated by the Constitution of the United States and it's many amendments.

I think I've covered most of my bases with the wording. Thoughts and comments of the community?

[Owens]

I wish I could remember where I recently read this, but someone somewhere had made an analysis of the decision. In it, they stated that the language  in the time of the writing, the phrase 'privileges or immunities' meant pre-existent rights. In that light, I think they got it right when the 14th was written.

I don't recall the name of the writer of that analysis or where I found it, but I'll try to re-find it.

[Scout26]

The problem is that the "Bill of Rights" lists out some of the rights we enjoy.  But it's not the be all, and end all, complete list.

But it is a list non-the less that the USSC and other courts can refer to when making their decisions.   

Opening up the P&I clause open a big can o' worms, because what exactly are the "privileges or immunities" you are entitled to simply because you take a breath ??

[Hugh Damright]

Nor shall any State, or subdivision thereof, make any attempt or law, to deprive any citizen of the United States of the protection, application or employment of any of the many inalienable rights granted them by their Creator and as enumerated by the Constitution of the United States and it's many amendments.

They might have simply said that the federal government shall have power to enforce the first eight amendments against the States, but I am under the impression that the 39th Congress would not have passed something of that nature.

the "Bill of Rights" lists out some of the rights we enjoy. But it's not the be all, and end all, complete list.

I know ... why should the central government have a power to protect only the rights enumerated in the first eight amendments? But if we throw in the P&I and due process, then folks can find ways to construe it all to give the feds jurisdiction over whatever is fancied.

what exactly are the "privileges or immunities" you are entitled to simply because you take a breath ??

Some folks would say that we have certain rights because we are human, but I think "privileges and immunities" are of a different nature. From what I remember reading about it, a good example of a privilege is the right to own property, and it is a right of citizenship as contrasted with alienage. An alien, though a live and breathing human being, might not have this privilege of citizenship. That's why they call them "privileges" I think.
 
On the other hand, there is a right to own property that seems to apply to aliens, in that we can't just take someone's property because they aren't a citizen. You can't just deprive a person of their life/liberty/property ... except by due process of law.

The 14th says that the States cannot abridge the P&I of citizens, nor deprive any person of life/liberty/property ... because the P&I apply to citizens, while the right to life/liberty/property apply to all persons.

[Scout26]

While interesting arguements, CJ Roberts slammed the door hard on P&I in the Macdonald case.  The next decade or so, the interesting cases will be around (surprise, surprise) the 10th Amendment.  Starting with the DOJ v Arizona.  IMHO, The DOJ is going to have a hard sell getting this elephant to dance on that pinhead.   If they screw-up (and I think AZ has some pretty interesting counter-arguements/examples) it could reopen some of the issues that most thought settled during that "most recent unpleasantness in '61-'64, that is 1861-1864."

[Northwoods]

The second clause, often abbreviated simply to "due process," this one is specific to the items that a citizen may be deprived of: Life, liberty or property. This clause makes no mention of inalienable rights, and even the term "inalienable" does logically imply that a citizen may not be deprived of this right under any circumstances, due process or not.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

[kgbsquirrel]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Good catch, however the fourteenth has signed over only three specific unalienable rights to revocation through due process, not all unalienable rights, to which the DOI, by the very passage you quoted, implies there are more. I should amend my OP to reflect that it does not cover all rights, rather than it does not cover any.


Re. Scout: This isn't about reopening P&I, it's about looking at the 14th amendment as an incomplete item that does not properly cover unalienable rights.

[seeker_two]

While interesting arguements, CJ Roberts slammed the door hard on P&I in the Macdonald case. 

Maybe....but Justice Thomas left a crack in the pet door for P&I in his opinion....can't dismiss it in its entirety....