No Fourteenth Amendment?

[phx1138]

Supposing it never happens? Either because the ACW doesn't, or because the basic protections for blacks are written into the Thirteenth, but don't include many of those in OTL's Fourteenth.

So, no due process guarantee. No right to silence. No exclusionary rule or fruit of the poisonous tree doctrine. (That actually fits Canadian legal doctrine, FYI.) No corporate personhood or corporate citizenship. Probably no Giglio, Kyles, or Connick, either.

What does the U.S. look like in this event? People compelled to testify in their own defense? Many, many more people in jail, falsely convicted? Much less corporate influence on politics? (It probably means Citizens United doesn't happen; it certainly means it'll be decided the other way, if it does.)

Anything else interesting?

 

[writofcertiorari]

The effects would obviously be huge. However, in the same Wikipedia article you linked to, you can see that the idea of corporate personhood well predated the 14th amendment. Sure, case law has been added since then, but there was already a doctrine that corporations had some of the privileges and immunities of citizens as early as the Dartmouth case.

Also, you didn’t mention birthright citizenship either. The Dred Scott decision said that descendants of slaves couldn’t be citizens, even if they were born free. Now, that was not binding because it was outside the realm of the issue being decided. With a more... Northern Supreme Court, you might see a return to the doctrine of jus soli, which was a common law precedent which said that every free person born within the jurisdiction was a citizen by birth. However, that case had been decided in England, not the United States.

If that case was pre-1776 (or so), then of course it applied... but it depends. Maybe someone knows the case I’m referring to.

 

[David T]

Supposing it never happens? Either because the ACW doesn't, or because the basic protections for blacks are written into the Thirteenth, but don't include many of those in OTL's Fourteenth.

Well, obviously no ACW is going to have tremendous effects in itself.

As for no Fourteenth Amendment in a TL with the ACW: The same results with respect to race might have been obtained by a liberal interpretation of the Thirteenth Amendment (which indeed many members of Congress thought was sufficient to support the constitutionality of the Civil Rights Act of 1866, but some wanted the Fourteenth Amendment just to remove all doubt). As for non-racial aspects, some or even almost all of the provisions of the Bill of Rights (including the Fifth Amendment Due Process Clause) might have been made applicable to the states even without the Fourteenth Amendment: Barron v. Baltimore never lacked critics and might in time have been overruled. https://www.alternatehistory.com/forum/threads/barron-v-baltimore-decided-differently.409203/

 

[phx1138]

the idea of corporate personhood well predated the 14th amendment. Sure, case law has been added since then, but there was already a doctrine that corporations had some of the privileges and immunities of citizens as early as the Dartmouth case.

My understanding is, the idea of corporate personhood, as commonly understood today, hinges on the 14th. IMO, without it, you get a more limited, constrained idea, one more in line with the "legal artifact" idea than with natural born citizen's rights.

Also, you didn’t mention birthright citizenship either. The Dred Scott decision said that descendants of slaves couldn’t be citizens, even if they were born free. Now, that was not binding because it was outside the realm of the issue being decided. With a more... Northern Supreme Court, you might see a return to the doctrine of jus soli, which was a common law precedent which said that every free person born within the jurisdiction was a citizenship by birth. However, that case had been decided in England, not the United States.

If that case was pre-1776 (or so), then of course it applied... but it depends. Maybe someone knows the case I’m referring to.

I expect that would have to be dealt with as slavery ends, one way or another. My thinking is, the 13th (or an alt-14th?) includes language expressly saying all blacks, free or former slave, have equal natural-born rights.

That runs up against Plessy, tho, doesn't it? Being able to point to the Constitution expressly saying "blacks are equal" would be a problem for Jim Crowe laws, the "penal servitude" system, vagrancy laws, & various & sundry other abusive laws. And I can't imagine express equality would be too popular in the Deep South...

Or am I over-estimating, here? Guarantees at the federal level weren't considered binding on states for more than 100yr, so... Nor do equal rights guarantee equal treatment, nor equal opportunity.

Well, obviously no ACW is going to have tremendous effects in itself.

Agreed. I'm less concerned with how the condition arises than the effect.

As for no Fourteenth Amendment in a TL with the ACW: The same results with respect to race might have been obtained by a liberal interpretation of the Thirteenth Amendment (which indeed many members of Congress thought was sufficient to support the constitutionality of the Civil Rights Act of 1866, but some wanted the Fourteenth Amendment just to remove all doubt). As for non-racial aspects, some or even almost all of the provisions of the Bill of Rights (including the Fifth Amendment Due Process Clause) might have been made applicable to the states even without the Fourteenth Amendment: Barron v. Baltimore never lacked critics and might in time have been overruled. https://www.alternatehistory.com/forum/threads/barron-v-baltimore-decided-differently.409203/

That I didn't know. It's something on those lines I had in mind.

In re applying 5th Amendment provisions to states, do you mean by incorporation in the *13th? Or by litigation? My understanding is, that took a very long time to find a footing OTL...

 

[phx1138]

One other effect, also going to trial fairness: protection from publicity.

 

[DocJamore]

The 14th amendment is only important because it is a conglomerate of all the issues Republicans saw as important (at the time) that they went and packed into a single amendment. This was because of hostility between the Republican Congress and President Andrew Johnson and the unusual circumstances of Reconstruction that meant Congress could force the Southern states to ratify amendments at bayonet point. Because of this, it is the longest amendment in the Constitution today and isn't really that dissimilar to the 18th Amendment, which was repealed.

If you remove the unusual circumstances it is probable that a much shorter 14th will be passed dealing with a specific issue relating to the reconstruction process. There would probably be future amendments passed that would ratify topics that fell under OTL 14th. These would probably be social rights issues. Other parts of the 14th would probably not be put into the Constitution but would just be laws passed by congress. Many Americans probably feel that social security might as well be in the constitution already, but it is still just a law. Corporate person hood would be one of those kinds of laws, though since it would not be in the Constitution it would be more limited than in OTL.

 

[Mikestone8]

At the very minimum, there'll be a 14th repudiating the Confederate debt.

 

[phx1138]

The 14th amendment is only important because it is a conglomerate of all the issues Republicans saw as important (at the time) that they went and packed into a single amendment. This was because of hostility between the Republican Congress and President Andrew Johnson and the unusual circumstances of Reconstruction that meant Congress could force the Southern states to ratify amendments at bayonet point. Because of this, it is the longest amendment in the Constitution today and isn't really that dissimilar to the 18th Amendment, which was repealed.

If you remove the unusual circumstances it is probable that a much shorter 14th will be passed dealing with a specific issue relating to the reconstruction process. There would probably be future amendments passed that would ratify topics that fell under OTL 14th. These would probably be social rights issues. Other parts of the 14th would probably not be put into the Constitution but would just be laws passed by congress. Many Americans probably feel that social security might as well be in the constitution already, but it is still just a law. Corporate person hood would be one of those kinds of laws, though since it would not be in the Constitution it would be more limited than in OTL.

That's the outcome I'm seeing. I wonder, tho, about the effect of that, especially for corporations. When GM, frex, can't argue for treatment as a person, does it mean GM can't argue against sit-down strikes? It fairly obviously means "corporate free speech" & the ability to contribute to political parties & campaigns will be constrained without SCotUS interference. IMO, that's a good thing.

It strikes me, tho, the worst implications will be on Joe Citizen in dealing with search & seizure & fair trial provisions. Everything I see connected to the 14th suggests the public is deeply screwed without it.

 

[David T]

In re applying 5th Amendment provisions to states, do you mean by incorporation in the *13th? Or by litigation? My understanding is, that took a very long time to find a footing OTL...

As I have said, not only the Fifth Amendment but virtually all of the provisions of the Bill of Rights except for the First Amendment and part of the Seventh could be viewed as directly applying to the states--those are the only two amendments in the Bill of Rights that refer specifically to the US government. Read literally, all the others could be seen as applying to state governments as well. Of course to so decide would mean overruling Barron v. Baltimore but the Supreme Court does overrule decisions, and as I noted at https://www.alternatehistory.com/forum/threads/barron-v-baltimore-decided-differently.409203/ Barron has always had its critics.

Besides the Bill of Rights, another possible source of protection for human rights against state-governments' intrusion in a no-14th-Amendment US would be the original Constitution's "privileges and immunities" clause: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." https://www.archives.gov/founding-docs/constitution-transcript In a famous dictum in Corfield v. Coryell Justice Bushrod Washington suggested an interpretation of the provision quite similar to what later would be called substantive due process: "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..." http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

Finally, Congress might be held to have power to enforce fundamental rights on the states via the Guaranty Clause: "The United States shall guarantee to every State in this Union a Republican Form of Government..."

All this is even apart from the Thirteenth Amendment, which could (and has been) interpreted as allowing Congress to take action against "badges" and "incidents" of slavery as well as actual chattel slavery.

 

[Dempsey-Louis]

Supposing it never happens? Either because the ACW doesn't, or because the basic protections for blacks are written into the Thirteenth, but don't include many of those in OTL's Fourteenth.

So, no due process guarantee. No right to silence. No exclusionary rule or fruit of the poisonous tree doctrine. (That actually fits Canadian legal doctrine, FYI.) No corporate personhood or corporate citizenship. Probably no Giglio, Kyles, or Connick, either.

What does the U.S. look like in this event? People compelled to testify in their own defense? Many, many more people in jail, falsely convicted? Much less corporate influence on politics? (It probably means Citizens United doesn't happen; it certainly means it'll be decided the other way, if it does.)

Anything else interesting?

Many States had/have a 'bill of rights' in their charters and I suspect these rights (in particular to due process concerns) would have kicked in, been amplified over the years, and would be more relevant today. De jure segregation on the other hand would have been much more difficult to end (than it already was) and most likely would have necessitated a separate Constitutional amendment.

I suspect that the loss of the 'equal protection' clause and its effect on civil rights would be the most damning; fair trial issues would have eventually been worked out in the States without federal intervention, albeit ending up with even more inconsistency across the nation than there already is.

 

[phx1138]

As I have said, not only the Fifth Amendment but virtually all of the provisions of the Bill of Rights except for the First Amendment and part of the Seventh could be viewed as directly applying to the states

Could be, but OTL (&, I suspect, TTL) weren't. That's the trouble. Even with the 14th in place, applying Constitutional provisions to the states was improbable.

Besides the Bill of Rights, another possible source of protection for human rights against state-governments' intrusion in a no-14th-Amendment US would be the original Constitution's "privileges and immunities" clause....In a famous dictum in Corfield v. Coryell Justice Bushrod Washington suggested an interpretation of the provision quite similar to what later would be called substantive due process...

That I didn't know about, thx. Regrettably, it doesn't change my view much...

OTOH, without the 14th, maybe that would be the route taken.

Many States had/have a 'bill of rights' in their charters and I suspect these rights (in particular to due process concerns) would have kicked in, been amplified over the years, and would be more relevant today. De jure segregation on the other hand would have been much more difficult to end (than it already was) and most likely would have necessitated a separate Constitutional amendment.

I suspect that the loss of the 'equal protection' clause and its effect on civil rights would be the most damning; fair trial issues would have eventually been worked out in the States without federal intervention, albeit ending up with even more inconsistency across the nation than there already is.

IMO, that's likely, & the stark differences between states, both on segregation & fair trial/due process matters, could be astounding. Following Corfield, it could get very interesting indeed...

 

[phx1138]

One other thing might happen: you might lose your right to birthright citizenship.

BTW: bump.

 

[phx1138]

And another impact: this case probably goes the other way, as discussed here and here

Also: bump.

 

[phx1138]

I think the purpose of the Establishment Clause was to protect the official churches in each State, and I think this was the case until the Fourteenth Amendment made the states religiously free.

(quoted from here)
That's one more substantial change, if it's true...

Also, bunp.

 

[PuffyClouds]

I've been quoted in another thread, I'm somebody now!

 

[althisfan]

Without the 14th amendment you can't apply the Bill of Rights against the states. That means- states can restrict speech, press, and yes even firearms. State constitutional freedoms are meaningless, they can't be enforced by federal courts and are soooo easily amended. Your rights in one state will vary wildly with the next state. States such as NY will continue to have one house of the legislature where the senate is apportioned to give rural counties more sway instead of "one man one vote" per Baker v Carr in 1964.

 

[phx1138]

Without the 14th amendment you can't apply the Bill of Rights against the states.

Absolutely can't?

That means- states can restrict speech, press, and yes even firearms. State constitutional freedoms are meaningless, they can't be enforced by federal courts and are soooo easily amended. Your rights in one state will vary wildly with the next state. States such as NY will continue to have one house of the legislature where the senate is apportioned to give rural counties more sway instead of "one man one vote" per Baker v Carr in 1964.

More than that, it means, for a start, divorces in one state aren't (necessarily) binding in another, so the "Reno divorce" industry would never happen. Come to think of it, marriages wouldn't perforce be recognized, either. Nor even driver's licences.

There would have be be some kind of arrangement....

 

[althisfan]

More than that, it means, for a start, divorces in one state aren't (necessarily) binding in another, so the "Reno divorce" industry would never happen. Come to think of it, marriages wouldn't perforce be recognized, either. Nor even driver's licences.

There would have be be some kind of arrangement....

No. You're confusing the 14th amendment with article IV of the Constitution. The US Constitution, with no amendments, already forces states to recognize ALL marriages (or divorces) done in another state (which is why DOMA was unconstitutional). "Full Faith and Credit shall be given in each state to the public acts, records, and judicial proceedings of every other State." Congress has the constitutional right under that article to define and declare what is considered "public acts, records, etc" which was their defense of why DOMA was constitutional because Congress was defining the "public act" of marriage; now without the 14th amendment in place yes that probably is constitutional for Congress to declare marriage to be only heterosexual because it then defines "gay marriage" as not something covered by full faith and credit.

 

[phx1138]

No. You're confusing the 14th amendment with article IV of the Constitution. The US Constitution, with no amendments, already forces states to recognize ALL marriages (or divorces) done in another state (which is why DOMA was unconstitutional). "Full Faith and Credit shall be given in each state to the public acts, records, and judicial proceedings of every other State." Congress has the constitutional right under that article to define and declare what is considered "public acts, records, etc" which was their defense of why DOMA was constitutional because Congress was defining the "public act" of marriage; now without the 14th amendment in place yes that probably is constitutional for Congress to declare marriage to be only heterosexual because it then defines "gay marriage" as not something covered by full faith and credit.

My excuse: being Canadian.

When you say, "Can't apply the Bill of Rights", I see, "Can't apply the first 10 Amendments", which would seem to include the above. Evidently not... So thx for clearing that up for me.

That said, it appears states would not have the right to declare interracial marriages illegal, but Congress might, absent the 14th.

 

[althisfan]

My excuse: being Canadian.

When you say, "Can't apply the Bill of Rights", I see, "Can't apply the first 10 Amendments", which would seem to include the above. Evidently not... So thx for clearing that up for me.

That said, it appears states would not have the right to declare interracial marriages illegal, but Congress might, absent the 14th.

Until 1967 interracial marriages were state by state, the Supreme Court then made it nationwide based on the 14th. What Article IV of the Constitution does is make it where one state must recognize something done in another state, it doesn't mean that all states must do the same thing; one state can say "I'm not having gay or interracial marriage" but under Article IV it must recognize a gay (or interracial) marriage done in another state; it is the 14th Amendment that requires (under Supreme Court interpretation) for all states and the federal govt to have the equal rights for gay or interracial marriage. (Article IV is in the main original Constitution, I'm not sure if you understand that I'm NOT talking about an amendment). Without the 14th Amendment you can't apply the ANY of the restrictions the Constitution puts on the Federal govt upon the states; for example- freedom of speech protects an individual from censorship by the Federal govt and prevents Congress from passing laws restricting speech. It does NOT prevent states from passing laws restricting your speech or right to protest. It is the 14th amendment that puts those restrictions on what Congress can do and now applies them equally to state legislatures; BUT it requires for the Supreme Court to apply the 14th amendment on these rights given by the Bill of Rights, which is why you see that applying the 2nd amendment to the individual states took 150 years even though the 14th amendment had already been used to apply all other rights onto the states much earlier.