I have not contributed any blog to the Secular Outpost for quite some time. And a decent respect for the opinions of humankind requires an explanation. The truth is that I have been very occupied with writing a book about the general theory of the constitutional rights of the American people. I am pleased to annouce that my book has been just been published. So here’s the citation: The Constitutional Rights, Privileges, and Immunities of the American People: The Selective Incorporation of the Bill of Rights, the Refined Incorporation Model of Akhil Reed Amar, Dred Scott, National Citizenship and Its Implied Privileges and Immunities, the Second Amendment Right, and Much More (Bloomington, In.: iUniverse, Inc., 2009). The book is available from the publisher, BarnesandNoble.com, Amazon.com, book retailors, and other sources.
The provisions of the Bill of Rights (Amendments I-VIII) (adopted 1791) do not as such apply to the states. It is by virtue of the Fourteenth Amendment [n. 1] (adopted 1868) that most rights specified in the Bill of Rights are deemed by the Supreme Court to equally apply to the states. When jurists and writers talk about a state law abridging the First Amendment, this is just a way of speaking but a misleading one at that. The Court’s theory is that the due process clause of the Fourteenth Amendment is the incorporating instrument. But this theory is very analytically flawed and historically unjustified, as I show in my book.
My theory is the privileges or immunities clause of the Fourteenth Amendment that incorporates the freedoms of the First Amendment but no other right specified in the Bill of Rights. Of course, there are rights, other than the First Amendment freedoms, that are constitutional privileges or immunities of the American people and that the states are forbidden to abridge. These include freedom of travel throughout the United States and freedom from racial and ethnic discrimination. That the privileges and immunities of the American people are predicable of all free American citizens does not entail that only free American citizens are entitled to these rights. The due process clauses of the Fifth and Fourteenth Amendment are virtually equivalent in meaning, and have important substantive aspects. But, for example, although the due process clauses by their own force each limits the power of government to abridge freedom of speech and the press, this does not mean that the clause prohibits every abridgment of freedom of speech or the press. However, freedom of speech and the press cannot be constitutionally abridged by the United States and the individual states because of the First Amendment and the privileges or immunities clause of the Fourteenth Amendment. According to my theory, the specific right of each due process clause equally includes some other rights specified in the Bill of Rights as component rights (e.g., the Eighth Amendment right not to be subjected to cruel and unusual punishment); but some other specific rights are not component rights (e.g., the specific right of the grand jury clause of the Fifth Amendment).
Last year, the Supreme Court held in Heller v. District of Columbia that the Second Amendment right to keep and bear arms is a personal right unrelated to service in the militia. Whether the Second Amendment right is incorporated by the Fourteenth Amendment is the big issue that will sooner or later come before the Court. My book contains a thorough discussion of this issue and concludes that the Fourteenth Amendment does not incorporate the Second Amendment right. However, it is another question whether there are some gun-rights that are within the substantive aspects of the due process clauses by their own force. That is, it is at least fairly arguable that the due proces clauses by their own force prohibit some but not all infringements of the Second Amendment right.
My book discusses religious freedom and church-state relations. I expect that a fair number of those who (like me) reject any positive religion (e.g., Christianity, Judaism, Islam) will strongly disapprove some of my conclusions on constitutional issues pertaining to religion. All I ask is that my book be given a fair reading on these and other matters.
I now hope that I may contribute from time to time to the Secular Outpost in defense of commonsensible naturalism.
Arnold T. Guminski _____________________________________________________________________________________
[n. 1] Section 1 of the Fourteenth Amendment reads: “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 in which 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 shall any State deny to any person within its jurisdiction the equal protection of the laws.”