Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government
by Kimberly C. Shankman and Roger Pilon

Shortly after the Civil War, the American people amended the Constitution in an effort to better protect individuals against state violations of their rights. Under the Privileges or Immunities Clause of the new Fourteenth Amendment, constitutional guarantees against the federal government could be raised for the first time against state governments as well. Although targeted initially against the "black codes" that were emerging in the postwar South, the amendment was written broadly to protect all Americans.

But 125 years ago, in 1873, in the infamous Slaughterhouse Cases, a deeply divided Supreme Court effectively eviscerated the Privileges or Immunities Clause. Since then courts have tried to do under the Due Process and Equal Protection Clauses of the amendment what should have been done under the more substantive Privileges or Immunities Clause. The result has been an erratic and often groundless Fourteenth Amendment jurisprudence that has pleased neither liberals nor conservatives, yet both oppose reviving the clause. Liberals tend to favor the latitude judges now have. Conservatives fear revival will lead to still more "judicial activism."

Both sides are wrong. Conservative "originalists" cannot ignore the plain language and history of the Privileges or Immunities Clause. Liberals need to appreciate that a properly read and applied clause will better protect individual rights. In the current federalism debate, both sides should understand that power will be devolved to the states and the people in a principled way only if the principles inherent in the Privileges or Immunities Clause are revived--along with the clause itself.

Constitutional law scholars at the Cato Institute are today filing an Amicus Curiae brief for the United States Supreme Court's consideration in Lawrence v. The State of Texas, to be argued later this term.

The Lawrence case raises the question whether Texas's Homosexual Conduct Law -- which criminalizes consensual same-sex sodomy, even when conducted in the privacy of one's home -- violates the 14th Amendment of the Constitution. Cato's brief, drafted by William Eskridge, John A. Garver Professor of Law at the Yale Law School, argues that the Texas statute violates the three main provisions of section 1 of the amendment: the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause.

"By singling out only homosexual sodomy," said Roger Pilon, Cato's vice president for legal affairs, "the Texas law is in clear violation of the Equal Protection Clause. But our brief goes further in asking the Court to overturn Bowers v. Hardwick, the 1986 decision that upheld, under the Due Process Clause, a Georgia statute that criminalized homosexual conduct. That decision is flatly inconsistent with the Court's due process decision a decade later in Romer v. Evans."

As an alternative, Cato's brief also asks the Court to revisit the long-ignored Privileges or Immunities Clause, which was meant by the framers of the 14th Amendment to be the principal safeguard for liberty against state actions. "The time has come," said Pilon, "to revive the first principles of the 14th Amendment."

Ah, but to say that is to run smack into what has become a familiar taunt: "How does my committed gay relationship threaten your marriage? Puh-leez! I defy you to produce a shred of evidence that marriage for gays will harm anybody else."

Well, here's a shred of evidence: The Boston Globe reports that in the three years since Vermont extended near-marriage status to same-sex civil unions, nearly 5,700 gay and lesbian couples have registered their relationship. Of those couples, close to 40 percent, or more than 2,000, include at least one partner who used to be married.

Just a shred - but a jarring one. Of course, it doesn't mean that Vermont's civil union law broke up 2,000 straight couples. It does mean that where there used to be 2,000 traditional marriages, there are now 2,000 ruptured ones - and 2,000 gay or lesbian unions in their place. Were some of those marriages doomed from the outset? Probably. But it's also probable that some of them weren't. In another time or another state, some of those marriages might have worked out. The old stigmas, the universal standards that were so important to family stability, might have given them a fighting chance. Without them, they were left exposed and vulnerable.

Most of those party activists the candidates are trying so hard to please are wildly out of touch not only with middle America but with the Democratic rank and file. The great myth of the campaign is the misguided notion that the hopes and dreams of party activists and single-issue groups represent the heart and soul of the Democratic Party. They don't.

The fact is, "the Democratic wing of the Democratic Party," as former Vermont Gov. Howard Dean likes to call it, is an aberration, a modern-day version of the old McGovern wing of the party, defined principally by weakness abroad and elitist interest-group liberalism at home. That wing lost the party 49 states in two elections and turned a powerful national organization into a much weaker, regional one.

To visit Jamestown is to be reminded that the founders of our nation inherited a great deal of baggage from the past, baggage that has only gradually been left by the wayside. Not only did the persecution of homosexuals in America begin in Jamestown, almost two centuries before independence, but so did the enslavement of blacks. The colonists' break with England was the first conscious step toward creating in the New World a world that was truly new. American history has been a continuing revolution, of which 1776 was only one chapter — as Jefferson himself famously predicted.

"I don't know if it's necessary yet. Let's let the lawyers look at the full ramifications of the recent Supreme Court hearing. What I do support is a notion that marriage is between a man and a woman."

With more than two million jobs having disappeared since Mr. Bush took office in January 2001, he finds himself in danger of becoming the first president since Hoover to oversee a decline in the country's employment. Economists disagree on how much blame, if any, Mr. Bush deserves for the long slump, but even White House aides view the economy as one of the only big threats to his re-election campaign.

... And Human Rights For All?
Arianna Huffington

With Saddam's weapons of mass destruction nowhere to be found, the president's Iraq talking points now center on the humanitarian upside of having ousted the Butcher of Baghdad. His speeches are liberally peppered with mentions of "mass graves," "torture chambers," and encomiums to "freeing the people of Iraq from the clutches of Saddam Hussein." He's all but doused himself in the sweet-smelling scent of human rights and put on an Amnesty International t-shirt.

But, OK, let's say we take the president at face value and buy his new argument that ending humanitarian crises through military force is good foreign policy. Then how can he justify embarking on his first trip to sub-Saharan Africa next week without including on his itinerary Congo and Liberia?

His five-day visit will include stops in Senegal, Botswana, Uganda, Nigeria, and South Africa -- but not the absurdly named Democratic Republic of Congo, site of what one African expert has labeled "the worst humanitarian situation on the entire face of the earth."

You'd think a president willing to send 200,000 U.S. troops to Iraq because of Saddam's mass graves might want to check out firsthand the 20 mass graves recently unearthed in the Congo, freshly filled with close to 1,000 victims of genocidal massacres. There's your causus belli right there -- that is, if there is any substance to this new Bush doctrine that evil dictators who abuse their own people must be deposed, by force if necessary, even if they pose no imminent threat to the United States.

But I guess the 3.3 million people who have died in the Congo since 1998 -- to say nothing of the horror stories of macheted infants, incinerated villages, and soldiers mutilating and even cannibalizing their victims -- are not enough to justify a second muscular application of the Bush human rights doctrine. They aren't even enough to motivate the president to squeeze a Congo stopover into his African schedule and bring some much-needed international attention to this massive humanitarian crisis. I'm not talking about making nice with dictators; I'm talking about using the power of his office to help stop the bloodshed.

He also won't be going to war-torn Liberia, a nation of 3 million with historical ties to America, where 200,000 people have been killed, a million more displaced, disease is running rampant, and beleaguered citizens are pleading with the United States to intervene.

After 700 people were massacred in a rebel attack on the capital city of Monrovia two weeks ago, African leaders called on President Bush to send in 2,000 U.S. troops as part of an international peace keeping force. Both the Pentagon and the State Department are in favor of such a move, but the White House has so far declined to expand its adventures in dictator-eradication to Africa.

Of course, that hasn't stopped the president from paying lip service to alleviating the suffering going on there. Just last week he said: "We are determined to help the people of Liberia find the path to peace." But, apparently, not determined enough to go to the country himself to facilitate a ceasefire agreement between the warring factions.

Instead, he's dispatched 35 -- that's not a typo, "thirty-five" -- U.S. troops to the country, as he put it, "solely for the purpose of protecting American citizens and property." Wow, I bet Liberian President Charles Taylor is quaking in his jackboots. Taylor, whose murderous regime could teach Saddam a thing or two about torture and mass murder, was last month indicted for war crimes by a U.N. court.

While trying to drum up outrage at Saddam earlier this year, the president catalogued a list of his atrocities, including mutilation and rape, and proclaimed: "If this is not evil, then evil has no meaning." But the president's fly-over of Africa's hearts of darkness, riven by mutilation and rape, shows that it's his humanitarian rhetoric that has no meaning. Here is true evil, but next week will instead be dominated by a series of photo-ops with smiling children and platitudes about the virtues of democracy.

If more proof of the hypocritical selectivity of Bush's moral outrage were needed, look no further than the run-up to the invasion of Iraq, when, in the name of liberating the Iraqi people, the White House gladly linked arms with a host of countries its own State Department had castigated for significant human rights violations -- including Uzbekistan, Colombia, Georgia, Eritrea, Macedonia, Rwanda, Uganda, Ethiopia, Azerbaijan, and the Dominican Republic. Given these countries' dismal human rights record, maybe we should have called them the Coalition of the Willing to Torture, Execute, and Rape.

The suddenly fashionable humanitarian justification for the war in Iraq is nothing more than yet another White House deception designed to cloak the fact that the original justification -- Iraq as an imminent threat -- hasn't panned out.

Which is just too darn bad for the long-suffering souls of Congo and Liberia.

President Bush yesterday delivered a colloquial taunt to militants who have been attacking U.S. troops in Iraq, saying "bring 'em on" and asserting that the forces in Iraq are "plenty tough" to deal with the threat.

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At least 64 Americans have been killed -- 26 from hostile fire -- since Bush declared the bulk of fighting over two months ago.

"There are some who feel that the conditions are such that they can attack us there," Bush said. Extending his right hand for emphasis, he added: "My answer is: Bring 'em on. We've got the force necessary to deal with the security situation." He promised to "deal with them harshly" if attacks continue.

These [miscegenation] statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival...To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

There is a solution that ought to satisfy both camps and may not be a bad idea even apart from the gay-marriage controversy.

That solution is to end the institution of marriage. Or rather (he hastens to clarify, Dear) the solution is to end the institution of government-sanctioned marriage. Or, framed to appeal to conservatives: End the government monopoly on marriage. Wait, I've got it: Privatize marriage. These slogans all mean the same thing. Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want. Let each organization decide for itself what kinds of couples it wants to offer marriage to. Let couples celebrate their union in any way they choose and consider themselves married whenever they want. Let others be free to consider them not married, under rules these others may prefer. And, yes, if three people want to get married, or one person wants to marry herself, and someone else wants to conduct a ceremony and declare them married, let 'em. If you and your government aren't implicated, what do you care?

The Constitution was not meant to address every societal ill or problem, and there is certainly nothing in the text of the Constitution that prohibits states from outlawing sodomy. As such, it doesn't really matter whether homosexuals were "born that way" or not. The question is whether there is anything in the Constitution that prohibits the states from regulating sodomy; and there clearly isn't.

The Bush administration suspended all American military assistance to 35 countries today because they refused to pledge to give American citizens immunity before the International Criminal Court.

Many of the countries affected, like Colombia and Ecuador, are considered critical to the administration's efforts to bring stability to the Western Hemisphere. Others, like Croatia, are preparing to join NATO and were counting on American help to modernize their armed forces.

Officials said that in all, $47.6 million in aid and $613,000 in military education programs would be lost to the 35 countries.

"U.S. ambassadors have been acting like schoolyard bullies," said Richard Dicker, director of the International Justice program at Human Rights Watch. "The U.S. campaign has not succeeded in undermining global support for the court. But it has succeeded in making the U.S. government look foolish and mean-spirited."

Hundreds of cheering Liberians raced through the dark, steamy streets of the capital, driven to the U.S. Embassy by a faint glimmer of hope that -- just maybe -- the Americans would soon bring their suffering to an end.

''George Bush, USA!'' the chants rang out. ''Eh Bush! We like you, oh Bush! That's a fact.''

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''If we serve the same God, we are begging him to melt your hearts of stone and come to our rescue,'' she said.

''Please someone listen to the cry of the Liberians. We are human beings looking for peace and happiness -- just like you.''

Q You have the British, the French, U.N. diplomats on both sides in the Liberian conflict asking for the U.S. to lead a peacekeeping force. Is the President seriously considering that? And what are the issues on the table as he makes the decision?

MR. FLEISCHER: Well, the United States is actively discussing what the next steps should be to help the parties to meet their obligations to cooperate with the joint verification team that is in place to ensure that the cease-fire holds. A cease-fire has been agreed to with the help of the United States as party to those talks, and we are actively discussing and reviewing what next steps may or many not be.

Q Are troops a serious option, and will the West Africans get an answer that they want to get by Monday?

MR. FLEISCHER: Well, the United States is working with regional governments to support the negotiations and to map out a secure transition to elections which have been called for in Liberia. The President is determined to help the people of Liberia to find a path to peace. The exact steps that could be taken are still under review.

Q So you aren't ruling out that U.S. troops might go to Liberia?

MR. FLEISCHER: I'm not ruling it out.

"It does basically make you look fat and naked, but you see all this stuff," [Transportation Security Administration official Susan] Hallowell said.

Only six days following my remarks, Bush made the following statement to a group of Iraqi Americans in Dearborn, Michigan: “I have confidence in the future of a free Iraq. The Iraqi people are fully capable of self-government.” He also told them that “You are living proof the Iraqi people love freedom and living proof the Iraqi people can flourish in democracy. People who live in Iraq deserve the same freedom that you and I enjoy here in America.”

Contrast that vision with a recent classified report by the State Department’s Bureau of Intelligence and Research titled “Iraq, the Middle East and Change: No Dominoes,” which was leaked in March 2003 to the Los Angeles Times. As reported by that newspaper, the document stated that “liberal democracy would be difficult to achieve [in Iraq] . . . . Electoral democracy, were it to emerge, could well be subject to exploitation by anti-American elements.” And according to an anonymous intelligence source interviewed by the newspaper, the thrust of the report argued that “this idea that you’re going to transform the Middle East and fundamentally alter its trajectory is not credible.”

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Can anyone imagine a State Department more out of sync with Bush’s views and objectives? The president should demand a complete overhaul of the State Department so it is capable of executing his policy goals effectively and of redefining peace on his own terms. To this end, Bush should call for the equivalent of a Goldwater-Nichols Department of Defense Reorganization Act (which in 1986 mandated a comprehensive reform of the U.S. Department of Defense) applicable to the State Department.

Keith E. Stanovich, of the University of Toronto, argues that closed-mindedness is one leading indicator of stupidity. The phenomenon isn't picked up on standardized tests, but a substantial subset of the population turns out to be unable to accurately evaluate arguments that go against their deeply held beliefs. It's not just that they disagree: They can't follow the arguments. Smart people apparently use their big brains to fend off what they don't want to know.

Seven in 10 people in a poll say the Bush administration implied that Iraq and its leader Saddam Hussein were involved in the Sept. 11 attacks against the United States.

And a majority, 52 percent, say they believe the United States has found clear evidence in Iraq that Saddam was working closely with the al-Qaida terrorist organization.

Please select what you think is the best description of the relationship between the Iraqi government under Saddam Hussein and the terrorist group al-Qaeda. [order randomized]

There was no connection at all........................7%

A few al-Qaeda individuals visited Iraq
or had contact with Iraqi officials .................26

Iraq gave substantial support to
al-Qaeda, but was not involved in
the September 11th attacks.............................36

Iraq was directly involved in carrying
out the September 11th attacks. .....................25

(No answer).....................................................6

Is it your impression that the US has or has not found clear evidence in Iraq that Saddam Hussein was working closely with the Al Qaeda terrorist organization?

US has ...........................................................52%

US has not .....................................................43

(No answer).....................................................5

There is some discussion of whether, in some cases, the US should be willing to take military action--risking the lives of US troops--to stop a government from conducting large-scale violations of the human rights of its people, when that government is not threatening US security. Which of the following comes closest to your position?

The US should be willing, whether or
not it has broad international approval..........23%

The US should be willing, but
only with broad international approval .........52

The US should not be willing .......................18

(No answer).....................................................7

Key to transforming the State Department’s culture is the adoption of the right vision—President Bush’s vision.

With the start of his reelection campaign in the past two weeks, President Bush has revived his pastime of blaming his predecessor, Bill Clinton, for the economic recession.

"Two-and-a-half years ago, we inherited an economy in recession," he told donors at a Bush-Cheney '04 reception yesterday in Miami. He has raised the same accusation in fundraising appearances since mid-June in Washington, Georgia, New York, Los Angeles and San Francisco.

It's a good applause line for a crowd of red-meat political supporters. The trouble is it's a case of what the president has called, in another context, revisionist history. The recession officially began in March of 2001 -- two months after Bush was sworn in -- according to the universally acknowledged arbiter of such things, the National Bureau of Economic Research. And the president, at other times, has said so himself.

The United States resisted on Monday making any firm commitment to lead a peacekeeping mission to Liberia but said it was considering what it could do to help bring an end to the fighting.

''We are looking at a variety of options and plans and we will discuss it in greater detail tomorrow, but no decisions have been made yet,'' U.S. Secretary of State Colin Powell said in an interview.

Appearing on the PBS program ''NewsHour with Jim Lehrer,'' Powell said the Bush administration was deeply concerned about the situation in Liberia and that U.S. national security officials had met on the subject over the weekend.

U.S. Defense Secretary Donald Rumsfeld said the United States was ''looking at a range of options'' in Liberia.

Asked about U.S. participation in a multinational force, Rumsfeld he told a Pentagon briefing: ''That's a call the president (George W. Bush) would make, if and when he decided to make such a call. And he has not.''

Most Americans still say things are going at least fairly well in Iraq, but the number who think things are going badly has tripled since early May, a new poll says. Just over half, 56 percent, say things are going well, according to a CNN-USA Today-Gallup poll, and 42 percent say badly...The number that expects the United States to find weapons of mass destruction, however, has dropped from 84 percent in late March to 53 percent now. Almost four in 10 say they believe the Bush administration deliberately misled the public about whether Iraq had weapons of mass destruction, while six in 10 say they do not believe that.

By dwelling on, and often falsely reporting, Gore's so-called exaggerations, the press became the Bush campaign's best ally and helped drive down Gore's poll numbers, particularly when voters were asked which candidate was more trustworthy. As veteran political analyst Charlie Cook noted last year in a National Journal column, it was Gore's "exaggerations that cost him his post-Democratic convention lead."

But Bush's current-day exaggerations about Iraq's nuclear weapons program, Saddam's fictional alliance with al-Qaida, or the reasons for flying in a jet fighter to a photo-op on the USS Lincoln? Or the deceptive White House spin on Bush's radical tax policy? Much of the press gives him a pass. Chattering cable pundits have no interest in chewing up TV time to examine what's behind Bush's conflicts with truth and reality, or what those say about Bush the man and how he's leading the country. In just two and a half years, the Beltway press has come to the hasty conclusion that presidential exaggerations are no longer considered deal breakers.

North Korea has enough plutonium to make six to 10 nuclear weapons and could test such a weapon by the end of the year, a former US negotiator with the Stalinist state said in an interview published Sunday. "To the best of my knowledge, based on very well-informed Washington sources, North Korea's nuclear program is moving ahead very quickly," Kenneth Quinones was quoted as saying by the Daily Yomiuri.

"Basically, this means North Korea's reprocessing (of plutonium from spent nuclear fuel) is almost finished, or has finished. This means North Korea now has enough plutonium to make six to 10 nuclear weapons," he said. "If North Korea wants to use their nuclear weapon as negotiating leverage, they must test it," said Quinones, who is now the Korean affairs director at the Washington-based private think-tank, International Center.

"The more I talked to my friends, the more I realized that it is possible for North Korea to have a nuclear weapon by December. It is possible they'll have a test by December. There is nothing to stop North Korea from doing this." He said it took about six months to reprocess plutonium from spent nuclear fuel and then about six months to make a nuclear bomb, according to the daily.

Along with the formidable array of rockets, missiles and land mines deployed at the demilitarized zone between the Koreas, a secret weapon is being unleashed this summer that foes of communist North Korea hope will be even more devastating than any conventional ordnance.

Balloons.

These are no ordinary party favors, but durable, vinyl balloons designed to carry brochures, money and, most important, tiny transistor radios that can broadcast news of the outside world.

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Sometime in the next few weeks, wind conditions permitting, a group of activists plans to launch a fleet of several thousand across the 2 1/2-mile-wide DMZ with the hope that they can change North Korea from within.

Chosun Journal: Informing, provoking, mobilizing consciences for human rights in North Korea

The Bush administration has been taking heavy flak for its as yet unproved claims about Saddam Hussein's weapons of mass destruction. In fixing blame for the way the public appears to have been sold a bill of goods, don't overlook the part played by the media. Instead of closely questioning the administration's case, the nation's newspaper editorialists basically nodded in agreement.

Powell did cite more apparently solid evidence, such as satellite photos of weapons sites and recordings of intercepted conversations. Viewers, however, had to depend on Powell "to capture and explain" what the indistinct photos meant. The troubling manner in which Powell embroidered one of the two intercepted conversations raises the question of whether similar spin figured in his interpretation of the photos.

Here is the relevant portion of the State Department's translation of a Jan. 30 conversation between Iraqi Republican Guard headquarters and an officer in the field:

Headquarters: They are inspecting the ammunition you have --

Field: Yes . . .

HQ: -- for the possibility there is, by chance, forbidden ammo.

Field: Yes.

HQ: And we sent you a message to inspect the scrap areas and the abandoned areas.

Field: Yes.

HQ: After you have carried out what is contained in the message, destroy the message.

Field: Yes.

HQ: Because I don't want anyone to see this message.

Field: O.K., O.K.

In recounting this exchange, Powell changed it significantly. In Powell's version, the order from headquarters to "inspect" for ammunition became an order to "clean out all of the areas, the scrap areas, the abandoned areas." Powell also claimed that headquarters told the field officer, "Make sure there is nothing there." This instruction appears nowhere in the transcript.

When I asked the State Department's press and public affairs offices to explain the discrepancy between its transcript and Powell's retelling, they referred me to the department's Web site. The material there simply confirmed that Powell had misrepresented the intercept.

President Bush will travel to the continent next month. Among his stops will be Uganda, across the border from Ituri, where Ugandan troops once patrolled and supplied arms to combatants. Bush's trip will look nice. Last Thursday, in a speech to the Corporate Council on Africa, Bush outlined a broad-brush agenda on Africa, including an end to Congo's war. "To encourage progress across all of Africa, we must build peace at the heart of Africa," he said.

But don't count on the White House to support a beefing up of the U.N.'s role in Congo. And don't expect Washington to do anything aggressive to stop the killing. That is not Washington's way -- at least when it comes to Africa.

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It is not a matter of asking why can't the Africans solve their own problems. It is, instead, a matter of asking: If the United States can help Kosovo Albanians, Iraqis, Bosnians, Israelis and Palestinians trying to settle their conflicts, why can't it help Africans? Many may be forgiven for believing it is about race and the lesser value that the United States places on African lives.