Arnold T Guminski
Arnold T. Guminski was born in Buffalo, New York on January 13, 1932, the grandson of Polish immigrants. He graduated from the University of Buffalo in 1952 with a B.A. degree, having co-majored in history and philosophy. He graduated in 1956 from the University of California at Los Angeles with a juris doctorate degree, and was admitted to the California State Bar in January, 1957. Guminski was on active duty for six years (first as an enlisted man and then a commissioned officer) in the United States Army from 1957 to 1953, serving the last three years with the Judge Advocate General’s Corp in France. From 1963 to 1993 he was a deputy district attorney for Los Angeles County, California. He was assigned to the appellate division for the last twenty years of this service. During this period he argued many cases before the California Supreme Court and other State appellate courts, the United States Court of Appeals for the Ninth Circuit, and twice before the United States Supreme Court. After his retirement in January, 1993, Guminski and Annegret, his wife, moved to Boulder, Colorado, where they have since resided. Guminski is an independent scholar. Besides constitutional-rights theory and church-state issues, he is very interested in philosophy of ethics and religion—having written extensively about the kalam cosmological argument. He has authored two books: The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted], (Bloomington IN, 2009) and Religious Freedom: Did Vatican II Contradict Traditional Catholic Doctrine -- A Debate (with Brian W. Harrison, O.S.) (South Bend IN: St. Augustine’s Press, 2013). He has also authored several peer-reviewed essays for the Secular Web (see http://infidels.org/library/modern/Arnold_guminski) and academia.edu (see https://independent.academia.edu/ArnoldGuminski), as well as for the journals Faith and Reason, Philo: A Journal of Philosophy, Philosophia Christi, and the Whittier Law Review. The Guminski’s enjoy traveling at home and abroad. They heartily engage in social dancing of various kinds – including Greek and other international folk dancing, as well as ballroom (e.g., waltz, polka, swing) and contra dancing.
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Papers by Arnold T Guminski
This electronic version, originally published on the Secular Web (Internet Infidels, Inc.) on April 30, 2016, replaces the version that hitherto (i.e., prior to MY 17, 2017) was available on the Academia.edu site. It has, however, been modified by having been paginated and by having changed the endnotes to footnotes.
This essay argues that the scope and limits of the Church’s inherent coercive power, according to both pre and post-conciliar Church doctrine, does not extend to the imposition or use of temporal penalties typical of civil authorities only.
The publication of Appendix A as a separate document is with the kind permission of St. Augustine’s Press.
The paragraphs in Appendix A as well as the other five essays in Religious Freedom are numbered as are their respective notes. Citations to “CH” and “WD” are, respectively, to the first essay (pp. 5-44) by Mr. Guminski and the second (pp. 45-88) by Fr. Harrison. For example, “CH, n1” is a citation to note 1 of essay CH; and “WD, #13” is a citation to paragraph 13 of essay WD. The abbreviation “RLC” stands for the book, Religious Liberty and Contraception (1988) by Fr. Harrison. The abbreviation “DH” stands for the declaration Dignitatis Humanae by Vatican Council II. “AS” stands for Acta Synodalia.
I call the reader's attention to two related essays accessible on this website independent.academia.edu/ArnoldGuminski): ""An Examination of Thomas Pink's Theory of the Doctrine Concerning Religious Freedom in Dignitatis Humanae," and, "Further Reflections about Thomas Pink's Theory of the Meaning of Dignitatis Humanae""..
15 May 2020
____________________________________________________________________________________
[This article published in the journal Philosophia Christi 10 (2008) 377-91 has been uploaded to the independent.academia.edu/ArnoldGuminski/Papers with the permission of the editors of that journal. ]
The theory of federal constitutional rights expounded in my article were further developed, although somewhat modified, in my book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (iUniverse, 2009).
Section 1 of the Fourteenth Amendment provides: “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 to deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court correctly held that the Fourteenth Amendment incorporates (i.e., fully applies the same pertinent limitations on the United States to the States) the First Amendment freedoms of religion, speech, press, and assembly. However, in my opinion, the Court egregiously errs in holding that the Due Process Clause, rather than the Privileges or Immunities Clause of the Fourteenth Amendment, is the vehicle of incorporation of any First Amendment right.
The article systematically expounds and defends a disjunctive theory of the selective incorporation of some rights specified in the Bill of Rights and some other constitutional rights of the American People. The theory is disjunctive because, first, it assigns to the Privileges or Immunities Clause the function of having incorporated, besides the First Amendment freedoms (but no other right specified in the Bill of Rights), other constitutional freedoms (i.e., privileges, advantages) and the freedom-from rights (immunities) of the American people which are implicitly grounded on the Constitution of our federal republic. Thus, for example, the freedom of travel and migration throughout the United States is a constitutional privilege of the American people. Thus, also for example, freedom from governmental or governmentally required discrimination based upon an inferior or degraded status grounded upon a caste-basis, such as race or ethnicity, the badges and incidents of which are incompatible with the dignity of American citizenship. Second, the theory is disjunctive because it takes an appropriate account of the co-presence of a due process clause in both the Bill of Rights and the Fourteenth Amendment, but deems them equivalent in meaning and arguably including among their components some rights specified in the Bill of Rights (e.g., exemption from cruel and unusual punishments). So the Privileges or Immunities Clause may not be properly construed as having incorporated all the rights specified in the Bill of Rights; and both due process clauses are to be understood as having the same meaning. Thus whatever particular constitutional rights that are rightly deemed to be components of one due process clause must be deemed to be components of the other clause.
Uploading my article was in large measure due to my having read the on-line book review “Citizenship Has Its Privileges” (October 6, 2014) by Professor David Upham (Politics Department, University of Dallas) (http://libertylawsite.org/book-review/citizenship-has-its-privileges). In this piece, Professor Upham reviewed The Fourteenth Amendment and the Privileges and Immunities Clause (Cambridge U. Press, 2014) by Professor Kurt T. Lash. This book advocates inter alia the theory that the Privileges or Immunities Clause of the Fourteenth Amendment (adopted 1868) incorporates “the substantive rights of the first eight amendment (among others)” (http://www.libertylawsite.org/2014/10/08/the-fourteenth-amendment-original-meaning-originalism-and-how-to-approach-the-historical-record-a-response-to-david-upham/).
Prof. Upham remarks in his review that Prof. Lash, “[i]n seeking [the] original meaning [of the Privileges or Immunities Clause] …. also calls scholarly attention to the analogous provisions of the various territorial treaties (e.g., the Louisiana [Purchase] Treaty [of 1803 with France] wherein the United States had pledged to admit the inhabitants [of the ceded territory] to the rights and immunities [actually, “all the rights, advantages, and immunities”] “of citizens of the United States.” Upham’s accompanying note to this passage reads: “As Lash notes, Akhil Amar gave some attention to the treaties. But primary credit for introducing these treaties to the Fourteenth-Amendment literature belongs to Arnold T. Guminski (a now-retired California prosecutor), who discussed these treaties extensively in a rarely-cited 1985 article, which he has since adapted in an interesting self-published book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (2009).”
In a more recent essay, "The Meaning of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War" (9 Notre Dame Law Review 1117-1166), Professor Upham similarly pointed out (ibid., 1124 note 43): "For the earliest scholarly notice of the relevance of these treaties [i.e., with France (1803), Spain (1819), Mexico (1848)] to the [meaning of the Privileges or Immunities Clause of the] Fourteenth Amendment, see Arnold T. Guminski, [citation to my 1985 article omitted]."
I am very grateful to Professor Upham for his having given me “primary credit for introducing these treaties to the Fourteenth-Amendment literature.” However, my article does more than acquaint the reader with what I contend is the true ancestral line of the Privileges or Immunities Clause. The article systematically expounds and defends a disjunctive theory of the selective incorporation of some rights specified in the Bill of Rights and some other constitutional rights of the American People. The theory is disjunctive because, first it assigns the Privileges or Immunities Clause the function of having incorporated, besides the First Amendment freedoms, other constitutional freedoms (i.e., privileges, advantages) and the freedom-from rights (immunities) of the American people which are implicitly grounded on the Constitution of our federal republic. Thus, for example, the freedom of travel and migration throughout the United States is a constitutional privilege of the American people. Thus, also for example, freedom from governmental or governmentally required discrimination based upon an inferior or degraded status grounded upon a caste-basis, such as race or ethnicity, the badges and incidents of which are incompatible with the dignity of American citizenship. The theory is disjunctive, second, because it takes an appropriate account of the co-presence of a due process clause in both the Bill of Rights and the Fourteenth Amendment, but deems them equivalent in meaning and arguably including among their components some rights specified in the Bill of Rights (e.g, exemption from cruel and unusual punishments). So the Privileges or Immunities Clause may not be properly construed as having incorporated all the rights specified in the Bill of Rights; and both due process clauses are to be understood as having the same meaning. Thus whatever particular constitutional rights that are rightly deemed to be components of one due process clause must be deemed to be components of the other clause. Although theory of my 1985 article has been expanded and in some respects modified in my 2009 book, I believe it continues to have considerable value even at this time. In any event, I fervently urge the reader to read both my article and book.
In my book, I argue that granted the holding in District of Columbia v. Heller, 554 U.S. 570 (2008) that the Second Amendment right to keep and bear arms is an individual right (and not limited to militia members), nevertheless it should not be deemed a fundamental right incorporated by the Fourteenth Amendment, whether via its Privileges or Immunities Clause or its Due Process Clause. However, the Court subsequently ruled that the Second Amendment right to keep and bear arms is indeed incorporated by the Fourteenth Amendment in a five-to-four decision in McDonald v. City of Chicago, 561U.S. 742 (2010). Interestingly enough, eight justices agree that the Second Amendment right is not incorporated by the Privileges or Immunities Clause --- only Justice Thomas holds that view. Four justices (i.e., Roberts, Scalia, Kennedy, Alito) maintained that the incorporation is via the Due Process Clause of the Fourteenth Amendment — of course, the four dissenting justices were of the contrary opinion. Unfortunately, all the justices except Justice Thomas egregiously erred in McDonald in failing to recognize that the Privileges or Immunities Clause is the vehicle of incorporation of the freedoms of the First Amendment. This failure by the Court accounts in large measure for its grossly inflating the Due Process Clause of the Fourteenth Amendment—although I agree that both the Fifth and Fourteenth Amendment Due Process Clauses nevertheless have important substantive aspects.
Arnold T. Guminski
July 1, 2017
Corrigenda Note (July 26, 2015: A. Replace <<that>> with <<than>> in the second sentence of #20; B. Delete the second <<that>> that appears in #29 following the citation to note 40; C. Replace the second sentence in #30 with <<This general objection rests upon his rejection of the applicability to real infinite sets via the SV of the principle of correspondence, which "asserts that if [and only if] a one-to-one correspondence between the elements of two sets can be established, the sets are [numerically] equivalent [i.e., have the same cardinality].”43>>; D. Change note 43 by adding << (bracketed matter added to correctly state Craig’s actual position),>> after the citation <<Ibid., pp. 94-95>>. E. Delete the second sentence beginning with <<Craig>>. [08-29-16: F. Change title (it.) <<Scientific Thought" in note 7 to (it.))<<The Mind and its Place in Nature>>.
Books by Arnold T Guminski
In this spirited exchange of essays on a topic central to our understanding of justice and human rights, Arnold Guminski and Fr. Brian Harrison debate this difficult question. Guminski argues that DH teaches that there is (and always has been) a natural right not to be prevented from publicly propagating or manifesting non-Catholic religions, subject to the exigencies of a just public order, which is to be understood as not presupposing the truth of natural or any positive religion (including Catholicism), or any supernatural considerations. Harrison disagrees. In his view, DH nowhere teaches that it is always and everywhere unjust for civil authorities to presuppose the truth of Roman Catholicism in determining what restrictions a just public order allows. According to Harrison, the central innovative feature of DH is its clearly implied prudential policy judgment, or norm of ecclesiastical public law, to the effect that in the modern world - so very different from the old Christendom - repression of the public propagation or manifestation of non-Catholic religions as such can no longer be justified by the requirements of the common good. Harrison argues that precisely because this undeniable reversal of the Church's previous position belongs in the category of changeable prudential judgments, it does not constitute a doctrinal rupture with Catholic tradition. Guminski, on the other hand, contends that the doctrine of DH, properly understood, is inconsistent with relevant preconciliar doctrine. The latter, in his view, was never proposed definitively - i.e., infallibly.
Both authors agree to a comprehensive theory of the nature and scope of the Church's inherent coercive power as it pertains to liberty in religious matters. They agree that this power is limited to the imposition of spiritual penalties and temporal penalties, and that the Church's inherent coercive power nevertheless must be exercised within the limits of a just public order.
CORRIGENDA FOR RELIGIOUS FREEDOM [ETC.]
p. 37: insert ‘not’ before ‘remaining’ in the 4th last line of the first paragraph of note 89
p. 72: change the number of the first full paragraph on this page from ‘48’ to ‘49’ and the number of the succeeding paragraph from ‘49’ to ‘50’
p. 102: delete the citation 'Franz Xavier Wernz, S.J., Jus Decretalium (Rome, 1905), I: 385n58 ("plane improbabilis" [i.e., manifestly improbable]);' in the second sentence of note 21. [This citation is withdrawn as having been improvidently included in note 21 (15 Sep. 2015).]
p. 108: insert ‘formerly’ before ‘prefect’ on the 5th line of note 32
p. 108: insert ‘ut in pluribus’ [in italics] before ‘[in most cases]’ in the 5th last line of note 32
p. 122: change ‘#2285’ to ‘2286’ in the 1st line of note 54
p. 184: change ‘#50’ to ‘#49’ in note 98
p. 225: change 'CH, n10' on the first line of note 1 to 'CH, #10'
p. 226: change 'CH, n90' on the sixth line of note 3 to 'CH, n89'
p. 229: change 'not typical' on the penultimate line of note 10 to 'typical'
p. 236: change ' ? ' on the third last line of #12 to ‘.≡.'
p. 247: make changes in the first full of paragraph #20(e) following the quoted matter from DH to conform with the version of Appendix A "The Scope and Limits of the Church's Inherent Coercive Power" the is currently uploaded as an independent document at https://independent.academia.edu/ArnoldGuminski.
p. 247: delete footnote number '40' after 'church.”' on the fourth line of #21
p. 247: replace 'DH #11 is devoted to an exposition of several texts in the New Testament bearing on the freedom of the act of faith.' in note 40 with 'See AS, vol. IV/pt. 6, 714-16 for notes 12 and 13 of the Textus denuo recognitus;
and see AS, vol. IV, pt. 7, 671-2 for notes 8 and 9 in the Textus approbatus.'
p. 252: change the comma after 'Fr' on the first line of note 49 to a period.
p. 254: note 51: change 'note 47' to 'note 48'
p. 280, first two lines: delete ' Wernz, S.J., Franz Xavier. Jus Decretalium (Rome, 1905), I: FR, n. 21'
My article, “The Rights, Privileges, and Immunities of the American People: A Disjunctive Theory of Selective Incorporation of the Bill of Rights,” was originally published in 7 Whittier Law Review (1985) 765-826. The theory of federal constitutional rights expounded in this article were further developed, although somewhat modified, in my book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (iUniverse, 2009). What follows is in the nature of an introduction. .
I am grateful to the editors of the Whittier Law Review for having kindly permitted me to upload my article to the Academia.edu website (https://www.academia.edu/8971056/The_Rights_Privileges_and_Immunities_of_the_American_People_A_Disjunctive_Theory_of_the_Selective_Incorporation_of_the_Bill_of_Rights. (The text of this article has already been available on-line at (http://heinonline.org/HOL/LandingPage?handle=hein.journals/whitlr7&div=43&id=&page=).
My doing so was in large measure due to my having read the on-line book review “Citizenship Has Its Privileges” (October 6, 2014) by Professor David Upham (Politics Department, University of Dallas) (http://libertylawsite.org/book-review/citizenship-has-its-privileges). In this piece, Professor Upham reviewed The Fourteenth Amendment and the Privileges and Immunities Clause (Cambridge U. Press, 2014) by Professor Kurt T. Lash. This book advocates inter alia the theory that the Privileges or Immunities Clause of the Fourteenth Amendment (adopted 1868) incorporates “the substantive rights of the first eight amendments (among others)” (http://www.libertylawsite.org/2014/10/08/the-fourteenth-amendment-original-meaning-originalism-and-how-to-approach-the-historical-record-a-response-to-david-upham/).
The section 1 of the Fourteenth Amendment provides: “All persons born or naturalized 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 of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction of the equal protection of the laws. ” The Supreme Court has correctly held that the Fourteenth Amendment incorporates the First Amendment freedoms of religion, speech, press, and assembly (i.e., fully applies the same pertinent limitations on the United States to the States). However, in my opinion, the Court egregiously errs in holding that the Due Process Clause, rather than the Privileges or Immunities Clause of the Fourteenth Amendment, is the vehicle of incorporation of any First Amendment right.
Prof. Upham remarks in his review that Prof. Lash, “[i]n seeking [the] original meaning [of the Privileges or Immunities Clause] …. also calls scholarly attention to the analogous provisions of the various territorial treaties (e.g., the Louisiana [Purchase] Treaty [of 1803 with France] wherein the United States had pledged to admit the inhabitants [of the ceded territory] to the rights and immunities [actually, “all the rights, advantages, and immunities”] “of citizens of the United States.” Upham’s accompanying note to this passage reads:
“As Lash notes, Akhil Amar gave some attention to the treaties. But primary credit for introducing these treaties to the Fourteenth-Amendment literature belongs to Arnold T. Guminski (a now-retired California prosecutor), who discussed these treaties extensively in a rarely-cited 1985 article, which he has since adapted in an interesting self-published book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (2009).”
In a more recent essay, "The Meaning of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War" (9 Notre Dame Law Review 1117-1166), Professor Upham similarly pointed out (ibid., 1124 note 43): "For the earliest scholarly notice of the relevance of these treaties [i.e., with France (1803), Spain (1819), Mexico (1848)] to the [meaning of the Privileges or Immunities Clause of the] Fourteenth Amendment, see Arnold T. Guminski, [citation to my 1985 article omitted]."
I am very grateful to Professor Upham for his having given me “primary credit for introducing these treaties to the Fourteenth-Amendment literature.” However, my article does more than acquaint the reader with what I contend is the true ancestral line of the Privileges or Immunities Clause. The article systematically expounds and defends a disjunctive theory of the selective incorporation of some rights specified in the Bill of Rights and some other constitutional rights of the American People. The theory is disjunctive because, first, it assigns the Privileges or Immunities Clause the function of having incorporated, besides the First Amendment freedoms, other constitutional freedoms (i.e., privileges, advantages) and the freedom-from rights (immunities) of the American people which are implicitly grounded on the Constitution of our federal republic. Thus, for example, the freedom of travel and migration throughout the United States is a constitutional privilege of the American people. Thus, also for example, freedom from governmental or governmentally required discrimination based upon an inferior or degraded status grounded upon a caste-basis, such as race or ethnicity, the badges and incidents of which are incompatible with the dignity of American citizenship. Second, the theory is disjunctive, because it takes an appropriate account of the co-presence of a due process clause in both the Bill of Rights and the Fourteenth Amendment, but deems them equivalent in meaning and arguably including among their components some rights specified in the Bill of Rights (e.g, exemption from cruel and unusual punishments). So the Privileges or Immunities Clause may not be properly construed as having incorporated all the rights specified in the Bill of Rights; and both due process clauses are to be understood as having the same meaning. Thus whatever particular constitutional rights that are rightly deemed to be components of one due process clause must be deemed to be components of the other clause.
Although the theory of my 1985 article has been expanded and in some respects modified in my 2009 book, I believe it continues to have considerable value even at this time. In any event, I fervently urge the reader to read both my article and book.
In my book, I argue that granted the holding in District of Columbia v. Heller, 554 U.S. 570 (2008) that the Second Amendment right to keep and bear arms is an individual right (and not limited to militia members), nevertheless it should not be deemed a fundamental right incorporated by the Fourteenth Amendment, whether via its Privileges or Immunities Clause or its Due Process Clause. However, the Court subsequently ruled that the Second Amendment right to keep and bear arms is indeed incorporated by the Fourteenth Amendment in a five-to-four decision in McDonald v. City of Chicago, 561U.S. 742 (2010). Interestingly enough, eight justices agree that the Second Amendment right is not incorporated by the Privileges or Immunities Clause --- only Justice Thomas holds that view. Four justices (i.e., Roberts, Scalia, Kennedy, Alito) maintained that the incorporation is via the Due Process Clause of the Fourteenth Amendment -- of course, the four dissenting justices were of the contrary opinion.
Unfortunately, the Court egregiously erred in McDonald in failing to recognize that the Privileges or Immunities Clause is the vehicle of incorporation of the freedoms of the First Amendment, but of no other right specified in the Bill of Rights, as well as certain freedoms and freedom-from rights implied by the Constitution. This failure by the Court accounts in large measure for its grossly inflating the Due Process Clause of the Fourteenth Amendment.
CORRIGENDA
p. xxviii, second sentence in full paragraph: delete <<immigrate>> and replace with <<emigrate>>
p. 39, second paragraph, delete second last sentence and replace it with:
<<Rather, Dred Scott taught that free, native-born blacks, because of their inferior and degraded status associated with the institution of African slavery, could not possibly be American citizens and thus entitled to the special rights of American citizens under the diversity and comity clauses, as well as to the so-called rights of man and the rights of the people.>>
p. 83, second line, first word: delete <<if>>
p. 221, n. 16, third last line: delete <<or freedom-from rights>>
p. 221, n. 16, second last line: insert <<also>> before <<is a>>
p. 280, n. 386, inset <<In>> before <<The Establishment Clause" on the sixth line
p. 290, n. 446, second last line: delete <<from whom>> and insert <<to those for whom>. Replace <<is>> before <<is>> with <<would be>>
p 339: delete the text on the last seventh, eighth, and ninth lines and insert the following:
<<p. 769: the last sentence on this page and continued on page 770 should read with the note citation omitted here: “The rights specified in the seventh amendment and in the grand jury clause of the fifth amendment are held not to be incorporated.”>>
p. 770, n. 13: delete <<Presser v. Illinois, 116 U.S. 252 (1886) and Miller v. United States, 153 U.S. 535 (1894) (amend. I: right to keep and bear arms); >>
Arnold T. Guminski
July 4, 2017
This electronic version, originally published on the Secular Web (Internet Infidels, Inc.) on April 30, 2016, replaces the version that hitherto (i.e., prior to MY 17, 2017) was available on the Academia.edu site. It has, however, been modified by having been paginated and by having changed the endnotes to footnotes.
This essay argues that the scope and limits of the Church’s inherent coercive power, according to both pre and post-conciliar Church doctrine, does not extend to the imposition or use of temporal penalties typical of civil authorities only.
The publication of Appendix A as a separate document is with the kind permission of St. Augustine’s Press.
The paragraphs in Appendix A as well as the other five essays in Religious Freedom are numbered as are their respective notes. Citations to “CH” and “WD” are, respectively, to the first essay (pp. 5-44) by Mr. Guminski and the second (pp. 45-88) by Fr. Harrison. For example, “CH, n1” is a citation to note 1 of essay CH; and “WD, #13” is a citation to paragraph 13 of essay WD. The abbreviation “RLC” stands for the book, Religious Liberty and Contraception (1988) by Fr. Harrison. The abbreviation “DH” stands for the declaration Dignitatis Humanae by Vatican Council II. “AS” stands for Acta Synodalia.
I call the reader's attention to two related essays accessible on this website independent.academia.edu/ArnoldGuminski): ""An Examination of Thomas Pink's Theory of the Doctrine Concerning Religious Freedom in Dignitatis Humanae," and, "Further Reflections about Thomas Pink's Theory of the Meaning of Dignitatis Humanae""..
15 May 2020
____________________________________________________________________________________
[This article published in the journal Philosophia Christi 10 (2008) 377-91 has been uploaded to the independent.academia.edu/ArnoldGuminski/Papers with the permission of the editors of that journal. ]
The theory of federal constitutional rights expounded in my article were further developed, although somewhat modified, in my book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (iUniverse, 2009).
Section 1 of the Fourteenth Amendment provides: “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 to deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court correctly held that the Fourteenth Amendment incorporates (i.e., fully applies the same pertinent limitations on the United States to the States) the First Amendment freedoms of religion, speech, press, and assembly. However, in my opinion, the Court egregiously errs in holding that the Due Process Clause, rather than the Privileges or Immunities Clause of the Fourteenth Amendment, is the vehicle of incorporation of any First Amendment right.
The article systematically expounds and defends a disjunctive theory of the selective incorporation of some rights specified in the Bill of Rights and some other constitutional rights of the American People. The theory is disjunctive because, first, it assigns to the Privileges or Immunities Clause the function of having incorporated, besides the First Amendment freedoms (but no other right specified in the Bill of Rights), other constitutional freedoms (i.e., privileges, advantages) and the freedom-from rights (immunities) of the American people which are implicitly grounded on the Constitution of our federal republic. Thus, for example, the freedom of travel and migration throughout the United States is a constitutional privilege of the American people. Thus, also for example, freedom from governmental or governmentally required discrimination based upon an inferior or degraded status grounded upon a caste-basis, such as race or ethnicity, the badges and incidents of which are incompatible with the dignity of American citizenship. Second, the theory is disjunctive because it takes an appropriate account of the co-presence of a due process clause in both the Bill of Rights and the Fourteenth Amendment, but deems them equivalent in meaning and arguably including among their components some rights specified in the Bill of Rights (e.g., exemption from cruel and unusual punishments). So the Privileges or Immunities Clause may not be properly construed as having incorporated all the rights specified in the Bill of Rights; and both due process clauses are to be understood as having the same meaning. Thus whatever particular constitutional rights that are rightly deemed to be components of one due process clause must be deemed to be components of the other clause.
Uploading my article was in large measure due to my having read the on-line book review “Citizenship Has Its Privileges” (October 6, 2014) by Professor David Upham (Politics Department, University of Dallas) (http://libertylawsite.org/book-review/citizenship-has-its-privileges). In this piece, Professor Upham reviewed The Fourteenth Amendment and the Privileges and Immunities Clause (Cambridge U. Press, 2014) by Professor Kurt T. Lash. This book advocates inter alia the theory that the Privileges or Immunities Clause of the Fourteenth Amendment (adopted 1868) incorporates “the substantive rights of the first eight amendment (among others)” (http://www.libertylawsite.org/2014/10/08/the-fourteenth-amendment-original-meaning-originalism-and-how-to-approach-the-historical-record-a-response-to-david-upham/).
Prof. Upham remarks in his review that Prof. Lash, “[i]n seeking [the] original meaning [of the Privileges or Immunities Clause] …. also calls scholarly attention to the analogous provisions of the various territorial treaties (e.g., the Louisiana [Purchase] Treaty [of 1803 with France] wherein the United States had pledged to admit the inhabitants [of the ceded territory] to the rights and immunities [actually, “all the rights, advantages, and immunities”] “of citizens of the United States.” Upham’s accompanying note to this passage reads: “As Lash notes, Akhil Amar gave some attention to the treaties. But primary credit for introducing these treaties to the Fourteenth-Amendment literature belongs to Arnold T. Guminski (a now-retired California prosecutor), who discussed these treaties extensively in a rarely-cited 1985 article, which he has since adapted in an interesting self-published book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (2009).”
In a more recent essay, "The Meaning of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War" (9 Notre Dame Law Review 1117-1166), Professor Upham similarly pointed out (ibid., 1124 note 43): "For the earliest scholarly notice of the relevance of these treaties [i.e., with France (1803), Spain (1819), Mexico (1848)] to the [meaning of the Privileges or Immunities Clause of the] Fourteenth Amendment, see Arnold T. Guminski, [citation to my 1985 article omitted]."
I am very grateful to Professor Upham for his having given me “primary credit for introducing these treaties to the Fourteenth-Amendment literature.” However, my article does more than acquaint the reader with what I contend is the true ancestral line of the Privileges or Immunities Clause. The article systematically expounds and defends a disjunctive theory of the selective incorporation of some rights specified in the Bill of Rights and some other constitutional rights of the American People. The theory is disjunctive because, first it assigns the Privileges or Immunities Clause the function of having incorporated, besides the First Amendment freedoms, other constitutional freedoms (i.e., privileges, advantages) and the freedom-from rights (immunities) of the American people which are implicitly grounded on the Constitution of our federal republic. Thus, for example, the freedom of travel and migration throughout the United States is a constitutional privilege of the American people. Thus, also for example, freedom from governmental or governmentally required discrimination based upon an inferior or degraded status grounded upon a caste-basis, such as race or ethnicity, the badges and incidents of which are incompatible with the dignity of American citizenship. The theory is disjunctive, second, because it takes an appropriate account of the co-presence of a due process clause in both the Bill of Rights and the Fourteenth Amendment, but deems them equivalent in meaning and arguably including among their components some rights specified in the Bill of Rights (e.g, exemption from cruel and unusual punishments). So the Privileges or Immunities Clause may not be properly construed as having incorporated all the rights specified in the Bill of Rights; and both due process clauses are to be understood as having the same meaning. Thus whatever particular constitutional rights that are rightly deemed to be components of one due process clause must be deemed to be components of the other clause. Although theory of my 1985 article has been expanded and in some respects modified in my 2009 book, I believe it continues to have considerable value even at this time. In any event, I fervently urge the reader to read both my article and book.
In my book, I argue that granted the holding in District of Columbia v. Heller, 554 U.S. 570 (2008) that the Second Amendment right to keep and bear arms is an individual right (and not limited to militia members), nevertheless it should not be deemed a fundamental right incorporated by the Fourteenth Amendment, whether via its Privileges or Immunities Clause or its Due Process Clause. However, the Court subsequently ruled that the Second Amendment right to keep and bear arms is indeed incorporated by the Fourteenth Amendment in a five-to-four decision in McDonald v. City of Chicago, 561U.S. 742 (2010). Interestingly enough, eight justices agree that the Second Amendment right is not incorporated by the Privileges or Immunities Clause --- only Justice Thomas holds that view. Four justices (i.e., Roberts, Scalia, Kennedy, Alito) maintained that the incorporation is via the Due Process Clause of the Fourteenth Amendment — of course, the four dissenting justices were of the contrary opinion. Unfortunately, all the justices except Justice Thomas egregiously erred in McDonald in failing to recognize that the Privileges or Immunities Clause is the vehicle of incorporation of the freedoms of the First Amendment. This failure by the Court accounts in large measure for its grossly inflating the Due Process Clause of the Fourteenth Amendment—although I agree that both the Fifth and Fourteenth Amendment Due Process Clauses nevertheless have important substantive aspects.
Arnold T. Guminski
July 1, 2017
Corrigenda Note (July 26, 2015: A. Replace <<that>> with <<than>> in the second sentence of #20; B. Delete the second <<that>> that appears in #29 following the citation to note 40; C. Replace the second sentence in #30 with <<This general objection rests upon his rejection of the applicability to real infinite sets via the SV of the principle of correspondence, which "asserts that if [and only if] a one-to-one correspondence between the elements of two sets can be established, the sets are [numerically] equivalent [i.e., have the same cardinality].”43>>; D. Change note 43 by adding << (bracketed matter added to correctly state Craig’s actual position),>> after the citation <<Ibid., pp. 94-95>>. E. Delete the second sentence beginning with <<Craig>>. [08-29-16: F. Change title (it.) <<Scientific Thought" in note 7 to (it.))<<The Mind and its Place in Nature>>.
In this spirited exchange of essays on a topic central to our understanding of justice and human rights, Arnold Guminski and Fr. Brian Harrison debate this difficult question. Guminski argues that DH teaches that there is (and always has been) a natural right not to be prevented from publicly propagating or manifesting non-Catholic religions, subject to the exigencies of a just public order, which is to be understood as not presupposing the truth of natural or any positive religion (including Catholicism), or any supernatural considerations. Harrison disagrees. In his view, DH nowhere teaches that it is always and everywhere unjust for civil authorities to presuppose the truth of Roman Catholicism in determining what restrictions a just public order allows. According to Harrison, the central innovative feature of DH is its clearly implied prudential policy judgment, or norm of ecclesiastical public law, to the effect that in the modern world - so very different from the old Christendom - repression of the public propagation or manifestation of non-Catholic religions as such can no longer be justified by the requirements of the common good. Harrison argues that precisely because this undeniable reversal of the Church's previous position belongs in the category of changeable prudential judgments, it does not constitute a doctrinal rupture with Catholic tradition. Guminski, on the other hand, contends that the doctrine of DH, properly understood, is inconsistent with relevant preconciliar doctrine. The latter, in his view, was never proposed definitively - i.e., infallibly.
Both authors agree to a comprehensive theory of the nature and scope of the Church's inherent coercive power as it pertains to liberty in religious matters. They agree that this power is limited to the imposition of spiritual penalties and temporal penalties, and that the Church's inherent coercive power nevertheless must be exercised within the limits of a just public order.
CORRIGENDA FOR RELIGIOUS FREEDOM [ETC.]
p. 37: insert ‘not’ before ‘remaining’ in the 4th last line of the first paragraph of note 89
p. 72: change the number of the first full paragraph on this page from ‘48’ to ‘49’ and the number of the succeeding paragraph from ‘49’ to ‘50’
p. 102: delete the citation 'Franz Xavier Wernz, S.J., Jus Decretalium (Rome, 1905), I: 385n58 ("plane improbabilis" [i.e., manifestly improbable]);' in the second sentence of note 21. [This citation is withdrawn as having been improvidently included in note 21 (15 Sep. 2015).]
p. 108: insert ‘formerly’ before ‘prefect’ on the 5th line of note 32
p. 108: insert ‘ut in pluribus’ [in italics] before ‘[in most cases]’ in the 5th last line of note 32
p. 122: change ‘#2285’ to ‘2286’ in the 1st line of note 54
p. 184: change ‘#50’ to ‘#49’ in note 98
p. 225: change 'CH, n10' on the first line of note 1 to 'CH, #10'
p. 226: change 'CH, n90' on the sixth line of note 3 to 'CH, n89'
p. 229: change 'not typical' on the penultimate line of note 10 to 'typical'
p. 236: change ' ? ' on the third last line of #12 to ‘.≡.'
p. 247: make changes in the first full of paragraph #20(e) following the quoted matter from DH to conform with the version of Appendix A "The Scope and Limits of the Church's Inherent Coercive Power" the is currently uploaded as an independent document at https://independent.academia.edu/ArnoldGuminski.
p. 247: delete footnote number '40' after 'church.”' on the fourth line of #21
p. 247: replace 'DH #11 is devoted to an exposition of several texts in the New Testament bearing on the freedom of the act of faith.' in note 40 with 'See AS, vol. IV/pt. 6, 714-16 for notes 12 and 13 of the Textus denuo recognitus;
and see AS, vol. IV, pt. 7, 671-2 for notes 8 and 9 in the Textus approbatus.'
p. 252: change the comma after 'Fr' on the first line of note 49 to a period.
p. 254: note 51: change 'note 47' to 'note 48'
p. 280, first two lines: delete ' Wernz, S.J., Franz Xavier. Jus Decretalium (Rome, 1905), I: FR, n. 21'
My article, “The Rights, Privileges, and Immunities of the American People: A Disjunctive Theory of Selective Incorporation of the Bill of Rights,” was originally published in 7 Whittier Law Review (1985) 765-826. The theory of federal constitutional rights expounded in this article were further developed, although somewhat modified, in my book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (iUniverse, 2009). What follows is in the nature of an introduction. .
I am grateful to the editors of the Whittier Law Review for having kindly permitted me to upload my article to the Academia.edu website (https://www.academia.edu/8971056/The_Rights_Privileges_and_Immunities_of_the_American_People_A_Disjunctive_Theory_of_the_Selective_Incorporation_of_the_Bill_of_Rights. (The text of this article has already been available on-line at (http://heinonline.org/HOL/LandingPage?handle=hein.journals/whitlr7&div=43&id=&page=).
My doing so was in large measure due to my having read the on-line book review “Citizenship Has Its Privileges” (October 6, 2014) by Professor David Upham (Politics Department, University of Dallas) (http://libertylawsite.org/book-review/citizenship-has-its-privileges). In this piece, Professor Upham reviewed The Fourteenth Amendment and the Privileges and Immunities Clause (Cambridge U. Press, 2014) by Professor Kurt T. Lash. This book advocates inter alia the theory that the Privileges or Immunities Clause of the Fourteenth Amendment (adopted 1868) incorporates “the substantive rights of the first eight amendments (among others)” (http://www.libertylawsite.org/2014/10/08/the-fourteenth-amendment-original-meaning-originalism-and-how-to-approach-the-historical-record-a-response-to-david-upham/).
The section 1 of the Fourteenth Amendment provides: “All persons born or naturalized 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 of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction of the equal protection of the laws. ” The Supreme Court has correctly held that the Fourteenth Amendment incorporates the First Amendment freedoms of religion, speech, press, and assembly (i.e., fully applies the same pertinent limitations on the United States to the States). However, in my opinion, the Court egregiously errs in holding that the Due Process Clause, rather than the Privileges or Immunities Clause of the Fourteenth Amendment, is the vehicle of incorporation of any First Amendment right.
Prof. Upham remarks in his review that Prof. Lash, “[i]n seeking [the] original meaning [of the Privileges or Immunities Clause] …. also calls scholarly attention to the analogous provisions of the various territorial treaties (e.g., the Louisiana [Purchase] Treaty [of 1803 with France] wherein the United States had pledged to admit the inhabitants [of the ceded territory] to the rights and immunities [actually, “all the rights, advantages, and immunities”] “of citizens of the United States.” Upham’s accompanying note to this passage reads:
“As Lash notes, Akhil Amar gave some attention to the treaties. But primary credit for introducing these treaties to the Fourteenth-Amendment literature belongs to Arnold T. Guminski (a now-retired California prosecutor), who discussed these treaties extensively in a rarely-cited 1985 article, which he has since adapted in an interesting self-published book, The Constitutional Rights, Privileges, and Immunities of the American People [subtitle omitted] (2009).”
In a more recent essay, "The Meaning of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War" (9 Notre Dame Law Review 1117-1166), Professor Upham similarly pointed out (ibid., 1124 note 43): "For the earliest scholarly notice of the relevance of these treaties [i.e., with France (1803), Spain (1819), Mexico (1848)] to the [meaning of the Privileges or Immunities Clause of the] Fourteenth Amendment, see Arnold T. Guminski, [citation to my 1985 article omitted]."
I am very grateful to Professor Upham for his having given me “primary credit for introducing these treaties to the Fourteenth-Amendment literature.” However, my article does more than acquaint the reader with what I contend is the true ancestral line of the Privileges or Immunities Clause. The article systematically expounds and defends a disjunctive theory of the selective incorporation of some rights specified in the Bill of Rights and some other constitutional rights of the American People. The theory is disjunctive because, first, it assigns the Privileges or Immunities Clause the function of having incorporated, besides the First Amendment freedoms, other constitutional freedoms (i.e., privileges, advantages) and the freedom-from rights (immunities) of the American people which are implicitly grounded on the Constitution of our federal republic. Thus, for example, the freedom of travel and migration throughout the United States is a constitutional privilege of the American people. Thus, also for example, freedom from governmental or governmentally required discrimination based upon an inferior or degraded status grounded upon a caste-basis, such as race or ethnicity, the badges and incidents of which are incompatible with the dignity of American citizenship. Second, the theory is disjunctive, because it takes an appropriate account of the co-presence of a due process clause in both the Bill of Rights and the Fourteenth Amendment, but deems them equivalent in meaning and arguably including among their components some rights specified in the Bill of Rights (e.g, exemption from cruel and unusual punishments). So the Privileges or Immunities Clause may not be properly construed as having incorporated all the rights specified in the Bill of Rights; and both due process clauses are to be understood as having the same meaning. Thus whatever particular constitutional rights that are rightly deemed to be components of one due process clause must be deemed to be components of the other clause.
Although the theory of my 1985 article has been expanded and in some respects modified in my 2009 book, I believe it continues to have considerable value even at this time. In any event, I fervently urge the reader to read both my article and book.
In my book, I argue that granted the holding in District of Columbia v. Heller, 554 U.S. 570 (2008) that the Second Amendment right to keep and bear arms is an individual right (and not limited to militia members), nevertheless it should not be deemed a fundamental right incorporated by the Fourteenth Amendment, whether via its Privileges or Immunities Clause or its Due Process Clause. However, the Court subsequently ruled that the Second Amendment right to keep and bear arms is indeed incorporated by the Fourteenth Amendment in a five-to-four decision in McDonald v. City of Chicago, 561U.S. 742 (2010). Interestingly enough, eight justices agree that the Second Amendment right is not incorporated by the Privileges or Immunities Clause --- only Justice Thomas holds that view. Four justices (i.e., Roberts, Scalia, Kennedy, Alito) maintained that the incorporation is via the Due Process Clause of the Fourteenth Amendment -- of course, the four dissenting justices were of the contrary opinion.
Unfortunately, the Court egregiously erred in McDonald in failing to recognize that the Privileges or Immunities Clause is the vehicle of incorporation of the freedoms of the First Amendment, but of no other right specified in the Bill of Rights, as well as certain freedoms and freedom-from rights implied by the Constitution. This failure by the Court accounts in large measure for its grossly inflating the Due Process Clause of the Fourteenth Amendment.
CORRIGENDA
p. xxviii, second sentence in full paragraph: delete <<immigrate>> and replace with <<emigrate>>
p. 39, second paragraph, delete second last sentence and replace it with:
<<Rather, Dred Scott taught that free, native-born blacks, because of their inferior and degraded status associated with the institution of African slavery, could not possibly be American citizens and thus entitled to the special rights of American citizens under the diversity and comity clauses, as well as to the so-called rights of man and the rights of the people.>>
p. 83, second line, first word: delete <<if>>
p. 221, n. 16, third last line: delete <<or freedom-from rights>>
p. 221, n. 16, second last line: insert <<also>> before <<is a>>
p. 280, n. 386, inset <<In>> before <<The Establishment Clause" on the sixth line
p. 290, n. 446, second last line: delete <<from whom>> and insert <<to those for whom>. Replace <<is>> before <<is>> with <<would be>>
p 339: delete the text on the last seventh, eighth, and ninth lines and insert the following:
<<p. 769: the last sentence on this page and continued on page 770 should read with the note citation omitted here: “The rights specified in the seventh amendment and in the grand jury clause of the fifth amendment are held not to be incorporated.”>>
p. 770, n. 13: delete <<Presser v. Illinois, 116 U.S. 252 (1886) and Miller v. United States, 153 U.S. 535 (1894) (amend. I: right to keep and bear arms); >>
Arnold T. Guminski
July 4, 2017