What did Scalia mean when he said that the Constitution &quot;explicitly&quot; protects racial minorities? I was watching this video of Justice Scalia's remarks. At 1:10:36, Justice Scalia answers a question about Brown v. Board of Education. Because Justice Scalia has previously said that it's not the role of the Supreme Court to invent new minorities to protect besides the minorities already protected by the Constitution, and because the audience now asks why racial segregation is unconstitutional when it had been thought to be constitutional for years and years before Brown v Board, Justice Scalia now says that: Brown v Board of Education was not one of the un-enumerated minorities the previous question was talking about. The Constitution explicitly protects racial minorities, that's what we fought a civil war about, and the fourteenth amendment prevents / forbids refusal to give equal protection of the laws in particular with respect to race. So my Constitution protects that explicitly. I do not have to invent some minority protection for Brown v Board Of Education. Here is the Fourteenth Amendment, Section 1: 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 wherein 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 the equal protection of the laws. The word &quot;race&quot; seems absent from the fourteenth amendment. Because it's not there, racial minorities would be part of the un-enumerated minorities the Supreme Court is not supposed to invent by itself. So what did Justice Scalia mean when he says the the Constitution &quot;explicitly protects racial minorities&quot;?
The 13th to 15th Amendments to the U.S. Constitution are called the &quot;civil war amendments&quot; as they were enacted in the fallout from the U.S. Civil War. The 15th Amendment specifically addresses racial discrimination in voting rights, which was emerging as an issue a federal occupation of Southern states was receding and the segregation regimes that persisted until the 1960s, almost a century later, replaced slavery (which was abolished, de jure, and to a great extent, in practice). The 13th Amendment abolishing slavery, comes very close, because at the time that it was adopted, slavery was almost exclusively imposed on African-Americans (the Emancipation Proclamation during the Civil War was the proximate legal cause of ending slavery for most U.S. slaves, although it took a fair amount of time to be fully implemented because the U.S. did not control much of the territory it applied to at the time). The 14th Amendment was also race conscious, not by its express text, but by what is displaced. Section 1 removed the denial of citizenship for former slaves (an almost entirely African-American population), and expressly required the state to afford the new citizens equal protection of the laws and due process. Section 2 removed the three-fifths compromise from Congressional apportionment that had counted African-American slaves as less than a full person in the pre-14th Amendment status quo. Section 4 invalidated efforts to pay reparations to former slave owners. Specifically, they state: 13th Amendment Section 1 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2 Congress shall have power to enforce this article by appropriate legislation. 14th Amendment Section 1 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 wherein 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 the equal protection of the laws. Section 2 Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3 No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4 The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 15th Amendment Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2 The Congress shall have the power to enforce this article by appropriate legislation. When Justice Scalia meant said that: The Constitution explicitly protects racial minorities, that's what we fought a civil war about, and the fourteenth amendment prevents / forbids refusal to give equal protection of the laws in particular with respect to race. So my Constitution protects that explicitly. He is putting the equal protection clause of Section 1 of the 14th Amendment in the context of the rest of Section 1 of the 14th Amendment, which gave to former slaves citizenship (implicitly a race based change) that was fortified with provisions including the equal protection of the laws that they had been denied before it was adopted while all other adult men of those days had. More broadly, he is discussing this in the larger context of the Civil War Amendments and in the context of the legislation that was enacted by Congress pursuant to the enforcement clauses of the 13th, 14th and 15th Amendments. What these amendments do to protect racial minorities is to give them equal treatment when prior to their enactment they were given unequal treatment. Brown v. Board of Education which he discusses in the same breath, furthermore gives the 14th Amendment its modern meaning overruling Plessy v. Ferguson whose &quot;separate but equal&quot; interpretation of the equal protection clause of the 14th Amendment had facilitated the Jim Crow regimes of segregation in the South because after more than half a century it had become clear that separate was almost never actually equal in practice. As a footnote, the 14th Amendment Privileges and Immunities clause in Section 1 of that amendment was intended to be the greater of the Section 1 protections, but was gutted early on by the Slaughterhouse Cases that interpreted it in a manner that made it virtually irrelevant, continues to be good law. There is no Brown v. Board of Education counterpart overruling the Slaughterhouse cases the way that Brown repealed Plessy. Where is written in the 14th Amendment that race is a protected minority? The context and legislative history of the equal protection clause of the 14th Amendment, as enforced by contemporaneous enforcement legislation adopted by Congress, was clear to all in its meaning (even to textualist leaning originalists like Justice Scalia) that it first and foremost applied to the discrimination based upon race and former condition of servitude that the 15th Amendment called out explicitly. The notion of a &quot;protected minority&quot; isn't a very clean or helpful way to think about what the 14th Amendment does, however. Instead, it prohibits de jure legal discrimination based upon race and upon other factors that have been determined to constitute impermissible means of making legal distinctions. The notion of the 14th Amendment and anti-discrimination laws as conferring special treatment on &quot;protected minorities&quot; has not been the story of American civil rights law, unlike the case in Canada, for example, which uses a legal theory framework of vindicating and benefiting oppressed minorities, rather than less ambitiously, merely aiming for racial equality in the law. Justice Scalia's choice of words in the quoted material reflects the cultural lean of conservative politicians in the U.S. who have often tried to frame anti-discrimination law in this way, contrary to most (but not quite all) U.S. civil rights law legal theory (voting rights have more of a anti-oppression model, in part, due to the relevant Congressionally enacted enforcement legislation, especially the Voting Rights Act).
The 5th amendment of the US constitution reads: No person shall ... be deprived of life ... without due process of law and the 14th amendment reads: ... nor shall any State deprive any person of life... without due process of law In Roe v Wade the majority opinion expressly acknowledged: The appellee and certain amici argue that the fetus is a &quot;person&quot; within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. (emphasis added) The majority in Roe v Wade then concluded: the word &quot;person,&quot; as used in the Fourteenth Amendment, does not include the unborn In Dobbs, the majority instead stated: Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion ... all of the States may evaluate the competing interests and decide how to address this consequential issue ... There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point. [numerous citations] One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests) ... Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. In conclusion, though it is recognized in Roe v Wade that if the unborn is considered a &quot;person&quot; then there is a &quot;right to life&quot;, no justice has indicated in an opinion (including concurring or dissenting opinions) that &quot;person&quot; in the constitution includes the unborn.
This question and many related ones are analysed in detail by Eugene Volokh, in a long paper that is worth reading in its entirety if you are interested in the topic. The [Supreme] Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well defined and narrowly limited, courts need to explain and cabin its scope. This Article — the first, to my knowledge, to consider the exception in depth — aims to help with that task. On threats, he says: Companies are generally barred from firing employees for voting for a union, and unions are generally barred from retaliating against employees for their speech. The Court therefore concluded that speech that threatens unlawful retaliation is itself unlawful. On blackmail, he says: [...] telling black citizens “stop shopping at white-owned stores or we’ll publicize your behavior to your neighbors and fellow church members” is similarly constitutionally protected. On the other hand, “vote for this civil rights bill or I’ll disclose that you cheated on your wife” is likely unprotected. In general the line where the First Amendment protections end and criminal speech begins is surprisingly vague. General advice to avoid self-incrimination by not answering questions from the police is clearly protected. Threatening a witness with violence is clearly not. In between are shades of grey.
It appears that the "leading" source of Freedom of Movement is the Privileges and Immunities Clause (Art. IV, S.2 , Cl. 1) of the US Constitution, that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". See Crandall v. State of Nevada, 73 US 35: "We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states" (quoted from an earlier case); US v. Wheeler, 254 U.S. 281 In all the states, from the beginning down to the establishment of the Articles of Confederation, the citizens possessed the right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom citing the Privileges &amp; Immunities clause as the constitutional foundation. However, this article, sect. IB notes a number of additional constiutional sources: Various Justices at various times have suggested no fewer than seven different sources: the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges and [sic] Immunities Clause, a conception of national citizenship said to be implicit in the structural logic of the Constitution itself, the Commerce Clause, the Equal Protection Clause, and each of the Due Process Clauses. Edwards v. California, 314 U.S. 160 relates freedom of movement to the Commerce Clause, Aptheker v. Sec’y of State, 378 U.S. 500 points us to the Due Process clause. The argument hasn't apparently been made based on the First Amendment, since there are better arguments.
So it's not that SCOTUS is declining to review the matter on Constitutional Grounds but that it's declining to rule because 1.) It's a military matter 2.) It's under review by congress. SCOTUS is basically saying that, of the three branches, they are the least equipped to deal with military policy and when a better equipped branch is reviewing the matter. SCOTUS doesn't want to dictate to Congress how to change the rules when Congress is in the process of changing the rules itself... but they can say &quot;Hey, we got our eyes on this as a constitutional matter so keep that in mind when you decide on what you're gonna do about this. When Congress makes a decision on this particular law (either change it or keep it), SCOTUS may take a look, but that doesn't mean they'll rule against it, as Congress and the Military can present an argument that it might be necessary for military defense reasons.
New York has no law prohibiting genocide, though it does have a law against murder. Since you specifically ask about genocide, at the state level, the answer is &quot;no&quot;. At the federal level, 18 USC 1091 does criminalize genocide. But the action fails to meet the definition of genocide. (a) Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such... Mutants fail to satisfy the ordinary conditions for matching people to &quot;national&quot;, &quot;ethnic&quot; and &quot;racial&quot; groups (and &quot;religious&quot; is statutorily defined). This is not to say that an aggressive prosecutor could not construct a line of reasoning that people with a certain (undefinable) genetic property fall within the ordinary meaning of &quot;race&quot; or &quot;ethnicity&quot;. But, to consider an analogous case, the courts do not consider left-handed people to be a separate &quot;ethnicity&quot;, likewise blind, deaf, nor those with Downs syndrome. Specific legislation is (was) necessary to make individuals with genetic conditions be a protected class – it does not flow from a general prohibition against racial discrimination. It is also unclear from your scenario whether defendant has &quot;the specific intent to destroy&quot;. In reality, uttering a phrase does not make it so.
The Seventh Amendment's jury trial provision does not apply to the states. The Bill of Rights does not inherently restrain the states at all, merely the federal government. The Fourteenth Amendment does restrain the states; notably, it forbids a state from depriving any person of life, liberty, or property without due process of law. Courts have read into "of law" the added requirement that the law be compatible with the fundamental rights that are implicit in the concept of ordered liberty; this means that most stuff that would violate the Bill of Rights if done by the feds violates due process if done by the states. However, not all provisions of the Bill of Rights have been incorporated (i.e. applied to the states); the requirement for a jury in a civil trial is one of the few that hasn't been incorporated, because courts do not consider it a fundamental right (merely one protected in the federal courts). Now, many traffic tickets are actually misdemeanor offenses, and a jury-trial requirement for crimes is incorporated. However, even for federal offenses, the courts have generally found that the Constitution doesn't require jury trial for petty crimes (those with a maximum sentence under 6 months).
District of Columbia v. Heller, 554 U.S. 570 (2008), majority opinion, written by Justice Antonin Scalia: Like most rights, the right secured by the Second Amendment is not unlimited ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis mine)