The people (not peoples) acted through their states.
The U.S. constitution is not a treaty, even though the 13 states were, prior to the constittion, international legal persons.
The principle addressee of the U.S. constitution is the Federal government which that document created
NOT the several states!
NOR the people in their private capacity.
Amendment XIV
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.”
14th Amendment applies the federal constitution to the several states.
Doctrine of Selective Incorporation
What is incorporated?
“Fundamental rights” “ordered liberty”
THE QUESTION WHETHER
1) THE CONSTITUTION APPLIES OVERSEAS
2) TO NON CITIZENS
3) TO THE SEVERAL STATES
IS THE SAME QUESTION!
THE METHOD TO ANSWER IT IS THE SAME.
1) Savigny! i, ii, iii, iv.
2) “fundamental rights” consistent with “ordered liberty”.
3) nature of the right, the bearer of the right, purpose of the right
HOWEVER
The question whether the constitution applies to private parties inter se is NOT the same question.
Civil Rights Cases. 109 U. S., 3 (1883)
The Act of Congress of March 1, 1875, known as the Civil Rights Act, made it a criminal offense for any person to deny any citizen on
account of race or color the full and equal enjoyment of the privileges and
accommodations of inns, public conveyances, theatres, and other places of
public amusement.
Issue:
Rule:
Reason:
*c.f. “common carrier”.
*justification: federalism
*State Action Doctrine (Eselsbrücke: SAD)
Shelly v. Kraemer – Restrictive Covenant
Issue: “Whether the equal
protection clause of the Fourteenth Amendment inhibits judicial enforcement by
state courts of restrictive covenants based on race or color”
Rule:
Rationale (Reasons)