The Incorporation Doctrine, by which the Supreme Court undertook in the
20th century to enforce what it called the principles of selected
provisions of the first eight amendments to the states, is of course
without historic foundation. Readers interested in this general topic
could see the late Harvard prof. Raoul Berger's scholarly classic
_Government by Judiciary: The Transformation of the Fourteenth Amendment_,
his refutation of critics of that book in _The Fourteenth Amendment and the
Bill of Rights_, or his later tome, _Federalism: The Founders' Design_.
There is also extensive consideration of the issue in my popular _The
Politically Incorrect Guide to the Constitution_.
I chose to ask Prof. Finkelman to be more specific about those particular
groups because I consider their tactics and/or causes in many cases
constitutionally and/or morally bogus. Finkelman, typically of advocates
of judicial legislation and unlimited (read: unconstitutional) federal
government, brings us back to the one example of an unquestionably
legitimate protest among the group: the civil rights movement. Anyone who
thinks that the federal Constitution was intended to establish a limited,
federal government must be a racist, don't you see? A "neo-Confederate."
He seems either to be unfamiliar with the meaning of the word "most" or to
insist on implying that his interlocutor has the most unsavory of motives
even when a particular group clear might be among the minority of rights
invokers with a worthy claim. Prof. Finkelman has used that rhetorical
tactic on this list before, and I hope that readers will see through it.
The Bill of Rights was intended, as Marshall and his unanimous court noted
in _Barron v. Baltimore_, as a limitation solely on the federal government;
the Bill's preamble says as much (which may explain why it isn't ever
published along with the Bill of Rights, even though the main body's
preamble always appears along with published editions of the Constitution).
But I suppose that Finkelman could say that in regard to the 5th Amendment,
that was only a signing statement, and federal judges are empowered to veto
any taking they dislike, to call any abridgement of freedom a taking, etc.
Besides which, the likes of Brennan and Douglas assure us that the
Fourteenth Amendment was intended to empower future Taneys to veto state
laws they disliked. Sure. All of which bologna is a good reason to quit
law and go into academia.
If, btw, Finkelman thinks that the parties' statements concerning their
understandings at the time of treaties or interstate/international compacts
are analogous to executive signing statements, he really needs to consult
the nearest treatise on international law. And if the Constitution's
meaning wasn't fixed by the parties' understandings at the time of its
ratification, by what was it fixed? (Rhetorical question: Prof. Finkelman
thinks that it wasn't fixed, but provides a handy ever-evolving mechanism
for the Guardians to use in keeping their thumb on the riff-raff
represented in state legislatures.)
Kevin Gutzman
last time I new the Due Process clause of the 14th amendment applied ALL
the bill of rights to the states; and in any event, Prof. Gutzman's
comments below applied to ALL the Bill of Rights.
If he ONLY meant the 4th, 6th, 8th, and part of the 5th Amendment, I assume
he would have said so. But even then, given the significant number of
people being let of jail because of DNA tests that prove them actually
innocent, it seems to me that a fair number of innocent people are invoking
the criminal aspects of the Bill of Rights who are innocent.
Prof. Gutzman originally wrote: "My analysis is that most people who find
themselves invoking rights do so for unsavory reasons (to get away with
murdering an ex-wife, say, as in O.J.'s case), and that's what we should
expect; after all, it's the political/moral minority that
has to fall back on rights talk."
So I ask him once again if he thinks that Civil Rights marchers (who by the
way were jailed and did invoke not only their First Amendment rights but
also rights on the 4th, 5th, 6, 8th and 14th) were unsavory?
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
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>>> Kevin Gutzman <[log in to unmask]> 7/1/2008 12:39 PM >>>
Marching where? Protesting how? Forced how?
If Paul thinks that most people who invoke due process in criminal cases
are innocent, he has a decidedly different idea of what goes on in the
typical American courtroom than was imparted to me at the U. of Texas Law
School. The Scottsboro Boys example doesn't dispel my impression that
"MOST...," nor, I wager, would it establish the innocence of the average
defendant in the mind of the typical working lawyer.
It seems that Prof. Finkelman ignored my use of the word "most." On the
other hand, I don't know whether he has ever tried a cause, so it may be
that he thinks that railroaded defendants 70-odd years ago were typical of
the run of criminal defendants in American history. I sense, however,
that this discussion has drifted rather afield from the purpose of this
list.
KG
Paul Finkelman <[log in to unmask]>
Sent by: Discussion of research and writing about Virginia history
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07/01/2008 12:15 PM
Please respond to
Discussion of research and writing about Virginia history
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Re: [VA-HIST] Rights talk
Following on Henry's point:
Like Civil Rights marchers trying to overturn segregation?
Or labor organizers protesting for an 8 hour work day?
Or Seventh Day Adventists trying to avoid being forced to work on their
Sabbath?
Or the Scottsboro Boys asking for something that resembles due process law
in a southern courtroom?
Prof. Gutzman writes: "My analysis is that most
people who find themselves invoking rights do so for unsavory reasons (to
get away with murdering an ex-wife, say, as in O.J.'s case), and that's
what we should expect; after all, it's the political/moral minority that
has to fall back on rights talk."
That's a rather sweeping statement. Would you apply it to the gun rights
folks who just won the big decision? Not a hostile question; merely
asking.
Henry Wiencek
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
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