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
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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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