The Historical Basis for 14th Amendment Incorporation
My latest exchange with Eric Seymour on the subject of judicial activism has veered off into a discussion of the doctrine of incorporation with a rather irritating anonymous commenter who seems to specialize in logical fallacies. His favorites appear to be the appeal to authority and poisoning the well. He seems to believe that mere reference to a scholar who disagrees with someone defeats their argument, even if he doesn’t bother to actually cite a substantive claim that they make or any evidence they produce for that claim. In this case, he is arguing against the notion that the bill of rights is incorporated against the states by the 14th amendment, and naturally he is citing Raoul Berger (though he could as easily be citing Robert Bork or Lino Graglia). The irony in this is that a non-incorporation reading of the 14th amendment is based upon what is surely one of the most obvious instances of judicial activism in our history, the Slaughterhouse cases, where the court ignored the clear history and intent of the privileges and immunities clause and essentially read it right out of the amendment, and did so based upon the argument from the defendent’s attorney that if they didn’t do so it might lead to a bad result. If that isn’t judicial activism, what on earth is? At any rate, I think this is a good opportunity to take a look at the history and intent of the 14th amendment and examine in more detail where incorporation comes from and what it means.
First, it should be noted that the position that none of the bill of rights is incorporated by the 14th amendment is so far out of the mainstream of legal scholarship that it is rejected even by the most conservative justices today. Even Clarence Thomas does not dispute the doctrine of incorporation, though he is an advocate of selective incorporation (he argues that the establishment clause was not incorporated because it doesn’t establish a specific right). Janice Rogers Brown is truly out on the fringes of legal scholarship with her assertion that the 14th amendment did not make any of the bill of rights binding on the states. That by itself doesn’t mean she’s wrong, of course, so we must take the next step of examining why that position is so far out of the mainstream. We must examine the history of the 14th amendment and what those who framed it said about what it intended to do. Section 1 of the 14th amendment states:
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.
There are four important clauses and concepts in this section. The citizenship clause declares that anyone born or naturalized in the US is a citizen of the United States and of whatever state they reside in. This was important, of course, because slaves were not considered citizens in most of the Southern states, which allowed them to violate their rights with impunity with various laws referred to as the Black Codes. The privileges and immunities clause says that no state may violate any privileges or immunities that are guaranteed to citizens of the United States (not given to those citizens, as the Declaration declares that those rights pre-exist government and governments are instituted only in order to protect those rights, not to create them). The due process clause forbids the states to violate the rights of citizens without due process of law (see Timothy Sandefur’s excellent essay on substantive v. procedural due process here). And the equal protection clause demands that all states treat all citizens as equal under the law. The key clause we’re going to examine is the privileges and immunities clause. To what does this term refer?
The 14th amendment was proposed by a special Joint Committee on Reconstruction that was created by resolutions in the House and Senate in 1865. They made several recommendations for Constitutional amendments that resulted in the adoption of amendments 13-15. In early 1866, a subcommittee was formed, made up of Congressmen Bingham, Stevens and Conkling and Senators Howard and Fessenden. Rep. Bingham presented a proposed amendment that became the 14th amendment. It was approved by the committee and sent to the House for consideration, along with an explanation of its purpose from Bingham. In that explanation, and in the ensuing debate in both chambers, it was made quite clear that the privileges and immunities clause covered, at the very least, the guarantees contained in the Bill of Rights. When he presented the amendment to the House for debate, Bingham noted its necessity by pointing out that up to that point, “these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.” He proposed to change that by giving the Federal government the power to enforce the bill of rights against state action with his amendment, and he consistently invoked the bill of rights as representing the privileges and immunities to which he referred:
Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced…’Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be…’What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?…Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.
He further noted, in later debate over whether the amendment was required to enforce the Civil Rights Bill that was making its way through Congress, “I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution.”
President Johnson vetoed the Civil Rights Bill, noting that under the decision in Barron v. Baltimore the bill of rights was only binding upon the Federal government, not the states. His veto was overridden and the Civil Rights Bill became law, but that did not stop Bingham from advocating for the 14th amendment precisely because, without such an amendment, the courts had already declared the bill of rights not to be binding upon the states. The committee pressed on in advocating the amendment and Senator Howard presented it to the Senate in March of 1866 for consideration. He specifically noted in his address that the bill of rights was not then binding upon the states and that the Federal government lacked the authority to enforce them upon the states, which the 14th amendment sought to remedy:
‘Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees.’
This echoed the sentimens of Rep. Bingham, who in closing the debate in the House on the amendment had said, “That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment.” There can be no doubt, then, that those who wrote and adopted the 14th amendment intended for it to give to the Federal government the authority to prevent the states from violating the provisions of the Bill of Rights, as they stated so many times during the debate over ratification. And as one scholar has noted, those were precisely the arguments used in the press to explain and defend the amendment to the American people, so the public’s understanding of the amendment would have been the same. Those who opposed the 14th amendment agreed that it gave the Federal government the authority to overrule state actions which violated the US Constitution, and they argued against it precisely on that basis. So the historical record is clear that the 14th amendment did in fact incorporate the bill of rights against the states. Unfortunately, that clear meaning was distorted almost immediately by the Supreme Court in the Slaughterhouse decision in 1873. The Cato Institute explains this decision and the distortions it contains quite well:
By a vote of five to four, the Supreme Court came down against the butchers, upholding the state and the Crescent City Company. Writing for the majority, Justice Samuel F. Miller gave the nation a new Fourteenth amendment, in essence, and a new legislative history to accompany it. According to Miller’s rendition, “the most casual examination” of the Civil War Amendments shows them to be concerned almost exclusively with the rights of blacks. Despite the plain language of the Fourteenth Amendment, which speaks of “citizens” and “persons,” Miller maintained that, particularly where whites were concerned, the amendment was not intended “as a protection to the citizen of a state against the legislative power of his own state.” He reached that conclusion on the basis of an extraordinary reading of the Citizenship Clause. Ignoring overwhelming and uncontroverted evidence that the clause was added to the Fourteenth Amendment to overturn Dred Scott’s contention that U.S. citizenship is derived from state citizenship, Miller held that the clause creates distinct citizenships–state and national, each conferring its own set of rights–and that the Privileges or Immunities Clause protects only rights of national citizenship, which he then read narrowly. The rights of state citizenship, Miller said, comprehend “nearly every civil right for the
establishment and protection of which organized government is instituted”; thus, the new Privileges or Immunities Clause, pertaining to national citizenship, covers very little of substance. In fact, the only examples of rights protected by the Privileges or Immunities Clause that he could come up with were either rights that had already been explicitly recognized by the Supreme Court, prior to ratification of the Fourteenth Amendment, or rights, such as protection on the high seas, that state governments could not possibly abridge.Naturally, the effect of Miller’s opinion was to render pointless the passage and ratification of the Fourteenth Amendment’s Privileges or Immunities Clause. Since the entire domain of privileges and immunities of citizens of the states “lay within the constitutional and legislative power of the states, and without that of the Federal government,” we are left with a clause that “seems to be unnecessary,” said James Bradley Thayer of the Harvard Law School. Miller’s construction flew in the face not only of the language and history of the clause but of the basic canons of judicial construction: judges, after all, must assume that lawmakers–and constitution makers, in particular–mean something when they act, even when they are unsure just what that something may be…
Whatever the men who wrote, passed, and ratified the Fourteenth Amendment may have thought they were doing, it surely was not to leave unchanged the reach of the federal government in protecting citizens against actions by the states. Yet that is what the Slaughterhouse majority accomplished. Commentators at the time–such as Harvard’s Thayer, a strong advocate of judicial restraint–acknowledged the superiority of the dissenters’ arguments…
Several members of the Court were concerned about the effect the Civil War Amendments might have on our federal structure. As expressed in Miller’s opinion for the Court, the Fourteenth Amendment threatened to “radically [change] the whole theory of the relations of the state and Federal government”; if that happened, it would “fetter and degrade the state governments” by transforming the federal government into a “perpetual censor upon all the legislation of the states.” Thus, the majority was trying to protect the states’ reserved powers, notwithstanding the history and purpose of the Fourteenth Amendment. In fact, a few years after Slaughterhouse was decided, an influential legal scholar of the day, Christopher Tiedeman, wrote approvingly of the Court as having “dared to withstand the popular will as expressed in the letter of the amendment” in order to save the federal structure of the government and the reserved powers of the states.
Such judicial resistance to popular will–expressed through constitutional amendment, no less–is exactly what conservatives today decry, of course, as they shout “judicial activism.” It is not a little ironic, therefore, to find those same conservatives defending the Slaughterhouse majority’s “activism” in overturning the nation’s decision to institute a constitutional mechanism for federal oversight of state actions. The Civil War generation meant to rewrite, in this limited way, the relationship between the federal government and the states. Once that was done, through the Constitution, the Court had no authority to impose its views on the matter–especially since the rewrite brought the Constitution into conformity, at last, with its underlying moral theory. The Court’s job, rather, was simply to apply that law, as conservatives today rightly remind us.
Quite so. Unfortunately, the Slaughterhouse decision was never overturned. The courts instead have sought to locate the historical intent of the privileges and immunities clause in the due process clause, which has led to massive confusion in 14th amendment jurisprudence. But let’s be clear here that the problem began with a decision that, if “judicial activism” means anything at all, was exactly the sort of thing that conservatives ostensibly are opposed to, yet support in this instance. It should be also noted that their desire to read the privileges and immunities clause out of the 14th amendment in favor of a more vigorous federalism is also hypocritically applied, as the recent brouhaha over gay marriage clearly shows. Their argument collapses into the following bit of cognitive dissonance: that despite the clear intent of the 14th amendment, the states should have the authority to violate the rights of their citizens whenever they choose and with no Federal legal authority to tell them they cannot…but if they try to give equal rights to gay people to marry, or even to have some of the legal protections of straight couples, within that state, then the Federal government must intervene and prevent them from doing so. By this formulation, the states are free from federal intervention if they violate our rights, but not when they protect them. It’s all quite bizarre, isn’t it?
Ed, having dealt with our friendly anonymous comment writer for some time around my page…you will rapidly learn that the best thing you can do is just ignore him, let him stew, and eventually he’ll give you a reason to remove him.
At my page…the reason to remove him was when he openly said that John Kerry deserved to have been massacred in Cambodia in the 1970’s.
Interesting post. The reading I did for a post on the same subject last week was a little lighter — but then I’m in politics, not law.
Balta wrote:
Well, I don’t have the power to remove anyone from commenting here, that would lie with Josh and Paul. And he hasn’t done or said anything that warranted even a consideration of such removal. He just makes pointless arguments filled with logical fallacies. I didn’t write this because I held out any hope for enlightening the poor chap, but only because it’s an interesting subject and others might find it a compelling read.
Ed…trust me…for now he just makes arguements using logical fallacies. He did that at my page for about a year to. Then…he transgressed from those logical fallacies into genuinely threatening comments that I decided I could no longer tolerate. Hell, I was scared that the Secret Service would start watching my blog if I left 1 or 2 of the things he said about Kerry up.
And he owes me a steak.
While you are in LA you ought to look up Haing Ngor.
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October 31, 2004, 12:42 p.m.
John Kerry’s Other Vietnam War
Why would we trust this man to be our president?
By Stephen Morris
John Kerry has fought this election campaign as a political moderate. Certainly his main foreign-policy advisers are moderate Democrats. But that campaign posture disguises his 34-year record in public life — which produced no legislative achievement, but featured a well-documented obsession with Vietnam and Cambodia that continues to the present day. Kerry made his four and a half months of service in Vietnam an electoral issue, but it’s his 34 years of political activism on Vietnam and Cambodia that go to the heart of his political outlook and character.
In 1970, while still a reserve officer in the U.S. Navy, Kerry undertook his own private meetings with the Vietnamese Communist delegations in Paris. He joined Vietnam Veterans Against the War, a radical-Left organization viewed favorably by Hanoi, membership of which was less than one half of one percent of the 2.8 million Americans who served in Vietnam.
Kerry is remembered and reviled by many veterans for his 1971 speech before the Senate Foreign Relations Committee, in which he accused American soldiers of committing widespread atrocities and war crimes. He specifically asserted that U.S. soldiers were not only carrying out the cruelest tortures, with full knowledge of their commanders at the highest level, but were also “murdering” 200,000 Vietnamese each year. Many of Kerry’s sources — the witnesses at the Winter Soldier Investigation paid for by Jane Fonda — were later exposed as frauds who had never served in Vietnam. Kerry’s blanket libel of American troops was in stark contrast with his silence over the well-documented record of atrocities by the Communists, which were a matter of policy.
But what has been largely overlooked in Kerry’s 1971 speech is that he also supported the Vietnamese Communist cause, mouthing every plank of their political platform as his own. He not only favored immediate unconditional withdrawal of American troops, and creation of a coalition government. He also denounced the then elected government of South Vietnam, where political opposition thrived, as the “Thieu-Ky-Khiem dictatorship.” By contrast he referred to the North Vietnamese Communist dictatorship by its Orwellian official title of the Democratic Republic of Vietnam, and to Hanoi’s southern apparatus as “the Provisional Government.”
Were Kerry’s extremist views merely the misadventures of a war-embittered youth? Hardly.
When Kerry joined the Senate in 1985 one of his early appointments as legislative assistant on foreign affairs was Gareth Porter — an academic with a long record of denying any evidence of major Communist atrocities in Indochina. Porter’s 1976 book, Cambodia. Starvation and Revolution, denied that the Khmer Rouge holocaust was taking place. Of course Kerry himself had been conspicuously silent on postwar Khmer Rouge atrocities while they were happening.
Kerry continued to support some of Hanoi’s foreign-policy interests in the Senate, even at the expense of his often-stated preference for the U.N. In 1990, in a rare act of post-Cold War political unity, the U.N. Security Council approved a plan to end the war in Cambodia with a U.N. Temporary Administration of Cambodia to organize elections. Yet Kerry opposed it. Instead, he wanted the Vietnamese-installed ex-Khmer Rouge Hun Sen to organize elections.
What would be the proper memorial to John Kerry in Cambodia?
I’m sure there’s some point to pasting in that long story that has absolutely nothing to do with the post it is in reply to. But I can’t for the life of me imagine what that point would be. I’m beginning to wonder if our anonymous troll hits the bottle a bit too much. You can’t be this pointless and incoherent on pure air and still manage to dress yourself in the morning and operate a computer.
I have printed out your five page Opus, Ed, and will demolish it (if I can) before too long. I had suggested, in view of Mr. Kerry’s contributions to Cambodia as an elected official that some of those mountains of skulls would be a suitable memorial. On reflection, he should have shared those “honors” with all those who pooh pooed the Domino theory. I agree that the point of that post would not be intelligible to you but will be perfectly clear to the poster who has mis-represented (or maybe I was not clear enough) my view. At any rate, Cambodia got some revenge upon Mr. Kerry thanks to loyal U.S. Navy Officers with long memories and will get more revenge when former LTJG Kerry fulfills his nationally televised promise to Mr. Russert to sign a standard form 180(which the miscreant has not yet done 90 days later) and release ALL OF HIS service records. I suspect it will end Mr. Kerry’s career and that will be a good thing.
I do enjoy a drink or two now and then, usually wine. And, I might owe Mr. Foltz a steak.It is looking good enough for him that he ought to mention an acceptable venue. Meanwhile, the snarky cracks don’t add much to your otherwise pretty good writing.
I am trying to locate a copy or transcript of Janice Brown’s speech at Pepperdine since she made comment about “incorporation” with which you seem to disagree. However, you are relying upon a sound bite from PAW-a group of people known for being dishonest. The Pepperdine office 310 506 4220 has left for the day. In like fashion, I will check the quotes in your 5 page tome as well as ascertain if they are fair or relevent. It would seem to me that the language of the amendment is really all that should count. The proper construction of language that is not clear is to so state and return the problem to those who originated it.
Anonymous couldn’t honestly demolish one of Ed’s arguments on his best day. Only in his fantasies is the People for the American Way known to be dishonest.
So, based on the likes of this:
http://nationaljournal.com/taylor.htm#
and this more recently from Ed
“Janice Rogers Brown is truly out on the fringes of legal scholarship with her assertion that the 14th amendment did not make any of the bill of rights binding on the states”
can I come back out of the corner now for having earlier called Judge Brown a lunatic? (What do you say, Nick?)
Speaking of lunatics: let me second Balta’s sentiments with regard to this particular anon. What do people think in general is the most sensible policy regarding such patently awful commentators? Based on my (albeit not terribly extensive) blogospheric experience, it seems to me that the best policy is that of
–ignore them & they’ll likely go away, or at least wreak only minimal damage;
–respond to them & they’ll likely escalate their nonsense, and tend to hijack the threads (as we’ve seen here).
But I’d be curious to know other people’s view of the matter.
Ed,
First of all, that was an excellent piece. I’ve always thought the Bill of Rights applied to the state governments, but I didn’t know the specific pieces put in place until I read your piece. Although I rarely hear this argument being made, I got this post bookmarked for future reference.
The problem I have, however, is your comment about Janice Rogers Brown not supportive of the privileges and immunities clause of the 14th Amendment. However, a Washington Post op-ed says the Lochner decision was ruled as an infringment on the 14th amendment. This is a contradiction.
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A32114-2003Sep18¬Found=true
Considering I’m typing this pretty late at night, I don’t have time to do my own online research as to what she said, but what did she base her actual support of Lochner? Is it possible that she could support the Lochner decision without agreeing with the privileges and immunities clause?
Anonymous wrote:
Uh, yeah. I’ve seen your idea of demolishing an argument before. I look forward to the next round of well poisoning, ad hominems and empty appeals to authority.
I’m not relying on anything. I’ve stated quite clearly that I’d like to see the quote in context to see if it really reflects her opinion. I wrote yesterday on my own blog:
Sandefur here is Timothy Sandefur, a friend and fellow blogger who is an enthusiastic supporter of Brown’s nomination to the appeals court. He wrote an op-ed piece in yesterday’s San Francisco Chronicle urging her approval and he knows her record far better than I do. I’m certainly open to the possibility that the quote is out of context, and if you get a transcript of the whole speech I would appreciate it very much and like to have a copy.
Sandefur did suggest one possibility to me in an email last night. He hasn’t seen the speech either, so he didn’t know how accurate it was, but he did bring up one possibility here that seems plausible - that viewed in context, she was referring not to incorporation in general but to the question of whether incorporation should be based upon the privileges and immunities clause (the answer is obviously “yes”) or upon the strange bastardization of the due process clause under which it has generally been placed because the Slaughterhouse cases were never overturned. A full transcript of the speech would tell us that.
But my point is that I am entirely open to the possibility that her position is much more reasonable and nuanced than it is portrayed in that chopped up quote, and I said so from the moment I saw it. I don’t think PFAW is any more prone to lying than any other advocacy group, but like all such groups they are prone to mild distortions that support their position. That is equally true of the conservative groups that oppose them. I take information from all such groups with a grain of salt and look for confirmation from a source without an axe to grind.
philosopher-
I read Stuart Taylor’s article yesterday and found it interesting. His argument was very much like the argument of Timothy Sandefur, who supports her nomination, which is that she’s really more acceptable to the libertarian wing of the Republicans than to the conservative wing. She’s a very strong advocate of economic property rights, a la Richard Epstein, and that’s something I generally agree with. I certainly agree that some of the rhetoric I’ve heard from her lately about this alleged “war on people of faith” is looney and ridiculous, but in terms of her legal writings she doesn’t share much in common with the Robert Bork, theocon wing of the conservatives beyond that rhetoric. Bork and his ilk hate the Lochner decision because it recognized broad natural rights not explicitly stated in the Constitution, which is anathema to them. So whatever Brown may be, let’s not casually lump her in with the Borks of the world as she clearly does not belong there.
And let’s also keep in mind that in legal discussions, there is often a lot of nuance that is missed by those who don’t understand the issue in great detail. It’s so easy for a layperson to distort a judicial ruling by leaving out all of the relevant detail that they don’t understand. For instance, I don’t know how many times I’ve heard that Clarence Thomas once ruled that it was okay for prison guards to beat prisoners. In point of fact, what he ruled was that prisoners could sue the guard and the prison for the ill treatment, but it didn’t count as “cruel and unusual punishment” because what may happen in the prison was not part of a sentence imposed by the court. That’s a far more reasonable ruling than the popular distortion would suggest, and there are innumerable examples of this same kind of oversimplification. So I’m always a little hesitant to accept second hand characterizations of what a judge has said or ruled without looking at the context and the full statement for myself.
Expertise wrote:
There does appear to be some tension here, but it may well be tension between her real opinion and a mistaken characterization of her opinion. I’m as curious as you are. The Lochner decision was very much an expansionist decision, in the sense that it was based upon broad, unenumerated natural rights, a typically libertarian position. Bear in mind that there are several different possible positions on the 14th amendment, some of them fairly similar:
1. That the 14th amendment doesn’t incorporate anything at all against the states. This is a silly argument, as it essentially voids the meaning of the amendment entirely and renders whole clauses of it pointless. It’s one thing to disagree on the meaning of a text, but it must mean something.
2. That the 14th amendment incorporates some rights and not others. This is where the courts have been for most of the last century, but even here there is a wide range of opinion on what it does and does not incorporate. Some would argue that it incorporates some of the bill of rights, but not the first amendment, for example. Others would argue that it does incorporate the first amendment except for the establishment clause (Clarence Thomas takes this position). So there’s a lot of variation here.
3. That incorporation is legitimate, but only under the privileges and immunities clause as properly understood, not under the notion of substantive due process.
4. That it incorporates all of the first 8 amendments in the Bill of Rights.
5. That it incorporates all of the Bill of Rights, plus those rights that have been recognized by the courts as legitimate unenumerated rights.
6. That it incorporates not only all of the Bill of Rights and those unenumerated rights thus far recognized as legitimate, but also incorporates the general principle of natural rights as found in the Declaration and other founding documents.
For the record, I advocate 3 and 6 on that list, a very expansive reading of the privileges and immunities clause that includes not only the bill of rights itself, but the foundational principles that the bill of rights seeks to protect. My point here is simply that there is a broad range of opinion on this, and the only truly unacceptable position is the first one, for reasons I explained above.
Well, Jim and Ed, Pepperdine has no record of Janice Brown’s speech at Pepperdine. The reason given by Kim Dildine is that, “She did not want people to be able to take bits and pieces and reproduce them out of context. So, per her request there was no recording or transcript”. I put it to you, as barristers say, where is the source for your comments concerning what she may have said at Pepperdine? Do you think you could persuade those honest brokers over at PAW to come clean with a full transcript? Too, they need explain how they came by it, or, confess to us that, like many other things in their collections, it was just made up for use. Nullius in Verbo.
Anonymous wrote:
That may be the dumbest thing I’ve heard all day. The way you prevent someone from taking bits and pieces of a speech out of context is to preserve a full recording or transcript of it so that you can point out the context which changes the anticipated distortions. I’d certainly like to see the context of those comments because there are a couple of different ways to interpret them. I think I’ve been exceedingly fair in recognizing those possible interpretations and in only saying that if the worst interpretation is true, I’m quite disturbed by them (but not enough to keep her off the court of appeals, where she will still be bound by Supreme Court precedent). It’s highly unlikely that the quotes were made up entirely, but it’s certainly plausible that they are being taken out of context and that her position is a good deal more nuanced than it is being portrayed. Perhaps someone has located some other statement she may have made about incorporation so we can see her views in more detail. I’d certainly like to know what she really thinks about it. But unlike you, I’m not willing to presume the worst merely because I have an opinion. You are as blinded by your zeal to convict PFAW of doing something wrong, with no evidence whatsoever, as those you oppose are in their zeal to attack Judge Brown.
Volokh of 5/3 also clears up some of the mis representations on Brown. There is no need to slur the young lady’s explaination as to why there is no transcript from 1999. What is really dumb, dumb, dumb I think you will agree, is to characterize someone as a loon on the basis of a snippet the origin of which you have not the first clue. You are welcome to the PAW materials which seem at this point to be as fabricated as the materials Volokh discusses and dismisses. He also makes a point that you ought to accept. She has a long judicial track record that is easily reviewed. This is better evidence than possible fabrications.
Anonymous wrote:
And doesn’t even mention the 14th amendment issue, which is the only issue on which I’ve expressed any disagreement with Brown. What I find ridiculous about this is that, judging from your reaction to my statements on this, you’d think that I had come out railing about what a horrible judge she is and criticizing all of her views. In fact, the opposite is true. There were 4 different quotes from her presented by someone else. I agreed with 3 of the 4 and said that I’d have no problem with having her on the appeals court. The 4th one, the incorporation question, I said that if that really represents her opinion and isn’t out of context or false, it would be a loony opinion unsupported by the historical evidence. I also clearly noted several possible other interpretations of what she said and held out the possibility that the quotes do not represent her real views on the subject. But you’re responding as though I was on some crusade to sink her nomination. Perhaps you should try engaging your brain before you spout off from now on. Try it. It saves you from looking like a moron.
The young lady’s explanation is idiotic and I pointed out why it’s idiotic.
Well yeah, that might be dumb. But what is even dumber, and more dishonest, is pretending that I did any such thing when I didn’t. You’re so blinded by partisanship that you have to caricature everyone else’s opinions to make them fit your simplistic view of things. Thankfully, not everyone is as simpleminded as you are.
While I am not completely familiar with all of the views past or current of Judge Posner, I do note in his 1985 book that he uses the term, Judicial Activism. “…Warren becomes ever more partisan and parochial, lawless, and finally reckless”. Have you, or any of your acolytes found the Pepperdine speech? Or, is suggesting such considered poisening the well? If Posner is correct about a lawless SC then why would anyone want to be in the “mainstream”? I realize that stare decisis sorts are the lemmings of our time but, see Posner on the German judiciary WWII
Yeah, Posner is dense, quoted out of context, poisens the well, etc. etc. etc. and the only authority extant is the fast writing EB?
Since I was the one who brought up Judge Thomas and prisoner abuse, let me ask this question. While Judge Thomas argued that cases where prisoners who were beaten did not come under federal jurisdiction since “technically” speaking they weren’t covered by the cruel and unusual punishment constitutional provision, does anyone really think these prisoners would get a fair hearing of their grievances “practically” speaking, by the same state court system that threw them into prison in the first place? So while Judge Thomas’ opinion may be constitutionally sound, it certainly leaves the adjudication of the right to be secure in ones person to the very ones who abused this right in the first place.
What Senator Howard had to say in March of 1866 upon introduction of a bill is quite a bit different from what he had to say later when, presumably, other Senators had spoken and given THEIR views. When Howard spoke on May 23rd of that year, after his extreme Negrophilia had been thrashed by his fellow Senators was this, “…to these (the privileges and immunities listed out in Corfield v. Coryell) SHOULD be added (my emphasis)the personal rights guarenteed and secured by the first eight amendments”. Ed is in bed with Justice Black FALSELY imputing the view of a solitary Senator in the minority as being the view of the majority. Senator Howard was expressing his OWN view period.
When the bill went back to the House there are no comments in the record supporting either Ed or Justice Black. None. There are comments by Henry Aernam and George Latham that you may bring us from your sources that point out the limited application of the 14th Amendment.
It is true that the Due Process clause was specifically incorporated to the enumerated rights of the unconstitutional Civil Rights Bill but no more. It is also true that the just compensation clause was rejected.
Finally, were Ed’s views on this to prevail one wonders, like Sherlock Holmes, why the 14th Amendment Dog took so long to bark? Bluntly, Ed, there are a great number of cases post ratification where the Bill of Rights was held to NOT APPLY to the states. The reason for that is SIMPLY that NO ONE ever THOUGHT that the 14th had been incorporated against the states.
The Dog began barking about the time Judge Janice Brown said it did. It would be useful to see her rationale just as it would be useful to see her Pepperdine remarks other than as snippets.
Both Bingham and Howard proposed a lot of stuff than never even got to first base. I think you accruately represent THEIR views but theirs were those of a small minority, they were even minority on the joint committee.
In the meanwhile, a law professor writes in the Indianapolis Star that of the ten judges currently under consideration by the Senate “at least one of them is a white supremacist”.