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The Incorporation Debate
Constitutional Conflicts ^ | 5/21/02 | Unknown

Posted on 05/21/2002 11:54:40 AM PDT by tpaine

The Incorporation Debate

The Issue:  Does the Fourteenth Amendment "Incorporate" the Protections of the Bill of Rights and Made Them Enforceable Against the States?
Introduction

The debate over whether the Fourteenth Amendment makes appicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the  U. S. Constitution. 

The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later.  By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states.  In subsequent cases, attention focused on the Due Process Clause.
  Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.  The Court's test for choosing which provisions--along with all the accompanying baggage of decisions interpreting the federal rights--were incorporated changed over time.

The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.

Note that there are several possible positions that could be taken with respect to the incorporation debate. 

First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states and no more.  This was the view argued for by Justice Black. 

Second, one could argue that the provisions of the Bill of Rights are essentially irrelevant to interpretation of the Fourteenth Amendment, and that violations of the Due Process Clause are to be determined by a natural-law-like tests such as "Does the state's action shock the conscience?" or "Is the state's action inconsistent with our concept of ordered liberty"? This is the "No Incorporation" Theory advanced by Justice Frankfurter, among others. 

Third, one could take a position such as Justice White did in Duncan that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions.  This view is often called the "Selective Incorporation" Theory. 

Finally, one could adopt either a "Selective Incorporation Plus" view or a "Total Incorporation Plus" (see Justice Murphy's view in Adamson, for example) view.  These views hold that in addition to incorporating some or all of the provisions of the Bill of Rights, the Fourteenth Amendment also prohibits certain other fundamental rights from being abridged by the states.

Cases

The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)            

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 Bill of Rights
  Incorporated or Not Incorporated?

1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Fully incorporated.

 


TOPICS: Constitution/Conservatism; Culture/Society; Government; Philosophy
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1 posted on 05/21/2002 11:54:41 AM PDT by tpaine
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To: tpaine
And there's a fifth position, which is the one I take: No incorporation, no "natural law" or "shock the conscience" tests - simply, the states are only prohibited from doing what the Constitution expressly prohibits them from doing. Surprised that wasn't even listed.
2 posted on 05/21/2002 12:29:34 PM PDT by inquest
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To: inquest
Your idea is shot down by the 9th. -- "Enumeration".
3 posted on 05/21/2002 12:47:31 PM PDT by tpaine
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To: tpaine
"We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." -- U.S. Supreme Court BARTKUS v. ILLINOIS, 359 U.S. 121 (1959)
4 posted on 05/22/2002 9:41:56 AM PDT by Roscoe
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To: Roscoe
You like Frankfurters opinion, - I favor Justice Blacks view, - from 'Adamson':

"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced.
This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."

5 posted on 05/22/2002 12:43:46 PM PDT by tpaine
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To: tpaine
"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states."

And that still leaves me with my question: why, then, didn't these framers simply come right out and say it in the amendment itself? It wouldn't have been very difficult for them to do. Why all the beating around the bush?

6 posted on 05/22/2002 5:46:05 PM PDT by inquest
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To: inquest
IMO, they didn't 'beat around the bush'. - And it's fairly simple language, for its day. - Justice Black agrees, & makes a very understandable statement to that effect.

I would bet your problem with the 14th is what it says, -- more than how its said. - True?

7 posted on 05/22/2002 6:12:32 PM PDT by tpaine
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To: tpaine
IMO, they didn't 'beat around the bush'

Actually, I agree, because I don't believe that the 14th amendment incorporates the BOR. It's only if one does believe that, that it would very much appear that they were beating around the bush. If the framers intended for that to be the case, they could have very easily said so.

I would bet your problem with the 14th is what it says, -- more than how its said. - True?

I'll admit, if I had my druthers, it wouldn't be a part of the Constitution. It's a rather prolific source of mischief for the federal judiciary. But my biggest problem isn't with the actual provisions of the amendment, but with the way it gets glaringly misapplied.

But in any case, I'd like to hear your (or Judge Black's) explanation of why its authors didn't feel the need to say what they meant, if they truly meant to incorporate the Bill of Rights.

8 posted on 05/22/2002 7:38:43 PM PDT by inquest
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To: tpaine
Dissenting opinion, without any historical or legal basis. Unshared by any Supreme Court decision in history or by any other Justice of the court.

Zealots hate facts.

9 posted on 05/22/2002 7:59:51 PM PDT by Roscoe
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To: inquest
They did say it, and Blacks paragraph explains why.

- If you don't believe Black, read the ratification debates themselves. They're on the web.

10 posted on 05/22/2002 8:06:40 PM PDT by tpaine
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To: tpaine
read the ratification debates themselves.

No support there. Cheap bluff.

11 posted on 05/22/2002 8:07:57 PM PDT by Roscoe
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To: Roscoe
Yep, and you, -- being FR's foremost big government zealot, -- sure do know.
12 posted on 05/22/2002 8:10:30 PM PDT by tpaine
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To: Roscoe
Cheap retort.
13 posted on 05/22/2002 8:11:43 PM PDT by tpaine
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To: tpaine
Facts>

"We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." -- U.S. Supreme Court BARTKUS v. ILLINOIS, 359 U.S. 121 (1959)

14 posted on 05/22/2002 8:16:49 PM PDT by Roscoe
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To: Roscoe
You like Frankfurters OPINION, - I favor Justice Blacks view, - from 'Adamson':

"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."

15 posted on 05/22/2002 8:26:02 PM PDT by tpaine
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To: inquest
And there's a fifth position, which is the one I take: No incorporation, no "natural law" or "shock the conscience" tests - simply, the states are only prohibited from doing what the Constitution expressly prohibits them from doing. Surprised that wasn't even listed.

It might seem inappropriate to you that people have interpreted the due process clause in somewhat different ways, but how are any of those different interpretations less defensible than an interpretation which would hold that it added nothing to the Constitution?

16 posted on 05/22/2002 8:28:14 PM PDT by ned
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To: ned; inquest
Notice that 'inquest' had no answer to our rights NOT requiring 'enumeration' under the 9th. - Or the 14th.

Those who would limit our rights insist that we must list them.
- The opposite is true. - Laws list limits. Freedom is limitless, and need not be listed.

17 posted on 05/22/2002 9:39:45 PM PDT by tpaine
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To: tpaine
Dissenting opinion, without any historical or legal basis. Unshared by any Supreme Court decision in history or by any other Justice of the court.

"We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." -- U.S. Supreme Court BARTKUS v. ILLINOIS, 359 U.S. 121 (1959)

18 posted on 05/23/2002 12:27:11 AM PDT by Roscoe
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To: ned
I didn't say that the 14th amendment added nothing to the Constitution. I said it added very specific provisions to the Constitution, not open-ended "natural law" mumbo-jumbo that basically says to judges that they can legislate however they damn well please.
19 posted on 05/23/2002 6:10:53 AM PDT by inquest
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To: tpaine
Notice that 'inquest' had no answer to our rights NOT requiring 'enumeration' under the 9th. - Or the 14th.

I answered that when I said that the BOR wasn't applied to the states by the 14th. Last time I checked, the 9th amendment was part of the BOR.

Those who would limit our rights insist that we must list them. - The opposite is true. - Laws list limits. Freedom is limitless, and need not be listed.

Philosophical argument. Not a legal one.

20 posted on 05/23/2002 6:13:52 AM PDT by inquest
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To: tpaine
They did say it, and Blacks paragraph explains why.

His paragraph doesn't explain where in the 14th amendment it says that the Bill of Rights shall be applied to the states.

- If you don't believe Black, read the ratification debates themselves. They're on the web.

I don't care what they intended to say, any more than I care about how voters in Palm Beach County intended to vote. All that matters is what they did say. And they did not say that the BOR applies to the states, when they could have easily made it crystal clear that it does. If they write a law saying "thou shalt only eat broccoli on Sundays", am I supposed to be impressed that they meant to say that you should never shave your dog?

21 posted on 05/23/2002 6:27:08 AM PDT by inquest
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To: inquest
I didn't say that the 14th amendment added nothing to the Constitution. I said it added very specific provisions to the Constitution, not open-ended "natural law" mumbo-jumbo that basically says to judges that they can legislate however they damn well please.

I'm sorry. I understood you to be suggesting in post 2 that you were interpeting the provision to mean that "the states are only prohibited from doing what the Constitution expressly prohibits them from doing" in other parts of the Constitution. If what you are actually suggesting is that the Fourteenth Amendment should be interpreted to prohibit the states from doing what the Fourteenth Amendment prohibits them from doing, then you are of course correct and you won't run into any problems with that interpretation until you run into a real case.

In the real cases that will confront you, the statutes that you will be reviewing will not expressly provide, "The purpose and effect of this statute is to deny persons the equal protection of the law," or "The purpose and effect of this statute is to deprive persons of their life, liberty or property without due process of law." So when you attempt to review a real case, you will confront the need to interpret the meaning of the Fourteenth Amendment so that you can apply it to the particular facts presented. That will require that you proceed beyond simply stating that the Fourteenth Amendment "just forbids what it forbids" because that formulation merely begs the question - what does it forbid?

22 posted on 05/23/2002 7:43:24 AM PDT by ned
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To: inquest
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.

--------------------------

In bold, you will find the words that refer to states and restrict them from violating an individuals unenumerated and/or enumerated constitutional rights.

Plain, ordinary language. - You dislike what it says? - Tough.
But to claim you can't understand only raises doubts as to your own abilities.

23 posted on 05/23/2002 8:25:01 AM PDT by tpaine
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To: inquest
I didn't say that the 14th amendment added nothing to the Constitution. I said it added very specific provisions to the Constitution, not open-ended "natural law" mumbo-jumbo that basically says to judges that they can legislate however they damn well please.

Yes, but "privileges and immunities" and "due process of law" are not exactly self-defining terms.

24 posted on 05/23/2002 8:29:59 AM PDT by Lurking Libertarian
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To: tpaine
XIV, if it were ever properly ratified, would repeal or supersede IX and X, at least in part.

I hate to say it, but if XIV were submitted today, there wouldn't be ten votes against it in Congress, and 38 States would ratify it in a week.

25 posted on 05/23/2002 8:30:15 AM PDT by Jim Noble
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To: Jim Noble
Well, whatever it is you 'hate to say', - it is not getting said clearly. - How bout you try again?
26 posted on 05/23/2002 8:37:24 AM PDT by tpaine
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To: tpaine
The only thing in that paragraph that could even come close to referring to the Bill of Rights is the privileges-and-immunities clause. But "privileges and immunities" are not rights. And it's very easy to show that it did not refer to the BOR, because right after it it says, "nor shall any State deprive any person of life, liberty, or property, without due process of law," which was lifted right out of the BOR. So if the P&I clause was intended to comprise the BOR, why was there any need to add on the due-process clause? It would have already been understood.
27 posted on 05/23/2002 8:48:02 AM PDT by inquest
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To: ned;tpaine;Lurking Libertarian
OK, some definitions, some of which I'll be cutting and pasting from posts I've made on previous threads, in case things start to look familiar.

"Privileges and Immunities": All it's understood to mean really is that the state can't interfere with the relationship between the U.S. government and its citizens. For example, a your state would be prohibited from extraditing you to Iran on demand from the Ayatollah, because as a U.S. citizen, you have an immunity to being sent overseas to be prosecuted by a foreign tribunal, except in cases where an extradition treaty might apply, and even then it could only be under the auspices of the U.S. Department of State.

"Due Process": Ned said, "The statutes that you will be reviewing will not expressly provide...'The purpose and effect of this statute is to deprive persons of their life, liberty or property without due process of law.'" Even that unlikely hypothetical situation is a complete contradiction. There's no way a law can violate due process of law, because, "due process of law" means making sure you have a law to back up your actions against someone - in other words, not just throwing someone in the slammer because you consider him a "threat", or just plain don't like him. I know that courts have tried to twist it to mean that if you act on the basis of an "inappropriate" law, then due process is being violated, but that's nothing but a very sophomoric argument. That's what I mean when I said in post 19, that the 14th amendment isn't a blank check for judges to write their own legislation, even thought that's exactly how they've been using it.

"Equal Protection": This clause applies to how courts apply the law. A court would be in violation of it if it were to give someone a lesser sentence for a crime against another, on the basis of who the victim was, because then that victim would be denied his equal protection.

So the common thread running through all three is that they are simply prohibitions against the worst types of potential abuses of state power, not a blanket protection of unspecified natural rights. It's the job of the peoples of those states to make sure their own constitutions contain the appropriate protections, and ultimately, to make sure that their governments respect their rights.

28 posted on 05/23/2002 9:07:49 AM PDT by inquest
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To: inquest
Reread Blacks explanation. -- The 14th was based on overturning the Barron decision.

Really, - you should read more on the basic history of this issue, if you intend to attack its premise.

29 posted on 05/23/2002 9:10:42 AM PDT by tpaine
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To: tpaine
To the extent that the Fourteenth Amendment interferes with the operation of the Ninth and Tenth Amendments, it has the effect of repealing those Amendments, or at least of nullifying their operation which would otherwise prevent enforcement of Fourteen.

Despite the fact that many here on FR favor States as smaller and more malleable sources of government authority, the view of State-Federal relations contemplated by the Fourteenth Amendment is intensely popular where it counts-in State Legislatures.

30 posted on 05/23/2002 9:15:12 AM PDT by Jim Noble
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To: tpaine
Reread Blacks explanation. -- The 14th was based on overturning the Barron decision.

I read each time you posted it. It doesn't change anything. And I replied to it in #21, to which you haven't responded, except by posting the actual text of the amendment, which I dissected for you. Do you want to keep going around in circles like this, or do you want to address any of the actual points I raised?

31 posted on 05/23/2002 9:34:15 AM PDT by inquest
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To: Jim Noble
To the extent that the Fourteenth Amendment interferes with the operation of the Ninth and Tenth Amendments, it has the effect of repealing those Amendments,

You haven't established that the 14th 'interferes'. It defends individual rights, as do the 9th & 10th.

or at least of nullifying their operation which would otherwise prevent enforcement of Fourteen.

You lost me again. Non sequitor.

Despite the fact that many here on FR favor States as smaller and more malleable sources of government authority, the view of State-Federal relations contemplated by the Fourteenth Amendment is intensely popular where it counts-in State Legislatures.

The 14th is popular with state 'law'makers ? - It won't be in CA, when it strikes down the unconstitutional gun laws they have written.

32 posted on 05/23/2002 10:40:08 AM PDT by tpaine
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To: inquest
There's no way a law can violate due process of law, because, "due process of law" means making sure you have a law to back up your actions against someone - in other words, not just throwing someone in the slammer because you consider him a "threat", or just plain don't like him.

I think I understand you. I think you're just saying that the Fourteenth Amendment's due process clause must not be interpreted to limit the power of state legislatures because any law that a state legislature enacts by your definition constitutes due process of law. That's one way of reading the due process clause and it's not necessarily an incorrect interpretation just because hardly anyone else reads it that way.

33 posted on 05/23/2002 11:14:44 AM PDT by ned
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To: inquest
Reread Blacks explanation. -- The 14th was based on overturning the Barron decision.

I read each time you posted it. It doesn't change anything.

I can't help you to understand Blacks clear reasoning.

And I replied to it in #21, to which you haven't responded, except by posting the actual text of the amendment, which I dissected for you.

I responded at #23 with two paragraphs beyond the 'text'. - Which you replied to, but now ignore. - Weird claim .

Do you want to keep going around in circles like this, or do you want to address any of the actual points I raised?

I have addressed every actual point you raised, despite your denials. - So unless you will admit that fact, & move on, this exchange is at an end.

34 posted on 05/23/2002 11:17:48 AM PDT by tpaine
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To: tpaine
You and Judge Black have claimed that the framers of the 14th intended to say a certain thing. I'm not arguing that point. What you both have failed to explain is why it is that what somebody claims he intended to write is to be considered more valid than what he actually writes. You also failed to counter the point I made about the text of the amendment, in showing in detail that it doesn't mention the Bill of Rights, or even allude to them. All you said in response to that, is (again) that the framers intended to have it refer to the Bill of Rights. Thus, you're taking the conversation around in circles, and I think anyone watching us can see that.

Whether or not you terminate the conversation is your choice, but that's not going to stop me from pointing out your non sequiturs to everyone else.

35 posted on 05/23/2002 11:46:44 AM PDT by inquest
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To: ned
I think I understand you. I think you're just saying that the Fourteenth Amendment's due process clause must not be interpreted to limit the power of state legislatures because any law that a state legislature enacts by your definition constitutes due process of law. That's one way of reading the due process clause and it's not necessarily an incorrect interpretation just because hardly anyone else reads it that way.

You're correct that that is what I was saying. If you have a different way of looking at it, that you can back up logically, I'd be interested in hearing it.

36 posted on 05/23/2002 11:50:17 AM PDT by inquest
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To: inquest
You're correct that that is what I was saying. If you have a different way of looking at it, that you can back up logically, I'd be interested in hearing it.

As I understand your usual test for the soundness of an interpretation, it involves asking the question "Why didn't they just write it the way that you're interpreting it?" So, I guess the question for you would be: If the Fourteenth Amendment was only intended to limit the power of state judges and was not intended to limit the powers of the state legislatures, why couldn't they have just said so?

In other words, I suspect that you for some reason believe that your interpretive process is somehow different than the interpretive processes used by others. You are critical of the way in which others have interpreted the due process clause to "incorporate" the Bill of Rights because you see these people as improperly adding meaning to the Amendment that the draftsmen did not express. But your interpretation is no different in that regard. By exempting state legislatures from the scope of the Amendment, you too are adding meaning that the draftsmen did not express.

You cannot escape the need to provide some meaning to the Constitution's words. You can only choose between alternative meanings.

37 posted on 05/23/2002 12:27:56 PM PDT by ned
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To: inquest
You and Judge Black have claimed that the framers of the 14th intended to say a certain thing. I'm not arguing that point.

Of course you are; -- the framers intended to restrict states from violating constitutional rights. They wrote exactly that.

What you both have failed to explain is why it is that what somebody claims he intended to write is to be considered more valid than what he actually writes.

Nope, -- we haven't failed to explain, YOU have failed to understand the actual written language of the 14th. WE can't help you, it appears. - And I no longer WANT to.

You also failed to counter the point I made about the text of the amendment, in showing in detail that it doesn't mention the Bill of Rights, or even allude to them. All you said in response to that, is (again) that the framers intended to have it refer to the Bill of Rights. Thus, you're taking the conversation around in circles, and I think anyone watching us can see that.

Whatever. -- I, nor anyone else, is obligated to 'counter, in detail' your imaginings. Indeed, it appears to be impossible, due to your inability to frame logical points.

Whether or not you terminate the conversation is your choice, but that's not going to stop me from pointing out your non sequiturs to everyone else.

Have at it. - You'll simply make a bigger spectacle of your irrationality.

38 posted on 05/23/2002 2:28:07 PM PDT by tpaine
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To: ned
You are critical of the way in which others have interpreted the due process clause to "incorporate" the Bill of Rights because you see these people as improperly adding meaning to the Amendment that the draftsmen did not express. But your interpretation is no different in that regard. By exempting state legislatures from the scope of the Amendment, you too are adding meaning that the draftsmen did not express.

That's actually not quite the exact criticism I had of tpaine's reasoning. He was trying to make the point that in order to understand what was written, one should examine what someone supposedly intended to be written. What I'm saying, and what I would think is rather self-evident, is that in order to understand what was written, one should examine... what was written. That is, we should look at the text itself and see what kinds of conclusions should be drawn from the words contained therein.

In the case of the due-process clause, for example, it really strains the imagination for me to think that talking about the "process" of law involves any concern about what the law actually says. It looks clear to me that it's only about the way the law is processed - meaning, how it's administered. In the case of the equal-protection clause, I did mention to you on the last thread that I hadn't totally discounted the possibility that it would also apply to legislative acts. It's just a matter of logically examining the implications of that particular conclusion and seeing if it really squares with what the text says. And as for "privileges and immunities", of course, I never would say that it wouldn't apply to legislation, since the amendment actually comes right out and says, "No State shall make or enforce any law which shall...."

39 posted on 05/23/2002 6:49:57 PM PDT by inquest
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To: inquest
What I'm saying, and what I would think is rather self-evident, is that in order to understand what was written, one should examine... what was written. That is, we should look at the text itself and see what kinds of conclusions should be drawn from the words contained therein.

I don't think that anyone would disagree with you on that point and in many cases reference to the text of a statute alone will provide you with all that you need to know to apply a statute to a particular set of facts. When the meaning of a statute is sufficiently clear from the text to permit an interpreter to apply its meaning to a particular problem, that particular job of interpretation is usually over. Unfortunately, the text of the Fourteenth Amendment is not composed of words and phrases that are sufficiently specific or definite to often foreclose the possibility of numerous alternative reasonable meanings.

It is because a choice must be made between these alternative meanings that interpreters often feel a need to look beyond the text in an effort to determine and consider, for example, the "intent" of those who participated in its enactment or a manifest "purpose" in terms of legislative objectives (which can at times be broader than intent) or the historical circumstances and events surrounding its enactment, etc.

In the case of the due-process clause, for example, it really strains the imagination for me to think that talking about the "process" of law involves any concern about what the law actually says. It looks clear to me that it's only about the way the law is processed - meaning, how it's administered. In the case of the equal-protection clause, I did mention to you on the last thread that I hadn't totally discounted the possibility that it would also apply to legislative acts. It's just a matter of logically examining the implications of that particular conclusion and seeing if it really squares with what the text says.

I don't wish to sound overly critical of your view of the Fourteenth Amendment because the amendment's meaning is simply not all that clear. However, I can say that you might find it easier to persuade others that the Fourteenth Amendment should be interpreted to involve a limitation on the powers of state judges (rather than state legislatures) if you could demonstrate that at the time of its enactment, there existed a perception that state judges were abusing and exceeding boundaries that had been had been set for them by state legislatures, that the arguments in support of and in opposition to the adoption of the amendment related to concerns about the manner in which state judges were conducting themselves, and that there existed little or no concern about the effects that acts of state legislatures might have on persons within their reach. Unfortunately, I think the best evidence suggests that the persons involved in the amendment's adoption were in fact far less concerned about the fidelity with which state judges were administering state laws than they were with the past and anticipated future conduct of state legislatures in enacting laws respecting the legal status and rights of recently emancipated blacks. But these are just problems that you may confront in persuading others to your point of view.

Thus far, we have only concerned ourselves with interpretation of the Fourteenth Amendment by Federal judges. Section 5 of the amendment granted to Congress new powers so that it could enact appropriate legislation to enforce the amendment. I can assure you that Congress has never viewed its role in this area as being limited to ensuring that state court judges comply with state law. In considering how Federal courts might review Congressional interpretations of its own authority under the Fourteenth Amendment, you might be interested in this quote from an opinion written by Justice Brennan:

"The historical record left by the Framers of the Fourteenth Amendment, because it is a product of differing and conflicting political pressures and conceptions of federalism, is thus too vague and imprecise to provide us with sure guidance in deciding the pending cases. We must therefore conclude that its framers understood their Amendment to be a broadly worded injunction capable of being interpreted by future generations in accordance with the vision and needs of those generations." Oregon v. Mitchell (1970) 400 U.S. 112.

How do you like them apples?

40 posted on 05/23/2002 9:31:52 PM PDT by ned
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To: ned
Unfortunately, the text of the Fourteenth Amendment is not composed of words and phrases that are sufficiently specific or definite to often foreclose the possibility of numerous alternative reasonable meanings.

Alright, at this point I'm going to have to ask you to elucidate further and give me some reasons why you think that the due-process clause might be read in a different way than I did, keeping in mind the specific reasoning that I gave. What would be an example of an alternative reasonable meaning?

"The historical record left by the Framers of the Fourteenth Amendment, because it is a product of differing and conflicting political pressures and conceptions of federalism, is thus too vague and imprecise to provide us with sure guidance in deciding the pending cases. We must therefore conclude that its framers understood their Amendment to be a broadly worded injunction capable of being interpreted by future generations in accordance with the vision and needs of those generations." Oregon v. Mitchell (1970) 400 U.S. 112.

How do you like them apples?

It's not surprising at all that he should make such a ruling. What he's basically saying is that the 14th amendment gave him and his club a blank check to write legislation on. I'd have to respectfully disagree. If he truly believed what he said about the irreducibility of the meaning of the 14th amendment, then he would have no choice but to rule that it is, what the lawyers call "void for vagueness". That's how they rule in cases where someone passes a law saying something like "Don't do anything bad". It would be utterly irresponsible for judges to turn it into a license to legislate.

41 posted on 05/24/2002 7:50:24 AM PDT by inquest
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To: inquest
Alright, at this point I'm going to have to ask you to elucidate further and give me some reasons why you think that the due-process clause might be read in a different way than I did, keeping in mind the specific reasoning that I gave. What would be an example of an alternative reasonable meaning?

I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges. I believe that its adoption represented a conscious decision to limit the powers of the state governments and to expand the powers of the Congress with regard to state laws and practices.

I believe that that amendment's due process clause was adopted for the purpose of requiring that all states meet some minimum "American" standards of fairness when disposing of a person's life, liberty or property. I believe that the exact parameters of those minimum standards were intentionally left unspecific so as to allow for flexibility in the determination of those minimum standards. I think that any one of the four interpretations presented in the article at the head of this thread would constitute reasonable alternative interpretations for the Fourteenth Amendment's due process clause. In that regard, here is a link at which you can find a summary of historical support for the "incorporation" approach.

As for the equal protection clause, I believe that its primary purpose was to prevent states from discriminating against recently emancipated blacks. I do not view as reasonable any interpretation of the equal protection clause which ignores this history or design. Accordingly, I believe that the range of reasonable alternative interpretations would begin at a level which would forbid states from adopting laws or practices which expressly discriminate between persons on the basis of their race.

It's not surprising at all that he should make such a ruling. What he's basically saying is that the 14th amendment gave him and his club a blank check to write legislation on. I'd have to respectfully disagree. If he truly believed what he said about the irreducibility of the meaning of the 14th amendment, then he would have no choice but to rule that it is, what the lawyers call "void for vagueness". That's how they rule in cases where someone passes a law saying something like "Don't do anything bad". It would be utterly irresponsible for judges to turn it into a license to legislate.

That particular quote was from a case in which Brennan and the Court were concerned with the extent of the powers granted to Congress "to enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment. It had nothing to do with a "license to legislate" by the Court; it concerned the power of Congress to legislate pursuant to Section 5 of the Fourteenth Amendment.

42 posted on 05/24/2002 6:40:52 PM PDT by ned
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To: ned
You wrote:

I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges.
I believe that its adoption represented a conscious decision to limit the powers of the state governments and to expand the powers of the Congress with regard to state laws and practices.

How near, yet far, you are to Justice Blacks view, - from 'Adamson':

"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced.
This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."

------------------------------------

In the *bolded* portion of your statement above you differ from Black only in your reasoning of the 'intent'. -- Black, *in bold*, clearly claims the object of the 14ths Section 1 is to be a general constitutional limit on the state power to 'regulate' individual rights.

Your insistence that it was a bid to expand federal congressional power is simply not born out by the next fifty years, or more, of history. Not till the 'New Deal', in fact, did any real power grab start from the feds. And, by then, the fed grab was aided & abetted by the various state political machines.

The 'evil 14th' is political propoganda, by those who like the statist quo.

43 posted on 05/25/2002 12:20:27 AM PDT by tpaine
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To: ned
Before I begin in earnest, I need to point out a serious misunderstanding you had of my position. You said, "I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges." That doesn't even come close to what I was arguing. In no way was I saying that the 14th amendment would have altered the respective responsibilities of the legislative and judicial branches of the states. You're right that it's a conscious decision to limit the powers of the states - specifically, to limit their arbitrary powers over their subjects, and so it would be expected that its provisions would apply most forcefully (though not exclusively) to those branches of government that are most prone to such arbitrary power - i.e., the executive and judicial branches.

I want to harken back to what you said in your previous post. You stated that if one cannot determine the meaning of a legal statement from the words themselves, one should look at the context surrounding its passage. But before geting into that, it would only be fair to really see if there are truly other reasonable ways of simply looking at the text itself. You gave examples of how the due-process clause might be interpreted in different ways, but didn't provide any justification for them based on the text. What I was asking you to explain is how the phrase "due process of law" can be realistically construed to concern itself in any way with content of a particular law, when common sense would suggest that the word "process" only refers to how something is executed, not what it is. Sorry if I didn't make myself clear earlier.

I also want to revisit another point you made. You stated that it is inevitable that any particular piece of law isn't going to say everything that its authors intended to say, and therefore would require some extra investigation to determine the full meaning. That of course is true; the Constitution would have to be hundreds of pages long if it were to include every facet of meaning that was intended. Therefore, it's understandable that the drafters of a law would state the most basic points using well-chosen words, so that the rest of us would have something to build some meaning from. However, if your interpretation of a particular law results in something that can be easily expressed in fewer words, and with words with clearer meaning, than the words that actually comprise the text, then that would be cause for suspicion of that interpretation. Then, someone would be justified in asking why the framers simply didn't come right out and say it. I'm referring to your quote from Judge Brennan. After reading it, one wonders why the 14th didn't simply say, "The Congress and the federal judiciary shall have veto power over all State laws and policies." That's essentially the same thing. If that's what they had intended, then they really had an obligation to make that clear, especially since it would have resulted in such a profound shift in the balance of power between Washington and the states. And it was particularly dishonest of Brennan to cite the lack of clear intent on the part of the framers as justification for a power grab by the feds, when lack of clarity in a law, as I said earlier, should tend to invalidate it, not increase its scope.

And by the way, I did follow your link, and much of it seems to support my position. For one thing, it shows the lack of clear thinking by the framers in drafting the amendment. Also, in regards to the equal-protection clause, for example, the fact that it originally had language pertaining to race, which they deliberately dropped, would suggest that its scope was not to be in any way limited to race.

44 posted on 05/25/2002 8:41:19 AM PDT by inquest
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To: tpaine
In the *bolded* portion of your statement above you differ from Black only in your reasoning of the 'intent'. -- Black, *in bold*, clearly claims the object of the 14ths Section 1 is to be a general constitutional limit on the state power to 'regulate' individual rights.

I found that I had once underlined the very paragraph that you quoted from Black's dissenting opinion in Adamson. Interestingly enough, Black suggested that the "incorporation" approach would provide a handy way to limit courts in their application of the Fourteenth Amendment: "I think that decision [Twining v. New Jersey] and the 'natural law' theory of the Constitution upon which it relies degrade the constitutional safeguards of the Bill of Rights and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise." Justice Douglas joined in Black's opinion and Justices Murphy and Rutledge joined in a separate dissenting opinion in which they stated that they agreed with Black's "incorporation" approach but believed that the due process clause's meaning should not be limited to just the Bill of Rights ("incorporation plus").

In his concurring opinion in Adamson, Justice Frankfurter also discussed a little history:

"Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court - a period of seventy years - the scope of that Amendment was passed upon by forty-three judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments . . . "

As I said in an earlier post, I believe that all of these various approaches are within the range of reasonable alternative interpretations of Section 1 of the Fourteenth Amendment. While each of these interpretive approaches are readily distinguishable from one another in detail, they are similar in that each of them acknowledges that Section 1 imposes a new constitutional limitation on state laws and practices in the form of an obligation to comply with some minimum standards of fairness in dealing with a person's life, liberty or property.

Your insistence that it was a bid to expand federal congressional power is simply not born out by the next fifty years, or more, of history. Not till the 'New Deal', in fact, did any real power grab start from the feds. And, by then, the fed grab was aided & abetted by the various state political machines.

My reference to the intent to expand congressional power is based solely upon Section 5 of the Fourteenth Amendment: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

45 posted on 05/25/2002 2:41:05 PM PDT by ned
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To: inquest
What I was asking you to explain is how the phrase "due process of law" can be realistically construed to concern itself in any way with content of a particular law, when common sense would suggest that the word "process" only refers to how something is executed, not what it is. Sorry if I didn't make myself clear earlier.

I do think I've understood what you're saying. I believe you to be saying that a state violates the due process clause only if it deprives someone of life, liberty or property in a manner that fails to comply with statutes passed by its own state legislature and that each state legislature may decide for its own state what constitutes "due process of law."

So, if you're sitting at the Supreme Court and you are reviewing a murder conviction of someone who claims his Fourteenth Amendment due process rights were violated because the trial judge refused to allow him a jury trial, then your decision would depend exclusively upon whether or not the state legislature in the state of conviction had passed a statute providing the defendant with a right to a jury trial. If so, and the trial judge defied the state legislature's directions, then the defendant was denied due process.

The problem that I have with this interpretation is that I don't think that people went to all of the trouble of adopting the Fourteenth Amendment just to make sure that state judges complied with the directions of state legislatures. The Fourteenth Amendment provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law." I believe that state legislatures were intended to fall within the scope of the term "State" and that the due process clause obligates the State (including the state legislature) to comply with some minimum standards of fairness when disposing of a person's life, liberty or property. I do not believe, for example, that a state can, consistent with the due process clause, execute or imprison people without trials even if the state legislature enacts statutes providing for executions and imprisonment without trial. I firmly believe that the due process clause of the Fourteenth Amendment was adopted as a limitation on state laws and practices with the understanding that states would thereafter be held to some national standards of "due process of law." The real debate concerns just what those national minimum due process standards should be.

I also want to revisit another point you made. You stated that it is inevitable that any particular piece of law isn't going to say everything that its authors intended to say, and therefore would require some extra investigation to determine the full meaning. That of course is true; the Constitution would have to be hundreds of pages long if it were to include every facet of meaning that was intended.

The Constitution provides that "Congress shall have power to . . . provide for the common defence." I don't believe that we are in any sense crippled by our Founding Fathers' failure to itemize precisely what they meant by "provide for common defence." And I don't think that they phrased that delegation in such general terms simply because they ran out of parchment. I believe that their delegation of that power was made in general terms because they knew that they were incapable of determining for people in the distant future exactly what providing for the common defense might in the distant future require. So they delegated to future Congresses the job of determining what might be necessary and proper to provide for the common defense. Don't overlook the possibility that an inquiry into what our Founding Fathers might have really "meant" by providing for a common defense might lead to the simple conclusion that they "meant" for our present Congress to decide such issues based upon our present needs (at least so long as Congress doesn't try to quarter troops in people's houses in violation of the Third Amendment - LOL).

I'm referring to your quote from Judge Brennan. After reading it, one wonders why the 14th didn't simply say, "The Congress and the federal judiciary shall have veto power over all State laws and policies." That's essentially the same thing. If that's what they had intended, then they really had an obligation to make that clear, especially since it would have resulted in such a profound shift in the balance of power between Washington and the states. And it was particularly dishonest of Brennan to cite the lack of clear intent on the part of the framers as justification for a power grab by the feds, when lack of clarity in a law, as I said earlier, should tend to invalidate it, not increase its scope.

Well, Justice Brennan (in discussing the scope of Congressional authority under Section 5 of the Fourteenth Amendment) was merely referring to the same principle that I mentioned above with reference to Congressional power in the area of our common defense. That principle is that when a draftsman uses terms which are indefinite in scope, it is not unfair to assume that he/she did so intentionally for the purpose of creating greater latitude in possible meaning for future interpreters. If we find it acceptable that Congress was granted broad latitude in determining what is necessary to provide for the common defense, why should we find it unacceptable that Congress was granted broad latitude in determining what is necessary to provide due process of law or the equal protection of the laws?

And by the way, I did follow your link, and much of it seems to support my position. For one thing, it shows the lack of clear thinking by the framers in drafting the amendment. Also, in regards to the equal-protection clause, for example, the fact that it originally had language pertaining to race, which they deliberately dropped, would suggest that its scope was not to be in any way limited to race.

I agree with your assessment. And that is precisely what Brennan was saying.

46 posted on 05/25/2002 4:48:21 PM PDT by ned
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To: ned
I believe you to be saying that a state violates the due process clause only if it deprives someone of life, liberty or property in a manner that fails to comply with statutes passed by its own state legislature and that each state legislature may decide for its own state what constitutes "due process of law."

You believe incorrectly. I acknowledge that there is a fixed meaning which constitutes "due process" which the amendment prohibits states from infringing upon, even by acts of legislature. What it does not prohibit states from doing is passing laws which restrict any type of action on the part of their citizens, provided they use appropriate methods for enforcing those laws. That's my understanding of the word "process".

If we find it acceptable that Congress was granted broad latitude in determining what is necessary to provide for the common defense, why should we find it unacceptable that Congress was granted broad latitude in determining what is necessary to provide due process of law or the equal protection of the laws?

Congress was not given as broad a latitude as you might think in providing for the common defense. This is the full line of that particular authorization, from Article 1, Section 8: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States...." This is a provision authorizing taxation, which simply explains that Congress has the power to raise revenue in order to provide for the common defense and general welfare. It does not say that they can pass any law they please that they might justify as promoting the common defense and general welfare (and in case you're wondering, this isn't just another one of my idiosyncratic interpretations; it's well understood all around to be the case, and well in line with the original intent). What the Constitution specifically authorizes Congress to do, further down in that same section, is provide for an army and a navy (true, it doesn't mention an air force, obviously, but that's pretty much just an army by other means). Even still, the common defense is a highly specific goal; whereas protecting undefined "rights", as the recent history of our supreme court decisions have amply shown, can apply to anything and everything. Virtually any law which restricts people's behavior in some way can be said to violate somebody's "rights". Virtually any spending can be described as "discriminatory", since it's necessarily going to be targeted towards some interest within the population. There is no meaningful limit to how the feds can rule. And there's a certain presumptiveness in saying that the drafters left it to future "generations" to interpret, the presumption being that these "generations" will consist only of people in Washington. The opinions of the "generations" in state capitals apparently are not to be taken into consideration.

And there's another thing I should mention about your link, by the way. It purported to show that the framers intended for the amendment to incorporate the Bill of Rights, but there's a huge catch. Unlike what you were claiming - namely, that the due-process clause could be construed to do that job - such was not what they had in mind for that clause. It was the privileges-and-immunities clause that they (according to the link) intended to incorporate it. But as I pointed out in #27, the final draft of the amendment clearly shows that that clause did not incorporate the BOR, because it is immediately supplemented by a provision that was lifted directly out of the BOR, namely, the due-process clause.

47 posted on 05/25/2002 8:21:23 PM PDT by inquest
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To: ned
Looking back over my replies to you, I can see now how you would have gotten the impression that I was saying that it was absolutely impossible for a state legislature to violate the due-process clause. Again, I'm sorry for not being entirely clear. What I meant to say was that they couldn't violate it by passing laws of the traditional type - you know, "thou shalt" or "thou shalt not". They certainly could violate it by passing laws that interfere or dispense with the ordinary process of law, such as laws that authorize summary executions by law-enforcement authorities.
48 posted on 05/26/2002 8:32:40 AM PDT by inquest
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To: inquest
They certainly could violate it by passing laws that interfere or dispense with the ordinary process of law, such as laws that authorize summary executions by law-enforcement authorities.

Once it is agreed that the Fourteenth Amendment's due process clause requires that a state comply with some minimum procedural safeguards when depriving a person of life, liberty or property, then the question becomes one of determining what procedural safeguards are to be included within those minimum standards.

If you feel that the due process clause requires that a state provide a trial before execution, do you believe that it requires a state to provide a trial before imposing a prison sentence? Under what, if any circumstances, do you believe that a state is required to offer a criminal defendant a trial by jury? Does the due process clause require a state to permit a criminal defendant to appear with an attorney to assist him in his defense? Does the due process clause forbid a state from conducting secret trials that are not open to the public? Does the due process clause requre that a state permit a criminal defendant to confront and cross-examine the witnesses against him or would it be permissible for a state to allow the prosecutor to just relate to the court what the witnesses told him in private? Is a state required by the due process clause to allow a criminal defendant to call witnesses of his own? Is the state required to allow the defendant to testify on his own behalf or can a state pass a law forbidding a criminal defendant from testifying on his own behalf because the state legislature believes that such testimony would be unreliable given the obvious bias? Can a state, consistent with the due process clause, compel a criminal defendant to testify in his own case? If so, what level of force would be consistent with the due process clause?

These are the kinds of questions that must inevitably be faced once it is agreed that the due process clause does impose some standards on the states' criminal justice systems. When the Supreme Court decides that any particular procedural safeguard is or is not required by the due process clause, it is expected to write an opinion explaining its reasoning. In order to avoid the appearance of just being arbitrary, it has sought to find (read devise) a formulation that will allow it to justify its particular decisions in this area. Black hoped that by adopting the view that the due process clause simply incorporates the provisions of the Bill of Rights, the Court would have a more workable platform from which the Court could decide and justify its decisions in this area.

49 posted on 05/26/2002 9:51:46 AM PDT by ned
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To: ned
The argument can certainly be made that due process entails all of the things that we normally would consider the proper means by which the laws should be enforced - from the time a person's charged to the time he's sentenced, and even to the conduct of his punishment. What it does not entail is the nature of the laws that he would be tried and punished for violating. That's the point I've been trying to make. Do you see the distinction in what I'm saying?
50 posted on 05/26/2002 10:07:29 AM PDT by inquest
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