Posted on 05/21/2002 11:54:40 AM PDT by tpaine
The words in the Constitution and Amendments must be given the meanings they had when ratified. In other words, since meanings change over time in a living language such as English, we cannot arbitrarily apply 1868 meanings to words used in 1789, nor vice versa.
I don't know if this is what you intended to say, but my view is that when the 14th amendment copies a phrase like "due process" directly from a portion of the Constitution that was written in 1789, the 1789 understanding of the phrase should prevail. In fact, I would even go so far as to say that the entire Constitution, in all of its amendments, should be understood more or less from a 1780's-type standpoint (except in cases where a word clearly has a more modern meaning), and that it's the responsibility of those who draft amendments to make sure that their language is largely consistent with the language that went before it. In other words, the Constitution should read like a single document as much as possible, rather than just a collection of laws.
There may come a time when the language of the Constitution becomes substantially less comprehensible as language evolves further, and at that time, it may be necessary to pass an amendment "translating" the document to a more modern dialect, though I can just imagine the can of worms that would open.
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 tpaine
--- 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.
Thank you. -- In effect, these 'minimum standards' are the bill of rights. It appears we agree on the basics.
-------------------------------------
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."
Enforcing the provisions of the 14th hardly expands overall congressional power over states. Only 'appropriate' legislation is constitutional.
- Again, - most anti-14th rhetoric is hyped up propoganda, imo. -- States themselves can fight inappropriate congressional legislation in the USSC. - That they rarely do tells the tale.
The 14th is not our 'problem'. - It is a political system out of control.
Debate over the anti-KKK bill naturally required exposition of Section 1 of the Fourteenth Amendment, and none was better qualified to explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.... These eight articles... never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" are an express prohibition upon every State of the Union .... Id. at pt. 2, Appendix 84 (Mar. 31, 1871).This is a most explicit statement of the incorporation thesis by the architect of the Fourteenth Amendment.
The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation's independence. See Bartkus v. Illinois, 359 U.S. 121, 151 -155 (1959) (BLACK, J., dissenting). As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries. "[T]he plea of autrefoits acquit, or a former acquittal," he wrote, "is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." Today, every State incorporates some form of the prohibition in its constitution or common law.
Zero support for blanket incorporation.
Indeed. Specifically, it tells the tale of states who've totally abdicated their responsibility in defending their sovereignty. A similar phenomenon is beginning to appear on an international scale, as well.
I never claimed otherwise - you are refuting a case I do not make. My only point is that your statement that Justice Black's views on the 14'th have never been cited or agreed with by any other decision or justice is an overstatement. The Benton case itself cites the dissent directly, in the majority opinion. Therefore it has been cited.
Clearly, Justice Marshall finds Black's reasoning to be something he at least partially agrees with, else he would not have cited it. And if you find that an inadequate example of another Justice agreeing with Black, there is always Duncan v Louisiana, 391 U.S. 145 (1968), where Justice Black restated his Adamson dissent yet again, and was joined by Justice Douglas. Clearly Justice Douglas also finds Black's reasoning compelling, else he would not have signed on to such a dissent. Therefore, Black has been both cited by other justices, and found to be compelling by other justices. Contrary to what you said before.
But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?...The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
United States Supreme Court, SLAUGHTER-HOUSE CASES, 83 U.S. 36 DECEMBER, 1872
Judicial incorporation has been through the due process clause.
Wasn't this the quote you were disputing?
"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)
The court was engaging in word games in order to set up a straw man. The clear meaning of the quoted statement (and other, similar, statements during the ratification debate) was to establish a minimum standard of state protection of "privileges and immunities" (i.e. they had to cover at least the same ground as Amendments I-VIII of the federal Constitution). This is not the same thing as a complete transfer of the entire issue from state to federal jurisidction, just as the establishment of minimum standards for business conduct (i.e. prohibitions of fraud, breach of contract, etc) are not the same thing as government micromanagement.
The Supreme Court, the Congress and the ratifying states didn't appear to agree.
No, this was the quote I was disputing:
"Dissenting opinion, without any historical or legal basis. Unshared by any Supreme Court decision in history or by any other Justice of the court."
:^)
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
The Court today holds that the right to trial by jury guaranteed defendants in criminal cases in federal courts by Art. III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to defendants tried in state courts. With this holding I agree for reasons given by the Court. I also agree because of reasons given in my dissent in Adamson v. California, 332 U.S. 46, 68 . In that dissent, at 90, I took the position, contrary to the holding in Twining v. New Jersey, 211 U.S. 78, that the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States.
Is it your contention that, despite signing on to this concurrence by Black, Douglas did not agree with him?
Even in his notorious Griswald opinion, Douglas didn't argue blanket incorporation.
"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
I'm arguing that it was explicit by the fact that he signed his name below Black's on that case. If Black's blanket incorporation was a problem for him, he certainly could have signed on to the majority decision, or written his own concurrence. He did not - Black spoke in his stead, and therefore we may infer that Black's reasoning is his reasoning.
Even in his notorious Griswald opinion, Douglas didn't argue blanket incorporation.
Apples and oranges. Griswold was about Douglas trying to parse out implied rights from the gaps in the BoR - he was shooting for stuff not explicitly listed in the BoR. In Duncan, the applicability was clear - the question was whether the Sixth amendment right to jury trials, as explicitly enumerated in the BoR, should apply to state prosecutions. In Griswold, there was nothing to be incorporated via the 14'th - the BoR is silent on rights of privacy - so Douglas had to lean on "penumbras" to get what he wanted out of it.
No. While the words "due process" appear in both places and absent specific internal language that they were actually copied from the first place, they first have to be given their meanings according to that understood at the time they were used. To assume they were "copied" means that judicial construction is already being applied before a determination of ambiguity, which enables construction to be used. A Catch 22? No. Construction cannot be applied until after ambiguity is found de novo.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.