Peter, you are correct, but I don't see why you think we are in disagreement. Mr. Noring lamented the erosion of civil rights, and mentioned in particular the right against self-incrimination, and stated his opinion that the founding fathers would not have approved of such erosion of our civil liberties. My response was that the founding fathers would probably not have approved of the imposition of such requirements on the states in the first place, as it was only later, mostly in the 20th century, that such rights were "imposed" on the states through the Fourteenth Amendment.
I am by no means a Constitutional scholar, but I somehow doubt that the framers of the 14th Amendment thought that the Bill of Rights would be thrust upon the states through the doctrine of incorporation, selective or otherwise (there are a couple of rights--notably the right to a jury in civil cases--that haven't made it yet). That's not to say that I think incorporation was a bad idea, just that it probably wasn't part of the original intent of those who drafted the 14th Amendment.
Mr. Noring's original point is that courts and the legislature will often limit or expand upon particular clauses in the Constitution until their meaning isn't recognizable any more. I think the point of the pending Eldred v. Reno case is that the Constitution's allowance of copyright to an author "for limited times" has been rendered completely meaningless by the current life + 70 years term. I'm inclined to agree with that argument.
Kevin Grierson
>>> junger[_at_]samsara.law.cwru.edu 09/08/00 06:33PM >>> "Kevin Grierson" writes:
: The Bill of Rights was originally intended to apply only to the FEDERAL gove
: rnment, not the states, so the founding fathers were probably familiar with r
: estrictions on civil liberties that were much more dramatic than those we see
: today. Hugo Black's campaign to incorporate the Bill of Rights into the 14t
: h Amendment (and thus force the states to comply with them) did not begin unt
: il 1947 (separation of church and state) and did not end until 1969 (double j
: eopardy). In that time, in addition to those rights, the Supreme Court, by i
: ts judicial interpretation of the 14th Amendment, forced the states to accord
: individuals the right to a public trial, the right to freedom from unreasona
: ble searches and seizures, cruel and unusual punishments, counsel to represen
: t them, a speedy trial, and trial by jury in criminal cases. The right that
: Mr. Noring refers to--the right against self-incrimination--was not imposed u
: pon the states until 1964. I daresay none of these developments was anticipa
: ted by the founding fathers, who pretty much left the individual states to do
: as they pleased.
But surely this issue has to do with the intent of those who adopted the fourteenth amendment, and not with what the founding fathers intended. And after all the first provision of the bill of rights that was ``incorporated'' into the 14th amendment was the ``takings clause'' of the fifth amendment. See Chicago, Burlington and Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1896).
-- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer existsReceived on Wed Sep 13 2000 - 12:39:03 GMT
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