bryanw at TJSL.EDU
Sun Apr 1 18:21:28 PDT 2001
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
Sent: Sunday, April 01, 2001 5:00 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: ignorance
I appreciate Kurt Lash's very informative comments, and I agree with and
stand corrected by his very proper precision about when the Court was
incorporating textual clauses of the First Amendment, vs. merely free speech
principles in a generic "liberty" sense via the Due Process Clause. I was,
of course, speaking of Gitlow, Stromberg, Near etc as "incorporationist" in
the rather loose way we are often accustomed to. Chicago B&Q v Chicago
(1897) (Harlan, J) was of course the first Supreme Court decision to
"incorporate" a liberty specified in the Bill of Rights, namely the takings
clause, but only in the indirect way (in Chicago B&Q totally avoiding
textual reliance on the Fifth Amendment clause) that Near, Stromberg did, as
Kurt correctly describes. Chicago B&Q, Near, Stromberg, etc, are still
important "incorporation" milestones in their own right and in their own
(unacknowledged, indirect, or inexplicit) way.
And, I of course agree with Earl Maltz about Slaughter-House as an early
example of a "textualist" incorporation approach -- in both the
Slaughter-House majority and dissenting opinions, in my view.
[SLIGHT CORRECTION: Reading this over, I should probably elaborate more.
To be more precise, I think Miller's majority opinion in SHC suggested a
textualist approach to incorporating Bill of Rights guarantees -- contrary
to the long held orthodox view that the majority was adamantly
anti-incorporationist. Field in SHC resolutely avoided the Bill of Rights
and the incorporation issue and seemed very anti-textualist, though he later
embraced at least a minimum textual/incorporationist approach in O'Neil v
Vermont (1892). Bradley and Swayne in SHC seemed to want to "have their
cake and eat it too" -- endorsing textual incorporation while ALSO embracing
broader, Lochnerian, Fieldian notions of fundamental nontextual liberties.
As law professors love to say, "it's all in my article."]
Shameless plug: see Wildenthal, The Lost Compromise: Reassessing the Early
Understanding in Court and Congress on Incorporation of the Bill of Rights
in the Fourteenth Amendment, 61 Ohio St LJ 1051 (2000), and The Road to
Twining: Reassessing the Disincorporation of the Bill of Rights, 61 Ohio St
LJ 1457 (2000) -- which cite, incidentally, Professor Maltz's provocative
article The Concept of Incorporation, 33 U Rich L Rev 525 (1999).
Bryan Wildenthal, Thomas Jefferson School of Law
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