Citations in Kelo, or beating a dead horse

[David M. Wagner]

Relatedly, and less dead horse-wise, I(and as I think someone already
pointed out) I'm not sure why the meaning of the Fifth Amendment should be
relevant, rather than the understanding of public use when the 14th
Amendment was adopted, because any sensible incorporation doctrine would
recognize that it's the liberties contained in the Bill of Rights as
understood in 1868, not the text of the Amendments themselves, that were
incorporated.  But this idea has not yet penetrated the Court.
 
 
 
David: Is your point, then, that if there are three distinguishable meanings
of a B of R clause, one from 1791, one from 1868, and one from (say) 2005,
the Court should prefer the one from 1868 over either of the other two when
applying the B of R to the states?
 
David M. Wagner

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20050624/911bd8a9/attachment.html