Citations in Kelo, or beating a dead horse

[DavidEBernstein at aol.com]

I'm not sure from an originalist point of view that the incorporation 
doctrine is correct (and if it is, it should almost certainly be done through 
Privileges or Immunities), but if it is correct, and one is an originalist, than the 
1868 interpretation should govern.  Even if one is not a whole-hearted 
originalist, to the extent one looks at the history of a "right" to be applied 
against the states, the 1868 view of the right is far more relevant than the 1791 
view.

In a message dated 6/24/2005 11:41:37 AM Eastern Standard Time, 
daviwag at regent.edu writes:

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


Professor David E. Bernstein
George Mason University
School of Law
http://mason.gmu.edu/~dbernste
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