Citations in Kelo, or beating a dead horse

Scott Gerber s-gerber at onu.edu
Fri Jun 24 09:00:10 PDT 2005


I address some of this from a "liberal originalist" point of view in TO 
SECURE THESE RIGHTS (NYU Press).
Scott


DavidEBernstein at aol.com wrote:


>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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--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/


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