Citations in Kelo, or beating a dead horse

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

I address some of this from a "liberal originalist" point of view in TO 

DavidEBernstein at 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 
>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 
>against the states, the 1868 view of the right is far more relevant 
than the 1791 
>In a message dated 6/24/2005 11:41:37 AM Eastern Standard Time, 
>daviwag at writes:
>Relatedly, and less dead horse-wise, I(and as I think someone already 
>out) I'm not sure why the meaning of the Fifth Amendment should be 
>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 
>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


>To post, send message to Conlawprof at
>To subscribe, unsubscribe, change options, or get password, see
>Please note that messages sent to this large list cannot be viewed as 
private.  Anyone can subscribe to the list and read messages that are 
posted; people can read the Web archives; and list members can (rightly 
or wrongly) forward the messages to others.


Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810

More information about the Conlawprof mailing list