Originalism, Incorporated Rights & 1868

michael curtis curtism at bellsouth.net
Mon Jun 11 18:47:08 PDT 2007


Why is that so?  And what is it's significance for application of the Bill 
of Rights to the states?  Where would one find the answer in authoritative 
legal materials.  Barron gives a cook book formula for applying rights in 
the bill of rights to the states--use no state shall--but that doesn't give 
you established and authoritative meaning of p or i. I think some 
authoritative legal materials found e.g grand jury indictment in due process 
or law of the land--is that enough?  Earl, where have you discussed this 
view and its consequences?

Michael Curtis
----- Original Message ----- 
From: "Earl Maltz" <emaltz at camden.rutgers.edu>
To: "Rosenthal, Lawrence" <rosentha at chapman.edu>; "Stephen Siegel" 
<ssiegel at condor.depaul.edu>; "Conlawprof" <CONLAWPROF at lists.ucla.edu>
Sent: Monday, June 11, 2007 8:12 PM
Subject: RE: Originalism, Incorporated Rights & 1868


> For the record, I believe that the appropriate measure is neither
> subjective intention or public meaning, but rather the established meaning
> in contemporary authoritative legal materials.
>
> At 01:17 PM 6/11/2007 -0700, Rosenthal, Lawrence wrote:
>>How about Cooley's treatise?
>>
>>I have spent some time recently studying Thomas Cooley's treatise.  It
>>was the leading authority on the constitutional constraints on state
>>governments during the relevant period.  Cooley did not understand that
>>the Fourteenth Amendment had incorporated the bill of rights against the
>>states, and he expressed great uncertainty about the meaning of
>>"privileges and immunities."  He also seemed to think that due process
>>basically meant little more than that the legislature could not impair a
>>"vested right," and he is even vague about what that meant.  Although I
>>have great regard for Kurt Lash's work, I am far from convinced that the
>>"original public meaning" of the Fourteenth Amendment (as opposed to
>>"original intention" of John Bingham and a handful of others) was clear.
>>
>>Larry Rosenthal
>>Chapman University School of Law
>>
>>-----Original Message-----
>>From: conlawprof-bounces at lists.ucla.edu
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Stephen Siegel
>>Sent: Monday, June 11, 2007 12:54 PM
>>To: Conlawprof
>>Subject: Originalism, Incorporated Rights & 1868
>>
>>It seems to me that in discussing the limitations that the Bill of
>>Rights
>>places on the states, originalists should focus on the meaning of those
>>guarantees in 1868, not in 1791.
>>
>>Are there any theoretical discussions of the issue, either pro or con?
>>
>>Even if they do not have an extended theoretical discussion, are there
>>any
>>writings that discuss the meaning of incorporated rights by looking at
>>their meaning in 1868 rather than in 1791 - besides Kurt Lash's articles
>>on the Establishment and the Free Exercise Clause?
>>
>>Thank you for any guidance.
>>
>>Stephen Siegel
>>DePaul University College of Law
>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>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.
>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>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.
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> 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.
> 




More information about the Conlawprof mailing list