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October 6, 2009, 10:06 AM | #51 |
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I think so. I have not read Fairman, but I have a book which contains all of the congressional debates over the reconstruction amendments, and I have read enough to believe that the 39th Congress did not and would not have passed something which made the USBOR binding against the States. I don't seem to find any debate over the subject, just a couple of radicals saying that they thought the 14th should make the USBOR binding against the States. The Amendment came out of a committee of fifteen, and I find it hard to believe that the committee intended to make the USBOR binding upon the States when they didn't discuss it or draft the amendment so that it declared it. I am not aware that it was discussed in the House, or the Senate, or that the States discussed making the USBOR binding against the States when (supposedly) ratifying the amendment. In general, I think the evidence against incorporation completely outweighs the evidence for it.
I've read Bradfords Original Intentions which firmed up my impression, and I've read enough of Berger's Government by Judiciary to wonder how I could have ever believed that the 14th was intended to make the USBOR binding against the States. By the way, Berger's book is online, and the chapter on incorporation is at http://oll.libertyfund.org/?option=c...html&Itemid=27 Last edited by Al Norris; October 6, 2009 at 04:54 PM. Reason: corrected quote |
October 6, 2009, 10:55 AM | #52 | |
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First off, If we look at the legislative history of the 14th Amendment, beginning with the Freedmen's Bureau Bill, and then the 1866 Civil Rights Act, and then the 14th ... at one point the legislation used the term "civil rights and immunities", and it was changed to "privileges and immunities" to ensure that it was not construed to include political rights. Mostly, they intended to exclude the right to vote. But they said the intent was to exclude political rights. So I don't see how we can say that the 14th's P&I were understood to mean political rights. And immunities are something that belong to a select group, making them immune to some obligation that the people in general may have ... whereas natural rights, I think, do not belong to a select group but to everyone. I don't see how the word "immunities" is a reference to natural rights. I think the 39th Congress understood the 14th's P&I to be the same as those spelled out in the 1866 Civil Rights Act. I have a book with all of the congressional debates over the reconstruction amendments, and it has an index which contains "privileges and immunities", so I can reference every single discussion, and I have done so, and I am at a loss as to where we get this idea that privileges and immunities means political and natural rights, much less the idea that it was well understood that way. I do not seem to recall even one quote from a lone radical in the 39th Congress which says that the 14th's "privileges" were political rights or that the 14th's "immunities" were natural rights. But so many radicals said so many crazy things, maybe I just don't remember this one. Last edited by Hugh Damright; October 6, 2009 at 11:13 AM. |
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October 6, 2009, 11:38 AM | #53 | ||
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Berger wrote with an agenda. Most of his writings betray a personal vendetta he seemed to have against the Warren court, particularly Justice Black. This isn't just my opinion; I was first told this by the history professor who assigned it to me as reading, himself a liberal. Read Akhil Amar's Further Adventures of the Nine-Lived Cat to see just how many telling omissions Berger made to argue his case, just as Fairman did. Check out Amar or Michael Kent Curtis for more well-rounded interpretations. As far as original debate and intent, the 39th Congressional Globe is available online in full. Rhetorical question: If the 14th Amendment wasn't designed to apply the Bill to the States, then what was it for? Bear in mind, this argument wasn't just an abolitionist fabrication. Georgia Chief Justice Lumpkin, himself a slaveholder and secessionist, found, in Campbell v Georgia (1852), that: Quote:
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October 6, 2009, 11:41 AM | #54 |
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Please don't take offense, but I'm seeing a lot of "I think" and "it seems" in your arguments. Could you quote book and chapter for us?
I'm not ribbing you; I'd just like the chance to read them.
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October 6, 2009, 04:57 PM | #55 |
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Moved 5 posts from the Palmer thread to this one. Corrected Hugh's quote to reflect who he was quoting and from where.
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October 7, 2009, 07:21 AM | #56 | |
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As a refresher, the reason the "privileges and immunities" language was used was because one of the explicit stated purposes was to overturn the decision in Dred Scott. The drafters of the 14th Amendment used the same exact language the Supreme Court used in describing rights protected by the Constitution in that case to make the point abundantly clear. For example (from Dred Scott): "Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [60 U.S. 393, 406] rights and immunities which the Constitution and laws of the State attached to that character. " To give an even better example from the same decision, showing why this is relevant to the Second Amendment AND strongly pointing to how this language was meant to refer to the Bill of Rights: "More especially, it cannot be believed that the large slaveholding States regarded them[ Negroes ] as included in the word " citizens", or would have consented to a constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public, and in private upon all subjects upon which its own citizens might speak; to hole public meetings upon political affairs, and TO KEEP AND CARRY ARMS WHERE THEY WENT." I won't belabor the point since I know you have had this discussion more than a few times with people who were very well-educated on the subject. |
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October 7, 2009, 10:23 AM | #57 | |
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Apologies if this is too much of a a drive-by, but the LA Times had an interesting op-ed today. They're hardly known for their support of the 2nd Amendment, but they reluctantly support this case:
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October 7, 2009, 10:31 AM | #58 |
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I hope, after finding the 2nd to be incorporated, that the majority will be as eager to offer much-needed guidance as to what constitutes a sensitive place, as it was in tossing out that nebulous, vague term in the first place. Perhaps more useful to our point of view, would be clarification of what does NOT constitute a sensitive place.
Another point, if possession, or more accurately bearing were to be limited to the home as Helmke and others disingenuously insist, why would the court even suggest that certain sensitive places may be out of bounds for bearing? Wouldn't they all be out of bounds? Last edited by maestro pistolero; October 7, 2009 at 01:09 PM. |
October 7, 2009, 12:51 PM | #59 | |||
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Bingham thought that a civil rights act would be unconstitutional and that an amendment was required, that was the origin of the 14th. I think it's probably fair to say that Bingham, at least at some point, designed the 14th to apply the USBOR to the States. I also think it's fair to say that in the end the final version of the 14th was passed with the intent of making the 1866 Civil Rights Act part of the US Constitution. The South was about to regain its representation, it was believed that the act would be repealed, and the 14th was intended to make the act part of the US Constitution where it would take 3/4 of the States to repeal it, thus circumventing the South's representation. The intent was clearly to end racial discrimination in certain areas. We might argue about what more it did, but certainly it was intended to do that. If there was a need to make the USBOR binding upon the States, then why didn't the 1866 Civil Rights Act do that? Last edited by Hugh Damright; October 7, 2009 at 01:01 PM. |
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October 7, 2009, 12:58 PM | #60 |
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Immunities
Previously, on another forum, when someone asserted that the 14th's "immunities" was a reference to fundamental rights, I took time to look for any comments in the congressional debates over the reconstruction amendments about the definition of "immunities", and found:
On Feb 28th 1866, Bingham explained that the word "immunities" meant "exemption from unequal burdens". On Mar 1st 1866, Wilson of Iowa explained that the word "immunities" simply means "freedom or exemption from obligation; an immunity is a right of exemption only, as an exemption from serving in an office, or performing duties which the law generally requires other citizens to perfom. This is all that is intended by the word "immunities" as used in this civil rights bill. It merely secures to citizens of the US equality in the exemptions of the law." Feb 8th, 1869 Senator Frelinghuysen: "An immunity is an exemption from a duty; not the guarantee of a right." Apr 5, 1869 Mr. Golladay: "immunities are rights of exemption only, freedom from what otherwise would be a duty or burden." Apr 6, 1871 Burchard: immunities means "exemption from a burden". If anyone has additional information, then let's add that to my list. But that is what I found when I looked, and there seems to be no assertion that the word "immunities" is a reference to fundamental rights, natural rights, the bill of rights, or anything of that nature. |
October 7, 2009, 01:27 PM | #61 | ||
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The first draft of the 14th Amendment was actually January 12th. It read: "The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property." On January 27, Bingham, Boutwell, and Rogers adopted this language: "Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges." Senator Johnson (who was also counsel for the slaveholder in Dred Scott) made a motion to strike the privileges and immunities clause and lost. Now it seems strange to me that if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act? Quote:
For that matter, let's look at the remarks of Sen. Howard as he introduced the 14th Amendment in the Senate on behalf of the Joint Committee: "Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature —to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms... The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees" Source. So your interpretation is that the Senator introducing the bill on behalf of the Joint House-Senate Committee was a radical minority and his statement that the object of the bill was to guarantee the personal rights secured by the first eight amendments against the states was not the prevailing view of the people who voted for it and ratified it (or of the Joint Committee that he represented?) |
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October 7, 2009, 02:14 PM | #62 |
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Hugh, your arguments I've seen elsewhere seem to hinge on the idea that the 14th Amendment sounded the death knell for States' Rights. This isn't really true.
The Bill of Rights can be considered a written confirmation of the compact that exists between man and government. Those rights cannot be denied by any just government, whether Federal, State or local. The 14th was a confirmation of this. States still have the autonomy to pursue their own diverse policies and practices; they simply are not entitled the power to infringe upon the rights of their citizens. I simply cannot fathom your implication that the 14th was never properly ratified when ratification was unanimous by the time of Georgia's readmission to the Union. You've done a good job of playing devil's advocate, and you've pointed me to some interesting reading, but the bulk of analysis does not agree with your conclusions.
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October 7, 2009, 10:59 PM | #63 |
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I wish that people would not use the term "State's rights" as States only have powers. Only persons have rights.
The word "right" only appears once in the body of the Constitution and that reference is to persons -- authors and inventors -- not entities. The sixteen times that the words "power" or "powers" is used is in exclusive reference to entities -- The States, Judiciary, Executive, or Congress. Call me picky.
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October 8, 2009, 03:26 PM | #64 | ||||||
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"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution; and its use here, in connection with the remaining clause, can only be intended to enlare its signification without being sufficiently explicit to make its meaning undisputed." - Nicholson April 7, 1866 (39th Congress) I somehow have it in my mind that the term "civil rights and immunities" was changed to "privileges and immunities" with an intent of narrowing the scope, specifically to exclude political rights. To be blunt about it, the yankee congress didn't want to force black suffrage upon their own States. That is how I'm remembering it. Regardless, my comment about the P&I was in response to an assertion that it was well understood that "privileges" means "political rights" while "immunities" means "natural rights". Who in the 39th Congress understood it that way, and on what date did they declare so? I seem to be at a loss. What I'm thinking is that Bingham chose the term "privileges or immunites" because of Article IV, and because congress as a whole had gone with the term rather than the term "civil rights and immunities" which covered too much ground. This other idea, where the term "privileges or immunities" was chosen with the purpose of incorporating Taney's dicta in Dred Scott about the P&I including the RKBA, seems so results oriented that it leaves me feeling uncomfortable. Did anyone in the 39th Congress say that they understood the term "privileges or immunities" to be used so that it would embrace Taney's dicta about the RKBA being part of the P&I? Here's a question ... why was it that when the Freedmen's Bureau Bill was amended to specifically include the RKBA, it was not added to the enumeration of civil rights and immunities, but rather it was added to the equal protection clause? Quote:
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It was given that the 14th would fail. Because it was given that the South would repeal the civil rights act, and the intent was for the 14th to make the Civil Rights Act part of the Constitution so the South couldn't repeal it. It was only a question of whether they would ratify the 14th without the Southern States or whether they would force the Southern States to ratify it against our will. They seemed to like to pretend to appear legitimate, so they went with the later method. We should not be fooled. |
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October 8, 2009, 04:20 PM | #65 | |
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Now what types of rights does Justice Taney appear to be enumerating there? If the scope of the Civil Rights Act was to grant these rights to blacks and the scope of the 14th is to make sure that Congress can prevent the states from infringing those rights, where is the substantial difference between incorporating the BoR against the States and whatever it is you think happened? |
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October 8, 2009, 04:40 PM | #66 | |
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October 8, 2009, 08:57 PM | #67 | ||||
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There wasn't much discussion because there wasn't much to discuss: Quote:
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October 10, 2009, 12:42 AM | #68 | |
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On March 13th, S. No. 61 "An Act to Protect all Persons in the United States in their Civil Rights and Furnish the Means of their Vindication" was amended to remove the term "civil rights and immunities" over concern that it was too broad. And it was later, on April 30th, that the final draft of the 14th, the one that used the term "privileges or immunities" and passed, was introduced. Congress rejected the term "civil rights and immunities" over concern that it might be construed to include the political right of suffrage, and then they accepted the 14th's term "privileges and immunities". |
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October 10, 2009, 02:16 AM | #69 | ||||||
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I will point out that Article III, Section Two of the US Constitution defines the US judicial power such that it does not extend to matters between a citizen and his State. So there was no intent to create a US judicial power where we could take our State to US court for violating our rights. Quote:
And I said that after Howard said that the 14th's P&I should include the USBOR then others said that the 14th's scope was the same as the civil rights act. Actually, now that I look, most of what I remember came before Howard's speech ... let's see ... first there was Stevens introducing debate on the 14th on May 8th: House, May 8th - Stevens introducing debate on the 14th: "Some [say] that your Civil Rights Bill does the same thing. That is partly true, but ... it will be repealed ... this amendment once adopted cannot be annulled without two thirds of congress." House, May 8th - Rep Garfield on the 14th: "Every gentleman knows [the civil rights bill] will cease to be a part of the law whenever the sad moment arrives when [the South regains its representation in Congress]. It is precisely for that reason that we propose [the 14th]." House, May 8th - Rep Boyer on the 14th: "The first section embodies the principles of the civil rights bill ... it is objectionable also in its phraseology, being open to ambiguity and admitting of conflicting constructions." House, May 8th - Rep Broomhall on the 14th: "The fact that all who will vote for [the 14th] ... voted for this proposition in another shape, in the civil rights bill ... shows that it will [pass] ... "It may be asked, why should we put a provision in the Constitution which is already contained [in the civil rights act]? [Mr. Bingham] says the act is unconstitutional ... I wish to make assurrance doubly sure ... and to prevent a mere majority from repealing the law" Then Howard introduced the 14th on May 29th, saying that the 14th's P&I should include the USBOR, and: House, May 29th - Rep Latham on the 14th: "the civil rights bill covers exactly the same ground as this amendment" Quote:
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Last edited by Hugh Damright; October 10, 2009 at 02:32 AM. |
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October 10, 2009, 05:02 AM | #70 | |||
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Tennessee was the only former Confederate state to freely ratify the 14th Amendment (July 19, 1866). Six former Confederate states (GA, LA, NC, SC, TX, VA) and two Union states (DE, KY) specifically rejected the 14th Amendment prior to March 2, 1867. With 28 of 37 states required to ratify the amendment, eight states had already rejected it, and four former Confederate states had yet to vote; the 14th Amendment was essentially dead in the normal course of the constitutional amendment process. The Reconstruction Act, passed on March 2, 1867, placed ten "rebel states" (AL, AR, FL, GA, LA, MS, NC, SC, TX, VA) under martial law and denied them representation in Congress until the 14th Amendment was ratified. Quote:
To further pollute the ratification process, two Union states (NJ, OH) rescinded their ratification of the 14th Amendment, which Congress simply ignored. Quote:
Last edited by gc70; October 10, 2009 at 05:12 AM. |
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October 10, 2009, 08:30 AM | #71 | ||
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Johnson, who was definitely opposed to the 14th and the Civil Rights Act, is one of the first Senators to speak after Howard. And what is the first thing he does? He brings up the suffrage issue. No discussion at all about the "eight amendments" comment. Then come comments by Senators Wade, Wilson, Clark, Fessenden, etc. You claim this is a radical view and yet when the 14th Amendment is presented with this introduction (which you also claim is a deviation from the intent of the Joint Committee), nobody comments on it? Let me try putting this another way... What were the state laws that infringed on a white man's rights under the first eight amendments of the Constitution at the time these debates were held? Were there any? Stevens introduction on May 8: "They are all asserted in some form or other, in our Declaration or organic law; but the Constitution limits only the actions of Congress and is not a limitation on the states. This amendment supplies that defect and allows Congress to correct the unjust legislation of the States, so far that the law that operates upon one man, shall operate equally upon all." Your assertion is that the Amendment was only designed to the specific issue that Stevens addressed, that whatever law would apply to a white man would apply to a colored man as well. However, my point is that at the time, there were basically no state laws infringing on rights protected by the first eight amendments except as they related to slavery and color issues. Also, Stevens is addressing the House and attempting to secure passage of the amendment. He has slightly different political concerns than Stevens who can afford to be more candid in the Senate (and was). As such, it is understandable that many in Congress would see no significant difference between incorporating the Bill of Rights against the States and applying the Civil Rights Act against the States. We have the explicit statement of several members of Congress that the bill is meant to incorporate the first eight amendments against the States. Yet we do not have a single comment from any member of Congress explicitly refuting or asking for clarification on this point you consider radical? That doesn't strike you as odd? They spend half a page discussing what the word "Abridged" means; but glossed right over the whole business about this will apply the first eight amendments? Last edited by Bartholomew Roberts; October 10, 2009 at 09:05 AM. |
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October 10, 2009, 09:50 AM | #72 | ||
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Fairman's claim that Bingham was somehow pulling a fast one in regards to incorporation is a bit disengenuous considering that the drafting and ratification were regular front-page news in the New York Herald, New York Times and Philadelphia Inquirer at the time. The legislature and general public were well aware of what was being drafted. Quote:
Really, Berger had an axe to grind with the Warren Court, and he had an agenda before he even laid pen to paper. Broaden your source reading a bit.
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October 11, 2009, 09:24 AM | #73 |
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I was just reading the law professors' brief, they call for overturning Slaughterhouse and its descendants and giving meaning to the privileges and immunities clause in incorporation law.
Will the court do that? |
October 11, 2009, 10:12 AM | #74 | |||
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March 13, 1866 (pages 1366/1377 in the Globe) re: Amendment to S. No. 61 "An Act to Protect all Persons in the United States in their Civil RIghts and Furnish the Means of their Vindication" Mr. Wilson reported back from the Committee with amendments, the first of which struck out the text about "civil rights or immunities" ... Wilson said that some gentlemen were apprehensive that the words might give warrant for a latitudinarian construction not intended ... Mr. Hill asked what became of the promised amendment saying that nothing in the bill should be construed to interfere with the right of suffrage in the States ... Mr. Wilson said that it was unnecessary, and explained: "Some members of the House thought, in the general words of the first section relation to civil rights, it might be held by the courts that the right of suffrage was included in those rights. To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section. Therefore the amendment referred to by the gentleman is unnecessary." What is the point of quoting this or that radical saying they wanted to address suffrage with the 14th when clearly the 14th did not address suffrage? Quote:
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Frankly, I am not following this reasoning ... to question if there were any laws which violated the first eight amendments except as they relate to discrimination, and to conclude that there was a need to make the USBOR binding against the States ... and to question if there was discussion over making the USBOR binding against the States, and construe that to be evidence that such was the intent. The idea seems to be that if it wasn't needed and wasn't discussed, then that proves it was intended. From what little I know about Michael Kent Curtis, this sounds like his results oriented activist "reasoning". |
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October 11, 2009, 11:27 AM | #75 | |
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You really need to read something other than Fairman and Berger. It's like approaching the gun-control debate citing only VPC press releases for data.
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