JohnTaylor
Sergeant
- Joined
- Feb 7, 2006
This is off-topic for the thread on Northern motives for war, so I thought I'd start a new one.
I did a little digging on incorporation doctrine. Apparently there is quite a cottage industry amongst legal scholars in divining what the XIV Amendment actually means. Apparently, the debate has sometimes been quite nasty. (e.g. see Fairman, Crosskey, Raoul Berger, and Michael Kent Curtis)
A debate opened up in 1949 with an article by Charles Fairman on the incorporation doctrine. (Charles Fairman, " Does the Fourteenth Amendment Incorporate the Bill of Rights?, " 2 Stanford Law Review, (1949). Fairman's article is 134 pages (in a law review magazine!). Professor Crosskey responded, and they were off. This debate picked up steam when the Brown vs. Board of Education in 1954, when the Federal judiciary used incorporation to overturn Jim Crow laws. An honorable end, no doubt, even if the means are a little loose. I don't have Fairman's complete article (I'm trying to get it from the local library), but I found an article that summarizes Fairman's lengthy argument. Please do not take this to mean that I oppose school desegregation; I support school desegregation. I just believe that the doctrine of incorporation is at least questionable, especially if the doctrine is used for less honorable goals, which I believe it has been).
Relevant excerpts from the article summarizing Fairman are provided below (with a link to the full summary):
"On May 23, 1866, Senator Howard rose in the Senate, referred to the illness of Fessenden, and stated that he would "present 'the views and the motives which influenced the committee, so far as I understand [them].' After reading the privileges and immunities listed in Corfield v. Coryell, [6 Fed.Cas. 546, No. 3230 (C.C.E.D.Pa.1823),] he said, 'to these privileges and immunities ... should be added the personal rights guaranteed and secured by the first eight amendments.' That is the sum and substance of Howard's contribution to the 'incorporation' issue." [Note: R. Berger, supra note 26, at 147‑48 (quoting Congressional Globe 2764‑65).]
Raoul Berger notes in his analysis of the incorporation question that the remark of Senator Howard was tucked away in the middle of a long speech, that Howard was a last minute substitution for the majority chairman, that Howard was in the minority on the committee, and that after Howard was through speaking Senator Poland stated that the fourteenth amendment secured nothing beyond what was intended inthe original privileges and immunities clause of Article IV Section 2. [R. Berger, supra note 26, 148‑49.] Senator Doolittle followed Senator Poland with some additional remarks which were designed to reassure those whose votes had already been won in favor of passage of the fourteenth amendment that indeed the amendment was limited to known objectives, which objectives were not intended to encompass the federal Bill of Rights.
The scholarly analyses of Professors Fairman and Berger persuasively show that Mr. Justice Black misread the congressional debate surrounding the passage of the fourteenth amendment when he concluded that Congress intended to incorporate the federal Bill of Rights against the states. See infra p. 42‑ 44 (discussion of Blaine Amendment). So far as Congress was concerned, after the passage of the fourteenth amendment the states were free to establish one Christian religion over another in the exercise of their prerogative to control the establishment of religions."
http://68.166.163.242/cgi-bin/readart.cgi?ArtNum=27826
I did a little digging on incorporation doctrine. Apparently there is quite a cottage industry amongst legal scholars in divining what the XIV Amendment actually means. Apparently, the debate has sometimes been quite nasty. (e.g. see Fairman, Crosskey, Raoul Berger, and Michael Kent Curtis)
A debate opened up in 1949 with an article by Charles Fairman on the incorporation doctrine. (Charles Fairman, " Does the Fourteenth Amendment Incorporate the Bill of Rights?, " 2 Stanford Law Review, (1949). Fairman's article is 134 pages (in a law review magazine!). Professor Crosskey responded, and they were off. This debate picked up steam when the Brown vs. Board of Education in 1954, when the Federal judiciary used incorporation to overturn Jim Crow laws. An honorable end, no doubt, even if the means are a little loose. I don't have Fairman's complete article (I'm trying to get it from the local library), but I found an article that summarizes Fairman's lengthy argument. Please do not take this to mean that I oppose school desegregation; I support school desegregation. I just believe that the doctrine of incorporation is at least questionable, especially if the doctrine is used for less honorable goals, which I believe it has been).
Relevant excerpts from the article summarizing Fairman are provided below (with a link to the full summary):
"On May 23, 1866, Senator Howard rose in the Senate, referred to the illness of Fessenden, and stated that he would "present 'the views and the motives which influenced the committee, so far as I understand [them].' After reading the privileges and immunities listed in Corfield v. Coryell, [6 Fed.Cas. 546, No. 3230 (C.C.E.D.Pa.1823),] he said, 'to these privileges and immunities ... should be added the personal rights guaranteed and secured by the first eight amendments.' That is the sum and substance of Howard's contribution to the 'incorporation' issue." [Note: R. Berger, supra note 26, at 147‑48 (quoting Congressional Globe 2764‑65).]
Raoul Berger notes in his analysis of the incorporation question that the remark of Senator Howard was tucked away in the middle of a long speech, that Howard was a last minute substitution for the majority chairman, that Howard was in the minority on the committee, and that after Howard was through speaking Senator Poland stated that the fourteenth amendment secured nothing beyond what was intended inthe original privileges and immunities clause of Article IV Section 2. [R. Berger, supra note 26, 148‑49.] Senator Doolittle followed Senator Poland with some additional remarks which were designed to reassure those whose votes had already been won in favor of passage of the fourteenth amendment that indeed the amendment was limited to known objectives, which objectives were not intended to encompass the federal Bill of Rights.
The scholarly analyses of Professors Fairman and Berger persuasively show that Mr. Justice Black misread the congressional debate surrounding the passage of the fourteenth amendment when he concluded that Congress intended to incorporate the federal Bill of Rights against the states. See infra p. 42‑ 44 (discussion of Blaine Amendment). So far as Congress was concerned, after the passage of the fourteenth amendment the states were free to establish one Christian religion over another in the exercise of their prerogative to control the establishment of religions."
http://68.166.163.242/cgi-bin/readart.cgi?ArtNum=27826
Bringing the