Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: version B 2.10.2 9/18/84; site cisden.UUCP Path: utzoo!lsuc!watmath!clyde!cbosgd!ihnp4!qantel!lll-crg!seismo!hao!nbires!boulder!cisden!john From: john@cisden.UUCP (John Woolley) Newsgroups: net.politics Subject: Re: Edwin Meese Message-ID: <381@cisden.UUCP> Date: Tue, 7-Jan-86 15:14:20 EST Article-I.D.: cisden.381 Posted: Tue Jan 7 15:14:20 1986 Date-Received: Mon, 13-Jan-86 17:54:54 EST References: <1945@psuvax1.UUCP> <39000046@ISM780B.UUCP> Reply-To: john@cisden.UUCP (John Woolley) Organization: ConTel Information Systems, Denver Lines: 154 Keywords: 14th Amendment Summary: Jim Balter is an ignorant fool Now and then, someone manages to post a "flame" article so appalling in its ignorance, so intolerant in its tone, and so flagrant in its idiocy that to refute it properly requires more space than the flamer deserves. Such an article is Jim Balter's recent berserker attack (<39000046@ISM780B.UUCP> jim@ISM780B.UUCP) on an article I posted on the history of the interpretation of the 14th Amendment. I apologize in advance for the length of this refutation, and urge you to skip it unless either you're interested in the history of the United States Constitution, or you just like to see arrogant fools shown for what they are. Balter accuses me of posting "utter and complete nonsense", of engaging in "the worst sort of disinformation", of propounding "the most perverted and dishonest reading of the 14th amendment", and calls my statement "extraordinarily dishonest". And so on, and so on, and so on, throwing around phrases like "stupid opinions", "intellectually dishonest argument", and "foul and disgusting". Now the point under discussion is fairly simple, and easy to look up, and well known to all scholars of Constitutional history. (Balter seems not to have taken the time to look it up before calling me stupid and dishonest, apparently trusting his remarkable shallow grasp of legal matters to carry his passionate rhetoric along.) The question is this: Was the 14th Amendment, before 1925, held (by the Supreme Court and the Amendment's framers) to apply the Bill of Rights to the States? I had written: >>Until 1925, the Supreme Court had held that when the Bill of Rights said >>"Congress", it in fact meant Congress, and did not limit the powers of >>States. Nobody, as far as I know, ever argued that the Bill of Rights >>itself applied to States. But in 1925 the Court ruled that the 14th >>Amendment (ratified just after the Civil War) implied that the Bill of >>Rights' limitations to Federal power were also to be applied to the States. >> >>During the Senate debates on the 14th Amendment, a clause specifying that >>the States were to be held to Bill-of-Rights limitations was specifically >>rejected. That is, the people who wrote, debated, and ratified the 14th >>Amendment thought it meant one thing, and the 1925 Supreme Court "interpreted" >>it to mean something else. And Balter answers with this frothy garbage: >This is utter and complete nonsense. Your reference without documentation to >clauses and debates to provide a veil of authenticity is the worst sort of >disinformation. To quote the 14th Amendment itself: [quotes Section 1] >If the clause you mention was rejected, it was only because it was so >obviously redundant. The Bill of Rights includes "privileges and immunities >of citizens of the United States", and only the most perverted and dishonest >reading of the 14th amendment could allow an interpretation which does not >bind the States to the B-of-R. Your implication that the writers of the >14th amendment did not intend it to apply to the B-of-R is extraordinarily >dishonest. Now, first off, if we always included all the references and documentation necessary to substantiate every point made in every posting, the net would have shut down long ago from sheer volume. We all customarily leave things undocumented. A polite person, an honest person, who wanted to challenge the accuracy of someone's "non-included references" would do one of two things. He would either researche the question himself and post an article disagreeing with the original posting, or he would ask the author of the original posting for his references. Balter does neither. He didn't ask me what my sources were -- I would have told him. He didn't even find a textbook and read the appropriate chapters. No, in an area (Constitutional history) in which his ignorance is profound, he just fires off a nasty flame. All he would have had to do is ask a lawyer, and he could have saved himself the embarassment of being made a public example of ignorance, arrogance, and quackery. So herewith a very incomplete bundh of references: (I warned you it would be boring.) From a standard textbook of Constitutional development: "While the Bill of Rights does not restrict state power, the Fourteenth Amendment does. Beginning in 1925 the Supreme Court has held that some of the basic rights protected against federal invasion by the Bill of Rights comprise part of the "liberty" which the Fourteenth Amendment forbids the states to abridge without due process of law." (Cushman's _Leading_Constitutional_ Decisions_, 13th edition, 1966, p.74) From a huge article on the whole subject, replete with citations on the original debates in the House and Senate: "In his [Mr. Justice Black's] contention that Section 1 was intended and understood to impose Amendments I to VIII upon the states, the record of history is over- whelmingly against him." (Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding" in 2 Stanford Law Review 5, 139.) And again: "...beginning about 1925 the Supreme Court began to expand the meaning of the term 'liberty' in the due process clause of the Fourteenth Amendment to include some of the rights, i.e. freedom of speech and press, guaranteed by the federal Bill of Rights." (Cushman, p.151) In 1884, the Supreme Court in Hurtado v. California, 110 U.S. 516, held that the 14th Amendment does not require a grand jury indictment in a state court, even though the 5th Amendment requires it in federal prosecutions. In 1922, the Supreme Court, in Prudential Insurance Co. v. Cheek, 259 U.S. 530, stated: "neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech'." The first case in which the First Amendment's guarantee of freedom of religion was held to apply to states was Hamilton v. Regents of the University of California, 293 U.S. 245, in 1934. Even as late as 1937, the Court ruled in Palko v. Connecticut (302 U.S. 319; 82 L. Ed. 288; 58 Sup. Ct. 149), Mr. Justice Cardozo writing for the majority: "...in appellant's view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original Bill of Rights (Amendments 1 to 8) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule. ...The Fifth Amendment provides also that no person shall be compelled in any criminal case to be a witness against himself. This Court has said that, in prosecutions by a state, the exemption will fail if the state elects to end it. Twining v. New Jersey, 211 U.S. 78 ... The Sixth Amendment calls for a jury trial in criminal cases and the Seventh for a jury trial in [some] civil cases ... This Court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether. Walker v. Sauvinet, 92 U.S. 90; Maxwell v. Dow, 176 U.S. 581.... As to the Fourth Amendment, one should refer to Weeks v. United States, 232 U.S. 383, 398, and as to other provisions of the Sixth, to West v. Louisiana, 194 U.S. 258." And I could list hundreds more references. Will Balter hang his head in shame? Will he stop posting his asinine garbage? Will he stop insulting people who really do know what they're talking about? Will he apologize? I doubt it. -- Peace and Good!, Fr. John Woolley "The heart has its reasons that the mind does not know." -- Blaise Pascal