Evil: I’m unfamiliar with the case, but I’m surprised the case can’t be defended on plain-vanilla fourth amendment grounds – from your description, it certainly sounds like there was no probable cause for a search (IIRC, a tip must be trustworthy from the “totality of the circumstances” to constitute probable cause).
Great, so now we’ve established that you think the Bill of Rights should have no application whatsoever against state governments. All speech, and all religious liberty, therefore depends upon the forebearance and kindness of, for instance, the Hialeah City Council. And Texas can torture criminal defendants all it wants, while New York can seize private property for public use without any compensation to the property owner. Hooray for states’ rights!
Any other positions I can back you into that make your philosophy look hideously unpopular?
That isn’t quite what I said. Did you even read my post? **
Not true. Florida Constitution, Art. I:
**
Again, not true. Texas Constitution, Art. 1:
**
My God, minty, you must be a shareholder in a straw company. New York Constitution, Art. 1:
**
Popularity != correct. Nevermind the fact that none of the examples you cite are actually valid, since each of those instances is protected via state constitutions.
I don’t particularly give a shit about those state constitutions. The point is, as I am sure you are aware, that under your horribly constrained reading of the 14th Amendment, the states can do whatever they want to speech, religion, cruel & unusual punishment, etc. If Texas wants to pass an amendment tomorrow morning providing for the mandatory castration of all jaywalkers, you have no legal objection to that? Sorry man, that’s just crazy. There is a very long history of cases where state law stomped all over the Bill of Rights. Once again, thank goodness for the 14th Amendment that prevents them from doing so.
BTW, you asked earlier:
Cite with some pretty good discussion of the argument over drafting and ratifying the 14th Amendment. Thought it’s certainly true that the primary motivation was securing the rights of black folks, it is undeniable that the amendment itself speaks of the rights of all citizens, and that they certainly were thinking that XIV would extend “all the guarantees” of the Constitution to all citizens, regardless of any state laws to the contrary.
Of course not, because their existence completely destroys the examples you suggested. **
Subject, of course, to their own constitutional restraints (and, I might add, federal statutory law). Why you persist in pretending these protections do not exist is beyond me.**
Well, jeepers, if you want to posit crazy-assed scenarios that simply never will happen, consider this: Congress goes nuts, proposes repealing the first amendment, passes it by 2/3 and somehow manages to get 3/4 of the states to go along. If that were to happen, do you still think free speech would be a protected right?
I mean, really, minty, to say you’re stretching is an understatement. Sure, the states can amend their constitutions, but so can the federal government. **
**Spare me. While one or two reps may have had broader designs, that hardly amounts to proof of an intent for full incorporation of the Bill of Rights. And the article has its suspect moments – citing, for example, a failed proposed amendment to the 14th amendment which would have made some facets of incorporation explicit as proof of intent. Isn’t the fact that it failed actually evidence of the exact opposite?
Indeed, it is ironic that, according to your cite, the one right of greatest concern at the time of the 14th’s passage – the right of blacks to keep and bear arms – is one that still has not been incorporated to the states by the judiciary.
Really, why be so cryptic? Why not say “the provisions of the first eight amendments are also binding on the states?”
At any rate, as I’ve said earlier, this is really beyond the point of discussion. Selective incorporation is so firmly entrenched that it is wholly academic to debate its propriety. Why waste the time?
And another supplemental point: it ain’t that easy. According to the Texas Constitution’s amendment procedures, an amendment must first be approved by 2/3 of both houses of the state legislature and then approved by a majority of Texas voters via referendum. The Texas Constitution, like the US Constitution, is not amended on a whim.
Fair enough, but I wish you’d stick to real cases, rather than non-existent hypotheticals. We have a pluralistic government. Power is shared amoung the 3 branches of the federeral government and the 50 states. When an analysis begins by assuming that only one of these 153 parties will properly uphold the Constitution, then it must follow that that party needs power over all the other 152. To see what’s wrong with this sort of reasoning, let’s assume that a different party is the only one to properly uphold the Bill of Rights:
*The SCOTUS has stomped over the Constitution in some cases, in the opinion of some. What if the Supreme Court made a decision requiring mandatory castration of all jaywalkers in Texas? If you object to that, you must agree that the Texas executive must have the right to ignore the SCOTUS. *
Obviously, this sort of analysis makes no sense. Law can never work perfectly. The best we can hope for is that it deal with most real problems in some reasonable way.
The Texas Constitution has been amended many, many hundreds of times, which rather belies Dewey’s claim that there are great practical impediments to doing so. There will undoubtedly be a half dozen or so amendments on the ballot this November, and there is little question that most or all of them will be passed by the voters. It just ain’t that big a deal. And frankly, I think a little castration here and there would be pretty popular with the Lege and the voters. Dewey’s assurances of the good faith and moral righteousness of the state governments, and their citizens, carries little weight with me, and his willingness to let them flip the bird at the BoR whenever they see fit to do so carries no weight at all.
december:
I already mentioned the Hialeah City Council, which cracked down on the practice of the Santeria religion within its borders, a crackdown that was strongly rejected by the US Supreme Court in Church of the Lukumi Abalu Baye (sp? :)).
I’d also point to the school prayer cases. Say what you want about the extents it’s been taken to in recent years, but the idea that states should be free to force schoolchildren to recite prayers in class is abhorrent. I absolutely guarantee you that if Dewey’s crabbed reading of the 14th Amendment prevailed, state and local governments all across the nation would be forcing prayer (and non even the putatively “nondenominational” kind) on public school students.
How about De Jonge v. Oregon, where Supreme Court slapped down Oregon for sending a guy to jail for being a communist? Or Herndon v. Lowry, where it said Georgia couldn’t jail a black guy whose crime was possession of papers urging people to vote for black self-determination? Tinker v.; DesMoines, holding that DesMoines couldn’t punish a student whose non-disruptive black armband protested the Vietnam War? Robinson v. California, striking down a state law making it a crime to be addicted to narcotics, with no other act necessary for conviction? Brown v. Mississippi, setting aside a conviction based solely on confessions obtained through repeated whippings with ropes and studded belts?
Are those cases real enough for you? Dewey would have had the states win every one of them.
I do not agree. Texas’ options at that point are to (a) castrate jaywalkers, (b) get the Constitution amended, or © declare independence and start shooting Yankees again. I’m quite comfortable with denying Texas the power to do whatever it damn well pleases in matters touching upon the Bill of Rights. in the real worldm, it’s a far less troubling prospect than Dewey’s preferred system.
The minor little point that minty isn’t telling you is that the Texas Consitution embraces some fairly detailed areas like education financing and railroads, and that these provisions are the ones that are commonly amended. Most such amendments pass because most such amendments are little more than technical adjustments to matters that most other states handle via statute.
Do tell, minty, how often has Article I of the Texas Constitution – setting forth the Texas equivelant of the Bill of Rights – been amended? And how many of those times has the amendment resulted in a right being taken away? (answer: since 1935, twice; and never).
And seriously, don’t you think that a proposed amendment to take away one of those rights might get a wee bit more publicity and voter interest than an amendment that establishes a small business incubator fund? **
Go ask Gallup and get back to us. **
And minty’s assurances that a doctrine (SDP) that has been used to prevent the federal government from passing laws against slavery (Dred Scott) and that has been used to strike down state government’s attempts to regulate safety in the work environment (Lochner) is just fine-and-dandy carries about as much weight with me.
At least your comment lays bare the crux of your concern: you think your fellow citizens are either too venal or too stupid to shape the societies they live in. You’d rather that shaping be done, at least on the really important stuff, by unelected elites. Unable or unwilling to persuade your fellow man via moral reasoning, you prefer to resort to coercion instead.
I obviously disagree, taking William F. Buckley’s maxim to heart: it is better to be ruled by the first 100 names in the Boston phone book than to be ruled by 100 members of the Harvard faculty.
Two words on the wonderfulness of our state governments:
Jim Crow.
Three words which trump that:
Equal Protection Clause.
Why you keep trying to transform my position from “let’s narrowly interpret the 14th amendment” to “let’s ignore the 14th amendment entirely” is a real mystery.
Huh? It’s been a long time since I read DS, but that was what, 1850? Like, well before there was such a thing as substantive due process? 
That is, as you are certainly aware, not at all how the Lochner Court would describe that decision, which affirmed the freedom of private citizens to contract for their own work hours. “Liberty of contract,” and all that stuff. Not much left to that doctrine these days, but there you have it–an essential freedom protected by SDP.
Damn straight. When it comes to my fundamental rights and liberties as enshrined in the Bill of Rights, I ain’t letting any of you sonsabitches muck about with 'em, and I’m thrilled to have the courts prevent you from doing so.
Try that out on a desert island sometime and get back to me on it.
Dewey, some state constitutions are relatively easy to amend. California, for example, allows for amending the state constitution by referendum. If you can get 8% of the people who voted in the last gubenatorial election to sign a petition, you can put almost any amendment you want to a popular vote.
In addition, lots of states expressely restrict the protections provided by some parts of their constitutions to the minimum required by the federal constitution. To me, this signals a clear, though frustrated desire, to provide less protections for certain rights, if only they could get away with it.
The bottom line is that this is a political discussion rather than a legal one. You envision a very different type of society than minty does. That’s fine. My only complaint is that you and your ilk try and wrap yourselves in the banner of righteous textualism when you are just as willing as the “liberals” to twist the text to your own purposes.
Dred Scott is a long, rambling opinion, but part of it included what might well be the first use of substantive due process (though obviously it used the fifth amendment rather than the fourteenth). To wit:
That last sentence is a transformation of due process from a requirement of fair procedure into one that dictates the permissible content of law – in this case, the notion that the federal government cannot prevent slavery in the territories because a slaveowner must be allowed to bring slaves there.
(He’s also faking it on the line about committing no offense against laws, since a slaveowner bringing a slave into a free state is indeed committing an offense against those laws).
So, bottom line, yes, Dred Scott is an example of substantive due process in action. He who says Roe must also say Lochner and Dred Scott. If due process is an “ink blot” into which a judge can see anything, then Justice Taney’s view of the ink blot is just as permissible as any other. **
Ah, that is how they would describe their decision because that’s what they did – struck down a law regulating work hours in bakeries. Yeah, “freedom of contract” via SDP was the rationale, but their ultimate holding did indeed invalidate that law.
But I take it you see that as an entirely appropriate use of the judicial power? If the court were to return to Lochner-era notions of economic SDP, you’d be cool with it? You’d find the dismantling of all manner of worker protections and minimum wage laws to be consonant with SDP, just because it’s an “ink blot?”
God knows I wouldn’t, even though I deplore that kind of legislation. Holmes’ dissent is spot-on. **
God forbid you try persuasion. :rolleyes:
Putting something to a popular vote is not the same as winning that vote. **
Or it could just be a finding that the federal provisions are satisfactory, and the state is basically co-opting federal law (and the interpretations thereof) as its state law. At any rate, you should really give an example or two so we can discuss it in greater detail.**
Such as…what? I’ve always ceded that there is room to interpret the actual language of the Constitution (e.g., is a wiretap a “search”?). My objection is the writing in wholesale of provisions that simply aren’t there, usually under the guise of so-called substantive due process. At any rate, if I’m “twisting” the text, I’d sure like to see you tell me where in the thread I’ve done so.
One of the nice things about ink blots is that they can be interpreted and reinterpreted many different ways. I’m certainly cool with that in principle, though I am generally loathe to revisit settled law. If I’d been on the Court in the mid-30s, I’d probably have been one of the judges giving FDR fits (though in reality, the “economic freedom” SDP cases were an incoherent mess of contradictions that allowed the Court to justify whatever outcome they wanted in any particular case).
I have no problem with persuasion. The difference between you and me on this BoR guarantees is that I would not play Pilate and wash my hands of the whole thing if that persuasion failed. I’m thrilled that neither the federal government nor the states can stomp on those fundamental freedoms.
Actually, that’s precisely the problem with ink blots.**
Tee-hee! minty green, Fifth Horseman! That’s so cute! **
So you have no problem with persuasion so long as it’s a Hobson’s Choice.
PS – Do you really think rule by the Harvard faculty would somehow be better on a desert island? Good Lord, why? The professoriate is just as venal and manipulative as your average shlub, with the added bonus of being less honest about it.
**
Having a discusion with you, Dewey, is liking being on a rhetorical mobius strip. If you go on long enough, you end up right back where you started.
Do you recall the extended discussion regarding the Ninth Amendment that took place a page or so ago? As I pointed out, there is a perfectly reasonable reading of the Ninth Amendment – based strictly on the text – that would authorize courts to come up with all sorts of constitutionally protected rights. Scalia must ignore this and effectively pretend that the Ninth Amendment doesn’t exist in order to effect his personal philosophical preferences when interpreting the constitution. Let’s be clear: It’s got nothing to do with what the law is and everything to do with what he would like the law to be.
IXth Amendment says this:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Two ways of looking at it:
a) it means that the people may enumerate other rights via the provisions of the Constitution (amendment, legislation); or
b) there’s a whole bunch of other rights that the founders just didn’t have the time or inclination to also list out.
Problem with b) is that there is absolutely no bound upon it, unless you want to say what they meant was “general rights that people enjoyed at the time we wrote the amendment” (which would exclude most if not all of the privacy law the Supremes have created – contraception, abortion, marriage, etc.) What’s to stop me from saying I have a right to have sex with a consenting 12 year old (sex being a “privacy matter” and all), and statutory rape laws are impinge upon that right? Or I have the right to hunt down and kill someone who has impugned the honor of my spouse (marital rights being a “privacy matter”)? Or that I should be free to have sex on the front lawn of the local elementary school (procreation being a “privacy matter”)? As long as I get the right judicial panel, maybe I can pull it off.
Forgive me, TS, it’s a long thread and we long ago left the ninth amendment.
I stand by what I said earlier: the simplest reading of the text is a basic recognition that there are other legal avenues for rights securement. Your protestatations to the contrary, that interpretation simply does not require the text to be “twisted” in any way.