That actually is a well-accepted view, perhaps even a majority view
among scholars though one that has been rejected by a divided Supreme
Court; there is solid evidence to believe that the Ratifiers of the
Fourteenth Amendment, unlike those who ratified the Bill of Rights,
believed that they were incorporating the first eight amendments
(perhaps except the Establishment Clause) against the states.
Yet the current legal rule is that certain amendments aren't
incorporated. Since Phil Lee was arguing about whether the federal
government should be free to subsidize state systems that violate rules
which bind the federal government but not the states -- which, for
purposes of our discussion, included all the amendments before the Civil
War, and now includes the few provisions I pointed to -- I tried to draw
an analogy between these two sets of provisions.
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Jon Roland
Sent: Monday, July 30, 2007 4:10 PM
Cc: [email protected]
Subject: Re: FW: The REPUBLICAN ... from New York.
Some of us regard all of those decisions that did not
"incorporate" the BoR to the states were wrongly decided. See
http://www.constitution.org/col/intent_14th.htm
http://www.constitution.org/ussc/110-516jr.htm
http://www.constitution.org/ussc/211-078jr.htm
http://www.constitution.org/ussc/302-319jr.htm
http://www.constitution.org/ussc/332-046jr.htm
Williams v. Florida 399 U.S. 78 (1970)
Apodaca v. Oregon 406 U.S. 404 (1972)
Volokh, Eugene wrote:
The better analogy would be to
federal-but-not-state
prohibitions that persist even now. The federal
government must
generally provide for jury trials in civil cases (with
some exceptions).
The Court has held that this provision does not,
however, apply to the
states. Likewise, the Court have held that states
aren't bound by the
Grand Jury Clause, or by the unanimity requirements of
the Criminal Jury
Trial Clause. Does it follow that Congress is barred
from providing
resources to state justice systems that allow some civil
trials to
proceed without juries, that provide for prosecution by
information
rather than by indictment, or that provide for
nonunanimous criminal
juries? I know of no authority that even hints at such
a result.
--
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