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Most Overrated USSC Justice of the 20th Century,

not including any Justice who has served in the 21st century. My tentative vote goes to Louis Brandeis, who also wrote the most overrated dissent of the 20th century, his ridiculous pro-monopoly opinion in New State Ice v. Liebmann. But I'm open to suggestions, below.

UPDATE: For a partial explanation of my nomination of Brandeis, see the Comments.

OrinKerr:
David,

If I can ask, why Brandeis?

Orin
8.16.2005 9:26pm
David E. Bernstein (mail):
Off the the top of my head: Well, he's treated as a liberal saint, though he was not especially far-sighted on, say, civil rights issues (Name a great civil rights opinion written by Brandeis?!). He's given credit for inventing the right to privacy, when the right to privacy that he advocated in the Harvard Law Review was actually an anti-free speech right of publicity--which has stopped him from going down in history as a great champion of free speech. His famous "Brandeis brief" in Muller v. Oregon was a mishmash of nonsense, and was derivative in conception of Henry Weismann's brief in Lochner. (Perhaps it's unfair to criticize Brandeis's pre-Court work, but his reputation as a Justice seems bound up with his reputation as a lawyer.) His half-hearted resistance to centralization, reflected in his concurrence in Schecter Poultry, failed to inspire ANY of Roosevelt's appointments to the Court to oppose the constitutionality of ANY New Deal measures. So, to the extent he is thought to represent a less statist version of Progressivism, his vision failed completely.

His support of free speech under the due process clause against the states was also half-hearted, and derivative of McReynolds's opinion in Meyer v. Nebraska (see Holmes's opinion, joined by Brandeis, in Gitlow v. New York: "The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used." As the New State Ice opinion, among others, shows, he was largely ignorant of basic economic principles, and extremely naive about the operation of government. Despite his reputation as a "champion of the poor," he was perfectly content to let the poor pay higher prices for ice and other products, in the name of rationalization of industry. His work in Muller was inspired by a positively reactionary view of women, which inspired more of the same from his protege, Felix Frankfurter (though Frankfurter was less explicitly sexist.) I could go on.

That's not to say there is nothing good to say about Brandeis. But my question was the most overrated Justice, not the worst.

Holmes has also traditionally been vastly overrated, and he was probably worse than Brandeis, but Holmes's reputation has declined of late, while Brandeis's hasn't.
8.16.2005 9:45pm
RJL (mail):
Brennan
8.16.2005 9:46pm
Eric (mail) (www):
William O. Douglas. Only moderately coherent even on his best days.
8.16.2005 9:57pm
theengine:
Although one could make a good case for Burger, it has to be Douglas. Thanks to his opinion in Griswold, we now have an entire regime of poorly written decisions, conflicting doctrines, and arbitrary rulings, all based on the Court's invention of the "right" to privacy.
8.16.2005 9:57pm
magoo (mail):
To criticize a work of literature as derivative makes sense, given the premium placed on originality. But to criticize a Supreme Court opinion or a brief as derivative, simply because its origins can be traced to another ruling or another successful brief, makes little sense, given the obligation to respect precedent. Of course Brandeis was derivative; he was obliged to be. But that doesn't undercut his contribution to the law. Even before he was put on the court, he was regarded as one of the finest lawyers of his generation (not to mention one of the finest citizens and patriots). To watch the mighty Bernstein brush him off as overrated is too funny.
8.16.2005 10:25pm
just me (mail):
I think to be highly OVERrated, a Justice has to be typically rated by many observers as better than he/she really is/was. Thus, I don't think Burger cuts it, because I don't think anyone ever rated him that highly - did they?

A closer case is Thurgood Marshall. To the extent that anyone does rate him a great Justice, I'd say that's overrating. But I think more observers have always said that his rep was higher as an advocate, and that as a Justice he was just so-so. Thus, to the extent his mediocrity was already recognized, he wasn't overrated after all.

I also nominate the sainted Earl Warren as way overrated. Yes, he changed the world, but (1) was that a good thing, and (2) perhaps if he had been able to tie things more closely to, say, LAW, it would have been more accepted.

How about the reverse? Least-appreciated or most-underrated Justice? Stephen Field? I think that in many quarters, Chief Justice Taft is very underrated. His administrative changes, not just at the USSC, but throughout the whole judiciary, really set up the rest of the century. And as Pres., he appointed a whole new Court, essentially.
8.16.2005 10:30pm
Robert Schwartz (mail):
Hugo Black. He invented the odious and pernicious doctrine of incorporation of the bill of rights into the 14th amendment. It makes him an all time stinker in book.
8.16.2005 10:35pm
Anderson (mail) (www):
He invented the odious and pernicious doctrine of incorporation of the bill of rights into the 14th amendment. It makes him an all time stinker in book.

You're kidding, right? I'm just missing the irony?
8.16.2005 10:48pm
Been There, Done That:
honorable mention goes to...

thurgood marshall, who may have been a heroic litigator but was beyond his mental peak as a justice, and never authored any great opinion nor was connected to any particularly unique and/or interesting original idea or doctrine.

but this is just misplaced honor.

the winner has to be holmes. a truly horrible justice, a great enemy of liberty, his eloquence is matched only by the awfulness of his ideas. but he is lauded for the former without any appreciation whatsoever of the damage he inflicted on the law and upon civilization itself.
8.16.2005 10:54pm
magoo (mail):
Regarding Brandeis's allegedly reactionary view of women, note that his daughter, Susan Brandeis Gilbert, was one of the first women to argue a case before the Surpeme Court, and (I believe) the only daughter of a Justice to do so. Somehow she overcame her oppressive upbringing. Her sister became an economist.

For a more generous and nuanced view of Brandeis, see the Feb. 16, 2004 "Brandeis Lecture" by Justice Steven Breyer, available on the Court's website.
8.16.2005 11:01pm
Scott Scheule (mail) (www):
I'm not going to weigh in. Judging by my law school grades thus far, I'm not qualified.

But I would like to point out that there seems to be something different between saying: 1. a Justice is overrated and 2. a Justice acted in a way contrary to my personal politics.
8.16.2005 11:06pm
frank cross (mail):
I suppose the thread is interesting, but I think it's a little humorous.

SCt Justices are not rated much by the citizenry. These ratings generally come from law professors and otehrs surveyed because of their expertise. And while there's nothing wrong with expressing a personal opinion, modesty might compel one to realize that one's opinion is probably not better than that of the larger expert group who did the rating.

Based on the ratings, you can't pick Burger because he's near the bottom. And Douglas and Marshall aren't rated that high. The ones at the top are Holmes, Brandeis, Hughes, Harlan, Brennan. Black and Warren are pretty close. On the current Court, Scalia and Breyer.
8.16.2005 11:10pm
Spoons (mail):
Someday I'm going to find someone to explain to me the conservative case against the incorporation doctrine.
8.16.2005 11:14pm
Scott Scheule (mail) (www):
Where are you getting these ratings from? Do you have a link?
8.16.2005 11:15pm
DavidBernstein (mail):
Breyer's speech perpetuates the myth that Brandeis persuaded the Court to uphold the hours law in Muller v. Oregon. Under Lochner, the Court held that hours laws could be upheld if their police purpose comported with either common sense or data or information provided to the Court. Brewer's opinion clearly states that the hours law in Muller was constitutional for the former reason, given women's role as mothers etc. He threw in a nod to Brandeis's brief, but it quite obviously wasn't the basis of his opinion. And given Brewer's general hostility to economic regulation, the odds that Brandeis's brief alone would have persuaded him had he been otherwise inclined is minimal. Brandeis's fans, and supporters of sociological jurisprudence, decided to invent the myth that Brandeis persuaded the Court to move away from Lochner, when in fact Muller is completely consistent with Peckham's reasoning in Lochner, to promote both Brandeis and sociological jurisprudence. But the myths of the Progressives should not be confused with actual history.
8.16.2005 11:24pm
Vijay (mail):
what exactly is the conservative case against incorporation? Do you mean the jurisprudentially conservative case or the politically conservative case? I can understand a textual assualt against due process as a basis for incorporation, but the privileges and immunities clause, though virtually written out of the constitution, provides a pretty strong textual argument for incorporation.
8.16.2005 11:26pm
nk (mail) (www):
I am sorry you excluded the now-serving justices because my vote goes to Scalia for the most overrated justice of both the 20th and 21st centuries. I say overrated because he is every conservative's, other than myself's, darling. He is no judge. He is a hair-splitting wordsmith and the best argument ever made against appointing law professors to judgeships.

As for your question: Oliver Wendell Holmes. Remember Buck v. Bell's, "Are not three generations of imbeciles enough?" We do not need to look at his other disappointments to Teddy Roosevelt, the president who apointed him, to realize what a mistake he was.

As for Brandeis, the recognition is for his basic intelligence, hard work (I believe he read FCC reports in place of novels)) and talent, and not necessarily for authoring earth-shaking opinions, so I think you are wrong on that count.
8.16.2005 11:50pm
Adrienne Stone (mail):
Prof Bernstein

Could I ask for your views on the Brandeis opinion in Whitney v California?
8.16.2005 11:52pm
nk (mail) (www):
P.S. Forgive the typo: It should be "FTC" not "FCC".
8.16.2005 11:54pm
Steve Donohue (mail) (www):
Given the hyperbolic praise that was rained down upon Justice O'Connor and her ability to find moderation in everyting, build consensus, etc., I'm nominating her. Not a horrible justice, but also not the 2nd coming of Solomon that the media so readily made her out to be. Definitely a hair-splitter, and someone that after over 20+ years on the Court has left no clear tracks which any predecessors should follow.
8.17.2005 12:03am
Robert Schwartz (mail):
"Someday I'm going to find someone to explain to me the conservative case against the incorporation doctrine."

Read this:

Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977) In particular Chapter 8. The link is to an html version of the book. You can also download a pdf.

The one line version is there is nothing in the text of the 14th amendment that says the first ten amendments apply to the states, just as there is nothing that says there is a right to an abortion.

They are just making it up.

Interesting question, if the first 10 amendments are supposed to be incorporated in the 14th, why has SCOTUS never applied the 7th to the states.
8.17.2005 12:19am
frank cross (mail):
Scott, there are several ratings, pretty similar, and a good set are found in a recent book called Seeking Justices
8.17.2005 12:19am
Spoons (mail):
Vijay, I agree. I'm a P&I incorporationist. It's the most natural reading of the text, as I see it.

Robert, I've only skimmed so far, but I don't really see the case yet. If the argument is just that the Due Process incorporation doesn't make sense, I get it. If it's that selective incorporation is indefensible, I'm on board. But I don't see, yet, a good refutation of P&I incorporation.
8.17.2005 12:30am
Daniel Chapman (mail):
I don't believe the 2nd has been incorporated either.
8.17.2005 12:39am
Ian (www):
Robert, I hope you keep preaching the same garbage you are preaching here, because it makes all conservative textualists look bad merely by association.
8.17.2005 12:53am
CrazyTrain (mail):
By the way, Justice Black was a P&I incorporationist.

By the way, I love David B's statement re the "myths of the Progressives." And this follows the statement that "under Lochner" laws could be held if they are consistent with "common sense." Now, who's perpetuating a some sort of new myth??

By the way, I vote for Brandeis as well -- he was antisemitic, and once represented workers in a lawsuit against a corporation. I also nominate every Justice who ever voted to recognize a law I disagree with -- that seems to be the trend above. (And to be serious re a question asked above, are we better off because of Chief Justice Warren? Yes.)
8.17.2005 1:20am
Jimbeaux (mail):
Same with the indictment clause of the Fifth Amendment.
8.17.2005 1:27am
Eh Nonymous (mail) (www):
I'm fully convinced. I came into this thread believing Brennan's eponymous Brief had a massive, shocking effect on legal thinking, just because all the folks who were there at the time said so, and that his impact on the bench was remark-able. As in, capable of being remarked. As he's not in my top five of all-time Justices, I don't see how he could possibly have been overrated. But, the partisan complaints of a blogger have done it. I'm wholly won over.

Also, I now believe that Virginia, despite all evidence to the contrary, could have and still may pass a law respecting an establishment of government, specifically by outlawing Catholicism, Judaism, Mormonism, Jainism, Hinduism, atheism, and Bob-ism (Mighty is Bob, and Fearsome his Wrath). Hat-tip to Thomas for the concept: if the 14th amendment didn't mean something before, no amount of wishful thinking by "liberals" and "progressives" and "everyone else" and a commonly shared understanding held by virtually every American everywhere can change that. Down with stare decisis! Don't incorporate the 2nd amendment against the states! Reject the 3rd Amendment as applied to the states! Ignore the text and meaning of the entire Constitution, because we object to the privacy jurisprudence...

...which derives, solely as far as I can tell, from the text of

- the first
- second
- third
- fourth
- fifth
- sixth
- eighth
- ninth
- and tenth

Amendments to the Constitution.

Thanks to all who commented. Enjoy the meatloaf, and don't forget to tip your wait staff.
8.17.2005 1:27am
DavidBernstein (mail):
CT, that was supposed to be "common knowledge", not "common sense." My error. And if you look at the opinion, Peckham writes: "We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understanding, the trade of a baker has never been regarded as an unhealthy one."
8.17.2005 1:29am
DavidBernstein (mail):
Continued from above: This is the key paragraph in the opinion. Regulation of the hours of bakers can be upheld for health purposes if either the common understanding (common knowledge) or relevant statistics show that baking is actually an unhealthful occupation. In Muller, the Court found that common knowledge suggests that women cannot compete in the workplace with men, and therefore need protective legislation. The Court states that Brandeis's brief "may not technically be authorities" (i.e., his "data" are crap), "yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.... when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge." Myth, huh?
8.17.2005 1:35am
DavidBernstein (mail):
EN: "All the people who were there" except, of course, the Justices of the Supreme Court, and specifically Justice Brewer, who wrote the opinion.

And check what Chief Justice (and Lochner dissenter) Edward D. White had to say about Brandeis's co-authored Brandeis Brief in Stettler v. Ohio. Clearly unimpressed, he said, "I could compile a brief twice as thick to prove that the legal profession ought to be abolished." Alpheus Thomas Mason, The Supreme Court from Taft to Warren 31 (1968).

Brandeis's briefs may have affected legal thinking, by giving aid and comfort to the sociological jurisprudence movement, a precursor to legal realism. But their measured effect on actual USSC jurisprudence of his era is nil. (Another example, despite Frankfurter's extensive "Brandeis Brief" in Adkins v. Children's Hospital, the Court issued its most radical pro-Lochner opinion to that date in that case.)

You want real influence? The fact-laden brief filed by Henry Weismann in Lochner showing that baking was not an unhealthful profession was almost certainly responsible for a rare 5-4 victory in a liberty of contract case.
8.17.2005 1:45am
CrazyTrain (mail):
It wasn't only White, you should have heard what Justice McReynolds said about Brandeis. Very unimpressed -- he saw Brandeis for what he was. Ahhh, McReynolds, now that was a great Justice. He rejected all that "pergressive" and "librul" jurisprudence. Right of privacy, puh-lease.
8.17.2005 1:50am
DavidBernstein (mail):
Re Whitney: I'll defer to Eugene on the proper scope of bans on "crime facilitating speech", but I will note that if you read Whitney carefully, if it were up to Brandeis as a matter of first impression, he would have held that the First Amendment doesn't apply to the states.
8.17.2005 1:51am
CrazyTrain (mail):
Thanks David, and that's the reason I picked "right of privacy" as the bogeyman -- think you missed that there.
8.17.2005 2:01am
Geroge of the (Legal) Jungle (mail):
That's easy: Scalia. He is heralded as a great originalist, when in fact, he only applied originalism when it will help him reach the result he seeks.
8.17.2005 2:32am
Craig C. (mail):
In terms of a single overrated opinion, my vote goes to Justice Cardozo for giving us the pearl of wisdom that the Fourteenth Amendment protects rights that are "implicit in the concept of ordered liberty" in Palko v. Connecticut, 302 U.S. 319 (1937). That line is quoted over and over to this very day, but it really doesn't mean anything! At least Brandeis's "states as laboratories" line in New State Ice makes some kind of sense. Cardozo's line masquerades as a standard, but isn't any more helpful than the text of the Fourteenth Amendment itself. Whatever the merits of Hugo Black, at least his approach to incorporation was well-defined.

Earl Warren and Brennan may not have been the two brainiest Justices, but I'd give them points for their coalition building skills. It's pretty impressive that Brown was unanimous, as was every other desegregation case the court took after that time until Burger took over. Arguably, Brennan started to lose some of his consensus building skills in later years and just started issuing angry dissents, but he still managed to put together some pretty surprising "liberal" victories to the very end, e.g. Texas v. Johnson.

I wonder if the second Harlan isn't slightly overrated. Many times he makes excellent points, but his writing style can be long-winded and hard to track.
8.17.2005 2:35am
richard (mail):
Douglas. The guy was an ass. We had great fun at our law school (a liberal one) laughing about his argument that trees should have judicial standing.
8.17.2005 2:55am
David Berke:
Spoons,

I skimmed the article. It seems to rely largely on a single other article written in 1944. It's heavy on the quotes and commentary, but light on context and facts. Maybe the writing style just doesn't work for me. However....

It's an odd article which states that we should ignore clear statements from (1) The person who presented the amendment to the Senate (thereby informing them what the bill was to accomplish and presumably what they thought they were accomplishing in passing the amendment), and (2) One of the authors of the amendment.

Apparently greater weight should be given to numerous ambiguous or irrelevant comments which were taken out of context and/or may not relate to the full scope of the issue. It is also inconsistent; first it states that the language should be understood as applying only to the privileges and immunities already expressed in the text of the Constitution(completely unnecessary); then it states that the language should be understood as accomplishing no more than the Civil Rights Act of 1866 (presumably, since it does not identify between 1866 and 1875), which would also render the privileges and immunities language irrelevant.
8.17.2005 3:06am
Challenge:
Schwartz,

Obviously full incorporation makes little sense (because many parts are not liberties but structural provisions), but I want to know from Mr. Schwartz what he thinks the P&I Clause does, exactly? Sure, I don't buy the Fourteenth Amendment was intended to simply incorporate the BoRs to the states. If that was its intent, then it would have just said so. But certainly the P&I Clause is some sort of liberty, it's not just rhetorical fluff, is it? Incorporation, while arguably an abuse of judicial power in many instances, is also a Court trying to grapple with the commands of the Fourteenth Amendment. What is a Court to do with the P&I Clause? Ignore it because its vague?
8.17.2005 5:01am
DavidBernstein (mail):
Whoops. Tried to edit a comment of mine (which violated VC comment policy, I'm sorry to say) but I haven't quite gotten the hang of moderating comments, and I deleted it instead.
8.17.2005 7:16am
Matt Barr (mail) (www):
Holmes. From a strictly "rated" standpoint, people probably recognize his name as a Supreme Court Justice more often than anyone else who didn't serve during their lifetime, other than maybe Marshall (either one, now that I think of it), or Brandeis because of the University and his being the first Jewish Justice.

From an "over" standpoint, as someone mentioned, his eloquence papered over some truly bad results, and his most fawning contemporary fans should have been the most disappointed in him. Oddly, both are things you hear often about Scalia. I think it's more like the liberal love affair with the presidency of Bill Clinton, which is inexplicable.

Then again, it's true as DB notes that Holmes' reputation has sagged some. I don't know how history will remember Justice O'Connor, but in the last month and a half she's got a great head start on being the most overrated Justice who served in the 21st century.
8.17.2005 9:50am
aslanfan (mail):
John Marshall is the most overrated. In Gibbons he planted the expansive commerce clause seeds that led directly to the suffering of medi-pot users. Judicial review has been a mixed blessing, at best. He thought paper money was unconstitutional. And worst of all, he wasn't a strident libertarian. Greatest of all time? I think not.
8.17.2005 10:02am
Vijay (mail):
Crazy Train,

Brandeis was the first Jewish Supreme Court justice, so I'm not sure what your source is on his antisemitism. Further, McReynolds was openly antisemitic and refused to shake cardozo or brandeis' hand.

But, of course, the degree to which one's antisemitism should effect their ability to render coherent legal opinions is suspect. though it certainly doesn't help their cause.
8.17.2005 10:43am
Anonymous Clerk (mail):
I wonder, how does one "incorporate" the 9th and 10th Amendments so as to apply to the states? The entire doctrine of incorporation is a judicial fiction. Forget Raul Bruger, read Forest McDonald's trilogy.
8.17.2005 11:32am
Brian G (mail) (www):
Justice Marshall. Really, can anyone name one opinion of consequence he wrote? One doctrine that he established? A great lawyer who did nothing with his position, except watch soap operas all day and accost women on the street. (Don't act like I made the last part up. It is well-documented)
8.17.2005 11:37am
Scott Scheule (mail) (www):
Where is that last bit well-documented at?
8.17.2005 11:45am
Carol Anne:
Love this thread...especially the part where (what I presume are) lawyers accuse various Justices of being "hair-splitters."

Thanks for the irony :-)

On a more serious note: Aren't all the cases the Supreme Court sees "hair-splitting" between two well-formulated arguments? I would think that the cases that are more clearly differentiated would be decided by lower courts.

Also, I may've missed it, but I wonder how much the issue of deciding to NOT hear a case influences the asessment of a Justice's legacy. Are there SCJ who, in the past, tried to avoid making the tough decisions, and would that depress their ranking by you professionals?
8.17.2005 11:45am
Scott Scheule (mail) (www):
Love this thread...especially the part where (what I presume are) lawyers accuse various Justices of being "hair-splitters."

Reminds me of Cohen's Transcendental Nonsense.
8.17.2005 11:51am
Eric (mail) (www):
I want to switch my vote to John Marshall Harlan. His fielding was at best spotty, and he tended to choke with runners in scoring position.
8.17.2005 12:24pm
SimonD (mail):
I don't buy the Fourteenth Amendment was intended to simply incorporate the BoRs to the states
Suddenly everyone is concerned with original intent? Robert Bork would be proud! Whatever they may have intended the 14th amendment to do, whatever their purpose, we are bound by the text they ratified, not their subjective (and unknowable) intentions. The valid questions are: what was the plain meaning of those words when the text was adopted, and what construction does that meaning support?

My view is that incorporation cannot be sustained in terms of substantive due process, insofar as no ununmerated substantive rights can be sustained on the back of a purely procedural clause. However, P&I incorporation is entirely consistent with my view of what constitutional rights are (limitations on the power of governments to invade the personal sphere of citizens) and how they apply to the states.

I don't have any nominations for the "worst" justice, although I do share the view raised earlier that, for all the self-serving lionization of Justice O'Connor since her retirement, it has largely been O'Connor's lack of firm conviction (Justice Thomas doesn't believe in stare decisis, of course, but it sometimes seemed that Justice O'Connor didn't believe in creating precedent, such was her determination to decide cases on the narrowest possible grounds, thereby ensuring that the Supreme Court would remain the nexus of every question) that has resulted in the doctrinal incoherence of the court so bemoaned by the commentators and lower courts.
8.17.2005 12:25pm
Goober (mail):
But I would like to point out that there seems to be something different between saying: 1. a Justice is overrated and 2. a Justice acted in a way contrary to my personal politics.

Mr. Scheule, you needn't apologize, your legal education has served you quite well. Better, apparently, than the host of other commenters (and Prof. Bernstein himself) who haven't yet realized that. Regrets I can't refer you to an actual list of ranked Justices; I'm guessing no such list actually exists.

Eric: Harlan did make a lot of errors, but a slower fielder never would have made it to the gap to even get credited with the error. And his RISP stats are illusory, and further more he had a great on-base percentage. What would Bill James say?

As to the topic of conversation: "overrated" being the actual benchmark, there seem to be few real candidates, and they've all been mentioned. Holmes, my favorite Justice, is certainly the highest-rated of all time (Judge Posner recently wrote that we've never had a genius on the Court, but felt compelled to add "unless it was Holmes"), but probably did more of his truly great work from the SJC in Massachusetts; Cardozo, likewise, enjoyed fame due more to his tenure on the New York Court of Appeals. "The Second Justice Harlan" benefits from his connection to "The First Justice Harlan" probably more than his actual judicial work, and Justice Scalia is so beloved as the darling of every legal commentator in sight that "overrated" has to at least be a possibility. As has been noted by the more sober comments, someone like Souter can't be overrated; he's hardly even rated.
8.17.2005 1:18pm
w. lyle stamps, esq. (mail) (www):
Most underrated? It's a toss-up between:

Thomas and Sutherland. They can share though; one underrated from long ago; and the currently most underrated.
8.17.2005 1:27pm
David E. Bernstein (mail):
Goob, my criticisms of Brandeis are almost entirely based on the fact that his historical reputation (for his "Brandeis brief", liberalism, belief in freedom of speech, general influence) are based on false propositions. What does this have to do with my disagreements with him, on, say, zoning?

Of course, it's hard to find a conservative/libertarian Justice of the 20th century who is overrated because the mainstream "rankings" of all such Justices are quite low. Or do you know of any big wave of pro Van Devanter sentiment?
8.17.2005 2:09pm
JoeSlater (mail):
I don't think we can count O'Connor. An outpouring of positive sentiment around the time of a Justice's retirement is to be expected and in at least most cases is appropriate. And it was even more predictable these days, given that unlike, say, Scalia or Brennan, O'Connor gave both liberals and conservatives some big things to like in the "results" category. But with all due respect, I don't think O'Connor has been or will be rated high enough in the entire constellation of Justices to be considered overrated, at least not after the current quasi-eulogies end.

Oh, and I vote for Scalia. Smart, a quick wit, and a slashing good writing style of a sort, yes. But his "it's just this simple" theory of jurisprudence isn't nearly as workable or princpled as he claims. And I would think even even his conservative supporters would be a bit disappointed in his failures at coalition building.
8.17.2005 2:20pm
David Berke:
How can one incorporate the 9th and 10th Amendment?
I understand the question on the 10th Amendment, but can you seriously suggest you don't understand how the 9th Amendment can be incorporated?

1. Incorporating the 10th Amendment amounts to no more than a reaffirmation of the State's power. It is not inherently nonsensical, just pointless.

2. Incorporating the 9th Amendment is relatively easy. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Incorporating it merely means that these (unenumerated) rights cannot be violated by the States. Of course, the courts have pretty much sucked all the life out of the 9th Amendment, but I think that's illogical, and also irrelevant to what incorporation means as a concept.

I tend to agree that incorporation by substantive due process is a judicial fiction. But, somewhat like SimonD believe that the Privileges and Immunities clause accomplishes a similar result. I merely believe that given legislative intent, it was meant to accomplish full incorporation. From my admittedly incomplete readings on the subject, any other interpretation appears to accomplish one or more of the following: (1) Make the phrase meaningless, (2) Ignore apparent legislative intent, (3) Ignore the previous construction given the privileges and immunities clause.
8.17.2005 2:23pm
frankcross (mail):
David, Harlan and Scalia are highly rated. Scalia is given the highest ratings on the current court, according to the study I referenced earlier. It is true that Van Devanter is poorly rated, but this does not extend to all conservatives.
8.17.2005 2:35pm
RS:
Agree that J. Scalia is not nearly as consistent as his high esteem for himself would suggest. However, he also deserves great credit for almost single-handedly reigniting the originalism movement it would seem and being a rather forceful and public judicial advocate for his views on the law. It's almost hard to envision the modern conservative legal movement without his presence—not that it wouldn't have happened but that he is such a dominating intellectual presence.

I would agree with Justice Thurgood Marshall. Most of his dissents and opinions are singularly weak and almost read like a plaintiff's brief. Highly overrated.

As for Prf. Bernstein's linked dissent of J. Brandeis, I actually think it is an excellent piece of jurisprudence—that, regardless of what the S. Ct. thinks about a state regulation, it is not the final arbiter as to its wisdom. His point was that the potentially stupid law, and he fully admits the potential for error and the fallibility of social science and economic planning, should be the state's province absent a specific constitutional directive. Moreover, that laboratory of the states concept is now a guiding force among decentralized government advocates. Very wise observation on his part.
8.17.2005 3:03pm
Gordon (mail):
Douglas and Harlan the Second would be on my list (I don't know if "overrated" is the word, perhaps "most influentally wrong" is better) for 1) the ridiculous "penumbras and emanations" Griswold decision; and 2) the revival of substantive due process from the dustbin it was rightly sent by the post-1937 court.

Goldberg had the right idea. The Ninth Amendment is the source of fundamental rights not spelled out in the Constitution. I can't believe the framers would have put a meaningless truism into the Bill of Rights.

Just as Justice O'Connor's most lasting contribution to the Court will eventually be seen as the resuscitation of the Tenth Amendment, some day I hope the Ninth Amendment will be seen as the source of our unenumerated fundamental rights in place of the woolly concept of substantive due process.
8.17.2005 3:08pm
David E. Bernstein (mail):
(1) Gordon, Goldberg didn't say in Griswold that the 9th Amendment is a source of rights. He rather used the 9th Amendment as an example of the clear existence of unemurated rights, which he maintained also emanate from the Due Process Clause of the 14th Amendment.

(2) Scalia and O'Connor have been on the Court in the 21st century, and so are excluded from my criteria.
8.17.2005 3:23pm
Challenge:
"Gordon, Goldberg didn't say in Griswold that the 9th Amendment is a source of rights. He rather used the 9th Amendment as an example of the clear existence of unemurated rights, which he maintained also emanate from the Due Process Clause of the 14th Amendment."

Yes, he did pretty much say this. But isn't that kind of nonsensical? Why mention the 9th Amendment at all to bolster the case for an unemurated right when the 9th amendment, according to them, is not a source for unenumerated rights? Enlighten me. If one thinks the Fourteenth Amendment covers a given unenumerated right, then fine, but why mention the Ninth Amendment when one believes it is NOT a source of rights?

David Berke,

The reason one can't incorporate the 9th or 10th amendments is because they are both amendments on how to read the Bill of Rights, structural provisions. They are not meant to endow federal Courts with the ability to create or even "recognize" unenumerated rights. One objection to the BoRs was that they were unnecesssary. There was no express provision covering the power of the federal government to regulate speech, religion, or the right to bear arms, so including explicit rights is dangerous because it implies that other, unemerated rights are not protected. Some thought just leaving the Constitution as is, as one of enumerated and limited powers was a better protection of liberty. This was one concern of listing any rights, because it would imply that those not listed are not protected, even though the federal government was one of enumerated powers. The Ninth And Tenth Amendments try to address this concern, by explaining how the BoRs is to be read. How do you incorporate as liberty what amounts to a disclaimer: please do not read these rights and limitations on federal power to be all-inclusive.
8.17.2005 3:41pm
Shelby (mail):
Challenge,

You're correct that the Ninth Amendment addressed the concern that listing rights in the BoR might imply that the list was complete. But how does that imply that the Ninth can't be incorporated? If the People have other rights, beyond #1-8, why cannot those rights be among the "privileges and immunities" they enjoy as citizens? Is the problem that the word "rights" was not used?

I don't think the Ninth is meant purely as a structural provision. It substantively recognizes the existence of further rights.
8.17.2005 4:05pm
David E. Bernstein (mail):
Without going back and reading the opinion, what I recall Goldberg meant was that the 9th Amendment provides for unenumerated rights against the feds, and the due process clause provides for similar rights against the states. To those who would argue, like Justice Black, that interpretation of the 14th Amendment should be limited to incorporating the rights enumerated in the first 8 amendments, Goldberg rejoins that the 9th Amendment shows that conostitutional protection for unenumerated rights is well within the American constitutional tradition.
8.17.2005 4:12pm
Tiger8 (mail):
Brennan -- he was the Spalding Gray of crap. (hat tip: Family Guy).
8.17.2005 4:47pm
Challenge:
"Goldberg rejoins that the 9th Amendment shows that conostitutional protection for unenumerated rights is well within the American constitutional tradition."

But the Ninth Amendment is a restatement of the obvious, that the federal government is a government of few and enumerated powers. Why concentrate, then, on the amendment instead of the basic constitutional structure it was supposed to highlight?

It seems inapposite to argue that limitations on federal power translate into limitations on state power. The Ninth Amendment highlights that difference, not obscures it!
8.17.2005 5:30pm
Challenge:
"You're correct that the Ninth Amendment addressed the concern that listing rights in the BoR might imply that the list was complete. But how does that imply that the Ninth can't be incorporated? If the People have other rights, beyond #1-8, why cannot those rights be among the "privileges and immunities" they enjoy as citizens? Is the problem that the word "rights" was not used?

I don't think the Ninth is meant purely as a structural provision. It substantively recognizes the existence of further rights."

One can define "privileges and immunities" in a variety of ways, many of which include unenumerated rights. But that is a different argument than saying the Ninth Amendment is applicable to state action. That makes no sense if you agree the Ninth and Tenth Amendments just clarify how the BoRs are to be read.

Of course people may feel they have "inalienable rights." But the natural mechanism for establishing rights is through one's state legislature. That is what was behind dual-soveriegnty and what the Ninth And Tenth Amendments highlight--the federal government is one of few and enumerated powers, while the state has many and unenumerated ones. Incorporating the Ninth Amendment and empowering the Court to define and create new "rights" at their will does not promote that constitutional design the Ninth and Tenth Amendments were intended to elucidate, it severely corrupts it.
8.17.2005 5:42pm
Shelby (mail):
Challenge: Why is it that my First Amendment rights are incorporated (valid against state infringement) by virtue of the Fourteenth Amendment, as are, say, my 4th Amendment rights, but not my Ninth Amendment rights?
8.17.2005 5:58pm
Challenge:
I think that's clear, Shelby. Read my prior responses.
8.17.2005 6:14pm
David Berke:
Challenge,

It is a strange reading you give the 9th Amendment. You state that it is a guide born out of "one concern of listing any rights...that those [liberties] not listed are not protected, even though the federal government was one of enumerated powers." Yet, you simultaneously insist that this same limitation or guidelines cannot be applied to the states. If one believes that Amendments 1 - 8 are applied to the states, the 9th Amendment would apply for the exact reason; "don't think that these are the only rights."

If "please do not read these rights and limitations on federal power to be all-inclusive." does not mean that there are other unenumerated rights which the federal government may impinge upon, what exactly does it mean?

To forestall your response; every constitutional government is a government of limited powers, the only question is what those limits are. Your entire argument implicitly assumes that the Bill of Rights was not necessary to protect rights. Otherwise the entire discussion as to "guideline to reading the bill of rights" would serve no purpose.

Of course, your assertion that the Bill of Rights was not necessarily is manifestly incorrect. Consider the constitutionality of the following, without the bill of rights:

1. Congress hereby declares that all participants in religions other than Buddhism shall be subject to 98% taxation.

2. Congress hereby declares that no firearm or firearm components, including the metal used in the manufacture of such components may travel in interstate or international commerce.

3. No paper, paper products, ink, or any other product of any kind which may be used for communications may pass through interstate commerce.

4. Any person who speaks against the government shall be denied any rights that would otherwise accrue under the copyright or patent laws.
8.17.2005 6:17pm
Robert Schwartz (mail):
Ian: You might wish to try argument the next time. P.S. Your Mother wears combat boots.

Spoons: "But I don't see, yet, a good refutation of P&I incorporation."

Read Berger carefully. He thinks that privledges and immunities means more than the dismissal given by the Slaughter-house Cases, but does not think think it a grounds for incorporation.

I should note that under ordinary rules of construction privledges and immunities must be something other than rights, because all three terms are used in both the Constitution and in its amendments, yet the word rights does not appear in Section 1 of Am 14.

AC: McDonald and Berger are not at odds. McDonald wrote the introduction to the edition of Berger's work that is at the url given above. McDonald is a historian, Berger was a lawyer.
8.17.2005 6:34pm
Anderson (mail) (www):
"The Second Justice Harlan" benefits from his connection to "The First Justice Harlan" probably more than his actual judicial work.

Yes, but he did give us Cohen v. California.

This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U.S. 476 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.
8.17.2005 6:49pm
Shelby (mail):
David Berke:

I think what Challenge may be getting at is the idea that the Ninth Amendment is meant solely to address the concern that "those [liberties] not listed are not protected". At least, that's the only consistent rationale I can tease out of his comments above. This would mean that its reference to "other" rights is esseentially null. I'm not familiar enough with Bork's writing; is that why he called the amendment an "inkblot"?

I agree with Challenge that the amendment served that purpose, but I don't believe it has only that purpose. The meaning of the text is to be found in the text: there are indeed other rights, and it's up to us to identify them so they can be protected. It's (at least in retrospect) a half-assed solution to the problem the drafters faced, but it's what they came up with.

Where's Randy Barnett when we need him?
8.17.2005 7:22pm
SimonD (mail):
David:
Incorporating the 10th Amendment amounts to no more than a reaffirmation of the State's power. It is not inherently nonsensical, just pointless.
The tenth amendment, in my view, expresses no comment on the boundaries of the powers of the state governments, it delineates the boundary of the Federal governments. The point of the tenth amendment is to make explicit that the Congress' powers are few and enumerated, and those powers which it has not been delegated remain unaffected by the excercise of ratifying the Federal constitution. By ratifying the 10th, we are saying that "All sovereign authority ultimately resides with the people, except that which they have already delegated at this time to their respective states, and excepting those we now grant to the federal government by ratifying this constitution).

Thus, incorporating the 10th amendment doesn't make much sense, and is largely meaningless, but not for the reason you state. ;)
8.17.2005 7:24pm
Gordon (mail):
I always find it amusing when lefty lawyers contemptuously reject Lochner-era unenumerated rights, yet embrace the privacy rights of a later era, while righty lwayers embrace Lochner-era rights and denounce anything from the sinful 60's and later. I guess each group provides a good definition of hair-splitting.

For all of his faults, Justice Black saw the danger in venturing into substantive due process thickets. He remembered the pre-1937 mischief the Court engaged in. Douglas was more duplicitive - he wanted his intended result in Griswold no matter what the cost - except not the cost of opening up the substantive due process Pandora's Box.

Now we have Justice Kennedy's Lawrence v. Texas language that substantive due process rights evolve over time, ever progressing toward our rosy future. Well, if substantive due process rights can evolve "forward," they can also devolve. We can question previously granted rights to privacy in reproductive matters (for example) if a consensus of the American public says so.

But, for some reason, I don't think left-wing lawyers have this possibility in mind.
8.17.2005 7:26pm
Goober (mail):
Quite right, Anderson. Actually, maybe you're wrong, whaddai know? I'm rather lazy.

Anyway, I was trying to keep it close to "overrated." Cohen's nice and all---er, gosh-darned nice and all---but it's no Plessy dissent. Anyway, I really can't think of many opinions by Harlan, but he's still the "Second Justice Harlan." And as I said, I was trying to keep it close to the word "overrated." Contra, say, the last thirty commenters who are consumed with penumbras.

Prof. Bernstein: Or do you know of any big wave of pro Van Devanter sentiment? Of course! Oh, wait---I thought you said "Camper van Beethoven." My bad, dude.

Goob, my criticisms of Brandeis are almost entirely based on the fact that his historical reputation (for his "Brandeis brief", liberalism, belief in freedom of speech, general influence) are based on false propositions.

No, they aren't based on that "fact." There's not a single visitor here who really believes your feelings are based on that, and not that you you just don't like Brandeis, even among those that agree with you. Partisanship's all right, but it tends to darken one's reputation when you won't just own up to it. Or perhaps you'd like to tell us you were being entirely straight up with your call of "most overrated dissent of the 20th century"? (A dissent, by the way, I've never even heard of. I'm ign'ant, to be sure, but it's hard to be overrated when you're anonymous but among the few.)

Look, I don't care for the Chief, and I don't think his Court's recent federalism jurisprudence (a) is wise, or (b) is going to survive particularly long, but I'm not about to say he's overrated because this federalism revolution is just a myth! There are the decisions! And yet we have a stream of "Brennan's the worst because there is no right to abortion!" Reminds me of an old joke about three baseball umpires....
8.17.2005 7:30pm
Challenge:
"It is a strange reading you give the 9th Amendment."

It's the reading the Court has given it. That any honest scholar gives it. Only you Berstein types think it's some device to leverage your libertarian preferences with.

Any reasonable reading of the commerce clause and its intent would prohibit your silly examples. Secondly, I never said they did NOTHING, I said one of the arguments against them is that they were unnecessary. They largely ARE, and I am not at all sure they have been a positive force, as they have quite obviously emphasized certain rights to the exclusion of others.

You just don't seem to get it, Mr. Berke. The Ninth Amendment only makes sense when applied against the federal government, because it was intended to highlight the division of powers, and the federal government's limited role. It cannot be applied to the states because it's not a "privilege or immunity." It simply restates the Constitution's design and the federal government's limited power!

The Ninth and Tenth Amendments underscore the role of the states, and the people's right in each state to expand their liberty via their legislatures. Applying them against states is corrosive, not supportive, of their purpose!
8.17.2005 7:36pm
Goober (mail):
Gordon:

The "accordian rights" idea, what expands can also contract? I suppose it's plausible, but contraction is already possible, no? You've got to take the chunky with the smooth, but if you've gotta take the chunky anyways....

What's more, don't you have to look at the history of the twentieth century and just recognize that things are getting better? The possibility of devolution is always there, but the probability seems to be getting slimmer.

My point is this: I've heard the expanding/contracting warning many times, but it seems to me to be just a speculative argument not really backed up by anything more concrete. Not "concrete" like material evidence (I don't know what that would look like), but specific enough to point out an actual, not merely speculative, downside to expanding constitutional rights.

(One caveat: The contrarian pro-choice argument that Roe actually hurts abortion rights by removing the issue from the political sphere is an exception to my general statement, but I fear it may be an exception proving the rule.)
8.17.2005 7:42pm
David Berke:
SimonD,

By stating that the 10th Amendment affirms State's powers, I was making the exact same point you made. I did not mean that it was expressing a view on the limits of State powers, and apologize if I was insufficiently clear in this regard.
8.17.2005 8:57pm
David Berke:
Shelby,

If that was what Challenge meant, then he would not (or at least, should not) have stated it for the proposition that the 9th Amendment logically could not be applied against the states.

In response to your question, from my vague recollection of law school, that is indeed why Bork called the amendment an "inkblot."
8.17.2005 9:06pm
Gordon (mail):
Challenge:
The Ninth Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Nothing about the "States" in this amendment, unlike the 10th, which is clearly aimed at protecting the rights of states as the Court has (rightly in my opinion) done in decisions such as New York v. United States.
8.17.2005 9:07pm
David Berke:
Challenge,

The personal insults and negative characterizations are hardly required. I will address each of your points below:

You say:
It's the reading the Court has given it. That any honest scholar gives it. Only you Berstein types think it's some device to leverage your libertarian preferences with.

I say:
What exactly did you prove here? That the Court has reduced the 9th Amendment to meaninglessness? Fine, but I conceded that long ago. That doesn't mean their decision was correct or supported by either the text or legislative history.
The notion that the 9th Amendment was actually meant to accomplish something is hardly a radical belief, regardless of whether the Supreme Court has embraced any reasonable interpretation thereof.

You say:
Any reasonable reading of the commerce clause and its intent would prohibit your silly examples.

I say:
Show me some evidence. The power to tax and the power to "Regulate interstate commerce" are written in the Constitution. If the Federal Government were to forbid the interstate transportation of something, or decide to tax a certain group more than others, that would facially appear to be within their powers. You say that "any reasonable reading" would come to a contrary result. Really? A straight textualist who insisted the words set forth the powers without apparent limitation?

You said:
Secondly, I never said they did NOTHING, I said one of the arguments against them is that they were unnecessary. They largely ARE, and I am not at all sure they have been a positive force, as they have quite obviously emphasized certain rights to the exclusion of others.

I say:
So, you don't say they do nothing. You just say they are largely unnecessary. So if they aren't necessary, and they only act as limitations on Federal Power, but aren't necessary to do so, what DO they do?

You say:
You just don't seem to get it, Mr. Berke.

I say:
I get it just fine. I just disagree with you, and characterizing my disagreement with your position as a lack of understanding is improper where this is NOT a matter of rigid scientific inquiry in which there is clearly one correct answer, but instead a question of a difference between competing theories, both of which are at least apparently based upon evidence.

You say:
The Ninth Amendment only makes sense when applied against the federal government, because it was intended to highlight the division of powers, and the federal government's limited role.

I say:
How exactly does it "highlight the division of powers" ? The amendment is clear on its face that there are other rights, unenumerated, and ensures that the Federal Government does not trespass on such rights. To state that instead it merely acts as an adjunct to the 10th Amendment seems completely illogical to me, and contrary to the text and legislative intent.

You say:
It cannot be applied to the states because it's not a "privilege or immunity." It simply restates the Constitution's design and the federal government's limited power!

I say:
If it only restated the limited power of the federal government, it would be completely unnecessary because the 10th Amendment accomplishes the same thing.

You say:
The Ninth and Tenth Amendments underscore the role of the states, and the people's right in each state to expand their liberty via their legislatures. Applying them against states is corrosive, not supportive, of their purpose!

I say:
You are assuming that which you hope to prove in order to prove a subsequent point. As with any hypothesis not demonstrably supported by reasonably proven assumptions, the subsequent conclusion is inherently suspect.
Applying the 10th "against" the states is not even possible as it is written.
How does applying the 9th Amendment "against" the states (i.e. requiring the states to recognize that its citizens have unenumerated rights) "corrode" the ability of that state's citizens to expand their liberty?
8.17.2005 9:56pm
eratosthenes (mail) (www):
To the anti-incorporationists who cite Raoul Berger: His scholarship on this subject has been discredited by Akhil Amar's 1998 book The Bill of Rights. Amar is a privileges &immunities "refined" incorporationist and spends chunks of the book pointing out how Berger and Charles Fairman simply ignored masses of inconvenient evidence showing that the 14th Amendment was written to reverse Barron v. Baltimore (along with reversing Dred Scott). The key piece of evidence is that John Bingham, who wrote the amendment, stated this precise purpose numerous times on the floor of Congress. I'm afraid the onus is now on those who wish to rehabilitate Berger's argument against incorporation/Justice Black. I have yet to see a critique refuting any of Amar's argument for incorporation, or the wealth of evidence presented in that book.
8.18.2005 12:51am
Robert Schwartz (mail):
Berger himself replied to Amar:

For a truly wild flight of fancy, however, Akhil Amar of Yale takes the prize: "both the text of Section One [of the Fourteenth Amendment] and the public gloss Congress placed upon the text made clear that what Congress was proposing was nothing less than a transformation of the original Bill of Rights." Just what in the "text" —due process, privileges or immunities, equal protection— "made clear" that Congress was importing,5 let alone "transforming," the Bill of Rights, deponent sayeth not. ... Amar noted that "many informed men were simply not thinking carefully about the words of Section One at all." Are we to ground a massive invasion of rights reserved to the States on a fit of absentmindedness? Not if we are to be guided by the Supreme Court. In the Slaughter-House Cases Justice Samuel Miller, an informed contemporary of the Fourteenth Amendment, rejected a construction of the Amendment that would subject the States "to the control of Congress, in the exercise of powers heretofore universally conceded to them," in the absence of "language which expresses such a purpose too clearly to admit of doubt." ... It bears emphasis that the claim of incorporation "constitutes an invasion of rights reserved to the States by the Tenth Amendment, an invasion of such magnitude as to demand proof that such was the framers' intention." ... The activist "historian" Michael Curtis observed that the framers made "explicit provision" for three distinct changes in existing law. They overruled Dred Scott and made a native born black a citizen; they provided for State due process; and they provided that no State could abridge the "privileges or immunities" of a United States citizen. Curtis himself was moved to ask "why 'the Bill of Rights' was not explicitly written into the Fourteenth Amendment, as due process and citizenship were." ... Why, then, did the framers explicitly include the due process of the Fifth Amendment? Under the expressio unius rule all other provisions of the Bill were excluded.


Chapter 8, Supplementary Note on Incorporation. URL given above.

==============

Amar's argument has the same flaw that other appeals to legislative history in the form of congressional debate have. Congress voted on and approved a law, not a debate record. Congress is a collegial Body and acts by majority (or super-majority) vote. The laws adopted are the record of its thoughts as a collegial body. The debate record shows the views of congressmen as individuals, which are interesting, but idiosyncratic.

Standard rules of construction would lead a reader to believe that Congress did not intend to apply all of the provisions of the Bill of Rights to the states because 1) they did not say that and 2) they mentioned the one provision they intended to apply (due process) but not any others -- the expressio unius rule. Debate material cannot overcome the express language of the law.
8.18.2005 2:40am
Shelby (mail):
eratosthenes:

Thanks for pointing out Prof. Amar's book. There's a critical review here; I found a few other reviews here. I don't know whether they refute the argument for incorporation; like Goober I'm lazy. And it's late.
8.18.2005 2:49am
Anonymous Clerk (mail):
It looks like I am the one who started all of this. Suffice it to say that the Ninth Amendment is not nearly so settle as David Berke was quick to suggest.

Schwartz, I made no claim suggesting that Berger and McDonald were at odds. I am well aware that McDonald is a historian--I studied under him. My point was merely, if you don't like Berger, read the history of McDonald. It's all very clear.
8.18.2005 10:53am
Robert Schwartz (mail):
AC I am sorry I mistook your argument. You are a very lucky person to have studied under McDonald. Not only is he a great scholar and a great American, but, I have seen him interviewed on C-Span, he is also a very fine gentleman. I, and others no doubt, would appreciate it if you could post a brief bibliography of Mr. McDonald's writings on constitutional history.
8.18.2005 6:24pm
Anonymous Clerk (mail):
Professor McDonald's books on constitutional law include:

We the People: The Economic Origins of the Constitution (1958); E Pluribus Unum: The Formation of the American Republic (1965); Novus Ordo Seclorum: The Intellectual Origins of the Constitution; A Constitutional History of the United states (1982)(very difficult to find); and Confederation and Constitution, 1781-1789 (1968)(written with his wife Ellen McDonald).
8.18.2005 6:54pm
eratosthenes (mail) (www):
Schwartz's/Berger's rejoinder (which may only apply to Amar's earlier articles, and not the book, as Berger died shortly after Amar's book was published) begs the question the Court answered nonsensically in Slaughterhouse: What are the privileges or immunities of citizens of the United States? I have heard no good argument that they do not include the individual liberties protected by the first 8 (or 10) amendments. John Bingham's view, and he composed the language, was that P &I included the Bill of Rights. If Justice Miller's views as an informed contemporary rejecting incorporation count, surely so do the views of the informed author(s) of the relevant text. Additionally, though perhaps I gave an incomplete summary, Amar depends on more than just contemporary legislative comments by individual legislators--although he examines many of those too, whereas Berger ignored them. Amar looks to the *meaning* of the words used in the 14th amendment. One is hard pressed, unless one has an ulterior motive like, say the Slaughterhouse majority that Berger defers to, to deny that "privileges or immunities of citizens of the United States" includes those U.S. Citizens' liberties protected by the Bill of Rights. What, pray tell, are the other privileges and immunities that the amendment would protect from state infringement? For Berger's argument to succeed, it needs to be the case that the drafters of the 14th amendment meant to *exclude* the Bill of Rights from the meaning of privileges or immunities. To turn the anti-incorporationists' question on its head, why didn't they just say so if they meant to include only certain liberties (and emphatically nothing as important as those in the Bill of Rights)?
8.18.2005 8:07pm