Constitutional Law

Prof. Aynes' recent 14th Amendment writings

Prof. Aynes of U of Akron law school has two interesting recent articles. One, in Cardozo Law Review de novo (online version) deals with self-defense and the 14th Amendment. I liked the story of the abolitionist Senator, at a time when things were getting violent even on the floor, who made sure he was seen putting two pistols in his desk on the Senate floor. He called another Senator a liar, and when the fellow sent a friend to demand a retraction (the usual preliminary to a challenge to a duel), refused and said worse of him. He just let it be known that if anyone challenged him, he would choose rifles as the weapon, and that he was a very good shot with one. Nobody challenged him, or gave him any trouble after that.

The other, Article IV and Campbell v. Morris: Wrong Judge, Wrong Court, Wrong Holding and Wrong Conclusion", discusses a 1797 Maryland decision on Article IV's "privileges and immunities" clause. It's of importance since Fairman and Berger used it to argue against 14th Amendment "privileges or immunities" incorporation. Prof. Aynes points out some errors in their scholarship... they thought it was a ruling by Maryland's highest court, when in fact it was a ruling by a trial court (subsequently overturned, BTW), and they attributed it to the wrong judge (there were two Judge Chases in Maryland at the time) and they got the wrong holding, which they misinterpreted. Little things like that.

UPDATE: it's rather hard to classify the anti-incorporation authors, just because times have changed. The last time the issue arose, in the late 1940s, they'd have been classified as liberal. They, like Frankfurter, believed in government power, majoritarianism, and judicial restraint, in being extremely reluctant to strike down laws as unconstitutional. By the 1960s, at least as to favored rights, those were conservative positions. In the New Deal years, Justice Frankfurter was seen as quite liberal; by the end of his term in the 1960s he'd have been seen as quite conservative, although his positions had not changed (he dissented from a number of Warren Court rulings, and was responsible for inserting "with all deliberate speed" in Brown I's school desegregation command).

Today those attributes would be split up. Liberals would accept them so long as the issue was economic, and social conservatives would accept them so long as the issue was non-economic, and libertarian conservatives would not much like them in any setting.

Full post as published by Of Arms and the Law on February 15, 2010 (boomark / email).