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To: tpaine
Dissenting opinion, without any historical or legal basis. Unshared by any Supreme Court decision in history or by any other Justice of the court.

"We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." -- U.S. Supreme Court BARTKUS v. ILLINOIS, 359 U.S. 121 (1959)

18 posted on 05/23/2002 12:27:11 AM PDT by Roscoe
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To: Roscoe
Dissenting opinion, without any historical or legal basis. Unshared by any Supreme Court decision in history or by any other Justice of the court.

This may very well be strictly true, but Black's dissent in Bartkus was substantially the same as in Adamson, and that dissent has been cited and shared by other justices.

Justice Black again, this time dissenting in Bartkus:

"The Fourteenth Amendment, this Court said in Palko, does not make all of the specific guarantees of the Bill of Rights applicable to the States. But, the Court noted, some of "the privileges and immunities" of the Bill of Rights, "have been taken over . . . and brought within the Fourteenth Amendment by a process of absorption." 302 U.S., at 326 . The Court indicated that incorporated in due process were those "principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." 302 U.S., at 325 . 2 It then held that a statute allowing a State to appeal in a criminal case did not violate such fundamental principles. But it expressly left open the question of whether "the state [could be] permitted after a trial free from error to try the accused over again." 302 U.S., at 328 . That question is substantially before us today."

Bartkus itself was hardly the end of the debate - a mere ten short years after Bartkus, the Court explicitly stated that the double-jeopardy provision of the Fifth Amendment applied to the states via the Fourteenth Amendment, and Black's dissent in Bartkus was specifically cited in that decision. See Benton v Maryland, 395 U.S. 784 (1969), especially footnote 13.

57 posted on 05/28/2002 9:11:12 AM PDT by general_re
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