Wednesday, July 15, 2009

Randy Barnett: Sotomayor doesn't understand fundamental rights incorporation doctrine

The Volokh Conspiracy - -
The Bill of Rights as originally understood only limited the actions of the national government. But the 14th amendment, passed after the Civil War, is aimed directly at the states, and the due process clause of the 14th amendment says that no state can deprive any US citizen of life, liberty, or property without due process of law. The word "liberty" has been given specific meaning by the USSC by "incorporating" into that word certain specific liberties that are in the Bill of Rights. Which ones? The ones that are considered "fundamental."

Sotomayor has this exactly backward. She thinks you define "fundamental" by asking, "is this incorporated?" No. First the court has to decide whether it is fundamental, which is one of these difficult questions of judicial philosophy they are trying to ask her about that she won't answer. Then, if the court decides the right is fundamental, that right is incorporated.

Sotomayor is either ignorant of a basic principle of constitutional law, or she is being evasive.

Randy Barnett is one of the nation's most distinguished constitutional law scholars, and he says this: "This is both a grossly incorrect (and empty) understanding of the doctrine governing the protection of fundamental rights and an inaccurate statement of the precedents concerning the incorporation of the right to keep and bear arms into the Due Process Clause of the Constitution."

This link came from Instpundit

1 comment:

HOAGOV said...

To use Sotomayor's oft repeated phrase, fundamental rights is "settled law" as stated in the well known Footnote Four in US v. Carolene, 304 Us 144 (1938), which said,

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such a those of the first ten amendments, which are deemed equally specific when held to be embraced by the Fourteenth."

In other words, if its within the first 10 Amendments, it's a fundamental right.