Washington Gets It Wrong Again

Ellis Washington, a self-proclaimed former editor of the Michigan Law Review (he was really just an undergrad fact checker), is back with yet another ridiculous column about constitutional law. This time his target is the incorporation of the 14th amendment, which he unsurprisingly gets entirely wrong.

Incorporation is the legal doctrine that applies the federal Bill of Rights to the states. What makes Washington’s column all the more absurd is that he doesn’t ever actually argue against it. He declares it to be wrong, but makes no arguments at all as to why.

The so-called “Incorporation Doctrine” is a shameless example of the Supreme Court overstepping its enumerated powers by ruling that the 14th Amendment makes the Bill of Rights applicable to state law as well as federal law.

In the case of Barron v. Baltimore (1833), before the 14th Amendment was ratified and before the Incorporation Doctrine was developed, the U.S. Supreme Court first clearly affirmed that the Bill of Rights is applicable only to the federal government and not to the state governments. Then, in the case Gitlow v. New York (1925), which occurred in the heyday of the Progressive Era, the Supreme Court broke the settled precedent in the Barron case and unconstitutionally ruled that the 14th Amendment forbids states from prohibiting free speech.

This is a coherent argument? Barron v Baltimore was in 1833, 35 years before the 14th Amendment was written and ratified. If the 14th Amendment did incorporate the Bill of Rights against state actions, that ruling is completely irrelevant. Barron was based on the Constitution was it existed in 1833; it was a different Constitution in 1925 because of the 14th Amendment.

There is no question that the 14th Amendment applied the Bill of Rights to the states. During the entire debate in the House and Senate on the amendment, that was the key issue. Those who wrote and advocated the amendment said that it was necessary in order to keep the states from violating the rights of citizens; those who were opposed to it were against giving the federal government the power to enforce those rights against the states. The advocates won, obviously, since the amendment passed.

Rep. Bingham, the primary House sponsor of the amendment, repeatedly said during those debates that the purpose was to apply the first 8 amendments in the Bill of Rights to the states. On Feb. 27, 1866, he said that the amendment was intended to “arm the Congress … with the power to enforce this bill of rights as it stands in the Constitution today.” In a similar statement he said that the amendment would “arm Congress with the power to … punish all violations by State Officers of the bill of rights.” And the language of the amendment is clear. It says that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Those privileges and immunities were those found in the Bill of Rights.

But Washington doesn’t even attempt to argue against this. Here’s what he actually argues:

Barry Krusch, in a very good book, “Will the Real First Amendment Please Stand Up,” wrote that Judge Sanford, writing for the majority in Gitlow, at first seemingly agrees that the First Amendment does not apply to state governments:

“It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”

Say what? That passage has nothing at all to do with whether the First Amendment applied to the states; it deals only with whether there are any limits on First Amendment protects in general. It doesn’t even mention the states. The funny thing to me is that Washington continues to claim to have been “a former editor of the Michigan Law Review.” If he had actually been a law student there and had submitted this nonsense to that review, the real editors would reject it with a hearty laugh.

11 comments on this post.
  1. slc1:

    Ann Coulter also attended the Un. of Michigan law school. Must be something in the water in Ann Arbor.

  2. jamessweet:

    About 90 seconds at Wikipedia tells me he would have been much better of citing United States v. Cruikshank, a post-14th Amendment case which held that the First Amendment did not necessarily apply to states. I’m no expert in constitutional law, either; I just have a fucking internet connection.

  3. d cwilson:

    I visited Ann Arbor once. Seemed like a nice college town. Oh well, I guess every school produces it’s share of nuts.

    Is it me, or does it seem like pundits are getting lazier these days? Washington is hardly alone in making an argument by assertion and then skips right to the character assassination.

  4. feralboy12:

    The funny thing to me is that Washington continues to claim to have been “a former editor of the Michigan Law Review.”

    I think what he meant here was “former editor of the Michigan law.” As in crossing stuff out and scribbling new stuff in the margins.

  5. wholething:

    Remember Woody Hayes’ directions to Ann Arbor? North until you smell it, west until you step in it.

  6. Ed Brayton:

    Washington didn’t go to U of M Law School, he went to John Marshall Law School. As an undergrad at U of M, he was hired for one semester to work as a fact and footnote checker, when the usual person who did that had to withdraw due to health problems. They did give him the technical title as an editor, so now he claims to be a “former editor of the Michigan Law Review,” knowing full well that readers will assume he was actually the editor.

  7. pacal:

    I don’t get it; is Ellis arguing that the Bill of Rights doesn’t apply to the states and that this is a good thing?!

    Is Ellis arguing that it is somehow unfair, wicked etc., that States have to respect certain fundamental rights?! Does he really think that States should be able to ignore the first 8 admendments of the Bill of Rights?

    Of course Ellis could simply be arguing that the Bill of Rights applies only to the Federasl government. but then considering that these rights are fundamental I would think that logically he should be for the Bill of rights being incorperated into each State’s law by local passage by State legislatures. However I don’t think that is what he thinks, given his theocratic proclivities I suspect he simply wants a constitutional rationale for the State’s to be able to violate peoples rights, esspecially the First Admendment.

  8. jakc:

    Ah yes, title inflation. I would have thought that Michigan would have restricted such a position to law students, but that is the weird world of law reviews.

  9. Modusoperandi:

    “As an undergrad at U of M, he was hired for one semester to work as a fact and footnote checker, when the usual person who did that had to withdraw due to health problems.”

    Worst. Issues. Ever.

    d cwilson “Is it me, or does it seem like pundits are getting lazier these days?”
    What is a Meritocracy that doesn’t value merit?

    “Washington is hardly alone in making an argument by assertion and then skips right to the character assassination.”
    Well, I say you’re wrong. And also you drink to excess and have questionable parentage.

    pacal “However I don’t think that is what he thinks, given his theocratic proclivities I suspect he simply wants a constitutional rationale for the State’s to be able to violate peoples rights, esspecially the First Admendment.”
    Except his. Like now, he’ll get to say whatever he wants, as long as it’s what his betters want him to say. Like now, he’ll grow to like getting a cookie and a pat on the head every once in a while. Like now, most of his family will call him “Tom” for reasons he completely fails to comprehend.

  10. Phillip IV:

    In the case of Barron v. Baltimore (1833), before the 14th Amendment was ratified and before the Incorporation Doctrine was developed, the U.S. Supreme Court first clearly affirmed that the Bill of Rights is applicable only to the federal government and not to the state governments. Then, in the case Gitlow v. New York (1925), which occurred in the heyday of the Progressive Era, the Supreme Court broke the settled precedent in the Barron case and unconstitutionally ruled that the 14th Amendment forbids states from prohibiting free speech.

    You could take that quote verbatim and put it into a test for an introductory constitutional law class under the question “Which obvious mistake did the author of the following paragraph?”. And everyone would think “That’s an easy one.”

    slc1 @ #1:

    Ann Coulter also attended the Un. of Michigan law school. Must be something in the water in Ann Arbor.

    Somebody should check the filter at the water treatment plant, perhaps Hitler’s corpse is stuck in there.

  11. heironymous:

    Umm… Yeah. You realize amend means change, right?

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