Demonstration at Marquette today

I'm shocked and appalled at Marquette Law School Prof. Rick Esenberg's implication that judges, in their written opinions, should not engage in public debates questioning the constitutionality or general wisdom of certain laws while at the same time voting to uphold those laws. Prof. Esenberg refers to these debates as "occasional indulgences,"* but they are often better known as "concurring opinions" and sometimes "dissents."

Careful readers may have noticed that one of my favorite books is Freedom and the Court: Civil Rights and Liberties in the United States, by Henry J. Abraham and Barbara A. Perry. FATC is a marvelous work, although I have thus far resisted purchasing it. The reason for that is there is always a copy of the 8th edition on hand at the Milwaukee Public Library. As a matter of fact, if you take a look at it in MPL's central branch (342.085 A158 2003), you will find about eleventeen date stamps going back more than three years on the white strip affixed to the back jacket. Those are all me.

And if you also find the $100 (CDN) bill that I use as a bookmark, kindly leave it where it is. I'll be back for it.

A large portion of FATC deals with the 14th Amendment to the United States Constitution, and the question of whether the Due Process Clause of that Amendment has the effect of making the first eight Amendments (a.k.a. the Bill of Rights) applicable to the States. As everyone knows (I hope), the First Amendment begins with the words, "Congress shall make no law." Congress, of course, being the federal government and not the States. Beginning at least as far back as 1833, the debate has raged over whether the Bill of Rights is a restriction not only on the powers of Congress but also on those of the States.

In 1833, the legendary Chief Justice of the U.S. Supreme Court John Marshall determined that it restricted the federal government only. After the ratification of the 14th Amendment in 1868, a number of attempts were made to obtain a ruling from the Court affirming that the 14th Amendment did indeed "incorporate" the provisions of the Bill of Rights against the States, but no clear success was realized until 1925, when the Court declared that freedom of speech, as guaranteed by the First Amendment, was also something that the States could not abridge.

Since then, nearly every provision of the Bill of Rights has been incorporated one at a time, a practice known as "selective incorporation." The debate over incorporation has involved some of the greatest Justices of the Supreme Court, including Hugo Black, who was something of an absolutist when it came to reading the text of the Constitution. Justice Black argued, in a series of "occasional indulgences" which ultimately failed to produce a majority among his colleagues, that the entire Bill of Rights should be incorporated all at once, in what is known as "total incorporation."

The debate over incorporation is arguably the most fascinating aspect of constitutional law — not to mention American history generally — and it rages until this day. Recently, Justice Clarence Thomas, in an "occasional indulgence" of his own, suggested that the First Amendment's Establishment of Religion Clause, which is among those Bill of Rights provisions that have been incorporated, should not restrict the States from establishing their own religions, or at least that the restriction against the States should be relaxed to some extent.

I don't know why; probably so Governor Jim Doyle can finally convert you to Islam or something, further to the Democrat playbook.

This brings to mind the gifted historian and constitutional scholar Leonard Levy, in contemplating an Establishment Clause opinion by the late Chief Justice and graduate of Shorewood High School William H. Rehnquist, who wondered aloud how exactly the Chief got from "No Law" to "Some Laws." Many of us wonder still.

In any event, Prof. Esenberg's outlandish insinuations call for a strong action of radical protest, and I intend to demonstrate in his Marquette Law School office in the form of a sit-in (chair permitting) sometime this afternoon. The length of the demonstration will depend on how busy he is and whether I make the proper selection from Dunkin' Donuts, where I need to pass by anyway, because the Milwaukee Public Library just alerted me to the fact that I have finally made it to the front of the queue for Curb Your Enthusiasm: Season Three, and Dunkin' Donuts is right across the street.

While I'm there, maybe I will add another date stamp to Freedom and the Court, and direct Prof. Esenberg's attention to the "occasional indulgences" of Justices Black, Frankfurter, Harlan, et al.

I also intend to determine whether he really does have a halo.

* I thought Martin Luther did away with those at Wittenberg.