It's not "my logic," it's history. And if you've forgotten your Con Law, do you at least still have your hornbook on your shelves?
Which one did you use at your law school? I had to use both Tribe (mine is dated 1978) and Nowak, Rotunda & Young (mine is dated 1983).
Let's start with Nowak. Page 443, footnote 55, Nowak says that in the opinion in Gitlow vs. New York 268 US 652 (1925), the SCOTUS by implication abandoned its earlier position that the fourteenth amendment's due process clause did not apply to the states the guaranty of the Bill of Rights, see Hurtado vs. California, 110 US 516 (1884).
In Hurtado, the defendant, convicted of murder, argued that the indictment was defective because it was not presented by a grand jury, as mandated by the Constitution. And the SCOTUS held that the 5th Amendment didn't apply to the states (paraphrasing, they actually said that the "due process" clause in the 14th Amendment doesn't mandate a grand jury.)
But that's not what you asked, you asked about the 1st Amendment. Coincidentally, the First Amendment was the first of the Bill of Rights to be incorporated, in the case cited, Gitlow vs. New York, 268 US 652 (1925).
Tribe actually does a better job with this, see, e.g., Section 11-2, "Selective Incorporation of Bill of Rights Safeguards as a Partial Answer," but he doesn't use Gitlow, he uses Fiske vs. Kansas, 274 US 380 (1927), a later case. But, as he states, p. 1147, footnote 1, "The Bill of Rights, the First Eight Amendments to the United States Constitution, on their face constrain only the conduct of the federal government, and to the extent of thei incorporation into the 14th Amendment due process clause, see 11-2 supra, also limit state governments."
Do you not know this? |
