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re: Burger-Curtis exchange. The citations are: Raoul Berger, Government by Judiciary (1977)--chapter on incorporation; Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger, 16 Wake Forest L. Rev. 45 (1980); Raoul Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine Lived Cat, 42 Ohio State L. Rev. 435 (1981); Michael Kent Curtis, Further Adventures of the Nine Lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights, 43 Ohio St. L. Rev 89 (1982) [I had been mistaken, Raoul Berger was not a professor]; Raoul Berger, Incorporation of the Bill of Rights: A Reply to Michael Curtis's Response, 44 Ohio St. L. J. (1983); Michael Kent Curtis, Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States, 62 North Carolina L. Rev. 517 (1984). ( I can't recall if Mr. Berger replied, but if so I don't have that cite. He probably did. I think all the law reviews are available on Hein on Line for those who subscribe. This was before Westlaw and Lexis carried virutally all law reviews and so finding them there is spotty at best. If someone wants to pursue the discussion and lacks easy access to law reviews, I will be happy to provide copies if they send me their postal address. curtismk@wfu.edu. The issue of incorporation remains contested. To begin with I think many scholars accepted Mr. Berger's history (without examining his evidence and the original sources). They argued instead about whether history should be the guide. After the historical controversy, I think it is fair to say that many who followed it became far more skeptical about Mr. Berger's historical presentation. All scholars make mistakes from time to time. One thing is clear: a significant part of the crucial evidence put forward by Mr. Berger in his book and the articles cited to support his thesis was either simply factually wrong or looked very different in context. As Dean Aynes has pointed out he makes extensive use of ad hominem attacks on critics ("a lawyer in Greensboro North Carolina making is first venture into legal scholar ship" who "cannot understand what he reads") and on historical figures whose statements are inconsistent with his thesis (Senator Howard was a "reckless radical" and a "Negrophile" (the latter quoting an historian from the Dunning School on Reconstruction); Congressman Bingham was "muddled," "inept," veer[ed] as crazilly as a rudderless ship" and was also "unable to understand what he read." Sometimes he used "..." to leave out words from quotations (e.g. from the "rudderless ship") when he thought they were insignificant--but in fact the omission changed the meaning. On at least one occassion he attributed a quotation that he used against incorporation to the Republican Chair of the Joint Committee; in fact is was from a Democratic opponent of the amendment. He used a critque of an earlier version of the Amendment as though it was about the final version--- to prove no role for the Court, but the Amendment was changed after the critque to address that very shortcoming. [Really.] Finally I think it is clear that he overlooked very substantial evidence that pointed against his thesis. Somewhere, as I recall, he says there is no indication people in the North had become concerned about the protection of Bill of Rights liberties in the South. In fact there was serious concern & Republican supporters of Fremont or Lincoln could not even campaign in the South and it was a serious crime to distribute Helper's Impending Crisis which was used as a Republican campaign document. He suggested that we should ignore Senator Howard's clear statement of intent to incorporate under the "privileges or immunities" clause because no major newspaper reported the speech. But several did, and it was on the first page of the New York Times. He omitted statements from many Republicans in the 39th Congress generally supportive of the idea that states were or should be required to obey the guarantees of the Bill of Rights. And so. As one he says "cannot understand what he reads" (I later found that he used his stock phrases not only against "a lawyer in Greensboro North Carolina" but against well recognized legal scholars) I am not impartial. But I think anyone who takes the time to look at the record, will find that all the assertions made above are accurate. What to make of them is for the reader. Michael Curtis
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