Tuesday, July 14, 2009

Sotomayor Hearing Day Two: Leahy and Sotomayor on Incorporating Constitutional Amendments

"And I noticed that the panel of the Seventh Circuit, including people like Judge Posner, one of the best-known very conservative judges, cited the same Supreme Court authority, agreed with the Second Circuit decision. We all know that not every constitutional right has been applied to the states by the Supreme Court. I know one of my very first cases as a prosecutor was a question of whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the states. The Supreme Court has not held that applicable to the states.

Seventh Amendment right to jury trial, Eighth Amendment prohibition against excessive fines, these have not been made applicable to the states."
Senator Leahy

Technically Senator Leahy is right. The Seventh Amendment, which guarantees Americans to a right to a trial by jury in certain civil trials (the right to a trial by jury in criminal matters is incorporated so states are bound to honor those rights). But I find it troubling and questionable why the states are honor-bound to uphold some but not all of our constitutional rights.

I'd like to know what she thinks should determine whether a right is incorporated or not. What would make her decide whether the Second Amendment right to bare arms should be incorporated or not and whether and why that process would differ when someone asks if the sixth amendment or any other amendment should be incorporated.

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