Incorporation - too late?

[ConstitutionCowboy]

Once upon a time, when there was such a question, Congress might actually act and amend the Constitution. Now it seems that everyone is just trying to shoehorn in a justice or two to decide that the Constitution means something different from what others think.

This is the best nugget of wisdom that I have read in quite a while.

Ditto!

Woody

 

[hugh damright]

The problem is in the definition of "privileges or immunities." The people who wrote the 14th Amendment apparently thought the term pointed to the Bill of Rights.

I have always found that a bit hard to follow ... it is my understanding that the primary purpose of the 14th was to make the civil rights bill part of the US Constitution ... and the civil rights bill listed the privileges and immunities as the right:

"to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property"

That does not look like the USBOR to me. It leaves me wondering ... didn't the people who drafted the 14th first draft the civil rights bill, and if they saw the 14th as making the USBOR binding upon the States, then did they also see the civil rights bill as making the USBOR binding upon the States?

 

[Gray Peterson]

hugh,

You're right about that. Rep. John Bingham (R-OH) was the author of the 14th amendment, and he stated, very clearly in Congress, that he intended the bill of rights be applied to the states against actions on it's people.

http://www.constitution.org/2ll/schol/jfp5ch01.htm

The idea of "incorporation" is a farce, created by a US Supreme Court in the late 19th century that thoroughly disliked the 14th amendment and it's implications and essentially by the Slaughterhouse cases, Cruikshank, Presser, and other court cases, wrote the 14th amendment out of existence.

Rather than owning up to the fact 40 or 50 years later that the previous Supreme Courts were flat out wrong on the subject, SCOTUS in the 1930's and 1940's came out with this novel concept called "incorporation" in order to justify applying civil liberties that they in particular liked to apply. It wasn't until the 1960's or so that most of them were incorporated.

Do not be fooled: Incorporation is a false doctrine. The 14th amendment is meant to be a full application of the bill of rights (especially the first 9 amendments) against the powers of individual states against it's own people. The problem is that any lawyer who flat out says "Supreme Court justices, I'm sorry, but incorporation flies in the face of the original statements and intention of the authors of the 14th amendment", they would most likely get tossed from the court.