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To: Irontank

Yes! What I think we're dealing with here is that there were some very general statements made about the 14th Amendment making the Bill of Rights applicable to the states by Bingham and some of his allies. That's because SOME of the BOR were clearly made applicable to the states by the 14th (e.g., 5th Amendment Due Process) and in a debate people don't always clarify every detail in every statement they make. So when discussing the fact that some of the BOR are incorporated by the 14th, there were general statements made about the amendment placing the states under the "Bill of Rights", but they were just general statements made in debate. I mean, if we somehow placed Iceland under six provisions of the U.S. Constitution, but not the rest, the debate over this might include a few general statements about how we were for the first time "placing Iceland under the U.S. Constitution", but that wouldn't mean every provision.

Bingham appeared after ratification to be more prone to making these statements than before. One time when he clearly stated that the eight provisions of the BOR were made applicable against the states by the 14th, he was quickly reminded that if he had said such a thing before ratification, there would have been no ratification.

Normally when constitutional changes are made, states comply. To the best of my knowledge, no state has tried to bring back slavery, disenfranchise women, or give the power the choose U.S. Senators to their state legislatures since the relevant constitutional amendments on those issues were adopted.

There have been cases where states tried to find ways around amendments. The 15th Amendment giving blacks the vote was met with opposition, That involved changing the election laws to require poll taxes, literacy tests, and other technicalities that blacks couldn't meet.

But the 14th was not followed by states changing their laws on religion in any way, or altering their laws to try to weasel their way around the supposed new federal power to enforce the Establishment Clause. The only change came a few years later when anti-Catholic sentiment prompted a drive to eliminate parochial school aid, and that drive reached its peak with demands for a CONSTITUTIONAL AMENDMENT, not an assertion of power under the already ratified 14th Amendment. The 14th contains a clause authorizing Congress to enforce its provisions. Why didn't they just use that to pass a statute banning parochial aid with a simple majority rather than trying for the more difficult super majority for a constitutional amendment, if the 14th had incorporated the Establishment Clause?


529 posted on 01/11/2006 7:37:09 AM PST by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: puroresu
What I think we're dealing with here is that there were some very general statements made about the 14th Amendment making the Bill of Rights applicable to the states by Bingham and some of his allies

And its worth noting that, when reading the Congressional Globe, Bingham's references to the BOR are always written "bill of rights"...small "b" and small "r"

Bingham never once before ratification of the 14th Amendment specifically referred to the first 8 amendments...it was always a non-specific reference to a "bill of rights" that would be applied to the states. In fact, only one time in all the debates did anyone state that the purpose of the 14th Amendment was to apply the first 8 amendments to the states...and that was Senator Howard. The use of the term "Bill of Rights" as specifically referring to the first 8 Amendments as we do today was not common in 1866...from what I've read, as of 1868, the Supreme Court had never used the phrase to refer to the first 8 Amendments. It was a more general term and I think you are correct when you say that Bingham intended to apply a "bill of rights"...specifically equal protection of "life, liberty and property" and the due process protections of the 5th Amendment.

Unless curiosity is correct that Professor Curtis has compiled evidence that there was substantial understanding among other congressmen and state legislatures that the first 8 Amendments were to be made applicable to the states through the 14th Amendment (and I've seen a tremendous amount of persuasive evidence to the contrary), it seems strange that we would all willingly accept such a transformation of the US Constitutional structure in the absence of clear and unequivocal language to that effect.

531 posted on 01/11/2006 8:37:07 AM PST by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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