The Bill of Rights was not originally intended to be applied to the states. The protections of the BOR have been applied to the states only by virtue of incorporation into the 14th Amendment.
(The Supremacy Clause has nothing to do with this--if the BOR was written only to apply to the FedGov then it doesn't matter if it is the supreme law of the land or not.)
In Barron v. Baltimore, decided in 1833, Chief Justice Marshall held that the takings clause of the Fifth Amendment did not apply to state and local governments.
It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states. Even today, parts of the BOR do not apply to the states, i.e., the right to be charged by a grand jury. Today, you can be charged by prosecutor's information in some states.
This is important, because it is through this incorporation idea that we have gotten the notion that school prayer is unconsitutional. A strong argument can be made that, even after the 14th Amendment, the Constitution should not be interepreted to incorporate the 1st Amendment and apply it to the states.
The Bill of Rights was not originally intended to be applied to the states. The protections of the BOR have been applied to the states only by virtue of incorporation into the 14th Amendment.
Your faction, and a bunch of southern rebels, simply made that idea up, in order to justify ignoring our BOR's prior to the Civil War.
(The Supremacy Clause has nothing to do with this--if the BOR was written only to apply to the FedGov then it doesn't matter if it is the supreme law of the land or not.)
Circular argument. Our BOR's was written to apply to ALL levels, - fed/state/local, -- of government. ALL officials were sworn by oath to support the supremacy of our US Constitution.
In Barron v. Baltimore, decided in 1833, Chief Justice Marshall held that the takings clause of the Fifth Amendment did not apply to state and local governments.
So what? Marshals opinion did not alter the Constitutions/BOR's supremacy as the Law of the Land.
It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states. Even today, parts of the BOR do not apply to the states, i.e., the right to be charged by a grand jury. Today, you can be charged by prosecutor's information in some states.
Today, the State of CA claims it can prohibit 'assault weapons'. Do you agree?
This is important, because it is through this incorporation idea that we have gotten the notion that school prayer is unconsitutional. A strong argument can be made that, even after the 14th Amendment, the Constitution should not be interepreted to incorporate the 1st Amendment and apply it to the states.
Yep, and using the same arguments, "the Constitution should not be interpreted to incorporate the 2nd Amendment and apply it to the states."
-- Do you approve, 'CalRepublican'?
I was just going to supply that history lesson, also. Thanks.
I remember in a 3rd year law school class, a prof thought he caught me daydreaming and asked a loaded question (A Real Estate Transactions class, I think) which I answered by correctly describing what you described in your post, which caused the class to giggle because 1. the prof looked like an idiot as I was not unprepared as he thought, and 2. it was clear from the looks on the faces of most of my classmates that they didn't understand the nature of the Bill of Rights and the 14th Amendment vis a vis the states.
One of my many fun and funny law school memories!
Or any amendment in the BOR for that matter.
"Rights" are incorporated because the USSC woke up one morning and decided that some particular right is so fundamental to "liberty" that the state must also protect it. What a crock. If the state felt that way, it would have "incorporated" that right into the state constitution.
Many did, and actually provided more protection than federal laws.
Talk about an activist court. And the icing on the "we know better than the states" cake was that not only did the court force the states to protect that right, it also defined that right. For example, "free speech" = nude dancing. Why? Because the USSC says so, that's why. Result? All states must allow it.
It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states.
The 14th Amendment was intended to render Barron v. Baltimore void, to overrule it. The Supreme Court proceeded almost immediately to pretend that the Amendment meant something other than what was intended by its authors. Years later, instead of fixing the bullshit precedents and restoring the Privileges or Immunities Clause to its rightful place as the clause intended to incorporate amendments 1-8, the Supreme Court invented selective incorporation via substantive due process, allowing itself to pick and choose which rights would get incorporated. That's why we're where we are today, far from what was intended by the authors of the 14th, with some rights incorporated and some not.