Posted on 06/03/2014 3:46:34 PM PDT by mandaladon
Perhaps we are talking past one another. I mean that the selective “incorporation” of parts of the Bill of Rights was never understood to be part of the 14th Amendment. That is clear from the language, the legislative record, Cruikshank (1876), the (legal) need for the Blaine Amendment(s), and so on. The “incorporation” doctrine I am talking about was an invention of liberal judges in the 1920s (some say 1897, but the 1920s is a better date IMHO) that gathered steam during the New Deal.
I think I misspoke in a prior post regarding the definitive book on the subject. It is Raoul Berger who is the author, not Paul Freund. Philip Hamburger has an excellent treatment of the “privileges and immunities clause”. Here is a link you may find helpful: http://www.constitution-billofrights.com/problems-today/incorporation-doctrine/
Both the Hamburger and Berger books are mentioned at the end.
And they go on to lament the messy and unorthodox manner in which the 14th was adopted... I think its present legal sense isn’t too far from what was actually being intentionally forced, during this Civil War Reconstruction era. It’s the mistreatment of the freedmen that formed the opportunity. Sin has a way of courting curses.
Wasn’t Weiner his protege?
Yeah, that’s a great idea.
That is such a horrible possibility I don’t even want to consider it. You do know that that could ruin a person’s life, and I don’t just mean political life, don’t you?
Yes, I know that. And that’s exactly what the democrats would do to anyone who threatens their power. Don’t put anything past them.
Dear Chuck: Lets play the name game. I’ll do your name and you can do mine. Sincerely, Ted.
The present legal “sense” has nothing to do with what was adopted. The USSC was clear about that a few years after passage, as were others. Berger’s book is the definitive treatment of the subject. Of course, if you are a “Living Constitution” guy, I admit that my point is irrelevant.
It was ram rodded and I would not put it past the Feds (USSC of the time notwithstanding) to have made it pregnant for just what it is delivering now.
Post of the day:
“No. The best response is that the Constitution says Congress shall make no law...” States do retain the right to regulate speech (subject to their constitutions), invented interpretations of the 14th notwithstanding.”
This isn’t a tactic exclusive to dems. Some of us here regularly get accused of advocating that meth be sold on every playground and school cafeteria because we want the failed drug war ended.
Of course, anything is possible, but there is a very detailed record on this. The doctrine that I am referring to is as much a 20th Century usurpation of power by the courts as was Roe v. Wade. Hamburger is a very engaging writer for an elite academic historian. You might enjoy his book. Berger lays it all out in painstaking detail.
In any event, I think we can agree that we are stuck with a lawless leviathan federal government for the time being.
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