I found that I had once underlined the very paragraph that you quoted from Black's dissenting opinion in Adamson. Interestingly enough, Black suggested that the "incorporation" approach would provide a handy way to limit courts in their application of the Fourteenth Amendment: "I think that decision [Twining v. New Jersey] and the 'natural law' theory of the Constitution upon which it relies degrade the constitutional safeguards of the Bill of Rights and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise." Justice Douglas joined in Black's opinion and Justices Murphy and Rutledge joined in a separate dissenting opinion in which they stated that they agreed with Black's "incorporation" approach but believed that the due process clause's meaning should not be limited to just the Bill of Rights ("incorporation plus").
In his concurring opinion in Adamson, Justice Frankfurter also discussed a little history:
"Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court - a period of seventy years - the scope of that Amendment was passed upon by forty-three judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments . . . "
As I said in an earlier post, I believe that all of these various approaches are within the range of reasonable alternative interpretations of Section 1 of the Fourteenth Amendment. While each of these interpretive approaches are readily distinguishable from one another in detail, they are similar in that each of them acknowledges that Section 1 imposes a new constitutional limitation on state laws and practices in the form of an obligation to comply with some minimum standards of fairness in dealing with a person's life, liberty or property.
Your insistence that it was a bid to expand federal congressional power is simply not born out by the next fifty years, or more, of history. Not till the 'New Deal', in fact, did any real power grab start from the feds. And, by then, the fed grab was aided & abetted by the various state political machines.
My reference to the intent to expand congressional power is based solely upon Section 5 of the Fourteenth Amendment: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."
I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges.
I believe that its adoption represented a conscious decision to limit the powers of the state governments and to expand the powers of the Congress with regard to state laws and practices.
How near, yet far, you are to Justice Blacks view, - from 'Adamson':
"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."
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In the *bolded* portion of your statement above you differ from Black only in your reasoning of the 'intent'. -- Black, *in bold*, clearly claims the object of the 14ths Section 1 is to be a general constitutional limit on the state power to 'regulate' individual rights.
Your insistence that it was a bid to expand federal congressional power is simply not born out by the next fifty years, or more, of history. Not till the 'New Deal', in fact, did any real power grab start from the feds. And, by then, the fed grab was aided & abetted by the various state political machines.
The 'evil 14th' is political propoganda, by those who like the statist quo. - 43 tpaine
--- Section 1 imposes a new constitutional limitation on state laws and practices in the form of an obligation to comply with some minimum standards of fairness in dealing with a person's life, liberty or property.
Thank you. -- In effect, these 'minimum standards' are the bill of rights. It appears we agree on the basics.
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Your insistence that it was a bid to expand federal congressional power is simply not born out by the next fifty years, or more, of history. Not till the 'New Deal', in fact, did any real power grab start from the feds. And, by then, the fed grab was aided & abetted by the various state political machines.
My reference to the intent to expand congressional power is based solely upon Section 5 of the Fourteenth Amendment: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."
Enforcing the provisions of the 14th hardly expands overall congressional power over states. Only 'appropriate' legislation is constitutional.
- Again, - most anti-14th rhetoric is hyped up propoganda, imo. -- States themselves can fight inappropriate congressional legislation in the USSC. - That they rarely do tells the tale.
The 14th is not our 'problem'. - It is a political system out of control.