Bingham wrote:
" -- permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the constitution of the United States."
" --- These eight articles I have shown never were limitations upon the power of the States, --- "
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If, [big if] the first eight Amendments "never were limitations upon the power of the States," --
--- Then why are "the privileges and immunities of citizens of a State" -- "chiefly defined in the first eight amendments to the constitution of the United States."?
Bingham obviously had the opinion that he was correcting a flaw in the Constitution pointed out by Justice Marshall in his 'Barron' decision.
There was no flaw.
The 'Barron' opinion was wrong, as it completely ignored the supremacy clause.
Barron was an attempt by Marshall to avert civil war, imo, -- by giving in to the 'States Rights' faction of the day. Naturally, it didn't work.
Appeasement on principles never does.
What does the one have to do with the other? The former refers to the state of Constitutional law prior to the ratification of the Fourteenth Amendment; the latter is an exposition of the original intent of the drafters of the Fourteenth Amendment.
Bingham obviously had the opinion that he was correcting a flaw in the Constitution pointed out by Justice Marshall in his 'Barron' decision.
That does not follow. He was declaring that the original intent of the Fourteenth Amendment was to supercede Barron. By your reasoning, the folks who are trying to pass the "Marrig Clubhouse -- No Homos Allowd" amendment are conceding that the Massachusettes Supreme Court has correctly identified a flaw in the Constitution (a claim I'm sure they would indignantly deny).