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).
Steve, -- Over two years ago on a thread called "The Incorporation Debate", I wrote to roscoe:
--- read the ratification debates themselves.
[to clarify that the 14ths intent was to protect our BOR's]
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No support there. Cheap bluff.
11 posted on 05/22/2002 8:07:57 PM PDT by Roscoe
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To: Roscoe
Sorry, but the original intent of the Fourteenth Amendment is clearly that of incorporation:
Debate over the anti-KKK bill naturally required exposition of Section 1 of the Fourteenth Amendment, and none was better qualified to explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, 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... never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" are an express prohibition upon every State of the Union .... Id. at pt. 2, Appendix 84 (Mar. 31, 1871).
This is a most explicit statement of the incorporation thesis by the architect of the Fourteenth Amendment.
63 steve_b
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Steve, --- it is clear to me, that our privileges and immunities of as citizens of a State are chiefly defined in the first eight amendments to the Constitution of the United States.
Binghams opinion that " -- These eight articles... never were limitations upon the power of the States, -- " was just a popular misconception of his day, brought upon by Marshalls erroneous Barron 'decision' of 1833.
-- Nevertheless, the 14th was necessary in order to stop the many violations of individuals rights in southern States. -- But I fail to see why 'incorporation' of out BOR's is needed.
The 14th clearly says that States cannot deprive any person of life, liberty, or property.
Why does the USSC need to 'incorporate' specific rights from our BOR's?