"The Bill of Rights wasn't passed to extend federal power under Article 6- as you are trying to do-"
Interesting. Where did you get the idea I was trying to do that?
The BOR were passed to restrict the federal government, but they also restrict the STATE governments BECAUSE of article 6.
I'm not intimately familiar with Barron v. Balt, but I believe it is a case where the State of Maryland tried to deny just compensation to a person whose property was "eminent domained" by the State. The person lost, and Maryland won, said Marshall.
Let's say that's the jist of it, for the sake of argument. Here's what Marshall should have realized in Barron v Balt.:
The supremacy clause requires a state judge to rule that a person whose property is taken by a state, must be given just compensation by the state, even if the State's constitution or laws don't require just compensation.
Article VI places the 5th Amendment, for all practical purposes, in the State's constitution, and if there's something in the State's "constitution or laws to the contrary", then it is superseded by the 5th Amendment, and the Judge must rule that the State must provide compensation. What would it have hurt, for Marshall to rule this way?
An interesting nuance that may help clarify that I'm NOT saying the federal government gets more power over the States because of the Supremacy clause:
The Congress would not have power to enforce the Bill of Rights on the States, under the Akston implementation of the supremacy clause (pre-14th Amendment). It would be up to the States' Courts only, to hold the State Legislatures to the 5th Amendment. I would repeal Section 5 of the 14th Amendment.
If it is a good thing that "NONE...I repeat NONE [of the Founders], ask[ed] for a Bill of Rights to give the federal government more power over the states or any person", then you also should like to see (at least) section 5 of the 14th repealed, because it rushed in where the Founders dared not tread.
I fully understand that the purpose of the Bill of rights in the Founders' minds was to restrain the US government. Mason was correctly worried that the power to, say regulate commerce, could have been abused and resulted in illegitimate searches and seizures, and prohibition of RKBA, for example, if the BOR wasn't added. "Implication" of "enumerated powers" wasn't enough.
By adding the BOR, to a document that contained the supremacy clause, they by default closed any loopholes allowing infringments in any state constitutions. It may not have occured to them that the US constitution (w/BOR) was going to be more protective of liberty than any of their jealously guarded State constitutions, but perhaps, at least in the case of Maryland's, it was.
Today, yes. But not before 1897 when the takings clause was incorporated under the due process clause of the 14th amendment.
In Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897), Justice Harlan delivered the opinion of the USSC:
"In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument."
" He cited a lower court ruling by Justice Jackson in Scott v City of Toledo, 36 F 385, 396 (CC ND Ohio, 1888) who said:
"Whatever may have been the power of the states on this subject prior to the adoption of the fourteenth amendment to the constitution, it seems clear that, since that amendment went into effect, such limitations and restraints have been placed upon their power in dealing with individual rights that the states cannot now lawfully appropriate private property for the public benefit or to public uses without compensation to the owner, and that any attempt so to do, whether done in pursuance of a constitutional provision or legislative enactment, whether done by the legislature itself or under delegated authority by one of the subordinate agencies of the state, and whether done directly, by taking the property of one person and vesting it in another or the public, or indirectly, through the forms of law, by appropriating the property and requiring the owner thereof to compensate himself, or to refund to another the compensation to which he is entitled, would be wanting in that 'due process of law' required by said amendment. The conclusion of the court on this question is that, since the adoption of the fourteenth amendment, compensation for private property taken for public uses constitutes an essential element in 'due process of law,' and that without such compensation the appropriation of private property to public uses, no matter under what form of procedure it is taken, would violate the provisions of the federal constitution."
Some of the state courts did voluntarily hold their states to the federal Bill of Rights, nothing wrong with that. In fact I've seen a quote from Madison saying that he hoped it would serve as a guideline.
But to reason that it was meant to require them to do so would be unsupportable. Logically it would lead to the fed courts ruling that it was required- yet not having power to enforce their decision!
All the requirements that the Constitution placed on the states are specifically stated or neccessarily (ha ha) implied by powers given to the feds.
It does seem strange now that the Founders trusted more to their states than the federal government to protect their liberties, but the federal government was new and untried then. It's really surprising that they could have been convinced at the time to give it as much power as they did. It was a near thing! The anti-federalists came within one state of having it all done over again.
The 14th was forced upon us at the point of a gun and has proven a bottomless pandora's box of federal powers.
I would instead enforce section 5 of the 14th - to keep the courts from using it as a blank check. Though on it's face giving the legislature this power seems to be the end of federalism I think the legislature would be more restrained in it's usage than the courts have proven themselves to be.