Some other problems with incorporation. 1. Why is it that the amendment that allegedly incorporates the BOR NEVER EVEN MENTIONS THE BOR??? 2. The PRIV and IMM clause. I think we would all agree (I HOPE) that the Fed gov is not entitled to set up a welfare state. It's not in the enumeration. The fed gov is not entitled to set up a dept of educat. It's not in the enumeration. Therefore, as a citizen I am IMMUNE to being taxed for welfare or edu from the fed gov. IF, as a citizen of a state, I am to enjoy, on the state level, all IMMUNITIES that I am entitled to from the fed gove, it follows to reason, that even the STATE gove may not set up a welfare program or even a school system. Surely this was not intended. People who go in for incorporation, basically say "The same rules apply to fed and state gov now." They think this somehow only applies to BOR type legislation, but where do they get that narrow view? Again, the amend does NOT say anything about the BOR. 3. The biggest problem. The amendment in question either DOES or it does NOT say, "The bor now applies to the states." We can all agree on that, I hope. But, it ABSOLUTELY POSITIVELY does NOT say "The USSC will decide exactly which rights apply and which do not, and the USSC shall make these determinations on a case by case basis as the USSC shall see fit." That much, I guarantee you the amendment did not intend, and yet, that's exactly what we have. The USSC has never once said that the bor applies to the states, as many people think. It has instead moved on a case by case basis. Scumbags.
Excellent point. When drafting the 14th amendment, it would have been very simple to word it such that the first eight amendments would "heretofore apply to the states".
The author said that was his intention, but history doesn't support it. That very same Congress subsequently passed statutes that were redundant and unnecessary had the 14th applied the BOR to the states.
Plus it took almost 100 years to "incorporate" the BOR, and still the 2nd, the 3rd, parts of the 5th, and the 7th only apply to the federal government.
"... does NOT say "The USSC will decide exactly which rights apply and which do not, and the USSC shall make these determinations on a case by case basis as the USSC shall see fit."
Yes but.
Someone has to interpret the Constitution. What is an "unreasonable" search? Do we really want Congress, which writes the statutes, interpreting "unreasonable"?
That was settled in a landmark case, Marbury v Madison in 1803:
"The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since."
-- usinfo.state.gov