Government doesn't ensure prosperity; it can (or should) ensure a legal environment conducive to individual liberty which is essential to prosperity.
The article above (and its "citations," if one can call them that) make no reference to any real scholarship in the field whatsoever.
This is false.
First of all (since it says "vanity" at the top of the article and you therefore don't read very carefully), I wrote this article. So, allow me to point out the deficiency of your assertion:
Consider the first link to Article the Fourteenth in the submission to be considered for the BOR. There are enough "scholarly citations" in that piece to satisfy anybody. Strike one.
The second link contains 53 references to original sources. Strike two.
The third link to the Constitution Society contains 149 references to original sources. Strike three.
The article wasn't meant to be a scholarly discussion on the origins of the 14th Amendment, it was to be a synthesis of a number of reliable sources concerning the way it has been used and why. It was intended to help people articulate how the court has twisted the Constitution. It is intended to caution "conservatives" from relying upon federal protection through the courts, and how in the case of Kelo it backfired, thus admonishing them from future cases involving, for example, the Second Amendment. It was written for public fora (whatever you may think of them), not a scholarly law or history journal. It therefore refers to reasonably reliable sources containing appropriate citations with links, which is perfectly appropriate for a public forum.
The article attempts to portray Bingham as a crafty lawyer with a grand plan, but the debates show that Bingham was, at best, extremely sloppy and inconsistent, and at worst, an idiot.
Even the most intelligent people can easily look that way when they are covering for something, especially on paper and particularly in a setting where bombast, coercion, posturing, and butt-kissing are the currency of discourse, certainly not scholarly reason. Not to consider that possibility as the source of the record is indicative of the kind of self-reinforcing condescension that led you to conclude errantly the intent of the article.
The amendment itself appears to make a distinction (due process to persons, P&I to citizens) but the conduct of Bingham and others during the debates seems to imply that there was no distinction intended.
What they said later notwithstanding?
There isn't any reference to the debate surrounding the Civil Rights Act or the 13th Amendment, which are absolutely key to understanding the 14th Amendment. It's a joke. It's not serious.
Simply because the article did not focus upon the topic you would have preferred is not reason to say it isn't serious. I could easily say the same things about your post, because it offers nothing constructive.
It doesn't even make reference to the Congressional Globe, which the author can't even properly identify, referring to the Congressional Record, which didn't even begin publication until 1873!
How many people reading this piece would know what the Congressional Globe was? I'd bet they would think it was a newspaper. Seeing as it had a similar function as the Congressional Record, dubbing it by its modern name avoids confusion for the reader. If you think that dishonest, mea culpa.
There isn't any reference to the debate surrounding the Civil Rights Act or the 13th Amendment, which are absolutely key to understanding the 14th Amendment. It's a joke. It's not serious.
Are you defending the selective incorporation doctrine here or Miller's interpretation in the Slaughterhouse Cases? Try contributing something instead of posturing about what a studly scholar you are. It actually would be appreciated.
I am an engineer doing habitat restoration, not a legal academic or historian. I am trying, in my own limited way, to get SOMEONE to ask serious questions of Judge Roberts that will indicate his opinions on federalism, equal protection for fictitious persons, and particularly about the manner in which the 14th Amendment has been abused. I am trying, in my own limited way, to get conservatives to reconsider using the Federal courts as a venue whereby to regain accountability in government and respect for the Constitution. Are you doing that? Have you taken the time and trouble to write one? Maybe it's worth your time; maybe it isn't.
It's probably not, for the simple reason that no matter what anyone would like, we're not going to roll the clock back to 1868 and re-adopt an "originalist" 14th Amendment. These issues are settled, and at this point, it's just too much to undo--it's too much to undo even the jurisprudence from, say, 1954 on. It can't happen, for a lot of reasons.
As I mentioned on another thread, while a lot of people say they don't like "judicial activism," what they mean is NOT that they don't like judges expanding the meaning of the constitution, what they don't like is judges expanding the meaning of the constitution in a way with which they disagree. For instance, take Brown. I think it's really beyond debate that Brown was wrongly decided from a legal perspective. Shoot, Warren didn't even really try to defend it in the opinion, other than to say that it's obvious that segregation is unconstitutional. It's really not so obvious, but that's not the point; while Brown was certainly controversial at the time--especially in the South--Brown is pretty much universally accepted now as a "right" or "progressive" decision by the Court. Everyone knowns that Brown was wrong and feels guilty about it, which is why there are about a zillion law review articles that try and defend it, but everyone also agrees, for the most part, that it was a good thing on balance.
That's the hard part. An original intent 14th Amendment world is very different than the one we live in today. Schools could be segregated on the basis of race, the government could (at least indirectly, if not outright) discriminate on the basis of race with respect to the franchise, 15th Amendment notwithstanding (it's hardly been used, anyhow), the government could discriminate on the basis of sex in every manner, it could discriminate against the handicapped or the mentally ill or whatever. Are you totally comfortable with that? Even if you are, that's great, I applaud you for your consistency, but anyone has to admit that it leads to uncomfortable results.
But, of course, uncomfortable results would be fine if the political process worked correctly. Democracy (or Republicanism, whatever) is great if everyone acts in good faith, but what if one group in power systemically discriminates against other minority groups? The political process breaks down because people don't act in good faith. They are rent-seeking. There is an interesting law review article that talks about game theory and the political process theory that addresses this very point: that game theory drives majority groups to systemically discriminate against minority groups in order to maximize their own benefit.
So if the political deck is stacked, then relying on the political process to rectify the failings of government is self-defeating. Moreover, even if you don't accept the notion that the political deck is stacked, you have to admit that there is a breakdown when majority groups attempt to circumvent the political process by restricting either access to the franchise (or by diluting voting strength) or reducing the practical ability of certain groups to participate in the political process (by, say, substandard education). In both these situations, the political process is no answer at all. Take Brown again, for instance. Let's say Vinson didn't die and Brown was decided the other way, which would have been a distinct possibility. Assuming the judiciary stayed out of the civil rights movement altogether, how long would it have taken to desegregate schools? 1970? 1980? It probably would have happened eventually, but how much longer? Is 25 or 35 years an acceptable time frame for the political process to correct errors? If not, what's the answer?
Look, I'm not saying this to mean that originalism should be questioned or doubted; I think it's the best way to interpret the constitution. What I am saying that's it's not such a black and white issue as some folks want to make it out to be. Originalism leads to some bad results sometimes that might not always be fixed by the political process, and then you've got a real dilemma. I don't think Ely's political process theory is an acceptable answer, but I don't know what the answer is. That's the hard part.