Yeah...I think I may have heard of it.
What is interesting is that the due process clause of the Fourteenth Amendment is supposed to have incorporated the Bill of Rights against the states. Of course, the Supreme Court only discovered this in 1925 (and, in the case of the First Amendment in 1947)...reversing numerous decisions between the time the 14th Amendment was ratified in 1868 and 1925.
But, if the intent of the 14th Amendment was to so fundamentally alter the American system of federalism, it seems kind of cryptic to do so with the language..."no state shall deprive any person of life, liberty or property without due process of law"...no? I mean, why not something more clear...like, "the first 8 Amendments to this Constitution are hereby made applicable to the states"?
I think that if Courts are going to claim that an Amendment effected such a monumental transformation as having made every state and local law subject to the US Constitution's Bill of Rights, and, in doing so, are relying on such cryptic language...there should be some strong evidence that is what those that ratified the Amendment were trying to do...but, the opposite is true
Professor Charles Fairman wrote a Stanford Law Review article back in 1949 entitled "Does the Fourteenth Amendment Incorprate the Bill of Rights", in which he scrupulously analyzed the Congressional debates and the state ratifying conventions (a detailed analysis unrivaled since) and Professor Fairman concluded that there was a mountain of evidence in favor of the argument that those who ratified the 14th Amendment intended to make it applicable to the states...and he contrasted this "mountain of evidence" with "the few stones and pebbles that made up the theory that the 14th Amendment incorporated Amendments 1 to 8.
In the case of the Estalishment Clause, there is almost irrefutable proof that the 14th Amendment did not make it applicable to the states...specifically, the Blaine Amendment of 1875
7 years after the 14th Amendment was ratified...President Grant asks Congressman James Blaine to introduce a proposed amendment, Section 2 of which reads, in its entirety:
No state shall make any law respecting the establishment of religion or prohibiting the free exercise thereof
The Blaine Amendment (which would have been the 16th Amendment to the US Constitution passes the House but fails in the Senate. Senator Frelinghuysen of NJ, in introducing the amendment in the Senate states:
The [Blaine Amendment] very properly extends the prohibition of the first amendment of the Constitution to the States. Thus the [Blaine Amendment] prohibits the States, for the first time, from the establishment of religion, from prohibiting its free exercise, and from making any religious test a qualification to office.
Senator Eaton of Connecticut, in objecting to the Blaine Amendment states, on the Senate floor:
I am opposed to any State prohibiting the free exercise of any religion; and I do not require the Senate or the Congress of the United States to assist me in taking care of the State of Connecticut in that regard.
Senator Whyte agreed:
The first amendment to the Constitution prevents the establishment of religion by congressional enactment; it prohibits the interference of Congress with the free exercise thereof, and leaves the whole power for the propagation of it with the States exclusively; and so far as I am concerned I propose to leave it there also.
The Congressional record during the debates over the Blaine Amendment shows that not one member of Congress...the majority of whom were in either the Congress that passed the 14th Amendment or one of the state legislatures that ratified it...not a single one...mentioned that the Blaine Amendment was unnecessary...it seems that none of the Congressmen who ratified the 14th Amendment knew that they thereby incorporated the Establishment Clause against the states.
If those that ratified the same Amendment that the Court now tells us "incorporated" the First Amendment against the states...apparently had no intention of or knowledge that they had done so...
Exactly what authority do federal courts have to, on their own initiative, create a new meaning and application of the First Amendment...demonstrably contrary to the meaning and application as intended and understood by those who ratified the Constitution and its amendments?...
None...and 60 years of illegitimate federal interference pursuant to clearly bogus court rulings does not thereby change the Constitution
Ooops...should read Professor Fairman concluded that there was a mountain of evidence in favor of the argument that those who ratified the 14th Amendment intended did not intend to make it applicable to the states...
Actually, the goals of the 14th Amendment appear to have been rather modest. The Equal Protection Clause didn't even give blacks or women the vote. It took additional constitutional amendments to achieve that. In the case of women, the amendment was added 50 years later.
The 14th's vagueness, however, has been a source of much of the left's abuse of judicial power. Basically, they've used the 14th to flip our system of government upside down. Instead of protecting the states and restraining the federal government, the Constitution, thanks to misinterpretation of the 14th Amendment, is now a federal bludgeon against the states.
That's because the court blatently disregarded the original intent of Bingham and the rest of the authors of the Amendment right from the beginning, starting with the slaughterhouse cases. The court in the 1920's was only undoing the bad jurisprudence of earlier courts.
But, if the intent of the 14th Amendment was to so fundamentally alter the American system of federalism, it seems kind of cryptic to do so with the language..."no state shall deprive any person of life, liberty or property without due process of law"...no?
Agreed. That's because they were intending to incorporate the BofR with the "privilidges and immunities" clause. Unfortunately, the Slaughterhouse Cases blatently disregarded the framers' intended meaning of this clause. Later courts wanted to restore incorporation, but didn't want to overtly overturn slaughterhouse, so they invented the substantive due process doctrine. This was kind of silly, I admit. They should have simply overturned slaughterhouse, but at the end of the day, the effect was the same.
In the case of the Estalishment Clause, there is almost irrefutable proof that the 14th Amendment did not make it applicable to the states...specifically, the Blaine Amendment of 1875
It's very refutable. A lot happens in 7 years. The composition of Congress was vastly different when the Blaine Amendment was being voted on than it was when the 14th Amendment was being voted on. Therefore, what Congress rejected in 1875 has no bearing on what it passed in 1868.
Furthermore, Blaine's motivation for pushing his Amendment was the fact that SCOTUS had already set a precident about the meaning of the privilidges and immunities clause that was at variance with Blain, Bingham, and other framers had clearly intended back in 1868. We know that because they explicitly said so. Therefore, the Blaine Amendment is actually evidence in favor of incorporation, not evidence against it.
Professor Charles Fairman wrote a Stanford Law Review...
Professor Fairman was full of it, and if you go and actually look up his quotations of Bingham and others, you will see it for yourself.