The First Amendment was not incorporated to the states until 1925. Gitlow case IIRC. The Fifth Amendment 1898, all the rest from the 1930s on. So in fact incorporation is a policy from activist courts.
"The First Amendment was not incorporated to the states until 1925. Gitlow case IIRC. The Fifth Amendment 1898, all the rest from the 1930s on. So in fact incorporation is a policy from activist courts."
Yes, but not in the way you imply. If you read the debate surrounding the 14th you will find that it was universaly considered an act that incorporated the BOR into state law. The debates were clear as was the intent of those founders.The reporting of those debates in the press was also very clear. It was the courts of the time that refused to acknowledge that the 14th even existed.
Read the opinions of the time. Try US v Cruikshank on the 2nd amendment. The court, despite the 14th, simply reasserted the pre civil position that the BOR was not applicable to the states. This would be the same as the country passing an Amendment allowing women the vote and then having the Court simply ignore it and defer to older case law.
That was what the Court did. They pretended the clear, well documented intent of the 14th simply did not apply. The court trumped the Constitution, exactly as they did in Kelo and in CFR legislation.
It was the Courts in the 19th century that ignored the intent of the 14th, when they noted the amendment at all, that were the activists and it was the courts of the 20th century who bothered to read the Amendment that got it right.
interesting. I'm going to take your word for it, and I guess I stand corrected.
Do you think they should apply across the states? (activist courts notwithstanding.