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To: Amendment10
Even the late 19th century USSC has shown, in Presser v. Illinois 1886 for example, that it was possibly not aware of John Bingham's words about the 14th Amendment which had officially changed the scope and clarified the purpose of the federal Constitution's privileges and immunities.

Or it may well have been aware of his words and simply found them to be of no use. Raoul Berger's excellent book, "Government by Judiciary," takes a lengthy look at the incorporation doctrine and dismisses Bingham as "utterly at sea as to the role of the Bill of Rights." Berger addresses your point in particular, noting that it would have been incredible for the bench and the bar to have been unaware of the recent passage of the 14th Amendment, which would have purported to adopt a wholesale and landmark change upon the structure of Our Federalism.

http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&layout=html#chapter_106927

58 posted on 03/10/2008 1:54:35 PM PDT by Publius Valerius
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To: Publius Valerius
Or it may well have been aware of his words and simply found them to be of no use. Raoul Berger's excellent book, "Government by Judiciary," takes a lengthy look at the incorporation doctrine and dismisses Bingham as "utterly at sea as to the role of the Bill of Rights." Berger addresses your point in particular, noting that it would have been incredible for the bench and the bar to have been unaware of the recent passage of the 14th Amendment, which would have purported to adopt a wholesale and landmark change upon the structure of Our Federalism.

How can you possibly overlook that the Civil War had unquestionably provided an impetus for post Civil War lawmakers to make systemic changes to the law of the land as evidenced by the 13th, 14th and 15th Amendments to the federal Constitution?

Also, regarding who should have known what with respect to the scope of the federal Constitution in the late 18th and 19th centuries, beware of falling into the trap of presentism, of thinking that the pioneering generations had the convenience of cell telephones and networked archives to keep themselves abreast of USSC opinions, etc..

Again, the Congressional Globe indicates that some federal lawmakers at the time of the ratification of the 14th A. evidently weren't aware that Chief Justice Marshall had noted in Barron v. Baltimore, 1833, that the federal Constitution, the federal BoR in particular, did not apply to the states unless explicitly stated.

60 posted on 03/10/2008 3:43:49 PM PDT by Amendment10
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