Really? You consider John Marshall’s rejection of the incorporation of the takings clause as sweeping, persuasive evidence of the sentiment of the founders concerning natural law duties of the member states? Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, was decided in 1833, a full generation after the founding, by John Marshall, the man whom many regard as the father of judicial review. Now if you are as concerned as you say you are about judicial activism (which is without doubt the unwholesome progeny of judicial review), Marbury v Madison (1803, well before your Barron case) surely must give you pause. And a true, original founder, Jefferson, it is well known, did not approve of the kind of concentration of judicial power that Marshall arguably planted in that decision. How can that be, if Marshall is such a sterling source for beliefs of the Founders?
The problem with revising history, you see, is that facts keep getting in the way. Real life is complicated and messy. That’s why quantity means something. You can draw a single case to your side for the antebellum period. I can draw founder after founder after founder. And I mean people who were signatories to the Constitution, pen to paper founders, not mere judicial appointees who came later.
So, let me ask you this, Mr. “I’m no revisionist,” where does John Locke come out on this? Because where Locke is, you will certainly find the Founders. Or are you prepared to tell me that, yeah, Locke was referred to a lot but nobody actually believed all that natural right stuff he kept spewing? Because if you accept Locke’s influence on the Founders, I have another quote for you to avoid responding to:
“The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.”
~John Locke, Second Treatise of Civil Government, Chapter 19, “Of the Dissolution of Government,” Section 222 (1690) (See http://www.constitution.org/jl/2ndtr19.htm).
Hey wow, that really sounds a lot like the Declaration, doesn’t it? It should. Imagine that, a government invalidates itself when it tyrannizes the lives, liberty, or property of the people. So where do ya think systematic genocide would fit in that template? Just curious ...
I also find any attempt to read some unrelated platitude about a vaguely defined and likely ill-understood "natural law" into that observation to be contrived with certainty, and possibly a willful misrepresentation of my position.
Furthermore, I continue to find a disquieting amount of hypocrisy in your taking issue with the 1833 date of Marshall's decision (despite the fact that he belonged to the founding generation himself and was appointed to the court during the founding generation in 1801), seeing as you were recently citing 20th century pro-incorporation passages to support your position.
Though I'm certain you will ignore each of these salient and clearly stated points yet again, favoring instead the tactic of playing pretend philosopher with quotes you gleaned from hackish and amateur websites that understand their meaning even less than you do, I think the record is sufficiently clear that Baron v. Baltimore is thoroughly representative evidence of the founders position on incorporation. That in turn makes the incorporation argument at odds with the government they created. And by extension of your advocacy of it, it also places you at similar odds with them.