Your selective editing, your “Bartonian ellipse,” as it were, has resulted in a grave, and what appears to be an intentional distortion of my working definition of “Founder.” I therefore reiterate my earlier post:
“No, a ratifier is not a writer or a contributor in the sense of original thinking. However, I understand that defining the scope of who the Founders really were is a debated issue. I really limit it to those who made the most notable contributions to the creation of the original documents, not to its broader acceptance in the states. Again, as a matter of best evidence, authors should take precedence over voting delegates, and the precedent tributaries of thought such as Locke and others, should be considered important and even dispositive if the authors so regarded them.”
Under that definition, the “selectivity” to which you object is simply a natural outcome of the purpose, which is to show what influenced the substantive content of the founding documents. Therefore, while I have already granted in the above statement that broader definitions of “Founder” could theoretically include anyone from the period, no matter how attenuated their role, I will still contend that Marshall was not a player as to formation of the substantive content of the founding documents, and you have not refuted that. If you would prefer another term for the subclass of Founder I am referencing, perhaps “Framer” would be closer to the goal, but it is not quite perfect, because I do not wish to exclude those who contributed to the Framers’ thoughts, given their power to explain the origin of the Framers’ content.
Furthermore, because the Declaration stands in an organic relationship to the Constitution, Jefferson, as the author of the Declaration, is most certainly a Founder under the foregoing definition. And Jefferson, in agreement with Hamilton, Blackstone, Locke, et al, would not countenance a vision of legitimate government that allowed at any level for genocide:
“strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
~Thomas Jefferson, Letter to J.B. Colvin (Sept. 20, 1810)
And here, Jefferson, whom both of us must regard as a top tier Founder using any reasonable definition, makes my central point, that the Constitution, as a body of positive law, only serves as a means to an end, that end being the preservation of “life, liberty, property,” the core individual rights, grounded in natural law, without which one loses both law and country. Can you see how that might exclude genocide?
Your selective editing, your “Bartonian ellipse,” as it were, has resulted in a grave, and what appears to be an intentional distortion of my working definition of “Founder.”
I did nothing more than apply your definition as you are applying it to Marshall, which is to say excluding him from the ranks of the framers. It makes no difference that you subsequently enumerate an expansive definition that might theoretically encompass him if in fact you are applying the narrow one to exclude him. And as I previously noted, even that narrow exclusion is suspect to the point that it appears to be premised on nothing more than its convenience to your pro-incorporation position and your desire to exclude Barron v. Baltimore from the body of authority among the founding generation to argue against incorporation.
I will still contend that Marshall was not a player as to formation of the substantive content of the founding documents, and you have not refuted that.
Except that I have, back when the original point was raised. Let me ask you this: does the Bill of Rights not count as a "founding document?" If it does (and I think the case is especially strong here considering we are discussing the incorporation of the Bill of Rights as a legal concept), then it is absurd to exclude John Marshall from your definition because the simple truths of history contradict you.
The Bill of Rights came directly out of the Virginia ratifying convention, where both its first draft was prepared and its implications were most thoroughly discussed. In fact, Marshall gave one of the most forceful and influential speeches from that entire convention - elaborating point by point why many of the amendments we now take for granted were necessary in establishing the formative structures of our judicial system. That alone is more than sufficient to establish him as a valid measure of the original intent behind the Bill of Rights, which again is the subject at hand with the incorporation doctrine.