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.
Look, how many angels can dance on the head of a pin? If a conversation ever gets anywhere, it’s because the participants try in good faith not to get bogged down by things not central to the argument, and incorporation is useful but not central to my argument, and you are surely aware of that.
Therefore, I will concede that when I began this conversation I was implicitly referring to founders who were also framers (and no one argues Marshall to be a framer, unless you wish to distort “framer” out of all reasonable bounds), and thus confused the issue by using the broader term, and further confused the issue by referencing individuals who were not framers per se, in contradiction to my own implied definition. My apologies. It was careless of me.
However, as a result of my imprecision you have relentlessly tugged at that one loose thread, and it has enabled you to completely avoid exposing your own view of the central matter, what is natural law and how does it relate to the founder’s original constitutional design. I never get your view. You must wish to hide it for some reason.
In any event, I have not responded because I have lost faith that you wish to get to the core issues. You are intentionally hiding in the distraction I created for you. That works well in college debate class, but it does not serve the interest of patriots trying in good faith to restore a faltering country to its founding principles.
Therefore, when you are ready to defend your own view of the matter with greater transparency and good will, we may resume. Until then, I will assume you simply are unwilling to discuss the matter. Your choice.
SR