I'm not certain. I know the northern legal community and politicians hated it, and I know they conveyed their outrage with it to the people around them, but I don't know if the average northerner cared about it one way or the other.
As with today, the people making a stink about something do not always represent the majority. I have not studied this particular point enough to have a good feel for what the average northerner felt, but I more or less agree with you that important components of the northern society hated it.
Incorporation does not come from the 14th amendment.
I have always heard that it does. I will be interested to hear your theory on this, and I presume it has something to do with the Dred Scott decision.
I think you will argue that because Dred Scott applied the right to own slaves to all the states in the Union, this is the initial application of the "incorporation doctrine."
This is a novel claim, and does not really fall into the category of what most people regard as the "incorporation doctrine."
I think Taney's position was that Article 4 required states to accept the legal rights of other states, and that included the right to slave "property", which was protected under the rights guaranteed in the slave states.
I can see the rational for this argument, because if a state banned someone from bringing horses into their state, it would clearly be seen as an infringement on the property rights the states agreed to when they ratified the constitution.
I think Taney's logic is that so far as the law is concerned, there is no difference between slave property and other property.
I don't agree with the laws that existed in that era, but I understand how they should apply in that time period.
The problem with the "free" states is that they agreed to get in bed with the "slave" states, and didn't like that aspect of the contract they signed.
That's all that is really required. Perhaps Kansas itself in regard to the average citizen didn't care one whit about slavery, Kansas still bled anyways.
"I have always heard that it does."
Me too. It's that unanimity, the unanimity was that initially made me certain that a lie was afoot. Progressives are really good at hiding things in plain sight. Like the unanimity about Climate Change. Again, I can't help but bring up trusting progressives with this.
I would argue that the unanimity itself is the issue. That alone should be a red flag. It's enough on many other issues, the science is settled - immediate distrust, why not this one? The incorporation is settled. Stop questioning it. Oh, but gun control. That's another one. Progressives feign plenty of unanimity on that one too. I bet you could compile your own list.
Where do you see progressives push a narrative of unanimity in order to get their way?
"I will be interested to hear your theory on this."
My problems with the civil war and progressivism links always come from that big 30 year gap. I know you like to ignore that, but I can't. It is plainly laughable that progressivism doesn't show up basically until 1900 but yet, somehow, civil war. You know when the civil war was, right?
1900. Yes, 1900. Give or take a few years, you're still at 1900 with progressivism.
As to my "theory", as you put it (that's cute of you) was crystallized after reading prominent conservatives (or at least those who challenge) on the issue, instead of keeping myself surrounded in a morass of deep progressivism or progressive-think. One such source you might consider is Henry J. Friendly, who wrote critically about the concept of incorporation and its obvious flaws. https://books.google.com/books?id=_RA2AAAAIAAJ&pg=PA636
He said that "Whatever one's views about the historical support for Mr. Justice Black's wholesale incorporation theory, it appears undisputed that the selective incorporation theory has none."
The fact that the full name of the Incorporation Doctrine is called the theory of selective incorporation - that even should be a red flag too. When are they going to incorporate the 9th and 10th? If the doctrine is absolute, then they MUST. But that they don't seem to want to makes it clear that it's nothing more than fancy judicial whims. Selective? Why is it selective? Who said it needed to be, or should be selective? Why isn't that word present in the plain text of the 14th Amendment? Selective? So who is making it up then? But I digress.
Beyond Judge Friendly, another critic was Louis Henkin, who stated it just this plainly that the theory of selective incorporation has: "no support in the language of the amendment, or in the history of its adoption, and it is truly more difficult to justify than Justice Black's position that the Bill of Rights was wholly incorporated".
https://constitution.org/1-Constitution/cmt/stlotl/stlotl.htm (Article written from Hillsdale College)
But really, what do progressives need language in the amendment itself for? They can just make it up using emanations and penumbras.
Ed Meese frequently spoke about the fallacy of the Incorporation doctrine, sometimes more specific than others. But my favorite is Judge Robert Bork. Bork wrote in his book "The Tempting of America, p. 181-183
(It is not) easy to imagine the northern states, victorious in a Civil War that lead to the fourteenth amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves.
This is why I brought up Dred Scott. How many times have the courts frustrated the Northern States using the 14th amendment? You know as well as I do that its been many, many times. After just seeing the courts frustrate Northern interests in Dred Scott, the last thing any Northerner and in particular as you yourself stated it, the legal community and politicians, would have said:
"Hey, you know what Bill? Let's empower the courts, yeah! that will fix all of these problems!"
- said no Northerner ever. Not in those decades. Not after Dred Scott. Bork is right on this. And you don't see it in the plain text nor is it in the debates. Bork continued:
Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion.
To this effect: No debates in congress. No debates, in particular, in THE debates which created the 13th and 14th amendments. No debates in the legal community. No debates in the newspapers. It simply doesn't exist anywhere anything. There's nothing like this in the debates, nor is there anything like it (as Henkin pointed out) in the text of the amendment itself. You need an emanation of a penumbra to get there. If not emanations and penumbras, where is the evidence?
Bork concluded:
We know there is no evidence that the ratifiers imagined they were handing ultimate governance to the courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit.
Incorporation is counterfeit, the ratifiers of the 14th didn't create it. What's that guy's name who wrote it, John Bingham. John Bingham didn't talk about incorporation in the debates. It's not there, it's simply nowhere. It might not actually even be worthy of an emanation of a penumbra, it's that bad.
Incorporation itself even suffers from the same time gap. It took two decades for some judge (John Marshall Harlan) to discover this gift of incorporation. Two decades. How is that even possible? But of course, the progressives didn't even think to start using incorporation for another basically three decades. How can these time gaps be ignored? They cannot.
Well. Now that we have gone through all that, it's not "my theory" - or anyways I'm not the first to notice the lack of historical roots. The SCOTUS simply made up the Incorporation Doctrine because they could. It's a naked judicial power grab.