If that was their aim, then the most sensible thing to do would be to say, "The Bill of Rights now applies against the states equally as against the federal government". By singling out that one provision in the BOR (the due process clause), they do the opposite of making that clear. Instead, they create the strong impression that only that provision is to be applied against the states. "Expressio unius exclusio alterius" and all that.
Believe me when I say that I sure could find a way to make the BOR apply to the states without the 14th Amendment (Supremacy Clause and various other parts of the Constitution).
There's been quite a lot of misunderstanding as to the supremacy clause. It has no effect on the applicability of any of the other provisions of the Constitution. Those provisions that would not apply to the states without the supremacy clause, would also not apply to the states with the supremacy clause. Those provisions that would apply to the states with the supremacy clause, would also apply to the states without the supremacy clause.
The difference between having a supremacy clause and not having one can be readily seen by looking at the situation that existed under the Articles of Confederation. Those articles contained plenty of provisions that applied to the states, but it had no supremacy clause. As a result, the provisions did not automatically trump state laws to the contrary. Instead, they merely created an "obligation" for the states to follow them. Under the new Constitution, provisions that applied to the states automatically nullified state laws that conflicted with them. That's the only effect that the supremacy clause has.
b) the intent of the founders (or in the case of amendments the Senate)
One final note, in the case of the 14th amendment, it's not just the Senate that's the equivalent of the Founders, but also the House of Representatives, and probably most importantly, the state legislatures that were charged with ratifying it.
inquest wrote:
There's been quite a lot of misunderstanding as to the supremacy clause. It has no effect on the applicability of any of the other provisions of the Constitution.
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THE SUPREMACY CLAUSE
Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
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The supremacy clause causes the US Constitution to be binding on the State Governments.
The States are restricted by the BOR because the supremacy clause binds the judges in every state to follow what's in the Constitution.
--- The BOR's and all Amendments are intergal parts of the Constitution... They therefore became restrictive on the States.
The 9th & 10th are clear.
The Ninth says that the peoples unemumerated rights cannot be denied or violated.
Thus the 10ths powers, both Federal, -- and those reserved to the States, -- cannot be used to violate the enumerated or unenumerated rights of the people.
-- A simple concept our 'states rights' contingent just can't accept.
Why is that?