It's okay - we seem to be on the same basic wavelength tonight ;)
We have an idea of due process here that applies to us as Americans, and that is laid out by the Constitution. It's not everyone's idea of due process - due process doesn't mean much in Cuba, for example. They'll have a real nice trial before they shoot you, but that trial is basically a formality, and not a true fact-finding exercise the way we do it here.
So, then the question all along has been WRT to the 14'th Amendment, and what due process means to the states in light of it. And I have to say, I understand the arguments against incorporation, and I even find them sort of persuasive. But I have to come back to the consequences (yeah, yeah) of total non-incorporation. Of what practical value is a Bill of Rights that the states can violate with impunity? Sure, the feds can't violate it, but when that Arizona trooper starts quizzing you about geography while knotting a rope, that ain't gonna be much comfort.
And practically speaking, historically speaking, there have been plenty of cases of abuses of due process by state and local authorities - hop in your time machine and dial it back 40 years, and then ask the black residents of rural Mississippi how that procedural due process thing is working out for them. The feds are remote and far away, for the most part. It's those state and local guys that I see on a daily basis, and I'd sort of like some guarantee that I'm not going to be subject to the personal whims of Sheriff Buford T. Justice.
Now, you want an a**hole's reading of the 14'th amendment? I'm wrapped up in argument with a hard-core lefty who insists that the 14'th means that if any one crop is subsidized by the government, it would be discrimination not to subsidize all legal crops. How do you like that reading of the 14'th? ;)
In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:
Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9.
As the second Justice Harlan recognized:
"[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."
Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777
Sounds good to me. Because that means the only way the feds could truly be in compliance would be to have zero subsidies for anything. Maybe the 14th could have some usefulness to it after all...