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You are critical of the way in which others have interpreted the due process clause to "incorporate" the Bill of Rights because you see these people as improperly adding meaning to the Amendment that the draftsmen did not express. But your interpretation is no different in that regard. By exempting state legislatures from the scope of the Amendment, you too are adding meaning that the draftsmen did not express.

That's actually not quite the exact criticism I had of tpaine's reasoning. He was trying to make the point that in order to understand what was written, one should examine what someone supposedly intended to be written. What I'm saying, and what I would think is rather self-evident, is that in order to understand what was written, one should examine... what was written. That is, we should look at the text itself and see what kinds of conclusions should be drawn from the words contained therein.

In the case of the due-process clause, for example, it really strains the imagination for me to think that talking about the "process" of law involves any concern about what the law actually says. It looks clear to me that it's only about the way the law is processed - meaning, how it's administered. In the case of the equal-protection clause, I did mention to you on the last thread that I hadn't totally discounted the possibility that it would also apply to legislative acts. It's just a matter of logically examining the implications of that particular conclusion and seeing if it really squares with what the text says. And as for "privileges and immunities", of course, I never would say that it wouldn't apply to legislation, since the amendment actually comes right out and says, "No State shall make or enforce any law which shall...."

What I'm saying, and what I would think is rather self-evident, is that in order to understand what was written, one should examine... what was written. That is, we should look at the text itself and see what kinds of conclusions should be drawn from the words contained therein.

I don't think that anyone would disagree with you on that point and in many cases reference to the text of a statute alone will provide you with all that you need to know to apply a statute to a particular set of facts. When the meaning of a statute is sufficiently clear from the text to permit an interpreter to apply its meaning to a particular problem, that particular job of interpretation is usually over. Unfortunately, the text of the Fourteenth Amendment is not composed of words and phrases that are sufficiently specific or definite to often foreclose the possibility of numerous alternative reasonable meanings.

It is because a choice must be made between these alternative meanings that interpreters often feel a need to look beyond the text in an effort to determine and consider, for example, the "intent" of those who participated in its enactment or a manifest "purpose" in terms of legislative objectives (which can at times be broader than intent) or the historical circumstances and events surrounding its enactment, etc.

I don't wish to sound overly critical of your view of the Fourteenth Amendment because the amendment's meaning is simply not all that clear. However, I can say that you might find it easier to persuade others that the Fourteenth Amendment should be interpreted to involve a limitation on the powers of state judges (rather than state legislatures) if you could demonstrate that at the time of its enactment, there existed a perception that state judges were abusing and exceeding boundaries that had been had been set for them by state legislatures, that the arguments in support of and in opposition to the adoption of the amendment related to concerns about the manner in which state judges were conducting themselves, and that there existed little or no concern about the effects that acts of state legislatures might have on persons within their reach. Unfortunately, I think the best evidence suggests that the persons involved in the amendment's adoption were in fact far less concerned about the fidelity with which state judges were administering state laws than they were with the past and anticipated future conduct of state legislatures in enacting laws respecting the legal status and rights of recently emancipated blacks. But these are just problems that you may confront in persuading others to your point of view.

Thus far, we have only concerned ourselves with interpretation of the Fourteenth Amendment by Federal judges. Section 5 of the amendment granted to Congress new powers so that it could enact appropriate legislation to enforce the amendment. I can assure you that Congress has never viewed its role in this area as being limited to ensuring that state court judges comply with state law. In considering how Federal courts might review Congressional interpretations of its own authority under the Fourteenth Amendment, you might be interested in this quote from an opinion written by Justice Brennan:

"The historical record left by the Framers of the Fourteenth Amendment, because it is a product of differing and conflicting political pressures and conceptions of federalism, is thus too vague and imprecise to provide us with sure guidance in deciding the pending cases. We must therefore conclude that its framers understood their Amendment to be a broadly worded injunction capable of being interpreted by future generations in accordance with the vision and needs of those generations." Oregon v. Mitchell (1970) 400 U.S. 112.

How do you like them apples?