I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges. I believe that its adoption represented a conscious decision to limit the powers of the state governments and to expand the powers of the Congress with regard to state laws and practices.
I believe that that amendment's due process clause was adopted for the purpose of requiring that all states meet some minimum "American" standards of fairness when disposing of a person's life, liberty or property. I believe that the exact parameters of those minimum standards were intentionally left unspecific so as to allow for flexibility in the determination of those minimum standards. I think that any one of the four interpretations presented in the article at the head of this thread would constitute reasonable alternative interpretations for the Fourteenth Amendment's due process clause. In that regard, here is a link at which you can find a summary of historical support for the "incorporation" approach.
As for the equal protection clause, I believe that its primary purpose was to prevent states from discriminating against recently emancipated blacks. I do not view as reasonable any interpretation of the equal protection clause which ignores this history or design. Accordingly, I believe that the range of reasonable alternative interpretations would begin at a level which would forbid states from adopting laws or practices which expressly discriminate between persons on the basis of their race.
It's not surprising at all that he should make such a ruling. What he's basically saying is that the 14th amendment gave him and his club a blank check to write legislation on. I'd have to respectfully disagree. If he truly believed what he said about the irreducibility of the meaning of the 14th amendment, then he would have no choice but to rule that it is, what the lawyers call "void for vagueness". That's how they rule in cases where someone passes a law saying something like "Don't do anything bad". It would be utterly irresponsible for judges to turn it into a license to legislate.
That particular quote was from a case in which Brennan and the Court were concerned with the extent of the powers granted to Congress "to enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment. It had nothing to do with a "license to legislate" by the Court; it concerned the power of Congress to legislate pursuant to Section 5 of the Fourteenth Amendment.
I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges.
I believe that its adoption represented a conscious decision to limit the powers of the state governments and to expand the powers of the Congress with regard to state laws and practices.
How near, yet far, you are to Justice Blacks view, - from 'Adamson':
"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced.
This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."
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In the *bolded* portion of your statement above you differ from Black only in your reasoning of the 'intent'. -- Black, *in bold*, clearly claims the object of the 14ths Section 1 is to be a general constitutional limit on the state power to 'regulate' individual rights.
Your insistence that it was a bid to expand federal congressional power is simply not born out by the next fifty years, or more, of history. Not till the 'New Deal', in fact, did any real power grab start from the feds. And, by then, the fed grab was aided & abetted by the various state political machines.
The 'evil 14th' is political propoganda, by those who like the statist quo.
I want to harken back to what you said in your previous post. You stated that if one cannot determine the meaning of a legal statement from the words themselves, one should look at the context surrounding its passage. But before geting into that, it would only be fair to really see if there are truly other reasonable ways of simply looking at the text itself. You gave examples of how the due-process clause might be interpreted in different ways, but didn't provide any justification for them based on the text. What I was asking you to explain is how the phrase "due process of law" can be realistically construed to concern itself in any way with content of a particular law, when common sense would suggest that the word "process" only refers to how something is executed, not what it is. Sorry if I didn't make myself clear earlier.
I also want to revisit another point you made. You stated that it is inevitable that any particular piece of law isn't going to say everything that its authors intended to say, and therefore would require some extra investigation to determine the full meaning. That of course is true; the Constitution would have to be hundreds of pages long if it were to include every facet of meaning that was intended. Therefore, it's understandable that the drafters of a law would state the most basic points using well-chosen words, so that the rest of us would have something to build some meaning from. However, if your interpretation of a particular law results in something that can be easily expressed in fewer words, and with words with clearer meaning, than the words that actually comprise the text, then that would be cause for suspicion of that interpretation. Then, someone would be justified in asking why the framers simply didn't come right out and say it. I'm referring to your quote from Judge Brennan. After reading it, one wonders why the 14th didn't simply say, "The Congress and the federal judiciary shall have veto power over all State laws and policies." That's essentially the same thing. If that's what they had intended, then they really had an obligation to make that clear, especially since it would have resulted in such a profound shift in the balance of power between Washington and the states. And it was particularly dishonest of Brennan to cite the lack of clear intent on the part of the framers as justification for a power grab by the feds, when lack of clarity in a law, as I said earlier, should tend to invalidate it, not increase its scope.
And by the way, I did follow your link, and much of it seems to support my position. For one thing, it shows the lack of clear thinking by the framers in drafting the amendment. Also, in regards to the equal-protection clause, for example, the fact that it originally had language pertaining to race, which they deliberately dropped, would suggest that its scope was not to be in any way limited to race.