I do think I've understood what you're saying. I believe you to be saying that a state violates the due process clause only if it deprives someone of life, liberty or property in a manner that fails to comply with statutes passed by its own state legislature and that each state legislature may decide for its own state what constitutes "due process of law."
So, if you're sitting at the Supreme Court and you are reviewing a murder conviction of someone who claims his Fourteenth Amendment due process rights were violated because the trial judge refused to allow him a jury trial, then your decision would depend exclusively upon whether or not the state legislature in the state of conviction had passed a statute providing the defendant with a right to a jury trial. If so, and the trial judge defied the state legislature's directions, then the defendant was denied due process.
The problem that I have with this interpretation is that I don't think that people went to all of the trouble of adopting the Fourteenth Amendment just to make sure that state judges complied with the directions of state legislatures. The Fourteenth Amendment provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law." I believe that state legislatures were intended to fall within the scope of the term "State" and that the due process clause obligates the State (including the state legislature) to comply with some minimum standards of fairness when disposing of a person's life, liberty or property. I do not believe, for example, that a state can, consistent with the due process clause, execute or imprison people without trials even if the state legislature enacts statutes providing for executions and imprisonment without trial. I firmly believe that the due process clause of the Fourteenth Amendment was adopted as a limitation on state laws and practices with the understanding that states would thereafter be held to some national standards of "due process of law." The real debate concerns just what those national minimum due process standards should be.
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.
The Constitution provides that "Congress shall have power to . . . provide for the common defence." I don't believe that we are in any sense crippled by our Founding Fathers' failure to itemize precisely what they meant by "provide for common defence." And I don't think that they phrased that delegation in such general terms simply because they ran out of parchment. I believe that their delegation of that power was made in general terms because they knew that they were incapable of determining for people in the distant future exactly what providing for the common defense might in the distant future require. So they delegated to future Congresses the job of determining what might be necessary and proper to provide for the common defense. Don't overlook the possibility that an inquiry into what our Founding Fathers might have really "meant" by providing for a common defense might lead to the simple conclusion that they "meant" for our present Congress to decide such issues based upon our present needs (at least so long as Congress doesn't try to quarter troops in people's houses in violation of the Third Amendment - LOL).
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.
Well, Justice Brennan (in discussing the scope of Congressional authority under Section 5 of the Fourteenth Amendment) was merely referring to the same principle that I mentioned above with reference to Congressional power in the area of our common defense. That principle is that when a draftsman uses terms which are indefinite in scope, it is not unfair to assume that he/she did so intentionally for the purpose of creating greater latitude in possible meaning for future interpreters. If we find it acceptable that Congress was granted broad latitude in determining what is necessary to provide for the common defense, why should we find it unacceptable that Congress was granted broad latitude in determining what is necessary to provide due process of law or the equal protection of the laws?
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.
I agree with your assessment. And that is precisely what Brennan was saying.
You believe incorrectly. I acknowledge that there is a fixed meaning which constitutes "due process" which the amendment prohibits states from infringing upon, even by acts of legislature. What it does not prohibit states from doing is passing laws which restrict any type of action on the part of their citizens, provided they use appropriate methods for enforcing those laws. That's my understanding of the word "process".
If we find it acceptable that Congress was granted broad latitude in determining what is necessary to provide for the common defense, why should we find it unacceptable that Congress was granted broad latitude in determining what is necessary to provide due process of law or the equal protection of the laws?
Congress was not given as broad a latitude as you might think in providing for the common defense. This is the full line of that particular authorization, from Article 1, Section 8: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States...." This is a provision authorizing taxation, which simply explains that Congress has the power to raise revenue in order to provide for the common defense and general welfare. It does not say that they can pass any law they please that they might justify as promoting the common defense and general welfare (and in case you're wondering, this isn't just another one of my idiosyncratic interpretations; it's well understood all around to be the case, and well in line with the original intent). What the Constitution specifically authorizes Congress to do, further down in that same section, is provide for an army and a navy (true, it doesn't mention an air force, obviously, but that's pretty much just an army by other means). Even still, the common defense is a highly specific goal; whereas protecting undefined "rights", as the recent history of our supreme court decisions have amply shown, can apply to anything and everything. Virtually any law which restricts people's behavior in some way can be said to violate somebody's "rights". Virtually any spending can be described as "discriminatory", since it's necessarily going to be targeted towards some interest within the population. There is no meaningful limit to how the feds can rule. And there's a certain presumptiveness in saying that the drafters left it to future "generations" to interpret, the presumption being that these "generations" will consist only of people in Washington. The opinions of the "generations" in state capitals apparently are not to be taken into consideration.
And there's another thing I should mention about your link, by the way. It purported to show that the framers intended for the amendment to incorporate the Bill of Rights, but there's a huge catch. Unlike what you were claiming - namely, that the due-process clause could be construed to do that job - such was not what they had in mind for that clause. It was the privileges-and-immunities clause that they (according to the link) intended to incorporate it. But as I pointed out in #27, the final draft of the amendment clearly shows that that clause did not incorporate the BOR, because it is immediately supplemented by a provision that was lifted directly out of the BOR, namely, the due-process clause.