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1. I had done reading on it a long time ago and the general sense I got was that it was NOT a settled issue. Additionally, not all of the bill of rights has been incorporated....so what gives.
The courts adopted the doctrine of selective incorporatoin. The writers and advocates of the 14th clearly indented all of the first 8 amendments to apply.
Watcha gonna do?
Because they were overruled by the SCOTUS. See my comments about the rulings of the living outweighing the rulings of the dead.
Its irrelevant to any legal debate. And that's what I'm interested in. It would be like arguing the efficacy of women voting because you don't think the 19th amendment passed. By the standards of our law, it passed. Its been recognized as passing in the law for generations. And any debate of its passage is merely rhetorical masturbation, as it has no relevance on the law today.
“How come the Slaughterhouse cases were not the standard ? They were the first ruling on the 14th.”
Because the Slaughterhouse Cases concerned the Privileges or Immunities Clause of the 14th Amendment, not the Due Process and Equal Protection Clauses, which apply most of the Bill of Rights to the states in accordance with incorporation doctrine, compelling the states to afford Americans citizens both procedural and substantive due process, as well as equal protection of (equal access to) state laws.
In McDonald v. Chicago (2010), incorporating the Second Amendment to the states and local jurisdictions, the Supreme Court reaffirmed the doctrine of selective incorporation.
As Justice Scalia explained in his concurrence:
'Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." Albright v. Oliver, 510 U. S. 266, 275 (1994) (Scalia, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.'
“How come the Slaughterhouse cases were not the standard ? They were the first ruling on the 14th.”
Because the Slaughterhouse Cases concerned the Privileges or Immunities Clause of the 14th Amendment, not the Due Process and Equal Protection Clauses, which apply most of the Bill of Rights to the states in accordance with incorporation doctrine, compelling the states to afford Americans citizens both procedural and substantive due process, as well as equal protection of (equal access to) state laws.
In McDonald v. Chicago (2010), incorporating the Second Amendment to the states and local jurisdictions, the Supreme Court reaffirmed the doctrine of selective incorporation.
As Justice Scalia explained in his concurrence:
'Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." Albright v. Oliver, 510 U. S. 266, 275 (1994) (Scalia, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.'
That's a way better answer than mine.
Ask why they are not all incorporated. Did you read the article I posted. It clearly shows evidence of a debate that has gone on since the squalid 14th was passed.
Funny how what is so clear isn't so clear.
Your original question was whether or not we were going to accept the SCOTUS rulings as the standard.
My response was "which standard" to which you admitting....changes.
Hence the rants by Ted (so glad he's dead) Kennedy at Roberts and Alito about preserving the gains the past (and by default interfering with the operation of a separate branch of government (which is why I am all for digging him up and burning his carcass and not burying the rest).
You keep moving the context of the conversation.
Not in the context of our conversation. Even the standard with regard to the P&I clause has moved substantially in the past century.
However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
Most of this evolved from the bastards FDR put on the court to essentially trash the USC so he could have his failing legacy of the New Deal.
This is some 60 years past it's illegal passage. Wow.....it sure was clear.
Not if your claim is that it is the "will of the people"....one you made earlier.
Not if your claim is that it is the "will of the people"....one you made earlier.
The 14th was passed legally. Arguing for its illegitimacy is irrelevant. As no justice in any federal court today will ever rule that the 14th is invalid. Making your argument irrelevant to any outcome of any legal proceeding in the federal judiciary.
Not in the context of our conversation. Even the standard with regard to the P&I clause has moved substantially in the past century.
How so? Somewhere along the line you got the impression that once a SCOTUS decision is made, its immutable and eternal. I never said that. In fact, quite the opposite. I said that the authority of the living is greater than the authority of the dead. So I'm not quite gettting new 'context' angle. The immutability of court decisions has never been the context of our conversation.
The authority of them has been. With the most recent being the most authoritative.
However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
The first decision applying the Bill of Rights to the States would be in 1898 applying a portion of the 5th amendment. But other than that, wiki has got it.
Most of this evolved from the bastards FDR put on the court to essentially trash the USC so he could have his failing legacy of the New Deal.
The trend of assimilating the BoR to the States began in earnest in the 20s. FDR wasn't elected until 33. Speech,press, assembly and religion had already been incorporated before Roosevelt nominated a single justice.
So your timing is definitely off. And I'm still not getting why the Bill of Rights being applied to the States is a bad thing. Unless I misunderstood you, you insinuated that the application of the Bill of Rights to the States was 'heinoous'. And I don't get that. Wouldn't preventing the States from violating the freedom of speech, the press, assembly and religion be a good thing?
As for Roosevelt packing the court to get his new deal passed.....I don't know who told you that, but they're doing you no service. As the idea is blithering nonsense. The 1st New Deal was from 33 to 36. No Roosevelt appointees were in the court. The second new deal came from 36 to 38. With all the substantive new deal cases decided by the summer of 37. Not one of these cases had a single Roosevelt appointee ruling on them. Here's the major New Deal USSC cases:
A.L.A. Schechter Poultry Corp. v. United States
May 27, 1935
UNITED STATES v. BUTLER et al.
Jan. 6, 1936.
WEST COAST HOTEL CO. v. PARRISH
March 29, 1937
N.L.R.B. v. Jones & Laughlin Steel Corporation
April 12, 1937
STEWARD MACHINE CO. v. DAVIS
May 24, 1937
HELVERING et. al. v. DAVIS
May 24, 1937
Hugo Black, the very first Roosevelt nominee didn't take the bench until August 1937. And by then all of the New Deal legislation had already been passed, with key provisions substantially affirmed by the court. Including Social Security. Whoever told you that Roosevelt packed the court to get his New Deal legislation passed would need a delorian and a flux capacitor to make their argument work. Its simple nonsense.
You may be confusing Roosevelt's PLAN to pack the court with folks that agreed with him with him actually doing it. He most definitely wanted to pack the court with New Deal supporters. But the spring of 1937 made that unnecessary, as the courts affirmed the key provisions of his legislation before he could nominate anyone.
This is some 60 years past it's illegal passage. Wow.....it sure was clear.
The Slaughter House cases are generally regarded as some of the worst the USSC ever made. Poorly thought through, clearly contradicted by the intent of their subject matter, etc. But the authority to interpret is the courts. They are bound to what the amendment actually said, not what the writers intended by that writing. And when the courts interpreted the 14th in contradiction of Bingham and Howard, the court interpretation was authoritative.
Since the USSC tends to be conservative (a description of process, not politics) in their interpreting of the constitution, they loathe explicit contradictions of previous rulings. Thus the later courts focus on equal protection and due process in incorporating the Bill of Rights rather than a direct challenge to the Slaughter House's privileges and immunities rulings.
