[quote=Lilo]But for the most part the relevant and applicable amendments in the Bill of Rights have been found to be incorporated against the States. I think that's a good thing, generally.
While it may be a good thing, it's entirely made up. There is no constitutional basis for incorporation. In fact, James Madison's original speech to the 1st congress in June, 1789 which was a proposal for our Bill of Rights contained language to impose the speech requirements of the 1st amendment on the states, but it was rejected by the Congress.
The constitutional basis for incorporation is the Due Process clause of the 14th Amendment.
Originally Posted By: olivant
That is the basis that is used. However, that use eschews the original intent of the amendment's framers and ratifiers.
Oh I disagree with that.
Section 1's language is quite explicit:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
We also have this from John Bingham, the driving force behind ratification:
"[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none. It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment."
His clear intent is to extend the protection of the US constitution to all citizens, where state laws either ignore or violate such protections.
Also (Thaddeus)Stevens remarked that its provisions "are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States."
And Jacob Howard , Senator from Michigan, also made the original intent very clear in debate over language of the Amendment.
"After acknowledging the important role of the testimony before the Joint Committee, Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;. .. the right to keep and bear arms". Howard averred: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees".
In the ensuing debate, no one questioned Howard's premise that the Amendment made the first eight amendments applicable to the states. Howard explained that Congress could enforce the Bill of Rights through the Enforcement Clause, "a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees." Howard added: "It [the amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction."
"When the snows fall and the white winds blow, the lone wolf dies but the pack survives." Winter is Coming Now this is the Law of the Jungle—as old and as true as the sky; And the wolf that shall keep it may prosper, but the wolf that shall break it must die. As the creeper that girdles the tree-trunk, the Law runneth forward and back; For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack.
