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The Bill of Rights originally only applied to the federal government-which the opening words of the 1st Amendment - “Congress shall make no law…”-make very cl
by skissane 4y ago
The Bill of Rights originally only applied to the federal government-which the opening words of the 1st Amendment -
“Congress shall make no law…”-make very clear. Its authors modelled it on similar Bills of Rights in state constitutions - they believed that protecting the rights of citizens against infringement by the state and local governments was the job of state constitutions (to be enforced by state supreme courts) - not a federal issue. This was affirmed by the Supreme Court in the 1833 case Barron v Baltimore.
Then, the 14th Amendment was ratified. Its purpose was to prevent the ex-Confederate states from disenfranchising African-Americans. It was designed to overturn racially discriminatory state laws. There is no historical evidence its authors intended it to carte blanche apply the federal Bill of Rights to the states.
But, although the intention of the 14th Amendment in its historical context is quite clear, it was rather vaguely worded-and, in a gradual process, the Supreme Court began to exploit that vagueness in order to interpret the 14th Amendment as doing exactly that-“incorporating the Bill of Rights against the states”-something it has done piecemeal, article by article, clause by clause, and which still has not yet completed - the 1st Amendment was gradually incorporated from 1925 to 1963; the 2nd was only incorporated in 2010; by contrast, the 7th Amendment (right to jury trials in civil suits, etc) still has not been.
There is no evidence that the framers of the 14th Amendment ever intended the Supreme Court to engage in this rather arbitrary process of piecemeal “incorporation”-it is just something SCOTUS has made up out of whole cloth.
- s1artibartfast 4y agoThat's really interesting, and something I haven't read before. Thank you for the idea
- s1artibartfast 4y agoPS I'm currently listening to the scotus Bruen case and early in the oral arguments Justice Thomas mentioned the 14th Amendment and now I have understand the context and reference. Double thanks