Wednesday, December 7, 2016

Baloney? Well, maybe not.

Incorporation maybe was intended, though via the privileges or immunities clause and not at all via the due process clause.

And incorporation makes the 14th Amendment a lot more radical than it would otherwise be.

There are at least these questions.

Does the P or I clause refer to the rights protected against federal action by the first eight amendments to the US Constitution?

Is the point of the P or I merely to refute the doctrine of Dred Scott that black people do not enjoy the protection of the Bill of Rights - protection, as everyone knew at the time, against federal, but not state, action?

Is the point of the P or I also the genuine novelty, the really revolutionary point, that the protections of the Bill of Rights are to be henceforth also protections against state action?

The discussions and quoted bits of discussions I have seen are sufficiently muddled or lacking context to make it unclear.

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