14th amendment incorporation

[A18]

A law can not violate the core meaning of due process.

[A18]

The Establishment Clause does not contain a "right" of citizens, and thus may not be incorporated by the Privileges or Immunities Clause.

[A18]

The problem is that the Establishment Clause protected state establishments of religion. By "incorporating" the right, you are effectively obliterating it.

[A18]

What did you expect him to do? Edit out the first clause of the Bill of Rights? Note that this is also a post-Ratification speech by one man, and I believe it was part of a debate over the Ku Klux Klan Act.

In searching the appendix to Black's famous 1947 dissent in Adamson v. California, I could not find a single reference to the Establishment Clause.

Note that I take no position as to whether or not the Establishment Clause applies to the states. I actually lean towards incorporation. But I think there is reasonable doubt. In order to come to a conclusion, I would want to look at more evidence than a few isolated speeches, which tell us more about a few men than the consensus reading of the very ambiguous Privileges or Immunities Clause, that bewildered the Fourteenth Amendment's opponents and continue to confuse scholars today.

[A18]

After reading dozens of more articles on the subject, I'm starting to lean towards the view that the Privileges or Immunities Clause was an anti-discrimination provision, modeled off of that of Article IV.

Article IV did not create fundamental rights, but simply required a state to grant to citizens of other states those fundamental rights that it afforded its own. The citizen of another state was entitled to the same treatment as a native citizen.

Proponents of the Fourteenth Amendment often characterized it as nothing more than a guarantee of equality, and the ratifying conventions never discussed incorporation.. I do not think that any one view of the very ambiguous clause can be correct, but I think this one may fit the evidence the best.

Under an equality interpretation of the amendment, the Bill of Rights guarantees were among the fundamental rights that must be extended without discrimination where they were available, but the state was under no obligation to provide them.

[A18]

I was reading law review articles, and excerpts from books. I don't have any links, unfortunately. But see especially David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 342-51 (1985); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992). Also, Field's dissent in Slaughter-House.

I think the most likely interpretation of the equal protection clause is that, like the wording suggests, the state governments must protect the life, limb, and property of all persons equally from private parties.

[A18]

Professor Harrison has argued that the word "abridgment" covers any discrimination that provides fewer affirmative rights for blacks than whites, and thus the clause forbidding any state from abridging the privileges or immunities of citizens of the United States worked to constitutionalize the Civil Rights Act.

[A18]

After reading a lot more, I'm now firmly back in the incorporation camp. I think that although original intent would likely require an equality reading of the provision, original meaning yields an incorporationist interpretation. At the very least, this appears to have been the emerging consensus prior to Slaughterhouse.

[A18]

"Original intent" could lead to a number of different interpretations of the Privileges or Immunities Clause. There is even legislative history supporting the assertion that the provision creates no new rights at all.