There is a question I have always had about the 14th amendment, and I hope that one of the obviously smart legal thinkers here might enlighten me.
The privileges and immunities clause of the 14th seems to establish automatic incorporation at the time it was ratified. The plain English of the amendment seems to say that the states are not allowed to make or enforce any law which abridges the rights of a citizen.
Quote:
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No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
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Under what logic has the Courts decided that incorporation of the Bill of Rights should be decided on a case by case basis, by the courts, over a period of 150 years? If the "privileges or immunities of citizens" do not include those specifically outlined in the bill of rights, then what else is there?
I would bet that the body politic that approved the 14th fully expected that it would forever prevent state governments from infringing on the rights of citizens as delineated in the bill of rights. If I had been a state legislator in 1868 who voted in favor of the 14th, I think I would have felt cheated. After all, the amendment could have been phrased as follows: "...State are permitted to make or enforce laws which may abridge the privileges or immunities of citizens of the United States, until such time that courts decide they cannot."..... But that is NOT what the 14th says. And yet, the courts have behaved as if this retarded wording is exactly what the 14th says.
Obviously I am wrong, because the courts have been applying incorporation on a case by case basis for the last 150 years... So what am I missing?
Jim