Due Process and Bill of Rights Incorporation: Why Not Article V + Supremacy Clause

[JBrahms53]

Hello,

I just joined this forum with a general question about the Constitution. I recently picked up Peter Irons's People's History of the Supreme Court, and soon discovered I needed to really read the Constitution closely to get the most out of it: something I hadn't done since Middle School, when I couldn't understand it anyway.

I took a few days to do so, reading slowly and as carefully as I could. In the process I formed some conclusions about the text that are in no way borne out by court opinions. I naturally assume my reading is mistaken, but my conclusions seem so obvious and uncontroversial that I can't help wondering where the disjunct is. I'm hoping someone out there familiar with constitutional law or philosophy of law may be able to point me in the right direction. Thanks in advance!

My first question is about due process and the incorporation of the Bill of Rights, which latter phrase I understand means making the Bill of Rights apply to states.

So as I understand what I've been reading, Marshall gave a crazy opinion in Barron v. Baltimore that set a precedent—which has been followed—for not accepting the 5th Amendment Due Process Clause as grounds for Bill of Rights incorporation. Instead, and consequently, we take the identical 14th Amendment Due Process Clause as grounds for incorporation.

I'm not sure I've even understood this much correctly, but if I have, here's my question:

Article V of the Constitution enacts the following understanding of amendments:

"…Amendments…shall be valid to all Intents and Purposes, as Part of this Constitution…"

This seems to me to be saying, pretty unambiguously, that amendments are to be treated no differently than the original Constitution in terms of their bindingness.

And how is the Constitution binding? "The Constitution…shall be the supreme law of the Land." In other words, the Supremacy Clause.

So here's what I don't get:

If the Bill of Rights is composed of amendments, and if Article V makes amendments part of the Constitution, and if the Supremacy Clause makes the Constitution binding on the states, then there's no need for incorporation through the Due Process Clause, whether it be the 5th or 14th Amendment version. Incorporation was enacted by the original Constitution the moment it was ratified by New Hampshire in 1788, before a single amendment was added.

This seems so clear to me; indeed, it's so cut-and-dried it can be put in the form of a syllogism. But obviously I'm missing something.

So what am I missing?

Thanks again!

[Mr. Knowitall]

When it was put into effect, except as otherwise stated therein, the Bill of Rights was not intended to bind state governments.

[JBrahms53]

First of all, it's not clear to me why we're entitled to talk about the "intended" scope of the Bill of Rights, since there's no language in the text to the effect that the Bill of Rights does or doesn't bind the states. So what's the source of the "intention" you speak of, and in what sense can that "intent" be considered legally binding?

Secondly, and more importantly, whereas the Bill of Rights says nothing one way or the other about its applicability to the states, the Constitution is explicit. Since my question was about the grounds for denying the Bill of Rights's applicability to the states, yet your response was simply to assert by fiat its initial inapplicability, I will try to make my question clearer by putting the case in logical form, first in old-fashioned syllogisms, but also in predicate logical form, which not only avoids some minor ambiguities, but showcases the objectively valid form of my argument.


So, there are three premises, none of which strikes me as ambiguous or arguable:

1. Article V of the Constitution says that "…Amendments…shall be valid to all Intents and Purposes, as Part of this Constitution…"

2. Article VI says that "The Constitution…shall be the supreme law of the Land."

3. What we call the "Bill of Rights" consists of amendments to the Constitution.

We can then make the following conclusions:

i. The Bill of Rights is composed of amendments.
ii. Amendments are part of the Constitution.
Therefore, the Bill of Rights is part of the Constitution.

Next, we make the conclusion of the first syllogism the major premise of the second syllogism:

i. The Bill of Rights is part of the Constitution.
ii. The Constitution is the supreme law of the land.
Therefore, the Bill of Rights is the supreme law of the land.

Now if the Bill of Rights is the "supreme law of the land," then obviously it binds the states.

Below is the same argument in predicate logic, in case that's clearer:

Ax = x is an amendment
Cx = x is constitutional
Sx = x is the supreme law of the land
b = Bill of Rights

1. ∀x(Ax⊃Cx)
2. ∀x(Cx⊃Sx)
3. Ab
∴ Sb

I won't bother going through the actual proof, but if you're familiar with predicate logic you can immediately see that this is a valid argument. Therefore, if I've got something wrong, it must be in my interpretation of the premises.

The three numbered premises are the same as the three numbered above: (1) is the Article V claim that "…Amendments…shall be valid to all Intents and Purposes, as Part of this Constitution…"; (2) is the Article VI Supremacy Clause ("The Constitution…shall be the supreme law of the Land."); and (3) is the claim that the Bill of Rights consists of amendments (note the word "amendment" in the heading for each of the ten sections of the Bill of Rights).

So, since the form of my argument is valid, and if I am nonetheless wrong in my conclusion, I must be misinterpreting one of these three premises. But they all seem pretty clear to me. I doubt you would deny (3). (2) is the very basis for the Supreme Court's appellate jurisdiction. So you must be saying that I am mistaken in my interpretation of the words:

"…Amendments…shall be valid to all Intents and Purposes, as Part of this Constitution…"

I can't imagine what room there is for me to misinterpret. So I would ask you how you read the above sentence in such a way that it leaves amendments non-binding on the states despite the Article VI supremacy of the Constitution over state law.

[Mr. Knowitall]

Should you devise a method, you can travel back in time and argue with the Founding Fathers that the plain language of the documents they drafted incorporated the Bill of Rights to the states. But unless and until you do so, the fact is that their intentions governed.

[JBrahms53]

Even to someone like myself with zero knowledge of constitutional debate it's obvious that you're dressing up your reading as what it pleases you to call "fact." But I have no interest in debating the merits of originalism. I presented a straightforward question that you did not succeed in responding to meaningfully.

It's worth noting, furthermore, that the first part of my response to you in no way conflicts with your ideology. I will quote what I said:

"what's the source of the "intention" you speak of?"

Notice that my question did not deny the ability to reconstruct the founders' intentions; it merely asked you where you locate the intent which you attribute to them. I can find no sentence in the Bill of Rights that can reasonably be construed as "intending" the proposition that, as you put it, "the Bill of Rights [does not] bind state governments."

The appropriate response to my question is not to debate the merits of originalism; the appropriate response would be to present a relevant quotation in support of your claim.

[Mr. Knowitall]

Your mistake appears to be your belief that people who have taken the time to learn something about the Constitution will derive pleasure in arguing with somebody who is an admitted ignoramus.

If you think your case has merit, stop spouting nonsense and instead build it. You may even learn something in the process. Getting mad that most people here, perhaps all, understand the Constitution better than you... that won't get you anywhere.