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?