Do you support MarkD's proposed amendment?

[MarkD]

I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.

Was it "a little crazy" that the SCOTUS said that the entire Bill of Rights was only binding on the federal government ; that all federal courts were indifferent to whether or not state and local governments were violating freedom of speech, conducting unreasonable searches and seizures, imposing cruel and unusual punishments, etc ? (Keep in mind that every state constitution had a Bill of Rights too, and the way to rectify violations of rights by state and local governments was to address those issues in state courts.)

[MarkD]

I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.

Was it "a little crazy" that the SCOTUS said that the entire Bill of Rights was only binding on the federal government ; that all federal courts were indifferent to whether or not state and local governments were violating freedom of speech, conducting unreasonable searches and seizures, imposing cruel and unusual punishments, etc ? (Keep in mind that every state constitution had a Bill of Rights too, and the way to rectify violations of rights by state and local governments was to address those issues in state courts.)

And Mr. Jones still has no answer to the question I posed to him.
It's important to discuss this because if you understand the interpretation that the SCOTUS gave to the Bill of Rights in Barron v. Baltimore, you'll understand as well that the Ninth Amendment was not imposed on the states. And all I am proposing with the amendment I drafted is to keep the Ninth Amendment's original interpretation as the status quo. If you can't understand that, then you're the one who's crazy.

There are not many that will say it (in part because it's just a thought experiment at this point), but I absolutely think Barron v. Baltimore was wrongly decided. The First Amendment clearly only involved the federal government with its reference to the power of Congress. The Seventh may also be considered as only applying to the federal government. That is all though.

The First Amendment does indeed begin with the word "Congress," and the Tenth Amendment is a clear expression of the idea that the federal government has limited powers. The First and the Tenth are the bookends, and all of the rest of the Bill of Rights is sandwiched in between the bookends. Why is so hard to understand that all of the Bill of Rights were only intended to limit the federal government as well? Just because the words don't literally say so? Look at the first ten amendments as if they are a row of books on a shelf. The first book makes one point about the federal government's limited powers, as does the tenth book. There's nothing wrong with assuming that all eight of the other books were also intended to have the same limited meaning. And the historical context of WHY the Bill of Rights was proposed also supports that interpretation.

Notably, Bingham himself believed for a time that the Bill of Rights was binding on the states. It was only after he read Barron v. Baltimore in February of 1866 that he changed his mind and began advocating for an amendment to clarify the law, and many others persisted in rejecting the idea that the Bill of Rights only applied to the federal government. Robert Hale of New York, for instance, raised some opposition to a draft of the Fourteenth Amendment because he believed the federal government already had the power to enforce the Bill of Rights against the states and saw the proposal as unnecessary.

Hurray for Rep. John Bingham!! He changed his mind once he saw a persuasive legal argument that contradicted his original theory about the meaning of the Bill of Rights. He realized that he had erred, and that the original meaning of the Bill of Rights was precisely as Chief Justice John Marshall had explained it in the Barron opinion. He respected the original understanding of a crucial part of the Constitution once he saw it correctly explained, and that's remarkable! He was, in a sense, an Originalist. It's just too bad that he did not do a good job of writing an Equal Protection Clause that was particularly clear (instead of overbroad and impossible-to-take-literally).

[MarkD]

Egads, you're proving my point! Sorry, but I can't stay and chat this morning for very long. Gotta go to work. But yes, two, three, or more amendments adopted at virtually the same time should indeed be looked upon as if there is a common theme running through them: the Bill of Rights was, collectively, adopted to ensure that the federal government would not have the power to violate the rights of the people, and the Civil War Amendments were, collectively, adopted to ensure that the slaves would be freed and would be guaranteed equal citizenship.

[MarkD]

Adam, I am not trying to achieve perfection or Utopianism. I am merely trying to narrow the power of judicial review and to push federal courts towards exercising more judicial restraint. This has nothing to do with assuming that legislatures are perfect. It has everything to do with passionately believing that the SCOTUS is every bit as IMperfect as are the legislatures in this country. I think my proposal will make constitutional law BETTER, and I certainly am not stupid enough to think it will end up being perfect. I drafted this proposal because I have high anxiety about how the SCOTUS is using the due process and equal protection clauses of the Fourteenth Amendment. (And apparently some Justices think the Ninth Amendment justifies interpreting the Fourteenth the way they do.) Here's some high anxiety I read about a long time ago:

"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. ... [W]e ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe ... the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass." [Justice Oliver Wendell Holmes, dissenting opinion, Baldwin v. Missouri (1930).]

(I learned about that quote the first time I read Justice Black's dissenting opinion in Griswold v. Conn. (1965). I learned a hell of lot about the importance of judicial restraint when I read Black's whole opinion. I highly recommend that opinion for important insights about how to interpret the Constitution. And, BTW, states have powers, not rights.)

And, FYI, the explanation of my proposal that you see in the OP on this thread is just a summary of my proposal. I explicitly say so every time I post it. You haven't seen all of the details in my full draft. I explicitly included in my proposal a way of addressing concerns such as you had:

For example, the kinds of discrimination MarkD wants to explicitly ban (with the notable open-season rule for any other kind of discrimination) aren't going to be the only kinds of relevant, harmful, and malicious forms of discrimination forever. And, there are certainly a number of ways to circumvent the bans (and move into open season land) by just changing the mechanism of discrimination. This should be troubling because it effectively gives the constitution a shelf-life and significantly reduces it's ability to adapt to new social problems and changed circumstances.

My draft proposal says that there should be no use of the rational basis test except when it would be necessary to discover that a legislature is trying to pursue a constitutionally unacceptable goal. I explicitly refer to the precedent of Guinn v. United States as an example of the SCOTUS doing that well.

And here's an AHA:

The doctrines of substantive due process and equal protection aren't perfect.

BroTHER, can you say that again!!
1) "Substantive due process" is a big, fat, stinking, corrupt LIE about the meaning of the DPC. It's a cancer on constitutional law, and it needs to be lopped off and preserved in a formaldehyde jar, so future generations can still see it, be aware that it existed, but so that no judges will ever use it ever again. As Holmes said in that Baldwin dissent, substantive due process is an "extended and artificial signification" of the words of the DPC.
2) The EPC has been a major source of sloppy work by the SCOTUS, as I have said before in this board: (In the post below, scroll down the first six of my paragraphs, and start with the paragraph that begins, "I have multiple reasons ....."
https://talkelections.org/FORUM/index.php?topic=546021.msg9066265#msg9066265

Lastly (for now), I refuse to accept a theory that common law methods of legal reasoning should be emulated to determine the constitutional permissibility of laws passed by legislatures or voters. I discussed the difference between common law and constitutional law in a thread I created earlier this year for this board:
https://talkelections.org/FORUM/index.php?topic=538230.msg8969183#msg8969183

[MarkD]

Adam, let's just agree to disagree and stop talking about this. Your judicial philosophy is so drastically different from mine and is so completely unacceptable to me just like mine is unacceptable to you that there is no room for trying to find any common ground. I know you won't support my proposal.
Out of all of the times that I have asked TE users whether they would support my proposal, I have gotten a lot more positive responses than the number of people who have said "yes" in the poll on this thread.