Bill Quick comments:
I wonder if these people have heard of the 14th Amendment? It extended the provisions in the Constitution and Bill of Rights to the people of the individual states. Of course, that only happened in 1868, so maybe word hasn’t filtered out to Chicago yet.
It doesn’t matter here what provision of the Bill of Rights he’s talking about, because I’m only using this item as a hook to gripe about the goofy doctrine of ‘incorporation’.
Apparently, each provision of the BoR applies to the several States only if the Supreme Court gets around to saying it does, i.e. ‘incorporating’ each clause under the Fourteenth. There is obviously no textual support for this in the Fourteenth itself.
One may respond that there is no explicit Constitutional ground for the judicial veto at all (and I won’t touch that one just now); but by 1866, when they wrote the Fourteenth, Congress was acquainted with the practice and might have provided for a special procedure if that was their intent. Congress did not.
To put it another way: with its Fourteenth Amendment practice the Court went beyond its earlier practice of judging the validity of legislation, to insert itself as an active participant in making legislation valid or invalid.
Can someone explain this to me?
An analogously goofy doctrine is that “qualified immunity” is breached only if there’s precedent establishing that a particular kind of malfeasance is definitely wrong.