XIV Amendment and incorporation

[Hanny]

Originally Posted by elektratig

JT,

In particular, I tend to think that a Constitution with Madison's veto provision would have met with significantly more resistance in the conventions. Then again, one thing that Rakove emphasizes is how interconnected various provisions were in Madison's mind. The executive and Senate would have been very different animals, there would have been a council of revision, the powers of the government would have been described in general terms rather than enumerated, etc. It's hard to know how such a different document would have been received.
!

You do know his proposal veto ended up as the presidents veto right?.

[elektratig]

Hanny,

The "veto" I was referring to was the proposal in the Virginia plan that would have authorized the federal government to negative state laws. The proposal seems to have envisioned a two- or three-step process:

* First, Congress would have the power "to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union [i.e., the Constitution]".

* Then, a Council of Revision (composed of "the Executive and a convenient number of the National Judiciary") would have "authority to examine . . . every act of a particular [state] Legislature before a Negative thereon shall be final".

* If the Council confirmed the negative, the state law would be void. If the Council overruled the negative, Congress would still have the right to negative the state law ("the dissent of the said Council [from the veto] shall amount to a rejection [of the veto], unless the Act . . . of a particular [state] Legislature be again negatived by ----- of the members of each branch [of the federal legislature]").

The convention rejected the legislative negative of state laws on July 17 (and thereafter). In effect, the Supremacy Clause later (August 23) replaced it. As a practical matter, the power to negative state laws was vested in the judiciary.

This proposed power to veto state laws is conceptually very different from the power to veto federal legislation passed by Congress. (In the Virginia plan, the veto of federal legislation was to be exercised by the Council; ultimately, it wound up with the president.) Federal power to negative state laws directly impacted the power of the states and would have driven anti-federalists insane. Federal power to negative federal laws (whether exercised by a Council or the executive) did not raise similar state-federal concerns.

[elektratig]

For those of you interested in the "incorporation" debate, here is a new article available at SSRN arguing that the Privileges or Immunities Clause was intended to apply the Bill of Rights to the States:

http://papers.ssrn.com/sol3/papers.c...ract_id=963487