Reading this piece, the thought occurred to me that perhaps what the good judge was aiming at was “principled* restraint – that is, that judges when exercising their judicial power should recognize that their *duty* is to do the law under the law. That is the only means of exercising judicial power / review appropriately – that is the Principle. The law in this case being the Constitution. Yes, one can argue about certain ambiguities but as the author of this piece rightly asserts the totality of the document was (and is) intended to provide a framework of ordered liberty and to do so by placing both structural impediments and textual limits on the action of governmental actors.

Start with that Dear Judges – not with the following from Justice Frankfurter:

In Adamson v. California:

“Concurring with the Adamson majority, Justice Frankfurter DISMISSED statements by Bingham and other legislators and argued that JUDICIAL OPINIONS contemporaneous with or just subsequent to ratification MORE RELIABLY INDICATED THE MEANING of the Amendment than “[r]emarks of a particular PROPONENT OF THE AMENDMENT, no matter how INFLUENTIAL.” [40] According to Frankfurter, decisions such as the Slaughter-House Cases [41] demonstrated conclusively that the Privileges or Immunities Clause of the Fourteenth Amendment did not incorporate the Bill of Rights.” (Bold face mine)

Now what exactly does this say about the ASSUMED role that the Judges have arrogated to themselves?
Here is a respected Justice saying quite clearly that they will take their guidance NOT from the man who is generally recognized as the author of the 14th Amendment, (although out of a sense of *Judicial oblige*, I suppose, Frankfurter acknowledges Bingham’s influence) but rather from the determinations of the JUDICIARY!!!! Mind you, we are not here speaking of some local municipal statute / code but an Amendment to the US Constitution – in effect THE Constitution. Effectively, the Judiciary has said that they seek the meaning of the Constitution from anywhere other than the Constitution. Recall Madison’s prescription that each branch should protect its institutional interests. Apparently, the good Judges have taken that advice to heart and done so in a rather fulsome manner. This clearly exposes the lie that the Judges are seeking only to expound a Constitution, not create their own (apologies to John Marshall). BTW: Bingham had asserted that the 14th did in fact call for incorporation. It matters not what we may think concerning the rightness or wrongness of the doctrine – what matters is that the Court can decide to simply ignore what the AUTHOR of the Amendment said, believe and argued to his fellow signers.

astounding – especially when one considers that this attitude is even more prevalent today!