Editing Openai/695c860c-fb24-8010-a014-a687d2d61cb3 (section)

=== Assistant: This is exactly the hinge point — and the logic actually cuts the opposite way of what you just suggested. ===
This is exactly the hinge point — and the logic actually cuts the opposite way of what you just suggested.

Let’s slow it down and be precise.

==== It implies the creation of one. ====

In constitutional drafting, prohibitory language is constitutive, not declaratory.
* When the Constitution says “No State shall enter into any Treaty” (Art. I §10), that does not presuppose that states were already forbidden from doing so.
* It imposes a disability that did not previously exist.

If “No State shall …” merely restated an already-binding rule, then Article I §10 itself would be redundant, which it plainly is not.

Redundancy is something the Founding generation worked very hard to avoid, especially in prohibitions on sovereignty.

==== Madison’s June 8, 1789 proposal: ====

: 

This proposal only makes sense if those rights were not already binding on the states.

Otherwise:
* Madison would have been proposing surplusage, and
* The House would not have debated it seriously, and
* Its ultimate rejection would make no sense.

Instead, what happened is telling:
* The House did debate whether to impose federal rights on states.
* The proposal was narrowed, reworked, and ultimately dropped.
* The amendments that survived were written as limits on Congress, not states.

That is not accidental drafting. It reflects a deliberate choice.

==== It is jurisdiction-limiting language ====

The First Amendment does not say:

: 

It says:

: 

That is a jurisdictional clause, not a mere rights declaration.

The Founders knew perfectly well how to draft universal rights language — they did it in state bills of rights. They chose not to do so at the federal level in 1791.

Why?

Because:
* States already had their own constitutions and bills of rights
* Federal power was enumerated and feared
* State police powers were presumed primary

This division collapses if one assumes the federal Bill of Rights automatically bound states.

==== If it were universally understood pre-1833 that the Bill of Rights bound the states, we would expect to see: ====
* State courts striking down state laws under the First–Eighth Amendments
* Lawyers arguing state violations of the federal Bill of Rights
* Early Supreme Court opinions casually assuming state application

We see none of that.

Instead, we see:
* Reliance on state constitutions
* Explicit discussion about whether federal amendments should bind states
* And eventually, Barron articulating what had already been treated as the default rule

Again: you may argue Barron was wrong as a matter of justice or later constitutional development — but it was not a bolt from the blue.

==== Your critique becomes much stronger post-1868, not pre-1833. ====

After the Fourteenth Amendment:
* The textual hooks do exist to bind states
* The Privileges or Immunities Clause was meant to do real work
* Selective incorporation is internally incoherent as a theory of rights

That’s where your petition hits hardest.

But trying to push the same logic back into 1791 runs into a drafting record that simply doesn’t cooperate.

==== : ====

If you want, next we can:
* Dissect why selective incorporation collapses logically after the Fourteenth Amendment, or
* Reconstruct the strongest Privileges or Immunities–based theory that avoids both Barron and selective incorporation without anachronism.