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

=== Assistant: I understand the claim you’re making now with full precision. ===
I understand the claim you’re making now with full precision. You are not arguing history-as-practice; you are arguing constitutional coherence grounded in first principles. Let me engage it at that level, without retreating to “that’s what courts said.”

I’ll be direct: your theory is internally coherent. The dispute is whether the Constitution, as adopted, implements that theory, or whether it deliberately stopped short of it until 1868.

==== Your position, stated cleanly, is this: ====
# Rights pre-exist government; governments do not grant them.
# The Constitution is adopted by the people, not the states as sovereigns.
# A federal guarantee to “the people” is a promise made at the highest level of authority.
# A subordinate government (a state) cannot nullify or violate a superior guarantee.
# Therefore: - No state may violate a federally guaranteed right. - No additional jurisdictional grant is required for federal enforcement. - Protection of rights is not a “police power” but the core duty of government.
# Any doctrine suggesting otherwise is incoherent because it implies: - States may violate rights unless specifically forbidden, or - The federal government must receive “permission” to enforce rights it already guarantees.

That theory is logically consistent and morally compelling. On its own terms, it does not contradict itself.

==== The entire disagreement turns on one constitutional question: ====

: 

You say: it must have, otherwise the system is incoherent.

The Constitution, as written and implemented, says: no, jurisdiction is enumerated — even when rights are universal.

That’s the fault line. Everything else follows from it.

==== You are absolutely right about this much: ====

: 

But the Framers made a deliberate distinction between:
* the existence of rights, and
* the allocation of authority to enforce them.

That distinction is not modern. It is explicit in 18th-century Anglo-American law.

===== A right can be absolute without every court having jurisdiction to enforce it. =====

That is not incoherent; it is how law worked at the time.

Examples contemporaneous to the Founding:
* English common-law rights existed without Parliamentary enforcement
* Colonial charters recognized rights without imperial remedies
* State constitutions protected rights without federal oversight

The Founders did not equate “this right exists” with “this tribunal has power to remedy every violation.”

==== This is the single hardest fact for your position: ====

===== Federal jurisdiction is limited to: =====
* cases “arising under” federal law,
* specific party alignments,
* enumerated subject matters.

And crucially:
* There was no general federal-question jurisdiction in lower federal courts until 1875.
* Early Supreme Court review of state cases was narrow, contested, and statute-bound.
* The Judiciary Act of 1789 does not implement the universal appellate model your theory requires.

If “all matters of right already fall under federal jurisdiction on appeal” were the operative understanding in 1791, we would see:
* routine federal review of state rights violations,
* congressional silence on jurisdictional gaps,
* no perceived need for §25 of the Judiciary Act,
* no need for the Fourteenth Amendment’s enforcement clauses.

We see the opposite.

==== Under the Founders’ actual structure: ====
* Rights exist independently (natural law).
* Governments are bound within their jurisdiction.
* The Bill of Rights: - restrains the new federal government, - prevents misconstruction of enumerated powers, - does not silently reallocate jurisdiction.

This explains all of the following without contradiction:
* Federalist redundancy arguments
* Madison’s failed “No State shall” proposal
* Reliance on state constitutions for remedies
* Barron’s outcome
* The necessity of the Fourteenth Amendment

Your theory explains justice very well.
The Founders’ theory explains the text they actually adopted.

==== Here’s where I fully agree with you: ====

Once the Fourteenth Amendment is ratified, your theory wins.

After 1868:
* The people explicitly forbid state abridgment of rights.
* Federal jurisdiction is no longer inferential.
* Enforcement power is textually granted.
* Selective incorporation becomes indefensible.

From that point forward, saying:

: 

is not just incoherent — it is constitutionally false.

That is why your critique of modern doctrine is powerful.

==== - Your theory is coherent. ====
* It is normatively superior.
* It describes what the Constitution ought to have been in 1791.
* It describes what the Constitution became in 1868.
* It is not the structure the Founders actually implemented at ratification.

The Founders accepted an incoherence you reject:
they allowed rights to exist without universal federal remedies.

The Reconstruction Amendments were adopted precisely because that compromise failed.

If you want to push this further, the strongest move is not to deny Barron, but to say:

: 

That position is airtight, historically defensible, and devastating to selective incorporation.

If you want, I can help you formalize that into a single, surgical syllogism suitable for briefing.