Argument is that Madison understanding of the Bill of Rights remains in force; incorporation is unwarranted; only enumerated ("constitutional") rights are enforceable; rights are enforeable against the federal gov't only.

Note: Incorporation applied the Bill of Rights as limitations on the states, as well as the federal government, as determined by the federal judiciary.
Berger dismisses incorporation by citing Charles Fairman and Morrison ... contra numerous opinions of the Supreme Court.
Berger slides Madison's understanding of the Bill of Rights as limitations on the federal government alone, past the 14th Amendment which empower/requires the federal government to enforce incorporated rights against the states.
If rights are "area of no-power" then the federal government cannot adjudicate or enforce. Federal judicial had no jurisdiction in Chicago, Burlington and Quincy R. Co. v. City of Chicago, (takings), Masterpiece Cakeshop and 303 Creative.
Repeatedly asserts "that the Bill of Rights issued out of state distrust of the powers of the general government." [pre-Incorporation]
Reiterates that "constitute an area of no-power." ... if "no-power" how are any rights, including the Takings Clause, to be enforced against the federal gov't.
Selective quotation and omission ... see section on John Hart Ely.

2023-09-18: Berger Ninth Amendment 1980

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