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Why the 14A Incorporation Doctrine is Unconstitutional and Counterfeit

The so-called “Incorporation Doctrine” postulates that the Fourteenth Amendment (14A) allows the federal government to enforce the first ten amendments against the states. It basically flips the constitutional presumption against unenumerated, undelegated federal power. It has been used over the last 100 years or so to give the feds sweeping powers to the point of totalitarian power.

But the Incorporation Doctrine is yet another flawed and unconstitutional justification developed by the Left to expand federal power. There is no constitutional basis for it. The 14A, passed in 1868, is one of three Post-Civil-War Reconstruction Amendments intended by the ratifiers to establish ex-slaves as full citizens of the United States. Although the 14A was badly written, there is no evidence that the ratifiers intended anything other than full citizenship rights of ex-slaves.

This limited intent of the 14A was confirmed five years later by the Supreme Court in the 1873 Slaughterhouse Cases, Justice Samuel Miller writing the majority opinion. The case was a conflict about how the State of Louisiana was supervising the rendering of meat, butchers charging violation of the due process clause of the14A against the state. The Supreme Court ruled that the 14A was limited to issues of ex-slaves. There has been no constitutionally-based ruling since that refutes Slaughterhouse.

Some have said that Justice Miller’s Slaughterhouse opinion on interpreting and limiting the 14A to the ex-slavery issue was dicta (not essential to the actual decision). However, Miller used that reasoning to rule in favor of Louisiana, so that is a weak argument.

Judge Robert Bork, widely considered the premier scholar of constitutional law of his time, has written, “Miller was following sound judicial instinct: to reject a construction of a new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members. [ ] In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race.” Robert H. Bork, Tempting of America, 37-38 (1990).

So the first and foremost reason for rejecting the Incorporation Doctrine is that the precedent case, Slaughterhouse, ruled the 14A applied only to ex-slaves. There has been no constitutionally-based decision since then to refute Slaughterhouse.

What rationales are the basis for saying that the framers of the 14th Amendment intended it to apply only to former slaves?

- The historical context of the post-civil war reconstruction period to instate the former slaves as full U.S. citizens with full rights as others.

- The legal context of the 14A being the middle of the three reconstruction amendments.

- The lack of clear text in the 14A that proves specific provision of unparalleled and massive expansion of federal power which would have been completely out of place from the purpose of these post-civil war reconstruction amendments and would have produced much evidence, of which there is none, of debate and discussion about such a radical departure from American governance, as noted below.

- The weight of the probative value of accuracy and precedent in a Supreme Court case decided five years after the amendment was ratified versus 131 years later.

- The intent of the ratifiers, not the drafters. As noted below, there is scant evidence the ratifiers intended to apply greatly enhanced powers to the feds, and it is the intent of the ratifiers, not the drafters, that counts.

As Robert Bork continues, “The fourteenth amendment was adopted shortly after the Civil War, and all commentators are agreed that its primary purpose was the protection of the recently freed slaves. As we have seen, of the amendment’s three clauses, two have been pressed into service of judicial imperialism - the due process and equal protection clauses - while the third, the privileges and immunities clause, has remained a cadaver that it was left by the Slaughter-House Cases. [ ] The fifth amendment’s due process clause, which applied only against the federal government, was later copied in the fourteenth amendment, which applied to the states. ‘There is general agreement that the earlier clause had been understood at the time of its inclusion to refer to lawful procedures. What recorded comment there was at the time of replication in the fourteenth amendment is devoid of any reference that gives the provision more than a procedural connotation’ (J. Ely, “Democracy and Distrust” (1980) at 105-16). That is true, and it is more than enough to condemn the hundreds of cases, stretching from Dred Scott to today, in which the courts have given the due process clause substantive content in order to read their own notions of policy into the Constitution.

“Ely’s attempt to make the privileges and immunities clause do the work that has been improperly assigned to the due process clause is, however, unsuccessful. He points out that ‘there is not a bit of legislative history that supports the view that the Privileges or Immunities Clause was intended to be meaningless’ (id. 103). That is hardly surprising. One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.

“Bingham and Howard meant these additional rights [taken from Corfield v. Coryell]. That the ratifiers did is far less clear. Certainly there is no evidence that the ratifying convention intended such power in judges, and it is their intent, not the drafters’, that counts. Nor is it easy to imagine the northern states, victorious in a Civil War that lead to the fourteenth amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves. The only significant exercise of judicial review in the past century had been Dred Scott, a decision hated in the North and one hardly likely to encourage the notion that courts should be given carte blanche to set aside legislative acts.

“Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion.

“We know there is no evidence that the ratifiers imagined they were handing ultimate governance to the courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit” (id. 180-83).

And, therefore, in reference to Justice Miller’s opinion in the Slaughter-House Cases, Bork says, “Miller was following sound judicial instinct: to reject a construction of a new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members. [ ] In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race” (id. 37-38).

The Slaughter-House Cases, therefore, remains as legal precedent today and is not successfully refuted, assailed, or overturned. The scope of the 13th, 14th, and 15th amendments were post-Civil-War Reconstruction Amendments specifically limited to targeting former slaves, even though the 14A was famously hastily and badly written. Slaughterhouse nailed it as Bork said.

What follows is a relevant excerpt of Justice Miller’s Slaughterhouse opinion.

“Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

“…these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people…” Slaughterhouse Cases, 83 U.S. 67, 69.

Regarding the general understanding of the P&I Clause before the 14A, Bork says, “Most people have always thought that the article IV clause simply prevented a state from discriminating against out-of-staters in favor of their own citizens” (Robert H. Bork, Tempting of America, 181 (1990).

Regarding what the P&I Clause was intended to mean in the 14A, Bork says “One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean (id. 180).

So Bork’s point is judges should not insert their own personal moral viewpoints of what THEY think a clause should mean where they have no guidance from original understanding of the text. He therefore approved Justice Miller’s judicial restraint and “sound judicial instinct” in doing just that.

Some of the issues and effects of previously applying and now rejecting the unconstitutional “Incorporation Doctrine” are listed below.

1) The most obvious and important effect of rejecting the Incorporation Doctrine is reasserting the Constitution as the rule of law, the legal protector of our freedoms against the tyranny of the feds.

2) Rejecting the Incorporation Doctrine reasserts the local governance and sovereignty of the states which are governed by the people of the state through the ballot by representation and directly by initiative and propositions. The majority of people of a given state are in control of what that state does as long as the feds don’t interfere.

3) The effect of applying the Incorporation Doctrine in expanding the power of the feds has been a parade of horribles. Using this faulty doctrine as justification, the feds have banned prayer and the Bible in schools, interfered with associations of individuals and groups, outlawed state anti-abortion laws, interfered with state anti-gay-marriage laws, and currently considering how to violate gun ownership rights and force “gender neutral” bathrooms. There is simply no constitutional basis for any of these acts of the feds.

Many think that the states need to be supervised by the feds, but nothing could be further from the truth, both legally and morally. History shows that the states, left alone, generally have been in harmony with the rights, freedoms, and morals of its individuals. An example is abortion. Before 1973, the states generally prohibited abortion. It was the Supreme Court and their wrongful application of the 14A against the states that outlawed state anti-abortion laws, allowing the infanticide of some 70-100 million unborn. Another example is currently, the greatest pressure against gun ownership isn’t the states, it’s the feds. It was the feds who unconstitutionally banned prayer and the Bible in state schools. The federal government has probably been the single greatest power promoting immorality in America.

4) Rejecting the Incorporation Doctrine brings back the constitutional sovereignty and freedom of states to run their own show, generally, and is much more in line with the constitutional design of federalism. And, again, history tells us that the chances of a state disarming its citizens or forcing unconscionable measures is much less likely than the feds to do so, because states are local governance that the people are better able to control.