Posted on 11/11/2003 8:33:37 PM PST by NutCrackerBoy
Charles Rice: The Bill of Rights and the Doctrine of Incorporation (excerpted)
How has the Doctrine of Incorporation (DOI) caused a shift in governmental power from the states to Washington?
The first eight amendments (A1-A8) were intended by the First Congress and by the states that approved them to protect the specified rights against invasion by the federal government. The state governments were not bound by those provisions. For protection of their rights against invasion by state governments, the people relied primarily upon state constitutions.
The 14th Amendment (A14), adopted in 1868, provides that "No State shall ... abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of its laws."
The Supreme Court of the United States (SCOTUS) has held that, contrary to the intent of the Constitution, virtually all of the protections of A1-A8 are included in the "liberty" protected by the A14 due process clause and that therefore the states are as fully obliged to comply with them as is the federal government.
Therefore, in the view of the Court, A14 "has rendered the legislatures of the states as incompetent as Congress to enact" laws in violation of, for example, the clause of A1, which provides, "Congress shall make no law respecting an establishment of religion."
In addition, the Court has interpreted the Bill of Rights (BOR) so as to include also rights not specified therein, which rights, arising from its own interpretation, it has proceeded to apply against the states.
The error involved in this SCOTUS holding fits Justice Holmes description (in another context) of "an unconstitutional assumption of powers by courts of the US which no lapse of time or respectable array of opinion should make us hesitate to correct."
Charles Fairman has exhaustively analyzed the "mountain of evidence" from the congressional debates, the state ratifying proceedings, and other original sources in support of his conclusion that the framers and ratifiers of A14 did not intended to make the BOR applicable against the states. He contrasts this "mountain of evidence" with the "few stones and pebbles that made up the theory that A14 incorporated A1-A8."
A central feature of the Constitution is the division of powers between the federal and state governments. DOI has imposed an artificial uniformity which obliterates that division of powers in important areas. It is also counterproductive in that it frustrates that capacity for innovation and local diversity which is itself a significant safeguard of liberty.
A proper interpretation of A14 would not leave the states free from all federal restraint in the matter of individual rights.
DPC = due process clause of A14
EPC = equal protection clause of A14
PIC = privileges and immunities clause of A14
SCOTUS has misconstrued DPC so as to bind the states strictly by SCOTUS interpretations of BOR. But PIC was intended to require the states to protect basic rights, including the rights to life, property, personal security, and mobility. Unfortunately, SCOTUS in the Slaughter-House Cases (1873), interpreted PIC so as to render it ineffectual. Under proper interpretation of PIC, federal courts would have a limited power to declare state laws unconstitutional. This judicial power would be limited by the power of Congress to enforce A14, which power is explicitly conferred by Section 5. A further check is provided by the power of Congress under Article III Section 2 (A3S2) to limit the apellate jurisdiction of the Supreme Court as well as the jurisdiction of lower federal courts.
PIC was intended to confirm the constitutionality of the Civil Rights Acts of 1866 (CRA1866). The "fundamental" rights that the framers were anxious to secure were those described by Blackstone - personal security and the freedom to move about and to own property. They had been picked up in the "priveliges and immunities" of A4S2. The incidental rights for that protection were "enumerated" in CRA1866. That enumeration, according to the framers, marked the bounds of the grant. At length those rights were embodied in PIC.
The original design of A14 was to make the PIC the pivotal provision in order to shield the "fundamental rights" enumerated in CRA1866 from the Black Codes. Intertwined with that enumeration was repeated emphasis on the enjoyment of the "same rights" and "equal benefit of all laws and proceedings for the security of person and property."
PIC conferred substantive rights which were to be secured throught the medium of two adjective rights. The equal protection clause (EPC) outlawed statutory discrimination with respect to those substantive rights. The due process clause (DPC) outlawed judicial discrimination (with respect to the substantive rights).
In the Slaughter-House Cases, SCOTUS drained PIC of meaning by holding that it protected only a limited category of privileges of a citizen. This error has been compounded by SCOTUS erroneous interpretation of DPC as a a guarantee of virtually every right, substantive as well as procedural, protected by A1-A8 against infringement by the federal government.
These errors are fundamental. So are the consequences in terms of the erosion of federalism. And the remedy should likewise be fundamental. What is needed is a reversal of the DOI and a reversal of the Slaughter-House Cases so as to restore the three clauses of A14 - PIC EPC and DPC - to their proper functions.
Privileges or Immunities
Equal Protection
Due Process
A14 was made serviceable as conceived by its framers. And it can be made serviceable again, whether through corrective action by Congress in the exercise of its Section 5 power to enforce A14 by "appropriate legislation" or through the recovery by SCOTUS of a sense of its own responsibility to interpret the Constitution rather than to amend it.
The need for a more solid foundation for the protection of freedmen as well as white citizens was recognized, and the result was a significant new proposal--the fourteenth amendment. A chief exponent of the amendment, Senator Jacob M. Howard (R., Mich.), in referring to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; ... the right to keep and to bear arms ..."[134] argued that the adoption of the fourteenth amendment was necessary to protect these rights against state legislation. "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."[135]
Our age favors the individual. But a great deal is lost in all this centralization of rights protection. In federalism lies the diversity that Madison envisioned to safeguard the republic.
The treatment of the establishment clause as rights protection through incorporation, due to the radicalism of the strict separation of church and state, falls heavily on states and localities. They have become vulnerable to the ACLU ninja attacks on such things as Boy Scout camps on community property.
I imagine it's for the same reason that they hold that the Commerce Clause empowers Congress to criminalize drainage of a wetland on your own property, or that the Second Ammendment is merely a "collective right." In other words, they interpret the words according to their political biases, and not according to the clear meaning of the words, and the clear intent of the authors of the Constitution and its Ammendments.
And the people tolerate it, usually due to simple ignorance, but sometimes because they don't mind violating the rights of others if they think they will personally benefit. Democracy has been defined as what happens when two wolves and a sheep vote on the question of who is and who is not on the menu for dinner.
But the Fourteenth Ammendment changed all that. And the history of its adoption, the contoversies and events that led to its adoption, the text of the Congressional debates, and the clear wording of the Ammendment itself, leave no reasonable doubt that it requires the States to recognize all the rights enumerated in the Bill of Rights--including all the rights implied by the Ninth and Tenth Ammendments. That's what James Madison wanted as well, although he wasn't able to get Congress to go along in 1791.
One thing for sure, the framers did not include a handy-dandy guide on exactly how the courts were to adjudicate it.
Other doctrines are possible which contain some form of incorporation. Your statement could be true and yet there could be dramatic differences in resolutions.
For example, SCOTUS could Constitutionalize a federal standard. For each clause of A1-A8, minimal rights protection would be specified. Then each state Supreme Court could Constitutionalize its protection which could be greater but not lesser than the federal one. It would be in SCOTUS best interest to make the federal standards very minimal indeed, in order to reduce its own case load, and to encourage the salutary effects of federalism.
The Constitution had already defined the word, 'Citizens,' and it couldn't be used without re-writing the Constitution to include all the people, without regard to color.
So instead of re-writing the document, it created an appendage which applied only to 'citizens,' (lower case 'c,' granting to them the same rights and immunities that Citizens enjoyed.
But as we know, government cannot grant rights, only protect them.
The government gave the states 100 years to get used to the idea that slaves were to be acknowledged as freemen. The Civil Rights Act shut the door on further abuse.
During this same period of time, most if not all Citizens became citizens of the federal protectorate -- contract citizens, and thereby subjected themselves to 14A, knowingly or unknowingly, trading in their inalienable rights as freemen for licenses and priviledges issued by the federal protectorate.
Not sure if it was planned that way, but that's the way it worked out. Slaves could not be identified and accepted as freemen under the original charter, so freemen became slaves (of a sort)and subject to federal jurisdiction and we are living happily ever after -- all subject to the same color of law. The erosion of state and personal sovereignty is complete. The facade is still there for those who like to dream.
Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate:
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution [the Senator had just read from the old opinion of Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230) (E. D. Pa. 1825)]. To these privileges and immunities, whatever they may be--for they are not and cannot be fully defined in their entire extent and precise nature--to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining (p.167)to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
"Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation....
... The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." Cong. Globe, 39th Cong., 1st Sess., 2765-2766 (1866). "
Frequently people do speak of the "Bill of Rights" meaning the first eight amendments.
The Ninth and Tenth, as Madison's rules of construction for the BOR and Constitution, are just not "incorporable".
This does not mean that any protection from the Fourteenth is given the people or states by the Ninth and Tenth! Of course a discriminatory use of the Ninth or the Tenth would then result in a discriminatory power of the State that would fall afoul of the Fourteenth.
The Ninth and Tenth serve to underline the very same point that Senator Howard made (from your quote): " To these privileges and immunities, whatever they may be--for they are not and cannot be fully defined in their entire extent and precise nature--to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution..." The Ninth and Tenth Ammendments make it clear that a) the BOR does not grant any rights, it merely recognizes and enumerates them, and b) individuals have other inalienable rights that are nowhere enumerated in the Constitution. The wording of the Fourteenth Ammendment was explicitly chosen to recognize those facts. That's a matter of record. And that's how the Ninth and Tenth Ammemdments are incorporated by the Fourteenth.
If you think you have any present them.
I repeat: if you think you have any present them.
There are only records that, like the quote above, show it was NOT intended to "incorporate" the Ninth.
That is why the federal courts have never been able to apply the Ninth against the states under the Fouteenth- though they frequently say they would love to do so.
"the Ninth and Tenth Ammendments affect the interpretation of the other Eight--in fact, they affect the interpretation of the entire Constitution. "
Yes, that is their stated purpose. It is wholly unchanged by the Fourteenth, they affect the interpretation of the Fourteenth. The Ninth and Tenth cannot be applied against any state by the Feds- which is what "incorparation" in the Fourteenth means.
Perhaps you are merely trying to say that unenumerated rights are included in the Fourteenth. On that obviously we agree.
I think we are in agreement. When I say that the Ninth and Tenth are "incorporated" by the Fourteenth, I do not mean that the text of the Ninth and Tenth have been inserted into State Constitutions, with the effect that the "Constitution" referred by those Ammendments then refers to the several State Constitutions. All I mean is that the Ninth and the Tenth affect the meaning of the First through the Eighth, and so "come along for the ride," indirectly, when the First through the Eighth get incorporated. For example, the Ninth Ammendment would, in the context of the Fourteenth Ammendment, mean that the incorporation into State Constutions of the First through the Eighth Ammendments, may not be used to support a contention that the rights enumerated in the First through the Eighth Ammendments are the only "priviliges and immunities" to which the Fourteenth Ammendment refers. That seems to correspond to your stipulation of agreement.
I condensed and typed it in myself. If there is interest, I will gladly do the same with other essays in the book.
I have not made up my mind on the substance of the 14th.
But I am curious what the stance of libertarian-leaning conservatives is on federalism and religion as safeguards of liberty. My impression from pundits such as Nat Hentoff and Jay Severin is that they celebrate Incorporation as a means of strong protection of individual liberties. Related, I note a remarkable lack of sympathy from that quarter on the marginalization of federalism and particularly religion going on in America.
Liberatarians take the other side of this issue because (I think) they wish to throw off any collective authority over an individual. They resist encroachment by local and state governments on individual liberties, and fear certain encroachments by organized religion.
The marginalization of religion I spoke of comes from the stupendous expansion of government (mostly federal). On top of that comes Constitutional and cultural enforcement of strict separation.
I believe Americans' liberties would be enhanced by reversing the marginalization of religion. I would like to see more support among libertarian-leaning conservatives. To that end, I have been taking time on FR to debate certain points (though my knowledge of history and law is far from adequate).
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