Posted on 09/15/2003 6:14:58 PM PDT by tpaine
THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT
INTRODUCTION
What is the relationship between the Bill of Rights and the Fourteenth Amendment? Does the Amendment "incorporate" the Bill, making the Bill's restrictions on federal power applicable against states?
If so, which words in the Fourteenth Amendment work this change? Are all, or only some, of the provisions of the first ten amendments "incorporated" or "absorbed" into the Fourteenth? If only some, which ones, and why?
Once "incorporated" or "absorbed," does a right or freedom declared in the Bill necessarily constrain state and federal governments absolutely equally in every jot and tittle?
Or, on the other hand, can a guarantee in the Bill ever lose something in the translation, so that only a part of the guarantee-perhaps only its "core"- applies against state governments by dint of the Fourteenth Amendment?
These questions have framed a debate that, in the words of Judge Henry Friendly, "go[es] to the very nature of our Constitution" with "profound effects for all of us."
Professor Van Alstyne has written that "it is difficult to imagine a more consequential subject," an assessment confirmed by the extraordinary number of twentieth-century legal giants who have locked horns in the debate - Hugo Black, Felix Frankfurter, William Brennan, Henry Friendly, William Crosskey, Louis Henkin, Erwin Griswold, and John Ely, to name only a few.
Perhaps even more extraordinary has been the willingness of Supreme Court Justices to reinforce their judicial pronouncements on the issue with extra-judicial elaborations. For example, after his retirement from the bench and shortly before his death, Justice Frankfurter published as his parting words to the legal community an elaborate "memorandum" on "incorporation" in the Harvard Law Review, piling up case citations and other material to support his own preferred solution to the issue.
Three years later, Frankfurter's great sparring partner, Justice Black, publicly responded in his Carpentier Lectures, breaking "a longstanding rule of not speaking out on constitutional issues." And in two James Madison Lectures delivered twenty-five years apart-each aptly titled "The Bill of Rights and the States"-Justice Brennan expanded upon his own proposed solution to the incorporation conundrum.
When we shift our attention from lectures and law reviews to United States Reports, we see much more evidence of the centrality of the incorporation debate to twentieth-century constitutional law. Consider, for example, the lead paragraph of the most famous footnote in Supreme Court history:
"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth."
In the half-century since Carolene Products, the Court has taken the hint of footnote four. A list of cases applying various parts of the Bill of Rights against states reads like the "greatest hits" of the modern era:
New York Times v. Sullivan, Abington School District v. Schempp, Mapp v. Ohio, Miranda v. Arizona, Gideon v. Wainwright, Duncan v. Louisiana, and on and on.
Some cases, like Sullivan, merely applied provisions of the Bill of Rights that had long before been deemed "embraced within" the Fourteenth Amendment; others, like Duncan, achieved notoriety precisely because they decided to "incorporate" previously "unabsorbed" clauses.
Speaking only of the latter set, Justice Brennan ranked the incorporation opinions ahead of reapportionment and desegregation cases as "the most important series of decisions of the Warren era."
In remarks sharply critical of Brennan and his brethren, Solicitor General Erwin Griswold offered an even more sweeping assessment of the stakes involved: "I can think of nothing in the history of our constitutional law which has gone so far since John Marshall and the Supreme Court decided Marbury v. Madison in 1803."
And yet, despite the importance of the topic and all the attention devoted to it, we still lack a fully satisfying account of the relationship between the first ten amendments and the Fourteenth.
Minor variations aside, three main approaches have dominated the twentieth-century debate.
The first, represented by Justice Frankfurter, insists that, strictly speaking, the Fourteenth Amendment never "incorporated" any of the provisions of the Bill of Rights. The Fourteenth requires only that states honor basic principles of fundamental fairness and ordered liberty-principles that might indeed happen to overlap wholly or in part with some of the rules of the Bill of Rights, but that bear no logical relationship to those rules.
The second approach, championed by Justice Black, insists on "total incorporation" of the Bill of Rights. The Fourteenth Amendment, claimed Black, made applicable against the states each and every provision of the Bill, lock, stock, and barrel-at least if we define the Bill to include only the first eight amendments.
Faced with these diametric views, Justice Brennan tried to steer a middle course of "selective incorporation." Under this third approach, the Court's analysis could proceed clause by clause, fully incorporating every provision of the Bill deemed "fundamental" without deciding in advance whether each and every clause would necessarily pass the test. Methodologically, Brennan's approach seemed to avoid a radical break with existing case law rejecting total incorporation, and even paid lip service to Frankfurter's insistence on fundamental fairness as the touchstone of the Fourteenth Amendment.
In practice, however, Brennan's approach held out the possibility of total incorporation through the back door. For him, once a clause in the Bill was deemed "fundamental" it must be "incorporated" against the states in every aspect, just as Black insisted. And nothing in the logic of selective incorporation precluded the possibility that, when all was said and done, virtually every clause of the Bill would have been deemed fundamental.
As we shall see, there is something to be said for each of these positions, but each is also fatally flawed. An alloy of the three seemingly incompatible elements will prove far more attractive and durable than each unalloyed component.
But before such an alloy can profitably be forged, we need to do a considerable amount of preparatory work.
In Part I, we shall examine antebellum ideas about whether the original Bill of Rights applied against the states. In Part II, we shall study with care the text and context of the Fourteenth Amendment. Finally, in Part III, we shall return to the Black- Brennan-Frankfurter debate, which I shall attempt to synthesize with a new model of incorporation.
This synthesis, which I call "refined incorporation," begins with Black's insight that all of the privileges and immunities of citizens recognized in the Bill of Rights became applicable against states by dint of the Fourteenth Amendment.
But not all of the provisions of the original Bill of Rights were indeed rights of citizens. Some instead were at least in part rights of states, and as such, awkward to incorporate fully against states.
Most obvious, of course, is the Tenth Amendment, but other provisions of the first eight amendments resembled the Tenth much more than Justice Black admitted. Thus, there is deep wisdom in Justice Brennan's invitation to consider incorporation clause by clause rather than wholesale. But having identified the right unit of analysis, Brennan posed the wrong question: Is a given provision of the original Bill really a fundamental right?
The right question is whether the provision really guarantees a privilege or immunity of individual citizens rather than a right of states or the public at large. And when we ask this question, clause by clause, we must be attentive to the possibility, flagged by Frankfurter, that a particular principle in the Bill of Rights may change its shape in the process of absorption into the Fourteenth Amendment.
This change can occur for reasons rather different from those offered by Frankfurter, who diverted attention from the right question by his jaundiced view of much of the original Bill and by his utter disregard of the language and history of the privileges or immunities clause. Certain hybrid provisions of the original Bill-part citizen right, part state right-may need to shed their state-right husk before their citizen-right core can be absorbed by the Fourteenth Amendment.
Other provisions may become less majoritarian and populist, and more libertarian, as they are repackaged in the Fourteenth Amendment as liberal civil rights - "Privileges or immunities" of individuals- rather than republican political "right[s] of the people," as in the original Bill.
(Excerpt) Read more at saf.org ...
Numb? It is pretty amazing that anyone, even you, didn't previously know that the 14th Amendment applies to corporate persons.
Bingham and the rest of the Republican majority very much gained from it, starting with the oaths of allegiance (especially those not taken) and very much starting with increased Federal powers, which were excercised mightily over the new states that replaced the old ones.
As I stated earlier, we must observe and be grateful for the 14th's extensions and guarantees of the Bill of Rights. We must also beware of the dangers of extensive and enlarged interpretation of it. It leaves me torn and wishing there was another way than the "equal protection of the laws" as it is currently understood, as to embody "fairness" and equality of outcome rather then equality before the law.
I wonder what Abe would have said about it all.
Here's an interesting conundrum presented by the 14th amendment, this from the article, Fair Interpretation
The actual text of the First Amendment — "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" — raises the question of how an amendment that speaks only of Congress applies to the Texas school board. The short answer is that the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment, which does apply to state and local governments, as incorporating some of the liberties protected by the Bill of Rights.This interpretation was not "discovered" by the high court until half a century after the Fourteenth Amendment was adopted, however, and it was flatly rejected by the court upon reviewing the issue shortly after the Amendment was passed.
Although it may be too late in the day to contest this Incorporation Doctrine, honest scholars must nevertheless concede that the Incorporation Doctrine is at its weakest in the Establishment Clause context. By applying the Establishment Clause to the states, the courts have found implicit in the Fourteenth Amendment the very power to interfere with religion in the states that was explicitly prohibited to the federal government by the First Amendment. A strained reading, at the very least.
Who benefited, in what, where? Can you give some specifics? What power did Bingham gain, for instance?
Bingham and the rest of the Republican majority very much gained from it, starting with the oaths of allegiance (especially those not taken)
How does an oath equate to a power gain? - Makes no sense.
and very much starting with increased Federal powers, which were excercised mightily over the new states that replaced the old ones.
You can't give specifics, can you? Typical of this issue. Lots of empty rhetoric about "increased Federal powers", which are violations of the 14th in themselves, not because of it.
As I stated earlier, we must observe and be grateful for the 14th's extensions and guarantees of the Bill of Rights. We must also beware of the dangers of extensive and enlarged interpretation of it.
Again, -- show where the 14th is the cause of any "extensive and enlarged" federal powers.. You can't.. Polititical failure in our republocrat system is the cause of federalism, not some imagined faults in our constitution.
It leaves me torn and wishing there was another way than the "equal protection of the laws" as it is currently understood, as to embody "fairness" and equality of outcome rather then equality before the law.
I wonder what Abe would have said about it all.
In a sense I think he did, in his opening & closing lines at Gettysberg:
"Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal ---
[thus we]
--- shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth."
Begs the fact that the bill of rights has always been the supreme law of the land, and all states are bound thereby. [See Art. VI]
This interpretation was not "discovered" by the high court until half a century after the Fourteenth Amendment was adopted, however, and it was flatly rejected by the court upon reviewing the issue shortly after the Amendment was passed.
The 'states rights' faction has always rejected that our US Constitution is supreme as to defining individual rights. At times they get the court to agree, erroneously.
Although it may be too late in the day to contest this Incorporation Doctrine, honest scholars must nevertheless concede that the Incorporation Doctrine is at its weakest in the Establishment Clause context. By applying the Establishment Clause to the states, the courts have found implicit in the Fourteenth Amendment the very power to interfere with religion in the states that was explicitly prohibited to the federal government by the First Amendment. A strained reading, at the very least.
Not strained at all..
As a territory, before statehood, a region of the US is unquestionably governed by our US Constitution..
Would it make sense that once admitted as a state, such an area could violate its citizens religious freedoms, or freedom of speech/press?
Their RKBA's? -- Absurd idea.
Our individual rights, as outlined in our BORs, -- cannot be infringed upon by any level of government, fed/state/local..
Yep, - that has been the supposition of 'state rights' advocates, which is unsupported by facts.
The 14th assured control of the southern courts and constitutions through the oversight given the Feds in the 14th.
This 'oversite' insures that individuals rights are not violated. States retain their powers to fight federal edicts, but refuse to use them through political failures..
The 14th is not at fault.
This includes, shall we say, asset management. Big time northern investment in rebuilding the South, especially the railroads.
Easy to 'say', but the proof is not forthcoming. In any case, reconsruction is over.
It's that simple: and it's that invidious.
No, the states rights movement is not over, - and what's insidious about it is the ~insistence~ that states can ignore our civil rights. Why is this a goal?
Lincoln's attitude towards it likely would have been one of suspicion. It was used to assure Federal control over the southern governments.
Not so, and the more the big lie is chanted about fed control thru the 14th, the less credibility the movement gains.
The story of Reconstruction is not pretty, on all sides. Sadly, the Republican leadership didn't include the spirit of Lincoln's 2nd inaugural in the 14th amendment. Again, all kinds of good in it. Too bad they threw out the baby with the bathwater.
Our baby of individual rights is being thrown out by the advocates of states rights.. Makes no sense to me.
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