Posted on 05/21/2002 11:54:40 AM PDT by tpaine
The Incorporation Debate
The Issue: Does the Fourteenth Amendment "Incorporate" the Protections of the Bill of Rights and Made Them Enforceable Against the States?
Introduction
The debate over whether the Fourteenth Amendment makes appicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution.
The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later. By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. In subsequent cases, attention focused on the Due Process Clause.
Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others. The Court's test for choosing which provisions--along with all the accompanying baggage of decisions interpreting the federal rights--were incorporated changed over time.
The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.
Note that there are several possible positions that could be taken with respect to the incorporation debate.
First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states and no more. This was the view argued for by Justice Black.
Second, one could argue that the provisions of the Bill of Rights are essentially irrelevant to interpretation of the Fourteenth Amendment, and that violations of the Due Process Clause are to be determined by a natural-law-like tests such as "Does the state's action shock the conscience?" or "Is the state's action inconsistent with our concept of ordered liberty"? This is the "No Incorporation" Theory advanced by Justice Frankfurter, among others.
Third, one could take a position such as Justice White did in Duncan that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions. This view is often called the "Selective Incorporation" Theory.
Finally, one could adopt either a "Selective Incorporation Plus" view or a "Total Incorporation Plus" (see Justice Murphy's view in Adamson, for example) view. These views hold that in addition to incorporating some or all of the provisions of the Bill of Rights, the Fourteenth Amendment also prohibits certain other fundamental rights from being abridged by the states.
Cases
The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)
The Fourteenth Amendment (Section 1):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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 the laws.
The Bill of Rights
Incorporated or Not Incorporated?
1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Fully incorporated.
His paragraph doesn't explain where in the 14th amendment it says that the Bill of Rights shall be applied to the states.
- If you don't believe Black, read the ratification debates themselves. They're on the web.
I don't care what they intended to say, any more than I care about how voters in Palm Beach County intended to vote. All that matters is what they did say. And they did not say that the BOR applies to the states, when they could have easily made it crystal clear that it does. If they write a law saying "thou shalt only eat broccoli on Sundays", am I supposed to be impressed that they meant to say that you should never shave your dog?
I'm sorry. I understood you to be suggesting in post 2 that you were interpeting the provision to mean that "the states are only prohibited from doing what the Constitution expressly prohibits them from doing" in other parts of the Constitution. If what you are actually suggesting is that the Fourteenth Amendment should be interpreted to prohibit the states from doing what the Fourteenth Amendment prohibits them from doing, then you are of course correct and you won't run into any problems with that interpretation until you run into a real case.
In the real cases that will confront you, the statutes that you will be reviewing will not expressly provide, "The purpose and effect of this statute is to deny persons the equal protection of the law," or "The purpose and effect of this statute is to deprive persons of their life, liberty or property without due process of law." So when you attempt to review a real case, you will confront the need to interpret the meaning of the Fourteenth Amendment so that you can apply it to the particular facts presented. That will require that you proceed beyond simply stating that the Fourteenth Amendment "just forbids what it forbids" because that formulation merely begs the question - what does it forbid?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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 the laws.
--------------------------
In bold, you will find the words that refer to states and restrict them from violating an individuals unenumerated and/or enumerated constitutional rights.
Plain, ordinary language. - You dislike what it says? - Tough.
But to claim you can't understand only raises doubts as to your own abilities.
Yes, but "privileges and immunities" and "due process of law" are not exactly self-defining terms.
I hate to say it, but if XIV were submitted today, there wouldn't be ten votes against it in Congress, and 38 States would ratify it in a week.
"Privileges and Immunities": All it's understood to mean really is that the state can't interfere with the relationship between the U.S. government and its citizens. For example, a your state would be prohibited from extraditing you to Iran on demand from the Ayatollah, because as a U.S. citizen, you have an immunity to being sent overseas to be prosecuted by a foreign tribunal, except in cases where an extradition treaty might apply, and even then it could only be under the auspices of the U.S. Department of State.
"Due Process": Ned said, "The statutes that you will be reviewing will not expressly provide...'The purpose and effect of this statute is to deprive persons of their life, liberty or property without due process of law.'" Even that unlikely hypothetical situation is a complete contradiction. There's no way a law can violate due process of law, because, "due process of law" means making sure you have a law to back up your actions against someone - in other words, not just throwing someone in the slammer because you consider him a "threat", or just plain don't like him. I know that courts have tried to twist it to mean that if you act on the basis of an "inappropriate" law, then due process is being violated, but that's nothing but a very sophomoric argument. That's what I mean when I said in post 19, that the 14th amendment isn't a blank check for judges to write their own legislation, even thought that's exactly how they've been using it.
"Equal Protection": This clause applies to how courts apply the law. A court would be in violation of it if it were to give someone a lesser sentence for a crime against another, on the basis of who the victim was, because then that victim would be denied his equal protection.
So the common thread running through all three is that they are simply prohibitions against the worst types of potential abuses of state power, not a blanket protection of unspecified natural rights. It's the job of the peoples of those states to make sure their own constitutions contain the appropriate protections, and ultimately, to make sure that their governments respect their rights.
Really, - you should read more on the basic history of this issue, if you intend to attack its premise.
Despite the fact that many here on FR favor States as smaller and more malleable sources of government authority, the view of State-Federal relations contemplated by the Fourteenth Amendment is intensely popular where it counts-in State Legislatures.
I read each time you posted it. It doesn't change anything. And I replied to it in #21, to which you haven't responded, except by posting the actual text of the amendment, which I dissected for you. Do you want to keep going around in circles like this, or do you want to address any of the actual points I raised?
You haven't established that the 14th 'interferes'. It defends individual rights, as do the 9th & 10th.
or at least of nullifying their operation which would otherwise prevent enforcement of Fourteen.
You lost me again. Non sequitor.
Despite the fact that many here on FR favor States as smaller and more malleable sources of government authority, the view of State-Federal relations contemplated by the Fourteenth Amendment is intensely popular where it counts-in State Legislatures.
The 14th is popular with state 'law'makers ? - It won't be in CA, when it strikes down the unconstitutional gun laws they have written.
I think I understand you. I think you're just saying that the Fourteenth Amendment's due process clause must not be interpreted to limit the power of state legislatures because any law that a state legislature enacts by your definition constitutes due process of law. That's one way of reading the due process clause and it's not necessarily an incorrect interpretation just because hardly anyone else reads it that way.
I read each time you posted it. It doesn't change anything.
I can't help you to understand Blacks clear reasoning.
And I replied to it in #21, to which you haven't responded, except by posting the actual text of the amendment, which I dissected for you.
I responded at #23 with two paragraphs beyond the 'text'. - Which you replied to, but now ignore. - Weird claim .
Do you want to keep going around in circles like this, or do you want to address any of the actual points I raised?
I have addressed every actual point you raised, despite your denials. - So unless you will admit that fact, & move on, this exchange is at an end.
Whether or not you terminate the conversation is your choice, but that's not going to stop me from pointing out your non sequiturs to everyone else.
You're correct that that is what I was saying. If you have a different way of looking at it, that you can back up logically, I'd be interested in hearing it.
As I understand your usual test for the soundness of an interpretation, it involves asking the question "Why didn't they just write it the way that you're interpreting it?" So, I guess the question for you would be: If the Fourteenth Amendment was only intended to limit the power of state judges and was not intended to limit the powers of the state legislatures, why couldn't they have just said so?
In other words, I suspect that you for some reason believe that your interpretive process is somehow different than the interpretive processes used by others. You are critical of the way in which others have interpreted the due process clause to "incorporate" the Bill of Rights because you see these people as improperly adding meaning to the Amendment that the draftsmen did not express. But your interpretation is no different in that regard. By exempting state legislatures from the scope of the Amendment, you too are adding meaning that the draftsmen did not express.
You cannot escape the need to provide some meaning to the Constitution's words. You can only choose between alternative meanings.
Of course you are; -- the framers intended to restrict states from violating constitutional rights. They wrote exactly that.
What you both have failed to explain is why it is that what somebody claims he intended to write is to be considered more valid than what he actually writes.
Nope, -- we haven't failed to explain, YOU have failed to understand the actual written language of the 14th. WE can't help you, it appears. - And I no longer WANT to.
You also failed to counter the point I made about the text of the amendment, in showing in detail that it doesn't mention the Bill of Rights, or even allude to them. All you said in response to that, is (again) that the framers intended to have it refer to the Bill of Rights. Thus, you're taking the conversation around in circles, and I think anyone watching us can see that.
Whatever. -- I, nor anyone else, is obligated to 'counter, in detail' your imaginings. Indeed, it appears to be impossible, due to your inability to frame logical points.
Whether or not you terminate the conversation is your choice, but that's not going to stop me from pointing out your non sequiturs to everyone else.
Have at it. - You'll simply make a bigger spectacle of your irrationality.
That's actually not quite the exact criticism I had of tpaine's reasoning. He was trying to make the point that in order to understand what was written, one should examine what someone supposedly intended to be written. What I'm saying, and what I would think is rather self-evident, is that in order to understand what was written, one should examine... what was written. That is, we should look at the text itself and see what kinds of conclusions should be drawn from the words contained therein.
In the case of the due-process clause, for example, it really strains the imagination for me to think that talking about the "process" of law involves any concern about what the law actually says. It looks clear to me that it's only about the way the law is processed - meaning, how it's administered. In the case of the equal-protection clause, I did mention to you on the last thread that I hadn't totally discounted the possibility that it would also apply to legislative acts. It's just a matter of logically examining the implications of that particular conclusion and seeing if it really squares with what the text says. And as for "privileges and immunities", of course, I never would say that it wouldn't apply to legislation, since the amendment actually comes right out and says, "No State shall make or enforce any law which shall...."
I don't think that anyone would disagree with you on that point and in many cases reference to the text of a statute alone will provide you with all that you need to know to apply a statute to a particular set of facts. When the meaning of a statute is sufficiently clear from the text to permit an interpreter to apply its meaning to a particular problem, that particular job of interpretation is usually over. Unfortunately, the text of the Fourteenth Amendment is not composed of words and phrases that are sufficiently specific or definite to often foreclose the possibility of numerous alternative reasonable meanings.
It is because a choice must be made between these alternative meanings that interpreters often feel a need to look beyond the text in an effort to determine and consider, for example, the "intent" of those who participated in its enactment or a manifest "purpose" in terms of legislative objectives (which can at times be broader than intent) or the historical circumstances and events surrounding its enactment, etc.
In the case of the due-process clause, for example, it really strains the imagination for me to think that talking about the "process" of law involves any concern about what the law actually says. It looks clear to me that it's only about the way the law is processed - meaning, how it's administered. In the case of the equal-protection clause, I did mention to you on the last thread that I hadn't totally discounted the possibility that it would also apply to legislative acts. It's just a matter of logically examining the implications of that particular conclusion and seeing if it really squares with what the text says.
I don't wish to sound overly critical of your view of the Fourteenth Amendment because the amendment's meaning is simply not all that clear. However, I can say that you might find it easier to persuade others that the Fourteenth Amendment should be interpreted to involve a limitation on the powers of state judges (rather than state legislatures) if you could demonstrate that at the time of its enactment, there existed a perception that state judges were abusing and exceeding boundaries that had been had been set for them by state legislatures, that the arguments in support of and in opposition to the adoption of the amendment related to concerns about the manner in which state judges were conducting themselves, and that there existed little or no concern about the effects that acts of state legislatures might have on persons within their reach. Unfortunately, I think the best evidence suggests that the persons involved in the amendment's adoption were in fact far less concerned about the fidelity with which state judges were administering state laws than they were with the past and anticipated future conduct of state legislatures in enacting laws respecting the legal status and rights of recently emancipated blacks. But these are just problems that you may confront in persuading others to your point of view.
Thus far, we have only concerned ourselves with interpretation of the Fourteenth Amendment by Federal judges. Section 5 of the amendment granted to Congress new powers so that it could enact appropriate legislation to enforce the amendment. I can assure you that Congress has never viewed its role in this area as being limited to ensuring that state court judges comply with state law. In considering how Federal courts might review Congressional interpretations of its own authority under the Fourteenth Amendment, you might be interested in this quote from an opinion written by Justice Brennan:
"The historical record left by the Framers of the Fourteenth Amendment, because it is a product of differing and conflicting political pressures and conceptions of federalism, is thus too vague and imprecise to provide us with sure guidance in deciding the pending cases. We must therefore conclude that its framers understood their Amendment to be a broadly worded injunction capable of being interpreted by future generations in accordance with the vision and needs of those generations." Oregon v. Mitchell (1970) 400 U.S. 112.
How do you like them apples?
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