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.

The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)

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.

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.

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.

Alright, at this point I'm going to have to ask you to elucidate further and give me some reasons why you think that the due-process clause might be read in a different way than I did, keeping in mind the specific reasoning that I gave. What would be an example of an alternative reasonable meaning?

"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?

It's not surprising at all that he should make such a ruling. What he's basically saying is that the 14th amendment gave him and his club a blank check to write legislation on. I'd have to respectfully disagree. If he truly believed what he said about the irreducibility of the meaning of the 14th amendment, then he would have no choice but to rule that it is, what the lawyers call "void for vagueness". That's how they rule in cases where someone passes a law saying something like "Don't do anything bad". It would be utterly irresponsible for judges to turn it into a license to legislate.

I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges. I believe that its adoption represented a conscious decision to limit the powers of the state governments and to expand the powers of the Congress with regard to state laws and practices.

I believe that that amendment's due process clause was adopted for the purpose of requiring that all states meet some minimum "American" standards of fairness when disposing of a person's life, liberty or property. I believe that the exact parameters of those minimum standards were intentionally left unspecific so as to allow for flexibility in the determination of those minimum standards. I think that any one of the four interpretations presented in the article at the head of this thread would constitute reasonable alternative interpretations for the Fourteenth Amendment's due process clause. In that regard, here is a link at which you can find a summary of historical support for the "incorporation" approach.

As for the equal protection clause, I believe that its primary purpose was to prevent states from discriminating against recently emancipated blacks. I do not view as reasonable any interpretation of the equal protection clause which ignores this history or design. Accordingly, I believe that the range of reasonable alternative interpretations would begin at a level which would forbid states from adopting laws or practices which expressly discriminate between persons on the basis of their race.

That particular quote was from a case in which Brennan and the Court were concerned with the extent of the powers granted to Congress "to enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment. It had nothing to do with a "license to legislate" by the Court; it concerned the power of Congress to legislate pursuant to Section 5 of the Fourteenth Amendment.

You wrote:

I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges.
I believe that its adoption represented a conscious decision to limit the powers of the state governments and to expand the powers of the Congress with regard to state laws and practices.

How near, yet far, you are to Justice Blacks view, - from 'Adamson':

"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced.
This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."

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In the *bolded* portion of your statement above you differ from Black only in your reasoning of the 'intent'. -- Black, *in bold*, clearly claims the object of the 14ths Section 1 is to be a general constitutional limit on the state power to 'regulate' individual rights.

Your insistence that it was a bid to expand federal congressional power is simply not born out by the next fifty years, or more, of history. Not till the 'New Deal', in fact, did any real power grab start from the feds. And, by then, the fed grab was aided & abetted by the various state political machines.

The 'evil 14th' is political propoganda, by those who like the statist quo.

Before I begin in earnest, I need to point out a serious misunderstanding you had of my position. You said, "I don't believe the Fourteenth Amendment was adopted for the purpose of resolving turf wars between state legislatures and state judges." That doesn't even come close to what I was arguing. In no way was I saying that the 14th amendment would have altered the respective responsibilities of the legislative and judicial branches of the states. You're right that it's a conscious decision to limit the powers of the states - specifically, to limit their arbitrary powers over their subjects, and so it would be expected that its provisions would apply most forcefully (though not exclusively) to those branches of government that are most prone to such arbitrary power - i.e., the executive and judicial branches.

I want to harken back to what you said in your previous post. You stated that if one cannot determine the meaning of a legal statement from the words themselves, one should look at the context surrounding its passage. But before geting into that, it would only be fair to really see if there are truly other reasonable ways of simply looking at the text itself. You gave examples of how the due-process clause might be interpreted in different ways, but didn't provide any justification for them based on the text. What I was asking you to explain is how the phrase "due process of law" can be realistically construed to concern itself in any way with content of a particular law, when common sense would suggest that the word "process" only refers to how something is executed, not what it is. Sorry if I didn't make myself clear earlier.

I also want to revisit another point you made. You stated that it is inevitable that any particular piece of law isn't going to say everything that its authors intended to say, and therefore would require some extra investigation to determine the full meaning. That of course is true; the Constitution would have to be hundreds of pages long if it were to include every facet of meaning that was intended. Therefore, it's understandable that the drafters of a law would state the most basic points using well-chosen words, so that the rest of us would have something to build some meaning from. However, if your interpretation of a particular law results in something that can be easily expressed in fewer words, and with words with clearer meaning, than the words that actually comprise the text, then that would be cause for suspicion of that interpretation. Then, someone would be justified in asking why the framers simply didn't come right out and say it. I'm referring to your quote from Judge Brennan. After reading it, one wonders why the 14th didn't simply say, "The Congress and the federal judiciary shall have veto power over all State laws and policies." That's essentially the same thing. If that's what they had intended, then they really had an obligation to make that clear, especially since it would have resulted in such a profound shift in the balance of power between Washington and the states. And it was particularly dishonest of Brennan to cite the lack of clear intent on the part of the framers as justification for a power grab by the feds, when lack of clarity in a law, as I said earlier, should tend to invalidate it, not increase its scope.

And by the way, I did follow your link, and much of it seems to support my position. For one thing, it shows the lack of clear thinking by the framers in drafting the amendment. Also, in regards to the equal-protection clause, for example, the fact that it originally had language pertaining to race, which they deliberately dropped, would suggest that its scope was not to be in any way limited to race.

I found that I had once underlined the very paragraph that you quoted from Black's dissenting opinion in Adamson. Interestingly enough, Black suggested that the "incorporation" approach would provide a handy way to limit courts in their application of the Fourteenth Amendment: "I think that decision [Twining v. New Jersey] and the 'natural law' theory of the Constitution upon which it relies degrade the constitutional safeguards of the Bill of Rights and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise." Justice Douglas joined in Black's opinion and Justices Murphy and Rutledge joined in a separate dissenting opinion in which they stated that they agreed with Black's "incorporation" approach but believed that the due process clause's meaning should not be limited to just the Bill of Rights ("incorporation plus").

In his concurring opinion in Adamson, Justice Frankfurter also discussed a little history:

"Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court - a period of seventy years - the scope of that Amendment was passed upon by forty-three judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments . . . "

As I said in an earlier post, I believe that all of these various approaches are within the range of reasonable alternative interpretations of Section 1 of the Fourteenth Amendment. While each of these interpretive approaches are readily distinguishable from one another in detail, they are similar in that each of them acknowledges that Section 1 imposes a new constitutional limitation on state laws and practices in the form of an obligation to comply with some minimum standards of fairness in dealing with a person's life, liberty or property.

My reference to the intent to expand congressional power is based solely upon Section 5 of the Fourteenth Amendment: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

What I was asking you to explain is how the phrase "due process of law" can be realistically construed to concern itself in any way with content of a particular law, when common sense would suggest that the word "process" only refers to how something is executed, not what it is. Sorry if I didn't make myself clear earlier.

I do think I've understood what you're saying. I believe you to be saying that a state violates the due process clause only if it deprives someone of life, liberty or property in a manner that fails to comply with statutes passed by its own state legislature and that each state legislature may decide for its own state what constitutes "due process of law."

So, if you're sitting at the Supreme Court and you are reviewing a murder conviction of someone who claims his Fourteenth Amendment due process rights were violated because the trial judge refused to allow him a jury trial, then your decision would depend exclusively upon whether or not the state legislature in the state of conviction had passed a statute providing the defendant with a right to a jury trial. If so, and the trial judge defied the state legislature's directions, then the defendant was denied due process.

The problem that I have with this interpretation is that I don't think that people went to all of the trouble of adopting the Fourteenth Amendment just to make sure that state judges complied with the directions of state legislatures. The Fourteenth Amendment provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law." I believe that state legislatures were intended to fall within the scope of the term "State" and that the due process clause obligates the State (including the state legislature) to comply with some minimum standards of fairness when disposing of a person's life, liberty or property. I do not believe, for example, that a state can, consistent with the due process clause, execute or imprison people without trials even if the state legislature enacts statutes providing for executions and imprisonment without trial. I firmly believe that the due process clause of the Fourteenth Amendment was adopted as a limitation on state laws and practices with the understanding that states would thereafter be held to some national standards of "due process of law." The real debate concerns just what those national minimum due process standards should be.

The Constitution provides that "Congress shall have power to . . . provide for the common defence." I don't believe that we are in any sense crippled by our Founding Fathers' failure to itemize precisely what they meant by "provide for common defence." And I don't think that they phrased that delegation in such general terms simply because they ran out of parchment. I believe that their delegation of that power was made in general terms because they knew that they were incapable of determining for people in the distant future exactly what providing for the common defense might in the distant future require. So they delegated to future Congresses the job of determining what might be necessary and proper to provide for the common defense. Don't overlook the possibility that an inquiry into what our Founding Fathers might have really "meant" by providing for a common defense might lead to the simple conclusion that they "meant" for our present Congress to decide such issues based upon our present needs (at least so long as Congress doesn't try to quarter troops in people's houses in violation of the Third Amendment - LOL).

I'm referring to your quote from Judge Brennan. After reading it, one wonders why the 14th didn't simply say, "The Congress and the federal judiciary shall have veto power over all State laws and policies." That's essentially the same thing. If that's what they had intended, then they really had an obligation to make that clear, especially since it would have resulted in such a profound shift in the balance of power between Washington and the states. And it was particularly dishonest of Brennan to cite the lack of clear intent on the part of the framers as justification for a power grab by the feds, when lack of clarity in a law, as I said earlier, should tend to invalidate it, not increase its scope.

Well, Justice Brennan (in discussing the scope of Congressional authority under Section 5 of the Fourteenth Amendment) was merely referring to the same principle that I mentioned above with reference to Congressional power in the area of our common defense. That principle is that when a draftsman uses terms which are indefinite in scope, it is not unfair to assume that he/she did so intentionally for the purpose of creating greater latitude in possible meaning for future interpreters. If we find it acceptable that Congress was granted broad latitude in determining what is necessary to provide for the common defense, why should we find it unacceptable that Congress was granted broad latitude in determining what is necessary to provide due process of law or the equal protection of the laws?

I agree with your assessment. And that is precisely what Brennan was saying.

I believe you to be saying that a state violates the due process clause only if it deprives someone of life, liberty or property in a manner that fails to comply with statutes passed by its own state legislature and that each state legislature may decide for its own state what constitutes "due process of law."

You believe incorrectly. I acknowledge that there is a fixed meaning which constitutes "due process" which the amendment prohibits states from infringing upon, even by acts of legislature. What it does not prohibit states from doing is passing laws which restrict any type of action on the part of their citizens, provided they use appropriate methods for enforcing those laws. That's my understanding of the word "process".

If we find it acceptable that Congress was granted broad latitude in determining what is necessary to provide for the common defense, why should we find it unacceptable that Congress was granted broad latitude in determining what is necessary to provide due process of law or the equal protection of the laws?

Congress was not given as broad a latitude as you might think in providing for the common defense. This is the full line of that particular authorization, from Article 1, Section 8: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States...." This is a provision authorizing taxation, which simply explains that Congress has the power to raise revenue in order to provide for the common defense and general welfare. It does not say that they can pass any law they please that they might justify as promoting the common defense and general welfare (and in case you're wondering, this isn't just another one of my idiosyncratic interpretations; it's well understood all around to be the case, and well in line with the original intent). What the Constitution specifically authorizes Congress to do, further down in that same section, is provide for an army and a navy (true, it doesn't mention an air force, obviously, but that's pretty much just an army by other means). Even still, the common defense is a highly specific goal; whereas protecting undefined "rights", as the recent history of our supreme court decisions have amply shown, can apply to anything and everything. Virtually any law which restricts people's behavior in some way can be said to violate somebody's "rights". Virtually any spending can be described as "discriminatory", since it's necessarily going to be targeted towards some interest within the population. There is no meaningful limit to how the feds can rule. And there's a certain presumptiveness in saying that the drafters left it to future "generations" to interpret, the presumption being that these "generations" will consist only of people in Washington. The opinions of the "generations" in state capitals apparently are not to be taken into consideration.

And there's another thing I should mention about your link, by the way. It purported to show that the framers intended for the amendment to incorporate the Bill of Rights, but there's a huge catch. Unlike what you were claiming - namely, that the due-process clause could be construed to do that job - such was not what they had in mind for that clause. It was the privileges-and-immunities clause that they (according to the link) intended to incorporate it. But as I pointed out in #27, the final draft of the amendment clearly shows that that clause did not incorporate the BOR, because it is immediately supplemented by a provision that was lifted directly out of the BOR, namely, the due-process clause.

They certainly could violate it by passing laws that interfere or dispense with the ordinary process of law, such as laws that authorize summary executions by law-enforcement authorities.

Once it is agreed that the Fourteenth Amendment's due process clause requires that a state comply with some minimum procedural safeguards when depriving a person of life, liberty or property, then the question becomes one of determining what procedural safeguards are to be included within those minimum standards.

If you feel that the due process clause requires that a state provide a trial before execution, do you believe that it requires a state to provide a trial before imposing a prison sentence? Under what, if any circumstances, do you believe that a state is required to offer a criminal defendant a trial by jury? Does the due process clause require a state to permit a criminal defendant to appear with an attorney to assist him in his defense? Does the due process clause forbid a state from conducting secret trials that are not open to the public? Does the due process clause requre that a state permit a criminal defendant to confront and cross-examine the witnesses against him or would it be permissible for a state to allow the prosecutor to just relate to the court what the witnesses told him in private? Is a state required by the due process clause to allow a criminal defendant to call witnesses of his own? Is the state required to allow the defendant to testify on his own behalf or can a state pass a law forbidding a criminal defendant from testifying on his own behalf because the state legislature believes that such testimony would be unreliable given the obvious bias? Can a state, consistent with the due process clause, compel a criminal defendant to testify in his own case? If so, what level of force would be consistent with the due process clause?

These are the kinds of questions that must inevitably be faced once it is agreed that the due process clause does impose some standards on the states' criminal justice systems. When the Supreme Court decides that any particular procedural safeguard is or is not required by the due process clause, it is expected to write an opinion explaining its reasoning. In order to avoid the appearance of just being arbitrary, it has sought to find (read devise) a formulation that will allow it to justify its particular decisions in this area. Black hoped that by adopting the view that the due process clause simply incorporates the provisions of the Bill of Rights, the Court would have a more workable platform from which the Court could decide and justify its decisions in this area.

The argument can certainly be made that due process entails all of the things that we normally would consider the proper means by which the laws should be enforced - from the time a person's charged to the time he's sentenced, and even to the conduct of his punishment. What it does not entail is the nature of the laws that he would be tried and punished for violating. That's the point I've been trying to make. Do you see the distinction in what I'm saying?

The distinction that I think you are making is the distinction between "procedural due process" and "substantive due process." For a period of more than 40 years following 1890, the Supreme Court declared unconstitutional many state statutes which were designed to regulate businesses or to establish minimum standards of health and safety in the workplace. Lochner v. New York (1905) (in which the Court held that the attempt by the state to establish a limit to the number of hours an employee could work as a baker was an unconstituional deprivation of "liberty" in violation of the Fourteenth Amendment) is one of the better known examples of that particular series of "substantive due process" decisions. At or about the time that FDR began talking about the need for more than just nine justices on the Supreme Court, the Supreme Court pulled back and then began finding ways to approve of regulations on business.

More recently, "substantive due process" has returned and has played an important role in connection with issues relating to what are often termed "personal interests." Roe v. Wade (1973) is probably the best known example of this excursion into the realm of "substantive due process."

Do you believe that the state of Texas could, consistent with the Fourteenth Amenmdent, make it a crime to "make any false or critical statement concerning the governor or any state legislator"?

Just out of curiosity, did Texas actually try to pass what you just described?

I'm not aware of Texas passing such a law, but there are some incumbent politicians who might like to if they thought they could get away with it. And recall that the Congress passed a similar law (the Sedition Act) less than a decade after the adoption of the First Amendment.

I think that your interpretation of the Fourteenth Amendment's due process clause is entirely legitimate. An interpretation that just imposes procedural (rather than substantive) requirements on states has a lot to be said for it. For one thing, it seems more democratic to allow states to write their substantive laws in the legislature rather than in the courts. One drawback is that once the Court lets the state legislatures know that they will be reviewing only their "procedural" laws and not their "substantive" laws, there will be times when state legislatures will try to fool them by dressing up and disguising some their more questionable procedural rules as substantive rules.

Note also that a Court which adopted your interpretation would not escape criticism from all sides. Since you would have to overrule Roe v. Wade and allow states to outlaw abortion, you might called be a fascist (at the least a sexist) by some in the pro-choice community. And since you would have to affirm the constitutional validity of any anti-gun laws that a state or local government might pass (because the Second Amendment does not directly limit state laws), you'd be hearing critical speeches from the NRA. And, for the same reason, of course, you would not have been able to join Rehnquist, Scalia, Thomas, O'Connor and Kennedy in utilizing "substantive due process" to declare unconstitutional (First Amendment) the New Jersey law which required the Boy Scouts to accept gay scout leaders. Your critics would then hold you ("and others of your ilk") directly and personally responsible for the breakdown and decline in our country's moral values.

That's the kind of thanks you'd get for your interpetation of the due process clause. And you thought that you were doing them a big favor, huh?

The unfortunate truth is that there is no interpretation that will be successful in avoiding public criticism. No matter how the Court chooses to interpret the due process clause, it will be criticized for "making the law rather than just applying the law like it's supposed to do."

No matter how the Court chooses to interpret the due process clause, it will be criticized for "making the law rather than just applying the law like it's supposed to do."

I suppose there will always be some malcontents who will say that of every court action, no matter how reasonable, but realistically, there would be much less justification for it than there is now. If you take an honest look at federal court decisions that rely on that one clause in the Constitution, there is virtually no consistency to them. And combined with the equal-protection clause, they can rule almost literally any way their personal preferences take them - even when there is no offending law to begin with, such as the order "desegregating" Boston's public schools, or that real doosie in St. Louis where the federal judge ordered taxes raised on surrounding communities to pay for supposedly disadvantaged inner-city public schools.

And I don't entirely blame the judges; the culture creates the problem, too. Pick just about any high-court ruling on any subject, and observe the criticism or praise that comes from pundits: Virtually nowhere do you see the decision evaluated on the basis of whether or not the writer thinks it's a valid reading of the law; it is only evaluated on the basis of whether or not the writer thinks the ruling would make good policy, so they're outright encouraging judges to act as priestly lawgivers. This is true even of conservatives. Just recently someone here on FR pinged me to a petition to get the supreme court to overturn Roe vs. Wade, which I refused to sign - not because I agree with the ruling (I very much don't, in case you hadn't guessed), but because the petition didn't mention a single word about the Constitution anywhere. All it talked about was how evil abortion is, which I agree it is, but it's not the job of the judges to make that determination. Their only job is to determine what the law says, and leave legislatures and voters to decide what it should say.

And incidentally, what I would regard as a beneficial result of applying the 14th amendment properly (aside from restoring some integrity to the judicial process) would be that states would once again become the formidable checks on federal power that they were intended to be. It's not that I think it would be a good thing for them to start restricting free speech and gun ownership, but that it definitely would be a good thing if they didn't have some busybody second-guessing their laws and policies all the time. The states have tended to allow themselves to become emasculated in recent decades in the shadow of Washington, and it's really long past time for them to get their guts back. I think that even if it does result in some occasional abuses of power by the states, the overall result will be enhanced liberty for the entire country.

You're absolutely right. If the Boy Scout case had been decided based upon your interpretation of the due process clause, most local news programs would have begun their broadcast with something along the lines of "The Supreme Court ruled today that the Boy Scouts of America must accept gay scout leaders." Now, that would literally be correct (at least in the state of New Jersey), but the public would be left with the impression that the Supreme Court just sort of decided on its own that it would be a good idea to have gay scout leaders. And the call buttons at talk radio shows would light up like Christmas trees. Unless someone read down to maybe the tenth paragraph of a major newspaper, he/she might never know that it involved an example of judicial restraint rather than one of judicial activism.

It's not that I think it would be a good thing for them to start restricting free speech and gun ownership, but that it definitely would be a good thing if they didn't have some busybody second-guessing their laws and policies all the time.

I think that for most people who feel that the Fourteenth Amendment has been overused, the real concern is the federalism issue rather than the issue of legislative vs. judicial powers. Let me give you an example. A lot of people were very angry when the Supreme Court began using the equal protection clause to strike down state laws which expressly discriminated between people on the basis of race. They were angry at the Supreme Court for "acting like a mini-legislature." But whenever the Congress uses Section 5 of the amendment to pass legislation on the basis of the equal protection clause, many of the same people who had resented the Supreme Court's involvement (when it was acting alone) then turn around and insist that the Supreme Court become involved by declaring the act of Congress unconstitutional. So it seems to me that these people are less concerned about the Supreme Court getting involved than they are about any branch of the Federal government getting involved. A lot of folks just have a difficult time coming to terms with the fact that, by anyone's interpretation, the Fourteenth Amendment did involve an enlargement of the central government's powers at the expense of the states.

You gentlemen certainly deserve praise and thanks for conducting a thorough, interesting, dogged, and mostly civil debate about the 14th Amendment.

Before I get into what I want to ask, I think we can agree on a few things:

The words in the Constitution and Amendments must be given the meanings they had when ratified. In other words, since meanings change over time in a living language such as English, we cannot arbitrarily apply 1868 meanings to words used in 1789, nor vice versa.
We must give harmonious effect and meaning to every word and phrase used in the Constitution (as amended) standing alone if at all possible. Only if, due to perceived ambiguity, we cannot do that, may we go outside of the document to attempt to give its provisions and language meaning in attempting to judicially construe it.
If our predecessors have judicially construed the document after finding parts of it ambiguous, we must consider their conclusions, but we are not bound by them, and we are entitled to consider the document de novo.

I think we can also agree on certain definitions of English words as meaning the same now as in 1789 and all intervening times:

arms means weapons
weapon means any instrument of offense or defense used in fighting
liberty means the power to act as one thinks fit

I hope we can also agree that the broad principles of the Constitution are meaningless if they are not applicable individually. IOW, it's meaningless for it to say nobody can be deprived of life by a state without due process if a particular individual can be.

Scenario: A legally unimpaired citizen has been threatened with imminent bodily harm or death by known persons or their unknown associates. (Note: the following characterizations of weapons laws may not be accurate, and they're only related as examples.)

Living in Chicago, he is forbidden by law from having a handgun, thus he is not at liberty to secure one for his defense. However, he may have other weapons, such as a brass lamp, bowling trophy, crowbar, etc.
Living in Texas, he must prove to the state that he is competent with a handgun, pay a fee, and wait for a considerable time before he is legally able to have one always available for his defense. However, like living in Chicago, he can have other weapons if he chooses.
Living in California, he has the restrictions of Texas plus he must also obtain the arbitrary permission of a regional law enforcement officer before he is legally able to always have a handgun available for his defense.
Living in Arizona, he can openly carry a handgun, but he cannot conceal it in his car, briefcase, or on his person without first going through steps similar to those applicable in Texas.
Living in Vermont, he can simply do whatever he wants to have a handgun available for his defense.

Obviously, our exemplar citizen should live in Vermont if he thinks having a handgun is important to preserving his life. Otherwise he will have to get along with a concealed brass lamp, brick, or other object that's not expressly classified as a restricted weapon in his locale.

It's interesting that when Vermont and Hawaii appeared close to recognizing same sex unions as "marriages" in the legal sense, other states got all worked up because of a 14th Amendment interpretation that they would be forced to also recognize such unions as marriages.

It's not necessary to navigate the legal minefield of a VT citizen vacationing in CA carrying a concealed pistol to see the manifold Constitutional problems these disparate laws present, and all of that is without ever addressing the Second Amendment.

Among other arguments, I would attack the disparate regional laws infringing the individual right protected by the 2nd Amendment through the 14th Amendment's prohibition against a state's depriving a citizen of the liberty to peaceably act to protect himself because it cannot be argued that a law enforcement agency is either able or obligated to protect him, especially since it cannot act against a potential criminal until a criminal act has been performed, and it has been historically unable to prevent criminal acts with handguns or criminals from having handguns.

The 2nd Amendment does not NEED to be incorporated into the 14th Amendment's ambit through general arguments. Applying specific facts in a case (perhaps U.S. v. Haney) may do the job quite nicely.

What I want to ask is for you to direct your formidable legal and analytical skills to the propositions and arguments suggested here.

Dissenting opinion, without any historical or legal basis. Unshared by any Supreme Court decision in history or by any other Justice of the court.

This may very well be strictly true, but Black's dissent in Bartkus was substantially the same as in Adamson, and that dissent has been cited and shared by other justices.

Justice Black again, this time dissenting in Bartkus:

"The Fourteenth Amendment, this Court said in Palko, does not make all of the specific guarantees of the Bill of Rights applicable to the States. But, the Court noted, some of "the privileges and immunities" of the Bill of Rights, "have been taken over . . . and brought within the Fourteenth Amendment by a process of absorption." 302 U.S., at 326 . The Court indicated that incorporated in due process were those "principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." 302 U.S., at 325 . 2 It then held that a statute allowing a State to appeal in a criminal case did not violate such fundamental principles. But it expressly left open the question of whether "the state [could be] permitted after a trial free from error to try the accused over again." 302 U.S., at 328 . That question is substantially before us today."

Bartkus itself was hardly the end of the debate - a mere ten short years after Bartkus, the Court explicitly stated that the double-jeopardy provision of the Fifth Amendment applied to the states via the Fourteenth Amendment, and Black's dissent in Bartkus was specifically cited in that decision. See Benton v Maryland, 395 U.S. 784 (1969), especially footnote 13.

You gentlemen certainly deserve praise and thanks for conducting a thorough, interesting, dogged, and mostly civil debate about the 14th Amendment.

OH MY GOD, WE'RE BEING WATCHED! GET HIM!!! Oh, wait, this is a public forum.

Seriously, I appreciate your kind words. So to start with, I want to point out that that issue over same-sex marriages had to do with Article IV of the original Constitution, not the 14th amendment. This is what Section 1 says: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." In other words, if two people get married in Vermont, California would have to accept their VT certificate as valid. But it does not explicitly say that California has to treat them as married persons, if the marriage was conducted in a manner contrary to California law. It just means that the actual facts contained on a person's certificate, or license, or whatever, must be accepted as prima facie evidence. It's then up to the state law to determine if those facts constitute acceptable criteria for being able to exercise some privilege. Hence, if some state allows polygamy, or incestuous marriages, other states wouldn't then be obliged to recognize the "marriages" that result. The catch, however, is in the second sentence of Section 1: "And the Congress may by general Laws prescibe the Manner in which such Acts, Records and Proceedings may be proved, and the Effect thereof." So Congress could require (even if the Constitution doesn't explicitly) that each state treat every married couple from every other state as being legitimately married, regardless of what its laws say on the matter. But Congress has to take that initiative. It would be the same with regard to any other type of licensing. I would guess that the only way for a state to resist that kind of pressure would be to eliminate licenses for a particular type of activity altogether, and make it completely illegal. That way, Congress would then be unable to force Georgia to accept prostitution licenses from Nevada.

By the way, I was just making this whole thing up as I was typing (though I have given it some thought in the past), so I have no idea how valid it is. Maybe Ned could clear things up further.

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