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.

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.

Exactly what has happened, as we can see, even on this thread. 'Perceived' ambiguities rule the debate. We must, like Black, go back to history, to the writers ratification debates to counter these erronious perceptions.

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.

Indeed, -- the 14ths lanquage is NOT ambiguous in its total context. This is a manufactured dispute, made by statists who have various single issue agendas.

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.

Yep, -- 'states rights' advocates lose sight of the fact that individual rights come first, and states must use their powers to defend them, not to control them.

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.

-- Obviously, we should live in a republic that recognizes an overall RKBA's, as per the 2nd. --- One in which the states & federal courts/governments act as checks & balances on ANY infringment of this basic right.

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.

-- 'Incorporation' is now needed only because the issue has been so thoroughly pettifogged over the years by so many diverse groups for so many self-serving reasons.
Even then, if incorporated, -- it will not be accepted.

-- The RKBA, like roe v wade, is an emotional issue to those who are driven to feel that they MUST exert control over their peers. These types/groups of people do not understand the very basis of a constitutional republic.

This basis is for maximum individual freedom, and minimum state control. - Our control types seem to have it backwards at times.

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.

I agree with the statement that "[t]he words in the Constitution and Amendments must be given the same meaning they had when ratified" so long as it is recognized that some of the words and phrases in the Constitution delegate to future interpreters the duty to interpret and apply them in the context of the facts, conditions and standards prevailing at the time of the future interpretation. Take for example a statute adopted in 1700 that requires all parents to provide their children with a "suitable education" and "appropriate health care." While the words might have the same literal meaning in 2000 as they did in 1700, changing standards and circumstances might require that parents behave differently in 2000 than than they did in 1700 in order to comply with the statute. I interpret the term "due process of law" in the Fourteenth Amendment in the same fashion. While the literal meaning of the term may not have changed since the 1860's, its practical meaning has changed as conditions and standards have changed.

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.

If the Fourteenth Amendment's due process clause is interpreted to impose a limitation on the power of states in the area of their substantive laws (as opposed to their procedural laws), then the due process clause might be interpreted to require states to comply with the Second Amendment. The extent to which the application of the Second Amendment would limit the power of states to adopt anti-gun laws is another matter.

The Supreme Court's experiences with "substantive due process" have often been very controversial (e.g., the Lochner era, Roe v. Wade) and there are many people who believe that "substantive due process" is a misuse and an impermissible construction of the due process clause. However, it seems clear that every current member of the Supreme Court believes that the due process clause includes within its meaning a limitation on the states' substantive laws and practices. (See, e.g., Boy Scouts of America v. Dale (2000).)

Your view at post #27 is proved wrong by the words of a framer of the 14th, [from the 'original intent' cite at #63:

Debate over the anti-KKK bill naturally required exposition of Section 1 of the Fourteenth Amendment, and none was better qualified to explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States ....

These eight articles ... never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" are an express prohibition upon every State of the Union .... Id. at pt. 2, Appendix 84 (Mar. 31, 1871).

This is a most explicit statement of the incorporation thesis by the architect of the Fourteenth Amendment. Although he based the incorporation on the Privileges and Immunities Clause and not the Due Process Clause as have subsequent courts of selective incorporation, Rep. Bingham could hardly have anticipated the judicial metaphysics of the twentieth century in this respect. In any case, whether based on the Due Process Clause or on the Privileges and Immunities Clause, the legislative history supports the view that the incorporation of Amendments I-VIII was clear and unmistakable in the minds of the legislators attempting to effectuate the provision of the Fourteenth Amendment.

Rep. Henry L. Dawes (R. Mass.) also asserted the incorporation thesis when he argued:

The rights, privileges and immunities of the American citizen, secured to him under the Constitution of the United States, are the subject-matter of this bill... In addition to the original rights secured to him in the first article of amendments he had secured the free exercise of his religious belief, and freedom of speech and of the press. Then again he has secured to him the right to keep and bear arms in his defense.... [Dawes then summarizes the remainder of the first eight amendments.]

And still later, sir, after the bloody sacrifice of our four years' war, we gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens.

[I]t is to protect and secure to him in these rights, privileges, and immunities this bill is before the House. [emphasis added] Cong Globe, 42nd Cong., 1st. Sess., pt. 1, 475-476 (April 5, 1871).(p.107

Agreed. Good example.

The Supreme Court's experiences with "substantive due process" have often been very controversial (e.g., the Lochner era, Roe v. Wade) and there are many people who believe that "substantive due process" is a misuse and an impermissible construction of the due process clause. However, it seems clear that every current member of the Supreme Court believes that the due process clause includes within its meaning a limitation on the states' substantive laws and practices.

Well said, and I agree with the bolded supposition whether it is true or not.

It may be well to note that when the SCOTUS overturned the repugnant state laws substantively disenfranchising black voters in the early '60s, it left it to those states to enact their own procedural laws to reapportion their representation under what came to be known as the "one man, one vote" doctrine. A similar attack and resolution was when the SCOTUS overturned states' capital punishment laws several years later. Their legislatures were left on their own to come up with new procedures that ensured that application of capital punishment was not repugnant to the Constitution.

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.

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."

Enforcing the provisions of the 14th hardly expands overall congressional power over states. Only 'appropriate' legislation is constitutional.

- Again, - most anti-14th rhetoric is hyped up propoganda, imo. -- States themselves can fight inappropriate congressional legislation in the USSC. - That they rarely do tells the tale.

The 14th is not a 'problem'. - Our problem is a political system out of control.

62 posted by tpaine

The Supreme Court has approved of Congressional remedies enacted pursuant to Section 5 that the Court had previously refused to employ on its own pursuant to Section 1. The powers specifically granted to Congress in these Civil War amendments (13-15) have been very effective.

- So what? - ALL these developments have been recent 'new deal' or even 'great society' events. -- The historical facts remain, - the 14th was not intended as a federal power grab. -- And it need not be allowed to be one.

- If we return to honoring the original intent of the constitution, the 14th will be rightly seen as a correction in a perceived flaw, a remedy for Barron v Baltimore, and a triumph for individual liberty.

While the words "due process" appear in both places and absent specific internal language that they were actually copied from the first place, they first have to be given their meanings according to that understood at the time they were used. To assume they were "copied" means that judicial construction is already being applied before a determination of ambiguity, which enables construction to be used. A Catch 22? No. Construction cannot be applied until after ambiguity is found de novo.

Well, here's where I'd have to disagree. For one thing, there's no reason why the 1868 understanding of "due process" should be any different from the 1789 understanding in the first place. Secondly, any law should ideally require no inquiry into original intent, because the intent should be stated in the law, or at least, the intent should be discernible by examining the text of the law. Of course, I know that it's unrealistic to expect that it will always work out that way, but that should always be the goal in writing down any law - indeed, in writing down just about anything at all, but law especially. No drafter should ever plan to have people wonder about his intent or understanding. To me, that completely defeats the purpose of having written law in the first place. And so the Constitution should read as though it is one document, from start to finish. Which mean that words and phrases that appear in one part of the document should have the same meaning in another (unless the context is clearly different). Which means that any reasonable person picking it up and looking through it should have a reasonably good chance of being able understand what's being said, without constantly having to go, "OK, when was this part written? When was it ratified? What was going on at the time? etc." Like I said, there are times when he may have to do just that, but that should be the exception, rather than the rule.

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.

--------------------------

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.
23 posted by tpaine

The only thing in that paragraph that could even come close to referring to the Bill of Rights is the privileges-and-immunities clause. But "privileges and immunities" are not rights. And it's very easy to show that it did not refer to the BOR, because right after it it says, "nor shall any State deprive any person of life, liberty, or property, without due process of law," which was lifted right out of the BOR. So if the P&I clause was intended to comprise the BOR, why was there any need to add on the due-process clause? It would have already been understood. #27

Your view at post #27 is proved wrong by the words of a framer of the 14th, [from the 'original intent' cite at #63:

Well, judging from the wording of the text that I pointed out, it looks like somebody did not intend for the P&I clause to refer to the BOR. Can you explain to us why it is that the due-process clause was even mentioned if the privileges-and-immunities clause already covered it by incorporating the BOR?

You persist in making up some strange distinction between these clauses, as if this perception, -- that apparently only you can see, -- is some sort of proof of, -- what? - An intent to deceive by the framers of the 14th?

Frankly, I don't 'get' your nitpicking point.

The 14th was meant to prevent states from violating individual rights, whether enumerated or unenumerated by the BOR's. - Get it? -- There was no 'somebody' - intending to do any more than that, -- as proved by the historical record.

Frankly, I don't 'get' your nitpicking point.

97 posted by tpaine

Then I'll break it down for you further. 1. According to your theory, the privileges-and-immunities clause refers to the Bill of Rights.

-- Nope. The whole of Section 1 applies to the BOR's, as the historical record proves. It is not just 'my' theory.

2. The Bill of Rights includes the prohibition against denying anyone life, liberty, or property without due process of law.

And 'Barron v Baltimore' ruled that the BOR's did NOT apply to the states. The 14th corrects that mistake.

3. Putting 1 and 2 together, the P&I clause would include that same prohibition against denying life, liberty, or property without due process of law, according to your theory.

Your 'theory' of 'my theory' is an incorrect view of the facts, as shown above.

4. Keeping 3 in mind, it would then make absolutely no sense to follow up on that clause by saying, "nor shall any state deny to any person life, liberty or property without due process of law," as the 14th amendment does. Get it now?

Obviously, you don't. -- Your misconceptions about the history of the 14th, and its purpose, - [you seem to be convinced that 'someone' had an evil intent in its framing] -- are leading you to making nonsensical nitpicking conclusions.

I do have to ask: What conditions are you referring to? What has actually changed that would give rise to a different understanding of the meaning of "due process"?

As I said, I am not suggesting that the literal meaning of the term "due process of law" has changed. What I am suggesting is that conditions and standards have changed such that we must conduct ourselves differently than we did in the 1860's if we wish to avoid depriving individuals of life, liberty or property without "due process of law." Just as our conception of what constitutes a "suitable education" or "appropriate healh care" has changed since the 1860's, so has our conception of what constitutes "due process of law."

Take for example the right to counsel in criminal cases. In the 1860's, it was not felt that a criminal defendant's right to counsel was an essential element to what that generation viewed as a fundamentally fair criminal justice system. However, on behalf of those folks, it should be understood that many of the procedures and most of the evidence in those days (typically the testimony of lay witnesses) was not nearly as complex as they often are today. They just didn't have scientific evidence such fingerprints, DNA, recordings, etc. So, for one thing, the entire system has simply become vastly more complex.

However, beyond this increasing complexity, I think an additional factor concerns an evolutionary change in our basic conception of what should be expected of a state which desires to deprive an individual of his life or freedom. You can see the Supreme Court's opinion in Powell v. State of Alabama (1932) 287 U.S. 45 to get an idea of what a majority of the Alabama Supreme Court then thought to be a constitutionally adequate system for depriving persons of their lives. I seriously doubt that any current member of the Alabama Supreme Court would consider the system described in Powell as an fair or adequate method for a state to determine who shall live and who shall die. More than thirty years later, the Supreme Court in Gideon v. Wainwright (1963) 372 U.S. 335, held that the right to counsel is essential to a fair trial in every significant criminal case: "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."

One aspect of all this doesn't change. Thirty years from now, another generation of Americans will have to determine precisely what "due process of law" requires in their time.

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