Incorporation Doctrine

Author:Leonard W. Levy

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According to the incorporation doctrine the FOURTEENTH AMENDMENT incorporates or absorbs the BILL OF RIGHTS, making its guarantees applicable to the states. Whether the Bill of Rights applied to the states, restricting their powers as it did those of the national government, was a question that arose in connection with the framing and ratification of the Fourteenth Amendment. Before 1868 nothing in the Constitution of the United States prevented a state from imprisoning religious heretics or political dissenters, or from abolishing TRIAL BY JURY, or from torturing suspects to extort confessions of guilt. The Bill of Rights limited only the United States, not the states. JAMES MADISON, who framed the amendments that became the Bill of Rights, had included one providing that "no State shall violate the equal rights of conscience, of the FREEDOM OF THE PRESS, or the trial by jury in criminal cases." The Senate defeated that proposal. History, therefore, was on the side of the Supreme Court when it unanimously decided in BARRON V. BALTIMORE (1833) that "the fifth amendment must be understood as restraining the power of the general government, not as applicable to the States," and said that the other amendments composing the Bill of Rights were equally inapplicable to the States.

Thus, a double standard existed in the nation. The Bill of Rights commanded the national government to refrain from enacting certain laws and to respect certain procedures, but it left the states free to do as they wished in relation to the same matters. State constitutions and COMMON

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LAW practices, rather than the Constitution of the United States, were the sources of restraints on the states with respect to the subjects of the Bill of Rights.

Whether the Fourteenth Amendment was intended to alter this situation is a matter on which the historical record is complex, confusing, and probably inconclusive. Even if history spoke with a loud, clear, and decisive voice, however, it ought not necessarily control judgment on the question whether the Supreme Court should interpret the amendment as incorporating the Bill of Rights. Whatever the framers of the Fourteenth intended, they did not possess ultimate wisdom as to the meaning of their words for subsequent generations. Moreover, the PRIVILEGES AND IMMUNITIES, due process, and EQUAL PROTECTION clauses of section 1 of the amendment are written in language that blocks fixed meanings. Its text must be read as revelations of general purposes that were to be achieved or as expressions of imperishable principles that are comprehensive in character. The principles and purposes, not their framers' original technical understanding, are what was intended to endure. We cannot avoid the influence of history but are not constitutionally obligated to obey history which is merely a guide. The task of CONSTITUTIONAL INTERPRETATION is one of statecraft: to read the text in the light of changing needs in accordance with the noblest ideals of a democratic society.

The Court has, in fact, proved to be adept at reading into the Constitution the policy values that meet its approval, and its freedom to do so is virtually legislative in scope. Regrettably in its first Fourteenth Amendment decision, in the SLAUGHTERHOUSE CASES (1873), the Court unnecessarily emasculated the privileges and immunities clause by ruling that it protected only the privileges and immunities of national CITIZENSHIP but not the privileges and immunities of state citizenship, which included "nearly every CIVIL RIGHT for the establishment and protection of which organized government is instituted." Among the rights deriving from state, not national, citizenship were those referred to by the Bill of Rights as well as other "fundamental" rights. Justice STEPHEN J. FIELD, dissenting, rightly said that the majority's interpretation had rendered the clause "a vain and idle enactment, which accomplished nothing.?" The privileges and immunities clause was central to the incorporation issue because to the extent that any of the framers of the amendment intended incorporation, they relied principally on that clause. Notwithstanding the amendment, Barron v. Baltimore remained controlling law. The Court simply...

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