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Essay: The Fourteenth Amendment and Incorporation

The Bill of Rights originally applied only to the national government. Given the concerns about centralized power shared by Federalist and Anti-Federalists alike, this is no surprise. Federalist arguments for strong national power always presupposed strong power in states as well. Tellingly, all the states who proposed any amendments at all suggested the principle of the Tenth Amendment: if the Constitution does not give the national government a certain power, that power is kept by the states and the people. The idea that a distant national government knew better than the people of each individual state what kinds of laws that state should have would have been puzzling to most people during the Founding era and for the first century of the republic.

Not long after the amendment was ratified, its Due Process Clause became the subject of scrutiny. What did it mean for a state to deprive a citizen of life, liberty, or property without due process of law? What was “liberty”? What was “due process”?

Supreme court of the us

The Supreme Court building of the United States.

The Supreme Court would begin to tackle these questions. In the case of U.S. v. Cruikshank (1876), the Court held that the First Amendment right to freely assemble and the Second Amendment right to keep and bear arms did not apply to state governments. States could limit these rights without violating the Fourteenth Amendment.

Over the next seventy-five years, the Court’s use of the Fourteenth Amendment increased. It used the Due Process clause to strike down many state laws and to incorporate parts of the Bill of Rights.

In the process of using its power to bring the states under the provisions of the Bill of Rights, several Supreme Court justices wondered how far incorporation should go. In 1937, Justice Benjamin Cardozo wrote that the Court was “selectively incorporating” rights it considered “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” These fundamental rights, Cardozo added, included only those “implicit in the concept of ordered liberty.”

Justice benjamin cardozo

Justice Benjamin Cardozo

Cardozo’s words, unfortunately, give little guidance for determining what rights are fundamental. The most famous debate on incorporation was waged between Justices Hugo Black and Felix Frankfurter. Dissenting in Adamson v. California (1947), Black supported “total incorporation,” the idea that every provision of the Bill of Rights applies to the states. The due process clause of the Fourteenth Amendment, Black argued, protects the life, liberty and property of Americans, and the most complete expression of American liberty is found in the Bill of Rights.

Black argued: “The words ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States’ seem an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the states.”

But of course, the Fourteenth Amendment does not say that the Bill of Rights would now apply to the states. Its authors could have written that it would, but they did not. And so the debate raged. Justice Frankfurter argued that the Fourteenth Amendment does not require incorporation of any provision of the Bill of Rights. Indeed, the idea that the Due Process Clause meant the Bill of Rights would apply to the states was expressly rejected by the Court early on. Rather, it requires states to honor principles of “fundamental fairness.” While these principles might overlap with the Bill of Rights, they are not inevitably connected. In Rochin v. California (1952), Frankfurter argued that the Court should indeed apply the Bill of Rights when actions taken by a state “shock the conscience.”

Black retorted that Frankfurter’s flexible philosophy “must inevitably imperil all the individual liberty safeguards” found in the Bill of Rights.

Incorporation increased the Supreme Court’s power to define rights, and changed the meaning of the Bill of Rights from a series of limits on government power to a set of rights belonging to the individual and guaranteed by the federal government. With incorporation, the Supreme Court became busier and more influential.

The effect of the Fourteenth Amendment may or may not have been anticipated by its authors or the generation that ratified it. Some historians say that the post-Civil War amendments so fundamentally altered the Constitution that the time period was, in effect, a revolution and a new Founding. Looking back over the American history you have studied so far, and your knowledge of constitutional principles as the Founders understood them, what do you think?

The individual liberty safeguards in the Bill of Rights go beyond a list of rights. Individuals have natural rights that are not listed in the Bill of Rights. The Ninth and Tenth Amendments make clear that rights and powers not listed remain with the people. One consequence of incorporation has been for the Court to seemingly place more value on those individual rights which are enumerated in the Bill of Rights than those natural rights which are not listed. The Founders had worried that future generations might think that listing some rights would cause people to think that the others were less important. This worry was one reason the Federalists had opposed adding a Bill of Rights to the Constitution. The Ninth Amendment was among the amendments added in 1791 for that reason.

As the Supreme Court’s responsibilities increased along with the legal protections afforded American citizens, the federal government has become larger, especially since 1900. The federal government has expanded in regard to business regulation in the early 1900s, New Deal programs (1930s), military strength during World War II, anti-poverty Great Society programs (1960s), environmental regulation and education (1970s), the war on drugs (1980s), health entitlements (1990s), education (2000s), and a mandate for individuals to buy health insurance in the 2010s.

Justice felix frankfurter

Justice Felix Frankfurter

During the same period, state governments have also expanded. All this growth in local, state, and federal activities has extended the Supreme Court’s reach as the number of possible conflicts involving the law has risen.

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