The Incorporation Doctrine is the process of federal courts to apply various provisions of the federal Bill of Rights against the states.
It is commonly believed that this practice has a sound constitutional basis and protects American liberty. I dispute both claims.
Its adherents point to the text of Section 1 of the Fourteenth Amendment as a validation.
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.
On the surface, it may sound viable enough. But upon further historical examination, we find that its plain meaning in proper historical context holds no justification for its modern application. This includes forcing all fifty states to legalize abortion, recognize same-sex marriage, remove religious symbols, forbid school prayer, and subsidize illegal immigration - by a doctrine that gives way to outcome-based jurisprudence at the expense of constitutionally limited government. More than likely, the forced busing fiasco would have been averted without it.
The original intent of the Fourteenth Amendment sought to constitutionalize the Civil Rights Act of 1866 and overturn the outrageous Dred Scott decision. These efforts would abolish black codes and vagrancy laws. They would also allow blacks to testify in court, to sue, and to enter contracts.
From the nation's founding, the Constitution was understood to embody the Compact, creating a federal government that would only exercise the powers expressly delegated to it by the states that ratified the document. Those powers were almost exclusively based on the facilitation of commerce and the provision of a common defense. These powers are articulated in detail in Article 1, Section 8, with few express prohibitions for the states in Section 10.
The Tenth Amendment - which Thomas Jefferson considered the cornerstone of the Constitution - made these implications explicit. It is clear that you cannot hope to limit the federal government without this bulwark in full effect. It is also clear that the Fourteenth Amendment was not written to nullify its protections.
John Bingham, the primary author of the Fourteenth Amendment, reassured the Republic as such:
"The care of the property, liberty and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country."
The Bill of Rights was understood to mean one thing: the federal government was guaranteed not to intervene outside of its expressly delegated authority. Many of the grievances held against the Crown in the Declaration found its way into the first ten amendments, persuading the states to ratify under this premise.
The First Amendment is a clear illustration.
"Certainly no power over religious discipline has been delegated to the General Government... It must thus rest with the states as far as it can be in any human authority," as Thomas Jefferson once wrote.
Under Incorporation, however, "Congress shall make no law..." essentially means the Supreme Court can, as though it were a Super-Senate, established to abolish any state-level action it disapproves of. Legal scholar Raoul Berger referred to this practice as "government by judiciary."
And with such legislation from the bench, federal limits are drawn on speech, firearms, religious expression, rights to assemble, and other areas it was expressly denied any jurisdiction to intervene. These limits are redefined over time, with no clear perimeters set by the Court itself. Laws against libel, defamation, "obscene" and "indecent" expression, and limits on "hate speech" have crept into the federal governing edifice. Interpretation of the Bipartisan Campaign Reform Act even proposed to consider political statements as an equivalent of campaign donations under the threat of large fines.
As the Fourteenth Amendment was adopted in 1868, Congressman James G. Blaine spent much of the following decade hoping to pass the Blaine Amendment, which would extend the First Amendment's restrictions to the states. Obviously, it failed, and would not have even been necessary if Incorporation had been recognized at the time.
In fact, the Incorporation Doctrine was not conceived until 1925 - 72 years later. Thus, while the Fourteenth Amendment was ratified in the Reconstruction Era, it was, as Jefferson would have put it, "twist[ed] and shape[d] into any form they please[d]” in the Progressive Era. This is the tragic result of trusting the Supreme Court to define its own powers, instead of merely interpreting laws in their proper historical context.
Supreme Court Justice Felix Frankfurter declared:
"We have held from the beginning and uniformly that the due process clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first ten amendments as such... The relevant historical materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States, did not contemplate that the Fourteenth Amendment was a shorthand incorporation of the first eight amendments, making them applicable as explicit restrictions upon the states."
Not only is the Incorporation Doctrine a heresy against constitutionally limited government, there is no question that it endangers our liberties. The uncertainty lies in what the federal courts will get their hands on next. Will they nationalize bathroom policy? Force women to register for Selective Service? Enforce jurisdiction for "fat rights?" Who knows, but the groundwork is already there.
NOTE: This piece was initially written in 2016, intended for a debate that never materialized. Some hyperlinks and quotations have since been added for the benefit of the reader.
External Resources:
Government by Judiciary: The Transformation of the Fourteenth Amendment by Raoul Berger
The Fourteenth Amendment - Lecture 4 of 10 from Thomas Woods' The Truth About American History: An Austro-Jeffersonian Perspective
The Tom Woods Show: What Did the Fourteenth Amendment Really Mean? (with Kevin Gutzman)
The Brion McClanahan Show: Incorporation? What Incorporation?
The 10th Amendment is the Foundation by Ben Lewis
Constitution 101: The Incorporation Doctrine and the Bill of Rights by Mike Maharray
The Free Library: The 14th Amendment: its sordid history and effects