The Incorporation of the Bill of Rights

By Douglas V. Gibbs

The Bill of Rights were originally intended to be applied only to the federal government. Even the most ardent opponent to the originalist view of the Constitution concedes to the reality that it is commonly understood that originally the Bill of Rights was not intended to apply to the states whatsoever. The text of the U.S. Constitution does not necessarily clearly exhibit that the Bill of Rights was only intended to apply to the federal government, but a deep study of the text of the first ten amendments, and the various writings of the Founding Fathers on the topic, reveals without a doubt that the Bill of Rights was indeed originally intended to only apply to the Federal Government.

Though the modern liberal will even admit that the Bill of Rights was originally intended to only apply to the federal government, the rule of inapplicability to the states was abandoned by statists after 1868, when it became argued that the Fourteenth Amendment changed this rule, and served to extend most of the Bill of Rights to the States.

The section of the Fourteenth Amendment that has been interpreted to extend the Bill of Rights to the States comes from the second sentence of Section 1 of the Fourteenth Amendment, which reads:

“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.”

Through a series of court rulings, the Supreme Court has changed the Constitution by applying parts of the Bill of Rights to the States. The process over the time period since the ratification of the Fourteenth Amendment which works to apply the Bill of Rights to the States through court rulings and written opinions is called “The Incorporation of the Bill of Rights.”
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The Incorporation of the Bill of Rights: The process through court rulings based on the interpretation of the 14th Amendment to apply the Bill of Rights to the States.___________________________

The Bill of Rights was originally not meant to be a guarantee of individual freedoms at all, but a limitation of federal authority against our God given rights. In other words, the Bill of Rights was not written for the people, but for the federal government as a means of telling the federal government what it cannot do in regards to our unalienable rights.

Why not apply these amendments to the States as well?

The States already had a Bill of Rights in their own State Constitutions (and those that did not have a constitution yet, did include a Bill of Rights later). The Founding Fathers were confident that the people of the States could control their own state officials, and would be involved in their local governments. The people did not fear their local governments acting in a tyrannical manner similar to the potential of a centralized government system. Their fears were of the new and distant central government.

Originally, parts of the first amendments proposed by James Madison did in fact address the States, seeking to limit the state governments with provisions such as, "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The parts of the Bill of Rights that sought to be applied to the powers of the States, however, were not approved by Congress, and therefore were not a part of the proposed amendments to the States.

The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Prior to the incorporation of the Bill of Rights to the States by the courts as based on their interpretation of the Fourteenth Amendment, the Bill of Rights did not apply to the states.

The argument used, despite original intent, that the Bill of Rights must also apply to the States is based more on philosophy, than historical evidence. One of the philosophical standpoints used is that if the specific rights given in the Bill of Rights are based on the more general rights to life, liberty, and happiness which in turn are considered to be God-given and unalienable, then state governments do not have the authority to infringe on those rights no more than can the Federal government.

The argument, however, simply suggests that the Bill of Rights ought to apply at the state level, not that it originally did.

So, if the Bill of Rights originally only applied to the Federal Government, and over time has changed to be something that was applicable on the state level through court decisions, the reality is that the Constitution itself has never allowed the Bill of Rights to be applied to the States. The change was done by judicial means, meaning that the Constitution has been changed by judicial activism. The problem, however, is that according to the Constitution, the only way to change the Constitution is through an amendment process. Therefore, the incorporation of the Bill of Rights to the States occurred unconstitutionally.

This returns us to the argument that The Fourteenth Amendment is the source and authority of the incorporation of the Bill of Rights to the States. The Supreme Court's first ruling regarding the scope of the Fourteenth Amendment, and if the amendment enables the Bill of Rights to be applied to the States, was rendered in The Slaughterhouse Cases just five years after the ratification of the Fourteenth Amendment in 1868. A five to four vote by the high court interpreted the Privileges and Immunities Clause to be the authority they needed to enforce The Bill of Rights against the States. Subsequent cases also used the Due Process Clause as an authority for incorporation. During the early twentieth century a number of court cases, using the arguments referencing the Fourteenth Amendment, began selectively incorporating some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.

The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.

Congressman John A. Bingham of Ohio was the primary author of the first section of the 14th amendment, and it was his personal intention the Bill of Rights be applied to the States as well. His argument was that it was necessary in order to secure the civil rights of the newly appointed slaves. However, most of the representatives during the five months of debating on the floor of Congress argued against incorporating the Bill of Rights to the States, and so when the amendment was agreed upon for proposal, the majority of those involved intended for the Fourteenth Amendment to not influence how the Bill of Rights was applied. In the beginning, the courts ruled that the Amendment did not extend the Bill of Rights to the States. It was after the realization that Black Codes were emerging in the South that the courts decided for the purpose of protecting the civil rights of the emancipated slaves, they would begin to apply parts of the Bill of Rights to the States.

-- Political Pistachio Conservative News and Commentary