The Incorporation Doctrine and the Bill of Rights

In a previous Constitution 101 post, I established that the Bill of Rights was not originally intended to apply to the states.

But lawyers and other supporters of federal courts policing rights at the state and local level will point to the 14th Amendment. They argue that it “incorporates” the Bill of Rights and applies it to state governments.

It wasn’t until 1925, some 57 years after ratification, that the Supreme Court mystically found the concept of incorporation in the 14th Amendment. In the 1873 Slaughterhouse case, the Court rejected the idea that the privileges and immunities clause in the 14th Amendment applied the Bill of Rights to the states.

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

When we carefully examine the congressional debates and the arguments during ratification of the 14th, it becomes pretty clear the Court was correct in its opinion.

The 14th Amendment was clearly intended to constitutionalize the Civil Rights Act of 1866. This was asserted over and over again both in the congressional debates and as supporters presented the amendment to the states.

Sen. Lyman Trumbull (Ill.) guided the 14th through the Senate. In a speech in Chicago as the amendment was being debated, he “clearly and unhesitatingly declared Sec. 1 of the Amendment to ‘be a reiteration of the rights as set forth in the Civil Rights Bill.’” Martin Thayer (R-Pa.) declared, “It is but incorporating in the Constitution the principle of the civil rights bill which

You can read the rest of this article at: