Constitutional Incorporation

[bhsup]

I don't get it.

I need someone to explain to me why the Bill Of Rights have/had to be 'incorporated' to make them apply to the States as well as the Federal government. There is nothing in the Constitution that says "these amendments shall not apply to the States but only to the Federalies."

The only two that I can see maybe being able to have claim of only being applicable to the Federal government and not the States are the 1st and the 7th, and that's because of the wording as follows...

• 1st... "Congress shall make no law..." where it actually specifies Congress (as in the Federal House and Senate) instead of being more generic.
• 7th... "Court of the United States" specifying the Federal court system, possibly...

Now, some of you may be saying to yourselves, "But VRWCAgent, you're a rabid States' Righter, yo. What's up with you trying to nerf the States by forcing them to abide by the Bill of Rights??"


Well, yes I am a rabid States' Righter (that does not translate to racist slave monger contrary to what many of you think), that is true. I fervently believe that powers not specifically delegated to the Federal government are relegated to the sovereign domain of the States. However, the Bill of Rights don't really list powers granted to the government at all but rather restrictions on power, so that doesn't really apply as a States' Rights issue.


Btw, I did at least go as far as reading Wiki on incorporation, but it doesn't really at all go into WHY incorporation exists in the first place as opposed to the amendments just automatically applying to all States. And...why just the Bill of Rights and not all amendments if incorporation is legit??


Any help in me understanding this is greatly appreciated. Thanks much.

 

[shortguy]

The reason later amendments aren't considered incorporated is that 1) they apply only to the federal government by nature; or 2) they specifically mention states. So for instance, the 25th Amendment is about presidential election, so of course it doesn't bear on the states. And later amendments tend to mention states if necessary, e.g. the 19th Amendment:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

[bolding mine]

Your main question kinda follows from this. The amendments didn't say they applied to the states, and they were thus interpreted as not applying to the states. That's just the way the framers and their successors thought about the matter.

 

[shortguy]

Also V, the case Barron v. Baltimore (1833) addresses this issue directly. Here's an excerpt from the unanimous opinion in the case, which was written by Chief Justice Marshall. This should shed some light on why American jurists pre-incorporation thought the Bill of Rights didn't apply to the states.

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

 

[bhsup]

Okay Shortguy, just read that in wiki about that case, most importantly the important quotes section. But...and this is the crux of the matter to me... The amendments themselves do not say they do not apply to the States so I fail to see why it should be assumed that they do not. I get that the Supreme Court said so and so there we go as far as things go today, but based on the text of the Constitution I see no reason why that is the case.

 

[Crezth]

Okay Shortguy, just read that in wiki about that case, most importantly the important quotes section. But...and this is the crux of the matter to me... The amendments themselves do not say they do not apply to the States so I fail to see why it should be assumed that they do not. I get that the Supreme Court said so and so there we go as far as things go today, but based on the text of the Constitution I see no reason why that is the case.

Well, if the Supreme Court says it, it's Constitutional. So, there you have it.

 

[bhsup]

You don't know me very well, do you?

 

[Cutlass]

The thing is, that despite having a formal Constitution and statutory law, most of American law has its foundation in common law. And common law is evolutionary, not revolutionary. And so it took time for many of these concepts to evolve to the point where they were commonly accepted. And the courts have rarely pushed the public forward with so called "judicial activism" (most of which is putting the letter and the spirit of the Constitution forward over common usage).

The Constitution is not something we are pulling away from as some claim. Rather it is an ideal that we are trying to grow towards. And that happens in fits and starts. Incorporation is one form of fits and starts.

 

[uppi]

Okay Shortguy, just read that in wiki about that case, most importantly the important quotes section. But...and this is the crux of the matter to me... The amendments themselves do not say they do not apply to the States so I fail to see why it should be assumed that they do not. I get that the Supreme Court said so and so there we go as far as things go today, but based on the text of the Constitution I see no reason why that is the case.

The text of the Constitution doesn't say that they do apply to the states, either. And the Constitution in general regulates the action federal government of the United States. So I don't think that the argument that it does not concern itself with matters of the states is far fetched. If you read every amendment with an implicit "by the federal government" behind it, you could make the argument that it is just the federal government that is not allowed to infringe on the rights of the people and the states are allowed to trample all over them.

The problem is that the rights in the US Constitutions are not formulated as positive rights (e.g. Everybody has the right to articulate and distribute their opinion) but as prohibitions on the government (Congress shall make no law [...] abridging the freedom of speech). In the former case you can say the Constitution grants you the right to free speech and no state can take it away without breaking the Constitution, but in the second case the state can say, Congress may be prohibited, but the state can pass such a law.

Incidentally I think that the issue of states' rights is similar: The US Constitution fails to grant explicit rights to the states. So if the federal government interprets its given powers in the broadest sense possible, there is no part where the states can point to and say that the right the federal government wants to infringe under the mantle of interstate commerce is explicitly reserved to the states.

 

[bhsup]

The text of the Constitution doesn't say that they do apply to the states, either. And the Constitution in general regulates the action federal government of the United States. So I don't think that the argument that it does not concern itself with matters of the states is far fetched. If you read every amendment with an implicit "by the federal government" behind it, you could make the argument that it is just the federal government that is not allowed to infringe on the rights of the people and the states are allowed to trample all over them.

The problem is that the rights in the US Constitutions are not formulated as positive rights (e.g. Everybody has the right to articulate and distribute their opinion) but as prohibitions on the government (Congress shall make no law [...] abridging the freedom of speech). In the former case you can say the Constitution grants you the right to free speech and no state can take it away without breaking the Constitution, but in the second case the state can say, Congress may be prohibited, but the state can pass such a law.

Incidentally I think that the issue of states' rights is similar: The US Constitution fails to grant explicit rights to the states. So if the federal government interprets its given powers in the broadest sense possible, there is no part where the states can point to and say that the right the federal government wants to infringe under the mantle of interstate commerce is explicitly reserved to the states.

That was actually one argument against the Bill of Rights, was that codifying specific rights my be interpreted as weakening others not specifically mentioned.

Also, the 10th amendment (to address your last point) specifically reserves all powers not specifically delegated to the federal government to the States. A lot of people of blown that one off since the civil war, but it's in there regardless.

 

[uppi]

That was actually one argument against the Bill of Rights, was that codifying specific rights my be interpreted as weakening others not specifically mentioned.

That is assuming that a right that is not codified is dependable. Which is only true as long as you can find judges who think you have the right. I think that a right that is not codified will be ignored sooner or later, so the bes approach would be do codify as many rights as you can get general consensus for.

Also, the 10th amendment (to address your last point) specifically reserves all powers not specifically delegated to the federal government to the States. A lot of people of blown that one off since the civil war, but it's in there regardless.

Yes, but what those powers are is not described at all. The powers that are delegated to the federal government are so broad that potentially everything can be justified with it. After all, the spending of taxes should in principle always contribute to the general welfare of the people. So the federal government could claim that the powers reserved to the states are just that they can make whiny complaints about state rights and not be in explicit violation of the Constitution's text. The intention of that amendment is much broader than that, but once you have to argue about intention and not actual text you get into murky territory and have to rely on the judges reading the same things into the text that you are.

 

[illram]

VRWC: You should read the Wiki entry on the 14th amendment. An entire half semester is spent in law school learning about incorporation, but to sum it up in 1 minute: For about 200 years, the Constitution and the Bill of Rights was understood as limited to defining the powers and limitations of the Federal Government only. This was based on a strict reading of its text and of prevailing ideas behind the Federal/State relationship of our Government before the Civil War. You would have loved it back then old boy. Barron, cited by Shortguy, sums up the line of thinking of the time. Note that the 1st amendment begins with "Congress shall make no law..."

This all changed with the 14th amendment, which included the following text:

"Section 1. 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. "

This clause led to a long line of historic cases, up to the modern day and now well established in American Jurisprudence, "incorporating" or applying "fundamental liberties" (i.e., basically the entire Bill of Rights) to the States. This is where Roe v Wade and Lawrence v Texas comes from. The reason some and not others are applied is simply a matter of circumstance. Basically it is either because the issue did not come before the Court in the proper manner (such as the 2nd amendment until 2010) and/or whatever right is at issue is not considered "fundamental." (E.g. the right to indictment by a grand jury.)

Some cases have held that the 5th amendment also operates in a similar manner to the 14th in incorporating certain due process protections but that is beyond the scope of my overly simplistic post. I hope that explains things!