What is the Incorporation Doctrine?
The Incorporation Doctrine applies the first eight amendments of the federal Bill of Rights against the state and local governments. The Incorporation Doctrine is a judicial doctrine, created out of thin air by the United States Supreme Court. The Supreme Court uses Section 1 of the Fourteenth Amendment as the textual justification for the Incorporation Doctrine.
Origin of the Incorporation Doctrine
The Incorporation Doctrine’s first prominent application was in the case of Gitlow v. New York in 1925, applying the free speech provisions of the First Amendment against the state of New York. However, the first use of the Bill of Rights against a state occurred in the case of Chicago, Burlington and Quincy Railroad Co. v. City of Chicago, 1897, applying the Takings Clause of the Fifth Amendment against the city of Chicago.
To show the illegitimacy of these United States Supreme Court decisions, consider that both decisions, Gitlow v. New York and Chicago, Burlington and Quincy Railroad Co. v. City of Chicago, overturned precedential cases that were decided in the years immediately prior.
Gitlow v. New York was decided in 1925. In 1922, the Supreme Court in Prudential Ins. Co. of America v. Cheek, said, “as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”
Chicago, Burlington and Quincy Railroad Co. v. City of Chicago was decided in 1897. In 1896, the Supreme Court in Fallbrook Irrigation Dist. v. Bradley, said, “The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided.”
Magnitude of the Incorporation Doctrine
The magnitude and significance of the Incorporation Doctrine cannot be understated. The impact of the Incorporation Doctrine on America’s federal system of government is analogous to waking up one day and finding Los Angeles and San Francisco next to each other. The tectonic plates underlying the federal system of government would have had to do some cataclysmic shifting and grinding for this to have happened.
The federal Bill of Rights was added as a superfluous restraint on federal legislative power to ensure the federal government would not assume powers beyond those expressly delegated in Article 1, Section 8, or anywhere else in the Constitution. The Incorporation Doctrine takes these superfluous restraints on federal power and turns them into grants of power to the federal courts to use against the states. This is a complete inversion of what the Bill of Rights was meant to do. The Incorporation Doctrine is the boldest and most egregious act of judicial usurpation in American history.
Was Incorporation Achieved In Clear Language?
The Incorporation Doctrine was not achieved at all. Moreover, it is clear as to what Section 1 of the Fourteenth Amendment was intended to achieve, and it had nothing to do with anything beyond ensuring the Constitutionality of the Civil Rights Act of 1866. The Incorporation Doctrine is an illegitimate legal doctrine that makes a mockery of the Constitution and undermines the legitimacy of the federal courts because there is no textual or historical basis for the doctrine. Read Section 1 of the Fourteenth Amendment. Nationalist Justices and legal scholars who advocate a central government with unlimited power still cannot even agree on which provision should be used to turn the Bill of Rights into a weapon against the states. Shouldn’t such a major and transformative shift in the federal system have been achieved in clear, unambiguous language? Chief Justice John Marshall, writing for a unanimous court in Barron v. Baltimore, 1833, said it best.
“Had the framers of [the Bill of Rights] intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”
Seems reasonable to think such a major and transformative shift in law should have been achieved through plain and intelligible language, as was done with the Thirteenth Amendment and the Fifteenth Amendment. Without that clarity it’s ridiculous to undertake such a major and arbitrary endeavor to turn superfluous restraints on federal power into weapons to wield against the state governments.
Supreme Court Didn’t Know About the Incorporation Doctrine Until 1897 or 1925?
The year following the ratification of the Fourteenth Amendment, the Supreme Court was apparently unaware of the Incorporation Doctrine. In the case of Twitchell v. Commonwealth, 1868, the plaintiff (subject to the death penalty) claimed Pennsylvania denied him his Fifth and Sixth Amendment rights. In a unanimous opinion, the Supreme Court refused to even discuss the merits of the plaintiff’s case because the court lacked jurisdiction to hear an appeal from a state court regarding the scope of the Fifth and Sixth Amendments. In other words, the Bill of Rights did not apply against the state governments so the Supreme Court did not have jurisdiction to hear the appeal based on the plaintiff’s argument.
Shouldn’t the Supreme Court Justices have known about the Incorporation Doctrine if it really existed? The Fourteenth Amendment was ratified one year prior to this appeal. At the time, the court decided cases in the Old Senate Chamber, which is in the room next to where the Fourteenth Amendment had been debated by the Senate the year before Twitchell! The Justices and members of the Senate used to rub elbows and see each other all the time. Why didn’t the Justices know about the Incorporation Doctrine?
Ten years after the Fourteenth Amendment became law, Speaker of the House, James G. Blaine, proposed an amendment to the United States Constitution that would have applied part of the First Amendment against the states. The proposed amendment passed the House of Representatives, but failed to pass the Senate by four votes. The relevant part of the amendment said, “No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof…”
If the Fourteenth Amendment had applied this identical language from the First Amendment against the state governments via the Incorporation Doctrine, why would this language have been repeated in this proposed Constitutional amendment? Because the Fourteenth Amendment did not apply the Bill of Rights against the state governments.
Logic of the Text Does Not Make Sense
Which clause in Section 1 of the Fourteenth Amendment applies the Bill of Rights against the states? Most legal scholars say the Privileges or Immunities Clause should apply the federal Bill of Rights against the states. Trouble is, Section 1 of the Fourteenth Amendment has a Due Process Clause that is identical to the Due Process Clause of the Fifth Amendment. Why add a Due Process Clause to the Fourteenth Amendment if the Privileges or Immunities Clause of the Fourteenth Amendment applies the Due Process Clause of the Fifth Amendment against the state governments? The wording of both due process clauses is virtually identical. Was the Radical Republican controlled Congress so sloppy that it didn’t work through these glaring logical inconsistencies?
Funny enough, the Supreme Court decided to use the Due Process Clause of the Fourteenth Amendment to apply the Bill of Rights against the states. In doing this, the Supreme Court created a doctrine called, “Substantive Due Process.” How “Due Process” can be anything other than Procedural is a mystery. Never underestimate the Supreme Court. To read about Substantive Due Process, click here.
The Incorporation Doctrine is merely a power grab by the federal courts. This federal power grab strips the people and the states of their respective rights to govern themselves. It stands as food for thought that the right to local self-government was the principle motivation for the American Revolution.
Five States Eliminated Grand Juries After Ratification of the Fourteenth Amendment
It’s also worth noting that five states eliminated their Grand Jury requirements after “ratification” of the Fourteenth Amendment. If the Fourteenth Amendment applied the Bill of Rights against the state governments, then why would these five states affront the Fourteenth Amendment by repealing or modifying their respective Grand Jury requirements that would be required under the incorporated Fifth Amendment? An intellectually dishonest legal scholar might reply this is because of the “selective” Incorporation Doctrine, whereby only certain parts of the Bill of Rights are applied against the states. The ridiculousness of this idea of selective incorporation isn’t even worthy of rebuttal.
The elimination of grand jury requirements serve as further proof that representatives throughout the country took for granted that the Bill of Rights served as a restraint on federal power, even after the Fourteenth Amendment. Thus, it seems reasonable to conclude the Incorporation Doctrine is nothing but a tyrannical power grab by the federal courts.
Additional Incorporation Doctrine Resources
For a comprehensive review of the Incorporation Doctrine and its illegitimacy, please see:
Laurence Vance’s, The Kelo Decision and the Fourteenth Amendment.
Philip Hamburger’s, Privileges or Immunities, for a comprehensive analysis of the Privileges or Immunities Clause of the Fourteenth Amendment and how this clause does not apply the Bill of Rights against the states (via the Incorporation Doctrine).
Raoul Berger’s, Incorporation of the Bill of Rights in the Fourteenth Amendment – Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment . This chapter discusses the debates in the United States Senate and House of Representatives around the issue of incorporation.
United States Constitution – Fourteenth Amendment – Section 1 – Basis for the Incorporation Doctrine?
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 (Emphasis Added).