The Incorporation Doctrine: Does the 14th Amendment Expand the Bill of Rights to Apply to the States?


A careful reading of the Bill of Rights (the first ten Amendments to the U.S. Constitution) will  reveal something that may be surprising to many:  its purpose was to restrict only the Federal Government from infringing on the people’s natural rights to life, liberty, and property, but did not restrict the states from doing so.  This simple and straightforward understanding, however, has long since been obscured and confused by a number of Supreme Court case rulings1 made since the ratification of the Fourteenth Amendment in 1868.  These Supreme Court decisions were made under an interpretive ideology that is known as the Incorporation Doctrine – the broad view that Section I of the 14th Amendment somehow allows billofrightsthe Bill of Rights2 to be applied directly to state and local matters, as well as Federal issues.  The Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause are all contained in Section I of the 14th Amendment, and they read as follows:

“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.”

The Fourteenth is one of the Reconstruction Amendments, and was, according to Dr. Albert Mohler, never meant to restrict the States in the manner in which it is used to do so today.  In his article titled A Growing Cloud of Confusion – The Supreme Court on Religion3, he writes:  “The Fourteenth Amendment was intended to provide no such opening for a vast expansion of federal power. Instead, it was, as [Professor Stephen B.] Presser [of Northwestern University’s School of Law] explains, ‘originally designed to ensure that the contract and property rights of the newly freed slaves were not abridged.'”.  Dr. Kevin R. C. Gutzman, in a tenthamendmentcenter.com interview concurs with this, arguing further that the original intent of the Fourteenth Amendment was essentially simply to guarantee that “no state may execute, jail, or fine any person without providing due process of law, ” and not to force an application of the Bill of Rights on the States, and that the broad interpretation that the Supreme Court currently espouses is “just dishonest.”  Examples of the Supreme Court “inventing” rights that shouldn’t exist, he says, are things like the “rights” to burn a flag or have an abortion.

Such sloppy applications of the Fourteenth Amendment are promoted by both the Right and the Left.  The Second Amendment, for example, also should not be forced upon the individual States – the original expectation was that the States would embed a right to bear arms within their own constitutions.  Therefore, if a particular state passes a restrictive “gun control” bill, they are within their sovereign rights to do so, and should not be accused of violating the Second Amendment.  By the same token, the First Amendment’s Establishment Clause cannot prevent a state from establishing a state religion.

The Tenth Amendment declares that all rights that have not been explicitly granted by the Constitution to Congress are left for the people of the States to enjoy:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

If the Fourteenth Amendment was originally intended to force the Bill of Rights onto the States, I suspect there almost certainly would have been more explicit language confirming this, and perhaps a revision of the Tenth Amendment.

The designers of  U.S. Constitution had the main goal of establishing a firm restriction on the central Government’s power.  The States were intended to enjoy broad powers and few limits.  Thanks to some unelected, unaccountable Supreme Court justices, what we have in effect now is something completely different.

1.  http://en.wikipedia.org/wiki/Everson_v._Board_of_Education      http://en.wikipedia.org/wiki/Freedom_of_the_press      http://en.wikipedia.org/wiki/McDonald_v._Chicago

 2. Not all ten Amendments apply to this view.  For example, the Tenth Amendment is inapplicable to the Incorporation Doctrine.

 3. http://www.albertmohler.com/2005/10/28/a-growing-cloud-of-confusion-the-supreme-court-on-religion/

2 thoughts on “The Incorporation Doctrine: Does the 14th Amendment Expand the Bill of Rights to Apply to the States?

  1. Really good article with lots of food for thought. … I can tell how many of the founders said that this government will only work for a moral and religious people. In the grand (eternal) scheme of things human beings are either governed by their fleshly, carnal nature, or by the Holy Spirit. Therefore if the states were intended to enjoy broad powers with few limits, then the people would need to be intrinsically governed by the Holy Spirit’s leading in order for there not to be mass chaos. The concept of having broad powers with few limits reminds me of Galatians 5:13-25 ….13 For you were called to freedom, brethren; only do not turn your freedom into an opportunity for the flesh, but through love serve one another. 14 For the whole Law is fulfilled in one word, in the statement, “You shall love your neighbor as yourself.” 15 But if you bite and devour one another, take care that you are not consumed by one another.

    16 But I say, walk by the Spirit, and you will not carry out the desire of the flesh. 17 For the flesh sets its desire against the Spirit, and the Spirit against the flesh; for these are in opposition to one another, so that you may not do the things that you [h]please. 18 But if you are led by the Spirit, you are not under the Law. 19 Now the deeds of the flesh are evident, which are: immorality, impurity, sensuality, 20 idolatry, sorcery, enmities, strife, jealousy, outbursts of anger, disputes, dissensions, factions, 21 envying, drunkenness, carousing, and things like these, of which I forewarn you, just as I have forewarned you, that those who practice such things will not inherit the kingdom of God. 22 But the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness, 23 gentleness, self-control; against such things there is no law. 24 Now those who belong to Christ Jesus have crucified the flesh with its passions and desires.

    25 If we live by the Spirit, let us also walk by the Spirit. 26 Let us not become boastful, challenging one another, envying one another.

    Perhaps if people were more led by love for their neighbor after the Civil War, the Supreme Court would not have felt they needed to apply the 14 Amendment and Bill of Rights to the states. … While the Constitution allowed for the states to govern themselves; meaning essentially the states could treat others as they please, or “seemed right in their own eyes” (Judges 21:25); the court decided they would enforce an certain amount of civility on the states….So, we gained a certain amount of civility, yet lost the freedom to choose whether or not we would walk in civility. Hmmmm….

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