Talk:Incorporation of the Bill of Rights

Incorporation/Original Intent

I would bristle at any attempt to say that incorporation is historically compelled. For one thing, the suggestion is POV as there has been much written to oppose this view-- R. Berger, e.g. The original Bill of Rights merely stated the truism that all power not granted is reserved, so it seemed natural that the "incorporated" Bill of Rights would not interfere with the existing "police power" of the states-- and I'm sure this was stated in the Cong. Globe. I also think the evidence that the framers of the 14th meant to incorporate the procedural elements of the Bill of Rights is exceedingly slim-- incorporation of these elements only occurred in the 1960s. Please Don't BlockPlease Don't Block

Change of "Incorporation timeline" subhead and content to "Which rights have been incorporated?"

With apologies to the previous contributor, I have changed this subhead and its content to include a hopefully exhaustive list of the rights that have been incorporated, listed by amendment by clause (i.e., individual right). I felt this would be more useful to people who want a quick view of which rights have been incorporated and the respective cases (users can reconstruct a timeline using the dates shown). I added citations to each case and hyperlinked as much as possible. I retained the commentary on existing cases and added some commentary to those cases/rights not previously listed. There seems to be some minor disagreement (above) on those rights that have not been explicitly incorporated; I tried to retain consistency between my list and the text at the top of this article. In a few cases, I wrote, "Has not been incorporated." Feel free to doublecheck this, of course.

Original Intent

When the initial author and sponsor of the 14th Amendment, Representative John Bingham of Ohio, advocated for the amendment in Congress in 1866, he repeatedly stated that the aim or intent was to allow Congress to be able to enforce the Bill of Rights against state action. He said that he considered the civil rights contained therein to be the same sort of immunities and privileges as had been mentioned within the body of the Constitution. Even his opposition acknowledged this intent.

In submitting the amendment for consideration in the Senate, a colleague of Bingham from the Joint Conference Committee on Reconstruction, Senator Howard of Michigan, reiterated the argument that the Bill of Rights would be applied to the states through the "privileges or immunities" clause of the amendment.

It must be noted that neither gentleman (nor apparently any of the other speakers in the debate) alleged that those rights within the Bill of Rights were to be applied to state powers, or incorporated within the states, by way of the "due process" clause. The stated link was explicitly the "privileges or immunities" clause.

Also, none of the participants excepted the 2nd Amendment right to bear arms nor the 5th Amendment right to grand jury indictment/presentment, as the US Supreme Court has done.

In fact, contemporary statutory legislation being considered in Congress at the same time as the 14th Amendment, the Freedmen's Bureau Bill and the Civil Right Act of 1866 Bill, both aimed, in part, to enforce against state action the right of Blacks to bear arms for self-defense. This right was deemed to be a fundamental privilege of US citizenship, and so was extended by these bills to Blacks as well as Whites. Both bills passed.

(Congressional Globe, 39th Congress, 1st Session, 1866)

Selective incorporation is a judicial construct calculated to prop up the ephemeral arbitrary choice of US Supreme Court judges above the law itself. If judges deem a right to be sufficiently "fundamental", then the right is incorporated. If the judges do not approve of a particular right, or deem steadfast enforcement of the right to be too cumbersome, then they arbitrarily deem the right to be insufficiently "fundamental", and decide that the appellant is not entitled to that right via due process.

All of which violates the intent of the framers of the amendment, who clearly stated that all of the rights within the Bill of Rights were supposed to be held applicable to the states, and not just the ones that a majority of judges happen to personally approve of at any given moment in time.