The Incorporation Doctrine: A Legal and Historical Fallacy

by Bryan Keith Morris

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The first step towards demonstrating the claims of this study, is, of course, the establishment of the classical standard of constitutional construction. Therefore, accepting Mr. Story’s invitation, “let us endeavour to ascertain what are the true rules of interpretation applicable to the Constitution.”21

Mr. Story’s exposition of the rules of interpretation is found most precisely stated in section 405 of his Commentaries:

In construing the constitution of the United States, we are in the first instance, to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. Where the words are unambiguous, but the provision may cover more or less ground according to the intention, which is yet subject to conjecture; or where it may include in its general terms more or less, than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short all the circumstances, which had a tendency to produce, or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions.22

It is evident from Mr. Story’s recitation and the confirming witness of Chief Justice Marshall that the rules of interpretation suggest a sequence of steps which should be observed in the following order:

The first step one must take when interpreting the Constitution is to view it in light of its overall structure, nature and purpose. In other words, the interpreter must adopt in his mind a presuppositional framework of analysis which seeks to honor the overarching design of the Constitution and the general principles it embodies.

Chief Justice Marshall expressed this commitment to honoring the overall design of the Constitution both in word and in deed. For example, Marshall not only expressed the importance of construing the document as a whole,23 but he also decided cases that came before him with a strong implicit consideration for the federal structure of government created by the Constitution.24 This presupposition in favor of preserving federalism can be most readily detected in early Supreme Court cases such as McCulloch v. Maryland25 that directly tested the division of powers between the state and federal governments.

Only after this presuppositional frame of mind has been adopted may the second step of constitutional interpretation be taken. The text, that is, the language of the Constitution itself, is above all the primary source from which the meaning of the Constitution is to be derived. If the language is clear and its meaning plain as used by an ordinary man, or by “those for whom the instrument was written,”26 then the text alone is sufficient, and interpretation is unnecessary.

Implicit in this rule is the presupposition that man was created with the capacity to accurately express his will in words. Chief Justice Marshall believed, therefore, that the people who framed and adopted the Constitution “must be understood to have employed words in their natural sense, and to have intended what they have said.”27 Moreover, this rule presupposes that words that are drafted in the Constitution have an inherent, invariable meaning which must be respected at all times. The general rule is that “the meaning of the Constitution is fixed when it is adopted and it is not different at any subsequent time when a court has occasion to pass upon it.”28

However, because of the imperfection of human language, even John Marshall was willing to concede that ambiguous terms in the Constitution may require further inquiry to determine their proper meaning.29 This third step of constitutional interpretation involves a twofold analysis: 1) textual and 2) purposive.

In investigating further into the meaning of ambiguous language by looking to the text of the Constitution itself, Marshall suggested30 that three particular considerations may be taken into view: context – the judge may first compare the terms with other words and sentences in the instrument; subject – the judge may take into view the nature of the matter under consideration, and inquire as to the law of nature governing it; and intent – the intention of the framers and of those who adopted it may be considered, but that intent must be derived chiefly from the text itself. On this point, Marshall offered the following caveat: “This court would not feel itself authorized to disregard the plain meaning of words, in search of conjectured intent to which we are not conducted by the language of the instrument.”31

Despite the previous statement, however, Marshall was willing, on appropriate occasions, to allow “those considerations to which the courts have always allowed great weight in the exposition of the laws,”32 namely contemporary interpretation.

Story is quite cautious on these points and warns that contemporary interpretation should “be resorted to with much qualification and reserve.”33 He pointed to the danger of relying on the opinion of those legislators who framed or passed a provision, because not every member understood the terms in the same sense or to the same extent of operation. Story emphasizes that

the private interpretation of any particular man, or body of men, must manifestly be open to much observation. The Constitution was adopted by the people of the United States; and it was submitted to the whole upon a just survey of its provisions, as they stood in the text itself … Nothing but the text itself was adopted by the people.34

Therefore, although contemporary construction of a Constitutional provision by its drafters may help to illustrate or explain a doubtful phrase, such interpretation is not absolutely conclusive, but must remain true to the meaning of the text as understood by the ordinary citizens of the states who ratified it.

Marshall further stated that if there was any serious doubt as to the extent of any provision of the Constitution, the purpose of the provision and of the Constitution “should have great influence in the construction.”35

First, Marshall allowed that the historical circumstances which led to a provision’s adoption, or “the former proceedings of the nation respecting it”36 may be taken into consideration in order to determine its constitutional purpose. Secondly, Marshall declared that the interpretation of a particular provision must often depend on a “fair construction of the whole instrument.”37 This is determined from the nature, scope and design of the entire Constitution.

By way of summary, the following outline of the above stated rules is offered for clarification:

  1. The overall design of the Constitution must always be honored.
  2. If the text is unambiguous, recourse to other means of interpretation is unnecessary and improper.
  3. If there exists some doubt as to the meaning of a Constitutional provision, a two-fold analysis is required.
    1. Text
      1. context
      2. subject
      3. intent

    2. Purpose
      1. of the provision
      2. of the instrument

Using these rules, then, as the standard of Constitutional interpretation, let us see how the Court has applied or failed to apply them in the three most significant cases that bear upon the incorporation theory: 1) non-incorporation – the Slaughterhouse Cases; 2) selective incorporation – Palko v. Connecticut; and 3) wholesale incorporation – Adamson v. California (Justice Black, dissenting).


The Slaughterhouse Cases of 1872 were the first major decision by the Supreme Court since the 14th Amendment had been ratified which required the Court to interpret the provisions of the first section of that Amendment. In these cases a state law requiring the establishment of a state monopoly over the slaughter of livestock was challenged as violating, in particular, the privileges and immunities, due process and equal protection clauses of the 14th Amendment. Since it is these provisions of the 14th Amendment that are usually cited, in some combination or other, as the means by which the Bill of Rights are now made applicable to the states, let us see how the Court treated the interpretation of these phrases and compare its approach with Story’s rules of construction.

After first dealing with the 13th Amendment argument that had been raised by the plaintiffs in the case, the Court began its interpretation of the 14th Amendment by engaging in a clause-by-clause, word-by-word examination of the language of section one. By honoring the text in this way, the Court demonstrated its intention to abide by one of the most important rules of the Marshall/Story standard, namely, that the language of the Constitution is the primary source from which its meaning is to be derived. Now let us see whether the Court continued to follow the remaining rules.

Privileges and Immunities Textual Analysis

The first clause of section one which the Court examined is the privileges and immunities clause. Yet, rather than analyzing this clause in complete isolation from the rest of the amendment, the Court first considered how this clause is affected by the preceding “citizenship clause,” which defines United States citizenship and distinguishes it from state citizenship.

In response to plaintiffs argument that the privileges and immunities of citizens of the United States are the same as those of citizens of the states, Justice Miller simply pointed to the language. He contrasted the language in the privileges and immunities clause of the 14th Amendment with that of Art. IV, sec. 2, and determined that these two clauses pertain to distinctly different classes of privileges and immunities enjoyed by two distinctly different classes of citizenship. He therefore concluded that an interpretation which equates the privileges and immunities of these two clauses is precluded by the sheer difference in their texts.

When Justice Miller asserted, however, that this textual distinction had been performed “understandingly and with a purpose,” he was not necessarily correct. The records of the debate over the 14th Amendment demonstrate that although the 39th Congress noticed the difference in the language between the two privileges and immunities clauses, they quite remarkably recognized no difference in the meaning of the two clauses. As a result, the majority of its members understood the privileges and immunities of section one to be identical with the purposes of the clause found in Art. IV, sec. 2.38 In order to better understand how this equation occurred, let us take a look at the historical record.

The “Original Intent”

The privileges and immunities clause of Art. IV, Sec. 2, which guarantees that “the Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States” was transposed nearly verbatim to the original draft proposal of the 14th Amendment. In fact, this first draft proposal contained a parenthetical reference to the clause of Art. IV, sec. 2, so that it read:

Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment).39

The author of this first proposal, Congressman John Bingham of Ohio, emphasized in debate that he realized this clause was already in the Constitution. He argued, however, that because the states had violated the privileges and immunities clause, he sought to compel the states’ obedience to it by giving Congress the power to enforce it under the 14th Amendment.40 That the privileges and immunities clause of Bingham’s first proposal was to have the same effect as the clause found in Art. IV, sec. 2 was well understood by his colleagues in the House of Representatives.41

Bingham’s original proposal did not survive, however. It was never voted on in the House and was eventually left to die. When Congress later reconvened to consider the same matter, Bingham drafted another proposal with slightly different language. This proposal, which was ultimately accepted as section one of the 14th Amendment, appeared in this form:

No State shall make 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.

It should be noted that although this modification in the language of the privileges and immunities clause is only slight, the consequent modification in its meaning is significant. Whereas the former proposal had sought to protect the privileges and immunities of “citizens in the several States,” the new proposal seeks to protect those of “citizens of the United States.”

The Congressmen who debated this phrase did not, however, seem to recognize the difference between the two proposals. Even with this significant change, the Congressmen still equated the privileges and immunities clause of this new proposal with that of Art. IV, sec. 2. Representative Thaddeus Stevens, for example, stated in support of Bingham’s proposal that “every one of these provisions is … asserted, in some form or other, in our Declaration or organic law.”42 Congressman Bingham, in his closing speech on the proposal, even used the two phrases interchangeably.43

One Senator Howard, who apparently did notice the difference in the two clauses, attempted to distinguish the phrases “citizen of the United States” and “citizen of each State.”44 In doing so, however, he stumbled onto the very complex question of diversity of citizenship under our American federal system. The nation had encountered this nagging problem several times earlier in its Constitutional history,45 but had never satisfactorily settled the issue. Now faced squarely with this difficulty, and desiring to settle the question raised by Howard’s speech, the Senate voted to attach the following amendment to the front of Bingham’s proposal, “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.”46

Even with this modification, however, the Senators who followed Howard in debate still equated the privileges and immunities clause of section one with that of Art. IV, sec. 2. Senator Poland, for example, is clear on this point:

The clause of the first proposed amendment, that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States’ secures nothing beyond what was intended by the original provision in the Constitution, that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.’47

Evidently, then, those Congressmen failed to realize the significance of the difference between the two clauses, even with the addition of the preceding citizenship clause.48

The Original Interpretation

Justice Miller, however, writing for the Slaughterhouse majority, did notice the change. Yet, when the Court proceeded to offer its definition of “the privileges and immunities of citizens of the United States” based on what it inaccurately considered to be an intentional modification on the part of Congress, the Court was not guilty of usurping the will of the legislature that had adopted the 14th Amendment. Although the Court offered an interpretation of the new privileges and immunities clause different from that given to it by Congress, the Court’s interpretation, which reflected the obvious difference between the two privileges and immunities clauses, was justified by the plain language of the text of section one, whereas the interpretation given to the new clause by Congress was not. As we shall see, moreover, the Court’s interpretation of the privileges and immunities clause was much more reflective of the understanding held by the ordinary citizens of the states who ratified the 14th Amendment.

By thus offering an interpretation of the 14th Amendment privileges and immunities clause which was different from that given to it by Congress, the Court was simply following one of the fundamental rules of interpretation expressed by Chief Justice Marshall: “This Court would not feel itself authorized to disregard the plain meaning of words, in search of conjectured intent to which we are not conducted by the language of the instrument.”49 Because the “conjectured intent” of the 39th Congress, which equated the two privileges and immunities clauses, could not be justified by the language of section one, the Court offered an interpretation that could.

Thus, in the above analysis, the Court has honored the following rules of interpretation: 1) it gave primary consideration to the text itself; 2) it made a contextual comparison of section one with Art. IV, sec. 2; 3) it offers a subject matter analysis of the nature of citizenship; and 4) it considers the intent of the framers of the clause, but only as this could be derived from the text itself.

Privileges and Immunities Purposive Analysis

Furthermore, the Court goes on to answer the plaintiffs argument that the protection of all civil rights are now transferred by the privileges and immunities clause from the states to the federal government. The Court does this by engaging in an analysis of the purpose of both the 14th Amendment in particular, and of the Constitution as a whole.

Pointing to the fact that the federal structure as established by the Constitution had left the entire domain of civil rights with the states, Justice Miller argues that if the claim made by the plaintiffs were followed, such an interpretation of the privileges and immunities clause would completely destroy the original design of the Constitution. The effect of such a construction he says, would be to “fetter and degrade the state governments by subjecting them to the control of Congress” and would “radically change the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”50

Therefore, because of the extreme results that would follow, the Court considered itself obligated to reject such an interpretation “in the absence of language which expresses such a purpose too clearly to admit of doubt.”51 In other words, if the Congress which drafted the 14th Amendment had intended for the privileges and immunities clause to “radically alter” the federal system, then they should have explicitly said, for example, that “the entire domain of civil rights heretofore belonging to the states are now transferred to the jurisdiction of Congress.”52

By thus judging the plaintiffs’ claim with a “presumption of invalidity” in favor of preserving the basic design of the Constitution, the Slaughterhouse majority was not adopting some strange new interpretive approach. Rather, it was following the precedent of Chief Justice Marshall who declared in Barron v. Baltimore:

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.53

Unable to locate such clear language in the 14th Amendment, the Slaughterhouse majority concluded: “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.”54 Here again the Court is insisting on honoring the text, and refuses to adopt an interpretation not justified by it.

In the light of this analysis, the Court then goes on to offer a rather narrow, but justifiable interpretation of the “privileges and immunities of citizens of the United States” as those arising from a person’s national citizenship. However, since this narrow definition left to the States the regulation of all civil rights such as those found in the Bill of Rights, it gave to the federal government no new power to protect the first eight amendments from state abridgement. Therefore, although the Slaughterhouse Cases did not directly address the incorporation doctrine, by adhering to the Marshall/Story rules of interpretation and construing the privileges and immunities clause in this way, the Slaughterhouse majority effectively eliminated this provision as justification for the claim that the Bill of Rights were thereby made applicable to the States.

Due Process

The next argument answered by the Court was the plaintiffs’ claim that the Louisiana state monopoly statute violated the due process clause of the 14th Amendment. The Slaughterhouse majority dismissed that claim, however, in a very cursory fashion:

We are not without judicial interpretation … of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.55

By the time of the Slaughterhouse decision, the Supreme Court had had the opportunity to construe the due process clause of the Fifth Amendment on only two occasions.56 We may reasonably infer that the opinion which the Slaughterhouse court “deemed admissible” was Murray’s Lessee v. Hoboken Land and Improvement Co.57 In that case, the Court had embraced the historically accepted interpretation of due process as it had been understood since Magna Carta.58 It had long been held at common law that due process only refers to judicial procedure, not to executive or legislative proceedings. Moreover, due process of law had never been held to refer to general laws passed by legislatures.59 Murray’s Lessee did acknowledge, however, that the due process clause did restrict the legislative branch from declaring by its mere will any procedure to constitute due process of law.

Only one other Supreme Court due process precedent could have been relied upon by the plaintiff butchers in Slaughterhouse. That was Dred Scott v. Sanford.60 In Dred Scott, Chief Justice Roger Taney adopted a “substantive” due process interpretation of the Fifth Amendment which ruled that due process is as applicable to general laws passed by Congress as it is to rules governing judicial procedure. That ruling however, was a clear deviation from Anglo-American legal history. Acknowledging that other parts of Dred Scott had been specifically overruled by the first clause of the 14th Amendment,61 the Slaughterhouse Court simply assumed that the “substantive” due process of Dred Scott would be totally inadmissible. They thought it would have been ludicrous for the Court to have imposed upon the 14th Amendment the very interpretation of the due process clause over which the nation had just recently fought a bloody Civil War.

Clearly, then, not only was this limited interpretation of due process as declared in Murray’s Lessee the one given to that phrase by the framers who included it in the 5th Amendment, but this was the same meaning given to due process by those Congressmen who included it in the 14th Amendment.62

The Slaughterhouse majority, by thus accepting this historically recognized definition of due process, had honored the literal import of that phrase as it was understood by the “ordinary man,” both in England and in the United States. By doing so, the Court had attributed to that phrase a very narrow procedural meaning which could in no way be construed to incorporate the Bill of Rights.

Equal Protection

Finally, the Court undertakes an analysis of the meaning of the equal protection clause. This phrase, though by no means entirely unique to the 14th Amendment, was a bit more inscrutable than the other clauses found in section one. Therefore, the Court chose to determine its meaning not only from a textual analysis, but also from an examination of the purpose of the 14th Amendment in light of the historical circumstances that led to its adoption.

After reiterating its argument that the 14th Amendment was designed to protect the newly freed slaves, the Court deduced from this premise that the equal protection clause had been adopted to prohibit racial discrimination against negroes as a class. Of course, the Court made no pretense of having looked to the Congressional records to derive some evidence as to how the legislature construed the term “equal protection of the laws.” Yet the Court’s understanding of the subject matter of the 14th Amendment, namely racial discrimination, led it to an interpretation of this clause that very closely reflected the original intent of the 39th Congress and of the states who ratified the Amendment.63

As a consequence of its understanding of both the subject and object of the equal protection clause, the Court declared that this provision was so clearly intended for the protection of negroes as a class that it doubted any action brought before the Court would be upheld unless it was based on a claim of racial discrimination. Obviously, then, the interpretation of this clause by the Slaughterhouse majority offers no room for embracing within its terms the broad and sundry liberties enumerated in the Bill of Rights.

Thus, rather than substituting its own predilections for the language of section one, the Slaughterhouse majority remained faithful to the classical rules of constitutional construction. The temporary results, then, of this interpretive fidelity were the rejection of any notion that the Bill of Rights were incorporated by the 14th Amendment and the consequent preservation of the federal system of government.

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* Copyright © 1990, 2014 Bryan Keith Morris. Used with permission.
21. Story, 383.
22. Story, 387-8.
23. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1803).
24. Paul Brest, “Constitutional Interpretation,” Encyclopedia of the Constitution, 468.
25. Supra note 23.
26. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827). (Marshall, C. J., dissenting.)
27. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824).
28. Thomas M. Cooley, Constitutional Limitations, Walter Carrington, ed. (Boston: Little, Brown and Co., 8th edition, 1927), 123-4.
29. Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 188-9.
30. McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 414-15.
31. Craig v. Missouri; 29 U.S. (4 Pet.) 410, 434 (1830).
32. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 416 (1821).
33. Story, 388.
34. Story, 388-9.
35. Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 188-9.
36. McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 401.
37. Id., at 406.
38. The classic interpretation of the privileges and immunities clause of Art. IV, sec. 2 had been given in the case of Corfield v. Coryell, 6 Fed. Cas. 546, No. 3230 (C.C.E.D. Pa. 1823). In that opinion Justice Bushrod Washington had declared that the privileges and immunities of citizens of the several states are those “which are, in their nature fundamental; which belong, of right, to the citizens of all free governments.” He went on to enumerate some of these privileges and immunities by listing such rights as life, liberty and property, the right to engage in economic pursuits and the right to maintain legal actions in state courts.
39. Quoted in Fairman, 21.
40. Conqressional Globe, 39th Congress, 1st session, H. 1034 (1865-66). Reprinted in Alfred Avins, ed. The Reconstruction Amendmentsi Debates (Richmond: Virginia Commission on Constitutional Government, 1967), 150.
41. The House debate on the proposal from February 26-28 clearly reveals this. Id., H. 1034-1095.
42. Id., H. 2459.
43. Id., H. 2542.
44. Id., S. 2765.
45. The most infamous treatment of the diversity of citizenship doctrine had been rendered by the Supreme Court in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).
46. Congressional Globe, 39th Cong., 1st session, S. at 2869.
47. Id., S. 2961.
48. In addition to Poland, Senators Davies and Henderson, who followed Howard in debate, also equated the two privileges and immunities clauses, without being contradicted by any member. Id., S. 2992-3033.
49. Supra note 27.
50. Slaughterhouse Cases, 83 U.S. (16 Wall.) at 78.
51. Id., at 77.
52. Ibid.
53. Barron v. Baltimore, 32 U.S. (7 Pet.) at 250.
54. Slaughterhouse Cases, 83 U.S. (16 Wall.) at 78.
55. 83 U.S. (16 Wall.) at 80.
56. Barrett and Cohen, 481.
57. 59 U.S. (18 How.) 272 (1856).
58. The term “law of the land” found in the thirty-ninth chapter of Magna Carta is recognized to be synonymous with the term “due process of law” found in the Fifth Amendment. See Justice Curtisi discussion in Murray’s Lessee, 59 U.S. (18 How.) at 276.
59. See Berger, Government, 194-200.
60. Supra note 39.
61. Slaughterhouse Cases, 83 U.S. (16 Wall.) at 73.
62. See Raoul Berger, “The Fourteenth Amendment: Light from the Fifteenth” 74 Nw. U. L. Rev. 311 (1979), 334-5.
63. It is well documented that the purpose of the equal protection clause was the guarantee of legal equality for blacks and the protection of basic civil rights as enumerated in the Civil Rights Act of 1866. See, for example, Id., 335-340; Flack, 153; James E. Bond, “The Original Understanding of the Fourteenth Amendment in Illinois, Ohio and Pennsylvania,” 18 Akron L. Rev. 435 (1985), 454-56.