The Incorporation Doctrine: A Legal and Historical Fallacy

by Bryan Keith Morris

First:   The Incorporation Doctrine: Introduction
Previous:   Rules of Interpretation Established and Applied


The impact of the Slaughterhouse Cases, however, was to be short-lived. Not long after this landmark decision, the Court began a process of gradually expanding the meaning of the due process clause to give it the effect of ultimately making nearly all of the provisions of the Bill of Rights applicable to the states. Without overruling the Slaughterhouse interpretation of the privileges and immunities clause, the Court, over a long period of time, essentially accomplished by the due process clause what counsel in Slaughterhouse had attempted via the privileges and immunities clause but had failed to do. This did require, however, a rejection of the Slaughterhouse interpretation of due process.

The Transformation of Due Process

Beginning in the late 19th century, the Supreme Court began to abandon the notion that due process had a “precise technical import”64 and chose, rather, to view the term as a vague, indefinable generality. Conveniently enough, the Court welcomed this interpretive change of heart as an opportunity to impose upon the phrase its own philosophical predilections through the “gradual process of judicial inclusion and exclusion.”65 This radical alteration of the meaning of the due process clause advanced along “substantive” and “procedural” lines.

Recall that in Dred Scott the Court had ruled that the term “due process” referred not only to judicial procedure, but also to general legislation passed by the Congress. Rejecting this view, the Slaughterhouse Court chose to adhere to the historical, more narrow interpretation of due process laid out in Murray’s Lessee and explicitly overrule the “substantive” due process interpretation of Dred Scott. What the Supreme Court of the late 19th century did, however, was resurrect the old Dred Scott interpretation of due process and tacitly reject Murray’s Lessee.

Moreover, in addition to transforming “due process” to now include general legislation, the Court also began to redefine the word “liberty” found in the due process clause. Rejecting the historical definition of liberty, which was limited strictly to freedom from physical restraint,66 the Court radically expanded this phrase to now include such “substantive” economic rights as the freedom to engage in contractual relationships.

The expansion of the “procedural” dimension of due process basically involved a gradual inclusion of more and more of the judicial procedures which would fall under the term due process. Up until the mid 1800’s the term due process was limited to certain basic procedures that would constitute a fair trial. According to Murray’s Lessee, in order to determine what those basic procedures are, one must follow the historically accepted understanding of the term due process by looking to “those settled usages and modes of proceeding existing in the common and statute law of England.”67

By following this rule, the Supreme Court had determined in several cases that fundamental due process requires “that the party to be affected shall have notice and an opportunity to be heard.”68 Not long after these decisions, however, the Court began to supersede this basic standard by gradually including under due process many more procedures beyond these two essential requirements.

This expansion of both the substantive and procedural aspects of the due process clause saw its ultimate judicial justification in the case of Palko v. Connecticut. Since it is this case that is cited as the philosophical foundation for the “selective incorporation” of the Bill of Rights, let us turn to an examination of what rules of interpretation the Court followed to decide that case.

The Palko “Principle”

In Palko the Court was asked to overrule a “double-jeopardy” conviction because it violated the 5th Amendment of the federal Constitution. Although convicted in a state court, the defendant argued that the due process clause of the 14th Amendment made the federal Bill of rights applicable to the states in all its particulars. Relying on numerous precedents, the Court rejected this argument, stressing that “there is no such general rule.”69 The Court at this point could have ceased discussion of this issue and gone on to answer the secondary question of whether the conviction violated the privileges and immunities clause. Instead, the Court proceeded to offer, by way of dicta, its understanding of the meaning of the due process clause.

Justice Cardozo, writing for the majority, began his analysis of this clause by offering a “rationalizing principle” as to why certain provisions in the federal Bill of Rights are protected against state encroachment and why others are not. His answer was that the “immunities” of “particular amendments” are protected because they are “implicit in the concept of ordered liberty,” and thus made valid against the states by the 14th Amendment.

Now, as a preliminary observation, it should be noted that this privately conceived phrase “ordered liberty” exists nowhere in the Constitution. This fact of itself indicates that Justice Cardozo must have been working with a standard of interpretation different from the one followed by Justices Marshall and Story. Indeed, Cardozo’s statement demonstrates that he has completely disregarded one of the foremost rules of traditional constitutional interpretation. It is not the text of the Constitution that the Court has applied in this instance. Rather, the language of the due process clause has been discarded and replaced with some new concept of the judge’s own creation.

Moreover, the connection Cardozo made between his “concept of ordered liberty” and the “14th Amendment” was tenuous at best. Unlike the careful phrase by phrase analysis adhered to in Slaughterhouse, the Court here has asserted that certain rights have been made valid against the states by the 14th Amendment generally. There is no precise reference made to any particular provision, whether a certain word, phrase or clause. Justice Cardozo did not even specify which section is supposed to make these “immunities” valid against the states. Presumably, he was referring to the due process clause of section one. However, the degree of precision that Justice Cardozo was willing to apply in this case falls far short of the rigorous requirements of traditional constitutional interpretation.

The Perversion of Procedure

Now this “concept of ordered liberty” may seem vague and arbitrary, even to the casual observer, despite Justice Cardozo’s assurances to the contrary. Yet, his attempts to clarify this new doctrine offer little assistance. These attempts amount to quoting some equally vague “natural law” concepts that have nothing to do with the classical definition of due process. In offering his definition of “procedural” due process, Justice Cardozo suggested, for example, that the rights or “immunities” that are to be protected are those “principles of justice” that should be ranked as “fundamental,” and without which ‘justice would perish” and no “fair and enlightened system of justice” would be possible.70

By volunteering these vague generalities, however, the Court has not informed us what “justice” is supposed to mean. Justice Cardozo has simply enumerated certain criminal procedures which would pass this nebulous test and others that would not. He has not specified how he came to choose particular proceedings over others but only mentioned that “there are certain students of our penal system” who considered these criminal procedures either a “mischief’ or a “benefit.”71

This, then, was the Palko majority’s standard of Constitutional interpretation. Cardozo considered it no longer necessary to inquire into “those settled usages and modes of proceeding existing in the common and statute law of England”72 to determine the meaning of due process. According to him, one must simply determine how the contemporary legal theorists define the term. Yet, if the Palko Court had followed the traditional rules of interpretation, it would have discovered a much more precise definition of due process than by asking if a certain principle of justice is “fundamental.”

What the Court has demonstrated here is not only did it care to make no inquiry into the historical meaning of due process as it was understood since Magna Carta, but neither did it consider itself obligated to make a contextual comparison of the due process clause of the 14th Amendment with the similar one found in the 5th Amendment. Nor did the Court bother to determine what was the contemporary interpretation given to the phrase by the 39th Congress or the state ratifying conventions. The “original understanding” of the phrase at the time of its adoption had no apparent relevance in the Palko Court’s analysis.

The Court further demonstrated little concern for the plain language of the Constitution by labeling the legal procedures that are to be protected by the due process clause from state encroachment as “privileges and immunities.”73 The Slaughterhouse Court had made it clear that the rights guaranteed by the due process clause were by no means synonymous with those protected by the privileges and immunities clause. The Palko Court even acknowledged this itself when it properly addressed the privileges and immunities clause later as a separate argument. The reason for the blurring of this distinction by the Court must be attributed to its abandonment of the traditional rules’ requirement that the text of the Constitution must be treated carefully.

The Court again demonstrated a careless handling of the language of the due process clause when it emphasized that its process of including particular procedures and excluding others was not arbitrary or casual, but was “dictated by a study of the meaning of liberty itself.”74 Yet, at this point in the analysis, the Court’s understanding of the word liberty, which we will presently consider, was irrelevant. The question was not whether the procedures that the Court had chosen to protect are subcategories of “liberty.” The question is whether such procedures are “due process.” In other words, liberty is not due process; due process is not liberty. Rather than making this crucial distinction, however, the Court has confused the various terms within the due process clause as one conglomerated mass. This is evident from a later statement: “Fundamental too in the concept of due process and so in that of liberty. ..”75 Such careless analysis would be unacceptable under the traditional rules of interpretation.

“Liberty” and Substance For All

From here the Court moved into its discussion of the “substantive” aspect of due process which it considered to be more important than the “procedural” rights addressed above:

We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth by a process of absorption. These in their origin were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption had its source in the belief that neither liberty nor justice would exist if they were sacrificed.76

From this passage it is evident that the Palko Court has again deviated from the three fundamental rules of traditional interpretation. First, the Court has once more demonstrated little regard for linguistic precision. It has done so by failing to specify which “earlier” amendments it had in mind and by again inaccurately labeling the rights contained in those amendments as “privileges and immunities.”

Secondly, the Court has failed to take into consideration the historical circumstances which led to the adoption of the 14th Amendment and the original purpose for which it was ratified. By doing so, the Palko Court has revived the “substantive” interpretation of due process which had been defeated with Dred Scott, slavery and the Confederacy.

It was this substantive interpretation of due process which had led the Court in Dred Scott to declare blacks nonpersons under the Constitution and to invalidate the Missouri Compromise and Compromise of 1850. When these two acts of Congress, which had maintained a precarious peace between the North and South were declared void, there was little left to hold the striving sections together. It was not until the Union had won the Civil War that Congress could freely adopt the 14th Amendment and thus overrule the substantive due process interpretation of Dred Scott and secure for blacks their inborn rights of citizenship. More specifically, the due process clause was intentionally designed to ensure that blacks would be afforded in state courts the judicial procedures historically established at common law.77

However, with no apparent concern for the history and purpose behind the due process clause, the Palko Court in cavalier fashion rejected the precedent of Magna Carta, Murray’s Lessee, and Slaughterhouse and embraced the very same substantive interpretation that led to the Civil War. We shall see that just as the Dred Scott decision led to destructive results, so too has Palko v. Connecticut.

The Palko Courts’ third deviation from the traditional rules of interpretation was its failure to honor the federal system that provides the framework for the Constitution. This failure is evidenced by the Courts’ adoption of the so-called “process of absorption.” As Justice Cardozo rightly pointed out, the Bill of Rights had always been effective only against the federal government. This was emphatically declared in Barron v. Baltimore and later re-emphasized by Slaughterhouse. But the Palko Court has here decided that if the process of absorption has taken place (which Cardozo apparently was not certain had occurred) then the “earlier” amendments of the Bill of Rights have been made applicable to the states.

The traditional rules of interpretation require that if a provision of the Constitution is to be construed so as to “bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States”78 and thereby “radically alter” the federal system, it must say so in clear and unambiguous language. Following the requirements of this test, the Slaughterhouse Court had failed to find within the 14th Amendment any language lucid enough to effect such a fundamental change. Therefore, Slaughterhouse declared, neither the Congress nor the people of the states could have intended such a purpose.

When the Palko Court was later asked to look at the same 14th Amendment, did it find within its provisions such a clearly stated purpose which the Slaughterhouse majority had overlooked? Certainly not. Indeed, Cardozo never argued that the incorporation of the “earlier articles” of the Bill of Rights was mandated by either the language or the purpose of the due process clause. Rather, he declared that his process of absorption was rooted in “the belief that neither liberty nor justice would exist if they were sacrificed.”

Of course, this is a dizzying example of circular reasoning — liberty must be protected because it will perish if it is sacrificed. However, this does not explain how the due process clause justifies the destruction of the federal system.

Yet, without providing any clarification on this point, Justice Cardozo quickly jumps to the example of free speech. Of course, examples cannot define; they can only illustrate a given definition. But it is obvious that Cardozo is trying to cloak what he views as “the matrix … of nearly every other form of freedom”79 in the garb of special Constitutional protection.

Only after making this point did Justice Cardozo explain how he perceived the due process clause to have made certain provisions of the Bill of Rights apply to the states:

So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts.80

It is in these statements that Cardozo most candidly revealed the rules of construction that he followed to analyze the due process clause of the 14th Amendment: through the evolutionary process of judicial reinterpretation, the historical understanding of the due process clause has been abandoned and redefined according to the conscience of the judges and the changing values of society.

Therefore, with the Court no longer obligated to honor the definition of a word as it was understood at the time of its adoption, words have no fixed or inherent meaning, and the Constitution means whatever the Court says it means. Moreover, neither does the original purpose of the Constitution matter, for its provisions may be manipulated to meet the exigency of the day. Clearly, the possibilities created by this logic are mind-boggling, indeed.81

Nevertheless, even with the meaning of due process now stretched to protect from state encroachment the “fundamental principles of justice,” the Palko majority did not argue that all of the provisions of the Bill of Rights are necessarily included within this definition. Rather, it left the judge free to include within the “concept of ordered liberty” any “fundamental” freedoms that do not happen to be found in the Bill of Rights, or conversely, to exclude some of the first eight amendments that are not so ranked.82

Clearly, this theory of constitutional interpretation is a radical departure from the traditional rules followed throughout our nation’s early history. And the consequences of this theory have been not only radical but profound. Although the Palko majority probably did not expect this to happen, the Supreme Court of the 1960’s used this opinion as a limitless warrant to selectively incorporate all but a few of the many provisions of the Bill of Rights, and to make even the most technical criminal procedures found therein to be applicable to the states. In effect, the Court has become, as the Slaughterhouse majority feared, “a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights . . .”83 Predictably, the impact upon the states is that they have been stripped of much of the power historically exercised by them to protect the health, safety and morals of their citizens; that power which antedated and was left intact by the Constitution.

Of course, this alteration in the fundamental structure of our system of government came about not through the adoption by three-fourths of the states of a constitutional amendment expressing such a purpose in “plain and intelligible language.” It came about through the adoption of a new theory of interpretation by a majority of “nine old men.”


Ironically, it was Justice Black, one of the members of the Palko majority, who was to become the most vigorous opponent of the “natural law” jurisprudence as applied in that case. At the same time, however, he also emerged to become the Court’s leading proponent of the idea that the Bill of Rights were now applicable to the states via the 14th Amendment. Yet Justice Black took a different approach to this theory than did the Palko opinion. He came to reject the “selective” process of absorbing certain “fundamental” rights into the 14th Amendment, subject to the judge’s own conscience and sense of justice. Instead, Justice Black began to assert a theory of ‘wholesale” incorporation according to which the 14th Amendment makes every specific provision of the first eight amendments applicable to the states in their entirety. This theory of Justice Black’s was most fully explained in his dissent in the case of Adamson v. California. Let us turn, then, to this opinion to determine what rules of Constitutional interpretation Justice Black followed to reach this conclusion.

In the Adamson case, the defendant was challenging a California statute that allowed for self-incrimination in that state’s court proceedings, on the grounds that it violated the privileges and immunities and due process clauses of the 14th Amendment. The Court rejected both of these arguments, relying on the Slaughterhouse precedent to answer the first challenge. The Court answered the due process argument, interestingly enough, by stating that the framers of the 14th Amendment had not intended for that clause to make the Bill of Rights valid against the states.

Justice Black began his dissenting opinion by attacking the “natural law” theory spelled out in Twining v. New Jersey,84 which Black claimed was the theory being applied by the Adamson majority. However, Justice Black took it upon himself to attack the Twining decision not only because it was founded on a “natural law” philosophy, but because it had strongly denounced the “wholesale” theory of incorporation now being forwarded by Black’s dissent.

Right Rules, Wrong Results

Justice Black then moves to the discussion of his “wholesale” incorporation theory by stating:

My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately and as a whole, were intended to accomplish was to make the Bill of Rights applicable to the States. With full knowledge of the import of the Barron decision, the framers and backers of the 14th Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this court interpreting the Amendment …

For this reason, I am attaching to this dissent an appendix which contains a resume, by no means complete, of the Amendment’s history. In my judgment that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights.”85

Now, to his credit, Mr. Black did indicate by this statement that he sought to honor the two fundamental rules of Constitutional construction, namely, honoring the text and the original intent. Yet, on closer analysis it will become evident that Justice Black has not completely followed the Marshall/Story rules of interpretation, but has overemphasized some and ignored others.

The result, then, of this less than total adherence to all of the rules of interpretation, is an unconstitutional theory which, when tested by both a legal and historical analysis, fails to find any support in either the language or the intended purpose of the 14th Amendment.

The extensive appendix, attached to Justice Black’s dissent, which he claimed “conclusively demonstrates” his case for wholesale incorporation, evinces an ostensible concern for honoring the original meaning of section one by inquiring as to how it was understood at the time of its adoption. To the extent that Justice Black genuinely followed this stated objective he should be commended. Unfortunately, however, Justice Black’s thesis as presented in his resume suffers from two major flaws.

First, because Justice Black failed to give foremost consideration to the plain language of the Constitution, he has adopted an interpretation of section one that is not justified by either of its provisions. Apparently aware of this fact himself, Justice Black then resorted to an unacceptable method of construction which does not analyze the four clauses of section one separately and individually, as properly should be done, but which attempts to justify a theory of incorporation based on an analysis of section one “taken as a whole.” Moreover, by doing so, Justice Black destroyed his entire argument, since the only two individuals that Justice Black cited as expressing any intention of incorporating the Bill of Rights based their arguments not on section one “as a whole,” but specifically on the privileges and immunities clause.

Secondly, Justice Black’s historical argument, as presented in his appendix, is very weak indeed. As mentioned above, Black was able to find only two members of the 39th Congress who expressed any intention of incorporating the Bill of Rights, and the one gentleman who Black relied on as his star witness proves to be very confused and fuzzy in his understanding of the entire question.

By contrast, a veritable mountain of historical evidence to the contrary has been discovered by scholars whose findings have been widely accepted among disinterested observers.86 As one author has concluded: “In (Justice Black’s) contention that Section I was intended and understood to impose Amendments I to VIII upon the states, the record of history is overwhelmingly against him.”87

Convoluted Construction

As we begin our examination of Black’s interpretation of the 14th Amendment, and of his case for incorporation, the first point to notice is that Black referred to section one “separately and as a whole” as the means by which the Bill of rights were to be made applicable to the states. The first question to be asked of Justice Black is whether he really believed the equal protection clause, for example, could stand on its own as the grounds for overruling Barron v. Baltimore? Mr. Black faltered on this point, however, when he stated in the following paragraph that section one “taken as a whole” is the means by which the incorporation process is to take place. Here he has left off referring to the provisions of section one “separately,” and apparently has conceded the point.

By saying, however, that the language of section one should be “taken as a whole,” Mr. Black betrayed the fact that he did not consider the text of the Constitution to be of primary importance when interpreting it. Rather than separately analyzing the meaning of each of these provisions, which have very different meanings indeed, Mr. Black engaged in some sort of abstract Constitutional mathematics in order to achieve the desired sum total. Such a careless approach is unacceptable for the purposes of Constitutional construction, especially coming from someone who himself claimed to put great trust in the language of the instrument.

Moreover, not only was Justice Black’s interpretation of section one “taken as a whole” wrong in principle, but his statement that such was the expressed purpose of those who favored and opposed the amendment is also wrong in fact. The truth of the matter is that Black’s appended history of the 14th Amendment indicates, at most, that if section one was understood to make the Bill of Rights applicable to the states, this was to be done by the privileges and immunities clause. The only two sources quoted by Justice Black which indicate some intent on the part of those who adopted the 14th Amendment to incorporate the Bill of Rights are the statements of two Congressmen who helped draft section one. Yet the remarks of Senator Jacob Howard and Representative John Bingham, aside from any question of their reliability, clearly indicate that they understood amendments I through VIII to be made applicable to the states solely by the privileges and immunities clause. Their analysis of the citizenship, due process and equal protection clauses were offered independent of any discussion of either the privileges and immunities clause or the incorporation of the Bill of Rights.

As we have already seen, however, the Slaughterhouse Cases eviscerated this argument on the grounds that such an interpretation of the privileges and immunities clause was not justified by its language. And the Slaughterhouse interpretation of that clause has not been overruled. Evidently aware of that fact, and realizing the insufficiency of the other two clauses in section one to accomplish such a purpose on their own, Justice Black relied on combining them all together in hopes of achieving the same end.

By doing so, Justice Black essentially did the same thing he accused the majority of doing: substituting his own concepts for the language of the Constitution. Although he claims that the framers of the 14th Amendment thought that section one as a whole was “sufficiently explicit” to make the Bill of Rights valid against the states, Justice Black did not point to any precise language expressing such a purpose “too clearly to admit of doubt.”

When faced with this very criticism from his colleagues on the Court, Justice Black found himself stumbling over his own faulty premises. In Duncan v. Louisiana,88 a case decided some twenty years after Adamson, one judge charged that Black’s theory of incorporation based on a reading of section one “as a whole” was an “exceedingly peculiar” way of saying that the Bill of Rights would thereby be made applicable to the states.89

In response to this accusation, Justice Black stated: “I can only say that the (privileges and immunities clause) seems to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.”90 By saying this, of course, Justice Black moved closer to the views of those two Congressmen he cited in support of his “original intent” argument. But this statement also runs into the obvious problem of the Slaughterhouse reading of the privileges and immunities clause. Clearly aware of that problem himself, Justice Black responded in two ways.

First, he decided to attack indirectly the Slaughterhouse decision by suggesting that any reading of the privileges and immunities clause that excludes the protection of the Bill of Rights “renders the words of this section of the 14th Amendment meaningless.” Of course, Slaughterhouse had read the privileges and immunities clause exclusive of the guarantees of the Bill of Rights, but it had already deflated Black’s argument that such an interpretation would render the clause meaningless. The Slaughterhouse majority had done so by enumerating some of the rights protected by the new privileges and immunities clause which are national in character. Since this ruling was still good precedent, Justice Black’s statement reveals that he was either ignorant of that opinion, or he was calling for its overturn.

Apparently unwilling to admit either of these implications, Justice Black then resorted to his second technique designed to avoid the Slaughterhouse dilemma: Rather than pursuing the privileges and immunities clause argument, Justice Black retreated to his previous argument of taking section one “as a whole.”

This approach, of course, still suffers from the same criticisms mentioned above: 1) it does not comport with the views of Howard and Bingham; 2) it fails to point to any “plain and intelligible language” expressly declaring a purpose to incorporate the Bill of Rights; and 3) it is an unacceptable method of interpretation which does not give primary consideration to the text of the Constitution.

Although Justice Black assured us that the Constitution will survive if its purposes are “conscientiously interpreted,” he himself did not seem willing to be so conscientious when its language did not support his own theory. He was quite eager to search for some “conjectured intent” in the records of Congress, but if the justice truly desired to be faithful to the Constitution, he would not adopt such a view if it was not justified by the text of the instrument.

Handicapped History

In addition to the fact that Justice Black’s theory of wholesale incorporation was based partly on a faulty interpretation of the 14th Amendment, his argument that the intent of the framers of that Amendment was to make the Bill of Rights applicable to the states lacks total historicity. In short, when Justice Black’s “evidence” is tested against the weight of the full historical record, it becomes apparent that he either neglected to consider a whole mountain of essential material which refutes his theory, or he inexcusably chose to dismiss the opposing material he found by unjustly weighing the evidence in his favor. To demonstrate this requires an investigation not only of the speeches made during the 39th Congress’ debate over the 14th Amendment, but also public speeches, state ratification debates, and contemporary state and federal court opinions.

Congress — Bingham’s Confusion

Justice Blacks’ historical case begins with the first draft proposal of Black’s star witness for incorporation, Representative John Bingham. The text of that proposal was quoted earlier.91 What is so important about this proposal is that, even though it was eventually allowed to die, it generated some interesting exposition by Congressman Bingham which deserves some consideration.

It will be admitted, as Justice Black pointed out, that Bingham had made some sweeping declamations about this proposal which at first glance seem to indicate the Congressman intended for it to make the Bill of Rights applicable to the states. Illustrative of his statements is the following: “The proposition pending before the House is simply a proposition to arm the Congress … with the power to enforce the bill of rights as it stands in the Constitution today. It hath that extent — no more.”92 Bingham even cited the case of Barron v. Baltimore to substantiate his point that the Bill of Rights are unenforceable against the states.93 In an effort to change that situation, Bingham offered his first draft proposal.

Upon closer examination of Bingham’s statements, however, several inconsistencies appear which reveal Bingham’s misunderstanding of the whole incorporation issue. First, Bingham’s use of the term “bill of rights,” or “immortal bill of rights,” as he was fond of saying, did not refer to the first eight amendments of the federal Constitution, but was strictly limited to the provisions contained in his first proposal — the privileges and immunities clause and the due process clause of the Fifth Amendment. In fact, at no time did Bingham ever mention amendments I to VIII. The natural conclusion to be drawn from his statements, then, is that Bingham apparently did not even know what part of the Constitution comprises the Bill of Rights.

Secondly, Bingham did not even understand the import of the Barron case that he cited. That case had clearly affirmed the rule that the first eight amendments were not binding on the states, but only on the federal government. Bingham, however, misinterpreted Chief Justice Marshall to the effect that the Bill of Rights were indeed binding on the states because of their duty to uphold the Constitution as the supreme law of the land. Congress, Bingham believed, only lacked the power to enforce that oath. Bingham’s proposal, then, was designed to provide Congress with such an enforcement power.

This, of course, is a gross misreading of that landmark case. First, because the Bill of Rights were not binding upon the states, period, any “violation” of them by a state would not constitute a violation of their oath to obey the Constitution, since a state cannot violate a section of the Constitution which does not apply to it. Therefore, what the Bill of Rights failed to impose upon the state governments could not be imposed upon them by the clause which simply affirms that the Constitution is to be the supreme law of the land. Such egregious flaws in Bingham’s analysis of the issue seriously question the reliability of his remarks.

Nevertheless, Bingham’s first proposal was defeated and was replaced by a new draft which appears in the form of section one of the 14th Amendment. This new draft was significantly different from the first offered by Bingham, and therefore it must be considered as a totally new proposal deserving of new analysis and exposition. In Bingham’s only explanation of this new section one, he never mentioned any intent to overturn Barron v. Baltimore, nor did he ever mention any intent to make the first eight amendments applicable to the states, as Justice Black has said. In fact, Bingham had even ceased using his beloved phrase “the immortal bill of rights.” The only allusion he made in this speech to any of the first eight amendments is his suggestion that the states had, “contrary to the express letter of the Constitution,”94 inflicted cruel and unusual punishments upon citizens for which the federal government could provide no remedy. Bingham’s implied intention was to provide such a remedy by section one.

By this statement Bingham revealed that he still believed the Bill of Rights, and specifically, this portion of the eighth amendment were applicable to the states before the adoption of the 14th Amendment, despite Barron. Nevertheless, even if this provision is now to be “enforced” against the states, are we to assume that the remainder of the first eight amendments are also to be made applicable to the states? According to Barron, we are not to adopt such a view in the absence of “plain and intelligible language” expressing such a purpose. Surely, this one vague comment by Representative Bingham is, as one author has said, an “inapt way” to express the idea that section one has incorporated the Bill of Rights.95

The only occasion in which Bingham clearly expressed the idea that the 14th Amendment would make the Bill of Rights applicable to the states was not in debate over that amendment, but in a speech five years later. In that speech of 1871 upon which Justice Black relied so heavily, Bingham did explicitly state that the understanding that lay in his mind when he drafted section one in 1866 was that the privileges and immunities clause would make amendments I through VIII applicable to the states.

If read by itself, this statement seems conclusive. Yet, this opinion was by no means the same that he had expressed of section one when he was explaining it back in 1866. In fact, one Congressman Garfield, who was opposing Bingham’s position in 1871, responded to Bingham’s claim that he had made his “incorporationist” views plainly known at the time by saying: “My colleague can make but he cannot unmake history.”96 Garfield had refreshed his memory of the 1866 debates by reading the congressional records, and was therefore on good ground to rebuff Bingham’s revisionism. Consequently, since Bingham’s only remarks revealing any intention of incorporation amount to no more than a vague reference to “cruel and unusual punishments,” his testimony on behalf of Justice Black’s “wholesale” theory is insignificant indeed.

Congress — Howard’s Isolation

The only real witness that Black could find who actually expressed an intention to make the Bill of Rights applicable to the states was Jacob Howard, the gentleman who introduced the 14th Amendment to the Senate. In that opening speech Senator Howard did express the view that the “privileges and immunities of citizens of the United States” includes the protections afforded by the first eight amendments to the U.S. Constitution. As we have seen, however, this interpretation of that clause was rejected by the Slaughterhouse Cases as not being justified by the text of the privileges and immunities clause. Moreover, neither did Howard’s view comport with that of Justice Black, who insisted on analyzing section one “as a whole.”

In addition, Howard’s reading of the privileges and immunities clause was unique, having been held by no other member of the 39th Congress. Therefore, Howard’s opinion can not be considered that of the entire body. In fact, immediately after Howard’s speech, the Republicans called for adjournment to discuss in caucus some of the difficulties raised by Howard’s speech concerning the meaning of section one. When the Senate reconvened, the first member to discuss section one, Senator Poland from Vermont, equated the privileges and immunities clause of the 14th Amendment with that found in Art. IV, sec. 2. This, of course, is quite inconsistent with the view expressed by Senator Howard. Moreover, this view that the new privileges and immunities clause “secures nothing beyond what was intended by the original provision” in Art. IV, sec. 2 was held by numerous other members of the 39th Congress. It would even be safe to say that this was the view held by the 39th Congress generally.97

Congress — The Consensus

Furthermore, the records of Congress also reveal that if any general opinion of section one “taken as a whole” was held at all, it was not that section one would incorporate the Bill of Rights, but that it would “incorporate” the Civil Rights Act of 1866. This bill, which was designed to offer some measure of protection to the newly freed slaves, had been opposed by many members of the 39th Congress because they doubted that it could be justified on any provision of the Constitution. When section one then attempted to protect some of the same guarantees of the Civil Rights Act, many of these same members supported the 14th Amendment because they saw in it a vehicle for “constitutionalizing” that Act. In fact, well over half of the 18 congressmen who spoke during the debate over the 14th Amendment expressed this view.98

Remarkably, this point was even recognized by Justice Black in his appendix,99 though he failed to see its significance. The significance lies in the fact that the Civil Rights Act was limited to 1) protecting such basic rights as the right to contract, sue, hold property and give evidence in court and 2) guaranteeing equal protection of the laws. Of course, these rights bear a remarkable resemblance to the privileges and immunities enumerated in Corfield v. Coryell,100 but they could by no means be interpreted to encompass the many broad and sundry freedoms found in the Bill of Rights. With such a narrow interpretation of section one having been held by a large proportion of Congress, it seems all the more incredible that Justice Black, who obviously studied these materials, would still insist that the framers of that section thought it “sufficiently explicit” to make the Bill of Rights applicable to the states.

The States

Let us turn away now from an inquiry into the intent of Congress to an examination of how the 14th Amendment was interpreted by “those for whom it was adopted,” namely, the people in the states which ratified the Amendment.

Because such evidence as would demonstrate the people’s understanding of section one would have “great weight in its exposition,” it is rather surprising to find that Justice Black’s appendix carries no such material. His only comment in this regard is a quotation taken from Black’s secondary historical source, Horace Flack’s Adoption of the Fourteenth Amendment.101 Concerning the content of the public speeches made by the members of Congress during the ratification process, Flack observed:

There does not seem to have been any statement at all as to whether the first eight Amendments were to be made applicable to the States or not … but it may be inferred that this was recognized to be the logical result by those who thought that the freedom of speech and of the press as well as due process of law, including a jury trial, were secured by it.102

Now this is truly a remarkable statement. First, the fact that no mention of incorporating the Bill of Rights was made by any Congressman is incriminating of itself and weighs heavily against Black’s thesis. But for him to assume that the gentlemen who made inexplicit references to the various rights mentioned above necessarily understood the entire Bill of Rights to be made wholly applicable to the states is to stretch the limits of logical inference. Even worse, if Justice Black expected these inexplicit references to have put the people who heard those speeches on notice that the 14th Amendment would make the Bill of Rights applicable to the states, then he was not only presumptuous, he was dishonest. To attribute to the people an interpretation of section one based on an assumption about their grasp of a few speakers’ implied statements is absurd. As Joseph Story has said: “The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men.”103

Actually, the “reasonable interpretation” that the people placed on section one can be easily deduced. Although Justice Black provided absolutely no discussion of the original understanding of the 14th Amendment as may be derived from the state ratification debates, several scholars have studied this aspect of the Amendment’s history and have reached the same conclusion: The general opinion of section one held by the people who adopted it was that it embodied the Civil Rights Act of 1866.104 Yet, as we have seen, the Civil Rights Act is so limited in scope as to allow no room for incorporating the Bill of Rights. Among the scholars who have demonstrated that the people equated section one with the Civil Rights Act is Horace Flack himself.105 Justice Black, however, seemed oblivious to this fact.

To be sure, some of the states expressed the concern that the 14th Amendment would lead to the expansion of the national government and the demise of the federal system. However, because such issues as citizenship, voting rights and other “domestic relations” had always been under state authority, it was only natural for the states to fear how these areas might be affected by the “vague generalities” of section one. Yet, the records in the states show that no one hinted, much less contemplated that either of the provisions of section one was a “Trojan Horse” concealing the incorporation of the Bill of Rights.106 If such an intention had been suggested, it would have been bitterly opposed. In fact, Horace Flack agreed with the opinion of one Congressman who said in 1871: “If the monstrous doctrine (of incorporation) now set up as resulting from the provisions of that 14th Amendment had ever been hinted at, that Amendment would have received an emphatic rejection at the hands of the people.”107 This statement also seems to have been overlooked by Justice Black.

Further evidence which demonstrates that the states in no way understood the 14th Amendment to incorporate the Bill of Rights may be found in post-ratification events. First, several states changed or attempted to change their constitutions in a way which would make them inconsistent with one of the first eight amendments, thus indicating that the states considered themselves unbound by this federal standard.108 Secondly, state courts continued to decide cases which sought protection from the federal Bill of Rights by deferring to the precedent of Barron v. Baltimore, thus demonstrating their conviction that this case was unaffected by the 14th Amendment.109 On the basis of this evidence, then, it is clear that the states by no means understood any part of that Amendment to have the effect of making Amendments I through VIII applicable to them in their entirety.

The Supreme Court

When we turn now to an examination of how the Supreme Court has treated Justice Black’s theory of wholesale incorporation, we will find that it has consistently rejected his argument. Up until the time that the incorporation theory was plainly argued before the Court, the nation’s highest tribunal continued to decide cases which claimed state violation of the federal Bill of Rights by relying, as the state courts continued to do, on Barron v. Baltimore. The Court did this, for example, in the case of Twitchell v. Pennsylvania,110 decided less than one year after the ratification of the 14th Amendment. In that case, the plaintiff claimed that the state court proceeding which convicted him had violated the 5th and 6th Amendments of the federal Constitution. The Court rejected this argument by citing Barron and declared that “the scope and application of these amendments are no longer subjects of discussion here.”111 This case demonstrates, then, that the Supreme Court, which had witnessed the entire ratification process, expressed no indication that it understood the 14th Amendment to have the effect of incorporating the Bill of Rights.

Of course, the Twitchell case had only argued that the 5th and 6th Amendments were made applicable to the states by the 14th, and had not raised the broader wholesale incorporation argument. Yet, even when this argument was specifically raised by counsel in subsequent cases, the Court still flatly rejected such a claim. As we have seen, although the Slaughterhouse Cases were the first to construe the provisions of section one, and thereby eliminate them as grounds for making the Bill of Rights applicable to the states, that opinion did not directly address the full incorporation argument. That theory was first fully argued and addressed by the Court in the case of In re Kemmler.112 There the plaintiff admitted that the first ten amendments had originally applied only to the federal government, yet, inasmuch as these amendments recognize the fundamental rights of American citizens, they are protected by the privileges and immunities clause of the 14th Amendment and now made applicable to the states.

The response of the Court, as it has been every time this argument has been raised, was to dispose of it by relying on the Slaughterhouse interpretation of the privileges and immunities clause. Thus, in the cases of Maxwell v, Dow (1900),113 Twining v. New Jersey (1908), Palko v. Connecticut (1937) and Adamson v. California (1947), the Court has consistently rejected Black’s wholesale incorporation theory.

Despite this long line of cases, however, Justice Black still insisted that his theory had not received full consideration by the Supreme Court. Yet, Justice Black himself voted with the Palko majority which specifically rejected Black’s argument with these words:

In appellant’s view … whatever would be a violation of the original bill of rights (amendments I to VIII) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.114

Moreover, although Black thought it necessary to provide his appendix of historical material in order to give the Adamson Court an opportunity to fully consider his wholesale theory, Black’s “original intent” argument had already been answered in Maxwell v. Dow.

In this case the plaintiff was claiming that the criminal proceeding by which he had been convicted of robbery had violated the 5th and 6th Amendments of the Constitution and the privileges and immunities and due process clauses of the 14th Amendment.

In making his argument for incorporating the Bill of Rights through the privileges and immunities clause, counsel for the plaintiff had cited from the speech given by Senator Howard when he introduced the 14th Amendment to the Senate for consideration. The plaintiffs counsel argued that since Howard had suggested that the privileges and immunities of citizens of the United States included the first eight amendments, that the Supreme Court should therefore adopt this interpretation also.

The Maxwell Court rejected this argument, however, by stating that one man’s views do not necessarily reflect the interpretation given to the Amendment by either the members of Congress who adopted it, or the majority of the state convention which ratified it. The Court was quick to add, however, that the true meaning of the 14th Amendment is to be determined not from the speeches made regarding it but from the language actually used in the amendment itself.

The Court then went on to explain more fully the proper manner for construing a provision of the Constitution:

The safe way is to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted. This rule could not, of course, be so used as to limit the force and effect of an amendment in a manner which the plain and unambiguous language used therein would not justify or permit.115

By laying such emphasis on the “plain and unambiguous” language of the Constitution, and on the intended purpose for which it was adopted, the Court has accurately articulated and faithfully followed the traditional rules of interpretation adhered to by Marshall and Story. What is most striking about this opinion, however, is that by consistently applying these rules to the 14th Amendment, the Maxwell Court had come to a conclusion about the theory of wholesale incorporation which not only contradicts but soundly refutes the thesis of Justice Black — someone who claimed to be following these same rules.

Thus, rather than providing revealing new evidence, Justice Black’s historical argument, which is based on the “conjectured intent” of one or two Congressmen, had already been weighed in the balance and found wanting. Yet, on the basis of his dissent, which is premised upon faulty interpretation and unsupportive historical materials, Justice Black would have the Court overturn 80 years of precedent. By dismissing Black’s argument, however, the Adamson Court had rightly chosen to reject a legal and historical fallacy.


The Court has chosen, however, to continue applying the incorporation doctrine according to the “selective” process of Palko v. Connecticut. Yet, as this study has demonstrated, the Court reached its conclusion in that case not by following the traditional rules of interpretation, which were accepted by the framers of the Constitution. Rather, the Palko Court blatantly adopted an evolutionary standard of construction in which neither the language nor the original purpose of the 14th Amendment, in particular, and the Constitution, in general, is relevant to any understanding of our nation’s frame of government.

In addition, this study has also shown that although Justice Black claimed to be following the traditional rules of interpretation to devise his theory of wholesale incorporation, he failed to completely and faithfully follow all of those rules in order to reach his erroneous conclusion.

Moreover, this study has primarily demonstrated that by applying the traditional rules of interpretation to its reading of the 14th Amendment, the Supreme Court of the late 19th Century had, in cases such as Slaughterhouse and Maxwell v. Dow, emphatically rejected both the selective and wholesale versions of the incorporation doctrine as a legal and historical fallacy.

In demonstrating these assertions, however, this study has made no attempt to prove the superiority of the Marshall/Story standard of interpretation or to make a cogent case as to why it should be adopted by American jurists, scholars, and statesmen. These are very complex and profound questions which deserve the full attention of an entirely separate study. Suffice it to say, however, that based on many moral, logical and exegetical reasons, it is the view of this author that these traditional rules of interpretation are the proper standard of construction and the one that is likely to produce the most reasonable, accurate and fair reading of the Constitution. Not least among these reasons, of course, is the fact that the Constitution should be interpreted according to the rules of construction by which the framers drafted that remarkable document.

In addition to the fact that this study has left the foregoing questions to a more in depth inquiry, neither has this study attempted to elaborately argue the pros and cons of the incorporation doctrine itself. Many legal scholars have examined this question, however, and it appears that although many scholars criticize the illogical, unhistorical approach by which the Court has made the Bill of Rights applicable to the states, very few object to holding the state governments to the same high standard as the federal government.

The ends, however, do not justify the means. Despite how strongly our constitutional scholars and judges may be convinced of the desirability of making the Bill of Rights applicable to the states, they must resist the temptation of adopting a tenuous legal theory to support their desired end. Even worse, not only has the Court failed to follow the proper rules of construction in its reading of the 14th Amendment, but far from being desirable, the effects of the incorporation doctrine have been devastating to both our governmental structure and our individual freedoms.

Of course, the problem lies not so much with the nature of the restrictions found in the Bill of Rights, for they are undoubtedly good and just. The great danger of the incorporation doctrine lies in the fact that it has 1) weakened the sovereignty of the state governments by bringing them under greater federal control; 2) expanded the autocratic power of the Supreme Court by allowing it to redefine the Constitution; and 3) eroded our inalienable rights by leaving their protection in the hands of arbitrary judges who determine the constitutionality of a law by testing whether it “shocks the conscience.”

In light of this threatening situation, I believe that what is needed, in part, to restore and secure our freedoms, is a complete renunciation of the incorporation doctrine and the erroneous legal philosophy upon which it is founded. Since the root of the incorporation doctrine lies in an abandonment of the proper rules of interpretation, the key to overturning that theory is adhering to the full force of the Slaughterhouse Cases, which by following the Marshall/Story standard of construction, had destroyed the entire incorporation argument.

Furthermore, the rules of interpretation, which are the key to solving many other problems created by the federal judiciary, must begin to be respected and applied to every other area of Constitutional law as well. Rather than reading into the words of the Constitution an evolving meaning which may be altered to fit the personal predilection of the judge, the federal courts must begin to respect the actual text of the Constitution as it was reasonably interpreted at the time of its adoption. Such an approach would, for example, restore the original design of our federal system, which, with its diffusion of power, was wisely recognized by our founding fathers as the best governmental device for protecting our individual freedoms.

Many of these freedoms have been lost already, and even more threaten to be taken away. Only by returning to the true rules of constitutional interpretation can we restore and continue to enjoy the protection and stability that our written Constitution provides. Only then can America hope to once again become a government of laws and not of men.

First:   The Incorporation Doctrine: Introduction
Previous:   Rules of Interpretation Established and Applied


* Copyright © 1990, 2014 Bryan Keith Morris. Used with permission.
   64.     Alexander Hamilton, quoted in Raoul Berger, “The Fourteenth Amendment: The Framersi Design,” 30 S. C. L. Rev. 4 (1979), 505.
   65.    Davidson v. New Orleans, 96 U.S. 97, 104 (1878).
   66.     Magna Carta, Chapter 39. See also Berger, Government, 270.
   67.    Murray’s Lessee, 59 U.S. (18 How.) at 276-77.
   68.    Baldwin v. Hale, 68 U.S. (1 Wall.) 223 (1864) and Hagar v. Reclamation District, 111 U.S. 701 (1884).
   69.    Palko v. Connecticut, 302 U.S. at 323.
   70.    Id., at 326.
   71.    Id., at 325.
   72.    Supra note 49.
   73.    Id., at 326.
   74.    Palko v. Connecticut, 302 U.S. at 326.
   75.    Id., at 327.
   76.    Ibid., at 326.
   77.     See infra notes 90 and 96.
   78.    Slauqhterhouse Cases 83 U.S. (16 Wall.) at 77.
   79.    Id., at 327.
   80.    Ibid., at 327.
   81.     It was this “logic,” for example, that allowed the Court to reason that capital punishment, countenanced by the 5th Amendment, “constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Furman v. Georgia, 408 U.S. 238 (1972) at 240.
   82.     It is for this reason that certain provisions of the Bill of Rights, such as the 5th Amendment grand jury indictment and the 7th Amendment civil jury trial requirement have not been incorporated against the states. It is under this rationale, also, that the so-called “right to privacy,” found nowhere in the text of the Bill of Rights, has been incorporated to protect from state encroachment such “fundamental rights” as abortion. See Roe v. Wade, 410 U.S. 113 (1973).
   83.    Slaughterhouse Cases 83 U.S. (16 Wall.) at 78.
   84.     211 U.S. 78 (1908).
   85.     332 U.S. at 71, 72, 74.
   86.     Berger, Government, 101.
   87.     Fairman, 139.
   88.     391 U.S. 145 (1968).
   89.    Id. at 174-75, footnote 8 (Harlan, J. dissenting).
   90.    Id. at 166 (Black, J., concurring.)
   91.    Supra note 39.
   92.     Congressional Globe, 39th Cong., 1st. Sess. (1866). H. 1088.
   93.    Id., H. 1089.
   94.    Id., H. 2542.
   95.     Fairman, 53.
   96.     Congressional Globe, 42nd Cong., 1st Sess., (1871) app. 151.
   97.    Supra note 42.
   98.     See speeches of Stevens, Finck, Thayer, Broomall, Boyer, Garfield, Raymond, Eliot, Rogers and Kelley, Congressional Globe, 39th Cong., 1st Sess., H. 2459-2542 and speech of Henderson, Id., S. 3031.
   99.     332 U.S. at 107-8.
 100.    Supra note 38.
 101.    Supra note 8.
 102.    Flack, 153-4.
 103.    Story, footnote at 392.
 104.    Joseph B. James, The Ratification of the Fourteenth Amendment (Mercer University Press, 1984) 23-4. See also Bond, infra note 63, at 443.
 105.    Flack, 153-5.
 106.    Bond, 458.
 107.    Flack, 236-7.
 108.    Fairman, 84-132.
 109.    Ibid.
 110.    74 U.S. (7 Wall.) 321 (1869).
 111.    Cited in Fairman, 132.
 112.    136 U.S. 436 (1890).
 113.    176 U.S. 581 (1900).
 114.    302 U.S. at 323.
 115.    176 U.S. at 601-2.