The Incorporation Doctrine: A Legal and Historical Fallacy

by Bryan Keith Morris

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The controversy that was sparked by the public dispute between Attorney General Edwin Meese and Supreme Court Justice William Brennan over the nature of constitutional interpretation has generated a renewed interest among legal scholars in the “originalist” or “intentionalist” school of constitutional construction. At the same time, however, the dispute has provoked quite a caustic response by critics who have dismissed Meese’s “jurisprudence of original intent” as arrogant, vain and irrelevant.1

Yet, while some observers may disagree with the Attorney General, it would be unwise for them to consider the controversy a barren discussion, for the issue of what rules of construction American judges should follow when deciding constitutional cases is a crucial and fundamental question which will affect the entire body of American Constitutional law. Indeed, since constitutional interpretation is the inevitable starting point and will determine the outcome of any constitutional question, the rules of construction that are to be followed is one of the first issues which must be resolved. For when judges choose different rules to examine the same question, it is quite likely they will reach very different results. This is true, for example, of the controversy surrounding the Supreme Court’s interpretation of the 14th Amendment to make the Bill of Rights applicable to the states.

This theory, known as the incorporation doctrine, has received a great deal of attention from legal thinkers of various jurisprudential viewpoints, both inside and outside the Court. Yet, because those who have studied the incorporation doctrine have approached the issue with very different standards of constitutional interpretation, they have produced nearly as many conclusions as there are scholars investigating the issue.2

Despite the many different interpretive approaches that have been applied to the incorporation doctrine, however, one standard of interpretation has been overlooked by scholars and jurists alike. Therefore, the purpose of this study is to propose that the classical rules of interpretation that were followed by American jurists and statesmen throughout the 17th, 18th and early 19th centuries3 be applied to an analysis of the 14th Amendment in order to test the validity of the incorporation doctrine.

One of the advantages that this standard of interpretation offers is the fact that it was these rules of construction by which the Constitution was written and by which it was naturally expected to be interpreted. Moreover, not only do these rules enjoy a long tradition in American jurisprudence, but when they are applied to the 14th Amendment, they offer a much more consistent rule of law than the variable standard now being applied through the selective theory of incorporation. An application of these rules to the incorporation doctrine first requires an understanding of the nature of the controversy surrounding this issue.

Before the ratification of the 14th Amendment, the Supreme Court had ruled in the case of Barron v. Baltimore4 that the first eight amendments to the Constitution, aggregately known as the Bill of Rights, did not apply to the states, but were strictly limitations on the federal government. However, beginning slowly in the early 20th century and with increasing frequency in the 1960’s, the Supreme Court has interpreted the first section of the 14th Amendment to have the effect of “incorporating” the Bill of Rights by making most of the first eight amendments applicable to the states.5

Given the nature of the federal structure as originally framed by the Constitution, and given the restrictive nature of the Bill of Rights, the incorporation doctrine has effected a radical alteration in the relationship between the state and federal governments. Therefore, because of its profound effect on a wide range of constitutional issues, the question of the incorporation doctrine’s legal validity and historical veracity has become and continues to be a hotly contested point of disagreement among the various scholars and. jurists who have studied this very critical question.

Even within the Court itself, its members have been divided among themselves as to how the incorporation doctrine is to be applied and upon what constitutional grounds it is to be justified. Again, this division can best be explained by the difference in the rules of interpretation that each school on the Court has chosen to follow.

The view that has held sway argues that it is the due process clause of the 14th Amendment that makes the Bill of Rights applicable to the states. This theory, originally established in the case of Palko v. Connecticut,6 does not suggest that all of the first eight amendments should be binding on the states merely because they are contained in the Bill of Rights. Rather, the Court has held that the only rights which are to be incorporated through the due process clause are those “fundamental principles of justice” that are “implicit in the concept of ordered liberty.” According to this reasoning, some rights which are not specifically mentioned in the Bill of Rights may still be made applicable to the states, whereas some provisions found within the first eight amendments may be excluded from state application. The result of this theory has been the gradual process of selectively incorporating nearly all of the first eight amendments on a case by case basis.7

One conflicting view, which has generated much debate but has never been accepted by a majority of the Court, argues that the Congressmen who framed the 14th Amendment specifically intended for section one of that amendment to make the entire Bill of Rights completely applicable to the states. This “wholesale” theory of incorporation was most fully articulated in Justice Black’s dissenting opinion in the case of Adamson v. California.8

As it now stands, the Court has determined that its acceptance of the selective theory of incorporation is no longer open to challenge.9 Yet, it would be neither wise nor just for the Court to deem the incorporation doctrine a closed issue without first considering what new light an application of the traditional rules of interpretation might shed on the meaning of the 14th Amendment.

Of course, there are many normative and philosophical questions which may be raised concerning the pros and cons of any scheme of interpretation. However, this study will not attempt to address those issues. Although such questions are quite valid and deserve full consideration, they are beyond the scope of this present inquiry.

What this study simply proposes to do is apply the traditional rules of interpretation to the question of whether the 14th Amendment incorporates the Bill of Rights. Consequently, this study will demonstrate that an application of these rules to an analysis of section one of the 14th Amendment reveals that the incorporation doctrine, by either the selective or wholesale method, is a legal and historical fallacy. Indeed, as this study will further demonstrate, a just application of these rules inevitably leads to the conclusion that the idea that the 14th Amendment makes the Bill of Rights applicable to the states is neither comprehended within the language of section one nor supported by the history of the amendment.

Of course, such an examination of the incorporation doctrine is by no means completely unique. As was indicated above, quite a mountain of original and extensive research has already been done on this critical issue. Yet, of all the many scholars who have written in this area, none has combined an application of the classical rules of constitutional construction with a thorough investigation of the historical materials in order to determine the meaning of the 14th Amendment.

Charles Fairman,10 for example, whose influential historical study effectively destroyed the “framer’s intent” argument, fails to apply any interpretive analysis to the issue except to “brood” over it long enough to accept Cardozo’s “concept of ordered liberty.” This approach consequently leads him to swallow unquestioningly the entire “selective” process. William Crosskey11 and Jacobus ten Broek,12 on the other hand, not only fail to apply the traditional rules of constitutional interpretation, but also dismiss any talk of “framer’s intent” as irrelevant.

William Guthrie13 and Horace Flack,14 two early proponents of the wholesale incorporation theory, both concluded from their historical studies of the issue that the 39th Congress which adopted the 14th Amendment fully intended by that provision to make the Bill of Rights applicable to the states. However, these two men undoubtedly stretched the historical evidence to suit their objective, and by failing to follow the traditional rules of interpretation, were much too willing to accept an expansive reading of the provisions of section one.

Alfred Avins15 and Raoul Berger,16 who come closest to the legal/historical analysis employed in this study, do not fully apply all of the rules of construction and rely almost exclusively on the weight of the framer’s intent as conclusive evidence of the meaning of a Constitutional provision.

Admittedly, this review of exemplars is not entirely complete. Yet, inasmuch as these authors are representative of the major research that has been done on the incorporation doctrine, the fact that none have followed the approach of this present study demonstrates its originality and justifies its undertaking.

The methodology that this study will follow, then, is to first establish the classical rules of interpretation as they have been conveniently arranged in Joseph Story’s Commentaries on the Constitution of the United States.17 In addition, Mr. Story’s delineation will be verified in its particulars by the respected pronouncements of John Marshall, Chief Justice of the Supreme Court from 18011835, among whose authoritative opinions these same rules may also be found. Using these rules as the standard of Constitutional interpretation, this study will compare how the three key Supreme Court cases which bear upon the incorporation doctrine have applied or failed to apply these rules.

In addition, this study will examine most of the historical material that may, according to the traditional rules, justifiably influence a proper interpretation of the meaning of the 14th Amendment. These will include the debates in Congress over the Reconstruction amendments, the records of the state ratifying conventions, and state and federal court decisions of the period. Because the historical side of the incorporation debate has already received extensive treatment,18 this study will rely primarily on the thorough research already completed by other diligent scholars, but will also provide original analysis of some of the key materials.

By employing this twofold legal and historical framework of analysis, this study will first examine the Supreme Court decision which is the key to understanding the incorporation doctrine — the Slaughterhouse Cases.19 This study will show that by faithfully following the traditional rules of interpretation, that opinion established a justifiably limited reading of the provisions of section one which was true to both the language and purpose of the 14th Amendment, but which allowed no room for making the Bill of Rights apply to the states.

Secondly, an examination of the Palko v. Connecticut decision, which provided the philosophical foundation for the selective incorporation theory, will reveal that the Palko court made no attempt to follow the traditional rules of interpretation in order to reach what has been criticized as an illogical, unhistorical decision.20

Finally, an examination of Justice Black’s Adamson dissent will reveal that although Black claimed to be following the classical rules of interpretation, he actually misapplied those rules in order to justify his theory of “wholesale” incorporation. Moreover, the historical case he presents in defense of his argument is completely untenable.

In essence, what this twofold legal and historical analysis will demonstrate, is that when the incorporation doctrine is tested by the Marshall/Story rules of interpretation, neither the “selective” nor the “wholesale” theory of incorporation proves to be a defensible article of Constitutional faith.

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* Copyright © 1990, 2014 Bryan Keith Morris. Used with permission.
     1.    William J. Brennan, Jr., “Guaranteeing Individual Liberty,” USA Today, September, 1986, 40.
     2.    See footnotes 4 through 10 infra.
     3.    William Crosskey, Politics and the Constitution, 3 Vols. (Chicago: University of Chicago Press, 1953), Vol. I, 363-374.
     4.    32 U.S. (7 Pet.) 243 (1833).
     5.    See footnote 7 infra.
     6.    302 U.S. 319 (1937).
     7.    The First Amendment: West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Everson v. Board of Education, 330 U.S. 1 (1947). The Fourth Amendment: Mapp v. Ohio, 367 U.S. 643 (1961); Kerr v. California, 374 U.S. 23 (1963). The Fifth Amendment (Double Jeopardy): Benton v. Maryland, 395 U.S. 784 (1969). (Self-incrimination): Malloy v. Hogan, 378 U.S. 1 (1964). (Taking clause): Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897). The Sixth Amendment (Speedy Trial): Klopfer v. North Carolina, 386 U.S. 213 (1967). (Public Trial): In re Oliver, 333 U.S. 257 (1948). (Jury Trial): Duncan v. Louisiana, 391 U.S. 145 (1968). (Notice of Charge): Cole v. Arkansas, 333 U.S. 196 (1948); In re Gault, 387 U.S. 1 (1967). (Confrontation of Witnesses): Pointer v. Texas, 380 U.S. 400 (1965). (Compulsory Process for Obtaining Witnesses): Washington v. Texas, 388 U.S. 14 (1967). (Right to Counsel): Gideon v. Wainwright, 372 U.S. 335 (1963). The Eighth Amendment (Cruel and Unusual Punishment): Robinson v. California, 370 U.S. 660 (1962). See Edward L. Barrett, Jr. and William Cohen, eds., Constitutional Law – Cases and Materials, 7th ed. (Mineola, New York: Foundation Press, Inc., 1985), 518, 519.
     8.    332 U.S. 46 (1947).
     9.    Wallace v. Jaffree, 472 U.S. 38, 48-49 (1985).
   10.    Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights — The Original Understanding,” 2 Stan. L. Rev. 5 (1949).
   11.    Crosskey, Politics and the Constitution.
   12.    Jacobus ten Broek, Equal Under Law. (New York: Collier-MacMillan, Rev. Ed., 1965).
   13.    William Guthrie, The Fourteenth Article of Amendment to the Constitution of the United States (Boston: Little, Brown and Co., 1898).
   14.    Horace Flack, The Adoption of the Fourteenth Amendment (Baltimore: Johns Hopkins Press, 1908).
   15.    Alfred Avins, “Incorporation of the Bill of Rights: The Crosskey-Fairman Debates Revisited,” 6 Harv. J. on Legis. 1 (1968).
   16.    Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977).
   17.    Joseph Story, Commentaries on the Constitution of the United States, 2 Vols. (Boston: Hilliard Gray, 1833; repr., New York: Da Capo Press, 1970), 383.
   18.    See Fairman, supra note 10; Crosskey, supra note 11; Flack, supra note 14; Avins, supra note 15.
   19.    83 U.S. (16 Wall.) 36 (1872).
   20.    Leonard Levy, “Incorporation Doctrine,” Encyclopedia of the Constitution, 4 Vols., Leonard Levy, Kenneth Karst, Dennis J. Mahoney, eds. (New York: MacMillan Publishing Co., 1986),972.
L. Rev. 435 (1985), 454-56.