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The Amendment Series: The 14th Amendment-Incorporation

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Before I unpack the rest of the Fourteenth Amendment, I need to take a moment to hammer down the significance of “incorporation” and this amendment’s contribution to it.

Prior to the amendment’s passage and even based on Supreme Court precedent, Barron v. Baltimore (1833), the Constitution and, more specifically, The Bill of Rights, did NOT apply to states.

Think of the following way and the Constitution’s lack of application to states will be a bit more intuitive. The Constitution establishes the structure and set up of the federal government, while also enumerating the specific powers of the federal government. No one is going to assume that the directions about how to elect the president are going to somehow apply to how a state elects its governor. Further, no one assumes that the age requirements on, say, the House, apply to the lower branches of government in various state government assemblies. Furthermore, the specific enumerated powers are given to the federal government as opposed to the state governments making it silly to then think that these enumerated powers define state government powers. See how this works?

And yet, I hear so many people referring to the Constitution as if it’s meant to define and confine state power.

Ok, so the fact that the actual Constitution, barring the amendments, doesn’t apply to state governments is easier to understand. However, historically, this lack of application to the state governments didn’t end with the Constitution but included the Bill of Rights and any subsequent amendments.

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What does this mean? Well, if a state government passed a law that citizens of that state felt violated their right to guns or speech or any “right”, that state government did not violate the federal Bill of Rights. This means that citizens who felt their rights had been violated had to rely on state constitutions and laws to defend or protect those rights. ONLY the federal government could violate the federal Bill of Rights, while one the state governments could violate the state’s Bill of Rights.

Remember, originally, many of the founders didn’t want a federal Bill of Rights. One of those reasons was because they knew states would have more detailed “Bill of Rights” on their own Constitutions. Further, the way the Constitution set up the federal government was not in an “enumerated rights” capacity, but an “enumerated powers” capacity. In other words, the founders were much more preoccupied with liberty as opposed to rights. You see, a Bill of Rights says “government, you can’t do something”, implying that anything not mentioned it can do–essentially unlimited power with a few caveats. This is very different from, “hey government, you can only do these things and nothing more.” Very limited power. Basically, if the federal government stayed within its Constitutional confines, it would never threaten any of the specific rights many of the state (and now federal) Bill of Rights already protected.

In other words, the federal government was not created to enumerate rights but simply to bring order to an otherwise chaotic society. The state government’s did most of the “right” enumerating.

However, some of the founders were wary of an arbitrary federal government and felt that they should at least list out ten rights that the federal government better not touch in case it does start to push the limits of it’s Constitutionally enumerated powers.

To reiterate then, the Bill of Rights were created exclusively the protect the citizens from the federal government.

The Fourteenth Amendment fundamentally changed all that. Or should I say, the Supreme Court’s interpretation of the Fourteenth Amendment changed all of that, so that this amendment provides federal protection of individual rights against the states.

Get that?

The states can now violate the federal Bill of Rights.

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The arbitrary and unique aspect of this newly established federal protection against state overreach is that the Court says the federal government can only protect citizens from some violations but not all. Meaning, only some of the Bill of Rights have been “incorporated” against the states (the state governments, as well as the federal government, are required to abide by it). However, not all of the Bill of Rights have been “incorporated”, meaning they still only apply to the federal government. As of yet, the Supreme Court has failed to give any real explanation as to why some of the rights in the Bill of Rights apply to states and why others do not.

This “incorporation” started with the Fourteenth Amendment. Incorporation dramatically and fundamentally changed the relationship between state governments and the federal government. So, keep this change in mind as I unpack the rest of this amendment.

“If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be.”

The Liberty Belle

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