Incorporation Doctrine and Original Intent

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Scholars have variously concluded that the fourteenth amendment was intended to require the states to obey all, some, or none of the guarantees of the federal bill of rights. To understand the relationship of the Fourteenth Amendment to the Bill of Rights requires examining history leading up to the 1866 framing of the Fourteenth Amendment.

In 1833 the Supreme Court ruled in barron v. city of baltimore that the guarantees of the Bill of Rights did not limit state and local governments. Confronted with abolitionist literature and fearing slave revolts, in the 1830s southern states made it a crime to criticize slavery.

On the eve of the civil war, two southern states prosecuted their citizens for disseminating an antislavery book. Republicans had used an abridged version of the same book as a campaign document. In the lincoln-douglas debates both abraham lincoln and steven douglas recognized that Republicans could not campaign in the South. To protect slavery, federal, territorial, and state governments violated other basic liberties as well.

In the 1857 case of dred scott v. sanford, Chief Justice roger brooke taney said blacks (even free blacks) belonged to a degraded class when the Constitution was written, could not be citizens of the United States, and were entitled to none of the rights, privileges, and immunities secured by the Constitution to citizens, including rights in the Bill of Rights.

Concern for civil liberties became part of the ideology of the republican party. The Republican campaign slogan in 1856 was "Free Speech, Free Labor, Free Soil, and Fremont."

Leading Republicans adhered to an unorthodox, antislavery legal philosophy. Although the Supreme Court had suggested that blacks could not be citizens of the United States, Republicans insisted that free blacks were citizens. Leading Republicans also thought, contrary to Supreme Court decisions, that the Bill of Rights protected American citizens against state violation of their liberties. From 1864 to 1866 these views were expressed by Republican conservatives, moderates, and radicals.

When Congress met in 1866, the defeated southern states sought readmission to the Union and to Congress. Southern states and localities had passed black codes restricting for blacks many fundamental rights accorded to whites, including freedom to move, to own property, to contract, to bear arms, to preach, and to assemble. Congress appointed the Joint Committee on reconstruction to consider the condition of the southern states and to consider whether further conditions should be required before their readmission.

To deal with the Black Codes, Congress passed the civil rights act of 1866. It provided that persons born in the United States were citizens and gave such citizens the same rights to contract, to own property, to give evidence, and "to full and equal benefit of laws and proceedings for the security of person and property as enjoyed by white citizens." Because leading Republicans accepted the idea that the Bill of Rights liberties limited the states even before the passage of the Fourteenth Amendment, they could read "the full and equal benefit of laws … for the security of person and property" to include Bill of Rights liberties.

Democrats, along with President andrew johnson, denied the power of the federal government to pass the Civil Rights Act. Republicans insisted that the power to pass the act could be found in the thirteenth amendment, which abolished slavery; in the original privileges and immunities clause of Article IV, section 2; and, in the view of several leading Republicans, in the due process clause of the Fifth Amendment.

Although most Republicans thought Congress had the power to pass the Civil Rights Act, Congressman john a. bingham, later principal drafter of the Fourteenth Amendment's first section, argued that a constitutional amendment was required. Bingham and James Wilson, chairman of the House Judiciary Committee, understood the Civil Rights Act as an attempt to enforce the guarantees of the Bill of Rights.

The final version of Section 1 of the Fourteenth Amendment provided that all persons born in the United States and subject to its jurisdiction were citizens and that no state should make or enforce any law abridging the privileges and immunities of citizens of the United States or deny due process or equal protection to any person. Bingham explained that the amendment provided the power "to protect by national law the privileges and immunities of all citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."

Senator jacob m. howard presented the amendment to the Senate on behalf of the joint committee. He explained that court decisions had held that the rights in the Bill of Rights did not limit the states. The privileges and immunities of citizens of the United States, Howard said, included the rights in the Bill of Rights. "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guaranties."

Both in Congress and in the election campaign of 1866, discussion of Section 1 was brief. Republicans said variously that the amendment would ensure that the rights of citizens of the United States would not be abridged by any state; that it would protect the rights of American citizens; that it would protect constitutional rights, including free speech and the right to bear arms; or that it embodied the Civil Rights Act or its principles. Suggestions that the amendment was identical to the Civil Rights Act imply that the act incorporated the due process guarantee and that guarantees of the Bill of Rights limited the states prior to the ratification of the Fourteenth Amendment.

Many state ratification debates were not recorded. Often Republicans said nothing at all, being content to wait and vote. In Pennsylvania, Republicans said the amendment was necessary to secure freedom, including freedom of speech; was needed to protect citizens in all their constitutional rights; and embodied both the principles of the Civil Rights Act and the inalienable rights to life and liberty referred to in the declaration of independence. Radicals in Massachusetts insisted that the amendment was useless because it provided for things already secured by the Constitution, including black citizenship and protection of Bill of Rights guarantees against state action.

In Congress and in the campaign of 1866, except for statements by Bingham and Howard, there were few extended discussions, and often none at all, of the legal meaning of Section 1. Discussions of application of one or more Bill of Rights liberties to the states under Section 1 of the Fourteenth Amendment were similarly brief. Republicans concentrated their attention on different questions—on the merits of the contest between President Andrew Johnson and Congress, on the readmission of southern states, and on broad statements of political principle. Still, in 1866 many Republicans indicated that Section 1 would protect particular Bill of Rights liberties, and none explicitly said that it would leave the states free to deny their citizens privileges set out in the Bill of Rights.

Michael Kent Curtis

(see also: Freedom of Assembly and Association; Freedom of Contract; Freedom of the Press; Incorporation Doctrine; Property Rights; Second Amendment.)


Berger, Raoul 1989 The Fourteenth Amendment and the Bill of Rights. Norman: University of Oklahoma Press.

Curtis, Michael Kent 1986 No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press.

Graham, Howard 1968 Everyman's Constitution. Madison: State Historical Society of Wisconsin.

Hyman, Harold and Wiecek, William 1982 Equal Justice Under Law. New York: Harper & Row.

Ten Broek, Jacobus 1965 Equal Under Law. New York: Macmillan.

Wiecek, William 1977 The Sources of Anti-Slavery Constitutionalism in America, 1760–1848. Ithaca, N.Y.: Cornell University Press.