The Doctrine of Incorporation

The Supreme Court has agreed to hear a case involving a display of the Ten Commandments on government property. The case is McCreary County v. ACLU of Kentucky. This morning I received a PDF of a brief filed in that case on behalf of several religious right organizations. I do not know if the brief is publicly available, so I won't post a link to it at this time. What makes this brief interesting is that it doesn't just argue that posting the Ten Commandments on public property doesn't violate the first amendment, it argues that the first amendment does not apply to the states at all, leaving them free to do whatever they want. In fact, it argues that none of the bill of rights apply to the states at all, which would reverse nearly a century of legal precedents.

It is of course true that, as originally written, the bill of rights did not apply to state governments except where explicitly applied. Despite the efforts of James Madison, who argued that the limitations on governmental power should be in place against both the state governments and the federal government, it was not possible to pass language to that effect at the time. The states were still pretty much independent units that had their own rules and many states had laws that were in flagrant violation of the Bill of Rights at the federal level. Indeed, Madison wrote to Jefferson that he thought this lack of oversight on the state's ability to pass unjust laws that limit the rights of the individual was the most fatal flaw in the Constitution.

After the Civil War, however, the 14th amendment was passed. Section 1 of that amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This is the basis for what is called the doctrine of incorporation, the idea that the states were incorporated under the Federal Bill of Rights by the 14th amendment. The logic is pretty clear. The statement "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" clearly indicates that no state government could violate the rights of its citizens to any degree not allowed to the Federal government. That is, the limitations placed upon the Federal government in the Bill of Rights were now placed upon state governments as well, preventing them from any encroachments on the individual that would be prevented were they done at the Federal level. This is an extraordinarily important advance for the cause of liberty.

The doctrine of incorporation is pretty much universally accepted in legal circles now. There is some dispute over how to apply specific provisions to the states. For example, Justice Thomas has argued that you cannot apply the Establishment Clause of the first amendment to the states because it does not state a specific right to be protected, hence is not in and of itself a "privilege or immunity" under the 14th amendment; he would still apply the free exercise clause, however, because it does establish a specific right to be protected. I posted a link yesterday to a brief explanation from Doug Laycock as to why Thomas is wrong about the Establishment Clause, and it should also be noted that Thomas is virtually alone in his opinion. No other justice, not even Scalia, would go as far as he went in that opinion. All of them accept the doctrine of incorporation and the application of the Establishment Clause to the states (though they obviously have many disagreements on what that clause allows and disallows).

The brief I received this morning goes far beyond even what Justice Thomas would go, arguing that the doctrine of incorporation doesn't exist at all, that the 14th amendment did not apply the bill of rights to the states in any meaningful sense. This is an extraordinarily dangerous idea. Imagine if the states were free to violate our freedom of speech or freedom of religion. Imagine if they were free to establish state churches!

The meaning of the privileges and immunities clause is one of the most crucial ideas in constitutional law. I intend to write more about this over the next few weeks, but for a good beginning I urge you to read Jon Rowe's review of Randy Barnett's book Restoring the Lost Constitution, which was posted to Timothy Sandefur's webpage (see this post as well). Also see Sandefur's thoughts on it here (containing links to lots of other sources on the question). Most importantly, see this paper from the Cato institute.