The Historical Basis for 14th Amendment Incorporation

My latest exchange with Eric Seymour on the subject of judicial activism has veered off into a discussion of the doctrine of incorporation with a rather irritating anonymous commenter who seems to specialize in logical fallacies. His favorites appear to be the appeal to authority and poisoning the well. He seems to believe that mere reference to a scholar who disagrees with someone defeats their argument, even if he doesn't bother to actually cite a substantive claim that they make or any evidence they produce for that claim. In this case, he is arguing against the notion that the bill of rights is incorporated against the states by the 14th amendment, and naturally he is citing Raoul Berger (though he could as easily be citing Robert Bork or Lino Graglia). The irony in this is that a non-incorporation reading of the 14th amendment is based upon what is surely one of the most obvious instances of judicial activism in our history, the Slaughterhouse cases, where the court ignored the clear history and intent of the privileges and immunities clause and essentially read it right out of the amendment, and did so based upon the argument from the defendent's attorney that if they didn't do so it might lead to a bad result. If that isn't judicial activism, what on earth is? At any rate, I think this is a good opportunity to take a look at the history and intent of the 14th amendment and examine in more detail where incorporation comes from and what it means.

First, it should be noted that the position that none of the bill of rights is incorporated by the 14th amendment is so far out of the mainstream of legal scholarship that it is rejected even by the most conservative justices today. Even Clarence Thomas does not dispute the doctrine of incorporation, though he is an advocate of selective incorporation (he argues that the establishment clause was not incorporated because it doesn't establish a specific right). Janice Rogers Brown is truly out on the fringes of legal scholarship with her assertion that the 14th amendment did not make any of the bill of rights binding on the states. That by itself doesn't mean she's wrong, of course, so we must take the next step of examining why that position is so far out of the mainstream. We must examine the history of the 14th amendment and what those who framed it said about what it intended to do. Section 1 of the 14th amendment states:

Section. 1. 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.

There are four important clauses and concepts in this section. The citizenship clause declares that anyone born or naturalized in the US is a citizen of the United States and of whatever state they reside in. This was important, of course, because slaves were not considered citizens in most of the Southern states, which allowed them to violate their rights with impunity with various laws referred to as the Black Codes. The privileges and immunities clause says that no state may violate any privileges or immunities that are guaranteed to citizens of the United States (not given to those citizens, as the Declaration declares that those rights pre-exist government and governments are instituted only in order to protect those rights, not to create them). The due process clause forbids the states to violate the rights of citizens without due process of law (see Timothy Sandefur's excellent essay on substantive v. procedural due process here). And the equal protection clause demands that all states treat all citizens as equal under the law. The key clause we're going to examine is the privileges and immunities clause. To what does this term refer?

The 14th amendment was proposed by a special Joint Committee on Reconstruction that was created by resolutions in the House and Senate in 1865. They made several recommendations for Constitutional amendments that resulted in the adoption of amendments 13-15. In early 1866, a subcommittee was formed, made up of Congressmen Bingham, Stevens and Conkling and Senators Howard and Fessenden. Rep. Bingham presented a proposed amendment that became the 14th amendment. It was approved by the committee and sent to the House for consideration, along with an explanation of its purpose from Bingham. In that explanation, and in the ensuing debate in both chambers, it was made quite clear that the privileges and immunities clause covered, at the very least, the guarantees contained in the Bill of Rights. When he presented the amendment to the House for debate, Bingham noted its necessity by pointing out that up to that point, "these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States." He proposed to change that by giving the Federal government the power to enforce the bill of rights against state action with his amendment, and he consistently invoked the bill of rights as representing the privileges and immunities to which he referred:

Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced...'Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be...'What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?...Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.

He further noted, in later debate over whether the amendment was required to enforce the Civil Rights Bill that was making its way through Congress, "I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution."

President Johnson vetoed the Civil Rights Bill, noting that under the decision in Barron v. Baltimore the bill of rights was only binding upon the Federal government, not the states. His veto was overridden and the Civil Rights Bill became law, but that did not stop Bingham from advocating for the 14th amendment precisely because, without such an amendment, the courts had already declared the bill of rights not to be binding upon the states. The committee pressed on in advocating the amendment and Senator Howard presented it to the Senate in March of 1866 for consideration. He specifically noted in his address that the bill of rights was not then binding upon the states and that the Federal government lacked the authority to enforce them upon the states, which the 14th amendment sought to remedy:

'Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees.'

This echoed the sentimens of Rep. Bingham, who in closing the debate in the House on the amendment had said, "That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment." There can be no doubt, then, that those who wrote and adopted the 14th amendment intended for it to give to the Federal government the authority to prevent the states from violating the provisions of the Bill of Rights, as they stated so many times during the debate over ratification. And as one scholar has noted, those were precisely the arguments used in the press to explain and defend the amendment to the American people, so the public's understanding of the amendment would have been the same. Those who opposed the 14th amendment agreed that it gave the Federal government the authority to overrule state actions which violated the US Constitution, and they argued against it precisely on that basis. So the historical record is clear that the 14th amendment did in fact incorporate the bill of rights against the states. Unfortunately, that clear meaning was distorted almost immediately by the Supreme Court in the Slaughterhouse decision in 1873. The Cato Institute explains this decision and the distortions it contains quite well:

By a vote of five to four, the Supreme Court came down against the butchers, upholding the state and the Crescent City Company. Writing for the majority, Justice Samuel F. Miller gave the nation a new Fourteenth amendment, in essence, and a new legislative history to accompany it. According to Miller's rendition, "the most casual examination" of the Civil War Amendments shows them to be concerned almost exclusively with the rights of blacks. Despite the plain language of the Fourteenth Amendment, which speaks of "citizens" and "persons," Miller maintained that, particularly where whites were concerned, the amendment was not intended "as a protection to the citizen of a state against the legislative power of his own state." He reached that conclusion on the basis of an extraordinary reading of the Citizenship Clause. Ignoring overwhelming and uncontroverted evidence that the clause was added to the Fourteenth Amendment to overturn Dred Scott's contention that U.S. citizenship is derived from state citizenship, Miller held that the clause creates distinct citizenships--state and national, each conferring its own set of rights--and that the Privileges or Immunities Clause protects only rights of national citizenship, which he then read narrowly. The rights of state citizenship, Miller said, comprehend "nearly every civil right for the
establishment and protection of which organized government is instituted"; thus, the new Privileges or Immunities Clause, pertaining to national citizenship, covers very little of substance. In fact, the only examples of rights protected by the Privileges or Immunities Clause that he could come up with were either rights that had already been explicitly recognized by the Supreme Court, prior to ratification of the Fourteenth Amendment, or rights, such as protection on the high seas, that state governments could not possibly abridge.

Naturally, the effect of Miller's opinion was to render pointless the passage and ratification of the Fourteenth Amendment's Privileges or Immunities Clause. Since the entire domain of privileges and immunities of citizens of the states "lay within the constitutional and legislative power of the states, and without that of the Federal government," we are left with a clause that "seems to be unnecessary," said James Bradley Thayer of the Harvard Law School. Miller's construction flew in the face not only of the language and history of the clause but of the basic canons of judicial construction: judges, after all, must assume that lawmakers--and constitution makers, in particular--mean something when they act, even when they are unsure just what that something may be...

Whatever the men who wrote, passed, and ratified the Fourteenth Amendment may have thought they were doing, it surely was not to leave unchanged the reach of the federal government in protecting citizens against actions by the states. Yet that is what the Slaughterhouse majority accomplished. Commentators at the time--such as Harvard's Thayer, a strong advocate of judicial restraint--acknowledged the superiority of the dissenters' arguments...

Several members of the Court were concerned about the effect the Civil War Amendments might have on our federal structure. As expressed in Miller's opinion for the Court, the Fourteenth Amendment threatened to "radically [change] the whole theory of the relations of the state and Federal government"; if that happened, it would "fetter and degrade the state governments" by transforming the federal government into a "perpetual censor upon all the legislation of the states." Thus, the majority was trying to protect the states' reserved powers, notwithstanding the history and purpose of the Fourteenth Amendment. In fact, a few years after Slaughterhouse was decided, an influential legal scholar of the day, Christopher Tiedeman, wrote approvingly of the Court as having "dared to withstand the popular will as expressed in the letter of the amendment" in order to save the federal structure of the government and the reserved powers of the states.

Such judicial resistance to popular will--expressed through constitutional amendment, no less--is exactly what conservatives today decry, of course, as they shout "judicial activism." It is not a little ironic, therefore, to find those same conservatives defending the Slaughterhouse majority's "activism" in overturning the nation's decision to institute a constitutional mechanism for federal oversight of state actions. The Civil War generation meant to rewrite, in this limited way, the relationship between the federal government and the states. Once that was done, through the Constitution, the Court had no authority to impose its views on the matter--especially since the rewrite brought the Constitution into conformity, at last, with its underlying moral theory. The Court's job, rather, was simply to apply that law, as conservatives today rightly remind us.

Quite so. Unfortunately, the Slaughterhouse decision was never overturned. The courts instead have sought to locate the historical intent of the privileges and immunities clause in the due process clause, which has led to massive confusion in 14th amendment jurisprudence. But let's be clear here that the problem began with a decision that, if "judicial activism" means anything at all, was exactly the sort of thing that conservatives ostensibly are opposed to, yet support in this instance. It should be also noted that their desire to read the privileges and immunities clause out of the 14th amendment in favor of a more vigorous federalism is also hypocritically applied, as the recent brouhaha over gay marriage clearly shows. Their argument collapses into the following bit of cognitive dissonance: that despite the clear intent of the 14th amendment, the states should have the authority to violate the rights of their citizens whenever they choose and with no Federal legal authority to tell them they cannot...but if they try to give equal rights to gay people to marry, or even to have some of the legal protections of straight couples, within that state, then the Federal government must intervene and prevent them from doing so. By this formulation, the states are free from federal intervention if they violate our rights, but not when they protect them. It's all quite bizarre, isn't it?