Did the 14th Amendment really incorporate the Bill of Rights?

Posted on July 28, 2011

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The Myth

The Fourteenth Amendment incorporated the Bill of Rights down to the State and local level. This granted the Supreme Court the power to strike down any State and local law it feels violates the Bill of Rights.

The Truth

It is only possible to make the case that the 14th Amendment extended the Bill of Rights down to the State and local level if you distort the plain meaning of the amendment as understood by those that wrote it and ratified it. This distortion must be so great that it violates many of the fundamental philosophies the Constitutional was based on . The Supreme Court has been engaging in exactly this level and type of distortion ever since the 1940s when it began implementing the doctrine of incorporation. Through this doctrine of incorporation the nine unelected justices that make up the Supreme Court have completely re-written the Constitution and Bill of Rights. They have done this by  distorting the meaning of these documents so much they now mean nearly the opposite now than they did when written and ratified.

The Facts

James Madison was the only author of the Bill of Rights that wanted any of those amendments to apply to the States. His draft of the First Amendment specifically restrained the States but this version was struck down by the senate.  The Bill of Rights did not apply to the States when the final version was passed by both houses of congress and was ratified by the States. The Bill of Rights did not apply to the States when the Fourteenth Amendment was passed and ratified. The Bill of Rights now applies to the States because the Supreme Court distorted the meaning of the Fourteenth Amendment many decades after it was ratified.

The Bill of  Rights was added to the Constitution to protect our God-given natural rights by preventing the federal government from interfering with them in any way. These rights are not absolute, they can be abused. There is a line where freedom of speech can become an abuse of free speech. Threats of violence are an abuse of free speech and there are other ways free speech can be abused. Slander and libel are abuses of freedom of the press. Human sacrifice and animal sacrifice are abuses of freedom of religion. A line has to be drawn where the exercise of our natural rights becomes an abuse of these rights. Government at some level has to decide where this line is and what punishments apply when this line is crossed. Our founding fathers firmly believed these decisions must be made at the most local level possible. They firmly believed the federal level was the absolute worst level for these decisions to be made because it would be incredibly difficult for “we the people” to restrain the federal government if it abused this power. When they wrote the Constitution they did not grant the federal government any powers to make these decisions. Congress was denied any power to make laws respecting our natural rights and the Supreme Court and all federal courts were not granted jurisdiction over cases involving our natural rights.

Our founding fathers believed the State level was the highest level for writing laws that define where exercise of natural rights became an abuse of these rights so they left these decisions in the hands of the States. State courts are where our founding fathers intended cases involving our natural rights should be tried. Our founding fathers believed that “we the people” would be able to deal with State governments and State Courts if they became abusive to our natural rights. Today we seldom try to solve issues with our State governments and State courts at the State level. We usually try to solve them in federal court. Our founding fathers believed the proper method for dealing with abusive State legislators was to vote them out of office along with those that appoint abusive State judges.

States were meant to be the guardians of our liberties. Our founding fathers intended them to protect individuals against the federal government if it became tyrannical and interfered with our individual natural rights.  Because of the doctrine of incorporation nine unelected Supreme Court justices have appointed themselves as guardians of all of our most fundamental rights, our God-given natural rights. These justices are appointed to the Supreme Court for life and not a single one has ever been impeached and removed from office. They are not answerable to “we the people” in any way. The decisions handed down by these justices very often conflict dramatically with the values and beliefs of the American people and our founding fathers.

After the Civil War former Confederate States refused to extent the most basic legal protections to former slaves. They were also denied citizenship in the States they lived. Before the 14th Amendment was ratified citizenship in the United States was completely dependent on citizenship in one of the States. Without citizenship in the State they lived these emancipated slaves were effectively denied citizenship in the United States and the Constitutional protections that are based on citizenship.  Laws were passed that applied differently to whites and blacks. Some laws were passed that were clearly harmful to the these former slaves. The Fourteenth Amendment was added to the Constitution for the specific purpose of allowing the federal government to step in and prevent the States from engaging in these particular practices.

The US Congress first attempted to right these wrongs when they passed the Civil Rights Act of 1866. This act granted US citizenship to the former slaves and extended to them certain basic rights. These rights are clearly spelled out in section one of this act and are: the right to make and enforce contracts; the  right to sue and give evidence in court; the right to buy, sell, rent, and inherit property; to enjoy equal protection of all laws; the right to be subject to the same punishment under laws as whites. Even though congress had to override the veto of President Johnson in order to pass this act, a great many in congress believed they did not have sufficient constitutional power to enforce it.  The 14th Amendment was passed by congress and ratified by the States for the specific purpose of granting congress the power to enforce the Civil Rights Act of 1866.

The Fourteenth Amendment consists of five sections. The first section was written specifically to grant congress the power to enforce the Civil Rights Act of 1866.  The remaining four sections of this amendment dealt with various popular issues left over from the Civil War and were added in order ensure the amendment would be passed and ratified.

Section one of this amendment consists of four clauses. The first clause granted former slaves citizenship in the United States and the State they reside in. I will deal with the controversy associated with the citizenship clause in a future article. In this article I will focus on clause two and clause three of this section because the Supreme Court has cited each of them in their unconstitutional attempts to incorporate the Bill of Rights down to the State and local level.

Clause two of this section is referred to as the privileges and immunities clause. This clause is very similar to Article 4 Section 2 Clause 1 of the Constitution. The exact meaning of privileges and immunities was not discussed in any detail during the original constitutional convention because the phrase had a clear meaning under English Common Law that was understood by the framers of the Constitution. The framers of the Constitution understood this clause to mean visitors to a particular State were entitled to certain basic rights that were shared by Citizens of each and every State.  These rights included: the right to freely travel in that State; the right to make and enforce contracts; the right to full and equal protection of all laws; the right to be secure in their person and property; the right be a witness and take part in trials.  None of the rights protected by this clause are natural rights. They are administrative rights that were created by English Common Law. The original clause was based on citizenship in a State. Southern States denied citizenship to the former slaves that lived in these States so they were denied protection under this clause. The Fourteenth Amendment extended these rights to every citizen of United States independently of State citizenship. It no longer mattered if the former slave States denied State citizenship to blacks.

The phrase privileges and immunities is defined in the Civil Rights Act of 1866 as:

shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

This definition is very similar to the English Common Law definition.  After Fourteenth Amendment was ratified the US Congress could now pass legislation that overturned State laws that violated the privileges and immunities of former slaves. That was the only change made to the original clause. No new rights were granted or added to the original clause. Those that passed and ratified the 14th Amendment never intended this clause to extend the entire Bill of Rights down to the State and local level only Article 4 Section 2 Clause 1 of the Constitution.

The Supreme Court has only attempted to use the Privileges and Immunities clause of the 14th Amendment twice to incorporate the Bill of Rights. The first was by Justice Hugo Black when he wrote a dissenting opinion for the 1947 case Adamson v. California. Black wrote that this clause incorporated the entire Bill of Rights. The second attempt was made by Justice Clarence Thomas in the 2010 case McDonald v. Chicago when he wrote in the majority opinion that the 2nd Amendment was incorporated down to the State level.

Section 1 Clause 3 of the 14th Amendment is known is the due process clause. This clause is almost the exact duplicate of due process clause of the Fifth Amendment. The clause contained in the Fifth Amendment prevented the federal government from depriving any individual of their life, their liberty, or their property unless they are tried in court, following a formal legal process, and found guilty. The copy contained in the Fourteenth Amendment extended this protection down to the State level. This is the only clause contained in the entire Bill of Rights that was actually incorporated down to the State level by the Fourteenth Amendment. When the States passed laws depriving former slave  of their life, liberty, or property without due process the US Congress could pass laws overturning these discriminatory laws.

During the congressional debates and the ratification debates for the Bill of Right the due process clause was hardly discussed because its meaning was so well understood by those that wrote it and ratified it. The wording and meaning of this clause is very closely derived from English Common Law which is the foundation of the Constitution and the American legal system.

The word liberty was used in both clauses to convey specific meaning, freedom. If you commit a crime you can be sentenced to the loss of your freedom at its most basic level. In other words, you lose your liberty.  The Supreme Court has re-written the definition of the word liberty that was understood by those that passed and ratified both the Fifth and Fourteenth Amendments. According to the new definition created by the Supreme Court liberty contains each and every component of the first 8 amendments of the Bill of Rights.  Because of the distortion of including each and every component of the first eight amendments into the word liberty the first eight amendments were unconstitutionally incorporated down to the State level by Supreme Court  via the Fourteenth Amendment. This is an incredible stretch considering the due process clause of the Fourteenth Amendment has the virtually the same meaning as the due process clause of the Fifth Amendment and that is just one clause of one amendment of the entire Bill of Rights.

Beginning in 1908 the Supreme Court has changed the meaning of other words in the due process clause, including the words due process, to selectively incorporate various clauses of the Bill of Rights or incorporate the entire Bill of Rights until the vast majority of the Bill of Rights has been incorporated down to the State level. In a great many instances this doctrine of incorporation has produced disastrous results. Because of the incorporation of the establishment clause of the First Amendment and the insertion of this notion of separation church and state, which is not found anywhere in the Constitution or any amendment, public displays of religion are constantly being banned. Because of incorporation and the creation of the right to privacy no States can prevent abortions from happening. Because of the incorporation of the fourth, fifth, and sixth amendments numerous guilty murderers and rapists have been set free on technicalities.

The case has been made that some authors of section 1 of the Fourteenth Amendment, including John Bingham, intended the entire Bill of Rights to be incorporated by the Fourteenth Amendment. This has been done by cherry picking a phrase here and there and using it out of context. Mr. Bingham used the phrase  “bill of rights” to refer to Article 4 Clause 2 Section 1 of the Constitution, the privileges and immunities clause. Here is one example:

 But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the republic within every organized State of the Union.

Mr. Bingham was well known for being a “muddled thinker” who few in the congress took serious. He often made contradictory statements that were ignored by others in congress,

Senator Jacob Howard also stated that the Fourteenth Amendment incorporated the Bill of Rights down tho the States,  He was ignored by the rest of the Senate.  After he made this statement senator after senator stated that the Fourteenth Amendment only gave the US Congress the power to enforce the Civil Rights Act of 1866. Nowhere in that act is the Bill of Rights incorporated down to the States.

Senator Howard and Congressman Bingham were the only two that stated the Fourteenth Amendment incorporated the Bill of Rights down to the States.  This topic was not discussed during the ratification debates in the States.  All discussion centered on granting the US Congress the constitutional power to enforce the Civil Rights Act of 1866.

The Proof

Early draft of the 14th Amendment—published in the Congressional Globe 331

That Congress shall have power to make all laws necessary and proper to secure to all persons in every State equal protection in their rights of life, liberty, and property

Later Draft of the 14th Amendment—published in the Congressional Globe 813

 The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property.

Civil Rights Acts of 1866 –First 2 Sections

An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

Sec. 2.And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.

14th Amendment discussion—published in the Congressional Globe 1095

 The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.

House Report 22—1871

 The clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The Fourteenth Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.

14th Amendment discussion—published in the Congressional Globe 2766

 This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it, the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body

14th Amendment discussion—published in the Congressional Globe 1094

 Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law––law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal and exact justice.

Bingham discussing the Civil Rights Act of 1866

 citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

 Excerpt from the Kentucky Resolutions of 1798 where Thomas Jefferson discusses the fact the Bill of Rights only restrains the federal government.

 3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.

Definition of the due process clause from the Magna Charta

No man, of whatever estate or condition, shall be put out from land or tenement, taken or imprisoned, disinherited, or put to death, without being brought to answer by due process of law.”

First example of the due process clause being used to incorporate the Bill of Rights

“It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.”

Twining v. New Jersey: 211 U.S. 78, 99 (1908)

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