Reversing Incorporation?

By: TJ Martinell

The Incorporation Doctrine is a commonly accepted constitutional interpretation asserting that the 14th Amendment to the U.S. Constitution made the Bill of Rights enforceable by the federal government against the states. But not everyone agrees.

In his paper Reversing Incorporation, Ilan Wurman claims that the historical evidence for incorporation doctrine does not add up:

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. 

Wurman, an associate professor at the Sandra Day O’Connor College of Law at Arizona State University, argues in his paper that incorporation was not what was ratified in the 14th Amendment.

“Although taken for granted now, the argument for incorporation is surprisingly weak,” he wrote.

The most pertinent section of the Fourteenth Amendment is Section One, which states:

“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.”

Wurman’s thesis is that the 14th Amendment was more likely intended to protect the rights of newly-freed blacks guaranteed in the U.S. Constitution Under Article IV Section II, and for which the federal government had an obligation to uphold, rather than to expand enforcement of the Bill of Rights to the states.

That constitutional provision stated:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

However, Wurman writes that this did not usurp the authority of the states to regulate liberties and freedoms. This distinction is made clear in several amendments within the Bill of Rights, including the First Amendment, which states “Congress shall make no law.” The Bill of Rights was intended to ensure the new central government would have no authority or power over those issues. While the Constitution guarantees that all states in the union must have a republican form of government, state constitutions were free to include or not include their own separate Bill of Rights.

This distinction was made clear early during the fight over the Alien and Sedition Act passed in 1798, which put restrictions on speech. As Wurman notes, Thomas Jefferson opposed the law not on free speech grounds but that it was a usurpation of power from the people of the several states

“Even if all ‘free governments’ guaranteed speech and press freedoms, there is room for legitimate variations within free governments as to just what extent is protected,” Wurman wrote.

Wurman notes that one problem with the debate over incorporation is “conflating the rights the first eight amendments secure with the first eight amendments themselves. Merely identifying the freedom of speech or the right to bear arms as a privilege or immunity of United States citizenship tells us nothing about how various constitutional provisions would guarantee and secure them.”

The paper examines an 1859 speech by John Bingham that is considered to be among the strongest evidence in favor of incorporation, as he was the principal drafter of the Fourteenth Amendment. At the time, Congress was considering Oregon’s constitution, which banned free blacks from entering the state.

“There was little question that, if free Black persons were entitled to comity rights, the proposed Oregon constitution would violate Article IV,” Wurman writes.

Speaking in opposition to the proposed Oregon constitution, Bingham said the following:

The citizens of each State, all the citizens of each State being citizens of the United States, shall be entitled to “all privileges and immunities of citizens in the several States.” Not to the rights and immunities of the several States; not to those constitutional rights and immunities which result exclusively from State authority or State legislation; but to “all privileges and immunities” of citizens of the United States in the several States.

“I cannot, and will not, consent that the majority of any republican state may, in any way, rightfully restrict the humblest citizen of the United States in the free exercise of any one of his natural rights; those rights common to all men, and to protect which . . . all good governments are instituted; and the failure to maintain which inviolate furnishes, at all times, a sufficient cause for the abrogation of such governments.

The problem with interpreting this in favor of incorporation, Wurman writes, is that “in antebellum law political rights were excluded from the scope of Article IV because such rights belonged not to all citizens, but merely to electors, and each state could define who fits within that class of electors. It’s likely that Bingham was referring to this distinction between civil and political rights.”

Wurman concludes that “none of this is to say there is no evidence for incorporation. Nor does this Article examine the entire universe of evidence on the question, nor has the author read every book and article that has ever been written on the subject. The aim is rather to reconstruct nineteenth-century fundamental rights discourse on the basis of the sources that have been commonly discussed and to demonstrate that this evidence rarely compels an incorporation reading.”

Not mentioned in Wurman’s paper is a proposal in the 1870s that would have applied the First Amendment to the states. Known as the Blaine Amendment, named after its sponsor Congressman James G Blaine, it was introduced several times but never passed.

As Thomas E. Woods writes in his book The Politically Incorrect Guide to American History, “the very fact that it was introduced tells us something important. If the Fourteenth Amendment had really been intended to apply to the states, why would the Blaine Amendment, which sought to do that same thing, have been introduced in the first place?”