Most people do not understand the Incorporation Doctrine. This is, in part, because it is one of those fluid legal doctrines that the US Supreme Court makes up as it goes along. Sometimes we love it, other times we hate it. The recent cases involving the Second Amendment all involve the incorporation doctrine. I have drawn heat from some on message boards suggesting that the cases were wrong and that we cannot claim state’s rights when it is convenient for us, and claim Second Amendment rights when we choose to do so.
I thought I would outline, to the best of my limited ability, the history of the incorporation doctrine, what it is and what it is not. First, lets simply say that the incorporation doctrine refers to incorporation of the bill of rights into the 14th Amendment. The 14th Amendment states, in pertinent part:
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.
Often referred to as the equal protection clause, this provision was passed in 1868 after the Civil War. In 1897, the City of Chicago wanted to take some land for the widening of a road. Included in that land was some railroad property. Statute provided an opportunity for a hearing to ensure that land was taken for public purposes and to determine the value. The compensation awarded to the railroad by a jury was $1.00. ( Chicago Burlington and Quincy Railroad vs. City of Chicago http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&cou… )
The railroad appealed the trial court decision and the Illinois Supreme Court affirmed the jury award of $1.00. Here is where it gets interesting. The railroad then asked the federal district court to examine the case under the 14th amendment. Were they deprived of ” . . . property . . . without due process of law?” The State of Illinois argued they had all the process they were due, a hearing and the ability to present the facts of their case. I am not going to go on ad nauseum about the facts or history of this case but suggest that you read it in its entirety yourself. Again, here is the link: (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&cou… )
The legal principle which came out of the Chicago Burlington case was that the Federal Courts could review a state Court proceeding to ensure compliance with the Bill of Rights under the 14th Amendment. As is often the case, this is later expanded upon greatly by the Courts. While no one is disputing that individuals and corporations should be paid just compensation for property taken for public purposes, the question is whether the Federal Courts are the proper forum to determine what constitutes just compensation. Today we do not question the fact that the Federal Courts intervene in state decisions as to just compensation for a whole host of issues.
The incorporation doctrine was largely unused for 50 years after the Chicago Burlington case. Justice Hugo Black argued strongly in a dissent that the 14th Amendment incorporated all of the first 8 Amendments of the United States Constitution. (“‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States’ seem to me an
eminently reasonable way of expressing the idea that henceforth the
Bill of Rights shall apply to the States.” (Duncan v. Louisiana, 391 US 145 1968) The Court has always refused this “mechanical incorporation” principle but has since selectively incorporated much of the Bill of Rights into federal jurisprudence via the 14th Amendment. Today the 14th Amendment is the most frequently cited basis for federal jurisdiction. Several federal laws have been passed relying primarily on the principles of the 14th Amendment.
Although I do not agree with all of the statements in this article, I would suggest you check out the Wikipedia article on the incorporation doctrine at http://en.wikipedia.org/wiki/Incorporation_doctrine
In the 1950′s and 1960′s the Supreme Court began using the incorporation doctrine to declare that a number of federal rights applied to the states. Especially in the area of criminal law, the Court essentially rewrote state jurisprudence requiring the right to an attorney, the requirement of a search warrant, the right to a jury trial and a host of other procedural and substantive rights. Virtually EVERY federal decision that involves states relies on the incorporation doctrine. School busing, desegregation, fair housing, public employment cases . . . I could go on all day. Of course, Roe vs. Wade is the penultimate 14th Amendment decision.
I think it is extremely important for us to understand this principle. Many of the things we argue against are based on this relatively simple doctrine. As stated above, some of the things we argue FOR are based on this principle. I hope to provide and outline some of the more pertinent cases for comment in the coming weeks. I welcome your feedback on this issue.
