[The 14th Amendment and the Incorporation Doctrine by David Benner. (Life & Liberty Publishing Group, 2017; 44pp.)]

During the twentieth century, the constitutional doctrine of “incorporation” has become a major method for extending the power of the federal government and restricting the powers of the states. The Supreme Court has used incorporation to dictate to the states how to run their school systems, the criteria they use in choosing people for state employment, their regulation of guns, and other matters hitherto deemed entirely within the jurisdiction of the states.

What is “incorporation”? This is the theory that the 14th Amendment extends the limits imposed on the federal government by the Bill of Rights to the states as well. The view is not that the 14th Amendment applies all of the first eight amendments to the states at one fell swoop but rather that some of the rights apply, as the Court decides piecemeal. (The 9th and 10th Amendments reiterate the rights and powers of the states, so they are not relevant to the issue in dispute).

David Benner—an attorney and historian who has written for the Abbeville Institute and the Mises Institute—argues in the short and powerful book that incorporation is a false and dangerous doctrine which has upset the balance of power between the federal government and the states in a way unprecedented before the Progressive Era.

To understand incorporation, we need to understand the background to the 14th Amendment. After the War Between the States, Congress—controlled by the Radical Republicans—passed the Civil Rights Act of 1866, which overturned the Dred Scott case. President Andrew Johnson vetoed the Act, viewing it as an infringement of states’ rights, but his veto was overridden. (Benner seems sympathetic to the Act, and here I think he has erred, as it was this Act that was the source of the subsequent problems).

The Radical Republicans were not satisfied with passing the Act. They feared that the Act might be repealed by a later Congress controlled by Democrats. To forestall this, they proposed the 14th Amendment, intending by it to entrench the Act from repeal.

You might object that that makes no sense, because it is much more difficult to pass a constitutional amendment, which must be ratified by three-fourth of the states, than to defeat the Democrats in a federal election, but the Radical Republicans had an answer to this. They would refuse to accept any of the seceding states as readmitted to the Union unless they ratified the 14th Amendment. (As Benner points out, following the great historian Forrest McDonald, this process was illegal, and the 14th Amendment ought not to be considered part of the Constitution).

With this background in place, let’s look at the relevant part of the 14th Amendment, Section 1. Here is the text:

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.

Following the great legal historian Raoul Berger’s definitive Government by Judiciary (Harvard University Press, 1977), Benner notes that the framers of the amendment viewed it as restricted to constitutionalizing the Civil Rights Act. One of those most active in pushing the amendment, Senator Lyman Trumbull, explicitly stated this. The “privileges or immunities,” “due process of law,” and “equal protection of the laws” clauses, cannot, if Berger’s analysis is right, be taken as granting any new rights. If, for example white women did not have the right to vote, the amendment could not be taken granting them this right. If a state did not provide for public education, the amendment could not compel them to do so: all it would forbid would be to offer public education to whites but not to blacks. (You might ask, what is Benner’s contribution in this book that goes beyond Berger’s book? And the answer to this is that he shows in detail the destructive consequences of incorporation in the years after Berger wrote).

There is another argument that supports Benner’s rejection of incorporation. New rights could not be confined to the South but would limit the powers of the Northern states as well. It is absurd to think that the framers of the 14th Amendment wanted to do this.

And, in fact, throughout the 19th century, the Supreme Court never mentioned incorporation but interpreted the Amendment in the way Trumbull had indicated. So far as the notion of applying the Bill of Rights to the States is concerned, the reigning precedent was Barron v. Baltimore (1833), which held that the Bill of Rights limited the federal government, not the states. Given the fears of the states that the federal government would erode their rights and powers, it is most implausible that they would have ratified the Bill of Rights had it been meant to restrict them.

Incorporation was never broached before the 1920s, and it has always remained controversial; Benner notes that even those Progressive stalwarts Hugo Black and Felix Frankfurter rejected it. But in the years after the passage of the Civil Rights Act of 1964, the Supreme Court has used incorporation to generate new “rights” at a breakneck pace. Benner aptly concludes:

By no surprise, the incorporation doctrine has a huge effect on legal education and law curriculum. Today, most lawyers concentrate their studies on federal law over state law at a highly disproportionate rate, with the implicit understanding that state law can ultimately be negated by the federal judiciary. In constructing strategy to build cases, these attorneys often appeal to the high courts to overturn the supposed faulty decisions of their own local courts. By doing so, they empower the federal judiciary and the oligarchy it has become to an astonishing degree. Ultimately, local courts are far closer to the interests of the parties involved in the disputes. Although not perfect, state judicial systems are more than adequate to interpret and apply state law to local disputes. These factors work together to make state courts the proper forums for the consideration of local cases. Additionally, many state judges are chosen through republican elections, and are much more closely tied to the interests of individuals.

David Benner’s outstanding book merits careful study.