Reply To: Bill of Rights – Incorporated


In 1789, Congress sent twelve proposed amendments to the states for their ratification. Ten of those were ratified, in 1791 (the first ten amendments), one was ratified in 1992 (the 27th Amendment), and one was never ratified.

As the states received these proposals, they came with Congress’s preamble explaining their purpose. Tom Woods and I reproduce the preamble in the Appendix to Who Killed the Constitution:, and what it comes to is that the proposed amendments are being sent to the states for the purpose of further clarifying the limits on federal power.

Not to empower federal courts to strike down new types of state laws–to provide further clarification on the limits of federal power.

This was an uncontroversial position in the first generations under the US Constitution. Even Federalists accepted it, as is shown by the fact that Chief Justice John Marshall’s opinion in Barron v. Baltimore (1833) holding that the Bill of Rights applied only to the states was the opinion of a unanimous court.

Only five decades after the 14th Amendment was declared ratified did the Supreme Court start this “incorporation” stuff, and it wasn’t until very recently that they got around to saying the Due Process Clause made the 2nd Amendment enforceable against the states. Berger destroyed this claim, first in his classic _Government by Judiciary…._ (get the 2nd edition, which has wonderful new material), then in his follow-up _The Fourteenth Amendment and the Bill of Rights_.