Bill of Rights – Incorporated

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    There is a lot of discussion amongst us about how so much of the amendments to the Constitution are illicitly “incorporated” to apply to the state and municipal level (and in government-funded school and other places) by virtue of things like the 14th amendment.

    My question is, what amendments in the Bill of Rights were intentionally supposed to be for all levels of government, if any? I am particularly interested in the 1st and 2nd amendments.

    It seems like the 1st amendment is only applied to the Federal govt, possibly even only Congress (not the Executive in some cases?). However at a State level unless also guaranteed by the state constitution (were there any States that didn’t guarantee it?) it is NOT protected?

    The 2nd amendments seems intended to be “incorporated” from the get-go and apply to all levels of government, although is that just my reading into it. What sorts of restrictions or abridgements were considered allowed by the Founders if any?


    I am by no means a professor or “constitutional scholar”, but I feel, after having read most of the professors books, that the Bill of Rights was never intended to be applied to the States. In fact, there were those during the ratification who believed a Bill of Rights was unnecessary on two accounts. First, the enumerated list of powers in Article 1, Section 8 does not grant Congress the power to regulate or legislate on the things to be protected by the Bill of Rights i.e. Speech or Gun ownership. Second, most of the States had a Bill of Rights in their own State constitutions, so, therefore, a Bill of Rights in the Federal constitution was unnecessary.

    As for the Bill of Rights being “incorporated”, usually argued because of the “due process” clause of the 14th Amendment, in my opinion, is complete bunk. I read Raoul Berger’s Goverment by Judiciary, a recommendation by the professors, and found nowhere that the Framers of that Amendment made it to incorporate anything other than the “due process” clause of the Fifth Amendment and the “priviledges and immunities” clause of Article 4, Section 2.

    Hope this answer helps, and, of course, as always, the professors will correct me if I am mistaken.



    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_.


    I have to admit, this is one thing I didn’t realize at all! Thanks Dr Gutzman.

    There is some irony then in the push for “Constitutional Carry” i.e. Vermont rules for unlicensed conceal and open carry of firearms being completely legal, based upon a lie–that the 2nd amendment is incorporated and goes ‘all the way down’ to the state and municipal level.

    Following your analysis of the history of it, it would seem in fact unless your State constitution also provided the right to keep and bear arms, then in fact the individual State could impose gun control or gun confiscation and it would not be ‘illegal’. The 2nd amendment only bans the federal govt from regulating it. That is highly interesting! “The constitutions of thirty-nine (39) states guarantee a right to arms.” So in 11 states, gun bans (by that state and not the US govt)–while against natural rights–should not be illegal in federal court?


    It should be entirely a matter of state law.


    Hi Prof. Gutzman,

    I think I have a good understanding of the judicial revolution that was incorporation as you describe above. My question is specific to the Slaughterhouse cases, where Louisiana butchers were operating under a legally granted monopoly by the state of Louisiana, and the petitioners asked the Supreme Court to declare the monopoly legislation unconstitutional in order to protect their recently-discovered substantive right to the liberty of contract (please correct me if I’m misunderstanding the facts of the case).

    I understand that the Court rejected that argument and instead attempted to narrowly define the “one pervading purpose” of the 14th Amendment as restoring the liberty of former slaves to do things like visit the Nation’s capital and enjoy protection on the high seas. I also understand that lawyers and professors who I would broadly define as freedom-friendly will write approvingly of Lochner’s incorporation of liberty of contract/economic liberty but disapprovingly of Slaughterhouse, mostly fighting over the spirit of the 14th amendment.

    My question is, for those concerned with understanding the Constitution as ratified, shouldn’t the argument be one of whether the Federal government was delegated the authority to determine the various levels of economic freedom within a particular State? To me, it seems that the argument is instead over whether to read a libertarian or statist bias into the text.


    No, there’s not a broad power “to determine the various levels of economic freedom within a particular State” delegated by the 14th Amendment. Sen. John Sherman, R-OH, told his constituents during the ratification campaign that the amendment would have no effect in Ohio. Why? As the Court said in Slaughterhouse, it was intended to ensure the rights of the freedmen.

    I evaluate a recent book making the point to which you allude here:

    Not Your Founders’ Constitution

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