I think centralizing power is always a net loss for liberty. So did the founding generation. This is why the framers of the Constitution emphatically rejected a proposal to give the federal government veto power over state laws. It’s also why the first Congress rejected applying some provisions of the Bill of Rights to the states.
When I say this, it tends to confuse people, because, in today’s political system, the federal government vetoes state laws all the time through federal courts. And virtually every time somebody perceives that a state government has violated their rights, they run straight to federal courts to stop the offending state action.
Despite my protests, the application of the federal Bill of Rights to the states has become a key feature of the American political system.
As I said, I believe this will ultimately prove to be a net loss for liberty. When you turn to federal courts to protect your liberty from state actions, you’re playing a game of Russian roulette with five bullets loaded into your six-shooter. Despite a few minor victories here and there, federal courts almost always come out with opinions that expand government power, not protect individual liberty. And these expansions of government power become the law of the land across the entire United States. In a decentralized system, bad state court decisions only impact the people in that one state.
The risk isn’t worth the reward.
And yet here we are.
Among friends of liberty you will find a great deal of support for using federal courts to stop states from violating individual rights. Despite my misgivings, I can understand the impulse. When we see state governments trampling rights, we want somebody to step in. The feds are more than happy to step in. Why not take advantage of their service? But if you’re going to support the enforcement of the federal Bill of Rights on state and local governments, you need to understand where this purported power comes from and its implications for the American constitutional system.
The BIll of Rights Was Never Intended to Apply to State or Local Governments
The application of the Bill of Rights to state and local governments was not a feature of the original constitution. It came about through a series of federal court cases based on the Fourteenth Amendment.
A lot of people believe that the Bill of Rights always applied to state governments. This is simply not true. The Bill of Rights was never intended to bind the actions of state governments.
The preamble to the Bill of Rights makes its purpose absolutely clear: to further restrict federal government power.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. (emphasis added)
The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government”—the federal government. Notice that the word “government” is not plural.
The preamble of the Bill of Rights makes no mention of limiting the power of state governments. The state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions to do that job.
This is an undebatable fact—no founding-era evidence exists that Congress or the state ratifiers intended for the protections included in the Bill of Rights to bind state governments. None.
Doing so would have essentially created a federal veto over state laws. As I’ve already said, this idea was rejected during the framing of the Constitution. It would have allowed for a massive expansion of central government authority—the exact opposite of the stated purpose of including a bill of rights.
The Incorporation Doctrine
The federal courts enforce the Bill of Rights on the states today through a legal framework known as the incorporation doctrine.
In a nutshell, the Supreme Court invented the incorporation doctrine through the Fourteenth Amendment. It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than fifty years after the ratification of the amendment.
There is some basis to argue that the Fourteenth Amendment was intended to incorporate the Bill of Rights onto the states. The operative clause of the amendment reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The question is: Are the provisions of the Bill of Rights included in the Fourteenth Amendment’s “privileges and immunities”?
In my educated opinion, the answer is no. The Fourteenth Amendment was intended to constitutionalize the Civil Rights Act of 1866. This was asserted over and over again both in the congressional debates and as supporters presented the amendment to the states. The civil rights act specifically enumerates the privileges and immunities that were to be protected. (The privileges and immunities listed in the Supreme Court case Corfield v. Coryell were also mentioned in debates.) They include the right to enter into contracts, own property, inherit property, travel freely, and access the courts. The act made no mention of the Bill of Rights.
In fact, in the 1873 Slaughterhouse Cases, the US Supreme Court rejected the idea that the privileges and immunities clause in the Fourteenth Amendment applied the Bill of Rights to the states.
Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
This is why the court later made up the concept of “substantive due process” to justify incorporation. The previous court had closed the door on basing incorporation on the more logical Privileges or Immunities Clause.
I admit that there exists some evidence that undermines my view on incorporation through the Privileges or Immunities Clause. But the concept of substantive due process is every bit a product of “living breathing” constitutional interpretation as any progressive court opinion conjured up during the New Deal.
Regardless, incorporation is now the law of the land and is ensconced in the legal system. You can try to use the federal courts to protect your rights from state governments if you choose. But you should at least understand how the idea evolved and what it has done to the constitutional system.
Incorporation Breaks the Original Constitutional System
The founding generation warned us over and over again about consolidating the states into a single national government. It was the greatest fear voiced by opponents of the Constitution during ratification and was a prime reason for the inclusion of the Bill of Rights.
During the Massachusetts ratifying convention, delegate Fisher Ames asserted that “a consolidation of the States would subvert the new Constitution.” And during the Virginia ratifying convention Patrick Henry warned, “Consolidation must end in the destruction of our liberties.” He elaborated:
When he asks my opinion of consolidation, of one power to reign over America with a strong hand, I will tell him I am persuaded of the rectitude of my honorable friend’s opinion, (Mr. Mason) that one government cannot reign over so extensive a country as this is, without absolute despotism. Compared to such a consolidation, small confederacies are little evils; though they ought to be recurred to but in case of necessity.
Supporters of the Constitution didn’t defend consolidation. They acknowledged its danger and swore it would never happen. In Federalist, no. 32, Alexander Hamilton wrote:
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.
The incorporation doctrine did what Hamilton promised wouldn’t happen. It effectively obliterated state sovereignty and consolidated the state into a single national government.
Whether legitimate or not, the incorporation doctrine made real the founders’ worst fears. Using federal courts to police the states and enforce the Bill of Rights fractured the original constitutional structure, broke the Tenth Amendment, and effectively consolidated the states to be ruled by an oligarchy of federal judges.
You can’t simultaneously support incorporation and the original Constitution. They are hopelessly at odds.
