A review of The 14th Amendment and the Incorporation Doctrine by David Benner (Minneapolis: Life and Liberty Publishing Group, 2017)

Even though I have always been a strong advocate of states’ rights and sovereignty, and for safeguarding the federal system, the “incorporation doctrine” had always troubled me. What is meant by the “incorporation doctrine”? The application, by the federal courts, of the Bill of Rights restrictions upon the states. In other words, the states are bound by the restrictions found in the first eight amendments to the Constitution.

I certainly didn’t like the doctrine of incorporation but I once believed that it was simply the way things were. As long as states were in the Union, then they must uphold the US Constitution, and if they chose not to, their only recourse was ultimately secession. But, of course, I had never bothered to dig into the particulars of the legal theory to determine if it was sound or not.

How did I arrive at that conclusion? I had always viewed the third clause of Article VI as proof of it:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….”

To my way of thinking, this meant that all state officials had to uphold the entire Constitution, which would include the amendments. Even though the 1st Amendment began with “Congress shall make no law …,” I felt the above clause took precedent. How wrong I was.

If the “incorporation doctrine” has likewise troubled you, then I suggest picking up a copy of David Benner’s excellent and concise book, The 14th Amendment and the Incorporation Doctrine, and you will gain the necessary ammunition to combat the lies of the progressives.

One big piece of evidence that the “incorporation doctrine” is not sound is in the well-established fact that it did not emerge until well into the Progressive Era, never being utilized by the federal courts until the 1920s, and had never been uttered before then.

As Benner writes, it was “during the Progressive Era when the federal courts began to claim that the 14th Amendment had ‘incorporated’ federal Bill of Rights restrictions against the state governments.” The reason is simple: This new doctrine “has provided the basis upon which the federal judiciary overturns state laws deemed to be unsavory.” It has been used to severely erode the Constitution’s original intent and provide the federal courts “an excuse to meddle with the internal affairs of the states,” leading to the “widespread annihilation of federalism.” No legal precept, he writes, “has done more to transform the power of the federal judiciary into a superlative, harmful force, wholly detrimental to the interests of decentralized government.”

How did we get here? It is clear from history that the Bill of Rights was never intended to apply to the states. It was established by a desire to bind the federal government. Benner notes that not only were the ratification conventions very clear about the original intent of the Constitution, that in the very first Congress, James Madison introduced a constitutional amendment that would have applied limits on the states but it was rejected by the House.

Even the Marshall Court, in the 1833 case, Barron v. Baltimore, held that the restrictions in the Bill of Rights did not apply to the states, for the amendments were seen as “restraining the power of the general government.” This opinion “went unchallenged for almost 100 years,” Benner notes.

After the “Civil War,” however, Congress passed the Civil Rights Act of 1866 to ensure that “freed slaves enjoyed the same basic fundamental rights and privileges as their white counterparts.” But because such a law could be repealed by a future Congress, particularly one led by the Democrats, Republicans placed the same provisions into a new constitutional amendment, the 14th Amendment.

Part of Section 1 of the amendment is the one federal judicial activists have used to bind the states:

“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.”

Yet as Benner has pointed out, if you consider the opinions of those in Congress who drafted the amendment, it was never their intention to impose the Bill of Rights on the states. The amendment was simply to “constitutionalize” the components of the Civil Rights Act of 1866. It was never to be used to expand past the limited intention of the law.

In fact, in another interesting tidbit of history, Benner notes that in 1875, Congress considered an amendment to apply the 1st Amendment restrictions to the states. It failed. So if the 14th Amendment had been intended to apply the Bill of Rights to the states, then such a proposal would have been unnecessary. Furthermore, in the “Slaughterhouse Cases” of the 1870s, the Supreme Court also upheld the original intent of the Constitution, and subsequent Courts did so until the 1920s. And even after that, as Benner points out, many prominent justices continued to hold that the “incorporation doctrine” was incorrect.

What has been the result of the “incorporation doctrine”? Federal courts have found that welfare recipients have a “right” to state welfare benefits, pedophiles can constitutionally evade execution, women have a right to choose to have an abortion, Christian nativity scenes on public grounds are unconstitutional, and so on.

The “incorporation doctrine” is, as Benner has pointed out with unbreakable evidence, the basis for the ultimate destruction of our federal system, that of states’ rights and sovereignty. It places the states under the supervisory jurisdiction of federal courts and solidifies them as mere provinces of Washington, which was the ultimate objective of the nationalists throughout our history.

David Benner, who is a contributor to the Abbeville Institute Review, has done a great service to the cause of constitutional government. His little booklet is a must-read for those who want to truly understand our federal system and how it has been eroded over the course of the last century.

Ryan Walters

Ryan S. Walters is an independent historian who lives and writes in North Texas. He is the author of five books, including The Jazz Age President: Defending Warren G. Harding. He can be reached at ryanswalters.net.