Incorporation: From Congress To The States

Start with a single word—Congress—and watch the ground shift beneath your feet. We pull back the curtain on how rights that began as limits on the federal government became limits on states, tracing the winding path from Reconstruction’s ambitions to today’s near-universal incorporation of the Bill of Rights.

With constitutional law scholar Dr. Beienberg, we revisit Madison’s failed bid to bind states, the post–Civil War demand for a national floor of fundamental rights, and the strange turn that sidelined the Privileges or Immunities Clause. From Cruikshank’s detour to the rise of substantive due process, we explore how the Court first protected economic liberty, then pivoted to civil liberties by redefining “fundamental” under the Fourteenth Amendment. Along the way, Hugo Black argues for total incorporation as a cleaner, less discretionary rule, while later courts adopt a selective, case-by-case method that ultimately applies most of the first eight amendments to the states.

We break down why speech, religion, counsel, and search-and-seizure protections now operate in state courts; how decisions like McDonald v. Chicago weigh tradition and state constitutional practice; and why today’s framework gives citizens overlapping protections from both federal and state charters. If you’ve ever wondered whether due process, equal protection, or privileges or immunities should carry the constitutional load, this conversation gives you the history, the doctrine, and the stakes. Listen, share with a friend who loves constitutional puzzles, and leave a review to tell us which incorporation model you think gets it right.

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Chapters

• 1:32 Framing The Bill Of Rights’ Scope
• 2:49 Madison’s Miss And State Limits
• 4:25 Reconstruction’s Goal: A Rights Floor
• 7:09 Which Clause Does The Work
• 10:42 Cruikshank Slams The Door
• 13:20 Economic Liberty And Judicial Anxiety
• 15:56 Fundamental Rights Through Due Process

Transcript

SPEAKER_00: 0:46

Welcome back. We have been talking about the Bill of Rights, all of these amendments. And I have Dr. Weinberg back with us because one of the things I noticed is we talked a lot about the federal governments, but not necessarily the state. So specifically, right, the First Amendment, Congress shall make no law.

unknown: 1:05

Dr.

SPEAKER_00: 1:06

Weinberg, we're not talking about the entirety of the 14th Amendment today. We're using the 14th Amendment to talk about incorporation. So why is this important?

SPEAKER_01: 1:15

And well, I'll just say you uh you started with basically one of the kind of questions I like to do when I'm teaching this stuff is asking people, what is the first word of the First Amendment? And this sort of causes people, because you know they associate is free speech. It's but it is in fact Congress, because as we've been talking about at great length, the Bill of Rights is originally supposed to be a set of constraints on the federal government, with additional constraints on the states in Article 1, Section 10. During the constitutional debates about the Bill of Rights, Madison tries to sneak in a provision that effectively would apply parts of these amendments, these individual liberties to the states. And they push back, I think, quite reasonably and say, look, we weren't talking about constraining the states. Your anti-federalists in the Virginia Convention weren't saying, hey, put some more restrictions on Virginia, right? So they they blocked that. But this had been seen by a lot of folks as one of the remaining problems issues or failures or problems with the original constitution. They had recognized, again, there need to be situations where you tell the states no. Like this is not a new phenomenon. Article 1, section 10 is literally a list of states thou shalt not. And during the build-up to and lead and afterward, during Reconstruction, the Civil War, there is a recognition that we want to make sure that a floor of fundamental rights is applied to the states. And I'm emphasizing a floor of fund, particularly fundamental rights, because these people still like federalism. They still like the 10th Amendment, they still like states' rights. But they want to create effectively an additional, hopefully redundant enforcement of core civil liberties. And it's worth emphasizing, most of these civil liberties are already present in most of the state constitutions. Most of the states have something like a freedom of speech. Most of the states have something like a right to keep and bear arms. Most of them have something like search and seizure. Right. And so the pitch that they're making in Congress is this isn't really that much of an ask that we're creating effectively so that your state constitutions will enforce these fundamental rights, and the federal government can enforce, again, this narrow list of particularly the first eight amendments to the bill or first eight amendments of the Bill of Rights, nine and ten being federalism provisions. Now, what part of the Constitution is supposed to do this, this gets messy very quickly. And I will spare your listeners all the super arcana of this. Most scholars today, because effectively the the folks in Congress say we're going to apply the first eight parts of the Bill of Rights, but they don't really go through and say, because of this section, because they're very opaque about that. There's actually a problem more speech broadly speaking when they say, we're going to put down sort of racially discriminatory legislation. Is that equal protection? Is that due process? Equal protection is not necessarily necessarily that. Is it the citizenship, privileges and immunities, that creates this sort of this sort of possibly colorblind constitution? Again, they're not very clear about that in Congress. So scholars today generally think that the privileges and immunities clause is supposed to be what enforces it, that no state shall deprive citizens within their borders of the privileges and immunities of U.S. citizenship, which for them is supposed to be the first date amendments of the Bill of Rights. The wrinkle comes a few years after the 14th Amendment is passed. And we know that judges on the Supreme Court think that this is what it's supposed to do. They tell each other this in their private letters. Sometimes when they're sitting as lower court circuit judges, they will strike stuff down that the states are doing violating one of the parts of the Bill of Rights. But there comes a point when they're debating whether we can incorporate the Second Amendment against the states. And they start getting worried that if that happens, that will effectively restart the Civil War. And so in a case called Cruikshank versus United States, people usually blame a different case called the Slaughterhouse Cases. I was just reading a piece about this yesterday that was annoying me. It's Crukshank. Cruikshank is the one that says the Bill of Rights doesn't apply to the states. And they go back and they cite the famous case of Bering v. Baltimore from 1833, which had originally said Bill of Rights doesn't apply to the states. Again, accurately at the time. Marshall was accurate in saying that, but it says that's the 14th Amendment's like we're applying the core protections of the Bill of Rights to the states that just never happened. They just sort of put their heads in the sand. A few years later, Justice John Marshall Harlan, again, who's basically a pretty pro-states' rights guy, if you read his private writings in these lot of his cases, he sides with the federal government in a few major cases, but he's still pretty pro-federalism pro-states' rights. But he says, Hey, I thought we were applying the Bill of Rights to the states. And they all look at him like he's out of his mind. Which is why Felix Frankfurter, in a case in the 40s, what does he say? Like, except for one, and he's really passive aggressive, but like one charming eccentric or something like that. I can't remember the exact formulation, but it's like that one weird guy, John Marshall Harlan, who we later realize is like is right about Plessy B. Ferguson, is right about lots of things that otherwise they basically say we're not doing the incorporate, we're not applying the Bill of Rights. Then the court does a really weird thing where the court basically says that being a free citizen requires striking down certain kinds of economic legislation that we think is antithetical to being a free citizen. This originally starts as Stephen Field's dissent in the slaughterhouse cases, where he says, you should have the authority to practice basically any profession you want. A state government should not stop you from doing that. Which he's then saying there's a broad sort of liberty of contract. And so this causes some anxiety among sort of the textualist folks on the Supreme Court that say, look, the 10th Amendment says the states can do whatever they want if we didn't tell them no. Where are you articulating that the federal government, the federal judiciary, can sort of strike stuff down that you think is effectively inconsistent with free government, with free economics? And so this goes back and forth for a while. Eventually, the courts articulate a test that say we will apply unenumerated but fundamental rights, will protect those of individuals against the states. And originally, this is again mostly economic stuff, which really annoys a lot of the textualists that say, like John Marshall Harlan is sort of one of them. We're not enforcing the Bill of Rights, but we're enforcing this liberty of contract. He'll eventually side with it on sort of precedent grounds. The court backs into incorporating the Bill of Rights in some sense accidentally, because they've built up this big case law that says economics are this fundamental right, the set of fundamental rights. And then some people say, Well, is free speech a fundamental right? And the court says, yes, it is, but not because it's in the First Amendment. And they keep saying, yes, it is, but not because it's in the text, right? It's it, they say it's effectively in the text because it's fundamental, but it's not fundamental because it's in the text. And this gets criticized most famously by Justice Hugo Black, who says this fundamentally empowers federal judges because federal judges can say, I don't see this guarantee in the text of the Constitution, but I think it's super important or it's super fundamental. And they use different formulations, but it's effectively boils down to that. And so Black says, hey, there's a real clean way to do this. Let's just go back and apply the first eight amendments of the Bill of Rights to the states. Yes, this causes a little bit of a bite on federalism, but not that much because the states already have free speech and their constitutions. Like none of these are like really weird, crazy things. But he says it's more protective of states' rights insofar as the list is eight. The list is not, you know, extra numbers that justices think are important. And so he says, in particular, I don't care what sorts of stupid economic legislation some state passes. There's no liberty of contract. It's not our job as federal judges to say what sort of efficient, inefficient, properly calibrated means and ends. So Black loses that fight. However, in practice, he wins. Because eventually what the courts do is over and over they'll say the due process clause protects fundamental rights. And increasingly, how we define fundamental means it popped up in one of the bills of rights, such that today, in practice, almost all of the bill of rights has been applied against the states. Most recently, a section of the Eighth Amendment. I would say the most major kind of conversation about that was the Second Amendment back in 2010. Does that apply to the states? But basically, between the 40s and call it the 70s, the First Amendment, the Fourth Amendment, the Fifths, most of the Fifth Amendment, most of the Sixth and Seventh Amendments, the Eighth Amendments, they get applied sort of piecemeal. Occasionally today, so the most recent case where they were really debating this again is the Eighth Amendment case, but or the McDonald, which is no going to be its own standalone case. So I don't want to talk about the guns piece of that. But the majority opinion says, well, using our framework, we just say we're going to protect fundamental rights. This one seems like, this is the context of the Second Amendment. This seems like it's pretty fundamental because A, it's in the Bill of Rights, and B, it's in like 44 of the state constitutions. So this seems like something that our tradition believes is fundamental. And we'll do this with the Due Process Clause. And Clarence Thomas writes this opinion where he says, look, come on, let's just do this right. Let's go back and do it with the privileges and immunities clause. And the majority basically says, and the dissents too basically say, this is fun. This is the kind of stuff law review articles are about. But even if we've been doing it wrong for now, you know, 70 years, we're just going to keep saying it's fundamental, due process. So in practice today, almost all except for some of the technical sort of court procedure sections of the Sixth and Seventh Amendments and the Third Amendment are applied against the states. The process is really messy. I try to like not be totally snarky when I do it. My students always hate this section. I do it as two days in my con law classes, and they always hate it. They hate it, hate it, hate it. And I can't say I blame them. But very circuitous route. But the takeaway is yes, the bulk of the first eight amendments of the Bill of Rights are applied against the feds and apply against the states, which means that you get the nice multiple overlapping, redundant protections of the Constitution. Freedom of speech is protected by the federal courts. It's protected by state courts enforcing the First Amendment. It's protected by state courts enforcing their equivalent texts in the state constitutions as well, which can also be more expansive. We talked about that. But this is to say you have a lot of bites at getting your free speech or your right to keep and bear arms or your religious liberty protected, even if that wasn't one of the original parts of the Constitution.

SPEAKER_00: 12:44

So you're talking about selective incorporation, right? Which is why there's been so many Supreme Court cases. Like the the they didn't say, like, well, 14th Amendment was passed, so now the entirety of the First Amendment applies to states. There have been, and we're going to go through some cases later on, but that's selective incorporation. Am I using those terms correctly?

SPEAKER_01: 13:05

You are using the terms correctly. And because I was specifically trying to avoid the arcana of is this selective incorporation? Is this total incorporation? Is this total incorporation plus, where we apply the eight Bill of Rights, but also the economic liberties? That's the Stephen Field position. So yeah, the the con law term is selective incorporation using that fundamental rights framework of the due process clause, which again is its own weird thing because due process seemingly is about process. In fact, it says you can't have your liberty deprived if there's due process. So how that gets sort of transmographied into there's these fundamental rights that even with the process can't get interfered with is complicated. But yes, selective incorporation has been the model. It is closer to de facto total incorporation, which is what Hugo Black had said. Hugo Black said total incorporation and nothing else. Again, some of the more kind of libertarianist justices in American history have said total incorporation plus these other core fundamental rights of contract autonomy, that you know, minimum wages or maximum hours are potentially could be unconstitutional. The court moved away from that liberty of contract model in the 1930s with, I would say, sort of bipartisan consensus. That line of case law was wildly critiqued by Herbert Hoover, Calvin Coolidge, William Howard Taft, again, sort of moderate conservatives or moderate progressives, depending on how you want to draw the line. So, yeah, that was where Hugo Black thought, great, we've closed the liberty of contract. We're only going to apply the Bill of Rights. This is wonderful. And then the court didn't apply all of the Bill of Rights originally, and then did apply other things that he didn't think were parts of the Bill of Rights themselves. But yes, we are de facto total incorporation of the parts that anybody's really gonna like bordering soldiers isn't gonna happen. I mean, there would be some other provisions, like if they were to incorporate the guarantee of a jury trial for$20, Congress would amend that, you know, 10 seconds later. Yeah. So it's functionally, I guess for intellectual integrity, maybe they should incorporate it and then just force Congress to do that. But basically all the important parts are incorporated from the Bill of Rights. Again, in addition, and I keep emphasizing this, but you have state constitutional guarantees of pretty much all this stuff and more as well.

SPEAKER_00: 15:25

And this is why I love Supreme Court cases because we really get to dig into these questions, but that is not going to be till later. Dr. Beyenberg, thank you for talking us through the incorporation piece of the 14th Amendment.