Ellis Washington, a self-proclaimed former editor of the Michigan Law Review (he was really just an undergrad fact checker), is back with yet another ridiculous column about constitutional law. This time his target is the incorporation of the 14th amendment, which he unsurprisingly gets entirely wrong.
Incorporation is the legal doctrine that applies the federal Bill of Rights to the states. What makes Washington’s column all the more absurd is that he doesn’t ever actually argue against it. He declares it to be wrong, but makes no arguments at all as to why.
The so-called “Incorporation Doctrine” is a shameless example of the Supreme Court overstepping its enumerated powers by ruling that the 14th Amendment makes the Bill of Rights applicable to state law as well as federal law.
In the case of Barron v. Baltimore (1833), before the 14th Amendment was ratified and before the Incorporation Doctrine was developed, the U.S. Supreme Court first clearly affirmed that the Bill of Rights is applicable only to the federal government and not to the state governments. Then, in the case Gitlow v. New York (1925), which occurred in the heyday of the Progressive Era, the Supreme Court broke the settled precedent in the Barron case and unconstitutionally ruled that the 14th Amendment forbids states from prohibiting free speech.
This is a coherent argument? Barron v Baltimore was in 1833, 35 years before the 14th Amendment was written and ratified. If the 14th Amendment did incorporate the Bill of Rights against state actions, that ruling is completely irrelevant. Barron was based on the Constitution was it existed in 1833; it was a different Constitution in 1925 because of the 14th Amendment.
There is no question that the 14th Amendment applied the Bill of Rights to the states. During the entire debate in the House and Senate on the amendment, that was the key issue. Those who wrote and advocated the amendment said that it was necessary in order to keep the states from violating the rights of citizens; those who were opposed to it were against giving the federal government the power to enforce those rights against the states. The advocates won, obviously, since the amendment passed.
Rep. Bingham, the primary House sponsor of the amendment, repeatedly said during those debates that the purpose was to apply the first 8 amendments in the Bill of Rights to the states. On Feb. 27, 1866, he said that the amendment was intended to “arm the Congress … with the power to enforce this bill of rights as it stands in the Constitution today.” In a similar statement he said that the amendment would “arm Congress with the power to … punish all violations by State Officers of the bill of rights.” And the language of the amendment is clear. It says that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Those privileges and immunities were those found in the Bill of Rights.
But Washington doesn’t even attempt to argue against this. Here’s what he actually argues:
Barry Krusch, in a very good book, “Will the Real First Amendment Please Stand Up,” wrote that Judge Sanford, writing for the majority in Gitlow, at first seemingly agrees that the First Amendment does not apply to state governments:
“It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”
Say what? That passage has nothing at all to do with whether the First Amendment applied to the states; it deals only with whether there are any limits on First Amendment protects in general. It doesn’t even mention the states. The funny thing to me is that Washington continues to claim to have been “a former editor of the Michigan Law Review.” If he had actually been a law student there and had submitted this nonsense to that review, the real editors would reject it with a hearty laugh.