The foremost reason to deny that the Bill of Rights applies to the States via the Fourteenth Amendment is because it contradicts a fundamental aspect of the Constitution. The Supremacy Clause “does not allocate power between the national and state governments” (ed. Meese, 291). Thus the Federal government does not supersede State governments, except where State governments have given up specific rights for the mutual benefit of covenanted governance. Furthermore, “the Supremacy clause was a straight forward conflict-of-laws rule designed to resolve conflicts between state and federal law touching the same area” (ed. Meese, 291). In regards to mutual jurisdiction, the federal laws are only to supersede within the scope of their limited powers, outlined in the Constitution. The Tenth Amendment reserves the rights not enumerated, to the people or the states. There is no provision for the Judiciary or any other Federal Branch to determine or enforce rights not expressly mentioned in the Constitution. This gave the States autonomy in certain areas where federal law was not permitted to tread. This concept is of course anathema in modern mainstream political thought. The Bill of Rights was meant to apply to and restrict the Federal Government, not the States. The Fourteenth Amendment was not intended to incorporate the Bill of Rights; neither explicitly in its wording or by the will of the majority of the members of Congress or the State houses who voted for it, as stated by Justice Miller in 1872, in his Slaughterhouse opinion. The incorporation interpretation of the Fourteenth Amendment would substantially alter the relationship of the Federal and State governments, which alone disproved incorporation, in Justice Miller’s assessment.
Iit is impossible to separate presuppositions from the discussion of Constitutional interpretation. That said, and regardless of the non-existent ideal, the reality of the situation is that some form of Substantive Due Process has prevailed since the 1890’s. Application of either a limited incorporation or full incorporation matters little, because they are merely the assertions of competing political ideologies based on the same reach-around and are contradictory to any reasonable interpretation of the intent of the Constitution.
Again, it must be asserted that evolutional thinking limits modern understanding of just this kind of issue. What has “evolved” is not necessarily the best course of action. Sometimes, what has been left off is better. This certainly seems true, given the contradictory interpretation of the Fourteenth Amendment that is applied today (double standard). The precedent set between 1897 and 1937 was not enough to establish the Lochner application, permanently. Hopefully the precedent between 1931 and Rehnquist’s decision in U.S. Railroad Retirement Board v. Fritz (1980) will not be enough to establish the double standard application permanently.
There are two forms of projecting substantive views onto the Fourteenth Amendment. The first came in the late nineteenth century in the Slaughterhouse cases, through the Privileges and Immunities Clause. The next phase came in the Lochner case, through the Due Process Clause, resulting in either partial or full incorporation, which added not only procedural rights but substantive rights protection from State Government infringement. Regardless of modern precedent, there is no textual evidence for Substantive Due Process. “There is simply no avoiding the fact that the word that follows ‘due’ is ‘process’…familiarity breeds inattention, and we apparently need periodic reminding that ‘substantive due process’ is a contradiction in terms – sort of like ‘green pastel redness’” (Harrison, 502). The one argument that would protect against either substantive application is the option least welcomed, yet logically best suited for protecting against judicial legislating. That argument is the “equality argument” which sees no substantive applications in the Fourteenth Amendment. Contextually, the Fourteenth Amendment was addressing procedural equality for citizens. It does not address substantive issues, but instead the process of equal enforcement of laws by states. State governments must recognize the individual born in their jurisdiction and apply the laws of that jurisdiction equitably. “The references to ‘citizens’ in the Privileges or Immunities Clause is best understood as a reference to a particular group of individuals rather than a reference to a particular set of rights” (ed. Meese, 391). The Fourteenth Amendment is addressing a very specific issue; the equitable treatment of blacks and whites. The “black codes” drastically limited the liberties of black citizens in direct contrast to the states Constitutions. The Thirty Ninth Congress was addressing the issue of emancipated slaves. The equality interpretation of the Fourteenth Amendment “reads the clause to say nothing about the content of a state’s law, rather, it simply says that whatever the content of a state’s law, it must be the same for all citizens” (ed. Meese, 390). The Fourteenth Amendments purpose was to ensure that state civil rights protections and laws were equally enforced for all its citizens.
The Radical Republican agenda of reconstruction became main-stream in the post war years, following the major defeat of the state rights agenda of the south, permanently leveraging those who desired national supremacy since the Constitutional Convention. This gave rise to the progressive ideology that culminated in President Roosevelt’s New Deal. John Campbell, the lawyer for the butchers in the Slaughterhouse case of 1873, asserted that “the Fourteenth Amendment had a grander purpose than just guaranteeing the rights of former slaves…Campbell’s due process argument and Justice Bradley’s dissent, in the Slaughterhouse cases were thus early manifestations of the legal movement toward extending greater protection to economic liberties ” (O’Brien, 264). In Justice Bradley’s dissent he used the generic language of the Fourteenth Amendment to allow for his subjective political opinion; flying in the face of what he himself considered the well known intent of the Amendment to be.
Oliver Wendell Holmes’s dissent in the Lochner case accuses the majority opinion of reading substantive political views into the Constitution. Holmes was correct. “The Court invented and enforced a “liberty of contract’ under the Fourteenth Amendment’s due process clause” (O’Brien, 236). During the Lochner era, the projection of laissez faire capitalism onto the Constitution dominated jurisprudence. This was not abandoned as an unreasonable historical revisionism or judicial legislation on principles of it being an incorrect interpretive process. The real problem for those building off Campbell, Justice Bradley, Holmes and others, was reading into the Constitution the wrong substantive rights. Substantive alterations to Due Process were introduced and were subject to whichever political winds dominated jurisprudence, at any given time. What is currently projected onto the Constitution since, is the Keynesian and redistributive economic theory of progressivism. This took several years to establish as the primary way of doing business. Partial incorporation of economic and procedural rights was replaced by full incorporation of the first eight Amendments and an expansive and elastic theory by which courts might become permanent Constitutional Conventions. Justice Black’s dissent in Adamson v. California (1947) changed the face of jurisprudence beyond the anti-federalists wildest nightmares. “The Court is endowed by the Constitution with boundless power under ‘natural law’ periodically to expand and contract constitutional standards to conform to the Court’s conception of what at a particular time constitutes ‘civilized decency’ and ‘fundamental liberty and Justice” (ed. Linder, 4). The logical conclusion of this theory results in the frightening façade currently defacing the American system. Again, we must apply the Tenth Amendment which asserts that any rights not listed in the Constitution are left to the people or the States. The Judiciary does not have the authority to determine or define new rights. The court has become an oligarchy, unchecked by the other branches. The Judiciary is used, as a yet another tool, in the power struggle of two behemoth political parties. It is not the court’s place to “discover” the rights long established in our system of governance. It is the Court’s job to apply the law; yet another concept that is anathema to modern political thinking.
Over time it was prudent, per the ever changing winds of political ideology, to incorporate the Bill of Rights. To assert the power of the Federal Government over the State’s. President Roosevelt’s New Deal changed the standards of good governance to central planning, statist ideology and federal dominance. Substantive Due Process is the means of reading into the Constitution whatever vision of the United States the Judiciary sees prudent or possible. They, who rule the judiciary, rule the ability to justify the Federal Governments actions and power. Substantive Due Process was created to give the Judiciary the authority to increase or decrease the citizen’s rights, as needed to push a particular political agenda. The Government, at this point, ceases to be majoritarian or Republican. Instead it relies on the opinions of nine Justices. This is fundamentally contrary to our system of government.
Harrison, John. “Substantive Due Process and the Constitutional Text.” Virginia Law Review 83.3 (1997): 493-558. JSTOR. Web. 11 Oct. 2009.
“The Incorporation Debate.” Exploring Constitutional Conflicts. Ed. Doug Linder. University of Missouri-Kansas City Law School. Web.
Meese, Edwin, ed. The Heritage Guide to the Constitution. Washington, DC: Regenry, 2005. Print.
O’Brien, David M. Constitutional Law and Politics. 7th ed. NY: Norton, 2008. Print.
Rehnquist, WIlliam. The Supreme Court. NY: Vintage, 2001. Print.