I have written extensively in the past about the 14th amendment and the doctrine of incorporation. I'm still baffled by those who take the position that the 14th amendment did not make the Bill of Rights enforceable against the states. The historical evidence against that position is very strong. I once debated Herb Titus on Jim Babka's radio show about that subject and he took the even stranger position that the 14th amendment only incorporated the first three amendments against the states.
In reading Akhil Amar's new book, I came across yet another piece of compelling evidence that the intent of the 14th amendment was to apply the Bill of Rights to state actions as well as Federal actions. The man who developed and most eloquently defended the 14th amendment was Rep. Bingham of Ohio. When he presented his proposal to the House of Representatives, he repeatedly said that the amendment would enforce the Bill of Rights against the states. And afterward, he published his key speech on the subject in a pamphlet. As Amar puts it, the title says it all:
One Country, One Constitution, and One People: Speech of the Hon. John A. Bingham of Ohio, in the House of Representatives, February 28, 1866, In support of the proposed amendment to enforce the Bill of Rights.
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Ed,
I learn so much from reading this blog, thanks again for the great articles. My boss has made this argument before, that the federal government basically has very little right to tell States what to do, and now I have some ammunition as to why that's such an inaccurate reading of the 14th Amendment.
One thing I wanted to point out, though, when I followed the link to your earlier article (also great!), there are lots of spam trackback ads on there. Being secure in my masculinity (ahem) I didn't follow the more risque ones but I figured you should know about it in case you hadn't checked in a while and wanted to clear them up.
I was reading some rather ugly Scalia quotes today regarding his views about the lack of viability of the Constitution (he seems to miss the most obvious hypocrisy about his own role under Article 3; or is that must more of his convenience) and your post here reinvigorates my deep reverence and admiration for something so well crafted, that it has withstood such heinous assaults. The 14th is one of the almost too rare examples of great craftsmanship in creating an addendum to the masterwork of the framers. It is like a beautiful centuries old theater, whose original architectural and artistic majesty continues to be manifest, despite numerous well-intentioned (and not so well-intentioned) restorations and remodelling. Once in a great while you find someone to do the work that is every bit as equal to that of the original, carrying it forward into another century.
Another book you might really like regarding the 14th Amendment is Irving Brant's "The Bill of Rights". It is long out of print, but Amazon has some used copies. It also addresses John Bingham and how the intent of the 14th amendment was to incorporate the Bill of Rights and apply them to the States (it also explains how Bingham was initially confused in that he thought that they were already incorporated). The book was cited by Justice Thurgood Marshall in Kelley v. Johnson, 425 U.S. 238 (1976).
I'm still baffled by those who take the position that the 14th amendment did not make the Bill of Rights enforceable against the states. The historical evidence against that position is very strong.
YOU SHOULD BE BAFFLED BECAUSE YOU ARE WRONG.
ME: I'm still baffled by those who take the position that the 14th amendment did not make the Bill of Rights enforceable against the states. The historical evidence against that position is very strong.
Jimmy G:
Well golly gee, what a powerful and persuasive argument. How ever will I respond other than the obvious "nuh uh"? Come back when you want to offer an actual argument and not just conclusionary rhetoric. Follow the link in the post to my previous writings on the subject and attempt to explain why the clearly expressed intent of the men who wrote and ratified the 14th amendment is not clear evidence of its meaning.
Jimmy couldn't be bothered with an actual substantive post, he was trying to single-handedly fill out the entire "Recent Comments" section of the main page. When you're going for that kind of record you don't have the time to type actual thoughts, you've gotta post-and-run.
I was sad to see that he missed out on 3 of the spots when I logged in. Keep plugging away, little camper!
(I must second Jeff - reading your blog is always an educational experience. Thank you for sharing your insight with us.)
But back to the 14th Amendment. Ben Ginsburg gave a very interesting talk at Duke yesterday. (The correct link is actually
http://realserver.law.duke.edu/ramgen/spring06/publiclaw/02012006.rm).
Can't say I'm surprised by his admission, except for the fact that he made it.
I am constantly hearing about how the 14th amendment was illegaly passed. Anyone know of good resources refuting these arguments?
Tim654 wrote:
The argument is that the 14th isn't legitimate because the Reconstruction Congress required that the confederate states ratify the amendment (and the 13th as well) before letting them rejoin the Congress. It's frankly a silly argument. The Union won the war and part of winning the war meant that the states in rebellion had to agree to certain conditions in order to become full standing members of the union again, and that included changing the things that prompted the war in the first place, slavery and the oppression of blacks. The 13th and 14th amendments were the instruments of that change. All of the holdouts did subsequently ratify the amendment.
Tim64:
See
http://www.usconstitution.net/constfaq_a6.html#Q119
There's lots of interesting FAQ's at that site.