14th Amendment Incorporation: How It Transformed the Bill of Rights

The amendments to the U.S. Constitution are profoundly significant to American life, often more so than the original document. While the "Bill of Rights" is commonly associated with the founding era, the term itself wasn't widely used in official contexts, such as Supreme Court cases, until after the Civil War. It was during and after the Civil War, with the next generation of amendments, that the early amendments began to be consistently referred to as the Bill of Rights.

The 14th Amendment and the Incorporation Doctrine

Crucially, the framers of the 14th Amendment, a much later generation of Americans, insisted that the Bill of Rights apply to state and local governments. This process, known as the "incorporation" of the Bill of Rights against the states, fundamentally changed American law.

The First Amendment, for instance, states, "Congress shall make no law abridging free speech and free press." However, in the antebellum period, states actively suppressed political discourse, particularly regarding slavery. It was a crime to be anti-slavery in some states, and preachers were imprisoned for speaking against it. This demonstrates that the original Bill of Rights, which primarily limited the federal government, did not prevent states from infringing upon fundamental freedoms.

Many of the most important Bill of Rights cases in modern memory, such as New York Times v. Sullivan, Miranda v. Arizona, Lawrence v. Texas, and Griswold v. Connecticut, are not strictly original Bill of Rights cases. Instead, they are 14th Amendment cases where a state or locality was accused of abridging a fundamental freedom.

Madison's Vision vs. Reconstruction's Reality

At the founding, James Madison had proposed an amendment that would have restricted states, but it failed to gain enough support. In the wake of the American Revolution, strong states' rights and anti-federalist sentiments prevailed, with many Americans fearing a powerful central government and trusting state governments more. The original Bill of Rights reflects this sentiment, beginning with "Congress shall make no law" and ending with the 10th Amendment, which reaffirms enumerated federal powers and reserved state powers. It was largely anti-federalist, protecting rights primarily against the federal government.

However, the Reconstruction generation, particularly John Bingham, the main drafter of a key section of the 14th Amendment, achieved in the 1860s what Madison could not in the 1790s. This means that the perceived importance of the Bill of Rights today largely stems from its application to the states through the 14th Amendment.

Before the Civil War, the early amendments were not vigorously enforced by courts. Congress passed sedition laws, and courts enforced them, imprisoning individuals for criticizing the federal government, despite the First Amendment. The only instance where the Supreme Court enforced the Bill of Rights against the federal government before the Civil War was in the Dred Scott case (1857). The Court ruled that Congress prohibiting slavery in territories violated the Fifth Amendment's due process clause, claiming it was a deprivation of property without due process. This ruling was considered preposterous, as the law was passed by Congress and enforced by judges and juries, which constitutes due process.

The 14th Amendment and Equality

The 14th Amendment also introduced the concept of individual equality into the Constitution. While the Declaration of Independence contained lofty language about equality, it was not binding law. The original Constitution discussed the equality of states (e.g., equal votes in the Senate) but said nothing about the equality of persons. The 14th Amendment explicitly embeds the word "equal" in connection with individual equality, a textual commitment not present in the founding era.

The 15th Amendment and Voting Rights

The framers' rules were, in some ways, pro-slavery and did not guarantee equal voting rights regardless of race, color, or previous condition of servitude. The Reconstruction generation added the 15th Amendment, which addressed voting rights regardless of race. Without this amendment, it is unimaginable that someone like Barack Obama could become president or that the Voting Rights Act of 1965 could have passed.

The Evolution of American Leadership and Constitutional Vision

The constitutional vision has evolved significantly beyond the founding fathers. While George Washington is central to the constitutional vision, embodying national security and geo-strategy, his era was marked by slavery. Andrew Jackson, another general, also embodied national security but in a more aggressively pro-slavery manner, appointing Roger Taney to the Supreme Court.

However, the system eventually gave way to Abraham Lincoln. Modern America lives far more in "Lincoln's house," a house divided by slavery that was rebuilt and reconstructed by his generation. This generation rebuilt the Bill of Rights, applied it against the states, and promised civil and racial equality, even in the franchise. This is the modern world, shaped by the "amenders."

Generational Spurts of Amendments

The Constitution is an intergenerational project, and the amendments are as crucial as the original founding vision. Amendments tend to come in generational spurts: * Founding Era: The original Constitution, the first 10 amendments (Bill of Rights), and the 11th and 12th Amendments. * Civil War and Reconstruction: After a half-century hiatus, the 13th, 14th, and 15th Amendments emerged from the cataclysm of the Civil War. These amendments are "nationalizing" amendments, reflecting the nationalism of the Civil War, in contrast to the localism of the Revolutionary War. They all end with "Congress shall have power," signifying enhanced federal authority. * Early 20th Century (Progressive Era): After another half-century, a new cluster of amendments, particularly the 16th, 17th, and 19th, further broadened the scope of federal power.

The Impact of the 16th, 17th, and 19th Amendments

These amendments are crucial to understanding the modern constitutional world:

• 16th Amendment (Income Tax): Adopted in the early 20th century, it affirmed the federal government's power to impose an income tax on individuals. This was designed by progressives who believed in a progressive income tax to redistribute economic resources, a task more effectively done at the national level than at the state level.
• 17th Amendment (Direct Election of Senators): This amendment made U.S. senators directly elected by the people of each state, rather than by state legislatures. This freed senators from dependence on state legislators, allowing them to pursue national projects more readily and making them more populist politicians.
• 19th Amendment (Women's Suffrage): This amendment granted women the right to vote equally with men. Historically, women have tended to vote more for social welfare measures, contributing to what is sometimes called the "gender gap."

The combination of the 16th, 17th, and 19th Amendments laid the groundwork for significant federal programs and policies, such as the New Deal, the Great Society, and Obamacare. The 16th Amendment provided the financial means for national redistributive projects. The 17th Amendment created a Senate more willing to support large federal initiatives. The 19th Amendment brought a new demographic of voters who, historically, have shown greater support for social welfare legislation.

These developments are fully constitutional, not just because of the founding vision, but because that vision has been supplemented by the Reconstruction and Progressive Era visions.