The 14th Amendment “Incorporation Cases” Violate the 10th and are Unconstitutional

Amendment 14, Section 1, in part:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . .” (1868)

The 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

_______________________________

No provision in the Constitution has undergone more torture than the due process clause of the 14th Amendment. In the name of due process, the court in the late 1800s and early 1900s struck down all sorts of state economic regulation. [1] The rationale for all these decisions was that due process had a “substantive element”—that due process protected economic freedoms, such as “liberty of contract”, from legislation infringing upon those substantive freedoms. [2]

Despite the fact that those rulings have mostly been explicitly or implicitly overruled, [3] the modern court itself has continued to commit the same sins of its forbearers. Using the rubric of due process, the modern-age court has superimposed its own substantive content onto due process, among other things holding that due process prevents states: from permitting voluntary prayer in schools, [4] from prohibiting abortions, [5] from criminalizing distribution of pornography, [6] from using incriminating evidence (usually drugs) seized without warrant or probable cause, [7] from using incriminating confessions obtained without having first advised the defendant of a right to a lawyer and a right to remain silent, [8] from criminalizing flag burning; [9] and restricting states from imposing the death penalty, [10] to name some of the more prominent rulings.

One I suppose could agree, as a matter of policy, with the results of at least some of those cases, one ought beware of accepting them as a matter of law, for the “reasoning” in the cases, as I shall attempt to show here, is wholly unsound and has led to all manner of federal intrusion into matters reserved to states and subject only to state constitutional laws.

Neither the earlier, nor the modern approach, withstand scrutiny. As Professor Raoul Berger has noted, “on the eve of the [Constitutional] Convention [of 1787], Alexander Hamilton [described due process as having] ‘a precise technical import, and [is] only applicable to the process and proceedings of courts of justice; . . . never . . . to an act of the legislature.’” [11]

In saying so, Hamilton was merely echoing long-standing common law. Again, Professor Berger:

Our conceptions of due process are traceable to the . . . Magna Carta, which, roughly speaking, provided that no man should be deprived of his life, liberty, or property, except by the judgment of his peers or the law of the land. [English jurist Sir Edward] Coke stated that “by the law of the land” was meant “by the due course and process of law.” [12]

Coke himself explained the terms “without due process of law” contained in an old English statute:

[W]ithout due process of law [means without] indictment . . . or [without] writ original of the common law. Without being brought in to answer but by due process of the common law. No man may be put to answer without presentment . . . or by writ originall, according to the old law of the land. [13]

Hamilton himself was aware of Coke’s interpretation. Here is the full text of his statement above, a statement to the New York Assembly on the terminology, “law of the land”:

“Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke . . . in his comment upon a similar clause in Magna Carta, interprets the law of the land to mean presentment and indictment . . . . But if there were any doubt upon the constitution, the bill of rights enacted in this very session removes it. It is there declared that, no man shall be disenfranchised or deprived of any right, but by “due process of law,” or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.” [14]

Due process, as the word “process” suggests, is strictly a procedural protection, requiring a “presentment and indictment”, to put it in Hamilton’s terms; or to put it in Coke’s terms, “due process” requires that no one be deprived of life, liberty, or property, “without being brought in to answer but by due process of the common law.” Thus due process requires first of all a summons or other writ be issued to notify. But there is more to due process than just a notice.

Due process also demands that subsequent proceedings after notice follow a prescribed course. As Coke said, due process also requires an opportunity to answer. Consequently due process requires not only notice, but also a fair opportunity to be heard in response to the notice. [15] A summons or writ that merely notified one that legal action was being taken against him—without giving the recipient a chance to contest the matter—would be a hollow shell of a right.

Although the due process clause has been thought mainly a criminal procedure protection, it also applies in civil cases. The 14th amendment says, “[No state] shall . . . deprive any person of life, liberty, or property, without due process of law.” Thus in a criminal case a state is barred from executing a criminal defendant (depriving him of “life”), jailing him (depriving “liberty” [16]), or fining him (depriving “property”) without first giving him notice and an opportunity to be heard. But to deprive a defendant [17] of his “property” can happen in civil cases too. Nearly every civil case involves a deprivation of property, actual or threatened, on one side or the other. [18]

In sum, due process means that in state judicial proceedings, states are required to afford persons whose lives, liberties, or properties are subject to deprivation notice and fair opportunity to be heard. Due process has no substantive content beyond that—it has no bearing on legislation, except legislation that governs judicial procedure. The constitutional right of due process can, therefore, imply no constitutional right to an abortion, and no constitutional right to 1st Amendment freedom of speech, press, or religion. And beyond aiming at procedural fairness in judicial proceedings, due process has nothing to do with the 8th Amendment constitutionality of the death penalty or with the 5th Amendment constitutionality of a municipal condemnation of property, to give two examples.

The text of the constitution proves that “due process of law” in the 14th Amendment cannot possibly mean more than notice and an opportunity to be heard. That is proven by the language of the 5th Amendment, which has the nearly identical due process clause, but as a restriction on federal power.

The mere existence of the 5th Amendment due process clause shows that due process is a distinct concept, a right separate from the other rights in the first eight amendments to the bill of rights—to say otherwise creates massive redundancy. If, for example, the 1st Amendment’s guarantees of freedom of speech or of religion are embraced in “due process” in the 5th, the reading turns the 1st into useless baggage—for due process standing alone would protect free speech and religion. [19] As Justice Frankfurter stated, “It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth.” [20]

And as Madison wrote in Federalist No. 40:

“There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.”

Again, the 14th due process clause reads: “[No state] shall . . . deprive any person of . . . liberty, without due process of law.” [21] If we plug into the 5th or 14th amendment “liberty” component of due process clause, the various bill of rights guarantees and other “concepts” the supreme court has held that “liberty” there means or includes, [22] we at once see the absurdities. The supreme court’s incorporation “rationale” succeeds in defeating every constitutional right in our bill of rights.

THE BILL OF RIGHTS (Reconstructed by the supreme court’s incorporation doctrine)

Freedom of speech. No state shall deprive any person of . . . the freedom of speech without due process of law. [Corollary: free speech can be denied if notice and an opportunity to be heard are given.]

Establishment of religion. No state shall deprive any person of . . . the right to refuse to pay for an established religion without due process. [Corollary: a tax-supported religion may be established if fair hearing is given.]

Free exercise of religion. No state shall deprive any person of . . . the right to freely exercise his religion without due process. [After a fair hearing, a person may be barred from going to church.]

Redress of grievances. No state shall deprive any person of . . . the right to petition the government for redress of grievances without due process. [The government may squelch petitions if it does so fairly.]

Weapons. No state shall deprive any person of . . . the right to bear arms [23] without due process of law. [Guns can be confiscated for any reason as long as an opportunity to object is first given.]

Troops. No state shall deprive any person of . . . the right to refuse to quarter troops in peacetime without due process. [Troops can take over a house if the owner first has a chance to fight it in court.]

Searches and seizures. No state shall deprive any person of . . . the right to be secure in his person and property against unreasonable searches and seizures without due process. [The right may be nullified upon an in court showing that necessity requires abrogation; also police have to inform suspects in advance that they intend to search.]

Search warrants. No state shall deprive any person of . . . the right to insist on a search warrant secured on probable cause without due process. [Search warrants cannot be obtained without a judicial hearing, at which the search suspect can put on a case against the warrant.]

Double jeopardy. No state shall deprive any person of . . . the right to avoid being tried twice for the same crime without due process. [If due process is given in the second, third, fourth, etc., cases, the prosecution may prosecute forever.]

Self-incrimination. No state shall deprive any person of . . . the right to refuse to incriminate himself without due process. [Confessions can be beaten from prisoners as long as a lawyer or judge is on the scene to see that the prisoner has had adequate notice of the beating and an opportunity to protest. (A new Miranda warning the cops must give: Cops: "We're now about to beat you. You may have your lawyer present as we do so") and a fair opportunity to object to the beating." (Suspect: "Please don't—I'm innocent.")]

Due process. No state shall deprive any person of . . . the right to receive due process of law without due process of law. [Due process in the 5th Amendment is part of the bill of rights, so why not incorporate it into the due process clause of the 14th and have a due process to end all due process?]

Takings of property. No state shall deprive any person of . . . the right to avoid having his private property taken for a public use without due process. [The state may just take private property if it first gives the owner notice and an opportunity to contest the matter.]

Just compensation. No state shall deprive any person of . . . the right to receive just compensation for a government taking of his property without due process. [The government can take the property for free, if it gives notice and hearing first.]

Speedy and public trial. No state shall deprive any person of . . . the right to a speedy and public trial without due process. [The state can delay a trial forever, if only if gives notice of the perpetual delay and an opportunity to object to it.]

Jury. No state shall deprive any person of . . . the right to an impartial jury without due process. [As long as notice and hearing have occurred on whether the right will be observed, the right may be vanquished, and the accused may be sentenced by a court of kangaroos.]

Trial venue. No state shall deprive any person of . . . the right to a jury trial in the district where the crime is committed, without due process. [The accused can be whisked away to Siberia for a trial.]

Accusation. No state shall deprive any person of . . . the right to be informed of the accusation without due process. [Thus a fair hearing on whether the accused is entitled to know what the crime is before the trial starts!]

Witness confrontation. No state shall deprive any person of . . . the right to be confronted with witnesses against him without due process of law. [Ergo a hearing on whether the state will have to bother with producing at trial the witnesses against the accused.]

Accused’s witnesses. No state shall deprive any person of . . . the right to present his own witnesses without due process. [Yet another hearing, this one on whether the accused can present witnesses to rebut the missing prosecution witnesses in the previous example.]

Right to counsel. No state shall deprive any person of . . . the right to have a lawyer represent him without due process. [Still another hearing, on whether the accused deserves a lawyer to represent him in a case in which he doesn't know the charges, doesn't know the witnesses against him, and can't produce his own witnesses.]

Harsh punishments. No state shall deprive any person of . . . the right to avoid cruel and unusual punishment without due process of law. [One "final" hearing on whether the hapless speeding ticket offender, who doesn't know his crime, doesn't know his accusers, can't present his own witnesses, and can't have a lawyer, will go to the gallows for his crime.]

Unspecified rights. No state shall deprive any person of . . . his unenumerated rights without due process. [This completes the circle of rights deprivation—all rights may be cancelled so long as the rights are cancelled by a judge after notice and a fair hearing.]

Abortions. No state shall deprive any person of . . . the right to an abortion without due process of law. [No doubt the feminists will love this one—the specter of judges conducting fair hearings at abortion "clinics". Should the killer have the right to kill? Will the "fetus" get a lawyer to represent him/her?]

As the exercise shows, “liberty” in the due process clause, which applies to judicial proceedings only, cannot possibly mean anything more than freedom from personal restraint or confinement, which as Blackstone defined it, is: “power of locomotion, of changing situation . . . without imprisonment or restraint of the person.” [24] To say that “liberty” means the right to an abortion spontaneously and paradoxically aborts the “right” to an abortion—the right can be divested if due process is first given.

On the other hand, there is no redundancy in the due process clause if “due process” is read as requiring notice and an opportunity to be heard: “[No state] shall . . . deprive any person of life, liberty, or property without first giving notice and an opportunity to be heard.” Due process refers only to fair judicial procedures. And that’s what it meant to the framers of the 14th amendment. [25]

* * *

The framers never believed that the first ten amendments to the constitution were directives to the states. Even the great Nationalist himself, Chief Justice John Marshall, expressed some 29 years later said that the Federal Bill of Rights was not applicable to the states, only the federal government. For a unanimous supreme court in Barron v. Baltimore, Marshall wrote: “[The first ten amendments are] security against the apprehended encroachments of the general government—not against those of the [state or] local governments.” [26] “Had Congress,” Marshall wrote, “engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection for the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.” [27]

Despite Barron v. Baltimore, and despite the language of the Bill of Rights showing it is directed to congress and not state government, in 1897, the supreme court began an excruciating process of reversing Barron on a piece-by-piece basis through the so-called incorporation doctrine—the idea we explored above where we saw the nonsense of “incorporating” the bill of rights into the “liberty” component of the due process clause of the 14th Amendment and the bill of rights. [28] The U.S. Supreme Court has adopted almost all of that nonsense.

In the span beginning in 1897, the court has incorporated or absorbed into the 14th due process clause: the free exercise of religion clause, [29] the establishment clause, [30] free speech, [31] free press, [32] assembly, [33] petition for redress, [34] search and seizure, [35] double jeopardy, [36] self-incrimination, [37] just compensation, [38] speedy trial, [39] public trial, [40] jury trial, [41] impartial jury, [42] notice of charges, [43] confrontation, [44] compulsory process, [45] counsel, [46] cruel and unusual punishment, [47] and the 9th amendment. [48] The only rights not incorporated are those relating to the right to bear arms, quartering troops, grand jury indictments, [49] civil jury trials, bail, and excessive fines.

The “rationale” for the incorporation was “explained” in cases like Synder v. Massachusetts this way: incorporation is necessary when a state procedure “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”; [50] or as in Palko v. Connecticut: incorporation is required when a particular provision of the bill of rights was “implicit in the concept of ordered liberty”. [51] These formulations became the loose cannons for a supreme court with designs on spreading its jurisdictional power into states. And eventually the court absorbed into due process not only nearly all of the bill of rights, but all of the federal case law standards relating to those rights, holding that the constitutional standards are identical. [52]

Paul Bator was right: “The way we arrived at incorporation,” he said, “was intellectually shoddy. It was just announced as though it was a coup d’etat; suddenly we had incorporation.” [53] Incorporation gives legitimacy to unconstitutional federal judicial control over states—it strikes at the heart of federalism and state sovereignty, often, as in the criminal procedure and abortion cases, with tragic results.

___________________________________

1. See e.g., Allgeyer v. Louisiana, 165 U.S. 578 (1897) (Louisiana law requiring all corporations doing business there to pay a fee to the state); Lochner v. New York, 198 U.S. 45 (1905) (New York maximum hours law); Coppage v. Kansas, 236 U.S. 1 (1915) (state law banning yellow dog contracts); Adkins v. Children’s Hospital, 261 U.S. 525 (1923) (minimum wage law powers of government agency in District of Columbia).

2. Lochner, at n. 1, supra.

3. E.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding Washington state minimum wage law).

4. Engel v. Vitale, 370 U.S. 421 (1962).

5. Roe v. Wade, 410 U.S. 113 (1973).

6. Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413 (1966).

7. Mapp v. Ohio, 367 U.S. 643 (1961).

8. Miranda v. Arizona, 384 U.S. 436 (1966).

9. Texas v. Johnson, 109 S. Ct. 2533 (1989).

10. Furman v. Georgia, 408 U.S. 238 (1972).

11. The Fourteenth Amendment and the Bill of Rights, p. 9.

12. Government by Judiciary, p. 195.

13. Id. at 198, quoted in Hurtado v. California, 110 U.S. 516, 523 (1884).

14. Id. at 196, n. 11.

15. Twining v. New Jersey, 211 U.S. 78, 111 (1908).

16. For the definition of liberty, see infra at n. 24.

17. Or a plaintiff. A plaintiff can be deprived of his property without due process if he loses a lawsuit to stop a defendant from taking his and is denied the opportunity to present his claims.

18. “Property” is a very broad concept: “[E]very species of valuable right and interest [including lawsuits for] invasion of one’s property rights by actionable wrong.” Black’s Law Dictionary, 5th Ed. at 1095.

19. This is the point made years ago by Charles Warren: the “free speech” of the First Amendment could not have been comprehended in the due process of the Fifth because, “having already provided in the First Amendment an absolute prohibition on Congress to take away certain rights,” it is “hardly conceivable” that the Framers would, in the Fifth, provide that “Congress might take away the same rights by due process of law.” Warren, Charles, “The New ‘Liberty’ Under the Fourteenth Amendment,” 39 Harv. L. Rev. 431, 441 (1926), as paraphrased in Berger, Government by Judiciary, p. 271.

20. Adamson v. California, 332 U.S. 46, 66 (1947).

21. The 5th Amendment is almost identical: “No person shall . . . be deprived of life, liberty, or property, without due process of law”.

22. There are a few provisions of the bill of rights that have not yet been “incorporated” into the due process clause. These are: 2nd Amendment (weapons), 3rd Amendment (quartering troops), 5th Amendment (grand jury), 7th Amendment (jury in civil cases), and 8th Amendment (excessive fines).

[Update: Note 22 above, insofar as it relates to the 2nd Amendment, is wrong. See McDonald v. Chicago, a 2010 decision, holding the 2nd applies to states through the due process clause of the 14th.]

23. We include this right, and the four others not incorporated, just to show how incorporation would work if it were consistently applied.

24. Berger, Government by Judiciary, p. 270.

25. The inclusion of due process provoked no debate among the 14th Amendment’s ratifiers. See Berger, Government by Judiciary, pp. 201-214. As Berger reports, Senator Bingham the main sponsor of the legislation was asked, “What do you mean by ‘due process of law’”?, Bingham curtly replied, “the courts have settled that long ago, and the gentleman can go and read their decisions.” Id. at 203-04.

26. Barron v. Baltimore, 32 U.S. 243 (1833).

27. Id. at 250.

28. Endnote omitted.

29. Hamilton v. Regents, 293 U.S. 245 (1934); Cantwell v. Connecticut, 310 U.S. 296 (1940).

30. Everson v. Board of Education, 330 U.S. 1 (1947); also Illinois ex rel. McCollom v. Board of Education, 333 U.S. 203 (1948).

31. Gitlow v. New York, 268 U.S. 652 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931).

32. Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).

33. DeJonge v. Oregon, 299 U.S. 353 (1937).

34. DeJonge v. Oregon, supra 364; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).

35. Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).

36. Benton v. Maryland, 395 U.S. 784 (1969); Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel).

37. Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S. 609 (1965).

38. Chicago, B & Q Railroad v. City of Chicago, 166 U.S. 226 (1897).

39. Klopfer v. North Carolina, 386 U.S. 213 (1967).

40. In re Oliver, 333 U.S. 257 (1948).

41. Duncan v. Louisiana, 391 U.S. 145 (1968).

42. Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965).

43. In re Oliver, 333 U.S. 257 (1948).

44. Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).

45. Washington v. Texas, 388 U.S. 14 (1967).

46. Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 355 (1963).

47. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).

48. Roe v. Wade, 410 U.S. 113 (1973) (9th Amendment mentioned as possible ground for overruling state abortion laws).

49. Hurtado v. California, 110 U.S. 516 (1884).

50. 291 U.S. 97 (1934).

51. 302 U.S. 319 (1937).

52. See Malloy v. Hogan, 378 U.S. 1, 10 (1964).

53. “Some Thoughts on Applied Federalism,” 6 Harv. J. of Law & Pub. Policy 51, 58 (1982).

Published in: on March 22, 2012 at 9:38 am  Leave a Comment  

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