You may have heard in the news about Timbs v. Indiana, where Mr. Timbs is claiming that the forfeiture of his vehicle as part of a drug sales case constituted an excessive fine prohibited by the Eighth Amendment. What makes this interesting from a constitutional point of view is the argument that the Eight Amendment is “incorporated against the states under the Fourteenth Amendment”. This got me thinking about the “Incorporation Doctrine”, how it is unconstitutional, and how this blatant 19th century opinion has so distorted the legal minds of this nation ever since.
Incorporation Doctrine
The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Prior to the doctrine’s (and the Fourteenth Amendment’s) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so.
The selective incorporation doctrine, better known as simply the incorporation doctrine, is the belief that the Bill of Rights does not apply to the states, or at least didn’t until the 14th Amendment, which began incorporating certain of these ten cherished amendments against the states. This legal belief about the Constitution started in 1833 with the case Barron v. Baltimore.
Barron v. Mayor & City Council of Baltimore
The case started when it was found that various works of the City of Baltimore had the effect of redirected streams that now dumped the runoff sand and earth near the wharf owned by Craig & Barron, making it unusable. An heir sued the city looking for compensation for the loss of the use of their wharf. The plaintiff claimed that their right to enjoy their property without being interfered with was taken away by the City of Baltimore for public use, and the Fifth Amendment required there be just compensation. The question before the supreme Court was, do the provisions of the Fifth Amendment apply to the states or only the central government? In the opinion delivered by Chief Justice Marshall:
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. … If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.
The Chief Justice goes on to describe how some clauses in the Constitution specify that they apply to the states while others do not and should be assumed to apply only to the general government.
If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason.
In general I would agree with Chief Justice Marshall that without specific language on the application of the Constitution, it’s assumed that it applies only to the general government. The problem is, although the justices “search[ed] in vain for that reason”, it was “hiding” right under their noses in Article VI, Clause 2.
The Supremacy Clause
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
If there is a “incorporation doctrine”, then it’s right here. Article VI, Clause 2, known as the Supremacy Clause, clearly states that the Constitution is the supreme law of the land and that the judges in every state are bound to it regardless of the laws or constitutions of their state. That means that the Baltimore county judge was bound to the Fifth Amendment as to any state or local law or constitution. In fact, when there is a conflict between the state constitution and the U.S. Constitution, the later must win since it is the supreme law.
So why couldn’t the justices on the supreme Court find it? I don’t know. What I do know is that regardless of the merit of the cases brought by Mr. Barron and Mr Timbs, this idea that only parts of the Bill of Rights apply to the states comes solely from the minds of those in the judicial branch. Is it any surprise that in their opinion they get to decide when and where certain parts of the Constitution apply to the states? And since almost nobody, including lawyers and judges, bothers to read the Constitution, this fairy tale lives on.
This is why we stress the need for everyone from lawyers to judges, politicians to bureaucrats, and teachers to citizens, read the Constitution for themselves. The experiment of leaving the interpretation of the Constitution to a high-priesthood of judges has proven to be an utter failure. It is well past time we not only restore the Constitution to its rightful owners (the people of the United States), but restore constitutional literacy to them as well. Only then will we have the real opportunity to protect our rights and our liberties.
Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.
John Jay, First Chief Justice of the supreme Court of the United States
