Incorporation: From Congress To The States

Start with a single word—Congress—and watch the ground shift beneath your feet. We pull back the curtain on how rights that began as limits on the federal government became limits on states, tracing the winding path from Reconstruction’s ambitions to today’s near-universal incorporation of the Bill of Rights.

With constitutional law scholar Dr. Beienberg, we revisit Madison’s failed bid to bind states, the post–Civil War demand for a national floor of fundamental rights, and the strange turn that sidelined the Privileges or Immunities Clause. From Cruikshank’s detour to the rise of substantive due process, we explore how the Court first protected economic liberty, then pivoted to civil liberties by redefining “fundamental” under the Fourteenth Amendment. Along the way, Hugo Black argues for total incorporation as a cleaner, less discretionary rule, while later courts adopt a selective, case-by-case method that ultimately applies most of the first eight amendments to the states.

We break down why speech, religion, counsel, and search-and-seizure protections now operate in state courts; how decisions like McDonald v. Chicago weigh tradition and state constitutional practice; and why today’s framework gives citizens overlapping protections from both federal and state charters. If you’ve ever wondered whether due process, equal protection, or privileges or immunities should carry the constitutional load, this conversation gives you the history, the doctrine, and the stakes. Listen, share with a friend who loves constitutional puzzles, and leave a review to tell us which incorporation model you think gets it right.

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Episode Transcript

SPEAKER_00 (00:00):
Welcome back.
We have been talking about theBill of Rights, all of these
amendments.
And I have Dr.
Weinberg back with us becauseone of the things I noticed is
we talked a lot about thefederal governments, but not
necessarily the state.
So specifically, right, theFirst Amendment, Congress shall
make no law.

unknown (00:19):
Dr.

SPEAKER_00 (00:19):
Weinberg, we're not talking about the entirety of
the 14th Amendment today.
We're using the 14th Amendmentto talk about incorporation.
So why is this important?

SPEAKER_01 (00:29):
And well, I'll just say you uh you started with
basically one of the kind ofquestions I like to do when I'm
teaching this stuff is askingpeople, what is the first word
of the First Amendment?
And this sort of causes people,because you know they associate
is free speech.
It's but it is in fact Congress,because as we've been talking
about at great length, the Billof Rights is originally supposed
to be a set of constraints onthe federal government, with

(00:51):
additional constraints on thestates in Article 1, Section 10.
During the constitutionaldebates about the Bill of
Rights, Madison tries to sneakin a provision that effectively
would apply parts of theseamendments, these individual
liberties to the states.
And they push back, I think,quite reasonably and say, look,
we weren't talking aboutconstraining the states.

(01:12):
Your anti-federalists in theVirginia Convention weren't
saying, hey, put some morerestrictions on Virginia, right?
So they they blocked that.
But this had been seen by a lotof folks as one of the remaining
problems issues or failures orproblems with the original
constitution.
They had recognized, again,there need to be situations

(01:34):
where you tell the states no.
Like this is not a newphenomenon.
Article 1, section 10 isliterally a list of states thou
shalt not.
And during the build-up to andlead and afterward, during
Reconstruction, the Civil War,there is a recognition that we
want to make sure that a floorof fundamental rights is applied

(01:55):
to the states.
And I'm emphasizing a floor offund, particularly fundamental
rights, because these peoplestill like federalism.
They still like the 10thAmendment, they still like
states' rights.
But they want to createeffectively an additional,
hopefully redundant enforcementof core civil liberties.
And it's worth emphasizing, mostof these civil liberties are

(02:18):
already present in most of thestate constitutions.
Most of the states havesomething like a freedom of
speech.
Most of the states havesomething like a right to keep
and bear arms.
Most of them have something likesearch and seizure.
Right.
And so the pitch that they'remaking in Congress is this isn't
really that much of an ask thatwe're creating effectively so
that your state constitutionswill enforce these fundamental

(02:39):
rights, and the federalgovernment can enforce, again,
this narrow list of particularlythe first eight amendments to
the bill or first eightamendments of the Bill of
Rights, nine and ten beingfederalism provisions.
Now, what part of theConstitution is supposed to do
this, this gets messy veryquickly.

(02:59):
And I will spare your listenersall the super arcana of this.
Most scholars today, becauseeffectively the the folks in
Congress say we're going toapply the first eight parts of
the Bill of Rights, but theydon't really go through and say,
because of this section, becausethey're very opaque about that.
There's actually a problem morespeech broadly speaking when
they say, we're going to putdown sort of racially

(03:20):
discriminatory legislation.
Is that equal protection?
Is that due process?
Equal protection is notnecessarily necessarily that.
Is it the citizenship,privileges and immunities, that

(03:41):
creates this sort of this sortof possibly colorblind
constitution?
Again, they're not very clearabout that in Congress.
So scholars today generallythink that the privileges and
immunities clause is supposed tobe what enforces it, that no
state shall deprive citizenswithin their borders of the
privileges and immunities ofU.S.

(04:03):
citizenship, which for them issupposed to be the first date
amendments of the Bill ofRights.
The wrinkle comes a few yearsafter the 14th Amendment is
passed.
And we know that judges on theSupreme Court think that this is
what it's supposed to do.
They tell each other this intheir private letters.
Sometimes when they're sittingas lower court circuit judges,
they will strike stuff down thatthe states are doing violating

(04:26):
one of the parts of the Bill ofRights.
But there comes a point whenthey're debating whether we can
incorporate the Second Amendmentagainst the states.
And they start getting worriedthat if that happens, that will
effectively restart the CivilWar.
And so in a case calledCruikshank versus United States,

(04:47):
people usually blame a differentcase called the Slaughterhouse
Cases.
I was just reading a piece aboutthis yesterday that was annoying
me.
It's Crukshank.
Cruikshank is the one that saysthe Bill of Rights doesn't apply
to the states.
And they go back and they citethe famous case of Bering v.
Baltimore from 1833, which hadoriginally said Bill of Rights
doesn't apply to the states.

(05:07):
Again, accurately at the time.
Marshall was accurate in sayingthat, but it says that's the
14th Amendment's like we'reapplying the core protections of
the Bill of Rights to the statesthat just never happened.
They just sort of put theirheads in the sand.
A few years later, Justice JohnMarshall Harlan, again, who's
basically a pretty pro-states'rights guy, if you read his
private writings in these lot ofhis cases, he sides with the

(05:29):
federal government in a fewmajor cases, but he's still
pretty pro-federalismpro-states' rights.
But he says, Hey, I thought wewere applying the Bill of Rights
to the states.
And they all look at him likehe's out of his mind.
Which is why Felix Frankfurter,in a case in the 40s, what does
he say?
Like, except for one, and he'sreally passive aggressive, but
like one charming eccentric orsomething like that.

(05:49):
I can't remember the exactformulation, but it's like that
one weird guy, John MarshallHarlan, who we later realize is
like is right about Plessy B.
Ferguson, is right about lots ofthings that otherwise they
basically say we're not doingthe incorporate, we're not
applying the Bill of Rights.
Then the court does a reallyweird thing where the court
basically says that being a freecitizen requires striking down

(06:14):
certain kinds of economiclegislation that we think is
antithetical to being a freecitizen.
This originally starts asStephen Field's dissent in the
slaughterhouse cases, where hesays, you should have the
authority to practice basicallyany profession you want.
A state government should notstop you from doing that.
Which he's then saying there's abroad sort of liberty of

(06:37):
contract.
And so this causes some anxietyamong sort of the textualist
folks on the Supreme Court thatsay, look, the 10th Amendment
says the states can do whateverthey want if we didn't tell them
no.
Where are you articulating thatthe federal government, the
federal judiciary, can sort ofstrike stuff down that you think
is effectively inconsistent withfree government, with free

(07:00):
economics?
And so this goes back and forthfor a while.
Eventually, the courtsarticulate a test that say we
will apply unenumerated butfundamental rights, will protect
those of individuals against thestates.
And originally, this is againmostly economic stuff, which
really annoys a lot of thetextualists that say, like John

(07:22):
Marshall Harlan is sort of oneof them.
We're not enforcing the Bill ofRights, but we're enforcing this
liberty of contract.
He'll eventually side with it onsort of precedent grounds.
The court backs intoincorporating the Bill of Rights
in some sense accidentally,because they've built up this
big case law that says economicsare this fundamental right, the
set of fundamental rights.
And then some people say, Well,is free speech a fundamental

(07:43):
right?
And the court says, yes, it is,but not because it's in the
First Amendment.
And they keep saying, yes, itis, but not because it's in the
text, right?
It's it, they say it'seffectively in the text because
it's fundamental, but it's notfundamental because it's in the
text.
And this gets criticized mostfamously by Justice Hugo Black,
who says this fundamentallyempowers federal judges because

(08:06):
federal judges can say, I don'tsee this guarantee in the text
of the Constitution, but I thinkit's super important or it's
super fundamental.
And they use differentformulations, but it's
effectively boils down to that.
And so Black says, hey, there'sa real clean way to do this.
Let's just go back and apply thefirst eight amendments of the
Bill of Rights to the states.
Yes, this causes a little bit ofa bite on federalism, but not

(08:30):
that much because the statesalready have free speech and
their constitutions.
Like none of these are likereally weird, crazy things.
But he says it's more protectiveof states' rights insofar as the
list is eight.
The list is not, you know, extranumbers that justices think are
important.
And so he says, in particular, Idon't care what sorts of stupid

(08:51):
economic legislation some statepasses.
There's no liberty of contract.
It's not our job as federaljudges to say what sort of
efficient, inefficient, properlycalibrated means and ends.
So Black loses that fight.
However, in practice, he wins.
Because eventually what thecourts do is over and over

(09:12):
they'll say the due processclause protects fundamental
rights.
And increasingly, how we definefundamental means it popped up
in one of the bills of rights,such that today, in practice,
almost all of the bill of rightshas been applied against the
states.
Most recently, a section of theEighth Amendment.
I would say the most major kindof conversation about that was

(09:34):
the Second Amendment back in2010.
Does that apply to the states?
But basically, between the 40sand call it the 70s, the First
Amendment, the Fourth Amendment,the Fifths, most of the Fifth
Amendment, most of the Sixth andSeventh Amendments, the Eighth
Amendments, they get appliedsort of piecemeal.
Occasionally today, so the mostrecent case where they were

(09:57):
really debating this again isthe Eighth Amendment case, but
or the McDonald, which is nogoing to be its own standalone
case.
So I don't want to talk aboutthe guns piece of that.
But the majority opinion says,well, using our framework, we
just say we're going to protectfundamental rights.
This one seems like, this is thecontext of the Second Amendment.
This seems like it's prettyfundamental because A, it's in
the Bill of Rights, and B, it'sin like 44 of the state

(10:19):
constitutions.
So this seems like somethingthat our tradition believes is
fundamental.
And we'll do this with the DueProcess Clause.
And Clarence Thomas writes thisopinion where he says, look,
come on, let's just do thisright.
Let's go back and do it with theprivileges and immunities
clause.
And the majority basically says,and the dissents too basically
say, this is fun.
This is the kind of stuff lawreview articles are about.

(10:41):
But even if we've been doing itwrong for now, you know, 70
years, we're just going to keepsaying it's fundamental, due
process.
So in practice today, almost allexcept for some of the technical
sort of court procedure sectionsof the Sixth and Seventh
Amendments and the ThirdAmendment are applied against
the states.
The process is really messy.
I try to like not be totallysnarky when I do it.

(11:03):
My students always hate thissection.
I do it as two days in my conlaw classes, and they always
hate it.
They hate it, hate it, hate it.
And I can't say I blame them.
But very circuitous route.
But the takeaway is yes, thebulk of the first eight
amendments of the Bill of Rightsare applied against the feds and
apply against the states, whichmeans that you get the nice
multiple overlapping, redundantprotections of the Constitution.

(11:27):
Freedom of speech is protectedby the federal courts.
It's protected by state courtsenforcing the First Amendment.
It's protected by state courtsenforcing their equivalent texts
in the state constitutions aswell, which can also be more
expansive.
We talked about that.
But this is to say you have alot of bites at getting your

(11:48):
free speech or your right tokeep and bear arms or your
religious liberty protected,even if that wasn't one of the
original parts of theConstitution.

SPEAKER_00 (11:57):
So you're talking about selective incorporation,
right?
Which is why there's been somany Supreme Court cases.
Like the the they didn't say,like, well, 14th Amendment was
passed, so now the entirety ofthe First Amendment applies to
states.
There have been, and we're goingto go through some cases later
on, but that's selectiveincorporation.
Am I using those termscorrectly?

SPEAKER_01 (12:18):
You are using the terms correctly.
And because I was specificallytrying to avoid the arcana of is
this selective incorporation?
Is this total incorporation?
Is this total incorporationplus, where we apply the eight
Bill of Rights, but also theeconomic liberties?
That's the Stephen Fieldposition.
So yeah, the the con law term isselective incorporation using
that fundamental rightsframework of the due process

(12:40):
clause, which again is its ownweird thing because due process
seemingly is about process.
In fact, it says you can't haveyour liberty deprived if there's
due process.
So how that gets sort oftransmographied into there's
these fundamental rights thateven with the process can't get
interfered with is complicated.
But yes, selective incorporationhas been the model.

(13:02):
It is closer to de facto totalincorporation, which is what
Hugo Black had said.
Hugo Black said totalincorporation and nothing else.
Again, some of the more kind oflibertarianist justices in
American history have said totalincorporation plus these other
core fundamental rights ofcontract autonomy, that you
know, minimum wages or maximumhours are potentially could be

(13:24):
unconstitutional.
The court moved away from thatliberty of contract model in the
1930s with, I would say, sort ofbipartisan consensus.
That line of case law was wildlycritiqued by Herbert Hoover,
Calvin Coolidge, William HowardTaft, again, sort of moderate
conservatives or moderateprogressives, depending on how
you want to draw the line.

(13:46):
So, yeah, that was where HugoBlack thought, great, we've
closed the liberty of contract.
We're only going to apply theBill of Rights.
This is wonderful.
And then the court didn't applyall of the Bill of Rights
originally, and then did applyother things that he didn't
think were parts of the Bill ofRights themselves.
But yes, we are de facto totalincorporation of the parts that

(14:07):
anybody's really gonna likebordering soldiers isn't gonna
happen.
I mean, there would be someother provisions, like if they
were to incorporate theguarantee of a jury trial for
$20, Congress would amend that,you know, 10 seconds later.
Yeah.
So it's functionally, I guessfor intellectual integrity,
maybe they should incorporate itand then just force Congress to
do that.
But basically all the importantparts are incorporated from the

(14:29):
Bill of Rights.
Again, in addition, and I keepemphasizing this, but you have
state constitutional guaranteesof pretty much all this stuff
and more as well.

SPEAKER_00 (14:38):
And this is why I love Supreme Court cases because
we really get to dig into thesequestions, but that is not going
to be till later.
Dr.
Beyenberg, thank you for talkingus through the incorporation
piece of the 14th Amendment.