Federalism as a means of Interpreting the Fourteenth Amendment: Abandoning the Incorporation Doctrine

The Founders’ version of federalism or dual sovereignty contradicted the doctrine of Imperium in Imperio; an expression signifying that sovereignty is indivisible. Government power must be concentrated; hence, jurasmmiimperii. Although these maxims characterized the political truth of the time, the Founders foresaw a different system, concentrating power sufficient to be effective, while at the same time; distributing power among a system of sovereign states. This new framework provided double security for the most cherished possession of man -LIBERTY.

At the time of the founding, the states were considered equal authorities for protecting individual liberties and rights. The national government was limited to the specific objects of the Constitution, while the state government were free to exercise all other objects entrusted to them by the people. The system of divided sovereignty proves, first, that the Founders incorporated the republican principles of politics into the Constitution, and, second, that they feared a concentration of political power. James Madison’s explanatory analysis of the system, in The Federalist No.39, describes the “real character of the government.” Arguing that self-government is best secured by a Republican formula.

In Madison’s perspective, a “unanimous assent of the several States” adopted the Constitution. State sovereignty was secured when the Supreme Court refused to apply the Bill of Rights to the states in Barron v. Mayor of Baltimore. Although Barron rejected federal oversight of the states, the Fourteenth Amendment and the doctrine of incorporation – the means by which the Bill of Rights is applied to states – changed the role of the states in securing individual liberty.

The adoption of the Fourteenth Amendment brought forth a new era of American excellence. This amendment ultimately led to a reevaluation of whether the federal government or state governments are responsible for protecting liberty. Federalism is just as important as any right enshrined in the Constitution. The Supreme Court has a duty to consider the integrity of the federalism system when applying the Bill of Rights against the states: this means greater deference to states in matters of ordering liberty.

Nelson Lund, Federalism and Civil Liberties, 45 U.Kan.L.Rev. 1045 (1997)Even though the Fourteenth Amendment altered the balance of power between the states and the federal government, the states maintained their sovereign capacities, especially with regard to liberties guaranteed by their constitutions. However, following the Civil War, allowing the states to order liberty, absent some restraint by the federal government, would undermine one of, the basic purposes of the Fourteenth Amendment – to bar discrimination.

In The Federalist No. 10, Madison articulates that a large republic diminishes the ability of a majority faction from threatening the liberty of others. Oppressive majority factions are more likely to form within a state, than within a republic. With this in mind, the purpose of the Fourteenth Amendment embodies the principles of, Federalist 10-that the states will not adequately defend minority interests if they remain autonomous. The primary purpose of the Fourteenth Amendment protects minorities from the tyranny of the majority by barring discrimination, especially racial discrimination. Section 5 was designed to prohibit discrimination. Section 5 gives Congress the power to enforce the provisions of the Fourteenth Amendment by “appropriate legislation.” Yet, beyond protecting minority interests, the Fourteenth Amendment does not embody any substantive rights. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan. L. Rev 5 (1949).

The Fourteenth Amendment did not rewrite the standard of judicial review for the Supreme Court, nor did it give this body the authority to act as a supra-legislature. This amendment did not federalize a litany of new rights; either in the Due Process Clause or unenumerated in the Constitution. Substantive due process is, therefore, an “oxymoron.” Land at 1060. The Due Process Clause ensures a fair trial, duly enacted laws and notice- nothing more. During the twentieth century, a “majority faction” of the Supreme Court decided to use the Fourteenth as a means of stopping the States of their power to administer order and liberty. This is an incorrect reading of the Constitution. As a consequence, the Supreme Court should essentially remove itself from the role of protecting civil liberties against state governments. In essence, the Court should “abandon the

Doctrine, as well as the doctrine of substantive due process.”Landat 1045.

The Supreme Court’s method of incorporating the Bill of Rights reveals a rise in federal power at the expense of the states. Incorporating the Bill of Rights means, in essence, that a court of law must weigh the liberty interest at stake against the rights of states in our federal structure. By incorporating new-found constitutional rights, the Court necessarily enhances or diminishes a liberty interest at the expense of the states’ abilities to decide these complex, and often political questions for themselves. This reflects a problem for the original concept of federalism. If the states are required to make their laws completely consistent with the federal constitution, then competition among the states will diminish. State legal structures, which ought to reflect local attitudes, not national will, are a consequence of applying the Bill of Rights against the states. In essence, if state courts interpret their own constitutions to mirror the federal one, then at what point does the Fourteenth Amendment destroy the system of divided sovereignty?

“The Bill of Rights was intended to weaken the federal government; apply the Bill of Rights to the states through the due process clause and you weaken the state tremendously by handing over control of large areas of public policy to federal judges… It is hard to believe that this was intended by all the state legislators whose views were necessary to ratify the [Fourteenth].” Richard A. Posner, The Federal Courts: Crisis and Reform 194-95 Harvard University Press (1985). The Incorporation Doctrine radically altered the relationship between the nation and the states. Yet, “there is very little basis for the implausible proposition that the states that ratified the Fourteenth Amendment understood that it would ‘incorporate’ the Bill of Rights, making its restrictions applicable to the states, thereby subjecting the states to both expanded legislative power and expanded federal court supervision.” Lino A. Graglia, “Interpreting” the Constitution: Posner on Bork, 44 Stan. L. Rev. 1019, 1033-34 (1992).

The- problem with the incorporation doctrine is that personal predilection becomes the measuring devices for which Iiberties and rights are qualified for enforcement against the states. , Raoul Berger notes that the doctrine of incorporation naturally enlarges the judicial sphere of power. “[T]he Bill of rights should be so construed as to minimize encroachment on state autonomy…[the doctrine of states rights] should similarly guide interpretation of the Fourteenth ,Amendment.” Raoul Berger, Incorporation of the Bill of Rights:AkhilAmar’s Wishing Well, 62 U. Cin. L. Rev. 1, 6 (1993) (alteration in original).

Interpreting the Fourteenth Amendment absent an understanding of federalism undermines the concept of dual sovereignty. Gradually, federalism issues are receiving greater attention from the Supreme Court. The current Supreme Court has revived federalism by limiting the scope of Congress’ power to enforce the Fourteenth Amendment. The Court exercises less deference to congressional authority in defining the substance of the Fourteenth Amendment. Yet, although the Court is placing certain constraints on the Fourteenth Amendment as a source of rights and liberties, the amendment remains a powerful force in the system between the states and the federal government. See City of Boerne v. Flores, 521 U.S. 507 (1997).