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  • Writer's picturePeter Serefine

Flaws of the Incorporation Doctrine: A Constitutional Originalist Perspective

In the complex realm of constitutional law, the incorporation doctrine stands out as a contentious element, purportedly established to safeguard individual rights against state overreach. Yet, from the perspective of constitutional originalism, a closer examination challenges the very foundation of this doctrine. At its core, the scrutiny revolves around the idea that the Bill of Rights, a crucial testament to individual liberties, was not intended as a universal mandate but as a precise check on federal power.



I. Historical Intentions:

Alexander Hamilton, in Federalist No. 84, expressed concern that a bill of rights might unintentionally limit individual freedoms by implying that only listed rights are protected. He suggested that the Constitution's design, with enumerated powers for the federal government, already served as a robust safeguard against potential abuses.

"I apprehend that an important reason that induced the framers...was the public apprehension...that Congress might otherwise be tempted to exercise powers over individual rights." - Alexander Hamilton, Federalist No. 84

James Madison, a key architect of the Constitution, envisioned a federal government with "few and defined" powers, emphasizing that the Bill of Rights aimed to limit federal, not state, authority.

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." - James Madison, Federalist No. 45

This historical perspective challenges the incorporation doctrine, suggesting it may deviate from the original intentions of the Founding Fathers.

II. Limited Federal Powers:

Madison's Federalist No. 45 meticulously outlines the intended scope of federal authority. He emphasizes that the powers delegated to the federal government are "few and defined," explicitly intending to allay fears of federal encroachment on state prerogatives. Originalists draw from Madison's insights to bolster their argument that the Bill of Rights, including the limitations on federal power, was a covenant between the people and the federal government, designed to circumscribe its authority.

By referencing Madison's words, originalists contend that the incorporation doctrine, in expanding federal jurisdiction, deviates from the framers' vision. The delicate balance between federal and state powers, carefully crafted to prevent undue concentration of authority, is jeopardized. Madison's meticulous calibration, as articulated in Federalist No. 45, stands as a testament to the need for a limited federal government, and the incorporation doctrine's encroachment beyond these defined powers is viewed as a departure from this original intent.



III. States as Crucibles of Democracy:

To comprehend the ramifications of the incorporation doctrine, one must delve into the principles outlined in the Tenth Amendment and adopt the originalist viewpoint regarding states as crucibles of democracy. Often overshadowed, the Tenth Amendment echoes federalism's core principle by emphasizing the reserved powers of states. Originalists argue that the incorporation doctrine undermines this fundamental concept, impeding states in their traditional role as crucibles of democracy. The ability to customize laws to local needs, a pivotal facet of state autonomy, is jeopardized.

"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." – Tenth Amendment

Originalists assert that the Tenth Amendment acts as a constitutional safeguard, ensuring that powers not delegated to the federal government remain reserved for the states or the people. The framers' intent was to grant states autonomy in experimenting with governance, allowing them to adapt laws to the unique needs of their constituents. This dynamism, they argue, is integral to the vibrancy and diversity of our republican system.

In Federalist Paper No. 46, James Madison discusses the crucial role of states as a check on federal power. He contends that states, as independent entities, can resist overreaching federal authority, providing a crucial check and balance.

"The separate governments possessed by the individual states are supposed to be the strongest bulwarks against any designs the federal government may entertain, not merely to invade the rights of the citizen, but even to make itself independent of him." - Federalist No. 46

However, the incorporation doctrine, with its broad application of the Bill of Rights to the states, disrupts this delicate balance. States find themselves confined by a one-size-fits-all approach, limiting their ability to experiment with policies aligning with the preferences of their citizens. The originalist critique underscores that the framers envisioned a system where states, as crucibles of democracy, could innovate and respond to the diverse needs of their populations.

Consider the words of James Madison in Federalist No. 46, where he emphasizes the importance of states as a check on federal power. Madison argues that states, as independent entities, can resist overreaching federal authority, providing a crucial check and balance. Originalists contend that the incorporation doctrine undermines this check by eroding state autonomy, hindering their vital role as contributors to the democratic experimentation at the heart of federalism.

Navigating the complexities of the incorporation doctrine makes it evident that the originalist perspective highlights the value of preserving states as crucibles of democracy. A recalibration becomes imperative to restore the delicate equilibrium between federal and state powers, ensuring the constitutional design crafted by the framers is upheld.

IV. Diminishing State Autonomy:

Examining the ramifications of the incorporation doctrine leads us to a critical evaluation of concerns surrounding the Equal Protection Clause of the Fourteenth Amendment and its potential impact on state sovereignty—a cornerstone of our constitutional structure. Although the Fourteenth Amendment, conceived in the aftermath of the Civil War, aimed to address issues of equal protection and due process, originalists argue that its extension to incorporate the Bill of Rights poses a significant risk to state autonomy.

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." - Fourteenth Amendment

The framers, keenly aware of the need to reconcile the nation after the Civil War, crafted the Fourteenth Amendment with specific intentions. It sought to address the civil rights of newly freed slaves and ensure equal protection under the law. However, the originalist critique argues that the broad application of this amendment through the incorporation doctrine goes beyond its intended scope.

Originalists frequently cite the Equal Protection Clause, emphasizing its focus on protecting individuals from state discrimination. The framers did not explicitly intend for the Fourteenth Amendment to serve as a mechanism for the wholesale incorporation of the Bill of Rights onto the states. The selective incorporation approach, they contend, distorts the historical context and intent of the amendment.

Consider the sentiments expressed by John Bingham, one of the principal authors of the Fourteenth Amendment, who asserted that the amendment's purpose was to secure civil rights against state infringement. Originalists argue that the amendment was not designed to impose a uniform interpretation of the Bill of Rights on diverse states but to address specific post-Civil War concerns.

"The amendment does not profess to confer any new right or privilege upon the citizen; it only seeks to protect those rights and privileges which he already possesses, and to enforce the faithful observance of those duties which he already owes to the Government." – John Bingham, speech to Congress, June 8, 1866

The erosion of state sovereignty through the incorporation doctrine raises profound questions about the delicate balance between federal and state powers. As states lose their autonomy to interpret and apply laws according to local preferences, a crucial aspect of the constitutional framework falters. Originalists argue that this erosion threatens the essence of federalism envisioned by the framers, where states were intended to function as independent entities contributing to a diverse and dynamic democratic system. A recalibration, aligned with originalist principles, becomes imperative to uphold the integrity of state sovereignty within the constitutional framework.

V. Restoring Constitutional Balance:

Amidst the flaws revealed by an originalist analysis of the incorporation doctrine, a compelling call emerges for a recalibration to restore the delicate constitutional balance envisaged by the framers. The fundamental principles of limited federal powers, states as laboratories of democracy, and the preservation of state sovereignty underscore the need for a return to originalist principles.

Advocates of constitutional originalism assert that a strict adherence to the enumerated powers of the federal government, as articulated by James Madison in Federalist No. 45, is paramount. Madison's vision of a federal government with "few and defined" powers serves as a guidepost for maintaining the intended balance between federal and state authority. A recalibration necessitates a renewed commitment to these constitutional boundaries, ensuring that the federal government respects the limits prescribed by the framers.

The role of states as laboratories of democracy, envisioned by the framers and fortified by the Tenth Amendment, must be revitalized. States should regain the autonomy to experiment with policies that reflect the diverse preferences of their citizens. This decentralization of power aligns with the originalist understanding that a vibrant democratic system thrives when states can tailor laws to local needs, fostering innovation.


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