Through the process of incorporating the Bill of Rights down to the States, the Supreme Court has repeatedly used the 14th Amendment as a weapon to grant the federal government nearly complete control over the States. Incorporating the Bill of Rights down to the States was never the intention of 39th Congress, which wrote the 14th Amendment.
The Bill of Rights was never meant to apply to the States. All States have either a Bill of Rights or a Declaration of Rights to protect the rights of those living in that State. The Constitution of the United States created a bottom up government with the people of the States as the ultimate protectors of the rights of those living in the individual States and the nation as a whole. Through the doctrine of incorporation the Supreme Court has appointed themselves the sole and ultimate protectors of rights of everyone living in this nation. The Supreme Court is by far the least democratic body with only nine individuals who are appointed for life. They have proven to be all too fallible.
Most of the justification for the doctrine of incorporation comes from the statements of two members of the 39th congress. The first is John A Bingham. Here is an excerpt from Congressional Globe 1089 that is most often used.
“Gentlemen admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States, and that no person shall be deprived of life, liberty or property without due process of law…”
Bingham had a reputation for being a muddled thinker and it is evident here. The Privileges and Immunities clause is found in Article 4 Section 2 not the Bill of Rights. Protection of life, liberty, and property is found only in one clause of the 5th Amendment. That particular clause was the only clause of the Bill of Rights extended to the States by the 14th Amendment.
The second person often quoted is Jacob M. Howard. Here is an excerpt from a speech by Howard from Congressional Globe 2765:
“Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”
Senator Howard did seem to indirectly call for the Bill of Rights to be extended to the States when he introduced the 14th Amendment but he was the only one.
Incorporating the Bill of Rights down to the States is such a drastic change to the entire structure of the Constitution. It must require not only a clear and substantial body of evidence from the debates when the Amendment was written but also clear language in the final ratified amendment. Both are lacking.
The Supreme Court did not immediately incorporate the Bill of Rights down to the States after the ratification of the 14th Amendment. This happened many decades later. In his opinion for the case Adamson v. California in 1947, Supreme Court Justice Frankfurter had this to say:
“Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court — a period of 70 years — the scope of that Amendment was passed upon by 43 judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States…
…The notion that the Fourteenth Amendment was a covert way of imposing upon the States all the rules which it seemed important to Eighteenth Century statesmen to write into the Federal Amendments, was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution.”
Section 5 granted enforcement of the amendment to Congress through the formal legislative process not the Supreme Court. During the debates it was clear the Supreme Court was denied enforcement power. How could the Supreme Court then use this Amendment to legitimately incorporate the Bill of Rights?
It could not.