The 14th Amendment “Incorporation Cases” Violate the 10th

The 14th Amendment “Incorporation Cases” Violate the 10th and are Unconstitutional

Amendment 14, Section 1, in part:

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . .” (1868)

The 10th Amendment:

“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.”

No provision in the Constitution has undergone more torture than the due process clause of the 14th Amendment. In the name of due process, the court in the late 1800s and early 1900s struck down all sorts of state economic regulation. [1] The rationale for all these decisions was that due process had a “substantive element”—that due process protected economic freedoms, such as “liberty of contract”, from legislation infringing upon those substantive freedoms. [2]

Despite the fact that those rulings have mostly been explicitly or implicitly overruled, [3] the modern court itself has continued to commit the same sins of its forbearers. Using the rubric of due process, the modern-age court has superimposed its own substantive content onto due process, among other things holding that due process prevents states: from permitting voluntary prayer in schools, [4] from prohibiting abortions, [5] from criminalizing distribution of pornography, [6] from using incriminating evidence (usually drugs) seized without warrant or probable cause, [7] from using incriminating confessions obtained without having first advised the defendant of a right to a lawyer and a right to remain silent, [8] from criminalizing flag burning; [9] and restricting states from imposing the death penalty, [10] to name some of the more prominent rulings.

One I suppose could agree, as a matter of policy, with the results of at least some of those cases, one ought beware of accepting them as a matter of law, for the “reasoning” in the cases, as I shall attempt to show here, is wholly unsound and has led to all manner of federal intrusion into matters reserved to states and subject only to state constitutional laws.

Neither the earlier, nor the modern approach, withstand scrutiny. As Professor Raoul Berger has noted, “on the eve of the [Constitutional] Convention [of 1787], Alexander Hamilton [described due process as having] ‘a precise technical import, and [is] only applicable to the process and proceedings of courts of justice; . . . never . . . to an act of the legislature.’” [11]

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The Government Follows a 3000-PAGE Constitution


Article IV, Section 4

Guarantee Clause

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Article IV, Section 4


The Court and Constitutional Interpretation - Supreme Court

Excerpt ...

The Court is the highest tribunal in the Nation for all cases and controversies ... as well as in maintaining a "living Constitution" whose broad provisions are ...

"The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations."

Supreme court


Living Constitutionalism on the Supreme Court’s Website

by Mike Rappaport

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.  Read more


Constitution 101: Living and Breathing is the Same as Dead



In 1775, The Revolutionary War between the Colonies and Britain began. In 1788, the Constitution became the undisputed law of the land after New Hampshire became the ninth and last state required to approve it.
In 1791, the first ten amendments, known as the Bill of Rights, were added to the Constitution in order to define and protect the rights of the American people.
The Constitution was not and is not a blueprint, guideline, or set of suggestions. This one document provides the ultimate law in the U.S. and more importantly mandates limits on the power of the federal government.

Since shortly after its ratification, judges have had to interpret this over 200-year-old document in countless cases. Laws are “struck down” if a particular judge believes the law is unconstitutional. The judicial belief in how to interpret the Constitution has been the center of controversy since the beginning. There are two primary views of how judges and the public interpret the Constitution. While the rest of the column is not riveting, it is vital information to understand as a citizen.
ORIGINALISM – As pointed out below by the Heritage Foundation, those who make, interpret, and enforce the law ought to be guided by the meaning of the Constitution as it was originally written. The vast majority of Originalists begin with the text of the Constitution, the words of a particular sentence or paragraph. Textualism considers the words of the document to be authoritive while keeping in mind the traditional American principles behind the text. (Think of the text of the 1st Amendment and the reasons why our freedom loving Founders wrote it.)

Admittedly, understanding the Founders’ original intent is not always a simple task. It can take tedious work and sometimes produces vigorous disagreement. However, Originalism is logically, as opposed to emotionally, the best way to interpret the Constitution for five fundamental reasons.
1. It binds and limits any particular generation from ruling according to the passion of the times.
2. It complies with the constitutional purpose of limiting government. It understands the several parts of the massive federal government have no legitimate existence outside of the Constitution.

3. It supports the separation of power between the three branches of government by limiting the power of the judiciary. It prevents the Supreme Court, and other courts, from “creating law” which is a reserved power for the legislative branch
4. It reflects the Founders’ understanding of the self-motivated impulses of human nature. The Constitution inherently works to frustrate those impulses while leaving open channels for changing (amending) the document as needed.

5. Most importantly, Originalism is not result-oriented. If a law is unconstitutional, then so be it. The Originalist is like Chief Justice Roberts’ description of the role of a judge; judges should be like umpires calling “balls and strikes.” “Umpires don’t make the rules, they apply them.” The Originalist believes that it does not matter which party wins or loses.

LIVING DOCUMENT - Originalism has seen a steep decline over the last century with the rise of the theory of the Constitution as a "living document" or “living, breathing document” with no fixed meaning, subject to changing interpretations according to the spirit of the times.
This popular theory turns the Constitution into an unwritten charter to be developed by contemporary values. The problem here is that for some people, it can be tempting to “create rights”, “take away rights”, focus on the desired end result, and inject personal views into a case.

The primary argument supporting a “living document” theory is that we live in changing times. How could the Framers have envisioned computers in the late 1770’s? Well, humans are creative and forward thinking. Jules Verne envisioned technology in the 1800’s that still does not exist today. While the requirements for obtaining a search warrant for a smartphone may not have specifically been contemplated by the Founders, technological advances certainly were.
Additionally, the Constitution already provides for a system to live, breath, and change. The document has been amended 26 times based on mistakes and the needs and desires of our ever-changing American society. The power to amend the Constitution, though necessarily difficult, is the primary reason the document has been able to survive the turbulent changes throughout the past 200 years.

The support and/or application of the “living document” theory creates inconsistent law, regionally based law, is arbitrary, and further politicizes the judiciary.
While Originalism does not remove controversy or disagreement, it does establish the Rule of Law. Without it, our country will eventually become entirely governed by the Rule of Men.


Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. John Adams
Read more at:

We the People: A Constitutional Republic, Not a Democracy


"Federal Constitution—which banished direct democracy from our federal mechanisms of governance"

Preserving Republican Governance: An Essential Government Functions Exception to Direct Democratic Measures

James Madison, writing in Federalist No. 10, observed the difference between a republic and a pure democracy. (1) Whereas a republic consists of a scheme of representative governance utilizing a deliberative process to legislate, a pure democracy gives legislative power directly to the public. (2) The Constitution embraces representative governance at the federal level (3) and also guarantees it to the states. (4) Yet with the increased prevalence of direct democratic measures, such as ballot initiatives and referendums, the structural lines between a republican government and a direct democratic government are being blurred, producing both structural and pragmatic consequences for state governments.  Read more


The Birth of Direct Democracy: What Progressivism Did to the States


Government by Judiciary

Raoul Berger

Publication Year: 2012

The Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny.

— Raoul Berger

It is the thesis of this monumentally argued book that the United States Supreme Court—largely through abuses of the Fourteenth Amendment to the Constitution—has embarked on "a continuing revision of the Constitution, under the guise of interpretation." Consequently, the Court has subverted America's democratic institutions and wreaked havoc upon Americans' social and political lives.

One of the first constitutional scholars to question the rise of judicial activism in modern times . . . show more

Published by: Liberty Fund


Berger & the 14th Amendement


Raoul Berger Law Journal Library


Article V Project to Restore Liberty

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Exactly correct - the courts have used the language to void the 9th and 10th amendments and even State Constitutions. The 14th must go or we will live under federal tyranny and oppression forever. JMHO

 typing in to follow....


Good work on find the information on the 14th - all can see how the Courts used the old trick of changing word meaning and using clauses to expand powers not stated. 

If one reads the history of Chief Justice Marshall and two seminal cases where he created powers not give in Article III. Marbury V Madison and McCulloch V Maryland. He used all the tricks - gave the court the Judicial powers and the Judicial review powers. Again neither are in the Article III limits on the courts and are usurped powers.

Judges Usurping the Constitution

John Marshall usurped the Constitutional limits of Article III first in Marbury V Madison [Judicial review] and next in McCulloch V Maryland [Implied powers and the Necessary and Proper clause]. His actions in effect created a super powerful third branch which could rule over the Executive and the Congress.

The Founders except for Hamilton did not trust a strong central government nor did they trust the courts. They divided the powers - the executive had the sword, the congress had the purse and the courts had power over neither. Magistrates had mistreated and abused the citizens of the Colonies so they did not like courts.

The Court behaved itself until the FDR threatened to pack the court with 15 new Justices so one Justice changed his vote and forever has been known as the switch in time that saved nine. From that point on the SCOTUS has taken more and more power using the 14th amendment to kill the 9th and 10th amendment, while ignoring the Article 4 Section 4 limits and promises.

No, since they started legislating from the bench they have changed our government from a Republic to a Nation ruled by nine Black Robes with no check on their powers. Look at the complete destruction of the 4th, 5th ["TAKING CLAUSE"], the 9th and the 10th amendment have been set aside. Read Kelso V New London and see that the government can "{TAKE" your home and then sell or give to another person that will or can produce money tax revenue for the Government?

If we no longer have the right to property - what have we become?

Thank you for reading
Mangus Colorado

One of the first orders of business in the communist manifesto is removal of all property from the people. But here's the point most common folks miss unless someone points it out to them; Jesus said render unto Caesar what is Caesars' because if you are stupid enough to remain under Caesars' skirt you deserve to have to pay the tax. The only way the government can "take" your property is with YOUR CONSENT. You consent to being a citizen / serf / debt slave / chattel in service to the UNITED STATES corporation and not America which is foreign to the U.S. and the respective States. You consent through the fraudulent social security contract. Make a public revocation of your name on all adverse contracts and then let them try to take something!!! A Man / Woman has the highest standing under God than anyone standing under the UNITED STATES skirt. The common law court of man / woman is the Superior Court and nobody can overturn a decision made in it. But you have no court as a Citizen and no rights. You are not a party to the Constitution because you are the slave to what it governs, the government. America is our Country, the Republic for which our Flag stands, not WalMart, or Pepsi, or any other corporation like the UNITED STATES. We allow them to fly our flag and represent us, we don't give them the whole farm.

The IRS - pfffft - show me the man named IRS with damage or injury making a claim on the stand before a jury or there can be no debt / guilt (same word in German). epic quash.... next!

The supreme court said in the Barron case that the bill of rights only applied to the Federal Government. Not the States thus the SC invented partial incorporation using the 14th no State Shall . . 

Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977]

Author: Raoul Berger
Foreword: Forrest McDonald

About this Title:

It is the thesis of this monumentally argued book that the United States Supreme Court - largely through abuses of the Fourteenth Amendment to the Constitution?has embarked on “a continuing revision of the Constitution, under the guise of interpretation.” Consequently, the Court has subverted America’s democratic institutions and wreaked havoc upon Americans’ social and political lives. One of the first constitutional scholars to question the rise of judicial activism in modern times, Raoul Berger points out that “the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power.” This new second edition includes the original text of 1977 and extensive supplementary discourses in which the author assesses and rebuts the responses of his critics.
Copyright information:

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.


Who Killed the 10th Amendment?
05/24/2018  Ilana Mercer

Not a day goes by when the liberal media don’t telegraph to the world that a “Trumpocracy” is destroying American democracy. Conspicuous by its absence is a pesky fact: Ours was never a country conceived as a democracy.

To arrive at a democracy, we Americans destroyed a republic.

One of the ways in which the republic was destroyed was through the slow sundering of the 10th Amendment to the Constitution. The 10th was meant to guarantee constitutional devolution of power.

“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.”

The de facto demise of the 10th has resulted in "constitutional" consolidation.

Fair enough, but is that enough? A perceptive reader was having none of it.

In response to “Whodunit? Who ‘Meddled’ With Our American Democracy” (Part 1), the reader upbraided this writer:

“Anyone who quotes the 10th Amendment, but not the 14th Amendment that supplanted it cannot be taken seriously.”

In other words, to advance the erosion of the 10th in explaining who did our republic in, without mentioning the 14th: this was an omission on the writer’s part.

The reader is admirably correct about Incorporation-Doctrine centralization.

Not even conservative constitutional originalists are willing to concede that the 14th Amendment and the attendant Incorporation Doctrine have obliterated the Constitution's federal scheme, as expressed in the once-impregnable 10th Amendment.

What does this mean?

You know the drill but are always surprised anew by it. Voters pass a law under which a plurality wishes to live in a locality. Along comes a U.S. district judge and voids the law, citing a violation of the 14th's Equal Protection Clause.

For example: Voters elect to prohibit local government from sanctioning gay marriage. A U.S. district judge voids voter-approved law for violating the 14th's Equal Protection Clause.

These periodical contretemps around gay marriage, or the legal duty of private property owners to cater these events, are perfectly proper judicial activism. It flows from the 14th Amendment.

If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be.

Put differently, matters previously subject to state jurisdiction have been pulled into the orbit of a judiciary. Yet not even conservative constitutional originalists are willing to cop to this constitutional fait accompli.

The gist of it: Jeffersonian constitutional thought is no longer in the Constitution; its revival unlikely.

A Court System Centralized 

For another example of the endemic usurpation of The People, rendering the original Constitutional scheme obsolete, take the work of the generic jury. With his description of the relationship between jury and people, American scholar of liberty Lysander Spooner conjures evocative imagery.

A jury is akin to the "body of the people." Trial by jury is the closest thing to a trial by the whole country. Yet courts in the nation’s centralized court system, the Supreme Court included, are in the business of harmonizing law across the nation, rather than allowing communities to live under laws they author, as guaranteed by the 10th Amendment to the Constitution.

States’ Rights All But Obliterated 

Like juries, states had been entrusted with the power to beat back the federal government and void unconstitutional federal laws.

States' rights are "an essential Americanism,” wrote Old Rightist Frank Chodorov. The Founding Fathers as well as the opponents of the Constitution, the Anti-Federalists, agreed on the principle of divided authority as a safeguard to the rights of the individual.

Duly, Thomas Jefferson and James Madison perfected a certain doctrine in the Virginia and Kentucky Resolutions of 1798. "The Virginia Resolutions,” explains historian Thomas E. Woods, Jr., “spoke of the states' rights to 'interpose' between the federal government and the people of the states; the Kentucky Resolutions used the term nullification—the states, they said, could nullify federal laws that they believed to be unconstitutional."

“Jefferson," emphasized Woods, "considered states' rights a much more important and effective safeguard of people's liberties than the 'checks and balances' among the three branches of the federal government."

And for good reason. While judicial review was intended to curb Congress and restrain the Executive, in reality, the judicial, legislative and executive unholy federal trinity has simply colluded, over time, in an alliance that has helped abolish the 10th Amendment.  Continue reading at



Reverse incorporation 

The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.


The doctrine of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.[1]

Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (288 (1989)) with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt."

Incorporation of the Third Amendment right against quartering soldiers in private homes except in wartime as provided by law was ruled on in Engblom v. Carey.

Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States.[2] The U.S. Supreme Court subsequently declined to interpret it that way. Until the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham's congressional testimony.[3] Although the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights. The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[4]

Continue reading at

Who killed the 10th amendment? Maybe there was a gradual killing of it but effectively the death blow was the 14th amendment. Getting the 14th amendment was the real reason for the civil war, per Lincoln's letter to Horace Greeley; . So does that make Lincoln alone the murderer of our intended constitutional design?? No, it doesn't - because the 14th amendment was ratified 3 years after his death by the states - but the southern states were under the threat of no representation in congress if they didn't sign on. That alone says a lot about how important constitutional principles were to congress following the civil war. Can't get much more anti-constitutional intent than that. To Lincoln AND the then current congress the civil war was ALL ABOUT destroying the original intent and federal government design of the constitution and centralizing the power to the federal government. Now, what was congress' makeup during all this??  Here - you'll see that R party dominated congress in the 37th and 39th congresses, with the 38th congress' numbers not being so dominant due to the people electing opposition to the oncoming 14th amendment.

It was R party's most important mission of the era to get the 14th amendment ratified, centralizing power to fed/gov and effectively killing the 10th amendment.

Maybe we should look to John Marshall and his Supreme court cases of Marbury v. Madison (1803) and then McCulloch v. Maryland (1819). These created an usurped court power not given in the limits of Article III.

This case might be the most important of all but few talk of it - Fletcher v. Peck (1810). The first time a court ruled a State law unconstitutional?

It is all here and the reasons given are not in defending the Limits on the Federal government and ignores the limits of the tenth amendment on courts and the Federal government.

Here is more evidence of the courts overstepping the Constitutional limits of Article III.

"It was R party's most important mission of the era to get the 14th amendment ratified, centralizing power to fed/gov and effectively killing the 10th amendment."

The completed package was passing the 14th, 16th and 17th amendment.

Summed it up nicely Larry. Thank you.

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