by Laurence Vance

Did the Congress that passed the Fourteenth Amendment (June 13, 1866) or the states that ratified it (July 9, 1868) intend that the Amendment incorporate, in whole or in part, the Bill of Rights? It is a telling indictment of the incorporation doctrine that nowhere in the Fourteenth Amendment does it say anything about incorporating any part of the Bill of Rights. The wisdom exercised by Chief Justice Marshall in Barron v. The Mayor and City Council of Baltimore (1833) should be followed here. In writing about the applicability of the Bill of Rights to the states, Marshall clearly explains why such was not the case:

Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

It is inconceivable that if such a thing took place that such a significant doctrine as incorporation would be so veiled that it would take years before some Supreme Court judge discovered that there was such a thing.

The Blaine Amendment

We know from the opening line of the First Amendment (“Congress shall make no law”) that the Amendment applied only to the federal government. It is a fact of history that James Madison’s proposal in 1789 to extend to the states the freedom of speech and of the press was rejected by the Congress that gave us the Bill of Rights. When the Constitution refers to the states it clearly says so. For example, it says in Article I, sec. 9 of the Constitution that “no Bill of Attainder or ex post facto Law shall be passed.” That this only applies to the federal government is evident because in the next section it prohibits states from passing “any Bill of Attainder” or “ex post facto law.”

This view of the Constitution prevailed even after the addition of the Fourteenth Amendment to the Constitution. In 1875, which was several years after the adoption of the Fourteenth Amendment, an amendment to the Constitution was proposed in the House of Representatives by James G. Blaine (1830—1893), the speaker of the House from 1869 to 1875. Known as the Blaine Amendment, it reads:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denomina