Over the years since its supposed ratification (a subject for another day), the Fourteenth Amendment to the Constitution has come to mean something entirely different from its original purpose. It is now the club with which the federal government, the servant of the several states, beats its masters into submission.
A series of Supreme Court decisions, starting in the 1920s, ushered in the “incorporation doctrine,” whereby selected provisions of the federal Bill of Rights were forced upon the states through the Fourteenth Amendment’s due process clause, which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” It is this club to which the federal courts have turned to subjugate the state governments, over time turning them into little more than federal vassals. There is, of course, no question that incorporation is an unconstitutional intrusion into the sovereign rights of the states, as explained by Justice John Harlan in Pointer v. Texas (380 US 400):
The philosophy of “incorporation,” on the other hand, subordinates all such state differences to the particular requirements of the Federal Bill of Rights … and increasingly subjects state legal processes to enveloping federal judicial authority…
It is too often forgotten in these times that the American federal system is itself constitutionally ordained, that it embodies values profoundly making for lasting liberties in this country, and that its legitimate requirements demand continuing solid recognition in all phases of the work of this Court. The “incorporation” doctrines, whether full blown or selective, are both historically and constitutionally unsound and incompatible with the maintenance of our federal system on even course.
Setting aside Justice Harlan’s comments, if we are to accept that incorporation is permissible, can the First Amendment be incorporated into the Fourteenth? In a word, no.
The First Amendment is unique, set apart from all of the other amendments in the Bill of Rights, because it specifically proscribes Congressional legislation; all others apply to government generally and, in accepting incorporation, can be construed to apply to both federal and state government. Incorporating the First Amendment has no effect because it is still a prohibition on Congress, not the state legislatures. Courts cannot simply declare that the prohibitions in the First Amendment apply to state legislatures because the courts asserted it, at least not without changing the text of the First, something Fourteen did not do–yet they have, and they do still.
If the federal courts can decide that something as specifically targeted, and as precisely worded, as the First Amendment means something other than what it clearly says, are there any limits to government’s potential to misinterpret and misapply the rest of the Constitution? Perhaps the states should now reinstate nullification, starting with nullifying ignorant court decisions …