I’m quite happy to say that “I support the Constitution,” but as I’ve read about it for years and years, I’ve become increasingly interested in what other people mean when they say the same thing. In particular, I’ve come to believe that the most significant constitutional developments in our nation’s history were the 14th Amendment and the later use of it to incorporate the Bill of Rights to state and local governments—but these seem rarely to be on the mind of a person that “supports the Constitution.”
Think about it: the original purpose of the so-called “Bill of Rights” was to limit the power of the Federal Government—not of the States. However, in the 20th century, item-by-item, parts of the Bill of Rights were made by the federal Supreme Court to apply to the states and local governments on the basis of the 14th Amendment requirement of “equal protection under the laws” in a process known as selective incorporation. In fact, it is similarly because of the 14th Amendment that people can sue state and local governments for civil rights violations under U.S.C. Title 42, § 1983.
The Bill of Rights wouldn’t apply to State and local governments at all if it weren’t for the 14th Amendment!
Take policing for example: we can criticize policing throughout the 20th century, but it seems likely that it would’ve been much worse without the intervention of the Supreme Court incorporating the 4th Amendment to the States. Even a state like Washington—which has had “a stronger version of the 4th Amendment” in its State Constitution (i.e. Article 1, § 7) since its adoption in 1889, has apparently always played catch-up with the Federal Supreme Court. In fact, Washington State didn’t develop its current criteria for distinguishing its own constitutional provisions from analogous federal constitutional provisions until 1986, in Washington State v. Gunwall.
Cornell Law School has a useful webpage with information about the history of incorporation—no, it is not an error that the 2nd Amendment wasn’t incorporated until 2010 in McDonald v. Chicago: the Second Amendment didn’t protect anyone’s right to bear arms from anyone other than the Federal Government until hardly more than a decade ago! The Washington State Constitution, however, has had a stronger, analogous protection in Article 1, § 24 since 1889.
Interestingly, despite the process of incorporation being mostly unknown and relatively recent, it is deeply ingrained in the public mindset—so much so that even when Conservatives talk about supporting the “Constitution” and the “Bill of Rights,” they unwittingly take incorporation for granted. This is even though incorporation is a significant departure from the design of the Founders: the Bill of Rights wouldn’t have been ratified if they had also applied to the States and local governments because they would’ve been seen as encroachments on so-called “States’ Rights.”
For reasons like these, Conservatives should probably think a little more deeply about what they mean when they say that they support the Constitution—especially since it is our agenda to restore Constitutional government. In particular, we aren’t going to undo incorporation, and most people don’t even realize that this is implied in what they say.