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\u2014but these seem rarely to be on the mind of a person that “supports the Constitution.”<\/p>\n
Think about it: the original purpose of the so-called “Bill of Rights” was to limit the power of the Federal Government\u2014not of the States. However, in the 20th century, item-by-item, parts of the Bill of Rights were made by\u00a0the federal Supreme Court\u00a0to 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<\/em>. In fact, it is similarly because of the 14th Amendment that people can\u00a0sue state and local governments for civil rights violations under U.S.C. Title 42, \u00a7 1983.<\/p>\n The Bill of Rights wouldn’t apply to State and local governments at all if it weren’t for the 14th Amendment!<\/p>\n 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\u2014which has had “a stronger version of the 4th Amendment” in its State Constitution (i.e. Article 1, \u00a7 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<\/em>.<\/p>\n