Why is incorporation an important part of America’s constitutional story?

0:04Incorporation sounds super boring or super technical, but it is technical, but it's super important because the Constitution, the Bill of rights as written was really directed exclusively to the federal government. It makes sense because you had state governments or the independent former colonies that were operating as independent states before the Constitution. What mostly people were thinking about at the time of the Constitution and particularly at the time that the Bill of Rights was promulgated which is right after the Constitution is ratified is we need some additional protection for individual rights against this new federal government that we create. We're not that worried about what the states do to their individual citizens, because that's not a new problem. There were state constitutions that had their own state bill of rights at that time, so it's not like individuals were at the mercy of their state governments,

1:09but it just wasn't the concern of the framers when they were crafting the Bill of Rights. It was all about protecting the people against this new federal government that because it was new it was scary. They set out to promulgate a variety of provisions that would protect some of the rights that they thought were most important against the federal government. If things had never changed, if there were no incorporation I think the Supreme Court would still be a big deal, but it would be not nearly as big a deal as it is because it would be addressing cases that were uniquely federal in character. It wouldn't effectively be setting national laws on things like abortion and some of these other controversial topics because they would be deciding what the federal government could or couldn't do, but they wouldn't be deciding what every state and local government could or couldn't do. But obviously constitutional history doesn't

2:09stop with the first 10 amendments to the Constitution. We have 27 at the current count and if I had to nominate the most important amendments to the Constitution after the Bill of Rights, I would say it's the 13th, 14th and 15th Amendments, the so-called Reconstruction Amendments. Again, I think it's as important understanding the constitution and constitutional history to see what people are reacting to.

2:37When we talked about the religion clauses we think about back in England, they have an established church and they have religious in toleration. The lesson of the Civil War in technicolor is wow, states can also deny people individual rights, the most fundamental of individual rights. We're no longer only worried about this new federal government, we're worried about a replication of the state denial of individual liberty that led to the Civil War.

3:08The 14th Amendment by its terms provides protection for the citizens against state and local governments as well, but then that prompts this question. The 14th Amendment gives me a right to due process. It gives me a right to equal protection. It gives me protections of my privileges, immunities of citizenship. It gives me all those stuff, but when the state government takes away my free speech or my religion, is that a due process violation? Is that a privileges or immunities issue and how is to best think about those issues? The Supreme Court struggled with this issue for a couple of decades and then they came up with essentially a compromise which is the most important provisions of the Bill of Rights. By now almost all of the Bill of Rights with just one or two exceptions are incorporated through the 14th Amendment against state and local governments.