Incorporation of the Bill of Rights

free essayThe question of whether the Bill of Rights in the United States of America should apply to both the states and the federal government has been a center for discussions since the beginning of the drafting process. The Federalists, for example, argued that there was no need for the Bill of Rights to apply only to the federal government because it bore the overall responsibility for property. Therefore, only the national government had the right to protection by the Bill of Rights and the limitation of the same Bill. The Fourteenth Amendment, however, brought changes.

Why the Bill of Rights Applied Only to the Federal Government

The Supreme Court interpreted the reasoning as to why the Bill of Rights was to apply to the government in the case of Barron v. Baltimore. The judge argued that the foundation upon which the Constitution applies to the federal government alone and not to the state governments is that all the property belongs to the federal government. John Marshall, one of the judges of the Supreme Court of the United States of America, ruled that all the ten amendments, which are the instruments enshrining the Bill of Rights, do not contain any powers to the state governments over the Bill of Rights. He mentioned that specifically the Fifth Amendment provided that the power to take the private property from people for the public use was only bestowed to the federal government. The power to give a just compensation for the same property also lied only with the federal government. In this connection, the states were not allowed to give their members any privilege that never existed in any other state and that they were to corporate with other states. Lastly, there was a feeling that the Constitution and federal laws were just above the reach of the states.

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The Incorporation of the Bill of Rights in the USA cannot be understood without having a distinction between the civil rights and the civil liberties. The civil liberties refer to the fundamental rights and freedoms guaranteed to every citizen of the United States of America that cannot be limited unless under very limited circumstances, such as the right to life, freedom from torture, and the right to freedom of speech. On the other hand, the civil rights, unlike the civil liberties, seem more of the privileges granted to ensure equal treatment among all the people.

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The incorporation, therefore, refers to the process of enforcing the Bill of Rights against the states as opposed to only the federal government. It is not an instant process but one which has evolved gradually through the interpretation of the courts. The starting point of the incorporation was the passage of the Fourteenth Amendment, which introduced the due process and the equal treatment clause. The courts have, therefore, interpreted this provision to mean that the Bill of Rights is similarly applicable to the states because they have a duty to preserve the equality of the people. One of the cases includes the Gibbons v. Ogden case in which matters to do with intrastate commerce were left to the states but in the regulation of the federal government. From then onwards, the programs such as education became devolved to the states, signifying that the Bill of Rights was enforceable against the state governments.

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In conclusion, the Bill of Rights applied only to the federal government because it was deemed to have overall authority over the property of the United States of America. The passage of the Fourteenth Amendment, however, was the starting point of enforcement of the Bill of Rights against the state governments. From then onwards, courts in the United States of America have interpreted the Constitution in a manner that makes the Bill of Rights enforceable against the states. Therefore, the incorporation of the Bill of Rights is a gradual process.