The The Miracle at Philadelphia Fourteenth Amendment: Should the Bill of Rights Apply to the States--The Disincorporation Debate

Despite any conclusive historical justification, the Supreme Court, beginning in 1925, has selectively incorporated the Bill of Rights into the due process clause of the fourteenth amendment. The following debate examines the propriety of the Court's selective incorporation doctrine and is adapted from speeches delivered May 21, 1987, at the University of Utah during the Ralph & Carol Hardy Lecture. In Part I, Dr. McDowell argues that because there is an inadequate historical basis for incorporating the Bill of Rights into the fourteenth amendment, the legitimate interpretation of a written constitution demands that ambiguities be resolved in favor of narrowly crafted interpretations. In Part II, Professor Baer responds that four principal methods of constitutional interpretation, when applied collectively, lead to the inescapable conclusion that at the very least the due process clause of the fourteenth amendment incorporates the Bill of Rights.

Fourteenth Amendment: Should the Bill of Rights Apply to the States--The Disincorporation Debate, The The Miracle at Philadelphia Academic Article