INCORPORATION OF THE BILL OF RIGHTS AND THE NOTION OF IMPLIED FUNDAMENTAL RIGHTS

Even educated Americans often do not know that the most important source of America's protection of fundamental human rights, the federal Bill of Rights, was not written to secure rights by limiting the powers of  state government.  Our most fundamental rights serve to limit state  governmental power only because they have been "incorporated" by the  Fourteenth Amendment, an amendment centrally designed to protect the  freedmen (the emancipated former slaves) against abusive state laws.   The development of the "incorporation doctrine" provides a complicated,  and even somewhat murky, history and ultimately ties us directly to the  basic question whether the legal enforcement of fundamental rights  requires that such rights be enumerated in the text of the Constitution  or might be implied from the very idea of the moral claims of rights  (what are sometimes called "natural rights").

A basic review of the historical issues raised by the "incorporation" and "implied rights" controversies is set forth in a summary prepared for presentation to a constitutional law class. (See attached file below)

Substantive_Due_Process

In turn, a more complete review of the issues raised by the text and history related to both controversies is set forth in materials to aid law students reviewing the underlying materials and confronting these issues. (See attached file below)

14th_ 10_ 1st

Be the first to comment

Please check your e-mail for a link to activate your account.

connect