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)
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)