thidwick markvol
3 years ago edited
" the Bill of Rights was enacted primarily to entice the following territories to join the Union. In other words, Of Course the eighth is incorporated!"
Not actually. Prior to the Fourteenth Amendment, the Bill of Rights was not considered to apply to state action. The Bill of Rights was in fact demanded by most of the states for agreeing to the Constitution as a limit on federal power, because while they recognized the need for a more vigorous and cohesive central government than under the Articles of Confederation, they also wanted to make sure the federal government would be constrained in various critical ways - those they could then enumerate (the first 8) and those they could not just yet (9 and 10). The Fourteenth Amendment imposed equal protection and due process limits on the states. After a few decades, the courts began interpreting the right to due process under the Fourtheenth Amendment as including various parts of the Bill of Rights. That is what 'incorporation' means in this context. Generally, states have not recognized that an amendment applies to them until the federal courts say so. Often they have parallel provisions in their constitutions, so it did not come up all that often. My recollection is that 'excessive fines' had been incorporated, but in the contexts of direct criminal penalties and punitive damages, not asset forfeiture.

But in looking through the Bill of Rights to make this reply, I noticed something I have not heard discussed before. Only the First Amendment says "Congress shall not..." The rest just say the rights of the people as to various things (be armed, not house soldiers, have jury trials for amounts over $20, etc.) shall not be infringed. It seems to me the difference reflects that only the First may have been intended to apply only to the federal government, allowing the states to have their established religions (as several did at the time), or make their own provisions as to press and speech. In any case, Marbury v. Madison (which said it was the courts' job to declare whether an Act was constitutional) was not issued until 1803, a generation after the Bill of Rights was ratified, and the legal establishment of the time may have simply forgotten that only the First was so limited to Congress's acts, and so when issues about state action arose, everyone just accepted that the Bill of Rights did not apply to them. This paragraph is largely speculative.