They argue that the Fourteenth Amendment imposes all the guarantees of the Bill of Rights on the states. The immediate goal of the Fourteenth Amendment s sponsors was to protect southern blacks, most of them recently emancipated slaves, in the aftermath of the Civil War. But in the first three decades after the Fourteenth Amendment was ratified, a divided Supreme Court refused to apply any of the Bill of Rights to the states. Instead of using the privileges and immunities clause, this school of thought uses the due process clause as a basis for protecting what it calls substantive liberties from state infringement. Under this theory, the Supreme Court picks what parts of the Bill of Rights apply to the states.
Selective incorporation is a convenient way for jurists to cherry-pick the Bill of Rights.
As Halbrook observes, The reasoning in these opinions is a priori , requiring only a sentence or two. Halbrook's book demonstrates that many proponents and opponents clearly understood that the Fourteenth Amendment would impose the first eight amendments as limitations on the states. Halbrook does an impressive job of gathering evidence not only from the speeches of Bingham and Howard before, during, and after ratification of the Fourteenth Amendment, but from a variety of other members of Congress, from newspaper coverage, and from law books of the day. Even members of today's selective incorporation school will have to admit after reading this book that Congress meant for the Fourteenth Amendment to include the Second Amendment s guarantee of an individual right. Senator Samuel Pomeroy of Kansas, one of the proponents of the Fourteenth Amendment, articulated what he called three safeguards of liberty .