Incorporation, Selective and otherwise

Incorporation, Selective and otherwise

So, this interesting thought came to mind while I was reading. The Bill of Rights (those cool first 10 amendments to the Constitution) did NOT originally apply to the states. I know right, crazy! They only applied to restrain the federal government. See Barron v. Baltimore in 1833 for the first example of this. Then, U.S. v Cruiskshank in 1876 reaffirmed this. Of course states had their own constitutions and bills of rights, but they didn’t have to match the big federal Bill of Rights.


But then that started to change with the “incorporation” of the Bill of Rights to the States. See this really great Wikipedia article.

Ok, what does this have to do with sovereign immunity? Well, while we had to incorporate the Bill of Rights to the states, there were laws passed the we had to incorporate (decorporate? reincorporate?) to the federal government…like..

The Civil Rights Bill!

Oh, you mean the 1964 Civil Rights Bill signed into law by President Johnson?


Oh, the Civil Rights Act of 1866 passed over the veto of the other President Johnson?

Not quite.

It must be the Civil Rights Act of 1871 then! Yes! It’s all about suing anyone, as an individual, for using the “color” of law to do generally bad things. The all important Section 1983

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

So, this seems to be a key to suing the feds for rights violations right? This only applies to the states though, NOT the federal government! And, it has not been incorporated up to the federal government by statute! (Notwithstanding the 1946 Tort Claims Act of course).

But, it was as Greg Sisk calls it, “established by judicial implication” (375). And we know it as Bivens v. Six Unknown Named Agents. As I understand it, an FTCA action “sues the federal government” and a Bivens claim is the federal equivalent of a Section 1983 action against an individual acting under the color of law.

So, recap:

The Bill of Rights had to be incorporated to the states by judicial implication.

The Civil Rights Bill of 1871 had to be incorporated to the federal government, also by judicial implication!


Posted on April 8, 2012, in Uncategorized and tagged , , , , , , , , , . Bookmark the permalink. Leave a comment.

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