Not for the first time in our history, high officials are today distorting the origins of the Fourteenth Amendment for political and ideological purposes.
The amendment says that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
At the end of the 19th century, the Supreme Court declared that the amendment was intended mainly to protect business corporations from regulation, thus undermining its guarantee of equal civil rights for blacks. Now Attorney General Edwin Meese insists the amendment did not ''incorporate" the Bill of Rights -- that is, require the states to respect the liberties secured by the Constitution's first 10 amendments, which originally limited the powers of Congress, not state governments.
This position would allow individual states to violate such basic civil liberties as freedom of speech, trial by jury, and protection against self-incrimination. A state could even establish an official church. But the attorney general's view betrays a fundamental misunderstanding of the amendment's purposes.
The amendment was approved by Congress in 1866. Its broad, elusive phrases concerned with the "privileges and immunities" of American citizens and "equal protection of the laws" can only be understood in the context of the crisis of the Civil War and Reconstruction, which bred within the Republican Party a determination to guarantee citizens' fundamental rights against state abuse.
Before the war, most Americans believed a powerful central government posed the greatest danger to individual liberty. But it was the national government that emancipated 4 million slaves, while the southern states, once restored to the Union, enacted ''Black Codes" that severely restricted the freedmen's rights. As a result, Republicans came to view the federal government as a "custodian of freedom," with a responsibility to defend liberty against hostile state action.
The term "incorporation," a modern usage, does not appear in the debates of 1866. But its underlying premise seemed beyond dispute by the time the Fourteenth Amendment came before Congress. The principle of federal authority to define and protect citizens' rights appeared, as one congressman declared, "so just, that no member of this House can seriously object to it."
Michigan Sen. Jacob Howard, who guided the amendment to passage in the Senate, did declare explicitly that its purpose was to force states to respect "the personal rights guard and secured by the first eight amendments of the Constitution." Ohio Rep. Jonathan Bingham, who helped draft the amendment, said much the same thing in the House.
Other Republicans spoke more generally of guaranteeing the "fundamental rights of citizens" against state abuse. Nor was this merely an abstract statement of principle, for the amendment granted Congress the sweeping power to enforce its provisions by "appropriate legislation."
Some portions of the Bill of Rights were of little moment in 1866 (no one was threatening to quarter soldiers in a home without consent of the owner). But it is abundantly clear that Republicans wished to give constitutional sanction to the federal government's power to guarantee such key provisions as freedom of speech, the right to bear arms, trial by impartial jury, and protection against cruel and unusual punishment and unreasonable search and seizure. Indeed, the amendment was deemed necessary precisely because every one of these rights was being systematically violated in the South in 1866.
The fact that a specific right or a particular clause of the Bill of Rights was not mentioned in the debates, moreover, does not mean Congress considered it unworthy of federal protection. Rather than providing a long list of rights the states could not abridge, those who drafted the amendment intentionally employed broad language so as to allow Congress and the federal courts maximum flexibility in defining the "privileges and immunities."
Far from being an unwarranted imposition upon the Constitution, as Meese contends, the doctrine of incorporation simply reaffirms the essential purpose of the Fourteenth Amendment -- the establishment of a national citizenship whose common rights the states cannot abridge and the federal government is empowered to protect.
This principle, understood at the time as applying to whites as well as blacks, northern states as well as southern, was a fundaental legacy of the Civil War. It is unfortunate that those charged with its enforcement (ironically, members of the party of Lincoln) are today seeking an excuse to abandon it.