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The Incorporation Controversy: Bill of Rights

Review the issue surrounding the incorporation controversy. In your own words, explain your interpretation of the incorporation controversy. Do you think the Bill of Rights (Amendments I - X) should apply to all state and local governments? If not all ten, which ones? Explain.

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Dear student,
This solution is rather long - I decided to create it in this manner so that it can assist you in understanding the 'incorporation controversy'. Good luck!

OTA 105878
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The Bill of Rights & its incorporation

When the Bill of Rights (the first 10 amendments to the US Constitution) was introduced to the First Congress by James Madison in 1791, only 3/4 of the States in the union ratified it. Each state being 'autonomous' and semi-independent in deciding whether or not the bill of rights is acceptable and would be worthy in its incorporation to the Constitution that they had already ratified & incorporated into their 'official' & 'recognized' rule of law. Remember however that many states do not want to centralize power into a singular entity. Each State in the union is seen as an 'independent nation', hence, the United States. Many fear that a powerful central government will undermine the voices of each individual citizen of each state. While the Constitution provided powers to the Central Government, the Bill of Rights is its check in the exercise of federal power.

Immediately as soon as the Bill of Rights got incorporated into individual state constitutions and was recognized as part of the Constitution, it manifested itself in the form of legal disputes, a sort of check & balance of Federal power. For example in 1883 the city of Baltimore diverted a stream that led to the ruin of Barron's Wharf. In the case of Barron vs. the Mayor & City Council of Baltimore, Barron indicated that a taking of the 5th amendment occurred. Aside from protecting the rights of an individual from self incrimination, it also purports Due Process, that before Baltimore can decide to 'divert' a stream, it has to go through the proper channels and an agreement with the residents and the wharf businesses at Barron must be reached. While it is true at that time, Maryland was not among the States that incorporated much of the Bill of Rights and as it was, the Bill of Rights was only binding on Federal Government viewed cases, while it was the State Constitution of Maryland that is binding in that ...

Solution Summary

The solution discusses the debate behind the Incorporation Controversy, citing areas of conflict and proposing possible actions for reconciliation. The solution is long & comprehensive for the incorporation debate dates back to the very beginnings of the nation and as history unfolded & resolutions taken to act on the problems, new challenges sprout up making the incorporation debate one of the longest in U.S. History. The solution goes on to recommend, for the sake of debate what seems to be the most important elements of the Bill of Rights and proposes to stick by them to end the controversy and apply the US constitution uniformly throughout each State to avoid variance.

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