Incorporation: Does the Bill of Rights Bind the States? Kian v. Florida
Contemporary Application to Self-Evident: The Road to 1776 — Episode 17B
Incorporation: Does the Bill of Rights Bind the States? Kian v. Florida
In 1789 James Madison asked Congress to bar the states from violating the rights of conscience, the freedom of the press, and trial by jury in criminal cases. He called it the most valuable amendment on the list. The Senate struck it out.
This term the Supreme Court decides whether Florida may convict a man of a felony with a jury of six. Hamed Kian was convicted on five felony counts by six jurors. In federal court he would have faced twelve.
On Saturday, in Episode 17 and Article 17, New England towns governed themselves for a century and a half, and by the same authority taxed for the minister and hanged Quakers. The question that history leaves: when a near government and a distant one disagree about a person's rights, which one gets the last word?
Jeff traces incorporation from Barron v. Baltimore through the Fourteenth Amendment, Colfax and the Slaughter-House Cases to Duncan and Ramos, and sets Kian beside the Zenger trial of 1735. Two libertarian answers point down opposite paths, the Honest Reckoning names two failures of the liberty movement, and the Skeptic's Case takes three objections at full strength.
Did this leave us more free, or more governed?
⏱️ CHAPTERS
0:00 — Madison's lost amendment, 1789
1:43 — A felony and a jury of six
2:20 — Saturday's towns, today's question
3:36 — Two commitments in conflict
4:51 — "Congress shall make no law"
5:28 — The states' own bills of rights
6:06 — Madison's fear, Georgia's bounty
7:33 — Barron v. Baltimore
8:53 — Massachusetts, 1833
9:41 — The Fourteenth Amendment
10:24 — Howard and Bingham
11:53 — Colfax and Slaughter-House, 1873
13:52 — United States v. Cruikshank
14:35 — Due process, one right at a time
15:33 — Palko and double jeopardy
15:58 — Black's dissent in Adamson
16:27 — Duncan v. Louisiana
17:25 — Heller and McDonald
17:55 — Timbs and Humboldt County
18:24 — Ramos and the convention of 1898
19:04 — What remains, and Saenz v. Roe
20:18 — Kian v. Florida
21:45 — The Zenger trial, 1735
22:42 — Andrew Hamilton's argument
23:50 — The jury in 1776
24:32 — Ramos against Williams
24:55 — Florida's answer
25:20 — The scholars, and the reach
26:32 — Who stands on each side
27:06 — Not left against right
27:38 — Florida's business, or Kian's?
28:43 — Barnett and Bernick
29:47 — Power close enough to watch
31:29 — A floor, not a ceiling
32:03 — Saturday's two statements
32:44 — The Honest Reckoning
34:26 — The historical objection
36:01 — The federalism objection
37:20 — Who decides?
38:02 — Privileges or Immunities
38:51 — The Liberty Test
40:37 — Thursday and Saturday
📚 Article 17, "Self-Government Before Theory," with every source in its endnotes: https://www.consequentialactions.com/post/self-government-before-theory-a-hundred-and-fifty-years-of-practice
📚 Week 14, Jared McClain of the Institute for Justice on the civil jury: https://www.consequentialactions.com/post/humboldt-county-s-cannabis-fines-the-civil-jury-jared-mcclain-institute-for-justice
🎙️ Consequential Actions Podcast · Self-Evident: The Road to 1776 · Episode 17B, "No State Shall"
Next: Thursday, Ken Krawchuk, the Libertarian nominee for governor of Pennsylvania. Saturday, Episode 18, "The Revolutionary Argument."
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Consequential Actions is a libertarian, non-interventionist analysis of American constitutional and foreign policy. New episodes weekly.
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