So these are the enumerated powers of the US federal government: https://en.wikipedia.org/wiki/Enumerated_powers_(United_States)

At the end of the list there's this part: "Additionally, a number of amendments include a Congressional power of enforcement in which the language "The Congress shall have power to enforce this article by appropriate legislation" is used with slight variations, granting to Congress the power to enforce the following amendments:"

But those amendments don't include the first 10 amendments (bill of rights)

Which part in the enumerated powers allows the federal government to take action against states violating the bill of rights? Or generally... any congressional law?


1 Answer 1


Amendments to the US Constitution are part of the US Constitution, and this includes the so-called Bill of Rights. The doctrine of applying parts of the US Constitution to states, known as incorporation, comes from the 14th amendment:

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.

The scope of the doctrine of incorporation is logically limited to amendments because the original articles of the constitution state how the federal government is run, and does not guarantee any rights or privileges to individuals. Amendments 1,2,4,8 are fully incorporated against states, 5 and 6 are partially incorporated, third and 7th are not incorporated, and for 9th and 10th there is no ruling. This arrangement derives from decisions by the Supreme Court, interpreting the 14th Amendment and the concept of "due process".

If a state were to passe a law forbidding criticism of the governor (violating the First Amendment), an individual could sue to have the law found unconstitutional. Because, under the 14th Amendment, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article", Congress can and has passed a law prohibiting violation of civil rights: 42 USC 1983. Since the state in this hypothetical scenario has violated federal law, the federal government (Dept. of Justice) has standing to sue the state for violating federal law.

  • "doctrine of applying parts of the US Constitution to states,..., comes from the 14th amendment" Not quite. Certain sections of the original constitution restrict the states, particularly Article I section 10, each paragraph of which begins "No State shall..." Commented Aug 13, 2022 at 17:16

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