Hello all! As I wait out Hurricane Ian (which has been disappointingly mild where I am, though in the long run that is a good thing), I couldn’t figure out what I wanted to write to you guys about. Looking through my archives I found an article I wrote last year about the legal doctrine of incorporation, and so today I want to repost that. Enjoy, and please pray for everyone affected by the hurricane.
Supreme Court Justice Louis Brandeis once famously said that, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” This quote, cited dozens of times by future justices on both sides of the ideological aisle, has become the bumper-sticker quote for the theory of federalism. The notion that each state, independent of those states around it, can and should try new policies so as to find what works best for that state, is a hallmark of political thought that goes back to the Founders themselves. It stands as a banner for conservative thinkers, an idea upon which the conservative movement is largely based.
It is also, for all intents and purposes, dead as a working theory. There are numerous causes for this death; Woodrow Wilson and FDR’s administrations serve as prime catalysts for the demise of this concept. As the nation became more partisan, the principle of letting each state decide for itself what policies work has been set by the wayside in favor of centralized, top-down governance from both major political movements.
This ideological death can also be found in the judicial branch, and most particularly in the same office that Justice Brandeis once held himself; the Supreme Court of the United States of America. In its place, the Incorporation Doctrine has been adopted.
In the simplest of terms, the Incorporation Doctrine is the practice of applying the Bill of Rights to intra-state politics; of ‘incorporating’ those amendments into everyday, state-by-state life. The fact that your state government cannot regulate your speech, or take away your guns, or deny you a fair trial, is largely due to the doctrine of incorporation. And, with two exceptions, most of the Bill of Rights has been partially or fully incorporated. The 9th and 10th Amendments stand apart, but for simple reasons; the 10th Amendments deals directly with the legal relationship between the states and the federal government, and the 9th Amendment is rarely used by the Supreme Court. Other than those, however, the freedoms guaranteed to us at a federal level are guaranteed to us at a state level as well.
This seems all well and good, right? Shouldn’t we as conservatives cheer this notion? Should we not be glad that the 1st and 2nd Amendments do not vary in their application from state to state?
No, we should not be proud. Here’s why;
Incorporation, in the strictest legal sense, has only ever applied to the Amendments. That does not mean, however, that the underlying concept has done so. Indeed, the increasing application of incorporation, beginning with the passage of the 14th Amendment, has correlated with an increasing intrusion of the federal government into our everyday lives. Why is this? It’s simple; every right that you have comes with a complementary duty, and along with that comes the weight of the law. When the door is opened to force states to, within their own borders, enforce free speech, or ensure a fair trial along federal standards, other things may come through that door. The most glaring example of this is the heavy application of the Commerce Clause by the Supreme Court, beginning in the 1930s, to intrastate affairs. Most conservatives I know decry this overly-broad interpretation of the Commerce Clause, and the resulting congressional overreach. We cannot, and should not, then turn around and defend the same broad interpretation of the 14th Amendment and judicial overreach.
Take a recent Supreme Court case. On April 20th, 2020, the Supreme Court of the United States ruled in favor of a defendant by the name of Evangelisto Ramos. Ramos had sued the state of Louisiana because, per state law, a jury could convict a person of a crime by a 10-2 vote, instead of the federal requirement of unanimous consent. Gorsuch, writing for the Court, ruled that the 6th Amendment’s requirement of a unanimous jury must apply to state cases as well as federal ones. This may not seem like such an issue to many; I certainly have no problem with the requirement that juries must be unanimous. However, the result is a nationalization of the courtroom, and could have consequences down the line. Let’s take a look into the past to see another example of a court case like this.
In 1973, the Supreme Court, by a 7-2 margin, ruled that a Texas law regulating abortion was unconstitutional. In one of the few times the Court has cited the 9th Amendment, Justice Harry Blackmun nationalized what seemed like a trivial issue at the time, and in doing so legalized abortion across the nation. The result? Almost 40 years of partisan warfare over a single issue, and a dramatic restructuring of America’s judicial system under the direction of conservative politicians such as Reagan and Bush.
That is not to say that incorporation does not have its merits; it may certainly have some, and the rights incorporated by the Court are usually worth defending. However, when the Supreme Court chooses to nationalize these issues, even ones such as free speech and the right to bear arms, the notion of federalism, and the idea of state sovereignty, dies a little more. It is worth revisiting the concept of incorporation within the conservative movement, if we are to get serious about defending the states, and the people, against an ever-encroaching federal government. Justice Brandeis was correct in his assertion that the states are “laboratories of democracy”. We should defend his idea, even against something as seemingly harmless as incorporation.
I love it when you make me think.
An interesting and intriguing proposal and I see the argument you’re making even if I’ll have to disagree again. Rights and duties go together but not in the way you describe. They’re separate and distinct. Entitlements - which differ from rights in that they’re given to you by the government - absolutely do come with strings attached. Rights don’t and incorporating the Bill of Rights to the states doesn’t cause or justify or legitimize overuse of the commerce clause and vice versa.
I see the argument you’re making about nationalization but I think the link is weaker than perhaps you do. You and I come from different places with regards to the role of states within the Constitution (as I’ve said in comments on an earlier piece of yours). I don’t think that the 14th amendment ipso facto leads to broadening the definition of interstate commerce.
As always, I enjoy the articles and the discussion.