View Full Version : A Case Against Constitutional Incorporation
I could not find a thread on this topic, so I thought that some of you might enjoy a discussion on the idea of incorporation of the Bill of Rights. For those of you unfamiliar with the topic, incorporation of the BOR means applying those right to the states when they were originally intended to protect the public only from the federal government. For example, the Federalist Papers were specific that the BOR was a limitation on Federal power and there was no mention of applying those standards to the states. In addition, a number of states had established religions until the mid-1800's, and there were even SCOTS decisions such as Barron v. Baltimore that specified the BOR only applied to the Feds.
The framework of incorporation comes from the equal protection provisions of the 14th Amendment as part of the Reconstruction era. The debate at the time of ratification was to provide a means of protecting freed slaves in former Confederate States - not to incorporate all of the BOR (hence they did not specifically mention incorporation in any of the Reconstruction Amendments). Thus, it would be another 40+ years before more SCOTUS cases would take expansive liberties with the language of the 14thA to solidify incorporation in our legal culture.
Unsurprisingly, we experienced a massive federal power grab as soon as incorporation was established in the 1920's. Prior to that time, 80% of government dollars were spent by the states and municipalities, and now we see that the Feds spend 60% of all government dollars. In other words, incorporation was on part of a progressive agenda to shift power to Washington. Thus, I've come to the conclusion that incorporation has been a net loss for our country.
Now, holding incorporation in a negative light has some profound consequences on firearms rights in America. It means that Federal legislation such as the Clinton gun ban are unconstitutional, but states are free to impose any firearms restrictions they please within the confines of their state constitutions. In other words, embracing incorporation of the 2ndA may be a convenient defense against burdensome state laws, but it makes a conservative or Constituational arguement against other federal power grabs more difficult.
Your thoughts?
montanadave
10-16-12, 15:37
So how does it work if the BOR grants me, as a citizen of the United States, a specific right or protection and, subsequently, the state of which I am a resident attempts to deny me that same right or protection?
Interesting, I did not have a full understanding of it.
I'm inclined to support it though, though I see the negative point of view. It seemingly makes sense to me that the states should not be able to violate the constitution, even if it were meant for just the federal government. Like you said as your own counter point, we would quickly see firearms banned in many states, and state religions re-established in others, 1st amendment rights drastically different state to state etc... seems to be the logical progression as well. I think the BOR SHOULD be universal, and every level of government should be small, though the intent was to allow states and local governments to be whatever the people want them to be.
It's hard for me to imagine the country not polarizing to a critical level.
So how does it work if the BOR grants me, as a citizen of the United States, a specific right or protection and, subsequently, the state of which I am a resident attempts to deny me that same right or protection?
We say, "That's what you get for electing Democrats in your state."
So how does it work if the BOR grants me, as a citizen of the United States, a specific right or protection and, subsequently, the state of which I am a resident attempts to deny me that same right or protection?
Interesting, I did not have a full understanding of it.
I'm inclined to support it though, though I see the negative point of view. It seemingly makes sense to me that the states should not be able to violate the constitution, even if it were meant for just the federal government. Like you said as your own counter point, we would quickly see firearms banned in many states, and state religions re-established in others, 1st amendment rights drastically different state to state etc... seems to be the logical progression as well. I think the BOR SHOULD be universal, and every level of government should be small, though the intent was to allow states and local governments to be whatever the people want them to be.
It's hard for me to imagine the country not polarizing to a critical level.
It seems that most of the pro-incorporation arguements fall in line with these ideas. That is to say, an overseeing federal authority is need to insure that states do not pass oppressive legislation. However, I have to ask if that was the history of states prior to incorporation? Aside from slavery which was a national problem, were states passing oppressive laws and unduly restricting their citizens prior to the 1920's? My gut tells me no since virtually every state has reasonable protections in their state constitutions. In fact, I'd say that our personal liberties are most threatened by a supervisory federal government as demonstrated by the healthcare debacle.
Finally, I ask is this belief in a protective federal government in keeping with conservative and libertarian values?
montanadave
10-16-12, 16:27
I don't profess to hold any particular legal acumen, but a quick perusal of the various SCOTUS decisions which incorporated many of the individual clauses of the BOR listed in the Wikipedia discussion on incorporation of the Bill of Rights (http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights) would seem to indicate multiple instances in which a variety of protections afforded by the BOR were denied or violated under state statutes, thus prompting the SCOTUS to act.
Finally, I ask is this belief in a protective federal government in keeping with conservative and libertarian values?
Well, a belief in the federal government we should have, absolutely.
A belief in what we do have? Never. But states are just smaller groups of idiots too, which is why we are supposed to have a republic and not a democracy.
Wouldn't it be great if we followed the laws?
In fact, I'd say that our personal liberties are most threatened by a supervisory federal government as demonstrated by the healthcare debacle.
Finally, I ask is this belief in a protective federal government in keeping with conservative and libertarian values?
I guess I see it as, our liberties are most threatened by government period, and I would rather have one government bound by the constitution than 50 that are not. I know I'm going to get jumped on and called all kinds of left wing names but I am not sure how it would all really work today. I don't think we can really function with every state operating however it wants anymore. My CPL only being good in x amount of states is ****ing annoying enough as it is.
That doesn't mean I want an oppressive federal government, it means I would prefer a single legal entity, bound by the constitution, and if its not an issue addressed in said constitution, then we don't ****ing make laws about it.
I guess I see it as, our liberties are most threatened by government period, and I would rather have one government bound by the constitution than 50 that are not. I know I'm going to get jumped on and called all kinds of left wing names but I am not sure how it would all really work today. I don't think we can really function with every state operating however it wants anymore. My CPL only being good in x amount of states is ****ing annoying enough as it is.
That doesn't mean I want an oppressive federal government, it means I would prefer a single legal entity, bound by the constitution, and if its not an issue addressed in said constitution, then we don't ****ing make laws about it.
No my friend, no name calling or jumping down your throat. I do not profess to know all the answers on this one. I would point out that there is a continuum in political ideology. Those who are on the progressive side tend to favor a more centralized focus of power in the federal govt. Progressives are very comfortable with federal programs like Medicare and Social Security.
Those who are conservative tend to want basic functions of defense, border security, and true interstate commerce handled by the Feds. Otherwise, states and municipalities can handle the rest of the laws such as criminal code. Conservatives disapprove of federal programs, but feel that states are perfectly within their rights to formulate social welfare as long as their state constitutions allow it, and as long as these programs are not supplemented with federal dollars.
Finally, libertarians want as little government as possible on any level. In other words, libertarians are equally offended by ObamaCare and state funded retirement plans such as the Ohio Public Employees Retirement System (OPERS replaces social security for OH public employees).
In this case there is a twist in the thinking in that instead of determining the level of govt to provide a service, we are determining which level of govt should provide basic protections. Does it make someone a progressive statist to believe in incorporation? I would not go that far, but I've recently started to question some of my previously held beliefs on the subject.
So how does it work if the BOR grants me, as a citizen of the United States, a specific right or protection and, subsequently, the state of which I am a resident attempts to deny me that same right or protection?
What he is saying, is that the BOR does not grant you, as a citizen of the United States, a specific right or protection. It only grants you freedom from Federal oppression with regard to that right or protection.
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montanadave
10-16-12, 22:35
What he is saying, is that the BOR does not grant you, as a citizen of the United States, a specific right or protection. It only grants you freedom from Federal oppression with regard to that right or protection.
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In that context (i.e. individual states are free to deprive their residents of any or all of the rights and protections enumerated in the BOR), I'm all in for incorporation.
I'm pretty conflicted about this.
On the one hand, state sovereignty is key. The states need to be able to self govern. It doesn't bother me at all that they could be vastly different from one another. If your state turns tyrannical, you can move to a better one. But, if the states are subordinate to the central gov, everywhere is uniform and there's nowhere to run.
On the other hand, if the BoR wasn't binding on the states, we could see places like Cali banning private firearm ownership, criminalizing certain speech, banning certain religions, etc. Some states could really turn into a socialist hell. I dont know if that bothers me, because there would always be a great state to move to. The U.S. as a whole became the worlds greatest economic power because we were the most free people on earth. Freedom = prosperity.
So because freedom = prosperity, the states that choose to be free with have the best jobs, standard of living, intelligent minds, etc. And people from asshole states would want to move there in droves. So it would balance itself out, self correcting.
I guess I'm against incorporation because the negatives out weigh the positives. Yes, for a time, some states would move against liberty in force. And for a time those states' residents would suffer until they could leave. But I think the better states would lead by example, as a shining beacon on the hill.
Bit of a rant. Sorry
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