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Monday, May 11, 2009


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Susan Shelley

Miranda's right, Ken. The incorporation doctrine is not just respectable umpiring, it's a license for umpires to rewrite the rule book. The incorporation doctrine, which most Americans have never even heard of, has replaced the Tenth Amendment with an ever-changing set of balancing tests for federal judges to apply. Virtually any state or local law, or even a state constitutional amendment, can be thrown out by a federal court based on subjective hair-splitting over whether a right is "fundamental" or merely "basic," or whether a state can show a "compelling" reason for the law or merely a "rational" one. If the people of a state wish to have a law against door-to-door panhandling, or if they want police to search suspected gang members for weapons during traffic stops, or if they want to ban the sale of sex toys, or if they want to replace jury trials in some cases with trials heard by a judge, or if they want confessions and evidence to be admissible in court even if a police officer made an error, the state legislatures which eighty years ago had the power to make those laws have lost it. Now federal judges will decide, by 5-4 in many cases, whether the state's law is reasonable, necessary, and narrowly tailored for a permissible purpose.

This is why there's such a vicious fight over judicial nominations. Under the incorporation doctrine, federal judges substitute their judgment and priorities for the judgment and priorities of state lawmakers.

It might be a good idea, but it's not the deal we signed.

You might be interested to read "How the First Amendment Came to Protect Topless Dancing," a history of the incorporation doctrine which was published as an appendix to the novel, "The 37th Amendment."


Ms. Shelley:

Thanks for the thought-provoking comment. The Tenth Amendment is distinctly unhelpful because it doesn't provide any guidance on what powers are "not delegated to the United States by the Constitution, nor prohibited by it to the States." One can, of course, construe the charter very strictly, as I gather you are inclined to do; but as I pointed out, such a mode of construction is not part of the Constitution.

Hamilton (may his name be praised) argued correctly that the our liberties are not protected by a parchment barrier, but by the arrangement of powers fixed under the Constitution. The Supreme Court is given the power to decided cases and controversies arising under the Constitution, with no obvious restrictions on such power. From the very beginning the Court used that power to give flesh to the Constitution, just as the other branches did. Just because you and I don't like how they use that power in many cases doesn't make its use illegitimate.

The Fourteenth Amendment clearly does place new limitations on the powers of the state governments. For more than a half a century that didn't matter much, for two reasons. One is that the Courts lacked the inclination to enforce the Civil War Amendments. The other is that the States were still largely isolated from one another and from the Federal Government, as was the character of government until the recent age. But as the nation grew increasingly integrated by rail and wire, and as the injustice of American apartheid was finally addressed by the court, national standards for due process and privileges and immunities of citizens of the United States became an imperative for the latter. I think that was a reasonable reading of the Fourteenth Amendment.

You may disagree with a lot of what the Court did; I certainly do. I just think that these are issues of good vs. bad jurisprudence, not a matter of Constitutional usurpation.

Susan Shelley

Thanks very much for taking the time to reply to my comment.

You're certainly right that the Supreme Court decided to end segregation, and I wouldn't for a moment argue that the justices were morally wrong to do it. I would argue that it was an unconstitutional usurpation of powers that were specifically left to the states -- the northern states, by the way -- by the framers of the Fourteenth Amendment. They quite deliberately preserved segregation. It was not a proud moment in U.S. history.

But I think it's fair to ask whether segregation was a unique legal and constitutional problem, or whether anything that five justices dislike can be struck down with a creative interpretation of "substantive" due process.

Many of the most controversial decisions under the incorporation doctrine were handed down during the 1960s -- like Mapp v. Ohio (exclusion of illegally-obtained evidence) and Miranda v. Arizona (the famous Miranda warnings) and have nothing at all to do with rail or communications technology bringing the states closer together.

The Supreme Court has conferred upon itself the power to act as a super-legislature. The justices regularly evaluate the wisdom and necessity of state laws in a manner that was intentionally prohibited by the framers of the Constitution, who excluded the judiciary from policy-making. A proposed "Council of Revision" that would have allowed judges to make changes in laws passed by Congress was voted down twice by the Constitutional Convention.

Today we've gone so far in the other direction that Senate confirmation hearings for federal judges have become the last opportunity for the people of the United States to have any say at all about what their laws will be on issues that are of great importance to them, like abortion.

By what authority has the Supreme Court made this seismic change in the Constitutional structure?

And why did this change have to wait until everyone who debated and ratified the Fourteenth Amendment was dead?

Is it because no one who was alive when the Fourteenth Amendment was ratified thought for an instant that it applied the Bill of Rights to the states?

That would seem to be indicated by the Supreme Court's ruling in Maxwell v. Dow in 1900: "In order to limit the powers which it was feared might be claimed or exercised by the Federal government, under the provisions of the Constitution as it was when adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states by the first Congress on the 25th of September, 1789. They were intended as restraints and limitations upon the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states. This has been many times decided."

Justice Antonin Scalia explained it this way in remarks at the American Enterprise Institute in February, 2006: "The biggest stretch that the Court has made was interpreting the Fourteenth Amendment to apply the Bill of Rights to the states. Nobody ever thought the Bill of Rights applied to the states. It begins 'Congress shall make no law.' And when I was in law school, it was still a controversial proposition whether the Fourteenth Amendment incorporated the Bill of Rights and spat them out upon the states. But, you know, we've been doing this for fifty years now, it's not a problem, I just take the same rules that I apply to the Bill of Rights against the federal government, and I apply it against the states. It is manageable, the people have gotten used to it, and I'm not about to tell the people of New York state or of any state that their state government is not bound by the First Amendment. Okay?"

He's not really asking.

Here's a link to "How the First Amendment Came to Protect Topless Dancing," in case you'd like to see footnotes:


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