Reader Miranda adds a fifth comment to a recent post of mine that is worth responding to in a separate post. In one of the comments I appended to the post, I said this:
This morning Miranda shot back this comment:
To the contrary it is reasonable to say precisely that, if one is talking about Court cases. Under the rule of stare decisis, Courts are obligated not to decide a case in a way that contradicts a rule established in an earlier decision unless (and this is a big unless) there are compelling reasons to do so. Among the latter would be either a finding of a basic and systematic miscarriage of justice (see Brown v. Board of Education), or a finding that changes in circumstances have rendered the previous decision unworkable (see Brown v. Board of Education again). In practice, the Court almost always argues the latter rather than the former.
The rule is certainly well-established in American law, and there are good reason for it. It gives assurance that the law will remain stable, which allows citizens to know what the law is and when they are afoul of it. That is a basic element of the rule of law. Moreover, the longer a precedent is observed, the stronger the argument in its favor becomes; a body of case law may develop around the precedent so that it cannot be overturned without throwing large areas of the law into doubt.
Both of these considerations create a very strong presumption in favor of the incorporation doctrine. The citizens have come to understand their rights under state governments in terms of the doctrine. Vast realms of case law rest on it. Nor can I see any compelling argument for overturning it. It is not unworkable in any sense, and it involves no miscarriage of justice as generally applied. To be sure, I might disagree with certain applications, but the same is true where the First Amendment is applied to acts of Congress, where it is explicitly legitimate.
Miranda makes a familiar argument, much beloved by my fellow conservatives:
Conservatives tend to believe that the Courts should construe the Constitution very narrowly, to mean just what it says, no more, no less. They also think that the meaning of its terms should be what the Founders intended those terms to mean. But there is an obvious problem with this view: strict construction may be the right principle, but it isn't in the Constitution. Nowhere doe the document tell you how to read it. Likewise, it is not at all clear that the Founders intended for their "original intent" to be decisive.
The evidence goes the other way. The first great Supreme Court Chief Justice, John Marshall, was a Federalist if ever there was one. He clearly used the powers of the Court to mold American Constitutional Law in a creative way. One can make a good argument that he was right on all counts, but he was still going far beyond what the text said. Perhaps the Court was doing the same when it first applied the Bill of Rights to the States; but if so, they were following Marshall's lead. This is in fact the only kind of Court we have ever had.
The Constitution says very little about the powers of the Court. It limits those powers to "cases and controversies" but that is about it. So long as the Court remains within those limits, it is difficult to prove usurpation.
Also: the incorporation doctrine looks like a sensible reading of the Constitution. The Fourteenth Amendment says this:
But what are "the privileges and immunities of citizens of the United States"? And what does "due process" mean? The Constitution does not say. Fortunately, the Bill of Rights gives us a lot of hints. It means protection against unreasonable search and seizure, and a warrant requirement. It means a right against self-incrimination, a right to confront accusers, a right against cruel and unusual punishment. Deriving the meaning of the Due Process Clause of the Fourteenth Amendment from the Fourth, Fifth, and Sixth Amendments seems to me to involve more fidelity to the Constitution than any alternative.
Once the Court started to read some of the Bill of Rights into Fourteenth Amendment Due Process, where were they to stop? If a state government should abridge the freedom of speech of some person under its jurisdiction simply because it dislikes the content of his speech, is that a violation of due process? I think it is altogether consistent with the design and function of the Constitution to say so. Of course this is a judgment call, but the Court has to interpret Fourteenth Amendment Due Process to means something, and I see no alternatives that don't involve judgment calls.
I am a conservative with regard to judicial principles because I think judges should act like umpires, enforcing the rules of the game. But umpires do shape the way the game is played, guided by their best understanding of what makes the game work. What the courts should not do is act like angels in the outfield, intervening in the game so the right team wins. Much less should they employ their power for the sake of social engineering. The courts have no wisdom or expertise to guide them in such adventures, and the results are nearly always terrible. I happen to think that the incorporation doctrine, though questionable, is still respectable umpiring.