The Incorporation Doctrine & Stare Decisis

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:

The First Amendment indeed applied only to Congress when it was first written. In the twentieth century the Court began to apply it to state government acts under the Incorporation Doctrine. According to the latter, the due process clause of the Fourteenth Amendment (which explicitly applies to the states) incorporates all or almost all of the first ten amendments. One may well wonder whether that doctrine was correct, but that ship sailed a long time ago.

This morning Miranda shot back this comment:

I think is is preposterous to say that just because something has been happening for years that it is legitimate. One might have made a similar argument about
slavery.

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:

The court's usurpation of power here may not be as obvious an evil as slavery, but it is, I think, still dangerous. It means that our government's powers are not as separate as they ought to be, and that threatens our freedom. I do not dispute that some good might have come from the Court's decision, but it was not the court's place to make that decision.

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:

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. 

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. 

Comments

[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."

[KB]

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:

http://www.ExtremeInk.com/appendix.htm