Sunday, January 5, 2014

The Invisible Incorporation Doctrine

"That is a violation of my freedom of speech!! Haven't you heard of the First Amendment?!"

How many times have you heard such an exclamation from citizens?   But does the First Amendment really apply? Should it? Read the Bill of Rights. It begins with the words "Congress shall make no law..." and proceeds down the list. What about states? The way the Founders crafted the Constitution was to severely limit the federal government and to leave such things as freedom of speech to the governance of the states.
You see the states could in fact make laws that affected all the areas of the Bill of Rights. They, of course, believed firmly in such things as freedom of speech, freedom of religion, etc. This just gave "elbow" room to the various parts of our country. In different areas of the country, people could tailor their laws to suit their locale. Is this how things are today? The exclamation of the man on the street above is basically right. The Bill of Rights currently is mandated to all the states and uniformity is demanded. A conservative/liberal area of the country must have their laws reflect the law of the whole land. The Bill of Rights now almost entirely applies to the states.

What happened?

In the mid twentieth century the Supreme Court began to shift, one case at a time. They took the Fourteenth amendment (one of the post Civil War Amendments related to slavery and the treatment of blacks) and began to slowly tinker with it. By the present time, they have managed to twist the original meaning of the Fourteenth to usurp virtually all of the Bill of Rights and beyond. Now for example, abortion is allowable in all fifty states regardless of whether a conservative state thinks otherwise. All because of the new fourteenth amendment thinking. They call it the "incorporation doctrine." The slow, steady, and stealthy Supremes have managed to radically change the Constitution to the point that today the common man thinks it was always that way.

It wasn't.

Current Supreme Court Justice Antonin Scalia recognizes this usurpation but does not believe it is possible to undo it. Listen to his words from his book "Reading Law":

"We would...accept as settled law the incorporation doctrine---whereby the Bill of Rights is made applicable to the states...even though it is based on an interpretation of the Due Process Clause that the words will not bear."


Scalia answers, "Stare decisis--a doctrine whose function is to make us say that which is false under proper analysis must nonetheless be held to be true, all in the interest of stability. Courts cannot consider anew every previously decided question."

If the courts ignored precedent and flipped back and forth from session to session the public would lose confidence in them. The "currency" of the Court is confidence. The people believe by and large that when they speak it is the Constitution speaking. The Court knows this and guards it. It is not reality, of course. It is an illusion they must maintain, a consequence of their judicial interpretative method. I am reminded of a quote by Professor Frankfurter (later a Supreme Court Justice) in a letter to President Franklin Roosevelt in which he said, "People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of is they who speak and not the Constitution."

I probably should, like Scalia, acquiesce to the invisible incorporation doctrine. 

I just can't.


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