The benefits of incorporation doctrine in securing rights at the state and local level have unfortunately been accompanied by a steady chipping away of America’s federalist system.
This is an opinion article submitted by a reader like you. As a crowdsourced platform, we value respectful debate and the free market of ideas and will consider all article submissions.
Supreme Court Justice Louis Brandeis once famously said,
“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
This quote, cited dozens of times by future justices on both sides of the ideological aisle, has become the bumper-sticker quote for the theory of federalism. The notion that each state, independent of those states around it, can and should try new policies so as to find what works best for that state, is a hallmark of political thought that goes back to the Founders themselves. It stands as a banner for conservative thinkers, an idea upon which the conservative movement is largely based.
It is also, for all intents and purposes, dead as a working theory. There are numerous causes for this death. Woodrow Wilson and FDR’s administrations serve as prime catalysts for the demise of this concept.
As the nation became more partisan, the principle of letting each state decide for itself what policies work has been set by the wayside. In its place is favor for centralized, top-down governance from both major political movements.
We can also find this ideological death in the judicial branch. Most particularly we find it in the same office that Justice Brandeis once held himself: the Supreme Court of the United States of America. In its place, the Supreme Court has adopted the Incorporation Doctrine.
In the simplest of terms, the Incorporation Doctrine is the practice of applying the Bill of Rights to intra-state politics and of “incorporating” those amendments into every day, state-by-state life.
The fact that your state government cannot regulate your speech, or take away your guns, or deny you a fair trial, is largely due to the doctrine of incorporation. And, with two exceptions, most of the Bill of Rights has been partially or fully incorporated.
The 9th and 10th Amendments stand apart, but for simple reasons. The 10th Amendment deals directly with the legal relationship between the states and the federal government. And, the Supreme Court rarely uses the 9th Amendment. Other than those, however, the freedoms guaranteed to us at a federal level are guaranteed to us at a state level as well.
This seems all well and good, right? Shouldn’t we as conservatives cheer this notion? Should we not be glad that the 1st and 2nd Amendments do not vary in their application from state to state?
No, we should not be proud. Here’s why:
Incorporation, in the strictest legal sense, has only ever applied to the Amendments. That does not mean, however, that the underlying concept has done so. Indeed, the increasing application of incorporation, beginning with the passage of the 14th Amendment, has correlated with an increasing intrusion of the federal government into our everyday lives.
Why is this? It’s simple. Every right that you have comes with a complementary duty, and along with that comes the weight of the law. With the door open to forcing states to, within their own borders, enforce free speech or ensure a fair trial along federal standards, other things may come through that door.
The most glaring example of this is the heavy application of the Commerce Clause by the Supreme Court, beginning in the 1930s, to intrastate affairs. Most conservatives I know decry this overly-broad interpretation of the Commerce Clause and the resulting congressional overreach. We cannot, and should not, turn around and defend the same broad interpretation of the 14th Amendment and judicial overreach.
Take a recent Supreme Court case. On April 20th, 2020, the Supreme Court of the United States ruled in favor of a defendant by the name of Evangelisto Ramos. Ramos had sued the state of Louisiana because, per state law, a jury could convict a person of a crime by a 10-2 vote. This deviates from the federal requirement of unanimous consent. Gorsuch, writing for the Court, ruled that the 6th Amendment’s requirement of a unanimous jury must apply to state cases as well as federal ones.
This may not seem like such an issue to many. I certainly have no problem with the requirement that juries must be unanimous. However, the result is a nationalization of the courtroom and could have consequences down the line.
Let’s take a look into the past to see another example of a court case like this.
In 1973, the Supreme Court, by a 7-2 margin, ruled that a Texas law regulating abortion was unconstitutional. In one of the few times the Court has cited the 9th Amendment, Justice Harry Blackmun nationalized what seemed like a trivial issue at the time. In doing so, the Supreme Court legalized abortion across the nation.
The result? Almost 40 years of partisan warfare over a single issue, and a dramatic restructuring of America’s judicial system under the direction of conservative politicians such as Reagan and Bush.
That is not to say that incorporation does not have its merits. It may certainly have some, and the rights incorporated by the Court are usually worth defending. However, when the Supreme Court chooses to nationalize these issues, even ones such as free speech and the right to bear arms, the notion of federalism, and the idea of state sovereignty, dies a little more.
It is worth revisiting the concept of incorporation within the conservative movement if we are to get serious about defending the states, and the people, against an ever-encroaching federal government. Justice Brandeis was correct in his assertion that the states are “laboratories of democracy.” We should defend his idea, even against something as seemingly harmless as incorporation.
Do you agree with this article? Do you disagree? Give us your perspective on this topic, or any other topic, by submitting your own article or offering a comment below.