Incorporation consequence

[AngelDecoys]

A friend and I were discussing what a fully incorporated Bill of Rights might lend itself to. In our discussion we were assuming McDonald Incorporates via the Privileges or Immunities Clause. The question we were arguing was whether full incorporation inhibits regulation, or enhances it.

I argued, subsequent incorporation cases maybe used for Federal deregulation and property protection on the right. Gay marriage, abortion, and other non-enumerated rights by the left.

He seems to think the following: (posted below).

"Full incorporation does not inhibit regulation at all, it enhances it. The last token barriers to federal regulation of all local issues will fall away. Property protection won't get much better either as Kelo v. New London was a federal ruling. Search and seizure will be ruled by the same folks who upheld the Patriot Act. Voting rights governed by those who passed McCain/Feingold. Etc.

Let's face it. Most of the abuse of power in the last 30 years has been from the feds down, not from the states up. Once full incorporation is granted, there will be little room for a state like Florida or Texas or Wisconsin to establish counter trends via state statute. And states like California that have huge blocks of federal representation will rule the roost just as they increasingly have done so...."

Its a friendly argument between academics so I don't really care if I'm wrong, but I'm curious whether we are each partially correct, totally wrong, totally correct, too early to speculate, or if the tin foil hat is on too tight.

Thoughts welcome.

[dfletcher]

Were I to assert that priviliges & immunities as incorporated against the states on civil rights, for example, had the effect of increasing voter participation, removed poll taxes and tests, restrictive covenents, etc - the rejoinder would be that's simply because the federal government decided to pursue that route? That in effect, once a path is established the federal government can prefer to be restrictive and require the state to follow suit?

Have states become more restrictive or more readily embraced the establishment clause of the 1st since it was incorporated against the states?

I'm just winging it, probably way over my head on this one. I'll sit back and watch.

[hoffmang]

Your friend ignores the political reality. Through an over expansive commerce clause and/or "substantive due process" the federal government or the federal judiciary can already do any of the nasty things he's worried about.

However, there are two countervailing issues. First, P or I incorporation clearly intended to only incorporate the negative liberty interests that existed as fundamental rights, enumerated and unenumerated, at 1789 and 1868. Second, states are always free to legislate wider negative liberty rights than the Federal government. Many states have wider 1A or 4A restrictions in state law than the Federal minimum.

As such, your friend is trying to parade horribles when in fact P or I is likely to decrease the effect of all levels of government instead of increasing Federal power. He's in many ways parroting the racist unreconstructed Southerners of 1873 - which is pretty bad company when thinking about protecting liberty.

-Gene

[Serpentine]

Your friend ignores the political reality. Through an over expansive commerce clause and/or "substantive due process" the federal government or the federal judiciary can already do any of the nasty things he's worried about.

However, there are two countervailing issues. First, P or I incorporation clearly intended to only incorporate the negative liberty interests that existed as fundamental rights, enumerated and unenumerated, at 1789 and 1868. Second, states are always free to legislate wider negative liberty rights than the Federal government. Many states have wider 1A or 4A restrictions in state law than the Federal minimum.

As such, your friend is trying to parade horribles when in fact P or I is likely to decrease the effect of all levels of government instead of increasing Federal power. He's in many ways parroting the racist unreconstructed Southerners of 1873 - which is pretty bad company when thinking about protecting liberty.

-Gene

What about the 14th Amendment? Specifically this section:

Incorporation

Main articles: Incorporation (Bill of Rights) and Privileges or Immunities Clause

In Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights did not apply to the states. While many states modeled their constitutions and laws after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. According to some commentators, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the individual rights the federal government was already required to respect in the Bill of Rights and in other constitutional provisions; all of these rights were likely understood to fall within the "privileges or immunities" safeguarded by the amendment.[32] However, in the Slaughter-House Cases (1873), the Supreme Court ruled that the amendment's Privileges or Immunities Clause was limited to "privileges or immunities" granted to citizens by the federal government in virtue of national citizenship. The Court further held in the Civil Rights Cases (1883) that the amendment was limited to "state action" and thus did not authorize the Congress to outlaw racial discrimination on the part of private individuals or organizations. Neither of these decisions has been overturned and in fact have been specifically reaffirmed several times.[33]

However, by the latter half of the twentieth century, nearly all of the rights in the Bill of Rights had been applied to the states, under what is known as the incorporation doctrine.[34] The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Fourth and Sixth Amendments, the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Fifth Amendment (except for its Grand Jury Clause).[35] The Seventh Amendment have been held to be applicable to the states.[35] The Supreme Court is reviewing McDonald v. Chicago, a case dealing with whether the Second Amendment is to be incorporated.[36] While the Third Amendment has not been applied to the states by the Supreme Court, it was ruled, by the Second Circuit, that it did apply to the states within that circuit's jurisdiction in Engblom v. Carey.[37]

If the Supreme Court rules the 2A as an individual right against the states, doesn't the 14th pretty much say "hands off to state regulation or "infringement?"

.

[Theseus]

Unless I am wrong, the presumption is that with an incorporated BOR the Fed will have the power to do anything they want and the States can't do anything about it. . . I don't believe that.

All it does is say to the States that they can't deprive their citizens of a right that they are guaranteed as a citizen of the United States.

At least, that is what I understand.

[AngelDecoys]

Your friend ignores the political reality.........

Agreed though one might argue the political reality in the court does swing back and forth. Is it a stretch to consider a future court which embraces 'positive liberty interests?'

Many states have wider 1A or 4A restrictions in state law than the Federal minimum.

Both points true and helpful. Unfortunately, the courts have been busy federalizing issues. Some would argue restricting liberty...

He's in many ways parroting the racist unreconstructed Southerners of 1873 - which is pretty bad company when thinking about protecting liberty.

-Gene

lol. He's a bit more cynical than I am 'long term' on liberty in general. He's convinced the grand experiment is past the tipping point. Time for a national reset if you will. He believes long term that States (rather than being a convocation of equal sovereigns), will simply become federal congressional districts (local/state government being impotent).

Any thought on whether a fully incorporated BoR will affect the 10th? Sigh, I wish the 10th could be revitalized. In smaller states 'sameness' to some extent might make sense (considering travel), but for me cultural distinction between states has more flavor over a homogenized corporate big box store nation.

Thanks Gene.

[GrizzlyGuy]

Your friend is essentially correct. Going forward, 14A is more of a threat to our liberties than a protector of them. I explained why this is in a series of posts in another thread:

The enemy of my enemy is my friend
(enemy = anti-gunners, 14A is their enemy, so in this one issue of 2A incorporation, 14A is our friend)

14A unintended consequences, the slippery-slope of defining "rights", and misuse of 14A in the past

Solution: we should amend the constitution again, to implement 14A's original intent and prevent future abuse of it

Another cite I found later, from the Cato Institute, apparently making the same argument

[sholling]

I disagree with your friend's theory.

"Full incorporation does not inhibit regulation at all, it enhances it. The last token barriers to federal regulation of all local issues will fall away. Property protection won't get much better either as Kelo v. New London was a federal ruling. Search and seizure will be ruled by the same folks who upheld the Patriot Act. Voting rights governed by those who passed McCain/Feingold. Etc."

From my layman's perspective the court has a chance to undo Kelo under P&I. New London did not violate due process in taking Kelo's property. All of the I & Ts were dotted and crossed. Under due process incorporation that's all they had to do. Under P&I incorporation the court can revisit what they now realize is a very unpopular ruling and reverse Kelo because P&I is a completely different standard.

The court already realizes that acceptance of McCain Feingold was a mistake and is looking for a graceful way to reverse itself. What this will do is throw out many bad state campaign finance laws once M-F is reversed.

The key to restoring the proper balance between the states and the federal government isn't blocking access to the bill of rights - it's restoring the 10th Amendment. Under the 10th the only powers that the congress has over the states is enforcing the free flow of goods and services between the states and enforcing the Bill of Rights. That's about all.

[7x57]

Some nitpicks, or perhaps simple cynicism:

Through an over expansive commerce clause and/or "substantive due process" the federal government or the federal judiciary can already do any of the nasty things he's worried about.

Indeed. However, whether it turns out to be so or not, it's not a priori unreasonable to worry that there may be another avenue to get around even the minimal obstacles left to regulation.

However, there are two countervailing issues. First, P or I incorporation clearly intended to only incorporate the negative liberty interests that existed as fundamental rights, enumerated and unenumerated, at 1789 and 1868.

The question is not whether you are correct, the question is whether this is in fact clear to judges and especially SCOTUS. One would like to think so, but the crushing reply to any assertion of sense on the part of the courts is the Commerce Clause. If that intent is not clear to judges, how can we be sure anything will be?

7x57

[Sgt Raven]

.....snip.........

lol. He's a bit more cynical than I am 'long term' on liberty in general. He's convinced the grand experiment is past the tipping point. Time for a national reset if you will. He believes long term that States (rather than being a convocation of equal sovereigns), will simply become federal congressional districts (local/state government being impotent)......snip.....

Thanks Gene.

Then he should hope for a big fast change, so the frog gets dropped in boiling water and jumps out instead of being cooked.

[AngelDecoys]

Your friend is essentially correct. Going forward, 14A is more of a threat to our liberties than a protector of them. I explained why this is in a series of posts in another thread:

Thanks. As always around this place, I end up with more reading assignments. Its a curse, I tell you

The key to restoring the proper balance between the states and the federal government isn't blocking access to the bill of rights - it's restoring the 10th Amendment.....(snip)

This is where I'd like to see the nation go as well. Unfortunately, our wishing it doesn't mean its where the law is heading. Protecting civil liberties, but not strangling the economic liberty at the state level (unfunded mandates for instance) would begin to strike a good balance.

Then he should hope for a big fast change, so the frog gets dropped in boiling water and jumps out instead of being cooked.

He's a great guy for a West Point grad. Like any circle of associates (like various personalities here), he has interesting insights that aren't always accepted, agreed upon, or filtered. Always good to bounce ideas for a different perspective.

BTW - Isn't it the sifting, reasoning, and clarifying that we all find entertaining?

[Sgt Raven]

He's a great guy for a West Point grad. Like any circle of associates (like various personalities here), he has interesting insights that aren't always accepted, agreed upon, or filtered. Always good to bounce ideas for a different perspective.

I've heard there are some really great guys that are 'Ring Knockers' but I haven't met them yet.

[hoffmang]

The key to restoring the proper balance between the states and the federal government isn't blocking access to the bill of rights - it's restoring the 10th Amendment. Under the 10th the only powers that the congress has over the states is enforcing the free flow of goods and services between the states and enforcing the Bill of Rights. That's about all.

The 14th Amendment amended the 10th amendment. The only way to change that is to amend the constitution. Otherwise its just perpetuating judicial activism in the name of stopping judicial activism - a concept I find laughable at best.

-Gene

[Mulay El Raisuli]

"Full incorporation does not inhibit regulation at all, it enhances it. The last token barriers to federal regulation of all local issues will fall away. Property protection won't get much better either as Kelo v. New London was a federal ruling. Search and seizure will be ruled by the same folks who upheld the Patriot Act. Voting rights governed by those who passed McCain/Feingold. Etc.

Let's face it. Most of the abuse of power in the last 30 years has been from the feds down, not from the states up. Once full incorporation is granted, there will be little room for a state like Florida or Texas or Wisconsin to establish counter trends via state statute. And states like California that have huge blocks of federal representation will rule the roost just as they increasingly have done so...."

I disagree with your friend also. While Kelo v. New London was a federal ruling, it was the City of New London (aided & abetted by CT law) which grabbed the land. Which matters to show who violated Rights.

Citizens have Rights & they need protecting. It isn't really important which level of government protects them, just as long as they are protected. The 14A was written due to the recognition that the South would NOT protect the Rights of all of its citizens & that since someone had to, the Federal Govt would.

This clearly applies to Kelo as well. Property Rights weren't being protected by the state of CT. The only hope the property owners had was that the Feds would. Which they didn't do. But, as sholling points out, that refusal to do so was error & with any luck, the restoration of the 14A P/I Clause will give them opportunity to fix that error.

Relating this to guns (why we're all here, after all) we can't rely on the states to protect the Right to Keep & Bear. Clearly this state won't. Which, as originally intended, leaves it to the Feds to do. Will this end the time of the convocation of equal sovereigns? Yes, but so what?

As for the "national reset" that you mentioned later, I think the proper implementation of the 14A P/I Clause is going to be just that. But w/o all the blood, screaming, dying & all that other messy stuff. If it doesn't work out that way, THEN we can get all messy.

The Raisuli

P.S. Plus 1 to what Gene said in post #3.

[1JimMarch]

What he said.

The Chicago gun case could lead to a rapid overturn of Kelo. And it's very likely the 9 Robes know that...and after the massive PR hit they took over Kelo, that may fall into the category of "a feature, not a bug".

OK. Kelo was about a land grab by a local government. Because of Slaughter-house, local and state gov'ts don't have to protect people's "privileges and immunities of US citizenship". So, what exactly does that phrase mean? It's something along these lines:

* "The traditional rights of free Englishmen" (during those times civil rights protections were at their peak, such as just after the passage of the English Bill of Rights of 1688 I think it was?)

* "The (US) Bill Of Rights and then some". In one of the clearest listings of the "privileges and immunities", the US Supremes in Dred Scott named "a right to free travel without pass or passport" for example.

Under either read or various similar phrasings, a strong property-rights bias is definitely present. Likely strong enough to overturn Kelo.

Now for the part a lot of "Christocrats" are gonna choke on: what's another classic "privilege or immunity"?

Marriage. Likely including gay marriage.

(Note: "Christocrat" doesn't mean "Christian". It means "Christian who wants to stick their religion into government affairs".)