The incorporation doctrine makes the provisions of the Bill of Rights to the United States Constitution applicable the states.
It wasn’t until 1925, some 57 years after ratification of the 14th, that the Supreme Court mystically found that the amendment bound the states to the Bill of Rights. Since then, America has increasingly become a nation governed by judiciary.
Why is incorporation bad? Can’t the Federal government do things so much better than the states? Vice President Biden believes so. When he was a Senator, he claimed: “…the reason the federal government got into 90 percent of the business it got into is that the state[s]…did not do the job.”
I disagree and say that it is strictly a power grab by the federal government via the courts.
I’m not going to delve into the Constitutionality of incorporation (more on that HERE), but instead focus on how individual liberty is lost when ultimate control is in Washington.
We perhaps see this most clearly in the issue of freedom of religion. The First Amendment clearly says “Congress shall make no law …” Congress obviously does not encompass the states. By allowing this amendment to apply to them, the federal government morphs into a one size fits all policy-maker destroying religious prerogative in the states.
When the Constitution was ratified, several states had official religions; they didn’t repeal those laws because of the First Amendment. Church services were held in the Congressional Building (First Congregational Church). If one doesn’t like their state’s handling of religion, they can work to change the law, or move to another state. And the specter of a state sponsored church is prevented by the fact that nearly every state now has a similar provision in its state Bill of Rights protecting freedom of religion.
Do I believe each state should have a state religion like a state bird? No. But each state should have the right to erect religious monuments and ceremonial items, like crèches and menorahs, on state property without fear of an ill-conceived ruling from a federal judge who has no business even hearing the case.
In Heller and McDonald, the NRA argued for incorporation of the Second Amendment and the Supremes agreed. Sound good, right? But consider this: the Court essentially moved authority for regulating firearms to the Federal government. It won’t happen overnight, but it will happen. We will end up with one set of Federal laws that severely limit the inherent right to own firearms for self-protection. Do you really want the likes of Nancy Pelosi creating gun policy? The phrase “be careful what you ask for, because you might get it” keeps coming to mind.
The list of incidences where liberty has been lost because of incorporation is unending. The loss of your ability to govern at the local level is the real result of incorporation. Our states and localities should be 50 laboratories of change. Each state should have the ability to create its own “Utopia,” and its residents the ability to choose which state is best for them. Or work to change the local laws.
I suggest you break out your pocket edition of the Constitution, read the 14th Amendment and each of the first ten amendments. Make a list of the losses of liberty at the local level caused by incorporation. I think you will be surprised.
Remember, when lawmaking, and control of our lives, happens in a far away location, we lose the ability to rule ourselves and exercise self determination. Incorporation moves all lawmaking to Washington, DC, where common sense and liberty go to die.
Latest posts by Philip Bernhardt (see all)
- State Legislatures Strengthen the Constitution Via Nullification - June 17, 2013
- Why Incorporation is Bad - May 28, 2013
- Federal and state politicians: Not so hot - November 6, 2012