In this episode of Thoughts from Maharrey Head, I explain the incorporation doctrine and the original intent of the 14th Amendment.Details
I’m pleased to report that this past week the brilliant Justice Clarence Thomas cited my work on the Necessary and Proper Clause in his concurring opinion in Town of Greece v. Galloway, an Establishment Clause case that received wide publicity. This was the thirteenth citation in the third Supreme Court case in the past 11 months.Details
The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people.Details
A Review of Timothy Sandefur’s The Conscience of the ConstitutionDetails
Recently a Federal Judge, Shira Scheindlin, declared the New York City Police departments “Stop and Frisk” procedure Un-Constitutional and called for a federal monitor to watch over the police department to ensure Police Officers are in compliance with the constitution.
This happened without a peep of protest from any New York State elected official, Judge or lawyer.
You would think that Governor Cuomo would be at the fore of the angry protest against Federal intrusion into what is clearly a State Police power. Where does Justice Scheindlin believe her authority to rule on this matter come from? Not the United States Constitution.
The “Stop and Frisk” procedure is clearly un-Constitutional, however, it is the New York State Constitution that matters.Details
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.Details