In case you're still not clear what all this talk in the hearings today is about "incorporation," check out my previous posts on the matter. Bottom line is that it's the way the Court has decided whether to force states to respect our rights as U.S. citizens, and it is coming up primarily in regard to the Second Amendment and the court's recent decision in DC v. Heller, which recognized a federal (but not state) right to keep and bear arms.
Cross-posted on <pudge/*>.
Posted by pudge at July 14, 2009 02:06 PM | Email This
Incorporation involves applying provisions in the bill of rights ... to limit the actions of state governments
It's not only the Bill of Rights, it's all "privileges and immunities" of U.S. citizens.
The Supreme Court, in a series of cases, decided that the meat on these meager bones includes several rights in the first ten amendments.
Our Second Amendment rights have never been incorporated by the Supreme Court. Neither has our right to a grand jury, or our right against forced quartering of troops.
Second, and far more substantively, incorporation does not take place through the Fourteenth Amendment's Privileges or Immunities Clause (You said Privileges AND immunities, but that phrase appears in Article IV, not in the Amendment.) And in either event, The Slaughter House Cases, 83 U.S. 36 (1873), specifically held that no rights were incorporated against the states through the Privileges or Immunities Clause.
It was not until Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897) that the Takings Clause was applied against states, and not until Twining v. New Jersey, 211 U.S. 78 (1908) that the Court made clear it was incorporating by using the Due Process Clause.
Either way, Judge Sotomayor was woefully wrong when she said that the Second Amendment should not be incorporated, and she is simply incorrect that a right is deemed fundamental because it has been incorporated. It is the other way around: rights are incorporated because they are fundamental. Her failure to understand this ought to diqualify her.
Posted by: Paul G on July 15, 2009 04:29 PM... in regard to rights of the citizens of the U.S. Which is another way of saying whether states can be forced to respect our rights as U.S. citizens.
Second, and far more substantively, incorporation does not take place through the Fourteenth Amendment's Privileges or Immunities Clause
First, that is a matter of debate, actually. It's true the Supreme Court mostly does it through Due Process currently, but it is generally accepted that the original intent of the 14th Amendment absolutely did require the states, through Privileges or Immunities, to respect our rights, such that would require "total incorporation" rather than "selective incorporation."
Second, I did not say that until after you said I was "not quite correct," so you're not quite correct in giving this as your answer to my question.
(You said Privileges AND immunities, but that phrase appears in Article IV, not in the Amendment.)
Irrelevant point, of course, as a. I was not saying that language was in the amendment, and b. the difference is one without a distinction of any sort. The only reason "and" is one and "or" the other is because of the change of the linguistic context, not to denote any change in meaning.
And in either event, The Slaughter House Cases, 83 U.S. 36 (1873), specifically held that no rights were incorporated against the states through the Privileges or Immunities Clause.
No, it didn't, actually. That's a common misunderstanding: it in fact only held that the rights in question -- which were not among those enumerated in the Bill of Rights -- could not be forced on the states.
And it is nonsense on its face to believe this interpretation of the 14th. It renders that clause utterly meaningless; it denies the clear and plain meaning of the words; and it denies the historical record demonstrating the intent of the words. Everything about it is clear.
Disagree with me if you like, but Justice Hugo Black wrote all this long before I did -- that the history and plain language of "privileges or immunities" requires total incorporation of the Bill of Rights, that any other reading renders the phrase meaningless -- so let's not pretend my view isn't right, unless you're prepared to argue against him, too. And that could be fun ...
Either way, Judge Sotomayor was woefully wrong when she said that the Second Amendment should not be incorporated
She didn't say that, in my view. She said that it is the province of the Supreme Court to do so, and that it has not done so. I got no indication from what she said that were she on the Court, she would be against incorporation.
... and she is simply incorrect that a right is deemed fundamental because it has been incorporated. It is the other way around: rights are incorporated because they are fundamental.
Well, again, they are incorporated because the Supreme Court incorporates them. Justice Frankfurter (who unfortunately fathered this hideous doctrine) said that the standard for incorporation is not what is "fundamental" but what would "shock the conscience" if violated. But who decides that? Once again we come back to one of my favorite topics, Rule of Law vs. Rule of Man (which I discussed in my other post about Sotomayor yesterday).
You recall when Sotomayor was bashed on her comment about law being "unpredictable"? That is selective incorporation in a nutshell. The law clearly says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Second Amendment -- being in the federal Constitution -- clearly is such a privilege. Therefore, the states cannot make or enforce a law violating that right.
But selective incorporation says that it does not become applicable to the states until the Court says so. Utterly insane, and I think that when this does come up, it will finally be killed, forever and ever amen. What would be a shame is if it was only a 5-4 vote.
Yes. It never should have existed and it should die, and there's a good chance it will. There's even anti-gun liberals lining up to help the Second Amendment incorporation cases (in amicus briefs) to kill it off.
And that means all constitutional restrictions on the legislature on congress should also apply to states?
What other changes would fall from this? You've named a right to bear arms, a right to a grand jury, and a right again quartering.
Posted by: John Jensen on July 15, 2009 06:26 PMNo, it means all privileges and immunities of U.S. citizens must be respected by the states. It's not necessarily all constitutional restrictions on Congress; for example, obviously, the restriction on Congress in the Tenth Amendment would not be a restriction on the States (since it specifically reserves power TO the states, and to the people, respectively).
And when we're talking about the first eight amendment of the Bill of Rights -- which is what we are selectively or fully incorporating -- also included would be right to trial in civil cases, and protection against excessive bail and fines.
There's also a few other rights that are not quite clear, such as the right to petition for redress of grievances, which has never been explicitly incorporated, but has been largely assumed to be.
So some liberals want in on killing selective incorporation because of those legal system issues (right to civil trial, grand jury, freedom from excessive bail and fines). But some also believe that by striking down selective incorporation, it will pave the way to further restrictions on the states ... for example, a federal right to gay marriage would then apply to the states. That's obviously less clear, but it's the hope some have.