Incorporation

I am not a constitutional scholar (although I suspect I may know more about it than BHO). So some of the debate that I am hearing is a little over my head.

More particularly, ?just what does “incorporatioin” mean, when referring to the constitution. MY sense is that it means that something is essential in the constitution, given to the Fed, so not usupable by states (or other government entities).

But I also understand that when the constitution was written, it was intended to be directly applicable to the fed ONLY, and that states, other than specific banned actions (making foreign treaties, taxing goods across their state line, etc.) were free to decide whatever they wished on these matters. So the Bill Of Rights is NOT incorporated, but only speaks to what the federal government can or cannot do. Thus, by way of example, the states are NOT enjoined from creating a state religion, and indeed, Massachussetts did originally, only removing it some years later.

Somehow the 14th changed all that. But I am at a loss to understand just how that happened. The 14th eradicated any discrimination by virtue of skin colour, and gave the right to vote to all. ?Where does all the rest of this nonsense come from (other than thin air).

?So is someone better versed in this than I. ?Titus – anything in your area of expertise. I understand that the SCOTUS has now pretty much decided that the whole constitution is incorporated, but then fails to hold the appropriate level of scrutiny for such things as guns.

Help!

Bookmark the permalink.

14 Responses to Incorporation

  1. NandaNanda says:

    Agree that these are deep waters, Dev; am embarking on some suggested reading, but I, like you welcome the knowledge of others.

  2. AdministratorAdministrator says:

    You’re not crazy. The situation is.

    This is why facts do not matter and words have no meaning. You can be right all night long, and they still shoot you at dawn.

    Only power matters. Not because its right. That’s just the way it is.

  3. titus says:

    Hello, all, I think I can offer a bit of an explanation: A14 is said to have incorporated within itself the bill of rights, such that A1-10 are applied to the states as well. Not all of the Bill of Rights was incorporated automatically or instantly after passage–I’ll do some talking about the text (2), the legal history (3), & the political problem facing SCOTUS (4). I hope this will clarify the matter somewhat…

    1.But first, what’s it to us? As conservatives, we kind of like this doctrine of incorporation when it’s about freedom of speech; really like it when it’s religious freedom; & really like it even more than is reasonable when it’s freedom to own & bear guns. Americans stand on the ground of A14 then! Other times, we do not like it so much.

    Then again, it really is abused, this doctrine of incorporation of A1-10 within A14–& there is nothing in it to nationalize marriage, for example, to say nothing of many other things.

    2.Now, to the textual analysis, my friends: A14:
    Section 1. All persons born or naturalized in the United States, & subject to the jurisdiction thereof, are citizens of the United States & of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    It is this equal protection clause at the end, & also the privileges & immunities clause preceding it, that matters. This means that the rights of US citizens become rights as state citizens, so that what rights citizens had against the federal government they have against the state government.

    This is supposed to limit gov’t power, which is why we like it, when it works. But it creates a kind of problem–it emphasizes the individualism of individual rights against any form of community even at the state level, so it tends to make people look to their rights & to the courts for solutions to their problems instead of trying to form coalitions & alliances for political purposes…

    So that if DC or NY decide insanely to disarm the population, they cannot do that anymore…

    3.Now, to the legal history. SCOTUS did not use A14 right when it was adopted, & only started to apply incorporation in the early 20th c. SCOTUS has been incorporation within A14 more & more of the Bill of Rights & whatever else it can. Weirdest of all, as opposed to the opinion I offered you about the EP & P&I clauses, this incorporation was done through the Due Process clause. American jurisprudence has a lifetime’s worth of headaches for anyone who wants to understand & fix what’s been done to Due Process, but we need not get into that. I think common sense should have ruled SCOTUS, instead of this fancy & increasingly freewheeling interpretation of A14.

    I can explain at least part of the reluctance of SCOTUS to take seriously the serious provisions of A14 s1: Lawyers are bigger on due process talk, because process is what they do, than they are on fighting the political branches over abuses to citizens.

    4.Even these days, mostly the harm SCOTUS does is in it servitude to the federal government. It is not some kind of rebellion against it. It is a reasonable fear of popular anger & a reluctance to confront the enormous being of the state, because ruling the New Deal state unconstitutional is simply too dangerous. SCOTUS seems to think, at its best, that this is a problem for the people, not for judges. At its worst, SCOTUS seems to think it should go along with–even in front of, at times!–the federal gov’t, in its march to take over everything that might be taken over in the quest to give people everything they might want. Except freedom–the government will give you everything except the peace of being left alone.

  4. AdministratorAdministrator says:

    Dev: “I am not a constitutional scholar (although I suspect I may know more about it than BHO).”
    I suspect you also know more than several Supreme Court Justices.

  5. DevereauxDevereaux says:

    Thank you, Titus, for the commentary.

    I, without a lot of scholarly examination, read the constitution to be plain English and to mean what it says. So 2A says we are free of ANY government interference in holding weaponry. But we aren’t. Indeed, NFA 1934 made having “unregistered” automatic weapons illegal, and since then the government has been consistently and steadily trying to eliminate all autos from private hands. So, in its latest effort, it ruled that no more auto M16/15’s what have you can be produced. Old “unregistered” autos discovered are destroyed, rather than entering the market.

    In a similar way, I read the 14th to have been a restriction against states creating 2-tier legal systems and not giving all citizens all the federal rights, as noted in the Bill of Rights. Now we get this convoluted “thinking”.

    It is of note that only 6 states passed SSM law. All the others of the 33 were judicial fiat. The ruling that “equal protection” applies to something that is not equal is silly on its face.

    The OTHER issue that this ruling brings is that it will, AGAIN, divide the nation as RvW did. Prior to that there were states that allowed abortion and those that didn’t. No one got particularly hot and bothered over it. Just like SSM. Perhaps over time more and more states would have moved towards acceptance of this, even though there are serious arguments against it. But all this will do is create trench warfare over the issue.

  6. titus says:

    1. Your reading of A2 is at least strange: First, restrictions have never been held to be simply unconstitutional, so you’ve got everyone including the people who wrote the bill of rights & ratified it to reckon with. Secondly, it is an amendment to the federal constitution: It concerns rights against the federal gov’t primarily & powers of the federal gov’t. The states are treated as states–as in A14 &c.

    A14 was adopted precisely because the states had other restrictions than the federal ones & federal protections were not applied to that states from the Founding through A14 for voting & in all sorts of cases far later into the 20th c.

    The laws in the states sometimes precede the federal constitution, of course!

    2. Yes, the judicial ruling is silly & unacceptable in a democratic republic. Yes, most states actually modified their constitutions to prohibit SSM. That is constitutional. Marriage, also, has always been a state rather than a federal matter.

    3. Yes, this advances the conflict between conservatives & progressives. I hope conservatives understand that this is a political conflict that depends ultimately on persuading the people. This is really difficult: It was difficult before the Civil War, too. In this case, there is no need for armed conflict, but the same work of coalition building & changing opinions & being respectful of the people is necessary.

  7. DevereauxDevereaux says:

    2A states rather categorically that the people’s right to keep and bear arms shall not be restricted. There are no restrictions to type, etc. And if 14A incorporates 1-10, then the states likewise are banned from restricting the keeping and bearing of arms.

    So far, generally the court has upheld this. But the areas have been thin. So there is no “ruling” on what the state CAN bad, even though no bans are technically allowed by the words of 2A.

    Automatic weapons were held by civilians until the NFA of 1934. There was one case about it that went to the SCOTUS but the plaintiff had died by the time it arrived, and the court held (wrongly, as might be expected) that since “sawed off shotguns” had no military use (guess they never saw a Winchester 1897 Trench Model, complete with a bayonet lug), the case was tossed. But note the reasoning was that the weapon in question had no military use. On that reasoning alone, all automatic rifles and submachine guns are not only allowed by should be unrestricted. The right of the government to limit, tax (excessively), and otherwise place impediments to ownership ought not be constitutional.

    The common argument is that such weapons were not envisioned back in the days. That is false. Lewis or Lewis and Clark fame carried a pellet gun that was capable of not only automatic fire by killing at a significant distance. No one ever thought an American could not own a Spencer or Gatling Gun in its day, nor cannon, which were commonly purchased privately for various uses, including arming privateers. So if you can afford it there is no reason you shouldn’t be able to own just about anything. ?Want a destroyer – just buy one. Not sure what you would use it for, but you certainly wouldn’t have to worry about being jumped by pirates in the South China Sea in one of those. ALL these “restrictions” are liberal hogwash based on our “SAFETY”, the standard line when they want something.

    So I don’t find my stance on 2A strange at all. At least not historically. It only seems strange if you accept the modern noise about 2A, which is not substantiated by any history.

  8. DevereauxDevereaux says:

    There is little doubt that this fight, and the whole Left-Right fight is political. There is also little doubt that the current “conservative” leaders don’t really want to fight.

    I have heard elsewhere (JoE) that shutting down the government would be “disastrous”. That is ONLY true if you don’t OWN it right from the start. Boldness and openness go a long way.

    Take the position right from scratch that YOU (House) have the power of the purse, and that if the president refuses to come to compromise, then, indeed, we WILL shut down the government. AND no back pay for the workers who are out. They can blame that on their president. Make it “loud and proud” as the gays say. It would go a long way to define the fight.

  9. titus says:

    1. A2 did not originally apply to the states. It did not say it did–the Constitution is for the federal gov’t, not for the states gov’ts–so, too, the amendments. When some constitutional provision is meant to limit the states, it says so. (Like the ban on states involving themselves in foreign affairs: That’s exclusively a federal matter.)

    A14 did incorporate the Bill of Rights, but this does not mean no restrictions can be placed. Rights do not exist in politics without laws & laws have got to be the result of political deliberation & the public consent expressed through voting for parties or politicians or initiatives… I do not believe any gov’t in America can disarm the population outright, but I don’t think bans on machine guns are necessarily unconstitutional–or whatever terrifying weaponry. I certainly do not believe A2 means any citizen can build, say, a robot army legally.

    If you want to build a bomb in your house, I cannot find any justification for that under the laws.

    But even with less fantastic examples–people in their political assemblies have got to have the freedom to make laws defining the constitutional rights. The courts are there to throw out laws like explicit bans–because they go too far. Otherwise, constitutional rights really are flexible in legislation & they have no power at all without legislation. (Except, of course, that the people have a right to revolution.)

    I’m not sure what you can do to buy a destroyer–but I’m sure the gov’t could reasonably curtail that through its power to deal with foreign affairs & the treaty power.

    Or think about this–can citizens be allowed to exercise the rights you conceive of by making of buying weaponry & selling it to enemy countries in war? Or do you think political limits on constitutional rights have at least some legitimacy?

    The problem is not what weaponry was envisioned in 1787 or whenever. The problem is whether legislatures throughout the land have the power to legislate or an American citizen can walk dressed in weapons in any public space in the country. That may sound like a caricature, but it gets to the basic conflict between self-gov’t, which requires gov’t & laws & deliberation, & individual rights.

    I’m sorry I do not have examples of laws that ban or limit guns that have been held to be constitutional for a long time. But think about this: Can the gov’t legally ban citizens who are convicted felons from exercising any A2 rights?

  10. DevereauxDevereaux says:

    Titus, I think you and I have a basically differing view of our country, how it was founded, and on what principles.

    You make a comment about building a bomb. One does not have to justify to the government why one does or has something. It is, instead, up to the government to show overwhelming reason that one’s rights should be curtailed, and then only in the most limited way.

    So your comment about felons is spot on. They are citizens, and have committed a crime, for which they have paid society its due, per law. They have no reason to have their rights as a citizen taken away once they have left prison. This whole thing about making it illegal for a felon to OWN a gun is stupid. Perhaps he really DOES have a reason to defend himself. One should not be stripped of the right of self-defense.

    This problem comes from bad law. One should not go after things but rather actions. Thus one can own a firearm, but murder, armed robbery, etc are STILL illegal. One can even pass law that says that if you commit a felony with a firearm, the penalty is greater. Or with a stolen firearm.

    Note that felons seem to get guns all they want. No one is actually curtailed from such ownership. It is still one’s actions that ought to be the target of law. This was once understood, but the progressives have infused “feeling” into what ought to be simple fact. So we have “hate crime”. ?What in the world is hate crime other than thought crime that one doesn’t like. 1st degree murder is 1st degree murder, no matter whether you loved, hated, or didn’t care about the victim.

  11. NandaNanda says:

    We need an “up-vote” or “Like” button, pretty please?

Leave a Reply