The Incorporation Doctrine

[Gdjjr]

When you turn to federal courts to protect your liberty from state actions, you’re playing a game of Russian roulette with five bullets loaded into your six-shooter.

But hey- what does the constitution mean anyway?


It's all good- until

 

[justinacolmena]

I don't like the Socialists, the Trade Unionists, or the city hall Judaism they enforce on us: I don't know what dope they are smoking, but I'd be coming for them if no one else were.

The "Incorporation Doctrine" holds that our Constitutional rights are null and void unless and until the courts explicitly "incorporate" them into actual case law — and that the courts have the discretion to deny and refuse to "incorporate" a Constitutional amendment, even after it has been duly proposed and ratified in accordance with the original Constitution.

 

[MadChemist]

I don't like the Socialists, the Trade Unionists, or the city hall Judaism they enforce on us: I don't know what dope they are smoking, but I'd be coming for them if no one else were.

The "Incorporation Doctrine" holds that our Constitutional rights are null and void unless and until the courts explicitly "incorporate" them into actual case law — and that the courts have the discretion to deny and refuse to "incorporate" a Constitutional amendment, even after it has been duly proposed and ratified in accordance with the original Constitution.

It was my understanding that the doctrine of incorporation or selective incorporation holds that the bill of rights are essentially applicable at the state level (or must be incorporated at the state level).

This is from the article in the OP:

The federal courts enforce the Bill of Rights on the states today through a legal framework known as the incorporation doctrine.

In a nutshell, the Supreme Court invented the incorporation doctrine through the 14th Amendment. It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than 50 years after the ratification of the amendment.

 

[Tom Paine 1949]

Well, I think incorporation of most (still not all) of the Bill of Rights (first 10 amendments) is hardly a surprising matter. Nor was it arbitrary. In fact all parts of our Constitution and its application to the states in our federal system have been worked out via precedents and court rulings over time.

What people don’t generally realize is that the 14th Amendment was not used as originally intended to guarantee basic liberty rights to the oppressed newly freed slaves, guaranteeing them full citizens’ rights like other Americans supposedly had (this was specifically repudiated by the courts), but in fact it was not even applied generally to other European-derived Americans. Many “Bill of Rights” liberties we cherish today certainly were not permitted in the 19th Century and first half of the 20th century. The courts applied (via incorporation) the 14th Amendment and other aspects of the Constitution (like the Bill of Rights) only gradually and incompletely to individuals living real lives under state laws.

The 14th Amendment (and other parts of the Constitution) were first used in federal courts in the 19th century to limit absolute “states rights” to deny primarily economic rights of interstate corporations. It was the development of railroads, interstate commerce, and the need to rationalize “due process” for these powerful corporations that changed society in ways that gradually but inevitably led to the incorporation of the Bill of Rights and more centralizing interpretations of the Constitution. The first limited “Bill of Rights incorporation” to pure individuals (not officers of corporations), was much later in the 20th Century.

Today, even most conservatives would be upset if incorporation were reversed in commercial rights areas, and also probably in individual rights areas like “the right to bear arms.” A complicated history, indeed.

 

[Olde Europe]

Well, I think incorporation of most (still not all) of the Bill of Rights (first 10 amendments) is hardly a surprising matter. Nor was it arbitrary. In fact all parts of our Constitution and its application to the states in our federal system have been worked out via precedents and court rulings over time.

What people don’t generally realize is that the 14th Amendment was not used as originally intended to guarantee basic liberty rights to the oppressed newly freed slaves, guaranteeing them full citizens’ rights like other Americans supposedly had (this was specifically repudiated by the courts), but in fact it was not even applied generally to other European-derived Americans. Many “Bill of Rights” liberties we cherish today certainly were not permitted in the 19th Century and first half of the 20th century. The courts applied (via incorporation) the 14th Amendment and other aspects of the Constitution (like the Bill of Rights) only gradually and incompletely to individuals living real lives under state laws.

The 14th Amendment (and other parts of the Constitution) were first used in federal courts in the 19th century to limit absolute “states rights” to deny primarily economic rights of interstate corporations. It was the development of railroads, interstate commerce, and the need to rationalize “due process” for these powerful corporations that changed society in ways that gradually but inevitably led to the incorporation of the Bill of Rights and more centralizing interpretations of the Constitution. The first limited “Bill of Rights incorporation” to pure individuals (not officers of corporations), was much later in the 20th Century.

Today, even most conservatives would be upset if incorporation were reversed in commercial rights areas, and also probably in individual rights areas like “the right to bear arms.” A complicated history, indeed.

That looks like a pithy and very accurate account to me.

Today, even most conservatives would be upset if incorporation were reversed in commercial rights areas, and also probably in individual rights areas like “the right to bear arms.” A complicated history, indeed.[/QUOTE]

Anyway, the history of it is even more complicated than that insofar as the main vehicle of incorporation are the Civil War Amendments. These are also the target of the most reactionary right, unmistakably placing them as the true inheritors of the treasonous insurrectionists and the Jim Crow era. That's while they also try to besmirch the current-day Democrats with their pre-WW II history, while also embracing that exact history in the form of statues honoring the main treasonous figures fighting, and losing, on the wrong side of history. If you are a fan of pretzels and other mendacious intellectual gymnastics, you got to marvel at that one.

Still, corporate and other rightarded propagandists informing their marks that they (the marks) need no stinking Bill of Rights protections against corrupt, criminal State or local authorities is quite a sight to behold, for these protections somehow are destructive to the Constitutional framework. Or so they tell the marks. Hilarity ensues upon watching these marks faithfully re-bleating the message. Because liberty, or something...

 

[justinacolmena]

In a nutshell,

We don't do nutshells in court.

It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than 50 years after the ratification of the amendment

The due process of law had better be substantive, and you had better believe it is neither dubious not invented out of thin air. The 5th Amendment holds that "No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." There is no room for exception here; when the Fifth Amendment was duly proposed by a 2/3 majority of both houses of Congress, and duly ratified by the legislatures of 3/4 of the states then in existence, it became fully as part of the Constitution as the original document.

 

[danielpalos]

I don't like the Socialists, the Trade Unionists, or the city hall Judaism they enforce on us: I don't know what dope they are smoking, but I'd be coming for them if no one else were.

The "Incorporation Doctrine" holds that our Constitutional rights are null and void unless and until the courts explicitly "incorporate" them into actual case law — and that the courts have the discretion to deny and refuse to "incorporate" a Constitutional amendment, even after it has been duly proposed and ratified in accordance with the original Constitution.

It was my understanding that the doctrine of incorporation or selective incorporation holds that the bill of rights are essentially applicable at the state level (or must be incorporated at the state level).

This is from the article in the OP:

The federal courts enforce the Bill of Rights on the states today through a legal framework known as the incorporation doctrine.

In a nutshell, the Supreme Court invented the incorporation doctrine through the 14th Amendment. It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than 50 years after the ratification of the amendment.

States have their own equivalent to our Bill of Rights.

 

[Disir]

I love how the author says while individual rights might sound good, it really isn't.

Except it is. I absolutely support the incorporation doctrine. It didn't break the constitution by any means.
At this point, I wouldn't trust the States to protect my rights and anymore so than the Federal government.

 

[danielpalos]

I love how the author says while individual rights might sound good, it really isn't.

Except it is. I absolutely support the incorporation doctrine. It didn't break the constitution by any means.
At this point, I wouldn't trust the States to protect my rights and anymore so than the Federal government.

The federal government had to go to Guantanamo because natural rights are recognized by State Constitutions.

 

[MadChemist]

Incorporation certainly wasn't seen as inevitable.

As I understand it, most state constitutions have something akin to the 2nd amendment in them also.

Gun Control | Pros, Cons, Debate, Arguments, Firearms, Laws, Safety, Gun Rights, & Death | Britannica

Should More Gun Control Laws Be Enacted?

gun-control.procon.org

This would mean that states understood the 2nd amendment to apply only to the federal government (with regard to restricting the right to bear arms).

They wanted to protect that right at the state level also.

This was Alabama (per the site I linked above.

“That every citizen has a right to bear arms in defense of himself and state.”

I personally, am not a fan of incorporation for a number of reasons.

The first of which is that it was derived by the SCOTUS and was not voted upon by the states (and their citizens). If they wanted the protection afforded them by the constitution from the federal government....they could ammend their constitutions.

 

[justinacolmena]

As I understand it, most state constitutions have something akin to the 2nd amendment in them also.

Lose that "incorporation" bullshit. It's straight out of the H.R. department at a Fortune 500 multinational company.

The Constitution of the United States: A Transcription

Note: The following text is a transcription of the Constitution as it was inscribed by Jacob Shallus on parchment (the document on display in the Rotunda at the National Archives Museum.) The spelling and punctuation reflect the original.

www.archives.gov

>>>This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

>>>The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

>>>... Amendments, which, ... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, ...<<<

 

[MadChemist]

As I understand it, most state constitutions have something akin to the 2nd amendment in them also.

Lose that "incorporation" bullshit. It's straight out of the H.R. department at a Fortune 500 multinational company.

The Constitution of the United States: A Transcription

Note: The following text is a transcription of the Constitution as it was inscribed by Jacob Shallus on parchment (the document on display in the Rotunda at the National Archives Museum.) The spelling and punctuation reflect the original.

www.archives.gov

>>>This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

>>>The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

>>>... Amendments, which, ... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, ...<<<

I don't understand your argument.

Sorry.

 

[justinacolmena]

I don't understand your argument.

Sorry.

So you're a drugger, and you're in favor of a "heavy thieves' district" without respect to the U.S. Constitution.

 

[MadChemist]

I don't understand your argument.

Sorry.

So you're a drugger, and you're in favor of a "heavy thieves' district" without respect to the U.S. Constitution.

How did you get that from my comment.

 

[Gdjjr]

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and 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.

Immunities and privileges can be rescinded- inherent rights can only be ignored or restricted-