The latest fight over the next Supreme Court justice and the abject hysteria on display from both sides of the political aisle reveal yet another flaw in the incorporation doctrine. It has vested Supreme Court justices with nearly unlimited power and elevated them to the status of political demi-gods.

The incorporation doctrine is the dubious Supreme Court interpretation of the 14th Amendment that applies the Bill of Rights to the states.

A lot of people believe that the Bill of Rights always applied to state and local governments. This is simply not true. The Bill of Rights was never intended to bind the actions of state governments. 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.

In theory, the incorporation sounds like a good idea. It empowers the federal courts to protect our liberties from state and local tyranny turning the federal judiciary into a “liberty enforcement squad.” But in effect, it has centralized even more power in the federal government and turned the Supreme Court into an almost all-powerful body dictating policy at the state and local level. It has also completely wrecked the original constitutional system.

No sane political system would vest this much power into a panel of nine unelected, politically-connected lawyers.

The rhetoric surrounding the selection of the next justice reveals the flaw in this system. In a world where the Supreme Court wields so much power, the appointment of a new judge becomes a matter of the utmost importance. The hyperbole has already risen to the level of “this is life or death.”

The political stakes are certainly high. Armed with its self-proclaimed legal mandate, the High Court has dictated abortion policy, regulated displays in local parks, eroded the right to keep and bear arms, endowed local cops with almost complete immunity, micromanaged local zoning, whittled away the right to privacy, and injected its opinion into countless matters of local concern. Supreme Court justices make decisions on local issues and then impose them across the entire United States by the precedent.

You may approve of some of the Court’s opinions and disapprove of others. Regardless, a small panel of lawyers should not have the authority to dictate state and local policies and the concerns of over 320 million people. In practice, incorporation has created a power monopoly. Monopolies rarely play out well for the average person.

State and local governments certainly enact policies antithetical to liberty. But concentrating power at an even higher level isn’t the solution. In fact, consolidating and centralizing power is the biggest long-term threat to liberty.

This was the prevailing view during the founding of the United States and the reason the Philadelphia Convention didn’t vest the new general government with extensive authority but limited it to a few specifically delegated powers.

The founding generation warned us over and over again about consolidating the states into a single national government. It was the greatest fear voiced by opponents of the Constitution during ratification and was a prime reason for the inclusion of the Bill of Rights.

During the Massachusetts ratifying convention, delegate Fisher Ames asserted that “a consolidation of the States would subvert the new Constitution.” And during the Virginia ratifying convention, Patrick Henry warned, “Consolidation must end in the destruction of our liberties.”

“When he asks my opinion of consolidation, of one power to reign over America with a strong hand, I will tell him I am persuaded of the rectitude of my honorable friend’s opinion, (Mr. Mason,) that one government cannot reign over so extensive a country as this is, without absolute despotism. Compared to such a consolidation, small confederacies are little evils; though they ought to be recurred to but in case of necessity.”

Supporters of the Constitution didn’t defend consolidation. They acknowledged its danger and swore it would never happen. In Federalist #32, Alexander Hamilton wrote:

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

This was born out of practical concern. As Thomas Jefferson opined, the country is too big to be ruled by a single government.

“Our country is too large to have all its affairs directed by a single [federal] government. Public servants at such a distance, and from under the eye of their constituents, must, from the circumstance of distance, be unable to administer and overlook all the details necessary for the good government of the citizens and…will invite the public agents to corruption, plunder, and waste.”

The incorporation doctrine did what Hamilton promised wouldn’t happen. It effectively obliterated state sovereignty and consolidated the states into a single national government.

Even worse, it has vested the most power in the most unaccountable branch of the federal government. Congress and the president are accountable to the people through the ballot box. The Supreme Court is accountable to no one.

This is just another example of the failure of the incorporation doctrine to protect liberty. It sounds good in theory. But in effect, it has centralized even more authority at the federal level and given nine politically connected lawyers far too much power.

Thomas Jefferson warned that this would lead to despotism in a letter to William Charles Jarvis.

 “You seem to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy.” [Emphasis added]

And here we are.


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