The Supreme Court has become the biggest battleground in American politics. Every SCOTUS nomination inevitably devolves into a tooth-and-nail partisan fight. Supreme Court politics worm their way into every presidential election.

Ilya Shapiro serves as Cato Institute vice president and director of the Robert A. Levy Center for Constitutional Studies, and he testified before a Presidential Commission on the Supreme Court to share views on what kind of reforms need to be made to the High Court.

In a post on the CATO blog, Shapiro makes a pretty astute observation about the root cause of these ongoing “judicial wars.”

Simply put: the Court does too much.

“The reason for our judicial wars isn’t that the Court is partisan or that the confirmation process is broken, but that the federal government—and thus the Supreme Court—is making too many decisions for such a large, diverse and pluralistic country. And that problem is far beyond anything a blue-ribbon presidential commission can fix.”

Most conservatives and libertarians will nod in agreement with Shapiro’s assessment. But they fail to recognize their own contribution to the problem. Conservative and libertarian legal scholars never seem to point out how the constitutionally dubious incorporation doctrine has turned every tiny local issue into a national issue – to be decided by federal courts – for everyone.

The incorporation doctrine applies the limits on the federal government found in the Bill of Rights to state and local governments through the 14th Amendment. In effect, this legal doctrine empowers the Supreme Court to legally nullify state and local actions by judicial decree. This is how federal courts have been able to force cities to remove Christmas displays from local parks and create a system of qualified immunity shielding local cops from prosecution.

Arguments that the 14th Amendment intended to apply the Bill of Rights to the states rest on very thin evidence. Supporters of the amendment during ratification argued that it merely constitutionalized the Civil Rights Act of 1866.

Regardless, using the incorporation doctrine to turn every little issue into a federal case is a bad strategy for anybody interested in minimizing the scope of federal power. It invites the feds to intervene in the most minute aspects of life. This is a prime reason we have the SCOTUS “making too many decisions for such a large, diverse and pluralistic country,” as Shapiro rightly observes.

“The ever-expanding size and scope of the federal government have increased the number and complexity of issues under Washington’s control, while the collection of those new federal powers into the administrative state has transferred ultimate decision-making authority to the courts. The imbalance between the executive branch and Congress has made the Supreme Court the decider both of controversial social issues and complex policy disputes.”

But while Shapiro bemoans the “collection of new federal powers, ” he avidly supports the incorporation doctrine. In a paper on the 14th Amendment’s privileges and immunities clause, Shapiro pointed out, “On the eve of oral arguments in McDonald, we urged the Supreme Court to apply the right to arms against the states through the Privileges or Immunities Clause.” In other words, he wants federal courts to oversee state and local gun laws.

So, on the one hand, Shapiro bemoans the “increased number and complexity of issues under Washington’s control,”  but he also wants the federal courts to micromanage gun laws at the state and local level.

This will almost certainly end in disaster for gun owners. Just look at how federal courts have eviscerated the Fourth Amendment, creating all kinds of exceptions to the warrant requirement that now apply in every jurisdiction in the United States thanks to incorporation.

In fact, as Suzanne Sherman pointed out, the McDonald decision that Shapiro pushed for was ultimately an originalism failure and sows the seeds to erode the Second Amendment limits on regulating firearms. When this happens, the incorporation doctrine will allow federal courts to apply whatever exceptions and loopholes they find in the Second to every jurisdiction in the country.

Shapiro and others like him make the mistake of assuming they can harness federal power for their own purposes. They want the federal courts to impose their view of liberty from the bench. Not only will this almost certainly fail – federal judges have little interest in individual liberty – but it will also further expand the federal government’s reach as the Court wades into more and more state and local issues under the auspices of enforcing the Bill of Rights.

The incorporation doctrine perpetuates exactly what Shapiro accurately pinpoints as the problem with the federal court system today – it’s involved in too much. While it may seem like they are asking the federal bench to limit federal power, they are really expanding power by giving them the authority to decide to begin with.

Even while supporting incorporation, the biggest expansion of federal power in history, Shapiro laments the ever-expanding role of federal courts.

 “The Court rules on so many controversies that political battles are unavoidable. Under the Framers’ Constitution, the Court hardly ever had to block a federal law. But as the Court let the government grow, so has its own power to police the programs that its own jurisprudence enabled. In that light, modern confirmation battles are a logical response to political incentives, to which senators are merely responding.”

It’s important to understand that under the framer’s constitution, the federal government had virtually no power to block a state or local law. In fact, James Madison proposed a federal veto over state laws during the Philadelphia Convention. That idea was soundly rejected.

Madison also proposed that some provisions of the Bill of Rights should apply to the states. That was also rejected. So, if we want to talk about a massive expansion of federal power, we only need to look as far as the incorporation doctrine.

There is an alternative – fight state and local government overreach at the state level. Every state constitution includes a bill of rights that restrains state government actions. Instead of running to the federal courts with every single issue and perpetually expanding federal power, keep it in state courts under the state constitutions.

Of course, that raises the question: what do you do when the state courts fail to protect liberty? And I can ask the very same question of the federal courts – and they have a pretty crappy track record when it actually comes to limiting government power. The difference is when a state court gets it wrong, it only applies to the people in that state. When the SCOTUS gets it wrong, its bad decision generally gets imposed on everybody.

The bottom line is you can’t have it both ways. You can’t make everything a federal case and simultaneously restrain the reach of the federal government.

Mike Maharrey

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