The "Incorporation Doctrine" is a Crock

Discussion in 'Law & Justice' started by Chickpea, Sep 10, 2023.

  1. Chickpea

    Chickpea Well-Known Member

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    When the sovereign states constituted their republic, they (stupidly in my opinion) added a bill of rights. These amendments were intended to make it perfectly clear that the U.S. government was limited in its powers.

    Then U.S. government invented the idea of "incorporation", in which the servant (the U.S. government) proclaimed itself to be the master of the states that constituted it.

    The U.S. government has NO legitimate legislative authority to interfere with a state's free speech, freedom of assembly, or gun rights laws.

    Oh, except for the fact that, despite the text of the constitution, the U.S. government says it has such a power. And I guess who is going to argue with that?
     
    Last edited: Sep 10, 2023
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  2. Lil Mike

    Lil Mike Well-Known Member

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    Well it's based on the 14th Amendment's due process clause. You might disagree with the interpretation but it's not made up totally out of whole cloth.
     
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  3. Chickpea

    Chickpea Well-Known Member

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    "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."
    So, where does it say that any of the states may not, for instance, establish a state religion?
     
  4. Chrizton

    Chrizton Well-Known Member

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    I thought these rights were supposed to be inalienable "natural rights". If so, state sovereignty and the Constitution do not matter. You have to pick which hill you are willing to die on---are they inalienable natural rights or are they arbitrary statutory rights? Can't have it both ways.
     
  5. Lil Mike

    Lil Mike Well-Known Member

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    I'm not arguing in favor, I'm simply pointing out where it comes from.
     
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  6. Chickpea

    Chickpea Well-Known Member

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    I'm not really categorizing the rights. What I am saying is that the U.S. gov't has no legitimate legislative authority to interfere with any of its member states with, say, freedom of speech.
     
  7. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    I am not aware of any examples (specific cases) of the federal government limiting a state's free speech or freedom of assembly. When it comes to gun rights law, clearly numerous "compromises" have been made, for the supposed sake of pragmatics.

    If you want to understand the origins of the federal government's jurisdictional creep over areas that were meant to be reserved for the states, you need to learn some history, the Civil War, when some states tried to leave the union and the government said they could not, and Prohibition, when a Constitutional amendment was passed giving the federal government legal jurisdiction to enforce laws prohibiting alcohol across the country. Although most of those Prohibition era restrictions on alcohol were later repealed, it set a precedent for other later laws.

    You thread would have been more successful if you had given some background about what the "incorporation" doctrine is, and given an example.
     
    Last edited: Sep 16, 2023
  8. Chickpea

    Chickpea Well-Known Member

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    I didn't say "limiting". I said "interfering with".
    Again, nothing in the constitution allows the US gov't to interfere with state gun rights.
    Probably.
     
  9. Eleuthera

    Eleuthera Well-Known Member Donor

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    You raise a good point, but the reasoning is that by accepting and signing off on the document, including the BOR, in1789, the states accepted the terms of the agreement. They accepted the terms of the First Amendment, including the freedom of religion.

    That has been more complicated during the last century when the federal government routinely bribed the states to submit to federal policies, and they did that with federal tax dollars.

    If the federal document specifies a Second Amendment, by way of incorporation of the 14th, the states must also enforce that provision.
     
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  10. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    i.e. "the power of the purse"

    There's a Libertarian quote about "the power of the purse" and there's even a Wikipedia article about this issue:
    Power of the purse - Wikipedia

    "the power to tax involves the power to destroy"
    (US Supreme Court opinion McCulloch v. Maryland, 1819)
     
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  11. FreshAir

    FreshAir Well-Known Member Past Donor

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    ah, so this is about States creating a theocracy and forcing it on their people
     
    Last edited: Oct 18, 2023
  12. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    To translate it for you, the U.S. Supreme Court and the federal courts have been applying their "interpretation" of the 14th Amendment to say that everything in the Bill of Rights (first ten amendments) also applies to the states.
    Interestingly, that interpretation didn't really start until around the 1920s, which is pretty recent in the country's history.
    Of course the court started with the most obvious rights, like saying states had to provide just compensation for property taken, and had to allow freedom of speech, things that most everyone knows is the right thing and we can all agree on. But of course, making the morally right decision for the wrong reasons can set bad legal precedent. And that's what happened here. These first two decisions opened up the door for all sorts of other things.

    There's a long article about the legal history of this here: Incorporation of the Bill of Rights
     
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  13. Patricio Da Silva

    Patricio Da Silva Well-Known Member Donor

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    Well, while the initial establishment of the Bill of Rights was indeed intended to limit federal power, the subsequent development of the incorporation doctrine through the judiciary has extended certain constitutional protections to apply at the state level. This is a complex area of constitutional law and is often subject to debate and differing opinions.

    It's correct that the first ten amendments to the U.S. Constitution, known as the Bill of Rights, were added to ensure that the federal government's powers were limited. These amendments were intended to protect individual liberties and rights from federal government infringement.

    The concept of "incorporation" refers to the legal doctrine used by the U.S. Supreme Court to apply the Bill of Rights to the states. This doctrine was not invented by the U.S. government as a whole, but rather developed through a series of Supreme Court decisions, primarily in the 20th century. The key mechanism for this was the Fourteenth Amendment, ratified in 1868, particularly its Equal Protection and Due Process Clauses. These clauses have been interpreted to gradually apply most of the protections of the Bill of Rights to the states.

    The claim that the U.S. government has no legitimate authority to interfere with state laws regarding free speech, freedom of assembly, or gun rights is a matter of legal debate. The Supreme Court, through the incorporation doctrine, has held that certain rights are so fundamental that state laws cannot infringe upon them. For instance, state laws that unduly restrict freedom of speech or the right to bear arms may be challenged and struck down based on the applicable amendments of the Bill of Rights as applied through the Fourteenth Amendment.

    The final point about the U.S. government claiming such power and who would argue against it reflects a personal viewpoint. In the U.S. constitutional system, the Supreme Court is the final interpreter of the Constitution. Its decisions can be controversial and subject to criticism, but they are legally binding. Additionally, constitutional amendments, legislation, and further court decisions can change legal interpretations over time.
     
  14. Turtledude

    Turtledude Well-Known Member Donor

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    so you believe a state can say deny blacks free speech as long as the state constitution allows it? Now I would agree the federal government has no power to RESTRICT rights recognized by the sovereign states but that is not what we are talking about. and it was the STATES that ratified the Fourteenth Amendment
     

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