Several libertarian lawyers and others seem to argue that the incorporation doctrine which applies the bill of rights to the states is a GOOD THING. They point to recent 2nd amendment gun cases and other economic freedom cases of small businesses.
As supporters of liberty, ought we to support this incorporation doctrine? Why or why not?
Since the people at the time of the amendment don’t appear to have believed in incorporation, I don’t think it should be used that way….. So if California wants to ban guns and don’t have a Right to bear arms in their state constitution, I’d say it’s their problem.
“Since the people at the time of the amendment don’t appear to have believed in incorporation…” — And you are basing this off of what? From what I understand it is a difficult debate that is hard to determine.
Madison attempted to insert an incorporation amendment into the Bill of Rights and was rejected, unanimously. It was deemed unnecessary. Roger Sherman and others argued against a bill of rights on those grounds, i.e. the States already had them so another round was irrelevant.
Got it Brion. But that doesn’t necessarily mean the country didn’t change its mind 80 years later right? As you say, we recreated the union. Is it possible to show whether or not incorporation was intended during the “ratification” of the 14th amendment?
I recommend two outstanding books by Raoul Berger on this topic:
1) GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT; and
2) THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS.
Also helpful is the section on 19th-century attempts to amend the Constitution to add a “separation of church and state” principle enforceable against the states in Philip Hamburger’s SEPARATION OF CHURCH AND STATE. In short, the dog didn’t bark: that is, advocates of the principle *never* said “we don’t need an amendment because we have the Incorporation Doctrine.”