Should the entire Bill of Rights apply to the States?
Austin Petersen
If a state is repressing the natural rights of her citizens, what does it matter whether it’s a local state government or the federal government? The repression of a citizens natural rights is wrong no matter what level of government does it. So if a state government created a law that denied citizens free speech, their right to own a gun, or their freedom from unreasonable search and seizure, should the federal government step in and correct it? And should that method be through the courts? This is the idea behind the judicial activism that is encouraged by institutions such as the Institute for Justice, a libertarian law firm that sues the government to reclaim American citizens civil and economic rights.
The incorporation doctrine of the Bill of Rights is the process through which American courts have applied parts of the U.S. Bill of Rights to the states. Before the 1890’s the Bill of Rights was only meant to apply to the federal government. But now that the incorporation doctrine began coming into effect, many of the Bill of Rights now apply to state governments. This was because of a provision in the Fourteenth Amendment known as the due process clause which dealt with the government not arbitrarily denying life, liberty or the pursuit of happiness. It meant that the states could not interfere with our natural rights any more than the federal government is supposed to according to the US Constitution.
When asking yourself whether you believe that judicial activism to advance liberty is right or not, consider McDonald Vs. Chicago. This court case incorporated the 2nd amendment to the states fully and decided once and for all that the law was meant to secure an individual right to bear arms. Now, states are not to interfere with citizens right to bear arms, although many still do. But the incorporation of the 2nd amendment means that any future egregious gun laws will have a harder time withstanding legal challenges with the precedent set by McDonald. Many conservatives and libertarians praised the decision, and others did not. Some on the right were appalled at the attempt to subvert state sovereignty by judicial activism. Still, the case inarguably advanced liberty by setting a firm precedent for the individual right to bear arms. Is this the right way to go with the rest of the Bill of Rights?
This issue is critically important because it divides the liberty movement in terms of tactics to advance freedom. Some people are strict constructionists in their approach to the US Constitution. They believe that it is to be interpreted directly as it was written. Typically, people of this opinion will not be in favor of judicial activism (basically legislating from the bench). However, many libertarians believe that we should “fight fire with fire” and use the courts to not just knock down bad laws, but to use the federal government to overturn laws that states have enforced such as gun restrictions. Many conservative constructionists oppose libertarians efforts to continue to press for full incorporation as their belief in federalism is so strong that they believe it is a state governments right to pass laws that are counter to the principles contained within the Bill of Rights. Their attitude is if you don’t like it, leave. You are not required to stay in the state that is oppressing you and you may go to another state that shares your viewpoints. This is the also the attitude that justified Jim Crow. It’s interesting to note that social democrats in recent years have rediscovered the tenets of federalism or “states rights” with their support for the passage of less restrictive laws on marijuana in states like Colorado and Washington and medical marijuana laws in another 18 states.
Currently the following amendments to the Bill of Rights have been incorporated: The 1st Amendment, The 2nd Amendment, the 4th Amendment, parts of the 5th except the right to a grand jury. Most of the 6th has been incorporated except the right to have jurors be from the area where the crime occurred. Half of the 7th has been incorporated – citizens are not afforded a jury trial in civil cases. And the 8th Amendment has except for the right not to receive excessive fines. The 9th amendment is considered to be an amendment on how to read the constitution and of course there is no possible way to incorporate the 10th amendment without dismantling large portions of federal authority.
So if the Bill of Rights is the most definitive list of our natural rights, does it make sense to incorporate them all? Is more judicial activism good if it advances liberty, even if it gives ground to social democrats who believe in a “living constitution” (meaning one they can change as they see fit)? Or is it better to commit to solely amending the constitution through the legislative process? If you believe the Bill of Rights was never intended to apply to the states, then how far do you believe a state can go in repressing the natural rights of her citizens?
