Federalism, The Incorporation Doctrine And Heller

Adam Bonin writes about Sen. Jim DeMint's reaction to Judge Sonia Sotomayor's conventional statement that the issue of whether the individual Second Amendment rights recognized in Heller should be "incorporated" to apply to the States via the 14th Amendment is a question for the Supreme Court, not circuit courts of appeal.

Leaving aside the issue of whether DeMint was asking what Sotomayor's view would be as a Supreme Court Justice (my views on the propriety of such questions is discussed here (short answer, they are proper imo), I think the more interesting question is the interplay between the extreme conservative view on "federalism" and the incorporation doctrine. I'll consider that question on the flip.

First, let's review the incorporation doctrine, as described by the first "Hispanic" Justice, Benjamin Cardozo:

We have said that, in appellant's view, the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.

. . . On the other hand, the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 364; Herndon v. Lowry, 301 U. S. 242, 301 U. S. 259; or the like freedom of the press, Grosjean v. American Press Co., 297 U. S. 233; Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 707; or the free exercise of religion, Hamilton v. Regents, 293 U. S. 245, 293 U. S. 262; cf. Grosjean v. American Press Co., supra; Pierce v. Society of Sisters, 268 U. S. 510; or the right of peaceable assembly, without which speech would be unduly trammeled, De Jonge v. Oregon, supra; Herndon v. Lowry, supra; or the right of one accused of crime to the benefit of counsel, Powell v. Alabama, 287 U. S. 45. In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.

That's the general concept, and through that process, much of the Bill of Rights has indeed become "incorporated" by Supreme Court decisions (most of which predate the current Court by decades) into the due process clause of the 14th Amendment and thus applicable to the States.

Heller of course, is of recent vintage and, as Bonin noted, Justice Scalia, writing for the Court, reserved the question:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Bonin describes the issue of incorporation with regard to the rights created by Heller as a "Duh!" issue -- surely Heller rights will be incorporated. As a question of Legal Realism, I have no doubt Bonin is correct.

But philosophically, for Justices like Scalia, Thomas, Alito, Kennedy and Roberts, should the issue be so easy? After all, these Justices are strong proponents of the New Federalism. Note in particular Justice Kennedy's great concern for the "dignity" of the States in Alden:

The limited and enumerated powers granted to the Legislative, Executive, and Judicial Branches of the National Government, moreover, underscore the vital role reserved to the States by the constitutional design, see, e.g., Art. I, §8; Art. II, §§2—3; Art. III, §2. Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. The Amendment confirms the promise implicit in the original document: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., Amdt. 10; see also Printz, supra, at 919; New York v. United States, 505 U.S. 144, 156—159, 177 (1992).

The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status. The States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison).

Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of “the concept of a central government that would act upon and through the States” in favor of “a system in which the State and Federal Governments would exercise concurrent authority over the people–who were, in Hamilton’s words, ‘the only proper objects of government.’ ” Printz, supra, at 919—920 (quoting The Federalist No. 15, at 109); accord, New York, supra, at 166 (“The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States”). In this the founders achieved a deliberate departure from the Articles of Confederation: Experience under the Articles had “exploded on all hands” the “practicality of making laws, with coercive sanctions, for the States as political bodies.” 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911) (J. Madison); accord, The Federalist No. 20, at 138 (J. Madison & A. Hamilton); 3 Annals of America 249 (1976) (J. Iredell).

The States thus retain “a residuary and inviolable sovereignty.” The Federalist No. 39, at 245. They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.

Because of such concerns, Justice Kennedy, writing for the Court, rendered inapplicable a federal employment statute against the States.

In dissent, Justice Souter wrote:

The Court’s federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The Court’s history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding.

(Emphasis supplied.) One of the changes that Souter is referencing is the incorporation doctrine. It is worth remembering that the incorporation doctrine is not a development that legal conservatives embraced. Consider this conservative reaction to the 9th Circuit's embrace of incorporation of Heller:

With its decision in Nordyke v. King last week, in which the recent Supreme Court Heller decision was applied to state law, the Ninth U.S. Circuit Court of Appeals took another step down the long road of “incorporating” the Bill of Rights into the Fourteenth Amendment’s Due Process Clause. In doing so, it continued down the path toward completely inverting the model of government to which The People agreed when they ratified the Constitution.

. . . [W]hen notable gun-rights advocates such as Don Kates and Stephen P. Halbrook argued for the “incorporation” of the Second Amendment into the Due Process Clause — that is, for right-wing judicial legislation —they demonstrated that, as has been true for most of American history, the Constitution has come to be (in Jefferson’s words) “a thing of wax” waiting to be reshaped by today’s Judicial-Branch majority into the opposite of what it “meant” yesterday.

As Raoul Berger showed years ago in his The Fourteenth Amendment and the Bill of Rights (for anyone who cared to know), the argument that the Due Process Clause was intended to work this thorough revolution in the American order is entirely bogus. But judicial activists, nay, anti-constitutionalists on the right are no slower to deploy it than their mirror images on the Left to win through the federal judiciary what they desire: victories for their policies that they have been unable to achieve at the ballot box.

. . . This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials. One does not have to be a gun banner to lament Nordyke v. King — and all its cousins.

Whatever one thinks of these various policy departures (and many of them actually tickle my fancy), the bottom line is that every time a court invented one of them, or legions of other Incorporation Doctrine policies, it did so despite what the Constitution actually meant. Which means that to the extent that we live under the Incorporation Doctrine, we live under a judicial dictatorship.

A principled conservative who believes in "federalism" would disapprove of the application of the incorporation doctrine to the Second Amendment. Imposing federal rules on bearing arms on the States was once anathema to "conservatives." See U.S. v. Lopez:

In the Gun Free School Zones Act of 1990, Congress made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress "[t]o regulate Commerce . . . among the several States . . . ." U. S. Const., Art. I, §8, cl. 3.

. . . We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U. S. Const., Art. I, §8. As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Ibid.

Federal dictates to the States prohibiting restrictions upon the bearing of arms is unlikely to cause such deep concerns for States' sovereignty. But it should. But you see, for extreme conservatives it is only "judicial activism" or "federal tyranny" when you do not like what federal government is doing.

Speaking for me only

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    You are really spoiling us today. (5.00 / 2) (#1)
    by Maryb2004 on Fri Jun 12, 2009 at 05:05:30 PM EST
    Another great post.

    I have nothing of value to add - its been years since I've read incorporation cases.  

    Thanks for reading (5.00 / 1) (#2)
    by Big Tent Democrat on Fri Jun 12, 2009 at 05:10:17 PM EST
    I was considering incorporating (pun intended) Thomas' preemption dissent in this discussion, but it was already 2000 words.

    Totally preoccupied, myself (none / 0) (#3)
    by andgarden on Fri Jun 12, 2009 at 05:12:24 PM EST
    but yeah, BTD is on a roll today.

    Assuming Greenwa$dhas not (none / 0) (#4)
    by oculus on Fri Jun 12, 2009 at 05:40:33 PM EST
    "occupied the field,".I like it. Very meaty.