More On Federalism, The Incorporation Doctrine And Heller

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How [will] arguments of this kind . . . affect proposals to “incorporate” the second amendment[?] - Judge Frank Easterbrook

Sandy Levinson discusses the issues I wrote about yesterday - the dissonance between the insistence by extreme conservatives that the individual 2nd Amendment rights discovered by the Roberts Court in Heller be incorporated into the Due Process Clause of the 14th Amendment and their stated commitment to the New Federalism. Levinson writes:

[S]hould the Court actually grant cert in either the Seventh or Second Circuit case--it is almost literally inconceivable that they would do so in the Ninth Circuit case, since that Circuit, after "incorporating" the Amendment, promptly went on to say that it didn't prevent Alameda County from refusing to rent public property for gun shows--we would have the enjoyable spectacle of watching Scalia and Thomas try to figure out what is sufficiently rooted to be incorporated. It occurred to me while reading the opinion that both of these Justices joined the Court well after the heyday of incorporation, selective or otherwise. Indeed, Edwin Meese was making speeches during the 1980s attacking the idea of incorporation, and one might assume that either or both of these Justices were sympathetic to Meese's attack.

(Emphasis supplied.)Levinson relishes 7th Circuit Judge Frank Easterbrook's opinion on incorporation of the Heller rights because it brings forth all the problems and dissonance that incorporation presents to extreme conservatives. Levinson writes:

Where things get even more interesting, though, is Easterbrook's well-founded statement of doubt as to whether the Supreme Court is in fact prepared to overturn the earlier non-Incorporation cases. As he notes, the Court has firmly rejected Hugo Black's "every last word" theory of incorporation in favor of "selective incorporation." But on what basis does the Court (or any court) "select"? At that point Easterbrook noted that the Ninth Circuit, quoting Washington v. Glucksberg, asked if "the right to keep and bear arms is 'deeply rooted in this nation's history and tradition.'" At the very least, this requires judges to pick and choose among aspects of the Bill of Rights on the basis of highly debatable, often tendentious, claims about our "history and tradition." As Easterbrook writes, "'Selective incorporation' . . . cannot be reduced to a formula."

(Emphasis supplied.) Then what can it be reduced to? At one time, extreme conservatives reduced it to "judicial activism." Today? Not so much. Consider Kelo, by which the 5th Amendment takings clause was only in play because an "activist" Supreme Court determined that "ordered liberty" required that it be applied to the States via the Due Process Clause of the 14th Amendment. Without incorporation, there would be no Kelo case. What do extreme conservatives make of that? (Ironically, as Levinson notes, in Palko, Justice Cardozo rejected the incorporation of the 5th Amendment prohibition of double jeopardy. In 1969, the Court overruled Cardozo's Palko decision and incorporated the double jeopardy prohibition in Benton v. Maryland.)

Where do we go from here? I hope to a more honest discussion of the role of the Supreme Court and its essential political and policymaking role. Let's stop this pretend game that "judges do not make policy" and that the phrases "judicial restraint," "judicial activism," "originalists" and textualists" actually mean anything.

Let's stop pretending. And let's debate the issues.

Speaking for me only

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    Perhaps the USD Scalia (5.00 / 1) (#7)
    by oculus on Sat Jun 13, 2009 at 12:03:12 PM EST
    Center for Constitutional Originalism may shed some light on these issues. (Snk)

    I'm fully in sympathy with the idea (none / 0) (#1)
    by andgarden on Sat Jun 13, 2009 at 11:53:59 AM EST
    that "it's all just politics" in the Supreme Court. But how do you deal with people whose professional realities are rooted in never believing any such thing? (In other words, the kinds of people who rushed to defend yesterday's DOMA motion from the DoJ).

    I no longer pay attention (none / 0) (#2)
    by Big Tent Democrat on Sat Jun 13, 2009 at 11:56:09 AM EST
    to those people.

    I simply don't.

    They are now utterly discredited imo.


    But they run the discourse on these issues (none / 0) (#3)
    by andgarden on Sat Jun 13, 2009 at 11:59:18 AM EST
    Bush v. Gore is ignored, Jon Roberts has excellent judicial "temperament," etc. Nothing will ever convince them otherwise.

    *John (none / 0) (#4)
    by andgarden on Sat Jun 13, 2009 at 11:59:47 AM EST
    Oh (none / 0) (#5)
    by Big Tent Democrat on Sat Jun 13, 2009 at 12:00:39 PM EST
    I thought you were referring to other people.

    No the people you refer to I will continue to fight with.


    I think they are the same people (none / 0) (#6)
    by andgarden on Sat Jun 13, 2009 at 12:03:04 PM EST
    They believe things about how the law works that are just obviously untrue.

    Hmm (none / 0) (#8)
    by Big Tent Democrat on Sat Jun 13, 2009 at 12:04:48 PM EST
    Maybe I need some cites. I do not follow what you mean.

    let's just say that one person I have in mind (none / 0) (#9)
    by andgarden on Sat Jun 13, 2009 at 12:06:41 PM EST
    says A lot of Bull$h*t about this stuff.

    Ah (none / 0) (#10)
    by Big Tent Democrat on Sat Jun 13, 2009 at 12:17:50 PM EST
    Well, he's relatively harmless I think.

    I thought you were referring to the silly arguments presented by Lars Thorwald.

    The funny thing it is now the second time he has falsely argued that the Administration must adopt certain positions on federal issues. The first was the state secrecy issue when a law was not even in play.

    Obviously Thorwald's arguments are simply ludicrous -- Administrations have often argued that federal laws are in fact unconstitutional or that they should be interpreted in a way that is contrary to the current thinking.

    I actully think the bigger issue has been missed on this - not once, not even once, has Obama asked for a  bill amending, much less repealing DOMA.

    Not once, not even once, has Obama laid out his plan for retreating from DADT or asked for legislation on the subject.

    Look, pols are pols and do what they do. I personally never expected him to do anything on these issues. I thought it was a bad thing but I always understood it would be a a "make me do it" issue. But a cult is a cult and they know no other way but blind adulation.

    On the positive side, I always knew he was just talking when he talked about redoing NAFTA and all the Buy American nonsense. And I was confident there would not be a "make me do it" initiative on the subject.

    Tell me, when is the last time you have read ANYONE write about Obama's trade policies? That's fine with me because I LIKE his trade policies.

    I complain about the things Obama does that I disagree with and pocket that he agrees with me on.

    This is basic bargaining.


    Lars gets a "who?" reaction from me (none / 0) (#11)
    by andgarden on Sat Jun 13, 2009 at 12:22:37 PM EST
    but if you dig into the comments (yeah, that was my first mistake), the other person was arguing substantially the same thing.

    I don't disagree with you, but the cult choir often gets my goat.


    I did not read the comments (none / 0) (#12)
    by Big Tent Democrat on Sat Jun 13, 2009 at 12:24:07 PM EST
    Don't bother (none / 0) (#13)
    by andgarden on Sat Jun 13, 2009 at 12:25:47 PM EST
    Well (none / 0) (#14)
    by Steve M on Sat Jun 13, 2009 at 12:45:15 PM EST
    I think there are people who honestly believe that institutional principals exist to govern decisions like whether or not the DOJ should file a brief like they did yesterday.  I wouldn't be surprised at all to learn there are lawyers within the Solicitor General's office who support gay marriage, don't much care for DOMA, yet believe "this situation doesn't really fit within the criteria for the administration to refuse to defend a statute on the books."

    But of course, none of that changes the fact that they COULD make a different decision, which I think is the frustration you're expressing.  If overturning DOMA were a big enough priority for the administration, it's not like there's some hidden clause of the Constitution that says sorry, you're forced to defend it.  Ultimately it's a decision that comes down to politics and priorities.  The precedents do serve to make their action more defensible by illustrating that refusing to defend a statute is an extreme maneuver, the sort of thing that only happens once or twice a decade.

    But I agree with you, it's annoying to see people who have no idea about the kind of stuff I linked to you yesterday going on about how this is the law, Obama has no choice, blah blah blah, when they really have no idea.  I don't know why it's so hard for them to accept that yes, he could do it, it's just not what the Administration wants to spend political capital on right now.


    When you're in a cult. . . (5.00 / 1) (#15)
    by andgarden on Sat Jun 13, 2009 at 01:10:19 PM EST
    Where would I find this criteria (none / 0) (#16)
    by Big Tent Democrat on Sat Jun 13, 2009 at 01:27:26 PM EST
    of which you speak?

    I was referring (none / 0) (#19)
    by Steve M on Sat Jun 13, 2009 at 04:24:09 PM EST
    to a comment I posted here...

    So Lederman;s posts matter now? (none / 0) (#21)
    by Big Tent Democrat on Sat Jun 13, 2009 at 11:48:59 PM EST
    Obama has done so many things contrary to what Lederman wrote BEFORE joining the Administration it is not even funny.

    This is a sick joke.


    As a non-lawyer, I had to google (none / 0) (#17)
    by oldpro on Sat Jun 13, 2009 at 02:17:33 PM EST
    'incorporation doctrine' to go to school on this issue.

    Sure enough, it addresses the question I have always puzzled over these past 70 years, or so:

    "As a citizen of the United States, why should my basic rights be any different if I move from one state to another?"

    A fascinating history since the 14th Ammendment, playing out even to this day.

    Thanks for writing about this.  Your post frames the basic issue as clearly as it can be framed...quit playing word games and debate the issues.

    Meanwhile, I think I'll read up on Hugo Black and Felix Frankfurter, whose start disagreement on this issue are evidently well dramatized in legal history.

    sigh...stark disagreement...n/t (none / 0) (#18)
    by oldpro on Sat Jun 13, 2009 at 02:18:37 PM EST
    I read Levinson's post last night (none / 0) (#20)
    by Maryb2004 on Sat Jun 13, 2009 at 05:43:30 PM EST
    and was glad I had read yours first.

    I hope to a more honest discussion of the role of the Supreme Court and its essential political and policymaking role.  Me too.  Keep up the good work on this.