Home Daily News Headline End the Incorporation Doctrine – Ryan McMaken

End the Incorporation Doctrine – Ryan McMaken

Since the Civil War, perhaps no development in American law or politics has done more to expand the de jure power of the federal government than the Incorporation Doctrine. This legal doctrine took a Bill of Rights designed to limit federal power over the states and did exactly the opposite: it greatly expanded the role of the federal government in potentially regulating every aspect of daily life within the states themselves. 

So what is the Incorporation Doctrine?

Stephan Kinsella defines it:

The meaning of the Fourteenth Amendment, “ratified” in 1868, has been debated for about 140 years now–and increasingly so in the last 90 or so years as the “Due Process” clause of that Amendment was used as a source of federal power over the states, via the “incorporation doctrine,” under which many of the rights implicit in the first 8 amendments of the Bill of Rights have been “incorporated” into the Due Process clause and thereby “applied” to the states.

Then concludes: 

I come to my main point. If it is true that, at best, the Fourteenth Amendment does not clearly grant to the feds a host of new powers–and even if there are arguments for it (as Thomas himself leans toward), it is clear that there is no such clear grant–then it does not grant them. Just as we interpret serious agreements strictly, and against the drafter; just as we require formalities and writings for serious matters (such as living wills, sales of real estate, and so on), so a wide grant of power to the central state, in the context of a decentralist Constitution where the states historically jealously guarded their sovereignty, must be clear and expressly written to take effect. In other words, the central state should not be allowed–as a matter of constitutional or libertarian norms–to legitimately shift the balance of power away from the states, and toward itself, by vague and ambiguous wording that it itself drafted.

There is no historical or legal basis for the Doctrine in the actual texts of the Constitution, but as a matter of limiting state power, the Doctrine must also be opposed on practical grounds. After all, it is the Incorporation Doctrine which has provided legal scholars and politicians a pretext under which to claim that the federal government should be the last word in virtually every legal conflict in America, from school prayer, to local taxes, to gun ownership. One even often encounters self-identified laissez-faire libertarians who completely accept that the federal courts should intervene in local city council meetings to decide the propriety of local eminent domain laws.  Lew Rockwell has explained just how wrong this approach is: 

 [I]t would be no victory for your liberty if, for example, the Chinese government assumed jurisdiction over your downtown streets in order to liberate them from zoning ordinances. Zoning violates property rights, but imperialism violates the right of a people to govern themselves. The Chinese government lacks both jurisdiction and moral standing to intervene. What goes for the Chinese government goes for any distant government that presumes control over government closer to home.

How is the libertarian to choose when there is a conflict between the demands of liberty and strictures against empire? The answer is not always easy, but experience and the whole intellectual history of liberalism suggest that decentralized government is most compatible with long-run concerns for liberty. This is why all the founders were attached to the idea of federalism: that the states within the union were the primary governing units, and the Bill of Rights was to protect both individuals and the states from impositions by the central government—even when liberty is invoked as a justification. 

Just so that we are clear on this last point: the purpose of the Bill of Rights was to state very clearly and plainly what the Federal Government may not do. That’s why they were attached to the Constitution. The states, under the influence of skeptics of the Constitution’s limits on the central power, insisted that the restrictions on the government be spelled out. The Bill of Rights did not provide a mandate for what the Federal Government may do. You can argue all you want about the 14th amendment and due process. But a reading that says it magically transforms the whole Bill of Rights to mean the exact opposite of its original intent is pure fantasy.

At the heart of all this is the fact that a federal government that has the power and authority to decide what is “constitutional” in every corner of the empire also has the power to force state and local governments to submit to federal laws. 

In other words, the Incorporation Doctrine largely abolished the United States as a confederation of independent states, and moves it far down the road toward becoming a unitary consolidated government. The more practical and wise classical liberals of the eighteenth and nineteenth centuries understood this and opposed the consolidation of American law under a national government.  Mike Maharrey explains why

I think centralizing power is always a net loss for liberty. So did the founding generation. This is why the framers of the Constitution emphatically rejected a proposal to give the federal government veto power over state laws. It’s also why the first Congress rejected applying some provisions of the Bill of Rights to the states.

When I say this, it tends to confuse people, because, in today’s political system, the federal government vetoes state laws all the time through federal courts. And virtually every time somebody perceives that a state government has violated their rights, they run straight to federal courts to stop the offending state action.

Despite my protests, the application of the federal Bill of Rights to the states has become a key feature of the American political system.

As I said, I believe this will ultimately prove to be a net loss for liberty. When you turn to federal courts to protect your liberty from state actions, you’re playing a game of Russian roulette with five bullets loaded into your six-shooter. Despite a few minor victories here and there, federal courts almost always come out with opinions that expand government power, not protect individual liberty. And these expansions of government power become the law of the land across the entire United States. In a decentralized system, bad state court decisions only impact the people in that one state.

The risk isn’t worth the reward.

Essentially, the Incorporation Doctrine renders the Tenth Amendment null and void. We can have a functioning Tenth Amendment, or we can have an Incorporation Doctrine. But not both. 

It’s also why here at mises.org, we are explicitly decentralist and opposed to applying the Bill of Rights to the state governments. It’s a good thing when the state constitutions have their own bills of rights, naturally.  Most states do have them, and most of them are quite good. But it is both dangerous and illiberal to insist that the federal government meddle in state and local governments to change state laws and dictate to states what is “constitutional.” That was never the intent of the American constitutional system, and the very idea of incorporation destroys the original intent of the Bill of Rights, which was to limit federal law. 

Rather, the idea of the American confederation was to provide protections for liberty through competition among states, and through balancing state power against federal power. The Incorporation Doctrine, however, has greatly tipped the legal scales in favor of federal power and makes the United States far more of a consolidated state than was ever intended. If we’re serious about expanding laissez-faire and true self-determination in the United States, the Incorporation Doctrine must be abolished.