What are some arguments for and against the incorporation doctrine?

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Incorporation is the process by which the US Supreme Court has made the provisions of the federal Bill of Rights applicable to the individual states. On the surface, the Bill of Rights was written only to restrict federal power. The 1st Amendment expressly states that “Congress shall make no law”...

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Incorporation is the process by which the US Supreme Court has made the provisions of the federal Bill of Rights applicable to the individual states. On the surface, the Bill of Rights was written only to restrict federal power. The 1st Amendment expressly states that “Congress shall make no law” regarding religion or restricting freedom of speech, press, or assembly. So when the Bill of Rights was ratified, individual states often had religious tests to hold state office, and some states even had established churches that were supported by state tax money. At the same time, other amendments in the Bill of Rights could only be applied to Congress, even when Congress was not specified. For example, since the Constitution expressly denies to the states the power to keep troops of war during times of peace, provisions against quartering troops in private homes could not apply to the states because the states couldn’t have such troops to begin with. The Constitution also specified the jurisdiction of the federal judiciary, so provisions in the Constitution against self-incrimination and a right to legal counsel could not be applied to the states.

But, all of this was destined to change when the 14th Amendment was ratified. The 14th Amendment’s equal protection clause was meant to guarantee citizenship for the recently freed slaves and prevent state laws from returning them to a status no different from slavery (it was feared that states might abuse the 13th Amendment’s allowance of involuntary servitude as punishment for crimes).

But, over time, the US Supreme Court has used the equal protection clause to make rulings regarding not just race, but also religion and social behaviors. States cannot segregate their public school systems based on race (Brown v. Board of Education of Topeka, 347 U.S. 483 [1954]); states cannot compel a criminal suspect to cooperate with police interrogators (Miranda v. Arizona, 384 U.S. 436 [1966]) or appear in a state court without a lawyer (Gideon v. Wainwright, 372 U.S. 335 [1963]). States can no longer have established churches or impose religious tests on public office holders (Torcaso v. Watkins, 367 U.S. 488 [1961]). Neither can states use commercial regulations to govern non-commercial behavior (Griswold v. Connecticut, 381 U.S. 479 [1965]).

The upheaval that incorporation has caused in American society cannot be denied. Americans are not as religious or as racially segregated as they used to be. But, the main political implications of incorporation come from the federal court’s claim to near unlimited power to strike down state laws in the name of achieving equality and justice.

But, does the Court fully understand the process it has itself devised? Consider the implications of gay marriage. Since a marriage requires a state-issued license and certificate to be legally valid, what happens when issuing these documents to a gay couple violates the religious beliefs of the government officials involved (a court clerk to issue the license and someone like a judge or notary public sign and certify the marriage certificate after the wedding ceremony)? Are religious tests to be applied to these government officials? Are religious individuals to be denied the same right to be government officials that all other citizens enjoy?

Incorporation is an ongoing process, and it is by no means a settled political issue. It is a point of contention with every vacancy on the US Supreme Court.

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There are two major arguments for incorporation.  First, you can argue that the 14th Amendment clearly applies the Bill of Rights to the states when it says that states cannot take away their citizens' liberties without the due process of law.  The liberties they cannot take away are the liberties enumerated in the Bill of Rights.  Second, you can argue that it is simply a matter of justice.  If it is unjust for the federal government to infringe on your right of free speech, it must surely be unjust for a state government to do so.

Both of these arguments have their critics.  As to the first point, critics point out that the authors of the 14th Amendment did not specifically say that the Bill of Rights should apply to the states.  They could have said so and did not.  As to the second point, there are those who would prefer the fundamental fairness doctrine.  This doctrine would be more just because it would force the states not just to adhere to the Bill of Rights, but to be fair to their people in all important ways.

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