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The Incorporated Bill of Rights and Federalism

Is the incorporation doctrine an unmitigated good? Professor Lee Strang argues that although states should protect the rights of their citizens, different states should be able to take reasonably different approaches based on their particular circumstances. The incorporation doctrine imposes a “one size fits all” approach which limits federalism. https://youtube.com/watch?v=9y4CwX_SwNM


Incorporation doctrine is the idea that the Due Process clause of the 14th Amendment incorporates, applies to the states, the Bill of Rights. So the Free Speech clause was originally enacted in 1791 and everybody agreed and agrees that it applied to just the federal government. But incorporation was a process by which the Supreme Court, in its precedent, identified the Due Process clause as applying the First Amendment, the Second Amendment, et cetera, against the states. Now, the incorporation doctrine was, is, generally been viewed as an unmitigated good that who wouldn't want states to be limited by the free speech clause. And in some scholarship myself, I tend to agree with much of that sentiment, but I also want to identify that there are limits and there are costs to the incorporation doctrine. And in particular, one of the costs is harm to the structural principle of federalism. Federalism is the deeply entrenched structural principle in the United States that different states have residual and continuing governing authority over their individual citizens. And that those states can take different approaches to how they and their citizens live their lives. And so Incorporation is a one size fits all application to all those different states. So think, for example, the context of criminal procedure, there are lots of nuanced, empirically important, empirically contested judgements about the scope of criminal procedure rights that both suspects and then defendants should be entitled to. The Supreme Court in a series of cases, especially during the Warren Court era, applied through the incorporation doctrine, a series of the Bill of Rights regoverning criminal procedure to the states. Now, there may be many reasons why that's good, but one of the costs is that there are lots of differences among states. And one of the benefits of these differences or one of the implications of these differences is that there could be reasonably different approaches to criminal procedure in the different states. And that the one size fits all denies states the ability to be able to respond to these different circumstances as their circumstances see fit. A second cost to federalism of the one size fits all incorporation doctrine is that if you think that there are reasonably different ways for human beings to live together in a community and to pursue individual flourishing, which is part of the natural law tradition, there's lots of diverse ways that people can pursue their good, then it would often be the case that different communities will structure their laws differently; that some will have more robust free speech protection, and some will have less free speech protection. There may be a view that I think is probably ideal, but that isn't necessarily the view that would apply to all times and places. So it's no surprise when you look internationally, that there are a variety of different approaches to the protection of free speech. But with the incorporation doctrine, you have a one size fits all. And I think it's fair to say that American free speech law is very protective of free speech. And that's a view that I actually think is normatively attractive, but that doesn't mean that there couldn't be other communities for serious reasons, for sound reasons, for good reasons, that might have an approach that protects free speech, but at the same time also protects other values that might otherwise be in tension with or submerged by the robust free speech doctrine that is now applicable to all the states. So incorporation doctrine is something that applies one size fits all and thereby undermines the ability of states to meet the goals and needs of reasonably different ways of pursuing human flourishing and prohibit states from applying and protecting rights in a way that would be consonant with their circumstances. Now that's not a defense. What I've just said is not necessarily a reason to reject the incorporation doctrine, but it is an identification of reasons to be cautious about it, especially in a country as large and as heterogeneous as the United States.

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