This is a thread about the Incorporation of the Bill of Rights.
Preface: I am an attorney in the United States, I subscribe to the idea that the words of the US Constitution mean what the drafters intended those words to mean.
Most Americans mistakenly think that things like the First and Second Amendments were intended by the Federal government to apply to everyone. This is demonstrably false.
Many mistakenly think that the First Amendment was meant to foster a secular society and to mandate a secular government. This is demonstrably false.
The language of the First Amendment is clear
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
Congress is a limitation on one branch of the Federal government. Respecting, as used here, is synonymous with “concerning.” Establishment, as used here, includes disestablishment. Congress is prohibited from both establishing churches or disestablishing churches, including state churches.
But state governments for many years had laws requiring church attendance, collecting tithes, and even burdening the rights of religious dissenters. Source
The Second Amendment too, was only thought of a restriction on the Federal Government for most of US History. Source
What changed is the Fourteenth Amendment and the concept of “Incorporation.” Incorporation is a judicial fiction which says that the Constitution’s Bill of Rights does, in fact, bind the States.
This has had the effect of stifling democracy. When something is in the Bill of Rights, and is found to be a Constitutional right, it becomes inviolable. It becomes something which cannot be remedied by the conventional democratic process, but something which now requires the consent of two thirds of both houses of the Federal Government, and three fourths of the state legislatures.
The effect of incorporation of the Bill of Rights is that people are unable to regulate what they have been regulating throughout history. Public morals.
While I do object to the Federal government regulating these things (guns, speech, religion, conscious), it seems that, with the state’s hands tied due to the Supreme Court’s incorporation of these rights, everybody is now looking to the Federal Government to do something about it, as they’re seemingly the only people who can do anything.
The solution, to me, is clear. We need either a Court of a majority of state legislatures to state that the Fourteenth Amendment does only what its founders intended, it prevents people from using the law to exercise racial superiority. That is it. Doesn’t protect rights to abortion, doesn’t prevent people under 18 from getting the death penalty, doesn’t prevent discrimination against women. All of that is judicial larifari. States need to be able to regulate weapons, to regulate the public morals of their citizens, to regulate religion. YES, STATE GOVERNMENTS CAN REGULATE ELECTION SPENDING AGAIN!!!
The truth is, I think many of these states would, instead of descending into theocracy as many likely expect, would go back to our current liberal/secular system of government simply because it’s better business. Discrimination is bad business, if you don’t sell wedding cakes to gay people, you make less money. However, it should be a right not to make wedding cakes for whomever you like. Source.
Don’t even get me started on interstate commerce. Rant over. Incorporation was a mistake and it’s only going to get worse the longer we keep up the charade. Read the Annotated Constitution, it’s a better teacher than most law textbooks. Clarence Thomas is right about most things.
Happy to answer any questions or discuss the Constitution or this proposal as I enjoy it, but i’ve got to get back to work for now.
